Perry v. Clements et al

Filing 23

OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; finding as moot 21 Motion to Compel; denying 21 Motion for Costs; denying 21 Motion for Attorney Fees (tjc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
TAUNYA PERRY and
JENNIFER MILLER,

)
)
)
Plaintiff,
)
)
v.
)
)
TERRY DURBOROW, SHERIFF )
OF OTTAWA COUNTY, in his )
Individual and Official
)
Capacities; and DANIEL
)
CLEMENTS,
)
)
Defendant. )

Case No. 15-CV-95-CVE-FHM

OPINION AND ORDER
Defendant Durborow’s Motion to Compel and for Fees/Costs as to Plaintiff Miller,
[Dkt. 21], is before the court for decision. Plaintiff Miller has filed a response. [Dkt. 22].
No reply was filed.
Plaintiff Miller failed to timely respond to Defendant’s discovery requests. When
defense counsel conferred with Plaintiff’s counsel, Plaintiff’s counsel explained that he was
having difficulty contacting Plaintiff but would continue his efforts. Defendant subsequently
filed the motion to compel, Plaintiff’s attorney was able to contact Plaintiff who had been
incarcerated, and the discovery responses have now been provided. The motion to compel
is therefore moot and the remaining issue is whether Plaintiff should pay Defendant’s
attorney fees and expenses for having to file the motion to compel.
Based upon the relatively short period of time Plaintiff’s responses were delinquent,
approximately 30 days, Plaintiff’s attorney’s difficulty in contacting Plaintiff because she
resides out of state and at times does not have access to a telephone, and Plaintiff’s lack

of financial resources, the court finds it would be unjust to require Plaintiff to pay
Defendant’s attorney fees and expenses. Fed. R. Civ. P. 37(a)(5)(A)(iii). The request for
attorney fees and expenses is therefore DENIED.
IT IS SO ORDERED this 28th day of September, 2015.

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