Brown v. Earth Sound, Inc et al

Filing 69

MEMORANDUM AND ORDER granting in part 52 Defendant's request for attorney fees and costs on it's motion to compel. The sum of $500.00 in attorney fees and costs is awarded to the defendants and against the plaintiff. The clerk shall enter this award as part of the judgment eventually entered in this case, unless at or before the time judgment is entered, the clerk is notified by the plaintiff that the award has been paid. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN G. BROWN,
Plaintiff,

4:12CV3001

vs.
MEMORANDUM AND ORDER
EARTH SOUND, INC., a Nebraska
Corporation; KENNY ENERGY, L.L.C., a
Nebraska Limited Liability Company; and
JAMES KENNY,
Defendants.
Pending before the court is the defendants’ request for attorney fees on their
motion to compel. The defendants filed their motion to compel on January 16, 2013,
(Filing No. 52), seeking responses to written discovery served on November 16, 2012.
A status conference was held on January 8, 2013.

During that conference,

plaintiff’s counsel stated the plaintiff would be responding to the discovery, and
immediately after the conference, advised defense counsel that the responses would be
served within a week. (Filing No. 63, ¶ 4). Defense counsel states he did not speak with
plaintiff’s counsel between January 8 and January 16, 2013, the date the motion to
compel was filed. (Filing No. 54-1, ¶ 6). Plaintiff’s counsel states he spoke to defense
counsel on January 16 or 17 to say the materials would be served within a week. (Filing
No. 63, ¶ 7).
The plaintiff’s discovery responses were delivered to defense counsel’s office on
January 21, 2013. (Filing No. 8). Plaintiff’s counsel explains:
I believed that after full deliver[y] of all items that the matter was
concluded and did not realize that we needed to respond to the Motion to
Compel given that we had at that point fully complied with the discovery
requests thereby satisfying the Motion and making the matter moot.
(Filing No. 63, ¶ 13).

But nothing was filed with the court, including a certificate of service, to indicate
the discovery was served, and the plaintiff did not respond to the motion to compel.
Accordingly, the court found, “The motion to compel is deemed unopposed. The
plaintiff’s failure to comply with discovery or respond to the defendants’ motion to
compel is not substantially justified.” Defense counsel was ordered to serve Plaintiff’s
counsel with an itemized listing of the costs and attorney fees the defendants incurred in
filing the motion to compel. Defense counsel responded with the following information:

(Filing No. 58-1). The court questions whether the description above should be
considered an “itemized” listing of fees and expenses.
By email to the court and opposing counsel, plaintiff’s counsel argues the amount
requested is unreasonable, explaining:
[W]ith all due respect to Mr. Pigsley, we were stunned to try to understand
how it would take someone with Mr. Pigsley’s skills and experience 5.7
hours to file what appears to be a stock motion to compel (when there were
no individual issues or complex legal questions to address in the motion to
compel). Admittedly, I have no experience with requesting attorneys’ fees
or moving for sanctions when discovery has already been served, albeit late
(for which we, again, apologize), 5.7 hours for such a filing seems more
than a bit excessive.
The text of the defendants’ motion and brief, combined, is less than five pages
long. The defendants did not, and were not required to argue the merits of specific
discovery requests. Instead, their motion was based on plaintiff’s complete failure to
respond to the discovery. As such, the accompanying affidavit was only two pages long,
with a copy of the unanswered production requests attached.

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The court does not dispute that defense counsel spent 5.7 hours preparing the
motion to compel, but it is not convinced all this time should be assessed against the
plaintiff. Rather, the court will award two hours at $250.00 per hour, for a total of
$500.00 to the defendants as attorney fees for filing the motion to compel.
The court takes this opportunity to raise one additional practice point. This court
does not always award fees if a non-moving party produces discovery in response to a
motion to compel. Each such case is reviewed individually. But absent a substantial
good cause showing, it will award fees when the non-moving party fails to file anything
in response to a motion to compel, thus necessitating not only the moving party’s time in
filing the motion, but this court’s time in reviewing the documents, filing an order, and
resolving the issues (like this one) that arise from that order.
Accordingly,
IT IS ORDERED:
1)

The defendants’ request for attorney fees and costs on its motion to compel,
(Filing No. 52), is granted in part.

2)

The sum of $500.00 in attorney fees and costs is awarded to the defendants
and against the plaintiff. The clerk shall enter this award as part of the
judgment eventually entered in this case, unless at or before the time
judgment is entered, the clerk is notified by the plaintiff that the award has
been paid.

April 8, 2013.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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