Hughes v. Hughes et al

Filing 157

MEMORANDUM OPINION AND ORDER granting Plaintiffs' 115 Motion/Application for Award of Attorneys' Fees in the amount of $2,668.00. Objections may be filed within 14 days after being served with a copy of this Order. Signed by Magistrate Judge James E. Seibert on 6/30/11. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KAREN HUGHES and
FRANK HUGHES,
Plaintiffs,
v.

Civ. Action No. 2:09-cv-93

SEARS, ROEBUCK AND CO., and
ICON HEALTH AND FITNESS, INC.,
and JOHN DOE,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFFS’ APPLICATION FOR AWARD
OF ATTORNEYS’ FEES AND COSTS
This matter comes before the Court on Plaintiffs’ Application for Award of Attorneys’
Fees and Costs filed March 25, 2011.1 The Court provided Defendant, Icon Health and Fitness,
Inc. (hereinafter “Icon”), an Opportunity to Be Heard on Plaintiffs’ Application on April 20,
2011. Plaintiffs, Karen and Frank Hughes, appeared by Jeffrey D. Van Volkenburg, Esq., by
phone. Defendant, Icon, appeared by Jeffrey A. Kimble, Esq., by phone. No testimony was
taken nor was any other evidence adduced.
I. INTRODUCTION
A.

Background
This action was initially filed on June 25, 2009 in the Circuit Court of Barbour County,

West Virginia seeking recovery for injuries suffered by Plaintiff, Karen Hughes, allegedly
resulting from a treadmill malfunction. Defendants timely removed to federal court under 28

1

Dkt. No. 115.
1

U.S.C. § 1441 on July 29, 2009 alleging diversity jurisdiction. Plaintiffs filed the instant Motion
seeking reasonable expenses incurred as a result of Plaintiffs’ filing of their Motion to Compel.
B.

The Motions
1.

C.

Plaintiffs’ Application for Award of Attorneys’ Fees and Costs.2

Decision
Plaintiffs’ Application for Award of Attorneys’ Fees and Costs is GRANTED in the

amount of Two Thousand Six Hundred Sixty-Eight Dollars ($2,668.00) because Icon’s nondisclosure was not substantially justified.
II. FACTS
1.

On March 25, 2011, Plaintiffs filed an Application for Award of Attorneys’ Fees
and Costs.3

2.

The Court entered an Order setting Defendant’s Opportunity to be Heard on
Plaintiff’s Application for April 20, 2011.

3.

On April 20, 2011, the Opportunity to be Heard was held.

III. PLAINTIFFS’ APPLICATION FOR AWARD OF
ATTORNEYS’ FEES AND COSTS
A.

Contentions of the Parties
In their Application, Plaintiffs move for an order “requiring Icon to pay Plaintiffs

reasonable expenses, including attorneys’ fees, incurred in making its previously filed Motion to
Compel Discovery, filed on or about March 2, 2011.” See Pls.’ Mot., Pg. 1 (Dkt. 115). Plaintiffs

2

Dkt. No. 115.

3

Id.
2

direct the Court to Fed. R. Civ. P. 37(a)(5)(A) which, Plaintiff argues, “authorizes this Court to
award expenses, including attorney’s fees, after a Court grants a Motion to Compel.” Id.
Specifically, Plaintiffs contend an award of reasonable expenses is required unless an opposing
party can demonstrate that its actions were substantially justified or an award of costs would be
unjust. Id. at 1-2. Plaintiffs request “reasonable expenses, including attorneys’ fees, in the
amount of Two Thousand Six Hundred Sixty-Eight Dollars ($2668.00) for the representation of
Plaintiffs in the forgoing Motion to Compel Discovery....” Id. at 2. (emphasis in original).
Icon did not submit a written response to Plaintiffs’ Application. At the hearing,
however, Icon proffered two arguments as to why Plaintiffs were not entitled to reasonable
expenses. First, Icon argues Plaintiffs did not attempt, in good faith, to obtain the information
sought before seeking court action. Icon essentially contends Plaintiffs should have plainly
stated that they were seeking the discovery Icon produced in the Salter case. Additionally, Icon
argues its non-disclosure of the requested information was substantially justified because Icon
viewed the issue as a genuine and legitimate dispute. Icon requests the Court to deny Plaintiffs’
request for reasonable expenses.
B.

