United States District Court, W.D. Michigan, Southern Division
Robert J. Jonker Judge
MEMORANDUM OPINION AND ORDER
PHILLIP J. GREEN United States Magistrate Judge
matter is before the Court on defendants' petition for
attorneys' fees and expenses (ECF No. 89), relating to
their successful motion to compel discovery. (ECF No. 76).
Plaintiff opposes the petition. (ECF No. 91). Having
considered the parties' submissions, and for the reasons
articulated below, plaintiff's petition will be granted
in part and denied in part.
compliance with her discovery obligations and the federal
rules has been checkered, to say the least. On July 6, 2015,
plaintiff filed this matter in Van Buren County on behalf of
her daughter, seeking damages for injuries her daughter
allegedly sustained in 2013 while riding an inner tube at a
summer camp. (Summons and Complaint, ECF No. 1-2). Defendants
removed the case to this Court on September 14, 2015, based
on diversity of citizenship. (ECF No. 1). Defendants answered
the complaint on September 18, 2015. (ECF No. 6). A
scheduling conference was held on November 23, 2015 (Amended
Minutes, ECF No. 13). A Case Management Order issued the next
day, setting a January 24, 2017, trial date and a July 31,
2016, discovery deadline. (Amended Case Management Order, ECF
February 2016, defendants filed a motion to compel plaintiff
to respond to interrogatories and document requests. (ECF No.
25, 34 (corrected motion)). That motion was filed after
plaintiff failed to provide any response to defendants'
discovery requests. (See ECF No. 34, PageID.168).
Repeated efforts by defense counsel to obtain compliance were
unsuccessful. (See id., PageID.168-69). Plaintiff
also failed to respond to the motion to compel. After a
hearing on the motion, the Court granted the motion to compel
(ECF No. 36), and it later awarded $1, 000.00 in costs to
defendants (Amend. Stip. Order, ECF No. 41).
16, 2016, defendants moved to compel plaintiff's minor,
A.M., to appear for a neurological evaluation. (ECF No. 55).
Six weeks after agreeing to appear for the examination on a
pre-arranged date (July 11, 2016), plaintiff notified
defendants of her intent to cancel the examination due to her
plans to attend a summer camp. (See id.,
PageID.347-48). Plaintiff's effort to cancel the
examination jeopardized the parties' ability to meet the
Court's July 31, 2016, deadline for participating in
Alternative Dispute Resolution (ADR). (See id.,
PageID.348; see also Amended Case Management Order,
ECF No. 52). After the Court noticed a hearing on the motion
(ECF No. 58), plaintiff stipulated to the relief sought
(see Stip. Order, ECF No. 60).
October 11, 2016, defendants filed a third motion to compel,
this time seeking responses to their fourth request for
production of documents; defendants also sought, in the
alternative, a dismissal of the case due to plaintiff's
repeated violations of her discovery obligations. (ECF No.
74, 76). Plaintiff failed to file a timely
response. Her untimely response, filed on the eve of the
hearing, was stricken. (See Order, ECF No. 82). On
November 10, 2016, after conducting a hearing on the motion,
the Court granted the motion to compel. (ECF No. 83). The
Court also ordered plaintiff's counsel to show cause why
the case should not be dismissed pursuant to Federal Rule of
Civil Procedure 37(b)(2)(A)(v). (Id., PageID.687).
counsel filed his response to the show-cause order on
November 17, 2016. (ECF No. 87). The undersigned judicial
officer finds counsel's explanations wanting.
Nevertheless, and in light of Chief Judge Robert J.
Jonker's Order granting summary judgment in favor of
defendants (ECF No. 92; see also Judgment, ECF No.
93), the show-cause order will be discharged.
November 22, 2016, defendants filed the instant petition for
attorneys' fees and expenses. (ECF No. 89). They seek
reimbursement for $3, 902.50 in attorney's fees and
$154.04 in costs. (See id., PageID.813-14).
Plaintiff counters that defendants failed to exhaust
“good faith” efforts to obtain the requested
documents without Court intervention and, in the alternative,
that the amount of fees requested is excessive. (See
ECF No. 91, PageID.830-31).
basis for awarding reasonable attorney's fees and
expenses is found in Rule 37(a)(5)(A), which provides, in
pertinent part: “If the motion [to compel] is granted -
or if the disclosure or requested discovery is provided after
the motion was filed - 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.” (emphasis supplied). There are
only three exceptions to this manDated: (1) if the movant
failed to make a good faith effort to obtain the discovery
before filing the motion; (2) the opposing party's
discovery responses were substantially justified; and (3) if
“other circumstances make an award of expenses
unjust.” Fed.R.Civ.P. 37(a)(5)(A)(i-iii).
cites only to the first exception in her response to the fee
petition. (See ECF No. 91, PageID.830). She asserts
that defendants failed to exhaust good faith efforts to
obtain the discovery without Court intervention.
(Id., PageID.830-31). Plaintiff's counsel cites
to an email he sent defense counsel at 2:03 p.m. on October
11, 2016, in which plaintiff's counsel stated:
I have asked [plaintiff] to look for any documents that would
be responsive to your fourth requests to produce. She has
told me that she had no text messages, because those are
automatically deleted from her phone. She is going through
emails in an attempt to locate what you've asked for. I