DEBTOR CASE NO. 95-20606



VS. ADV. NO. 95-2064





This matter is before the Court on the defendant's Motion and Affidavit for Award of Attorney Fees, filed herein on May 2, 1996. The plaintiff filed a Response on May 24, 1996. The basis of the defendant's Motion is the plaintiff's failure to cooperate with discovery requests within the time allotted by the Court, including an extension. The defendant seeks $400.00 in attorney fees.

This matter was tried on April 24, 1996, with judgment being entered for the plaintiff on April 26, 1996. In the course of preparation for the trial pursuant to the Order for Trial issued on January 22, 1996, the defendant apparently propounded interrogatories, a request for production of documents, and a request for admissions upon the plaintiff on March 4, 1996. The plaintiff did not respond, and with the discovery deadline approaching, the defendant asked for an extention of time to complete discovery. This Court entered an Order extending the discovery deadline until April 10, 1996.

The defendant filed a Motion for Summary Judgment on April 12, 1996, stating inter alia that the plaintiff had failed to respond to the defendant's discovery requests by April 10. The plaintiff apparently did respond on or about April 20, 1996. The Motion for Summary Judgment was originally set to be heard on April 24, 1996, the same day as the trial. On April 17, 1996, an Order to Show Cause was entered directed to the plaintiff for failure to comply with the Order for Trial. A show cause hearing was set for April 23, 1996, and the hearing on the Motion for Summary Judgment was re-set for that day as well. The Order to Show Cause was overruled on April 23, 1996, and the trial was held the next day, as set out above.

The defendant's Motion and Affidavit maintains that he should be awarded attorney's fees in the amount of $400.00 to "cover the cost incurred by the Debtor in submitting and appearing on the Motion for Summary Judgment and Show Cause Order." The defendant takes the position that both the Motion for Summary Judgment and the show cause hearing were necessitated by the plaintiff's failure to respond to discovery requests. The record does not reflect that the defendant ever filed a motion to compel discovery.

Federal Rule of Bankruptcy Procedure 7037 which makes Federal Rule of Civil Procedure 37 applicable in bankrutpcy provides that a party may apply for an order compelling discovery. It further provides, at FRBP 7037(a)(4):

If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, .... , require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the moving party the reasonable expenses incurred in making the motion, including attorney's fees, ....

Case law generally supports the imposition of sanctions for failure to provide discovery after a motion to compel has been filed and ruled on. See In re Williams, 181 B.R. 1 (Bkrtcy.D.R.I. 1995); In re Bernard, 85 B.R. 864 (Bkrtcy.D.Colo. 1988); In re Tong Seae (U.S.A.), Inc., 81 B.R. 593 (9th Cir.BAP 1988). As set out above, however, the defendant did not file a motion to compel, and sanctions under Rule 7037(a)(4) do not appear to be applicable herein.

The Court has broad discretion to use sanctions to insure that parties fulfill their "duty to insure the expeditious and sound management of the preparation of cases for trial." Matter of Sanction of Baker, 744 F.2d 1438 (Tenth Cir. 1984), at page 1440. In this case, the court was interpreting FRCP 16(f). This Rule is made applicable in bankruptcy adversary proceedings by FRBP 7016. Rule 16(f) provides in part:

If a party or party's attorney fails to obey a scheduling or pretrial order, .... , the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, .... In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, ....

Even this provision does not provide justification for granting the defendant's Motion, however, as he bases it on the fact that he filed and appeared in Lexington to argue a Motion for Summary Judgment.

This argument does not follow logically from an allegation of failure to cooperate in discovery. No party is required to move for summary judgment; this is a strategic decision. Once filed, however, it must be argued wherever the Court conducts hearings on such motions, and the hearing location may be inconvenient for the movant. In addition, counsel for the defendant was not required to attend the Show Cause hearing, as the Show Cause Order was not directed to him.

In short, counsel for the defendant has not made a case for the award of attorney fees in this matter. This Court is therefore of the opinion that his Motion should be overruled. An order in conformity with this opinion will be entered separately.


By the Court -





Copies to:


Peter Coughlan, Esq.

C. Ed Massey, Esq.