Discussion
Fed. R. Civ. P. 37(a)(5)(A) provides for payment of expenses if a motion for an order

compelling discovery is granted. Specifically, Rule 37(a)(5)(A) of the Federal Rules of Civil
Procedure provides, in relevant part, as follows:
If the motion is granted–or if the disclosure of requested discovery is
provided after thee motion was filed–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. But the court must not order
3

this payment if: the movant filed the motion before attempting in
good faith to obtain the disclosure or discovery without court action;
the opposing party’s nondisclosure, response, or objection was
substantially justified; or other circumstances make an award of
expenses unjust.
Fed. R. Civ. P. 37 (a)(5)(A) (emphasis added).
An Order confirming the pronounced Order of the Court was entered March 16, 2011
requiring Icon to “diligently examine all of [Icon’s] existing files related to its treadmills and reanswer Plaintiffs’ Interrogatory #2 on or before April 1, 2011.” See Order, Pg. 2 (Dkt. 107). The
Order was affirmed by the district court on March 24, 2011. A review of Rule 37(a)(5)(A) of the
Federal Rules of Civil Procedure authorizes a court to award expenses, including attorney’s fees,
if a motion to compel is granted. This award of reasonable expenses, however, must not be
ordered if substantial justification exists for the opposing party’s non-disclosure or other
circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(ii)-(iii).
Icon argues substantial justification exists for its non-disclosure because it “viewed the
issue as a genuine and legitimate dispute.” See Transcript, Pg. 3 (Dkt. 134). The Court,
however, declines to find this constitutes sufficient justification to excuse Icon’s failure to
respond adequately to Plaintiffs’ discovery requests. Specifically, Plaintiffs’ Interrogatory
Number 2 requested “each and every civil action filed against Icon in any state or federal court
during the last fifteen (15) years alleging a defect in design or manufacturing for any treadmill
designed or manufactured by Icon....” See Pls.’ Mot. to Compel, Pg. 2 (Dkt. 96) (emphasis
added). Icon objected but noted that “the instant matter is the only lawsuit in our database
involving this model treadmill.” See Pls.’ Mot. to Compel, Pg. 2 (Dkt. 96). The Court reiterates
that Icon was less-than-candid in its discovery response to Interrogatory Number 2 and should

4

have disclosed Salter v. Sears, Roebuck and Co., a 2008 New York state case similar to the
current litigation, as well as, any other relevant civil action. Accordingly, Icon’s argument is
unpersuasive.
Icon also essentially argues that it was confused with Plaintiffs’ Interrogatory Number 2.
Specifically, Icon’s counsel contends “the discovery provided by Icon in the Salter case was the
primary basis for renewing the discussion over Interrogatory Number 2,” and “had the plaintiffs
made this known to Icon, the parties would have had an opportunity to discuss Salter’s
application to Interrogatory Number 2.” See Transcript, Pg. 3 (Dkt. 134). This argument is also
without merit because Plaintiffs’ discovery request quite clearly conveyed to Icon that it should
have disclosed Salter at the outset. Icon’s argument is without merit and, thus, fails to
substantially justify its failure to disclose. Accordingly, Plaintiffs are entitled to receive all
reasonable fees and expenses, including attorney’s fees, incurred in filing their Motion to
Compel in the amount of Two Thousand Six Hundred Sixty-Eight Dollars ($2,668.00).
C.

Decision
Plaintiffs’ Application for Award of Attorneys’ Fees and Costs is GRANTED in the

amount of Two Thousand Six Hundred Sixty-Eight Dollars ($2,668.00) because Icon’s nondisclosure was not substantially justified.
Filing of objections does not stay this Order.
Any party may, within fourteen (14) days after being served with a copy of this Order, file
with the Clerk of the Court written objections identifying the portions of the Order to which
objection is made, and the basis for such objection. A copy of such objections should also be
submitted to District Court Judge of Record. Failure to timely file objections to the Order set forth

5

above will result in waiver of the right to appeal from a judgment of this Court based upon such
Order.
The Clerk of the Court is directed to transmit a copy of this Order to parties who appear pro
se and any counsel of record, as applicable.
IT IS SO ORDERED.

/s/ James E. Seibert

DATED: June 30, 2011

JAMES E. SEIBERT
UNITED STATES MAGISTRATE JUDGE

6