Jones v. The Whirlpool Corporation, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JARVIS JONES, )
Plaintiff, )
)
v. ) CIVIL ACTION NO. 1:22-00475-KD-N
)
THE WHIRLPOOL )
CORPORATION, )
Defendant. )
ORDER
This action is before the Court on Plaintiff Jarvis Jones’s Motion for
Reasonable Expenses (Doc. 97) and Motion for Sanctions (Doc. 105).1 Upon
consideration, Plaintiff’s Motion for Expenses (Doc. 97) is GRANTED in part and
DENIED in part, and Motion for Sanctions (Doc. 105) is DENIED.
I. Background
Plaintiff filed a motion to compel Defendant the Whirlpool Corporation
(“Whirlpool”) to produce additional documents and Rule 30(b)(6) deposition (Doc. 81)
on August 6, 2024. Parties filed briefs and appeared before the Court for oral
argument on September 10, 2024, which resulted in this Court granting in part and
denying in part Plaintiff’s motion on September 17, 2024 (Doc. 96) (“September
Order”).
1 The Court has referred the motions (Docs. 97, 105) to the undersigned Magistrate
Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil
Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (10/02/2024;
11/04/2024 electronic references).
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Parties have engaged in ongoing discovery litigation since 2023. Earlier,
Plaintiff filed a motion to compel (Doc. 68) in May of 2024, which was granted in part
on July 1, 2024. (Doc 79) (“July Order”).2 Interrogatories and requests for production
were at issue, with this Court ordering:
Whirlpool is ordered to identify its models or products (including those within
the Defendant corporate umbrella) fitting the physical characteristics of the
stove at issue in this case, as described in Part IV, which it shall then use to
search its database for responsive instances known to Whirlpool and occurring
no earlier than five years prior to the date upon which Plaintiff’s initial
discovery was served, where those models or products are alleged to have failed
in a manner the same or substantially similar to the manner described by
Plaintiff.
(Doc 79, Page 12).3
Further, the Court limited the response to similar incidents where stoves
“spontaneously ignited and/or otherwise had a temperature/heat output that deviated
from the burner’s controller” and led to “claims, complaints, reports, alerts, notices or
lawsuits.” (Id. at 9-10).
Defendant was ordered to supplement its response, utilizing those search
results, which yielded one additional incident from Defendant’s “Claims and
Litigation Database.” (Doc. 81, PageID.658; Doc. 90, ¶ 5, PageID.815). However, after
supplemental production and Rule 30 deposition, Plaintiff argued a lack of
2 A prior motion to compel dates back to October of 2023, but was eventually
withdrawn. (Docs. 47, 52, 53).
3 Part IV of the Order narrowed searches to “Glass Top Stoves (bearing any
Whirlpool or Whirlpool umbrella brand) with physical knobs that contain
Robertshaw Infinite Switches. (See generally, Docs. 68, 77). Only a finite number of
Whirlpool and/or Whirlpool umbrella products will contain those exact
specifications.” (Doc. 79, Page 9).
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compliance with the July Order. Parties failed to resolve their dispute, which resulted
in the operative motion to compel (Doc. 81) in August of 2024.
Namely at issue was whether Defendant exhausted search requirements of
similar incidents as ordered, or if Defendant utilized a singular non-encompassing
database with their own parameters of “damage, injury, or hazard to health.” After
briefings and oral argument, the Court found that Plaintiff had shown a deficiency in
production and a lack of compliance with the prior order. The Court granted
Plaintiff’s Motion to Compel (part was found moot, as it was verbatim of the previous
July Order) and directed Defendant to produce documents of similar incidents within
the Court’s specifications. (Doc. 96, Page 10-11).4
As a result, Defendant produced 348 similar incidents from three additional
databases. Plaintiff has moved the Court for reasonable expenses related to the
litigation (Doc. 97) and separately moved for additional sanctions (Doc. 105) due to
the severity of Whirlpool’s prior noncompliance.
II. Analysis
A. Rule 37(a) Attorney’s Fees
As to the award of reasonable expenses, the Court stated in its September
Order:
To the extent Plaintiff seeks an award of "reasonable expenses" under
Fed. R. Civ. P. 37(a)(5)(A) for bringing the subject motion to compel, any
motion for reasonable expense under Rule 37(a)(5)(A) must be filed and
served no later than October 1, 2024. Any such motion must include
evidence and argument supporting both the amount and reasonableness
of the expenses sought. The failure to file such a motion by the deadline
4 The Court also ordered additional depositions regarding the handling of Plaintiff’s
claim, and to a reasonable extent, related incidents.
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will be deemed a waiver of any entitlement to Rule 37(a)(5)(A) expenses
in connection with the subject motion to compel. (Doc. 81). If a motion
for expenses is timely filed, an appropriate briefing schedule will be
entered forthwith.
Plaintiff timely filed the present Motion for Reasonable Expenses on October
1, 2024, and the motion has been fully briefed. (See Docs. 97, 99, 100). Rule 37(a)
provides:
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. But the court must not order this
payment if:
(i) the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A).
The language of Rule 37 leaves little room for interpretation, and the Eleventh
Circuit has reached the “inescapable conclusion” that an award of fees following a
successful motion to compel is mandatory unless one of the exceptions under Fed. R.
Civ. P. 37(a)(5)(A)(i)-(iii) applies. Pippen v. Georgia-Pacific, LLC, 2008 WL 11336682,
*3 (N.D. Ga. 2008) (citing DeVaney v. Continental American Ins. Co., 989 F.2d 1154,
1162 (11th Cir. 1993)). Thus, Rule 37 essentially “creates a rebuttable presumption
in favor of sanctions.” RBC Bank (USA) v. Funk Family P'ship, 2011 WL 13136317,
*3 (S.D. Ala. 2011) (citations omitted).
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i. Requirement to Confer
“[T]he court must not order this payment if: (i) the movant filed the motion
before attempting in good faith to obtain the disclosure or discovery without court
action[.]” Fed. R. Civ. P. 37(a)(5)(A)(i). The advisory committee notes on the 1993
Amendment states, that the rule was “revised to provide that a party should not be
awarded its expenses for filing a motion that could have been avoided by conferring
with opposing counsel.” Id. Whirlpool argues that Plaintiff failed to meet and confer
in good faith.
After the July Order, parties participated in a 30(b)(6) deposition of Whirlpool’s
product safety engineer on July 23, 2024. Having rebuked many of Plaintiff’s requests
in the “Response to Notice of Deposition,” parties entered with their familiar
contentious posture. The same issues were on the table at this interaction. See (Doc.
81-2, PageID.680); see generally Rule 30(b)(6) transcript (Doc. 81-4, PageID.712).
Afterward, Plaintiff memorialized their contentions via letter and accompanying
telephone call. (See Doc. 81-1, PageID.675-79). Coupled with the previous year-and-
a-half of discovery disputes, the undersigned finds Plaintiff’s burden satisfied.5
ii. Substantially Justified
“[T]he court must not order this payment if: (ii) the opposing party’s
nondisclosure, response, or objection was substantially justified[.]” Fed. R. Civ. P.
37(a)(5)(A)(ii).
5 The Court notes the change of counsel and discovery deadlines but finds Plaintiff’s
burden was met. See Fed. R. Civ. P. 37(a)(5)(A)(i).
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In context, the term “substantially justified” means “reasonable people could
differ as to the appropriateness of the contested action.” Maddow v. Proctor & Gamble
Co., Inc., 107 F.3d 846, 853 (11th Cir. 1997) (citing Pierce v. Underwood, 487 U.S.
552, 565 (1988)). See DeVaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir.
1993) (“Discovery conduct should be found substantially justified under Rule 37 if it
is a response to a genuine dispute, or if reasonable people could differ as to the
appropriateness of the contested action.”).
During the briefing for the subject motion to compel, Whirlpool represented to
opposing counsel and this Court that they were in full compliance with the July Order
(Doc. 90, PageID.818), and only alluded to difficulties with E-discovery during oral
argument. Defendant now asserts the previous nondisclosure of contents was
substantially justified because of cost and disproportionality. (Doc. 99, PageID.893).
Nonetheless, a party's “assertions that they ‘acted in good faith’ … does not
absolve them from liability under Rule 37(a)(5).” Weaver v. Stringer, 2019 WL
1495279, at *3 (S.D. Ala. 2019) (citing Marquis v. Chrysler Corp., 577 F.2d 624, 642
(9th Cir. 1978)) (“Although the failure to produce may not have been in bad faith, the
presence or absence of bad faith is relevant to the choice of sanctions rather than to
the question whether a sanction should have been imposed. In view of the range of
sanctions available, even negligent failures to allow reasonable discovery may be
punished.”) The Court narrowly defined the terms of production and eliminated any
genuine dispute. See Perez v. Miami-Dade County, 297 F.3d 1255, 1263 (11th Cir.
2002). As to reasonableness, the undersigned is unpersuaded. Whirlpool altered the
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terms of the search and limited responses to one department.6 See Swafford
Settlement Servs., Inc. v. Title Indus. Assurance Co., RRG, 2008 WL 11426860, at *4
(S.D. Ala. 2008). Plaintiffs' post-hoc rationalization is without merit. See Weaver,
2019 WL 1495279 (S.D. Ala. 2019) (“Because the Defendants did not rely on their
objections in resisting the Plaintiff's motions to compel until the Court found it
necessary to call a hearing, they should not now be allowed to rely on those same
objections to claim that their position with regard to those motions was substantially
justified.”). Rule 37(a)(5)(A)(ii) directs the Court to look to whether “the opposing
party's nondisclosure, response, or objection was substantially justified” not the
excuse submitted after the Court rules on the discovery dispute. See Rodney K. v.
Riley, 2022 WL 851724 (S.D. Ala. 2022). Substantial justification cannot be found.
iii. Unjust Expense
Whirlpool argues that due to the excessive amount of time and money spent
complying with the Court’s September Order, an award of expenses would be unjust;
expenses incurred in response to the order exceed the costs of Plaintiff’s medical
expenses in this case.
The rule “creates a rebuttable presumption in favor of sanctions.” RBC Bank
(USA), 2011 WL 13136317, at *3 (citation omitted). Whirlpool’s expenses incurred for
failing to comply with a prior court order—to which Plaintiff could have also sought
6 Additionally, Whirlpool later stipulated to supplemental production of other
material discussed in the 30(b)(6) deposition, including various engineering
analyses, but only after the motion was filed. See Fed. R. Civ. P. 37(a)(5)(A)
(“provided after the motion was filed”); (Doc. 81-4, PageID.712).
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an award—provides little substantive justification as to why the claimed fee should
not be awarded and does not overcome a presumption in its favor. See id. The primary
purpose of Rule 37(a)(5)'s fee-shifting provisions is to minimize courts becoming
involved in the discovery process and encourage all parties to be as forthcoming as
possible during the discovery process. See Weaver, 2019 WL 1495279, at *3; Fed. R.
Civ. P. 37(a) advisory committee's note to the 1970 amendment (“the potential or
actual imposition of expenses is virtually the sole formal sanction in the rules to deter
a party from pressing to a court hearing frivolous requests for or objections to
discovery” and is “the most important available sanction to deter abusive resort to
the judiciary”). Cf. McCarthy v. Ameritech Pub., Inc., 763 F.3d 488, 494 (6th Cir. 2014)
(“an important purpose of the expense-shifting sanction … is to establish incentives
for litigants to respond reasonably and in good faith to appropriate requests for
admissions”). The undersigned finds no exception applicable under Rule
37(a)(5)(A)(i)-(iii).
iv. Reasonable Expenses
Plaintiff seeks the award of $10,143.65, consisting of $9,327.50 in attorney’s
fees and $809.75 in costs (transcripts and deposition) under Rule 37(a)(5)(A). (Doc.
97, PageID.880). Counsel submitted an affidavit and attached billing exhibit, which
consists of 28.7 hours at $325 an hour. (Doc. 97-1, PageID.887).
“[T]he calculation of reasonable attorney's fees is ... clearly within the sound
discretion of the trial judge.” Tufaro v. Willie, 756 F. Supp. 556, 561 (S.D. Fla. 1991)
(citing Dowdell v. City of Apopka, Fla., 698 F.2d 1181, 1187 (11th Cir. 1983)). Under
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Rule 37(a)(5)(A), “an award of expenses is limited to the expenses incurred in making
the motion to compel.” Hall v. Government Employees Ins. Co., 2008 WL 2704595, *1
(M.D. Ga. 2008) (citing Fed. R. Civ. P. 37(a)(5)(A)); see also Odom v. Navarro, 2010
WL 547652, at *4 (S.D. Fla. 2010) (“Rule 37(a)(5)(A) provides for an award of expenses
incurred in filing a motion to compel[.]”). The rule does not provide for an award of
expenses incurred in trying to obtain discovery responses before filing a motion to
compel or time spent conferring “about the discovery issues[.]” Hall, 2008 WL
2704595 at *1. “Only time spent on tasks that were performed in conjunction with
making the motion are compensable[.]” RBC Bank (USA), 2011 WL 13136317, at *3.
Plaintiff’s award is due to be reduced. The affidavit provided includes the
following billing entries:
• 1.6 hours for “Review, analyze, and take notes on David Iott’s
deposition.”
• 0.2 hours for “Draft Motion to Seal.”
• 1.0 hours for “Motion for Relief from Expert Deadlines.”
• 0.3 hours for “Finalize Motion to Compel, Motion for Relief from Expert
Deadlines, and Motion to Seal for filing.”
• 0.3 hours for “Review and analyze September 17 Order….”
(Doc. 97-1, PageID.890-91).
Plaintiff’s billing is reduced by 3.4 hours, and the claim for “costs and related
fees for the deposition” is rejected. (Doc. 97-1, ¶ 11, PageID.889). The undersigned
finds that these entries are “expenses incurred in trying to obtain discovery responses
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before filing a motion to compel” or tasks unrelated to “making the motion.” See RBC
Bank (USA), 2011 WL 13136317 at *3. Accordingly, these entries are struck.
In general, the starting point for calculating a reasonable attorney’s fee is “the
number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292,
1299 (11th Cir. 1988). The result of this calculation is the “lodestar method,” and
there is a presumption that the lodestar figure represents a reasonable fee. See
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010).
In determining a reasonable hourly rate, the Court looks to the Johnson
factors. See Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 n.2 (11th Cir. 2008).7
However, the Court may also look to its own experience and authority in determining
the reasonableness of a fee award. See Ibezim v. GEO Group, Inc., 786 F. App’x. 975,
976-77 (11th Cir. 2019) (discussing the district court’s authority to assess the
reasonableness of attorney’s fees).
In the present case, Plaintiff’s counsel presents a rate of $325 per hour on
behalf of her client. She has practiced specifically in product liability for over a
decade, and before transitioning from defense work, commanded a rate of $300 per
7 “Those factors are: (1) the time and labor required; (2) the novelty and difficulty of
the questions; (3) the skill requisite to perform the legal service properly; (4) the
preclusion of employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the attorneys; (10) the
“undesirability” of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases.” Bivins, 548 F.3d
1348, 1350 (11th Cir. 2008) (citation omitted).
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hour. (Doc. 97-1, ¶ 4, PageID.886). While Plaintiff has not specifically offered evidence
of prior awards or independent affidavit opinions to support the prevailing market
rates, the Court is familiar with the prevailing rates in this district and finds the rate
reasonable. See Coastal Fuels Mktg., Inc. v. Fla. Exp. Shipping Co., 207 F.3d 1247,
1252 (11th Cir. 2000) (finding that when specific documentation is lacking, the court
may make an award based upon its own experience). Moreover, this award is
consistent with the lodestar calculation, and thus, is presumed reasonable. See
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010).
After the reduction specified above, Plaintiff’s fee award stands at $8,222.50
based upon 25.3 hours at $325 per hour. Defendant does not dispute the asserted rate
of billing (notably, defense counsel billed at $520 an hour for the same litigation).
Thus, the undersigned finds this to be a reasonable award against Defendant.8
B. Additional Sanctions
Plaintiff moves for additional sanctions pursuant to Fed. R. Civ. P. 26(g) and
Rule 37(b). If a district court finds that Rule 26(g)'s certification requirement has
been violated “without substantial justification,” the court “must impose an
appropriate sanction on the signer, the party on whose behalf the signer was acting,
or both.” Fed. R. Civ. P. 26(g)(3). “The sanction may include an order to pay the
reasonable expenses, including attorney's fees, caused by the violation.” Id. “The
decision of what sanction is appropriate, however, is committed to the district court's
8 Due to a change in counsel and sophistication of parties, this award is directed
solely at Defendant, the Whirlpool Corporation. (See Doc. 90-1, Affidavit of Senior
Manager, Legal Disputes).
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discretion.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1372 (11th Cir. 1997).
Here, given the award of expenses incurred in bringing their motion to compel, any
concurrent award under Rule 26(g)(3) would be duplicative and unnecessary. See
Rodney K. v. Riley, 2022 WL 851724 (S.D. Ala. 2022).
While Rule 37(a) fee awards are “inescapable,” Rule 37(b) sanctions are within
the discretion of the court. See Properties International, Ltd. v. Turner, 706 F.2d 308,
310 (11th Cir 1983) (“It is settled law that imposition of sanctions for failure to
provide discovery rests with the sound discretion of the district court….”). Compelling
additional productions of documents was an award in and of itself, and Plaintiff is
entitled to reasonable fees associated with that motion. See Steed v. EverHome Mortg.
Co., 308 F. App’x 364, 370 (11th Cir. 2009) (compensating a party and compelling
discovery are permissible purposes of sanctions). However, the undersigned finds
that additional sanctions are unwarranted. See id. (“The nature of the sanction is a
matter of judicial discretion to be exercised in light of the particular circumstances.”);
see also Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1372 (11th Cir. 1997)
(judicial discretion in determining appropriate sanctions).
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B. Conclusion
Accordingly, Plaintiff’s Motion for Sanctions under Rules 37(b) and 26(g) (Doc.
105) is DENIED, and Plaintiff’s Motion for Fees pursuant to Rule 37(a)(5)(A) (Doc.
97) is GRANTED in part and DENIED in part, for an award against Defendant in
the amount of $8,222.50. The amount is to be paid within 14 days from the date of
this Order, unless Plaintiff agrees to a later date.
DONE and ORDERED, this the 17th day of January 2025.
/s/ Katherine P. Nelson
Katherine P. Nelson
United States Magistrate Judge
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