United States District Court, D. South Dakota, Southern Division
ORDER GRANTING PLAINTIFFS' MOTION FOR
ATTORNEY'S FEES DOCKET NO. 32
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
matter is before the court on plaintiffs Tommy Brown and
Heather McDougall's complaint based on the court's
diversity jurisdiction. See Docket No. 1. Plaintiffs
assert claims of breach of contract, fraudulent
misrepresentation and deceit, unfair trade practices, and
vexatious refusal to pay insurance benefits against defendant
Nationwide Affinity Insurance Company of America
(“Nationwide”), arising out of a claim plaintiffs
submitted on their homeowner's insurance policy.
Plaintiffs previously prevailed on a motion to compel.
See Docket Nos. 18 & 29. Plaintiffs now move the
court for an award of attorney's fees in connection with
their earlier motion in the amount of $3, 775.43.
See Docket No. 32. Nationwide resists the motion.
See Docket No. 34. The district court, the Honorable
Lawrence L. Piersol, referred plaintiffs' motion to this
magistrate judge for resolution pursuant to 28 U.S.C. §
636(b)(1)(A). See Docket No. 37.
following facts are pertinent to the instant motion. On
August 1, 2017, plaintiffs owned a house insured by
Nationwide when a hailstorm came through their Sioux Falls,
South Dakota, neighborhood, causing significant damage.
Plaintiffs timely submitted a claim under their insurance
policy to Nationwide. Nationwide offered to pay plaintiffs
$3, 850.89, an amount plaintiffs maintain was well below what
Nationwide's own agents and internal documents indicate
their loss was worth.
filed the instant lawsuit on December 26, 2017.
Plaintiffs' previously-granted motion to compel presented
two issues. First, they sought to compel Nationwide to
disclose what reserves it had set for their claim. Second,
because Nationwide would not voluntarily share with them
information pertinent to electronic discovery, plaintiffs
sought an increase in the number of interrogatories they are
allowed to propound from 25 to 40 so that they can query
Nationwide about how it stores electronic information.
court granted both requests, though it limited the additional
interrogatories to 10 and specified they could be used only
to find out the nature of Nationwide's electronic
document system and those agents of Nationwide's who were
most knowledgeable about them.
of the Federal Rules of Civil Procedure provides that if a
court grants a party's motion to compel, the court
“must” award the moving party its costs and
attorney's fees unless the resisting party's position
was, inter alia, “substantially
justified.” See Fed.R.Civ.P. 37(a)(5)(A).
Nationwide resists the award of attorney's fees to
plaintiffs on this basis. Nationwide has not objected to the
amount of hours requested, the hourly rate requested, or any
other matter touching on plaintiffs' calculation of the
amount of their award.
regard to the reserves information, Nationwide initially
objected to providing the requested documents to plaintiffs
on the basis that the information was not relevant.
See Docket No. 24-2 (Nationwide's
Vaughn index). During plaintiffs' attempts to
engage in a good faith effort to resolve the discovery
dispute without court involvement, Nationwide hinted that
there may be a lurking claim of work product doctrine, but
did not affirmatively assert the claim until the motion to
compel was actually filed. Even then, Nationwide-whose burden
it was to establish the predicate necessary for the court to
conclude work product doctrine applied to the documents-did
not do more than assert the bare-bones allegation of work
product. Nationwide provided no details about who, what,
when, where or why the documents in question had been
created. The court, accordingly, granted plaintiffs'
motion to compel in this regard because Nationwide failed to
carry its burden of an assertion of privilege/protection.
regard to the instant motion for attorney's fees,
Nationwide argues that, because there is a split of authority
on whether individual claims reserves are discoverable, its
position in resisting the discovery was substantially
justified. Because Nationwide initially resisted the
discovery on grounds of relevance, and later did no more than
simply mouth the words of a protective doctrine without
shoring that assertion up with any facts, plaintiffs argue
Nationwide's position was not substantially justified.
Supreme Court has held that “substantially
justified” in the arena of discovery disputes means
whether there was a “ ‘genuine dispute' or
‘[that] reasonable people could differ as to [the
appropriateness of the contested action], . . .' ”
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
asserting a privilege has a ...