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Saliga v. Chemtura Corp.

United States District Court, D. Connecticut

June 1, 2016

DIANE SALIGA, Plaintiff,


          Donna F. Martinez United States Magistrate Judge

         The plaintiff brought this employment discrimination against her former employer. Pursuant to Fed.R.Civ.P. 37(a)(5)(B), the court awarded defendant costs and attorney's fees incurred in opposing two unsuccessful motions to compel filed by the plaintiff. (Doc. ##115, 177.) The court ordered defendant to file an affidavit of its fees and costs, now before the court. (Doc. #187.) The plaintiff objects to the defendant's requested fees. (Doc. #190.)

         I. Fees incurred by defendant in opposing plaintiff's motion to compel (doc. #77)

         The plaintiff filed a motion to compel the defendant to respond to an interrogatory that asked the defendant to "describe all the facts which support defendant's denial of any request for admission . . . ." (Doc. #77.) The interrogatory applied to more than 40 requests for admission that the defendant denied or partially denied.[1] The defendant objected to the plaintiff's motion on the grounds that, among other reasons, the interrogatory attempted to circumvent Rule 33's limit of 25 interrogatories. (Doc. #84.) The defendant requested that the court deny plaintiff's motion and award defendant its fees and costs incurred in responding to the motion.

         Pursuant to Fed.R.Civ.P. 37(a)(5)(B), 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 . . . who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(B).

         An award of expenses under Rule 37(a)(5)(B) is "mandatory" unless an exception is met. Pegoraro v. Marrero, No. 10 CIV. 00051(AJN)(KN), 2012 WL 5964395, at *4 (S.D.N.Y. Nov. 28, 2012). "The presumption in favor of imposing expense shifting sanctions against a party who unsuccessfully litigates a motion to compel reflects the importance of using monetary sanctions to deter abusive or otherwise unjustifiable resort to the judiciary in the discovery process." 7 James Wm. Moore et al., Moore's Federal Practice ¶ 37.23[1] (3rd ed. 2015). The sanctions provision of Rule 37(a)(5) was intended "to reduce the burden on the courts" by deterring the "making [of] unjustified motions for discovery . . . ." 8B Charles A. Wright et al., Federal Practice and Procedure § 2288 at 514 (3rd ed. 2010). The rule "place[s] directly on attorneys a somewhat unique sanction to refrain from the frivolous, to weigh carefully considerations of relevancy and privilege, and to advise in accordance with their best judgment." Id. at 522.

         The court determined that plaintiff's interrogatory ran "afoul of the authorized number of interrogatories of Fed.R.Civ.P. 33" and denied the motion to compel. (Doc. #115 at 9-10.) After determining that the exceptions enumerated in Rule 37(a)(5)(B) did not apply, the court awarded defendant its fees.[2] (Doc. #115 at 10.) The court "encouraged" counsel "to come an agreement as to the amount of fees" and instructed that "[i]f they cannot, at the conclusion of the case, the defendant may submit an affidavit and ask the court to determine the amount of attorney's fees and costs to be awarded in connection with [its] motion." (Doc. #115 at 11.)

         Counsel were unable to reach an agreement. As a result, after the case was closed, [3] the defendant filed the instant affidavit. (Doc. #187.)

         The defendant was represented by Attorney Stephen Aronson, a partner at Robinsonઉ and Attorney Ian Clarke-Fisher, an associate. Defense counsel expended 13.8 hours reviewing, researching and drafting the opposition to the motion to compel and 5.4 hours preparing for and attending oral argument. The defendant seeks $4839.90 in attorney's fees and costs incurred in opposing the plaintiff's unsuccessful motion to compel:

Attorney Clarke-Fisher

15.9 hrs @ $211 =


Attorney Aronson

3.3 hrs @ $450 =




         Plaintiff objects. She attaches an affidavit that she "do[es] not have the financial ability to pay" defendant its requested fees. (Doc. #190, Saliga Aff. ¶4.)

         The plaintiff's objection is unavailing. Plainly these fees fall on plaintiff's counsel, as opposed to plaintiff. The decision to file the offending motion was made by counsel in an independent exercise of his professional judgment. See Ransmeier v. Mariani, 718 F.3d 64, 71 (2d Cir. 2013) (holding that "[t]he rule that the sins of the lawyer are visited on the client does not apply in the context of ...

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