Opinion
Case No. 1:09-cv-703.
October 28, 2010
ORDER GRANTING AWARD OF ATTORNEY FEES
This civil case is currently before the Court on Defendant's motion for attorney fees and affidavit in support. (Docs. 7, 11).
On October 6, 2010, this Court issued an Order (Doc. 10) granting Defendant's motion to compel. Federal Rule of Civil Procedure 37(a)(5) requires the awarding of reasonable expenses, including attorney's fees, in the event a motion to compel is granted or the requested discovery is provided after the filing of the motion, as follows:
"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 or deponent 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."Id. (Emphasis added).
Plaintiff's actions have caused Defendant to expend unnecessary time and expense. Therefore, absent a showing of good cause by Plaintiff, an award of Defendant's reasonable expenses, including attorney's fees, is justified and required. See, e.g., Catalusci v. Horizon Science Acad., No. 1:08-cv-2562, 2009 U.S. Dist. LEXIS 32980, at *6-7 (N.D. Ohio Mar. 31, 2009).
There are only three grounds that would obviate Plaintiff from having to pay Defendant's expenses and attorney fees: (1) that Defendant did not make a good faith effort to obtain the discovery prior to filing the motion; (2) the failure to provide the discovery in a timely fashion was "substantially justified"; or (3) "other circumstances" which would "make an award of expenses unjust." Fed.R.Civ.P. 37(a)(5). None of these exceptions apply to the instant matter, and "[b]ecause the court . . . grant[ed] [Defendant's] motion to compel discovery, the court `must' impose Rule 37 sanctions." State Farm Mut. Auto. Ins. Co. v. Hawkins, No. 08-cv-10367-DT, 2008 U.S. Dist. LEXIS 107386, at *15 (E.D. Mich. Dec. 23, 2008).
See Doc. 10 (Order Granting Motion to Compel) at 3.
Defendant's counsel, Harry Finke, represents in his affidavit that Defendant "DEI has incurred reasonable and necessary expenses in the amount of $300.00 in pursuing its Motion to Compel" reflecting the hour of time spent by him. (Doc. 11, Ex. 1 at ¶ 7). Upon careful review, the undersigned finds that this time spent and the hourly fee incurred are reasonable. Moreover, Plaintiff has been afforded the opportunity to be heard as to imposition of sanctions (both by the unexercised opportunities to respond to Defendant's motion to compel and affidavit supporting imposition of fees (Docs. 7, 11)), and Plaintiff has failed to meet her burden of persuasion.
Plaintiff did eventually respond to the motion to compel after the Court ordered Plaintiff to show cause why Defendant's motion should not be granted as unopposed. (Docs. 8, 9).
Accordingly, for the reasons stated herein, Plaintiff shall pay Defendant as sanction the amount of $300.00 in attorney fees pursuant to Fed.R.Civ.P. 37(a)(5).
IT IS SO ORDERED.
DATE: 10/28/10