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Marchewitz v. Campgroup, LLC

United States District Court, W.D. Michigan, Southern Division

December 16, 2016

Jodi Marchewitz, as Next Friend of A.M., a minor, Plaintiff,
Campgroup, LLC, d/b/a The Glen at Lake of the Woods Camp for Girls, d/b/a The Grove at Lake of the Woods Camp for Boys, Defendants.

          Hon. Robert J. Jonker Judge


          PHILLIP J. GREEN United States Magistrate Judge

         This 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.

         Procedural History

         Plaintiff's 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 No. 16).

         In 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).

         On June 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).

         On 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).[1] 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).

         Plaintiff's 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.[2]

         On 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).


         The 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).

         Plaintiff 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 ...

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