Carr v. State Farm Mutual Automobile Insurance Company

Filing 27

Memorandum Opinion and Order: The Court ORDERS that, pursuant to Rule 37(a)(5)(A), Plaintiff William Oran Carr is required to pay Defendant State Farm Mutual Automobile Insurance Company its reasonable attorneys' fees and costs incurred in m aking its Motion to Compel Plaintiff's Discovery Responses and Oral Deposition [Dkt. No. 14] but limited specifically to reasonable attorneys' fees and costs incurred in drafting and filing the motion insofar as it sought to compel Plain tiff's responses to Request for Production Nos. 10, 11, 14, and 18 and answers to Interrogatory Nos. 6-12 and not in connection with the Motion to Compel's other requests for relief or with any communications with Plaintiffs counsel regard ing the Motion to Compel or filing the court-ordered joint status report. Plaintiff's counsel and Defendant's counsel are therefore directed to meet face-to-face and confer about the reasonable amount of these attorneys' fees and costs to be awarded under Rule 37(a)(5)(A). Joint Status Report due by 2/12/2016. (Ordered by Magistrate Judge David L Horan on 1/21/2016) (axm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
WILLIAM ORAN CARR,

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Plaintiff,
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V.
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STATE FARM MUTUAL AUTOMOBILE §
INSURANCE COMPANY,
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Defendant.
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No. 3:15-cv-1026-M

MEMORANDUM OPINION AND ORDER1
Background
Defendant State Farm Mutual Automobile Insurance Company (“Defendant” or
“State Farm”) filed a Motion to Compel Plaintiff’s Discovery Responses and Oral
Deposition. See Dkt. No. 14 (the “Motion to Compel”). United States District Judge
Barbara M.G. Lynn referred the motion to the undersigned United States magistrate
judge for determination. See Dkt. No. 15.
In its Motion to Compel, Defendant asserted that Plaintiff William Oran Carr
failed to adequately respond to State Farm’s discovery requests and subsequently
failed to amend or supplement his responses, despite State Farm’s request to do so,

