Smith v. Rottinghaus Company Inc

Filing 21

ORDER granting 20 Motion to Compel. Plaintiff is directed to show cause in writing within 30 days why the Court should not award reasonable expenses and fees. Defendant shall respond 7 days thereafter. Signed by Honorable Timothy D. DeGiusti on 10/7/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SHANIA SMITH,

)
)
Plaintiff,
)
)
v.
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ROTTINGHAUS COMPANY, INC, )
d/b/a SUBWAY,
)
)
Defendant.
)

Case No. CIV-16-125-D

ORDER
Before the Court is Defendant’s Motion to Compel and Request for Payment
of Attorney’s Fees and Expenses [Doc. No. 20]. No response has been filed and the
matter is deemed at issue.1
Plaintiff filed the present action alleging she was harassed and subjected to a
hostile work environment in violation of Title VII of the Civil Rights Act of 1964,
codified at 42 U.S.C. § 2000e et seq. The action was removed to this Court, and
during the course of litigation, Defendant served Plaintiff with its first set of
Interrogatories and Request for Production of Documents. Defendant also
requested that Plaintiff execute an authorization for release of certain health
information. Plaintiff’s counsel requested two extensions of time to obtain the
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Because Plaintiff has filed no response within the period prescribed by
LCvR7.1(g), the Court deems the allegations in Defendant’s motion confessed. See
id. (“Any motion that is not opposed within 21 days may, in the discretion of the
court, be deemed confessed.”).

discovery, but withdrew from representation before providing any responses. In its
order permitting Plaintiff’s counsel to withdraw, the Court directed Plaintiff to,
within thirty days, either retain new counsel or file a pro se entry of appearance.
See Order, Aug. 5, 2016 [Doc. No. 19]. To date, Plaintiff has neither retained new
counsel nor entered an appearance pro se.
Defendant contends that the aforementioned discovery is necessary to enable
it to defend against Plaintiff’s claims. Accordingly, Defendant requests an order
from the Court (1) compelling Plaintiff to respond to the outstanding discovery
requests and execute the aforementioned release; (2) requiring Plaintiff to pay
Defendant’s reasonable attorney’s fees and expenses incurred in seeking the
requested relief; and (3) extending Defendant’s deadline to respond to Plaintiff’s
First Set of Interrogatories, Request for Production and Requests for Admission
until twenty one days after Plaintiff responds to Defendant’s discovery requests.
Upon review of the record, the Court finds Plaintiff has failed to respond to
Defendant’s first set of Interrogatories and Request for Production. The Court
therefore grants Defendant’s Motion to Compel. Within twenty one (21) days of
the date of this Order, Plaintiff shall serve written answers and responses to
Defendant’s counsel that are complete, responsive, and unevasive. Plaintiff is also
directed to, within twenty one (21) days of the date of this Order, execute the

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aforementioned Authorization for Release of Protected Health Information and
submit it to Defendant’s counsel.
With respect to Defendant’s request for payment of its reasonable attorney’s
fees and expenses, Federal Rule of Civil Procedure 37(a)(5) governs the award of
fees and expenses in connection with motions to compel. It allows a court to award
a reasonable amount of fees and expenses where a motion is granted. Under that
provision, “the court must, after giving an opportunity to be heard, require the
party ... whose conduct necessitated the motion ... to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P.
37(a)(5)(A). The Court has granted Defendant’s motion; thus, an award of fees and
expenses pursuant to Rule 37(a)(5) is appropriate. Before the Court may make such
an award, however, Plaintiff must be afforded the opportunity to be heard. An
actual hearing is not necessary, and the Court may consider the issue of fees and
expenses “on written submissions.” Cardenas v. Dorel Juvenile Group, Inc., 231
F.R.D. 616, 622 (D. Kan. 2005); see also Fed. R. Civ. P. 37, advisory committee’s
note to 1993 amendment. “The ‘written submission’ requirement is met where the
moving party requests expenses in its motion or supporting brief and the opposing
party is given the opportunity to submit a brief in response.” Cardenas, supra
(citation omitted).

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Plaintiff is directed to show cause, in writing, within thirty (30) days of the
date of this Order, why the Court should not award Defendant the reasonable
expenses and attorney’s fees it incurred in bringing this Motion to Compel.
Defendant shall have seven (7) days thereafter to file a response, if it so chooses.
In the event the Court determines that expenses and fees should be awarded, the
Court will issue an order setting forth a schedule for the filing of an affidavit
reflecting the amount of fees and expenses that Defendant has incurred, and for the
filing of any supporting briefs.
Failure of Plaintiff to comply with this Order may result in sanctions,
including the potential dismissal of this case.
Accordingly, Defendant’s Motion to Compel [Doc. No. 20] is GRANTED
as set forth herein.
IT IS SO ORDERED this 7th day of October, 2016.

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