DAVID ISRAEL, Plaintiff, v. MICHAEL BUCON, et al., Defendants No. 17-cv-6452 United States District Court, N.D. Illinois, Eastern Division Filed: February 26, 2020 Counsel Ariel Weissberg, Lindsey Louise Purdy, Weissberg and Associates, Ltd., Chicago, IL, Nemura G. Pencyla, Patrick L. Provenzale, Terry A. Ekl, Tracy L. Stanker, Ekl, Williams & Provenzale LLC, Lisle, IL, for Plaintiff. Daniel Francis Lynch, Lynch Thompson LLP, Chicago, IL, Stephen Michael Donnelly, Parikh Law Group, LLC, Chicago, IL, for Defendant Michael Bucon. Jonathan M. Cyrluk, Steven Christopher Moeller, Carpenter Lipps & Leland LLP, Chicago, IL, for Defendants James Adams, Xtreme Protection Services, LLC. Daniel Francis Lynch, Amy J. Kanarowski, Lynch Thompson LLP, Chicago, IL, for Defendant Diane Israel. Valdez, Maria, United States Magistrate Judge ORDER *1 Plaintiff David Israel's Objection to the Magistrate Judge's June 17, 2019 Order pursuant to Federal Rule of Civil Procedure 72 [661] is overruled. Defendant Diane Israel's Motion for Additional Fees [669] is denied. STATEMENT Before the Court are two related matters: (1) Plaintiff David Israel's Objection to the Magistrate Judge's June 17, 2019 Order awarding attorney fees to Defendant Diane Israel in the amount of $83,197.00 pursuant to Federal Rule of Civil Procedure 72, Dkt. 661; and (2) Defendant Diane Israel's Motion for Additional Fees related to Diane's response to David's objection, Dkt. 669. For the following reasons, David's objection is overruled and Diane's motion is denied. Diane and David were involved in 8 discovery motions on which Diane prevailed before Magistrate Judge Maria Valdez, to whom this matter was referred by the Executive Committee for the purpose of handling all pretrial issues. Diane filed a petition for attorney fees related to those motions pursuant to Rule 37(a)(5), which the Magistrate Judge denied without prejudice and ordered the parties to meet and confer on the matter as required by Local Rule 54.3. After the attempts of Diane's counsel to meet and confer were thwarted by David's counsel, Diane filed a renewed petition for attorney fees, which the Magistrate Judge granted and awarded Diane attorney fees totaling $83,197.00 related to those eight motions and her renewed fee petition. Dkt. 658. David objects to the Magistrate Judge's fee award to Diane because: (1) the Magistrate Judge improperly presumed David's losing position on the eight motions lacked substantial justification; (2) the Magistrate Judge improperly deprived David the opportunity to argue that his losing position on the eight motions was substantially justified; (3) the Magistrate Judge failed to specify who is responsible for paying the fee award; and (4) the Magistrate Judge improperly awarded Diane attorney fees related to her fee petition. Dkt. 661. Diane responds that David had ample opportunity to argue his losing positions on the 8 discovery motions were substantially justified, that the Magistrate Judge considered David's arguments, and that the Magistrate Judge's fee award was well founded such that David's objection should be overruled. Dkt. 667. Rule 72 allows parties to file objections to dispositions ordered or recommended by a magistrate judge to whom the case was referred within 14 days of the magistrate judge's ordered or recommended disposition. Fed. R. Civ. P. 72. The Court reviews a magistrate judge's order on a non-dispositive matter for clear error. Fed. R. Civ. P. 72(a). On the other hand, the Court reviews a magistrate judge's recommended disposition on dispositive motions de novo. Fed. R. Civ. P. 72(b)(3). Plaintiff argues that fee awards under Rule 37(a)(5) are dispositive and, therefore, the Magistrate Judge's fee award should be construed as a recommendation and reviewed by the Court de novo under Rule 72(b). Dkt. 661 at 2. The Magistrate Judge disagreed, concluding that fee awards for discovery expenses under Rule 37(a)(5) are not dispositive and distinguishable from dispositive sanctions under Rule 11 and 28 U.S.C. § 1927. Dkt. 354 at 10, n. 5 (citing Knapp v. Evgeros Inc., No. 15 C 754, 2016 WL 2755452, at *1-2 (N.D. Ill. May 12, 2016)). The Court notes that there is no controlling authority that directly resolves this issue and that some courts in this district have come to the opposite conclusion that Rule 37(a)(5) fee awards are dispositive and must be reviewed de novo. See, e.g., Toyo Tire & Rubber Co., Ltd. v. Atturo Tire Corp., No. 14 C 206, 2017 WL 784990, at *3, 6-7 (N.D. Ill. Feb. 8, 2017) (citing Cleversafe, Inc. v. Amplidata, Inc., 287 F.R.D. 424 (N.D. Ill 2012)). Nevertheless, the Court agrees with the Magistrate Judge that fee awards for discovery expenses under Rule 37(a)(5) are not dispositive because unlike even other subparts of Rule 37 that allow for dispositive sanctions, Rule 37(a)(5) is only a fee-shifting rule and does not allow for any other sanctions that could potentially be dispositive of a claim. Compare Fed. R. Civ. P. 37(b)(2)(A) (sanctions for not obeying a discovery order may include striking pleadings, dismissing the action, or entering default judgment) with Fed. R. Civ. P. 37(a)(5) (only relief available is payment of expenses, including attorney fees). Thus, some sanctions available under Rule 37 may be dispositive, but fee awards under Rule 37(a)(5) are not. However, under either standard of review, the Court agrees with the Magistrate Judge's fee award and therefore