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written
opinion” adopted by the Judicial Conference of the United States, this is a “written
opinion[] issued by the court” because it “sets forth a reasoned explanation for [the]
court’s decision.” It has been written, however, primarily for the parties, to decide
issues presented in this case, and not for publication in an official reporter, and should
be understood accordingly.
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and that Plaintiff had also not given his oral deposition, despite requests to reschedule
it. See Dkt. No. 14 at 1. State Farm asked the Court to order Plaintiff to appear for an
oral deposition on a mutually agreeable date prior to December 18, 2015 and to fully
respond to the requests and interrogatories at issue one week prior to his oral
deposition. See id. at 5-6.
After the Motion to Compel was referred, the Court ordered Plaintiff’s counsel
and Defendant’s counsel to confer to attempt to resolve the disputes in the motion and
then file a joint status report. See Dkt. No. 16. The parties thereafter filed a Joint
Status Report that explained that, during a telephone conference, Plaintiff’s counsel
indicated that his office has attempted to contact Plaintiff in order to obtain
information necessary to supplement the discovery responses and available dates for
scheduling Plaintiff’s oral deposition but that Plaintiff was not responding, and the
parties explained that, due to Plaintiff’s failure to respond to his counsel, the parties
were not able to resolve the issues presented in Defendant’s Motion to Compel. See
Dkt. No. 18.
The Court then ordered that Plaintiff file a written response to the Motion to
Compel by December 4, 2015. See Dkt. No. 19. Plaintiff did not do so.
In a December 7, 2015 Memorandum Opinion and Order, the Court granted
Defendant’s Motion to Compel Plaintiff’s Discovery Responses and Oral Deposition
[Dkt. No. 14] and ordered that Plaintiff must appear for an oral deposition on a
mutually agreeable date prior to December 18, 2015; that Plaintiff must fully
supplement his response – and produce all documents responsive – to Defendant’s
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Request for Production No. 16 and must fully supplement his answers to Defendant’s
Interrogatory Nos. 2, 6-15, 18-20, 22 and 23, consistent with the proper manner of
responding or answering as laid out in the opinion and more fully in Heller v. City of
Dallas, 303 F.R.D. 466 (N.D. Tex. 2014), by December 14, 2015; that Plaintiff’s
objections to Defendant’s Interrogatory Nos. 6-12 are overruled and that Plaintiff must
fully answer Interrogatory Nos. 6-12 by December 14, 2015; and that Plaintiff’s
objections to Defendant’s Request for Production Nos. 10, 11, 14, and 18 are overruled
and that Plaintiff must fully respond – and produce all documents responsive – to
Request for Production Nos. 10, 11, 14, and 18 by December 14, 2015. See Dkt. No. 21.
The Court further noted that State Farm has not specifically moved for an
award of its reasonable expenses, including attorneys’ fees, under Federal Rules of
Civil Procedure 37(c)(1) or 37(d)(1) as caused by Plaintiff’s failure to appear for his
deposition or to supplement as Rule 26(e)(1) requires. See id. at 24. But the Court
noted that Rule 37(a)(5)(A) provides that, if, as here, a motion to compel is granted,
“the court must, after giving an opportunity to be heard, require the party ... 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,” except that “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.”
Id. (quoting FED. R. CIV. P. 37(a)(5)(A)).
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In the December 7, 2015 Memorandum Opinion and Order, the Court granted
Plaintiff until December 28, 2015 to file a response explaining why the Court should
not require Plaintiff and/or his counsel to pay Defendant State Farm Mutual
Automobile Insurance Company, as a sanction as required by Rule 37(a)(5), the
expenses, including attorneys’ fees, that Defendant incurred in making its motion to
compel Plaintiff’s responses to Defendant’s Request for Production Nos. 10, 11, 14, and
18 and answers to Defendant’s Interrogatory Nos. 6-12. See id. The Court further found
that Defendant attempted in good faith to obtain the discovery at issue without court
action before filing its Motion to Compel. See id. at 24-25 (citing Dkt. No. 14-1). The
Court ordered that, “[i]n the response, Plaintiff should fully explain whether Plaintiff’s
nondisclosure, responses, or objections at issue were ‘substantially justified’ or whether
other circumstances make an award of expenses under Rule 37(a)(5) unjust”; that
Defendant may file a reply to this response by January 18, 2016; and that the Court
defers ruling on any award of expenses under Rule 37(a)(5) pending this briefing. Id.
at 25.
The parties thereafter filed an Agreed Motion to Extend Discovery Deadline,
reporting that Plaintiff’s counsel’s office notified Defendant’s counsel that Plaintiff had
responded to their requests for availability and advised that he will be out-of-state for
work until the end of 2015 and that the parties had agreed to schedule the oral
deposition for January 6, 2016. See Dkt. No. 24 at 1.
Plaintiff then, as ordered, filed a response as to a possible Rule 37(a)(5)(A) award
of expenses. See Dkt. No. 25. In the response, Plaintiff’s counsel explained that,
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although State Farm narrowed the scope of Defendant’s Request for Production Nos.
10, 11, 14, and 18 in its Motion to Compel – and, the Court notes, in its pre-filing
correspondence with Plaintiff’s counsel, see Dkt. No. 14-1 at 20 of 28 – “Plaintiff’s
counsel was not able to respond to the more narrow inquiry presented by Defendant
in its motion to compel, related to offsets to which State Farm may be entitled, because
he was not able to get the information needed from Plaintiff William Oran Carr in a
timely manner.” Dkt. No. 25 at 2. Plaintiff’s response explains that “Plaintiff William
Oran Carr is the Assistant Defensive Line Coach at [the] University of Michigan”; that,
“[a]lthough he is from Dallas, he currently lives in Ann Arbor, Michigan”; that, “[a]s
part of his employment obligations, Mr. Carr was instructed by his employer to cease
communication with the outside public during a period of time coinciding with football
season”; and that, “[a]s such, when Plaintiff’s counsel contacted Mr. Carr by phone
regarding information necessary to respond to Defendant’s motion to compel and to
supplement discovery in general, Mr. Carr was unresponsive.” Id.
Plaintiff’s response further explains that, “[l]ikewise, when counsel for Plaintiff
served discovery-related documents on Mr. Carr during this time period, service was
not accepted”; that “Plaintiff’s counsel attempted to communicate to Mr. Carr about the
nature of his legal obligation to cooperate in the discovery process of this federal
proceeding”; that “such communication was stalled by Mr. Carr’s employment during
