United States District Court, N.D. Iowa, Eastern Division
DENNIS P. MANNING, Plaintiff,
SOO LINE RAILROAD COMPANY, d/b/a CANADIAN PACIFIC RAILROAD, Defendant.
K.E. MAHONEY UNITED STATES MAGISTRATE JUDGE.
February 10, 2017, the court issued an order granting
Defendant's Motion to Compel Plaintiff's Responses to
Discovery Requests and to Extend Defendant's Deadline for
Disclosing Experts (Doc. 17). Doc. 19. In accordance with
that order, Defendant's counsel filed an affidavit of
attorney's fees (Doc. 20), and Plaintiff submitted a
response regarding Defendant's request for attorney's
fees (Doc. 21).
court is required to order that Plaintiff pay the reasonable
expenses that Defendant incurred, including attorney's
fees, in compelling discovery unless the court finds that
Plaintiff's objections were substantially justified or
other circumstances make the award of expenses unjust.
Fed.R.Civ.P. 37(a)(5)(A). An objection is substantially
justified “if there is a genuine dispute, . . . or if
reasonable people could differ as to [the appropriateness of
the contested action].” Brown v. State of
Iowa, 152 F.R.D. 168, 174 (S.D. Iowa 1993) (alteration
in original) (quoting Pierce v. Underwood, 487 U.S.
552, 565 (1988)) (internal quotation marks omitted).
did not file a resistance to Defendant's motion to
compel. Moreover, as noted in the court's order, many of
Plaintiff's objections in response to the interrogatories
and requests for production at issue were deficient.
Plaintiff did not specify the ground for his objection to
producing an authorization to allow Defendant to access
Plaintiff's school and driving records and, as noted in
the order, therefore failed to state a proper or adequate
objection. Doc. 19. With regard to Plaintiff's employment
history, Plaintiff maintained that he had provided all
relevant information and authorizations even after Defendant
outlined what was missing (a position Plaintiff still
maintains in his response to this court regarding
attorney's fees, despite the court's finding in its
order that Plaintiff's response was indeed incomplete).
Docs. 19, 21. Thus, the court finds that Plaintiff was not
substantially justified in failing to comply with the
requests related to his school records, driving records, and
response to Defendant's request for tax records,
Plaintiff objected that such a request was overly broad and
burdensome. Defendant argued that Plaintiff's tax records
were relevant to Plaintiff's lost earning capacity and
mitigation of damages defense. A reasonable person could find
Defendant's request for tax records overly broad; the
information Defendant sought to gain from Plaintiff's tax
records (post-termination earnings and employment) was
duplicative of the information contained in Plaintiff's
employment history. Thus, the court finds that Plaintiff was
substantially justified in objecting to the production of his
response to this court regarding attorney's fees,
Plaintiff notes that his counsel has difficulties
communicating with him because he has neither a cell phone,
answering machine, nor an email account. Such difficulties do
not excuse Plaintiff's deficient objections and failure
to provide the requested information for more than four
months. Plaintiff also notes that he complied with the
court's order prior to his deposition and that little
time was spent on the information at issue during his
deposition. Plaintiff's prompt compliance with this
court's order does not change the fact that Defendant had
to file a motion to compel to gain certain discovery
responses from Plaintiff. Thus, the court finds that an award
of attorney's fees would not be unjust.
court's request, Defendant's counsel submitted a list
of work done for the motion to compel and cost thereof. Doc.
20-1. The list includes 24.9 hours of work from four
different timekeepers, with rates ranging from $85 to $220 an
hour, for a total of $4, 175.50. Id. Although the
court does not doubt that Defendant's counsel expended
the hours claimed, the court finds that the amount of fees
requested is excessive and that not all of the claimed work
court declines to award fees for work that Defendant's
counsel had to perform under its meet-and-confer obligations,
such as reviewing discovery and communicating with opposing
counsel. The court agrees with the reasoning of another
court: “Although the Court fully appreciates the level
of Defendant['s] frustration with the meet and confer
attempts, these efforts would have been required regardless
of whether Defendant had to file a motion to compel.”
I.R. v. City of Fresno, No. 1:12-CV-558 AWI GSA,
2013 WL 2404775, at *7 (E.D. Cal. May 31, 2013); see also
Skurka Aerospace, Inc. v. Eaton Aerospace, L.L.C., No.
1:08 CV 1565, 2013 WL 12131141, at *4 (N.D. Ohio Aug. 23,
2013) (“[O]n these facts[, ] extrajudicial efforts to
resolve the discovery dispute, including correspondence with
opposing counsel, should be excluded from compensable
time.” (citing Foxley Cattle Co. v. Grain Dealers
Mut. Ins. Co., 142 F.R.D. 677, 681 (S.D. Iowa 1992))).
court also declines to award fees for work related to filing
a motion to dismiss for want of prosecution and for work
related to the portion of the motion to compel seeking to
extend the expert deadline. See Foxley Cattle, 142
F.R.D. at 681 (finding not compensable “time claimed
for tasks unrelated to the actual preparation of the motion
to compel . . . and that time expended on behalf of the
Defendants' . . . to obtain dismissal”).
the court will not compensate Defendant's counsel for the
revisions made to the motion to compel after receiving
additional discovery from Plaintiff on December 29, 2016. As
noted in the affidavit by Defendant's counsel, Defendant
planned to file the motion to compel on December 29, 2016.
Doc. 20. Before filing the motion, however, Defendant
received a letter from Plaintiff dated December 23, 2016,
that necessitated substantial revisions to the motion to
compel and further communications with Plaintiff. Docs. 20,
20-1. The court does not wish to penalize Plaintiff for
attempting to resolve the dispute with Defendant informally
and providing more information to Defendant, as such conduct
is encouraged under the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 37(a)(1).
the court finds that the following time is compensable: time
spent drafting and revising the initial motion and
declaration in support thereof (December 27 and 28 entries),
time spent preparing the exhibits for the final motion (JLJ
January 16 entry), and time spent researching the local rules
(part of EOB January 16, 2017 entry). The court finds, however,
that even if only these entries are considered, the amount of
fees is excessive: $1, 471.50 in fees and 9.7 hours of work
for a run-of-the-mill motion to compel and brief in support
thereof. The brief in support of the motion consists of three
pages setting forth the facts leading up to the filing of the
motion and two pages of argument (the rest of the brief
supports the request for an extension of the expert
disclosure deadline). Doc. 17-2. The brief cites no case law
and, instead, makes the same common-sense arguments that
Defendant had made to Plaintiff in its letters requesting
compliance. The court finds that the Defendant spent more
time than was reasonably necessary to prepare the motion to
compel and that the motion could have been prepared in half
the time. See Foxley Cattle, 142 F.R.D. at 681-82
(awarding fees for only three hours of time when counsel
spent 8.8 hours on a motion to compel that merely set forth
the background facts leading to the motion and could have
been prepared in two to three hours by a legal assistant).
Because the court is awarding fees for three of the four
categories of argument set forth in the brief in support of
the motion (driving records, tax records, and employment
history; not tax records), the court finds that $551.81 is
sufficient to fairly compensate Defendant for filing the
motion to compel.
ORDERED that Plaintiff's counsel shall pay $551.81 as
reasonable expenses incurred by Defendant in compelling
discovery responses for Plaintiff's driving records, tax
records, and employment history, by delivering payment to
Defendant's counsel at Fletcher & Sippel, LLC, within
thirty (30) days of the date of this Order.