Opinion
Case No. 6:05-cv-1049-Orl-31KRS.
March 7, 2006
ORDER
This cause came on for consideration without oral argument on the following motion filed herein:
MOTION: DEFENDANT BJ'S WHOLESALE CLUB, INC.'S MOTION TO COMPEL DISCOVERY (Doc. No. 34)
FILED: February 24, 2006 THEREON it is ORDERED that the motion is DENIED in part.
Because Plaintiff Lisa Head represents that she served the requested responses to discovery after the motion was filed, the motion is compel is moot.
However, the request for an award of attorneys' fees and costs is not moot. Federal Rule of Civil Procedure 37(a)(4)(A) provides, in pertinent part, that if the requested discovery is provided after a motion to compel is filed, the court shall award to the movant the reasonable expenses incurred in making the motion, including attorney's fees, unless the failure to produce the discovery timely was substantially justified or other circumstances make an award of expenses unjust. In her response to the motion to compel, Head did not address the question of whether the Court should grant the request for an award of expenses, including attorney's fees.
Accordingly, it is ORDERED that counsel for Head shall confer with counsel for BJ's Wholesale Club, Inc., in person or by telephone, on or before March 17, 2006, in a good faith effort to resolve the issue of whether expenses, including attorney's fees, should be awarded in this case and, if so, in what amount. If counsel are unable to resolve this issue, BJ's Wholesale Club may file, on or before March 31, 2006, a motion for assessment of expenses, including attorney's fees, supported by evidence of the reasonable hourly rate of the attorneys who prepared the motion, the reasonable number of hours worked on the motion, and the others expenses incurred in filing the motion.
DONE and ORDERED.