the active football season”; and that “[s]uch circumstances might have been good cause
for Plaintiff’s counsel to withdraw, as representation had been rendered unreasonably
difficult by the client,” “[b]ut, Plaintiff’s counsel feared that withdrawing could
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materially and adversely affect Mr. Carr’s case, particularly as Mr. Carr was
temporarily not communicating with the public, and could have inadvertently
subjected himself to being held in contempt of court.” Id. at 2-3.
Plaintiff further explains that, as to Defendant’s Interrogatory Nos. 6-12,
“although in his initial attorney-client consultation Mr. Carr stated that he had not
suffered previous injuries to his spine, shoulders, and wrist despite his prior football
career, Plaintiff’s counsel feared that certain potential medical conditions responsive
to the Interrogatories could have been overlooked”; that “Plaintiff’s counsel felt
obligated to further explore this discovery issue with Plaintiff, but could not do so
adequately during the active football season and Mr. Carr’s coinciding employment
obligations”; that, “[d]ue only to counsel’s inability to communicate with Mr. Carr
during a critical time period in the discovery process, Plaintiff’s counsel could not
explore other potential medical conditions or injuries subject to disclosure under the
Interrogatories”; and that “these potential injuries and/or medical conditions, and any
treatment therefore, could have been protected by privilege.” Id. at 4.
Plaintiff reports that “Plaintiff and Defendant have since entered into an
agreement that any and all documents and things containing information regarding
William Oran Carr’s medical history, his medical condition, medical procedures he has
undergone or that have been recommended for him, his medical test results, the
medications he has been prescribed or has used, and/or any treatments he has received
or has be referred to receive, are to be treated as confidential information in this
litigation.” Id.
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Plaintiff finally asserts that, “instead of withdrawing from representation of Mr.
Carr, which might have resulted in an a materially adverse affect on Mr. Carr’s
interests in this case, Plaintiff’s counsel made the choice to continue to diligently
pursue communications with Mr. Carr”; that, “[n]ow that the pressing demands of
football season that impact Mr. Carr’s career have temporarily subsided, Plaintiff’s
counsel is confident that all discovery requested can be supplemented to the extent
ordered by the Court”; that “[t]here is no evidence Plaintiff has consciously engaged in
willful or contumacious behavior to avoid discovery”; that, “due to the unique
circumstances presented, sanctions would not be a deterrent to discovery abuse”; and
that “Defendant’s case has not been impacted by Plaintiff’s delayed responses.” Id. at
4-5. Plaintiff contends that, “[f]or these reasons, an award requiring Plaintiff or his
counsel to pay Defendant’s expenses in connection with these proceedings as discovery
sanctions, would be unjust.” Id. at 5.
State Farm did not file a reply as permitted by the Court’s December 7, 2015
Memorandum Opinion and Order [Dkt. No. 21].
Analysis
The Court agrees that, while every case involves its own facts, these are unique
circumstances. In light of their efforts to communicate with Defendant’s counsel and
with their client, the Court finds that an award of expenses to be paid by Plaintiff’s
counsel would be unjust under the circumstances.
But the Court finds that, as to a possible Rule 37(a)(5) award of expenses to be
paid by Plaintiff himself, Plaintiff’s nondisclosures in response to, or failure to fully
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respond to, State Farm’s discovery requests were not substantially justified in light of
his failure to communicate with his own counsel in connection with his own lawsuit.
The law recognizes certain circumstances in which a party’s inaccessibility or
inability to communicate or participate in litigation may be excused or justified. For
example, the law provides certain protections to persons in military service against
default judgments. See 50 App. U.S.C. § 521.
But, here, Plaintiff failed to communicate with his own counsel over the course
of months despite counsel’s diligent efforts to communicate with him in an effort to
comply with Plaintiff’s discovery obligations under the Federal Rules of Civil
Procedure. And Plaintiff did so, by his own account, as part of his employment
obligations as a college football coach.
Plaintiff’s counsel does not invoke any law or rule that provides a protection or
excuse, based on this employment, against complying with discovery obligations
imposed on any party pursuing or defending claims in federal court. And, although
Plaintiff’s remaining incommunicado through the course of the college football season
may not have ultimately delayed the progress of this case, that may have been simply
the function of a happy accident that discovery closed around the end of the college
football season. And, in any event, Plaintiff’s lack of communication with his counsel
did result in State Farm’s being forced to file its Motion to Compel and in Plaintiff’s
counsel’s inability to effectively confer and respond as to the discovery matters at issue.
Again, State Farm has not sought an award of its expenses under Federal Rule
of Civil Procedure 37. And the Court appreciates that Plaintiff may by now have
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complied with his discovery obligations at issue in the Motion to Compel and as
ordered by the Court’s December 7, 2015 Memorandum Opinion and Order [Dkt. No.
21].
But the Court cannot condone a party’s failing for a sustained period to
communicate with his or her own counsel as to discovery responses and deposition
scheduling, particularly where it results in another party’s needing to file – and the
Court’s needing to decide – a discovery motion that very likely would have been
avoided had the party been participating in the case as required.
Conclusion
Accordingly, the Court ORDERS that, pursuant to Rule 37(a)(5)(A), Plaintiff
William Oran Carr is required to pay Defendant State Farm Mutual Automobile
Insurance Company its reasonable attorneys’ fees and costs incurred in making its
Motion to Compel Plaintiff’s Discovery Responses and Oral Deposition [Dkt. No. 14]
but limited specifically to reasonable attorneys’ fees and costs incurred in drafting and
filing the motion insofar as it sought to compel Plaintiff’s responses to Request for
Production Nos. 10, 11, 14, and 18 and answers to Interrogatory Nos. 6-12 and not in
connection with the Motion to Compel’s other requests for relief or with any
communications with Plaintiff’s counsel regarding the Motion to Compel or filing the
court-ordered joint status report.
Northern District of Texas Local Civil Rule 7.1 requires that parties confer
before filing an application for attorneys’ fees. Plaintiff’s counsel and Defendant’s

