United States District Court, N.D. Illinois, Eastern Division
D. Leinenweber Judge
the Court is Plaintiff Paul Simons’ Motion for
Attorneys’ Fees and Costs [ECF No. 170]. For the
reasons stated herein, the Court grants in part and denies in
part the Plaintiff’s Motion. Defendant Joseph Fox is
ordered to pay $44, 681.50 to Plaintiff within twenty-one
(21) days of entry of this Order.
prior opinion considering Plaintiff Paul Simons’
(“Simons”) Motion for Sanctions, this Court found
Defendant Joseph Fox (“Fox”) had violated Federal
Rules of Civil Procedure 37(b) (for violating a court order)
and 37(d) (for failing to appear at a properly noticed
deposition), although the Court ordered an award of monetary
sanctions against Fox pursuant only to Rule 37(d). The Court
incorporates the background discussion from its prior opinion
in this matter, see, Case No. 1:14-cv-309, ECF No.
168, in which it explained the factual and legal bases for
the sanctions, including a summary of Fox’s obstruction
during this litigation, the reason why Fox’s failure to
appear for his deposition was unjustified, and an explanation
for why an award of attorneys’ fees was appropriate
under the particular rule.
has filed a Motion for Attorneys’ Fees as requested,
pursuant to the fee-shifting provision contained in Rule
37(d)(3). He asks for $91, 590.50 in fees and expenses. The
Rule specifically requires the party failing to act “to
pay the reasonable expenses, including attorneys’ fees,
caused by the failure.” Fed.R.Civ.P. 37(d)(3).
attorneys billed him on an hourly basis for the work related
to bringing the original motion for sanctions and for the
costs related to rescheduling the canceled deposition in
Chicago. The attorneys state in the present Motion for Fees
that their work was “substantially discounted from the
firm’s usual and customary rates and are reasonable and
consistent with rates charged by attorneys in Cook County
with comparable skill and experience.” See,
Pl. Mot. ¶ 3. Simons’ lead attorney, W. Allen
Woolley, attached a signed declaration in support of that
statement. The Motion includes a description of the work that
went into researching and drafting the motions for sanctions
and an itemized list of actions counsel took in response to
Fox walking out of his deposition and leaving town. The
attorneys have already billed Simons for $74, 434.50 in fees
and costs related to these events. The attorneys ask for an
additional $12, 156.00 for preparing the present Motion for
Fees and supporting documentation. Finally, counsel asks for
an additional $5, 000.00 in anticipated attorneys’
fees, for “the time that will be required to finalize
and file this motion and to reply to any response that may be
filed by Fox.”
on the attorneys’ representations in the Motion and
attached declaration, and the costs attendant to the canceled
deposition out-of-state, the Court finds the total of costs
and fees reasonable, with the following significant
• The Court declines to grant an additional $5, 000.00
in “anticipated attorneys’ fees.” Despite
ample opportunity to do so, Fox never responded to this
Motion, so it is unlikely Simons’ counsel expended much
extra effort defending the petition for fees.
• Simons brought two motions for sanctions, one for
violation of Rule 37(b) and another for violation of Rule
37(d). He seeks fees for work done in preparation of both.
The motion for sanctions pursuant to Rule 37(b) also included
a request for a broad protective order that the Court denied.
The Court only awarded sanctions pursuant to Rule 37(d) for
Fox’s unjustified failure to appear at his properly
noticed deposition. The chart of fees sought includes several
entries reflecting combined work on both motions.
See, Pl. Ex. 1, “Fees Sought.” The
resulting total is not reasonable, especially in light of the
fact that the request for a protective order was denied.
Because the Court decided to award the sanctions only
pursuant to 37(d), it will halve the costs of the total time
spent that seems fairly attributable to preparing and
researching both motions.
categories of “fees sought” appear attributable
to work on both motions; half the total amount in those
categories is equal to $35, 831.00. The Court subtracts that
amount from the $74, 434.50 sought, to reach $38, 603.50. The
Court will similarly award half the $12, 156.00 sought for
preparing the present motion for fees, or $6, 078.00. The
Court thus grants Simons a total of $44, 681.50 in
attorneys’ fees and costs relevant to Fox’s
failure to appear at his properly noticed deposition under
Federal Rule of Civil Procedure 37(d)(3).
ordered to pay $44, 681.50 to Simons within twenty-one (21)
days of entry of this Order. Ordering payment of the
sanctions within that timeframe rather than at the conclusion
of the underlying case will ensure the sanctions have the
intended effect, which is to deter Fox from future discovery
obstructions and dilatory tactics of the sort that have drawn
out this litigation. Plaintiff Paul Simons’ Motion ...