Markgren, Peter et al v. Saputo Cheese USA Inc.

Filing 117

ORDER Pursuant to Rule 37(a)(5)(B) and for the reasons stated above, it is ORDERED that plaintiff and his attorney are jointly and severally liable to pay $20,000 to defendant and its law firm not later than June 21, 2023. Signed by Magistrate Judge Stephen L. Crocker on 5/22/2023. (acd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

PETER MARKGREN
v.

Plaintiff,

ORDER
21-cv-429-jdp

SAPUTO CHEESE USA INC.,
Defendant.

On February 1, 2023, this court denied plaintiff’s second motion to compel discovery
(dkt. 42) and ordered cost shifting pursuant to Rule 37(a)(5)(B). Dkt. 70. Defendant filed a
request for $30,402, representing 45.3 hours of work by a partner and an associate, with the
associate doing most of the work. See dkt. 79-1. The partner bills at $765/hr., the associate at
$630/hr., rates that defendant is paying in this lawsuit. See dkt. 79 at ¶ 12.
In opposition to this request, plaintiff first argues that the discovery requests underlying
his motion to compel were justified based on his view of the facts underlying his lawsuit. The
court found otherwise in its February 1 order, concluding that the information plaintiff sought
was temporally and substantively irrelevant and was disproportionate to the needs of this case.
The court noted in this same order that defendant’s long, detailed response to plaintiff’s motion
refuted each of plaintiff’s myriad demands; in light of this, I am not surprised at the amount of
time spent by defendant’s attorneys responding to plaintiff’s motion. This is the sort of
diligence and thoroughness that defendant was paying for at hourly rates that are routine for the
type of services these attorneys provide in the market in which they practice.
Nothing in plaintiff’s objection to the court’s cost-shifting order affects any of this. What
plaintiff needs to keep in mind is that cost shifting under Rule 37(a)(5)(A) is not a sanction: the
rule serves a “loser pays” function, designed to put the prevailing party back into the financial

position it was in before being drawn into discovery motions practice. See Rickels v. City of South
Bend, Ind., 33 F.3d 785, 786-87 (7th Cir. 1994). Bad faith is irrelevant to this determination.
This segues to plaintiff’s invocation of Title VII, the ADA and the ADEA to argue that
this court cannot award costs in this situation. This is apples-to-oranges. Rule 37(a)(5)(B) has
its own standard for determining whether to award costs incurred in a discovery dispute: the
court may not shift such costs if the losing motion was substantially justified or if other
circumstances make an award of expenses unjust. This is the standard that the court is
employing here. Following the applicable discovery rule to determine cost shifting in a discovery
dispute does not “violate the established public policy under Title VII, the ADA and the ADEA”
as plaintiff contends. See dkt. 80 at 11.
This in turn segues to plaintiff’s more on-point arguments: that defendant provided some
of the requested discovery after he filed his motion, that the hourly rates charged by defendant’s
law firm are significantly higher than those charged in rural Wisconsin, and that plaintiff’s
lawsuit presents “the classic case of David v Goliath.” Dkt. 80 at 11. Plaintiff’s attorney
proffers that paying the amount requested by defendant would impose a significant financial
burden for plaintiff and/or his attorney, “which could wipe out any savings either may have.”
Id.; see also Declaration of Beth Huber, dkt. 81 (detailing plaintiff’s financial situation and his
contingent fee arrangement with counsel). This argument resonates somewhat with the court,
notwithstanding defendant’s citation to case law supporting its contention that it is entitled to
be reimbursed at the rate it has chosen to pay its attorneys in this lawsuit.
Although it would not be “unjust” for the court to award defendant all or substantially
all of its claimed costs on plaintiff’s losing discovery motion, I’m not going to do that because

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this strikes the court as overkill. True, in this lawsuit plaintiff and his attorney could be accused
of serial overkill: in their spaghetti-against-the-wall complaint (most of which the court threw
out in its May 19, 2023 summary judgment order, dkt. 116); in their approach to summary
judgment (which the court has rebuked, see id. at 2-4); and in their approach to discovery, which
this court rejected in its February 1, 2023 order.1 Further, their David-versus-Goliath analogy
only goes so far, given that plaintiff threw a lot of stones that should have stayed on the ground.
Three of plaintiff’s four claims are gone; only his failure-to-accommodate claim remains.
I will use plaintiff’s 25% survival

rate on his substantive claims as an equitable

benchmark to account for his claim of “significant burden”: the court will shave 25% off of
defendant’s claimed expenses, which drops the claim to $22,801.50. Further, although plaintiff
does not attempt to quantify his claim that “Defendant provided some of its responses after
Plaintiff filed his motion to compel” (dkt. 80 at 10, emphasis in the original), I will nonetheless
give plaintiff the benefit of the doubt and deduct about three more hours of attorney time from
defendant’s claim, rounding down to $20,000 even.
In sum, considering the totality of circumstances, I find that defendant reasonably
incurred $30,402 in expenses responding to and defeating plaintiff’s motion to compel, but that
the totality of circumstances would make it unjust to shift more than $20,000 of those expenses.

1

Judge Peterson ruled in defendant’s favor on the two pending discovery motions, dkts. 108 and
114, mainly on the ground that they were mooted by his summary judgment rulings (see dkt. 116 at 2526), so I am not taking them into account when deciding the amount of cost shifting.

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ORDER
Pursuant to Rule 37(a)(5)(B) and for the reasons stated above, it is ORDERED that
plaintiff and his attorney are jointly and severally liable to pay $20,000 to defendant and its law
firm not later than June 21, 2023.

Entered this 22nd day of May, 2023.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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