UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

SHARON A. SCHMITZ and )

FRANCES A. FIELDS, )

Plaintiffs, )

)

v. ) Cause No.: 2:13-CV-214-RL-PRC

)

FOUR D TRUCKING, INC., et al., )

Defendants. )

OPINION AND ORDER

This matter is before the Court on an Affidavit of Attorney Fees [DE 75], filed by Plaintiffs

on June 23, 2015. Defendant Halquist Stone Company, Inc. filed a response on June 30, 2015, and

Plaintiffs filed a reply on July 7, 2015. 

This matter originates in a Motion to Compel filed by Plaintiffs on March 3, 2015. The

motion explained that Plaintiffs sent a notice of deposition to Defendant Halquist on January 20,

2015, and then attempted to contact defense counsel on at least three occasions, but without any

response. Defendant Halquist did not respond to the motion, and, on April 17, 2015, this Court

granted it, ordering Defendant Halquist to designate an appropriate person to testify on its behalf at

a deposition.

After subsequent briefing, the Court awarded Plaintiffs reasonable attorney fees incurred in

bringing the Motion to Compel. The Court directed Plaintiffs to file an affidavit of fees, which they

have now done, representing that their attorney worked a total of three hours on the motion and that

his billing rate is $250 per hour. This adds up to $750 in attorney fees.

Halquist objects to the time spent by Plaintiffs’ attorney reviewing the Court’s Opinion and

Order regarding the petition for fees and preparing the affidavit. It points out that the Court awarded

Plaintiffs fees incurred in bringing the Motion to Compel and in responding to Defendant’s
objections to an award of attorney fees. It argues that this does not extend to the recovery of costs

and fees incurred in bringing the affidavit of fees.

As explained in detail in the undersigned’s Opinion and Order in L.H.H. ex rel. Hernandez

v. Horton, one plausible reading of Federal Rule of Civil Procedure 37(a)(5)’s phrase “expenses

incurred in making the motion [to compel]” would exclude work done on subsequent rounds of

briefing. No. 2:13-CV-452-PRC, 2015 WL 1057466, at *4 (N.D. Ind. Mar. 10, 2015). This reading

has been rejected by the Seventh Circuit Court of Appeals, however, which has held that Rule

37(a)(5)’s fee-shifting provision applies equally to work done before and work done after a court’s

ruling on a motion to compel since doing otherwise would undermine the purpose of fee shifting,

namely, “that the victor should be . . . as well off as if the opponent had respected his legal rights

in the first place.” Rickels v. City of S. Bend, Ind., 33 F.3d 785, 787 (7th Cir. 1994); see also Tamari

v. Bache & Co. (Lebanon) S.A.L.,729 F.2d 469, 474 (7th Cir. 1984) (noting, in dicta, that “Rule

37(a) sanctions ‘should encompass all expenses, whenever incurred, that would not have been

sustained had the opponent conducted itself properly.’” (quoting Aerwey Labs., Inc. v. Arco

Polymers, Inc., 90 F.R.D. 563, 565–66 (N.D. Ill. 1981)).

As the undersigned explained in L.H.H., this is not inconsistent with the text.

There is some inherent ambiguity in the phrase “making the motion”

as used in Rule 37(a) since neither the phrase itself, nor the Rule

generally, says much about what tasks are part of making a motion

and which, though ancillary and related, are not. Here, context and

usage suggest that the language refers to more than just the work

done in putting together and filing the actual motion. Reading it

otherwise would exclude, not only fee petitions, but also a moving

party’s reply brief, which, after all, would be written after the motion

was made. This result borders on absurdity. Thus, the question is not

whether actions beyond the drafting and filing of the motion qualify

as part of “making the motion,” but rather which actions do.

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L.H.H., 2015 WL 1057466, at *5 (N.D. Ind. Mar. 10, 2015) (internal citations omitted). 

The text of Rule 37(a)(5) contrasts with other provisions of Rule 37 that award the prevailing

party all fees “caused by” the losing party’s conduct. See Fed. R. Civ. P. 37(b), (c), (d), and (f). It’s

a bit of a linguistic stretch to say that “caused by” means the exact same thing as “incurred in

making the motion,” but this conclusion appears mandated by the reasoning of Rickels and Tamari.

See also Catapult Commc’ns Corp. v. Foster, No. 06 C 6112, 2009 WL 2707040, at *2 (N.D. Ill.

Aug. 25, 2009) (“[A]ttorneys’ fees incurred in bringing fee petitions are recoverable under Rule 37.”

(citing In re Stauffer Seeds, Inc., 817 F.2d 47, 50 (8th Cir. 1987)); but see Michigan Millers Mut.

Ins. Co. v. Westport Ins. Corp., No. 1:14-CV-151-PLM, 2014 WL 5810309, at *5 n. 5 (W.D. Mich.

Nov. 7, 2014) (ruling that attorney fees were not proper for work done on an affidavit of fees filed

after the underlying Rule 37 motion had been ruled on). Plaintiffs are therefore entitled to attorney

fees for the work their lawyer did in preparing the Affidavit of Fees currently before the Court.

Halquist also thinks that Plaintiffs’ attorney spent forty-eight minutes too many in preparing

the affidavit and in researching the “substantially justified” exception to the mandatory award of fees

under Rule 37(a). The half hour Plaintiffs’ attorney spent preparing the affidavit and one hour she

spent researching the Rule 37(a) are not excessive. The Court thus AWARDS Plaintiffs $750 in

attorney fees stemming from the Motion to Compel. 

SO ORDERED 13th day of July, 2015. 

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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