UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MARGARET MARNOCHA, )

Plaintiff, )

)

v. ) CAUSE NO.: 3:16-CV-592-PPS-JEM

)

CITY OF ELKHART, INDIANA, )

and TIM NEESE, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Defendants’ Bill of Costs [DE 84], filed January 21, 2019.

On January 7, 2019, the Court issued an Order denying Plaintiff’s Motion to Compel and ordering

Defendants to file an itemization of its reasonable expenses incurred in making the motion.

Defendants seek attorney fees in the amount $3,720.00. Plaintiff filed a response on February 4,

2019, and on February 8, 2019 Defendants filed a reply.

Rule 37 provides that, if a motion to compel is denied, the Court “must, after giving an

opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party

or deponent who opposed the motion its reasonable expenses incurred in opposing the motion,

including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(B). However, “the court must not order this

payment if the motion was substantially justified or other circumstances make an award of expenses

unjust.” Id. 

Plaintiff argues that her motion was substantially justified, including new arguments about

inadequacies in discovery that were not included in the original motion. One of the difficulties the

Court noted in Plaintiff’s motion was that she did not thoroughly identify and explain the alleged
deficiencies in the discovery responses.1 Although she was granted leave to file an additional motion 

to compel “that identifies exactly what information she is still seeking and her argument regarding

why she is entitled to it, rather than assertions of generic failure by Defendants to respond to

Plaintiff’s requests, so that the Court can adequately address the dispute,” she did not do so, and this

Motion is not the place to re-litigate issues that should have been brought before the Court before.

The Court has given Plaintiff ample opportunity to be heard, and there is no indication that

Defendants acted in bad faith or that there are any other circumstances that make the award of

expenses unjust. The Court finds that the motion, filed before the issues in a previous motion to

compel had been resolved and without a clear explanation of what information Plaintiff was seeking

to have compelled, was not substantially justified.

Plaintiff also disputes the amount of fees requested. As the Supreme Court has explained,

“the most useful starting point for court determination of the amount of a reasonable fee payable by

the loser is the number of hours reasonably expended on the litigation multiplied by a reasonable

hourly rate,” known as the “lodestar.” Gisbrecht v. Barnhart, 535 U.S. 789, 801-02 (2002) (quoting

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)) (quotation and other marks omitted).

Plaintiff does not dispute the hourly rates charged by Defendants’ attorneys, but objects to

some of the time records. She argues that they should not receive reimbursement for conversations

with the client about the motion to compel and that the time spent reviewing discovery responses

while drafting the response brief should not be compensable, arguing that the work would have been

1The Court concluded: “To the extent that this is what Plaintiff is requesting, her motion does not specifically identify

the portions of Neese’s deposition testimony that she alleges contradict his responses to the requests for admissions or

develop her argument about the discrepancy. The Court declines to scour a voluminous deposition transcript to attempt

to ascertain which of Neese’s responses may have contradicted which requests for admission,” Opn. at 5, and “the Court

is unable to determine what specific information is outstanding, why Plaintiff believes she is entitled to that information,

or why Defendants have not provided it, let alone whether sanctions are warranted.” Id. at 6 [DE 77].

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done even absent the motion. In addition, she argues that the overall time spent drafting the response

is excessive, laying out particular arguments in the response briefs she claims should not have been

included and therefore should not be reimbursed, and argues that the drafting work of one attorney

should be completely discounted because he was not present at the depositions that formed the

factual basis for that part of the argument. Defendants argue that the time included for conversations

with the client and reviewing discovery were directly related to the motion to compel, and that

Plaintiff’s disagreement with arguments made by Defendants does not mean that the work put into

those portions of the brief should not be reimbursed.

Review of Defendants’ itemization shows a number of entries with specific descriptions of

the drafting work done on the response to the motion to compel. The Court will not discount the time

spent conferringwith the client about the motion or reviewingwhat had happened in discovery, since

it all appears to be directly related to the motion to compel and not work that would have been done

on the case absent the motion. Likewise, the Court will not comb through the time entries in attempt

to determine how much time was spent on which specific arguments or judge the arguments based

on their relative success; nor will it require the same attorney to perform all aspects of a case. The

attorney who drafted that portion of the motion had adequate information about the depositions to

describe the dispute, and although the Court did not adopt Defendants’ reasoning in all respects in

the Opinion and Order, they were successful overall. The Court does not conclude that the 23.10

total attorney hours spend responding to an involved Motion are unreasonable, particularly since the

response required combing through the arguments to determine which had already been resolved.

The Court finds that the hourly fee and number of attorney hours reflected in the itemization are

reasonable. 

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Accordingly, the Court hereby approves and GRANTS the request for attorney fees in

Defendants’ Bill of Costs [DE 84] and ORDERS Plaintiff or her attorney2to reimburse Defendant’s

attorney fees in the sum of $3,720.00 within a reasonable time.

SO ORDERED this 27th day of March, 2019.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

2

See Fed. R. Civ. P. 37(a)(5)(A) (providing that the award should be paid by “the party or deponent whose conduct

necessitated the motion, the party or attorney advising that conduct, or both”); Francis v. AIT Labs., No.

1:07-CV-0626-RLY-JMS, 2008 WL 2561222, at *5 (S.D. Ind. June 26, 2008) (ordering the attorney to pay expenses

where “Plaintiff's counsel, rather thanPlaintiff himself, was responsible for the failure to supplement and should therefore

bear the cost of the sanction to be imposed”).

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