United States District Court, M.D. Louisiana
CATHERINE B. ST. GERMAIN, ET AL.
DIXIE MOTORS, LLC, ET AL.
RULING AND ORDER ON UNOPPOSED MOTION TO
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.
the court is a Motion to Compel (the “Motion to
Compel”) filed by defendant, Forest River, Inc.
(“Forest River”). By the Motion to Compel, Forest
River seeks an order compelling plaintiffs, Dana J. St.
Germain and Catherine B. St. Germain
(“Plaintiffs”) to respond to interrogatories and
requests for production of documents propounded to Plaintiffs
on January 5, 2017. Forest River also seeks reasonable
expenses, including attorney's fees, pursuant to
Fed.R.Civ.P. 37. Any opposition to the Motion to Compel was
required to be filed within 21 days after service of the
Motion. LR 7(f). More than 21 days have passed since the
filing of the Motion to Compel and Plaintiffs have not filed
an opposition as of the date of this Ruling and Order. The
Motion to Compel is therefore unopposed.
reasons that follow, the Motion to Compel is
GRANTED and Forest River's request for
reasonable expenses and attorney's fees is GRANTED.
suit arises out of a motor vehicle accident that occurred on
or about September 16, 2015. Plaintiffs allege that while
driving their pickup truck with attached trailer, the trailer
became unstable and Mr. St. Germain lost control of his
vehicle, crossed over the center line, and struck another
vehicle. Plaintiffs allege that the accident and
their resulting injuries were caused by the fault of Forest
River and/or Dixie Motors, LLC d/b/a Dixie RV Superstores
(“Dixie Motors”), including but not limited to
breach of the Magnuson-Moss Warranty Act, 15 U.S.C. §
2301, et seq. On October 18, 2016, Dixie Motors removed
Plaintiffs' suit to this court on the basis of federal
question jurisdiction pursuant to 28 U.S.C. §
River asserts that it propounded interrogatories and requests
for production to Plaintiffs on January 5,
2017. In a letter sent to Plaintiffs'
counsel on February 13, 2017, Forest River noted that
Plaintiffs' discovery responses were overdue and
requested information regarding the status of the
responses. Forest River explains that on February 23,
2017, Plaintiffs' counsel's assistant requested a
Word version of the discovery requests and noted she was
working on responses. A Word version of the requests was
emailed by Forest River's counsel on March 1,
2017. Forest River states that this February
23, 2017 and March 1, 2017 email correspondence
“remains the only mutual communication between the
parties in regard to the outstanding
discovery.” Thereafter, counsel for Forest River
followed up regarding the outstanding discovery requests via
email correspondence on March 14, 2017,  March 24,
2017,  and March 28, 2017. Forest River
explains that it was “prepared to file this Motion to
Compel” on April 5, 2017, but its counsel was able to
contact Plaintiffs' counsel's assistant “who
stated that responses had been drafted and that
[Plaintiffs' counsel] had yet to review the responses.
Consequently, counsel for Forest River provided two
additional days to Plaintiffs' counsel to respond.
However, no responses to Forest River's requests were
River filed the instant Motion to Compel on April 7,
2017. Forest River asserts that as of the date
it filed this Motion, it has not received responses to its
discovery requests from Plaintiffs and that “counsel
for Forest River twice attempted to schedule discovery
conferences with Plaintiffs' counsel, to no
avail.” Forest River therefore “seeks an
order from the Court compelling Plaintiffs to respond fully
and completely to Forest River's interrogatories and
requests for production. In addition, pursuant to Rule
37(d)(1)(A)(ii) and (d)(3), Forest River seeks an order
awarding it the costs and attorney's fees accrued as a
result of having to draft and file this
Law and Analysis
the Federal Rules of Civil Procedure, parties may obtain
discovery regarding any non-privileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.
Fed.R.Civ.P. 26(b)(1). Federal Rules of Civil Procedure 33
and 34 provide that a party upon whom interrogatories and
requests for production of documents have been served shall
serve a copy of the answers, and objections if any, to such
discovery requests within thirty (30) days after the service
of the requests. Fed.R.Civ.P. 33(b)(2) and 34(b)(2)(A). A
shorter or longer time may be directed by court order or
agreed to in writing by the parties. Id.
a motion to compel, ‘[t]he moving party bears the
burden of showing that the materials and information sought
are relevant to the action or will lead to the discovery of
admissible evidence.'” Mirror Worlds
Technologies, LLC v. Apple Inc., 2016 WL 4265758, at *1
(E.D. Tex. Mar. 17, 2016) (quoting SSL Servs., LLC v.
