United States District Court, N.D. Illinois, Eastern Division
SOMPO JAPAN INSURANCE COMPANY OF AMERICA, as subrogee of Canon U.S.A., Inc., Plaintiff,
B&H FREIGHT, INC., et al., Defendants.
I. Shadur Senior United States District Judge
conclusion of yesterday's status hearing in this action,
counsel for B&H Freight, Inc. and B&H Systems, Inc.
(collectively "B&H Defendants") stated that
this Court owed the parties a ruling as to whether the
attorney's fees incurred by plaintiff Sompo Japan
Insurance Company of America ("Sompo") in
connection with its earlier Motion To Compel Discovery (the
"Motion, " Dkt. No. 77) should be reimbursed by
B&H Defendants. That question caught this Court by
surprise because none of the recent printouts that it
periodically requests from the Clerk's Office as to all
motions pending in the couple of hundred cases on this
Court's calendar (those printouts are captioned
"Motions Reports") listed that or any other
contested motion in this case.
Court owes counsel an apology for whatever glitch in the
Clerk's Office's procedures created the error that
led to an oversight on this Court's part -- though as
might be guessed, this is not the first occasion on which
this Court's plans and expectations have been impacted by
some such procedural error over which it has no control. But
this Court has now gone back to retrieve the relevant
filings, and this memorandum order will deal with the open
the B&H Defendants has filed a response to this
Court's December 27, 2016 minute entry ordering both to
show cause in opposition to the shifting of Sompo's
attorney's fees and expenses referred to at the outset of
this memorandum order (those responsive filings are Dkt. Nos.
83 and 85). In turn Sompo filed its response, labeled
"Plaintiff's Reply To B&H Defendants'
Responses To Order To Show Cause, " to address B&H
Defendants' submissions, which had respectively been
captioned (misleadingly, as will be explained a bit later)
"Defendant B&H Freight's Response To Show-Cause
Order and Motion To Compel" and "Defendant B&H
System's Response To Plaintiff's Motion To Compel and
Rule 37 Show Cause Order." Unfortunately, Sompo's
response (Dkt. No. 88), which was filed on January 26, had
naturally not worked its way through the arcane recesses of
the Clerk's Office's electronic programming on that
date, which by sheer chance was the same day on which this
Court requested its most recent Motions Report, so that
nothing in the January 26 Motions Report contained any
reference to the matter raised by defense counsel's
in-court reminder yesterday.
enough of that background explanation -- instead the purpose
of this memorandum order is to dispatch the still-open
question, and this Court now turns to that task. To that end
the controlling rule is prescribed by Fed.R.Civ.P.
("Rule") 37(a)(5)(A) (emphasis added) as to
non-complied-with motions to compel discovery responses:
If the motion is granted -- or if the disclosure or requested
discovery is provided after the motion was filed -- 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.
the precondition that brings the Rule's "must"
command into play, it is flat-out wrong for each of the
B&H Defendants to have captioned its response to the
December 27 show-cause order by including "Motion To
Compel" in the caption and text of the responses, for
this Court had already granted the motion to compel (Dkt. No.
81, a minute entry dated December 27, 2016, which
memorialized this Court's oral ruling on that date).
Hence the above-quoted Rule expressly requires B&H
Defendants to make good on the fee-and-expense-shifting
requirement. As Rickels v. City of South Bend, Ind.,
33 F.3d 785, 786 (7th Cir. 1994) (quotation of the Rule
omitted) has succinctly taught:
Rule 37(a)(4) presumptively requires every loser to make
good the victor's costs. . . . "The great operative
principle of Rule 37(a)(4) is that the loser pays."
Charles Alan Wright & Arthur R. Miller, 8 Federal
Practice and Procedure § 2288 at 787 (1970).
its part, this Court has consistently held since its very
earliest time on this District Court that the Rule's
terms should be applied literally (see Aerwey Labs., Inc.
v. Arco Polymers, Inc., 90 F.R.D. 563, 565 (N.D. Ill.
1981), decided shortly before the first anniversary of this
Court's taking the bench).
this Court's already having granted Sompo's motion to
compel discovery by its December 27 oral ruling memorialized
in the Dkt. No. 81 minute entry, Sompo's Dkt. No. 88
Reply correctly calls for rejection of the B&H
Defendants' efforts to urge reconsideration of that
ruling for a second time (in both the caption and the text of
their respective responses). And B&H Defendants have also
missed the mark in focusing on corporate veil piercing and
alter ego arguments as the asserted predicate for the
requested but not-complied-with discovery.
Sompo's Reply at pages 4 through 8 has effectively
torpedoed the responses (or more accurately nonresponses)
offered up by B&H Defendants in addressing the December
27 order to show cause. Hence each of the B&H Defendants
is ordered to pay one-half of Sompo's attorney's fees
and related expenses incurred in connection with its
unsuccessful efforts to obtain compliance with its discovery
requests. This Court hopes that the always regrettable
enlargement of disputes between litigants in this area
because of the fees-on-fees phenomenon can be avoided, so that
in the first instance it looks to the parties' counsel to
reach a hoped-for agreement on quantifying the award ordered
 This Court regularly orders updated
printouts, normally at intervals in the ten day to two week
range (the most recent Motions Reports were dated January 13
and 26). No pending motion in this case was reported in the
earlier of those two, and the only motion that was included
in the most recent report was an agreed motion by B&H
Freight, Inc. for a protective order -- ...