Furniture Distributors, Inc. v. Software Support-PMW, Inc.

Filing 23

ORDER finding as moot 17 Motion to Compel. Denying motion for attorney's fees. Signed by Senior Judge Graham Mullen on 4/9/2013. (blf)

This

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-90-GCM

FURNITURE DISTRIBUTORS, INC.

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Plaintiff,
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vs.
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SOFTWARE SUPPORT-PMW, INC.,
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Defendant.
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___________________________________)

ORDER

This matter is before the Court on Defendant’s Motion to Compel Discovery, [Doc. No.
17], Plaintiff’s response, [Doc. This 21], and Defendant’s reply, [Doc. No. 22]. The matter is
No.
fully briefed and is ripe for this Court’s consideration. The Court notes that that the parties
concede that all of the discovery Defendant requested in the initial motion has now been
produced and that the only remaining issue for the Court is attorney’s fees pursuant to Federal
Rule of Civil Procedure 37(a)(5)(A).
Rule 37(a)(5)(A) provides:
If the motion is granted—or if the disclosure or requested discovery is provided
after the motion was filed – the court must, after giving an opportunity to be
heard, require the party of deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees. But the court
must not order this payment if:
(i)

the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;

(ii)

the opposing party’s nondisclosure, response or objection was
substantially justified; or

(iii)

other circumstances make an award of expenses unjust.

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The Court has considered the arguments, regarding the imposition of attorney’s fees, in
the briefs submitted to the Court, and concludes that routine communication issues exacerbated
by management issues at Plaintiff’s counsel’s law firm involving personnel concerns were the
root cause of the discovery delay. Defendant has now received all of the discovery he has
requested pursuant to this motion, albeit at a slower and perhaps frustrating pace than
anticipated. However, this Court concludes that the above factors would make an award of
attorney’s fees unjust and therefore declines to award any fees in connection with this motion.
However, the Court cautions that personnel management issues cannot be allowed to derail the
discovery process and that further delays will likely result in sanctions.
SO ORDERED.

Signed: April 9, 2013

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