Citrix Sys., Inc., 2010 WL 547478, at *2 (E.D. Tex. Feb.
10, 2010)). “Once the moving party establishes that the
materials requested are within the scope of permissible
discovery, the burden shifts to the party resisting discovery
to show why the discovery is irrelevant, overly broad or
unduly burdensome or oppressive, and thus should not be
permitted.” Mirror Worlds Technologies, LLC,
2016 WL 4265758 at *1. See also, Wymore v. Nail,
2016 WL 1452437, at *1 (W.D. La. April 13, 2016) (“Once
a party moving to compel discovery establishes that the
materials and information it seeks are relevant or will lead
to the discovery of admissible evidence, the burden rests
upon the party resisting discovery to substantiate its
objections.” (citing McLeod, Alexander, Powel and
Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir.
1990))); Rivero v. Sunbeam Products, Inc., 2010 WL
11451127, at *4 (W.D. Tex. Jan. 12, 2010) (“Plaintiffs,
who bear the burden of proof in support of their motion to
compel . . . .”).
to Fed.R.Civ.P. 37(a)(5)(A), if a motion to compel is
granted, “the court must, after giving an opportunity
to be heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant's reasonable expenses
incurred in making the motion, including attorney's
fees.” See also, Nguyen v. Louisiana State
Board of Cosmetology, 2016 WL 67253, at * 3 (M.D. La.
Jan. 5. 2016) (“Because the Court has granted
Defendant's Motion to Compel and no exceptions apply,
Defendant is entitled to an award of reasonable expenses,
including attorney's fees.”). Additionally,
pursuant to Fed.R.Civ.P. 37(d)(1)(A)(ii), the court may, on
motion, order sanctions if “a party, after being
properly served with interrogatories under Rule
33…fails to serve its answers, objections, or written
court finds that Forest River has met its burden of proving
that the Motion to Compel should be granted. Forest
River's requests seek information regarding
Plaintiffs' injuries allegedly sustained, the accident,
the trailer at issue, and matters related to the witnesses to
be called and documents to be used as exhibits at trial. The
court finds the information sought is relevant to this
action. Forest River submitted documentation showing that it
propounded Interrogatories and Requests for Production on the
Plaintiffs on January 5, 2017. Forest River also submitted
documentation showing that it reached out to Plaintiffs'
counsel multiple times regarding the outstanding discovery
responses and asserts that Plaintiffs have not submitted any
written responses or objections to Forest River's
discovery requests. Moreover, Plaintiffs have not filed any
objection to the instant Motion to Compel.
the court grants Forest River's Motion to Compel, the
court further finds that an award of reasonable expenses is
required under Fed.R.Civ.P. 37(a)(5)(A). Plaintiffs were
given an opportunity to respond to Forest River's request
for fees but failed to file an opposition. Nonetheless,
“the fee applicant bears the burden of establishing
entitlement to an award and documenting the appropriate hours
expended and hourly rates.” Nguyen v. Louisiana
State Board of Cosmetology, 2016 WL 67253, at * 3 (M.D.
La. Jan. 5. 2016). As noted above, Forest River has not
asserted a specific amount of expenses it contends would be
reasonable, nor has it submitted evidence of the amount of
expenses incurred. In such a circumstance, this court finds
an award of $500.00 is reasonable. See, Doucet
v. Dormont Manufacturing Co., 2014 WL 2434472, at * 4
(M.D. La. May 29, 2014) (“Defendant did not claim a
specific amount of expenses incurred in filing its motion.
However, a review of the motion and memoranda supports the
conclusion that an award of $450.00 is reasonable.”);
Rivera v. Martin J. Donnelly Antique Tools, 2015 WL
6872506, at * 3 (M.D. La. Nov. 9, 2015) (“Plaintiff has
not demonstrated any circumstances which would make an award
of expenses to the defendant unjust. Defendant did not submit
anything to establish a specific amount of expenses incurred
in filing this motion. A review of the motion papers supports
finding that an award of $500.00 is reasonable.”).