UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

L. H. H., a minor, by and through his )

mother and next friend, ESMERALDA )

HOLMAN HERNANDEZ, )

Plaintiff, )

)

v. ) Cause No.: 2:13-CV-452-PRC

)

GERALD HORTON, ANGELO BRADSHAW, )

CITY OF GARY, INDIANA, and GARY )

COMMUNITY SCHOOL CORPORATION, )

Defendants. )

AMENDED OPINION AND ORDER1

This matter is before the Court on Plaintiff’s Second Motion to Compel and for Rule 37

Sanctions against Defendants Horton and Gary Community School Corporation [DE 47], filed on

March 24, 2015. Defendants Gerald Horton and Gary Community School Corporation filed a

response on April 21, 2015, and Plaintiff filed a reply on May 1, 2015.

On December 2, 2014, this Court ordered Defendants to provide Plaintiff with complete

responses to a number of his written discovery requests. Despite this Order, as well as numerous

subsequent informal attempts by Plaintiff’s attorney to get these documents, Defendants Horton and

Gary Community School Corporation (“the School”) did not provided him with complete responses

to his interrogatories. The School’s responses to his requests for production, moreover, were

implausible. For example, in response to the request for “[a]ll Documents which relate to, support

and/or rebut any of the allegations or claims in Plaintiff’s complaint in this action,” the school stated

“DEFENDANTS HAVE NONE AT THIS TIME.” DE 59 at 10.

Since this motion was filed, it appears that Defendants Horton and Gary Community School

Corporation have provided Plaintiff with satisfactory assurances that he will receive complete

1

 This Order supercedes the Court’s April 21, 2015 Order, which was premature.
discovery responses. As Plaintiff puts it in his reply: he “believes that the several discovery matters

that are the subject of Plaintiff’s motion to compel have now been resolved, and a mechanism

appears to be in place to provide any follow up discovery.” DE 57 at 2. 

The Court therefore DENIES as moot Plaintiff’s Second Motion to Compel and for Rule 37

Sanctions against Defendants Horton and Gary Community School Corporation [DE 47] insofar as

it seeks discovery responses. 

Federal Rule of Civil Procedure 37, however, provides that an award of attorney fees and

expenses is usually required when the motion is not granted, but “the disclosure or requested

discovery is provided after the motion was filed.” Fed. R. Civ. P. 37(a)(5)(A). Accordingly, the Court

turns to consider whether an award of fees and costs is warranted in this instance. There are three

exceptions to the general rule that the prevailing party gets attorney fees and costs: (i) if the motion

was filed before the movant attempted in good faith to get the discovery without court action; (ii) if

“the opposing party’s non-disclosure, response, or objection was substantially justified”; or (iii) if

“other circumstances make an award of expenses unjust.” Id.

Defendants Horton and the School contend that an award of fees is not warranted. They

support this by saying that they have taken steps to fix the situation, that an answer to one of

Plaintiff’s interrogatories was omitted due to inadvertence and mistake, and that the person

responsible for implausible responses to the Plaintiff’s requests for production of documents has

since retired. They also contend that Plaintiff failed to work diligently with Defendants to reach a

solution. 

These arguments are unpersuasive. Discovery has dragged on for a long time, and, contrary

to their protests that Plaintiff rushed to court, the record shows that Plaintiff has made many attempts

to resolve this dispute without filing a motion. Yet it was only after Plaintiff filed this Motion to

2
Compel that Defendants Horton and Gary Community School Corporation took real steps toward

providing Plaintiff with the overdue discovery, and the other excuses they make are of little value

in light of their repeated failures to work with Plaintiff before he filed this motion. Moreover, at least

some of the materials Plaintiff sought were covered by this Court’s December 2, 2014 Order on

Plaintiff’s First Motion to Compel. That Order was issued more than three months before Plaintiff

filed this motion. 

The Court finds that none of Rule 37(a)(5)’s exceptions apply and thus GRANTS Plaintiff’s

Second Motion to Compel and for Rule 37 Sanctions against Defendants Horton and Gary

Community School Corporation [DE 47] insofar as it seeks an award of attorney fees and costs.2

 The

Court AWARDS Plaintiff reasonable costs and attorney fees incurred in bringing this motion. The

Court DIRECTS Plaintiff’s attorney to file an affidavit of fees and costs by May 15, 2015. A

response may be filed no later than May 25, 2015. If a response is filed, Plaintiff may file a reply by

May 29, 2015. These briefs shall deal solely with the amount of fees. Argument about any other

issue or any attempt to make a motion within these briefs will be disregarded. 

Finally, the Court notes that Plaintiff has filed a redacted version of an attachment to his

Motion to Compel. The original, which contained the full name of Plaintiff, who is a minor, shall

remain SEALED.

SO ORDERED this 8th day of May, 2015.

s/ Paul R. Cherry 

MAGISTRATE JUDGE, PAUL R. CHERRY 

NORTHERN DISTRICT OF INDIANA

2

 The only sanction sought in the motion is that of attorney fees. 

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