Unreported / Non-Citable
Background
Monsanto moved to compel Plaintiff Tim Hardesty to respond to discovery and sought the fees and costs incurred in bringing the motion. The court granted the motion to compel and gave Hardesty an opportunity to explain why Federal Rule of Civil Procedure 37(a)(5)(A) should not require him or his counsel to pay Monsanto’s reasonable expenses. Hardesty provided no discovery, sought no extension, and did not address whether an exception to a fee award applied.
The court subsequently determined that Hardesty’s discovery failures were not substantially justified and that no other circumstances made an expense award unjust. It ordered Hardesty’s counsel to pay the reasonable fees incurred in preparing and filing Monsanto’s motion to compel and related briefing. After the parties failed to agree on an amount, Monsanto applied for $33,508.50 for 77.7 hours of attorney work. Hardesty did not oppose the application.
The Court’s Holding
The court granted the fee application in part and denied it in part. Although Monsanto’s discounted hourly rates of $345 to $495 were reasonable for Dallas-area lawyers with comparable experience, its billing records included work beyond preparing and prosecuting the motion to compel, such as work involving disclosures, discovery requests, sanctions motions, depositions, and other matters.
The court also exercised its discretion to deny fees incurred in pursuing the fee award itself. It found that 59.65 hours were reasonable and necessary within the authorized scope, producing a lodestar of $21,768.50. Finding no exceptional circumstances warranting a Johnson-factor adjustment, the court ordered Hardesty’s counsel to pay Monsanto that amount by November 5, 2026.
Key Takeaways
- An unopposed fee application does not automatically entitle the movant to the full amount requested; the court must still determine a reasonable lodestar.
- Rule 37(a)(5)(A) permits recovery for work on the motion to compel, but not for unrelated discovery, sanctions, or deposition work.
- The court reduced Monsanto’s request from $33,508.50 to $21,768.50 and declined to award fees incurred litigating the fee request.
Why It Matters
The decision underscores that billing records supporting a discovery-fee award must isolate work actually incurred in making and prosecuting the successful motion to compel. Even when the opposing party files no response, courts may independently exclude work outside the authorized scope.
It also illustrates the practical consequence of failing to engage in discovery or respond to fee proceedings: counsel, rather than the client, was ordered to pay a substantial Rule 37 award.