United States District Court, D. Kansas
PAMELA L. STEAD, Plaintiff,
UNIFIED SCHOOL DISTRICT, #259 Wichita Public Schools, SEDGWICK COUNTY, KANSAS and JOHN ALLISON, Defendants.
JAMES P. O'HARA, Magistrate Judge.
The defendants, Unified School District #259 and John Allison, have filed a fee application related to their recent motion to compel certain discovery from the plaintiff, Pamela L. Stead; defendants also seek fees incurred in connection with plaintiff's motion for reconsideration of the court's discovery ruling, even though this latter motion ultimately was withdrawn by plaintiff (ECF doc. 91). Plaintiff responds that defendants' fees for the motion to compel are unreasonable and should be reduced. With respect to defendants' response to her motion to reconsider, plaintiff strangely argues defendants supposedly failed to adhere to the "safe harbor" provision contained in Fed.R.Civ.P. 11, and that therefore their request for the additional fees should be denied. In their reply, defendants assert that they are only seeking fees pursuant to Fed.R.Civ.P. 37 and their requested fees are reasonable. For the first time, defendants also "request fees for preparation of the fee application and subsequent Reply, " with a total fee requested of $6, 547.50. For the reasons discussed below, defendants' motion is granted in part and denied in part.
This case was filed on September 11, 2013 in the District Court of Sedgwick County, Kansas. Later, the case was removed to the United States District Court for the District of Kansas. On December 18, 2013, the undersigned U.S. Magistrate Judge, James P. O'Hara, held a scheduling conference with the parties and entered a scheduling order. The discovery deadline was set for May 9, 2014. The parties were to serve their initial disclosures by December 23, 2013, and supplementation of those disclosures was due no later than 40 days before the close of discovery (i.e., March 31, 2014).
On May 5, 2014, defendants moved to amend the scheduling order to extend the deadlines for discovery, submission of a proposed pretrial order, the pretrial conference, and rebuttal experts. In their motion, defendants asserted that plaintiff had not produced supplemental Rule 26(a) initial disclosures until May 1, 2014, and that supplementation did not include the address, phone number, or subject of testimony for each witness as required by Fed.R.Civ.P. 26(a)(1). Plaintiff agreed that deadlines should be extended, but requested longer extensions than those sought by defendants. The court entered an amended scheduling order extending the discovery deadline until June 20, 2014 and continuing the pretrial conference until July 14, 2014.
On June 6, 2014, defendants filed a motion to compel plaintiff "to produce tax documents, correct her improper supplementation to her Rule 26 initial disclosures and to supplement discovery responses." Plaintiff responded that the tax returns were not discoverable and the supplementation of Rule 26(a)(1) disclosures and discovery responses had been completed.
In their reply brief, defendants asserted that plaintiff had not supplemented her Rule 26(a) initial disclosures until less than thirty minutes prior to her deadline for filing her response to defendants' motion to compel and only four days prior to the close of discovery. Defendants clarified that this supplementation "did provide the subject matter each witness is expected to testify on, but only as to 70 of the approximately 170 names not including the large groups of people... which appear in Plaintiff's First Supplemental Rule 26(a) Disclosures." Therefore, defendants asked for expenses and fees associated with drafting their motion to compel pursuant to Fed.R.Civ.P. 37(a)(5)(A).
On June 23, 2014, the court entered an order granting in part and denying part defendants' motion to compel. Plaintiff was ordered to produce tax returns for 2012-2013, supplement her disclosures to provide contact information and the subject matter every single witness is expected to testify to, and monetarily compensate defendants for costs and expenses, including attorneys' fees, incurred in connection with filing the motion to compel by June 27, 2014.
One week later, plaintiff filed a motion for reconsideration, asking the court to reconsider its order directing plaintiff to produce tax returns and awarding fees and expenses. Plaintiff's counsel argued that this case does not warrant the award of fees and explained that the cause for her delay in supplementing discovery responses was "essentially, that she was just too busy." On July 13, 2014, defendants filed their response to plaintiff's motion, re-arguing their points and asking for additional fees for responding to plaintiff's motion to reconsider because it was "unnecessary and unsupported by the law." On July 21, 2014, the court entered an order denying plaintiff's motion for reconsideration as moot because plaintiff had informally notified the court that she would like to withdraw said motion.
After several attempts to resolve the dispute informally,  defendants filed a motion for attorney fees on July 30, 2014. The next day, the court entered an order in response to the various e-mails submitted by the parties' attorneys after the July 24, 2014 telephone conference. The court explained that it "has endeavored to be patient with plaintiff's counsel, who recently had some legitimate personal issues that caused some delay. But still, this matter is dragging out in a way that's entirely inconsistent with Fed.R.Civ.P. 1." Therefore, the court ordered plaintiff to file her response to defendants' discovery-related fee application by August 1, 2014, with defendants' reply due by August 4, 2014. On August 1, 2014, plaintiff filed her response to the instant motion and on August 4, 2014, defendants filed their reply.
II. Motion to Compel
In their motion, defendants assert that per the court's order, they sent an accounting of attorney's fees to plaintiff on June 26, 2014. The next day, plaintiff's counsel advised defense counsel that she would tender a check for the full amount of attorney's fees requested ($3, 348.00) but asked them to hold the check while she considered filing a motion to reconsider. Defense counsel has and continues to hold the check without cashing it. Defendants assert that they spent 24.8 hours preparing their motion to compel, the memorandum in support of their motion to compel, and their reply to plaintiff's response to their motion to compel. In support, defendants provided detailed billing entries describing the time utilized to prepare the motion.
In response, plaintiff argues that she does not take issue with defense counsel's hourly rate of $135; however, she states that the "number of hours [24.8] spent on a very straight forward motion to compel... is excessive." Without any meaningful support, plaintiff concludes that a reasonable amount for preparation of the motion to compel and the reply would be half of the amount claimed, or $1, 650.00. Citing two Kansas state cases, plaintiff asserts that the absence of an express finding of bad faith requires that the award be set aside and insists that her good faith is relevant to the award of sanctions imposed.
Under Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure, if a motion to compel is granted, or if the disclosure or requested discovery is provided after the motion was filed, the court must order the party whose conduct necessitated the motion to pay the "movant's reasonable expenses incurred in making the motion, including attorney's fees, " unless (1) the movant failed to confer with the non-moving party before filing the motion, (2) the non-moving party's discovery position was "substantially justified, " or (3) "other circumstances made an award of expenses unjust." Here, none of the three above-referenced exceptions to the general rule allowing fees on a discovery-related motion are applicable. With respect to defendants' motion to compel, the only issue before the court is the reasonableness of the requested ...