United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge
December 11, 2017, plaintiff served defendants with a Request
to Admit Facts, a Request for Production of Documents, and
Interrogatories. Plaintiff also served defendants with
Initial Rule 26 (a) disclosures that same day. The parties
agreed to exchange their Rule 26(a)(1) disclosures by January
4, 2018 [Dkt. #9].
responses to plaintiff's discovery requests were due by
January 11, 2018. That date came and went without anything
from the defendants. Three days later, on February 14, 2018,
plaintiff's counsel emailed defendant, Hilton Mayer,
requesting the responses to discovery. Silence followed. As
of March 7, 2018, defendants still had not responded or
engaged in any meet and confer process; nor had they made
their obligatory initial disclosures. In short, the
defendants could not have been any more noncompliant with or
indifferent to their discovery and disclosure obligations.
See AT&T Corp. v. Park I-10 Motors, 2014 WL
12580445, at *1 (W.D. Tex. 2014); Whitserve LLC v.
Computer Patent Annuities N. Am., LLC, 2006 WL 1273740,
at *3 (D. Conn. 2006); Sulfuric Acid Antitrust
Litigation, 231 F.R.D. 331, 342 (N.D.Ill.2005)
result, plaintiff was forced to file a motion to compel on
March 7. On March 8, Judge Guzman entered a default judgment
against the corporate defendants. [Dkt. #27]. Indeed, none of
the defendants, including the individual defendant, even
bothered to show up for the hearing on the plaintiff's
motion for default judgment. That left individual defendant,
Hilton Mayers, standing. And he failed to appear at the
hearing on plaintiff's motion to compel. [See
the lengthy discussion in Dkt. #32]. I granted the
plaintiff's motion to compel and indicated that it would
be appropriate for plaintiff to file a petition for fees he
incurred in bringing the motion to compel. [See Dkt.
#32]. Plaintiff did so, asking for $1980 in attorneys'
fees and expenses. [Dkt. #33].
defendant now objects, claiming that the fee petition is
“inflammatory and misstates the import and meaning of
this Court's orders.” [Dkt. #39 at 1]. Of course it
does no such thing. The argument essentially is that the
individual defendant's counsel withdrew on December 21,
2017 [Dkt. #21], and was not replaced until over three months
later, on March 29, 2018. Thus, it is claimed that it is
understandable that he did not fulfill his discovery
obligations, and thus, it is argued, he should be excused.
[Dkt. #39, at 2]. Of course, no explanation is given for the
defendants' insouciant attitude toward his obligations.
on Chambers v. NASCO, Inc., 501 U.S. 32, 45-46
(1991) and Magnus Elecs., Inc. v. Masco Corp. of
Ind., 871 F.2d 626, 632 (7th Cir. 1989), he claims that
he did not act in bad faith, vexatiously, or wantonly. [Dkt.
# 39, at 2]. That may well be, but those are “inherent
power” cases, and we are concerned with Fed.R.Civ.P.
37. Rule 37(a) “presumptively requires every
loser to make good the victor's costs.” Rickels
v. City of South Bend, Indiana, 33 F.3d 785, 786-87 (7th
Cir. 1994)(emphasis supplied). “Fee shifting when the
judge must rule on discovery disputes encourages their
voluntary resolution and curtails the ability of litigants to
use legal processes to heap detriments on adversaries (or
third parties) without regard to the merits of the
claims.” Id. at 787. The party whose discovery
requests have been ignored and who has been forced to file a
motion to compel need not show bad faith or vexatious
conduct; it is the recalcitrant party who must establish his
failure to comply with discovery was substantially justified.
Id. See also Fed.R.Civ.P. 37(a)(5)(A);
Precision Fabrics Group, Inc. v. Tietex Intern.,
Ltd., 2015 WL 4726866 (M.D. N.C. 2015); Maryland
Cas. Co. v. Shreejee Ni Pedhi's, Inc., 2013 WL
3353319 (M.D.Fla. 2013); Underdog Trucking, L.L.C. v.
Verizon Services Corp., 273 F.R.D. 372 (S.D.N.Y. 2011)
(a finding of bad faith is not required as a precondition of
an award under Rule 37(a)(5)(A)).
pro se litigants have to follow the rules. See,
e.g., Indiana v. Edwards, 554 U.S. 164, 185 (2008);
Welcher-Butler v. Brennan, 619 Fed.Appx. 550 (7th
Cir. 2015); McInnis v. Duncan, 697 F.3d 661, 665
(7th Cir. 2012); Moore v. Pipefitters Ass'n Local
Union597, U.A., 306 F.R.D. 187, 195 (N.D. Ill.
2014)(collecting cases). It would be unfair to require
plaintiff to jump through hoops because the defendant
didn't get around to hiring an attorney for three months
after his prior counsel withdrew because he wouldn't pay
her. [Dkt. #16]. Defendant seems to think that everything -
legal work, aggravation to opponents - comes free to him. It
does not. Failure to hire a lawyer does not allow the
indifference to the other side that the record reveals in
that, defendant thinks plaintiff's counsel is not
entitled to an award of $1, 980 and submits that sum
“should be reduced by a reasonable amount of $1, 500 to
reflect counsel's limited work and/or counsel's
failure to identify his experience and the basis for his
hourly rate” of $450 per hour. [Dkt. #39, at 3]. But, I
find that the hourly rate is not out of line and that $1980
is a reasonable amount for the work plaintiffs counsel was
forced to do as a result of the defendant's indifference
and recalcitrance in this case. Mouloki v. Epee,
2017 WL 2791215, at *5 (N.D. Ill. 2017)(hourly rate of $465
for lead attorneys); Franks v. Mkm Oil, Inc., 2016
WL 861182, at *3 (N.D. Ill. 2016)(award of $350 per hour);
Kurgan v. Chiro One Wellness Centers LLC, 2015 WL
1850599, at *4 (N.D. Ill. 2015)(noting range of acceptable
hourly rates from #250 to $550).
Motion for Fees [Dkt. #33] is granted.
 Counsel's motion stated that her
bills for legal work had not been paid and that the
individual defendant, Mayers, had repeatedly refused to make
payment although he was happy to accept the legal work done
for him in this case and in other cases. She represented that
the defendant, Mayers, claimed he had sent her checks but
they were somehow inexplicably and repeatedly lost in the
mails. The motion also stated that Mr. Mayers failed to keep
appointments and to make promised phone calls. [Dkt. #33].
The motion also represented that any checks that actually
arrived in her hands bounced. ...