Crittenden v. City of Omaha et al

Filing 34

ORDER - The court therefore denies Defendants' request for attorney's fees. Ordered by Magistrate Judge F.A. Gossett. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEANDRE CREITTENDEN,
Plaintiff,
v.
CITY OF OMAHA, a political
subdivision, and PAUL HASIAK,
both individually and officially as an
officer of the Omaha Police
Department,
Defendants.

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8:15CV427
ORDER

This matter is before the court sua sponte following the court’s August 8, 2016,
order on Defendants’ motion to compel (Filing No. 31). In its order, the court directed
Plaintiff to show cause why sanctions should not be imposed for the failure to serve his
Rule 26(a)(1) mandatory disclosures.
In response to the court’s order, on August 26, 2016, counsel for Plaintiff filed an
affidavit (Filing No. 33) and a certificate of service (Filing No. 32) certifying that
Plaintiff’s initial disclosures were served on Defendants’ counsel on July 18, 2016.
Plaintiff’s disclosures were untimely and served on the same date Defendants filed their
motion to compel. However, Plaintiff’s counsel avers that his client is in prison at Omaha
Community Corrections and therefore counsel was unable to review the disclosures with
Plaintiff. Additionally, because Plaintiff is in prison, he is unable to pay reasonable
attorney’s fees. Pursuant to Fed. R. Civ. P. 37(a)(5)(A)(iii), attorney’s fees and costs
associated with a successful motion to compel are not awarded if “other circumstances
make an award of expenses unjust.”

Although Plaintiff did not timely serve his

mandatory disclosures, under the circumstances, the court finds an award of attorney’s fees
and expenses is not merited.

The court therefore denies Defendants’ request for

attorney’s fees.
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IT IS SO ORDERED.

DATED: August 30, 2016.
BY THE COURT:
s/ F.A. Gossett
United States Magistrate Judge

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