overrules David's objection. *2 First, contrary to David's objection, the Court finds that the Magistrate Judge neither presumed that David's losing position on the discovery motions were without substantial justification nor deprived David from arguing that his losing position was substantially justified. This is particularly apparent from the Magistrate Judge's fee award order wherein the Magistrate Judge engaged and rejected David's contention that his losing positions were substantially justified. Dkt. 658 at 4-5. Further, the Court agrees with the Magistrate Judge's conclusions. For example, David was not substantially justified in refusing to appear for his deposition after the Magistrate Judge ordered David to do so. See Dkt. 243 at 15 (granting Diane's motion to compel David to sit for his deposition); Dkt. 354 at 8-10 (ordering David to pay Diane's costs related to her Rule 37 motion filed after David refused to appear for his court-ordered deposition). The same goes for Diane's motion to enforce third-party subpoenas to entities owned or controlled by David, which Diane filed only after David and his counsel failed to provide meaningful updates on the matter to Diane's counsel, and which were resolved based on a later representation to the Magistrate Judge that the entities did not possess any documents responsive to the subpoenas. Dkt. 327, 363. The Court also agrees with the Magistrate Judge and finds that David's losing positions were not substantially justified on Diane's motion to compel responses to her second set of discovery requests to David, specifically with respect to David's use of social media, Dkt. 376, 411, 430, 474; David's motion to compel Diane to respond to discovery related to her current net worth, Dkt. 397, 423, 439, 467, 483; Diane's joint motion with James Adams to enforce the Magistrate Judge's order limiting depositions, Dkt. 484, 496; David's motion to attend Diane's deposition, Dkt. 507, 512, 522; David's motion to quash Diane's third-party subpoena to Northbrook Bank, Dkt. 536, 544, 550; and David's motion to compel the Northbrook Police Department to release property and documents to David for use at trial, Dkt. 578, 580, 620. While David argues that the Magistrate Judge's fee award order does not specify who is responsible for paying the fee award, it is clear to the Court that the conduct of both David and his counsel caused Diane to incur the attorney fees at issue and, therefore, both David and his counsel are responsible for paying the fee award. The Court also agrees with the Magistrate Judge's conclusion that David and his counsel failed to comply with Local Rule 54.3 and, as a result, David has waived any objections to any entries or rates. Local Rule 54.3 requires the parties involved in a fee dispute to “confer and attempt in good faith to agree on the amount of fees ... that should be awarded prior to filing a fee motion.” Local Rule 54.3(d). As explained in Diane's renewed petition and the Magistrate Judge's fee award order, David and his counsel failed to meaningfully engage in the Local Rule 54.3 process despite repeated attempts by Diane's counsel, a characterization that neither David nor his counsel dispute. Dkt. 642, 658 at 6. David has therefore waived his ability to object to the amount of fees requested by Diane. See Degorski v. Wilson, No. 04 C 3367, 2014 WL 6704561, at *6 (N.D. Ill. Nov. 26, 2014). Additionally, David's objection to the Magistrate Judge's fee award order does not include any objection to the reasonableness of the entries or rates related to the discovery motions on which Diane prevailed. Rather, David's sole objection to the amount of fees awarded relates to the amount related to the preparation of the fee petition itself, which David argues is not recoverable and, in any event must be reduced. Dkt. 661 at 11-13. However, as Diane points out, time spend defending a party's entitlement to fees is recoverable. Rickels v. City of South Bend, Ind., 33 F.3d 785, 787-88 (7th Cir. 1994). And, as explained above, David has waived his ability to object to the amount of fees requested by his and his counsel's failure to meaningfully engage in the Local Rule 54.3 process. Relatedly, Diane filed a motion for additional attorney fees related to her response in opposition to David's objection. Dkt. 669. David retorts that Diane's motion for additional fees is premature, as the Court has not ruled on David's objection to the Magistrate Judge's fee award and Diane has not complied with Local Rule 54.3, and in any event improper because Rule 37 does not allow recovery of attorney fees related to fee petitions. Dkt. 745. Diane replies that to the extent Local Rule 54.3 applies, she should be excused from compliance given David's and his counsel's previous failure to meaningfully participate in the process. The Court has discretion to award attorney fees for a party's defense of a previous attorney fee award. Rickels, 33 F. 3d at 787-88. However, in the Court's view the time has come to end the side litigation of the Rule 37 attorney fee issue and a further attorney fee award would be unjust. Accordingly, the Court overrules David's objection to the Magistrate Judge's fee award order and adopts the Magistrate Judge's award of fees in the amount of $83,197.00, for which David and his counsel are responsible. Additionally, the Court denies Diane's motion for additional attorney fees. *3 IT IS SO ORDERED. ENTER: