United States District Court, D. Nebraska
Michael D. Nelson United States Magistrate Judge.
matter is before the Court following its December 1, 2017,
order on the motions to compel filed by defendants Westrock
Company and XPO. In its order, the Court granted the motions
to compel and directed Magnum to show cause why sanctions,
including the award of attorneys' fees incurred by
Westrock and XPO in filing the motions, should not be
imposed. (Filing No. 119). Chief Judge Smith Camp overruled
Magnum's objection to the order, and extended the show
cause response deadline to March 29, 2018. (Filing No. 153).
Magnum timely filed a response. (Filing No. 168).
of the Federal Rules of Civil Procedure provides that if a
motion to compel disclosure or discovery is granted,
“the court must, after giving an opportunity
to be heard, require the party . . . 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.” Fed.R.Civ.P. 37(a)(5)(A) (emphasis added). The
Court must not order such payment if “the movant filed
the motion before attempting in good faith to obtain the
disclosure or discovery without court action, ” the
opposing party's objection or response was substantially
justified, or if other circumstances make the award unjust.
Id.The inquiry as to whether a party's position
was “substantially justified” focuses on whether
the non-prevailing position was reasonably based in law and
fact. See, e.g., Bah v. Cangemi, 548 F.3d 680,
683-84 (8th Cir. 2008). Courts generally look to “the
quality of the justification and the genuineness of the
dispute; where an impartial observer would agree that a party
had good reason to withhold discovery, ” when
determining whether opposition is substantially justified.
Desert Orchid Partners, L.L.C. v. Transaction Sys.
Architects, Inc., 2006 WL 1805936, at *2 (D. Neb. June
28, 2006)(quoting Brown v. State of Iowa, 152 F.R.D.
168, 173 (S.D. Iowa 1993). “A district court has wide
latitude in imposing sanctions for failure to comply with
discovery[.]” Aziz v. Wright, 34 F.3d 587, 589
(8th Cir. 1994).
maintains its position that it was substantially justified in
its unilateral limitation of the scope of relevant discovery.
Magnum argues that because Plaintiff only alleged
“negligent acts” in its second amended complaint,
but did not raise “specific allegations of duty,
” Magnum's relevance objections to the discovery
requests were substantially justified. (Filing No. 168 at p.
4). Magnum also cites to Comment b to § 7 of the
Restatement (Third) of Torts, which provides, “A
defendant has the procedural obligation to raise the issue of
whether a no-duty rule or some modification of the ordinary
duty of reasonable care applies in a particular case.”
(Filing No. 168 at p. 3).
reviewing Magnum's response, the undersigned finds that
Magnum has not made a showing that an award of attorney's
fees would be unjust or that its position was substantially
justified. Magnum continues to misunderstand the scope of
discovery under Federal Rule of Civil Procedure 26(b)(1).
First, the “procedural obligation” referred to in
the Restatement cited by Magnum does not refer to a
party's ability to unilaterally limit the scope of
discovery based upon that party's belief it will prevail
on the substantive merits of a claim. Instead, if Magnum
believed Plaintiff's complaint deficiently pled all the
elements of negligence (including the existence of a legal
duty), Magnum could have raised that deficiency in a Rule
12(b)(6) motion to dismiss. Regardless, Magnum should have
been aware that the existence of a legal duty was included in
Plaintiff's claim of negligence, because in the
parties' Second Amended Rule 26(f) Report filed on
December 23, 2016, Plaintiff listed the elements of its claim
for negligence, including duty. (Filing No. 56 at p. 2).
also has not provided any reason why it could not have moved
for summary judgment on the issue of whether a legal duty
existed much earlier in the case. Magnum chose not to raise
the issue before the Court until March 1, 2018, several
months after the discovery requests were sent, and well over
a year since the parties prepared their Rule 26(f) Report.
Magnum very well may prevail on that issue, which remains
pending before Chief Judge Smith Camp. However, at the time
the discovery requests were sent, parties were entitled to
obtain discovery “regarding any nonprivileged matter
that is relevant to any party's claim or defense, ”
which in this case included Plaintiff's claim of
negligence. Fed.R.Civ.P. 26(b)(emphasis added). As discussed
in the undersigned's order (Filing No. 119) and Chief
Judge Smith Camp's Memorandum and Order (Filing No. 153),
violations of statutory regulations can be evidence of
negligence under Nebraska law. See Orduna v. Total Const.
Servs., Inc., 713 N.W.2d 471, 479 (Neb. 2006); Grade
v. BNSF Ry. Co., 676 F.3d 680, 687 (8th Cir. 2012).
Therefore, the requests were clearly relevant to a claim in
this action, and Magnum was not substantially justified in
objecting to the requested discovery on that basis and
unilaterally limiting the scope of discovery. Accordingly,
the Court will grant Westrockand XPO their reasonable expenses
and attorney's fees incurred in filing their motions to
Westrock and XPO are awarded their reasonable costs and
attorney's fees in bringing their motions to compel
(Filing Nos. 110 and 112).
Counsel for the parties shall confer on a reasonable amount
to be awarded and, if there is agreement, shall file on or
before April 23, 2018, a stipulation of the
costs and fees to be awarded. In the event the parties fail
to reach an agreement, Plaintiff may file on or before
May 7, 2018, an application for the award of
the costs and fees accompanied by an affidavit of such costs
and fees, pursuant to NECivR 54.3 and 54.4.
Magnum shall have until on or before May 22,
2018, to respond to the application. Thereafter, the
issue of costs and sanctions will be deemed submitted and a
written order entered.
 Although Westrock has now been
dismissed as a party from the case, it incurred fees
associated with filing its motion to compel prior to ...