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Dunne v. Resource Converting, LLC

United States District Court, E.D. Missouri, Eastern Division

March 15, 2019

TOM DUNNE, JR., Plaintiff,
v.
RESOURCE CONVERTING, LLC, TIM DANLEY, RICK KERSEY, SEBRIGHT PRODUCTS, INC., GARY BRINKMANN, NEWWAY GLOBAL ENERGY, LLC, DAVID WOLF, JERRY FLICKINGER, and JWR, INC., Defendants. Individual Hours Hourly Rate Total

          MEMORANDUM AND ORDER GRANTING MOTION FOR ATTORNEY FEES

          DAVID D. NOCE, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the motion of plaintiff Tom Dunne Jr. for attorney's fees and costs (Doc. 328) resulting from the Court's October 30, 2018 order (Doc. 314) sustaining his motion to compel pretrial production of documents by defendants Resource Converting LLC, Tim Danley, and Rick Kersey ("RCI defendants"). (Doc. 310). RCI defendants oppose the motion, and have also filed a motion for reconsideration of the Court's October 30, 2018 order. (Doc. 352).

         BACKGROUND

         This is the latest round of discovery disputes in a contentious case. The proceedings leading up to this motion are highly relevant, and the parties characterize these proceedings and their impact differently, so the Court will discuss them in detail.

         On October 13, 2017, plaintiff filed its first motion to compel production of documents, alleging that despite plaintiff's good-faith efforts to resolve discovery disputes, RCI defendants' counsel had instructed their clients not to search for or produce documents responsive to plaintiff's document requests. (Doc. 203). The RCI defendants responded, and the plaintiff replied, and the Court heard oral arguments on November 3, 2017. (Docs. 209, 218, 219). The Court concluded that the motion to compel must be granted, instructing plaintiff to file a motion for attorney fees. (Docs. 220, 239). After reviewing plaintiff's motion for fees, the RCI defendants' objections in response, and plaintiff's reply, the Court awarded plaintiff $16, 477.75 in attorney fees.

         However, the RCI defendants failed to fully comply with the Court's order and produce all of the relevant documents. While the Court was still considering the motion for fees, and nearly three months after the motion to compel was granted on November 6, 2017, plaintiff filed a motion to enforce the Court's order and second motion to compel production of documents on February 20, 2018. (Doc. 254). One week later, the RCI defendants filed a lengthy response with multiple exhibits. (Doc. 258). Plaintiff replied, and the Court held a hearing on April 10, 2018, at which counsel for the RCI defendants appeared and defended his clients' position. (Docs. 261, 274). The case was then stayed for several months pending the related trial in the Southern District of Iowa, and the Court denied the pending motion as moot without prejudice to being refiled if the Court resumed proceedings in September 2018. (Doc. 292).

         Plaintiff refiled the motion upon the lifting of the stay, and the Court allowed further arguments at a status conference on October 29, 2018. (Docs. 310 and 313). The RCI defendants' counsel had filed a motion to withdraw three days before, on October 26, 2018, and appeared at the hearing without fully participating in arguments. (Doc. 312). The Court took the matter under submission based on the parties' previous briefs and arguments, ultimately granting plaintiff's motion to enforce the Court's order and second motion to compel and ordering (1) the RCI defendants to produce the responsive documents in a format reasonably usable to plaintiff and (2) that plaintiff file an affidavit of fees and costs incurred in preparing, filing, and prosecuting the second motion to compel. (Doc. 314).

         Plaintiff then filed his motion and affidavit of fees for the second motion to compel, claiming $49, 337.50, approximately three times the amount claimed for the initial motion. (Doc. 327). The parties filed responses, replies, and sur-replies. (Docs. 334, 349, 350, 351, 360).

         The RCI defendants simultaneously filed a motion for reconsideration of the Court's order granting plaintiff's second motion to compel. (Doc. 352). Plaintiff objected and the RCI defendants replied. (Docs. 359 and 363).

         The Court heard arguments on the pending motion for attorney fees and motion for reconsideration at a February 1, 2019 status conference. Accordingly, all of the discovery motions in this case have been extensively argued, with multiple opportunities for both sides to present their positions. .

         DISCUSSION

         Motion for Reconsideration

         The RCI defendants move this Court to reconsider its order enforcing discovery sanctions, claiming that plaintiff's motion was ruled without an adequate response from the RCI defendants. (Doc. 352). Defendants bring this as a “motion for reconsideration” with reference to Federal Rule of Civil Procedure 7(b). The Federal Rules of Civil Procedure do not mention motions for reconsideration, only motions to alter or amend judgments (under Rule 59) and motions for relief from judgments or orders (under Rule 60). Neither of these Rules applies here, because the order defendants seek to have reconsidered is not a final judgment or order, but rather an interlocutory or non-dispositive decision.

         The Court nevertheless has authority to reconsider its own interlocutory decisions. It has inherent authority, and Rule 54(b) further provides that “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all ...


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