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counsel are therefore directed to meet face-to-face and confer about the reasonable
amount of these attorneys’ fees and costs to be awarded under Rule 37(a)(5)(A).
This face-to-face requirement is not satisfied by a telephonic conference. Any
attorney refusing to appear for this meeting or to confer as directed will be subject to
sanctions.
By no later than February 12, 2016, the parties must file a joint status report
notifying the Court of the results of the conference. If all disputed issues as to the
amount of attorneys’ fees and costs to be awarded to State Farm have been resolved,
Defendant’s counsel must also send an agreed proposed order to the Court at
[e-mail] by February 12, 2016.
If the parties do not reach an agreement as to the amount of attorneys’ fees and
costs to be awarded to State Farm, State Farm must, by no later than February 19,
2016, file an application for attorneys’ fees and costs that is accompanied by supporting
evidence establishing the amount of the reasonable attorneys’ fees and costs (as
described above) to be awarded under Rules 37(a)(5)(A). The fee application must be
supported by documentation evidencing the “lodestar” calculation, including affidavits
and detailed billing records, and citations to relevant authorities and shall set forth the
itemized number of hours expended in connection with the recoverable attorneys’ fees
described above as well as the reasonable rate(s) requested. See Tollett v. City of
Kemah, 285 F.3d 357, 367 (5th Cir. 2002) (using the “lodestar” method to award
attorney’s fees under Rule 37).

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If an application is filed, Plaintiff may file a response by March 11, 2016, and
State Farm may file a reply by March 25, 2016.
SO ORDERED.
DATED: January 21, 2016

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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