United States District Court, S.D. Georgia, Savannah Division
JEMME J. JENKINS, Individually, and JULIANNE GLISSON, Administrator of the Estate of Jimmie L. Alexander, Sr., Plaintiffs,
CORIZON HEALTH, INC., et al., Defendants.
CHRISTOPHER L. RAY, UNITED STATES MAGISTRATE JUDGE
Court will not recapitulate the facts of the case, already
set out at length in its Order denying plaintiffs' motion
to compel production of the “infirmary discharge
book” which plaintiffs believed someone, anyone, must
possess. See doc. 60 at 1-3. Briefly, Jimmie
Alexander died after a delay in treatment of a blood clot
while a detainee at Chatham County Detention Center (CCDC),
and plaintiffs believe that CCDC medical staff's failure
to admit him to the infirmary contributed to that delay. The
RN on duty the night Alexander fell ill testified that
Corizon Health providers regularly kept a “discharge
book” reflecting “the time [patients] came in,
and the time they left” while she worked at the CCDC.
See Depo. Montine Stokes, RN at 40-42. This led
plaintiffs to search for the book, and left them in a
“circle of denial” (doc. 61 at ¶ 4) when
defendants the Sheriff's Office (which contracts out
medical services at CCDC and thus has no access to medical
records) and Corizon Health (which has since stopped
providing medical services to CCDC) represented that Correct
Health (a non-party which took over the contract to provide
medical services to CCDC) must have the document, if it
existed or indeed ever did. See doc. 43 at Exhs. 9,
12, 15 & 17 (responses by the Sheriff and County); Exhs.
18, 20 & 23 (responses by Corizon Health). Correct
Health, meanwhile, represented that it diligently searched
for, but could not find, the document, and could not even
confirm its existence. Id. at Exhs. 16 & 26
(affidavit of “no records” by non-party Correct
then moved to compel production from all three, because
someone must have the document and they did not
accept respondents' representations that they had neither
possession, custody, nor control over it. Doc. 43. The motion
was denied because a “motion to compel, of course, is
not the appropriate vehicle to seek redundant discovery
responses or an affidavit to support responses already
submitted under the assurance of Fed.R.Civ.P. 11.” Doc.
60 at 4.
Court thus ordered plaintiffs to file their motion for
spoliation sanctions, if any, within 14 days. Doc. 60 at 4.
They filed, instead, a consent motion for findings of fact,
which is GRANTED. Doc. 63. The following
stipulated facts are accepted as undisputed by the parties:
1. According to Montine Stokes, RN, entries were regularly
made regarding admissions and discharges from the infirmary
at the CCDC in a log book referred to as the “discharge
2. Plaintiffs have requested this discharge book for the
dates of May 22-23, 2016 from all entities that could have
had possession of the book as of July 31, 2016, the last day
on which Corizon Health supplied services to the CCDC
pursuant to its contract with Chatham County.
3. Correct Health, Corizon Health, and the Chatham County
Sheriff's Office have not been able to locate or produce
the requested discharge book as of the date of these
factual stipulation, of course, underscores the somewhat
specious nature of plaintiffs' motion to compel. They
have now agreed to facts demonstrating that respondents lack
possession, custody, or control over the document,
exactly as all three respondents repeatedly represented
to plaintiffs prior to the filing of the motion.
Court further ordered plaintiffs to meaningfully respond to
non-party Correct Health's demand for fees pursuant to
Rule 37. Doc. 60 at 5; see Fed. R. Civ. P.
37(a)(5)(B) (“If the motion is denied, the court . . .
must, after giving an opportunity to be heard, require the
movant, the attorney filing the motion, or both to pay the
party or deponent who opposed the motion its reasonable
expenses incurred in opposing the motion, including
attorney's fees.”). Fees are not to be awarded
“if the motion was substantially justified or other
circumstances make an award of expenses unjust.”
Fed.R.Civ.P. 37(a)(5)(B). Absent one of these exceptions, an
award of fees under Rule 37 is mandatory and requires no
showing of bad faith. See Bank Atlantic v. Blythe Eastman
Paine Webber. Inc., 12 F.3d 1045, 1049 (11th Cir. 1994);
Devaney v. Continental Am. Ins. Co., 989 F.2d 1154,
1162 (11th Cir. 1993). Plaintiffs do not contend that an
award would be unjust, instead arguing that they:
were substantially justified in including Correct Health in
the motion to compel since Plaintiffs had no reason to accept
Correct Health's statements over the statements of
Corizon or the Sheriff's Office. If Plaintiffs had not
included Correct Health in the motion, then the Defendants
could have argued that Correct Health had the document. The
Court would not have been able to fashion any remedy without
Correct Health as a party to the motion. Without being able
to determine the truthfulness of the denials, Plaintiffs
cannot file for sanctions, either for non-production or
spoilation because Plaintiffs cannot determine the
appropriate party against which to file such a motion. The
circle of denial prevents other action by Plaintiffs, except
perhaps a request for a finding of facts that recognizes the
prior discovery requests, the denials and Plaintiffs diligent
follow-up attempts to discover.
Doc. 61 at ¶ 4. Correct Health, it must be remembered,
produced a sworn affidavit in response to plaintiffs'
subpoena attesting that after a diligent search, no records
were discovered. See doc. 43 at Exhs. 16 & 26.
It is unclear what prompted plaintiffs to doubt the
truthfulness of Correct Health's representation that it
did not possess the document,  if it ever existed (and, despite
plaintiffs' certainty, there is no hard proof that it
did). It is unfathomable why plaintiffs, after researching
the issue, believed a motion to compel documents from
respondents who unambiguously swore that they lacked
possession, custody, or control over the item would be more
appropriate than seeking spoliation sanctions for
lost/destroyed evidence and seeking the exact proposed
factual stipulation (to which the parties have now agreed)
justified means that reasonable people could differ as to the
appropriateness of the contested action.” Maddow v.
Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th
Cir. 1997). The Court concedes that plaintiffs earnestly
believe in the appropriateness of their motion, but it is not
convinced that that belief is reasonable. Plaintiffs have had
their opportunity to be heard and have failed to demonstrate
that their motion was substantially justified. Accordingly,
Correct Health's motion for fees under Rule 37 is
considering a request for legal fees, the Court must
determine whether the hourly rate charged by counsel is
reasonable and whether counsel exercised proper billing
judgment by only billing for hours reasonably expended.
Norman v. Housing Auth. of Montgomery, 836 F.2d
1292, 1299 (11th Cir. 1988). Correct Health has not yet
submitted its demand to the Court for an award of legal fees.
See doc. 56 at 4-5.
plaintiffs are ORDERED to confer with
Correct Health within 14 days of service of this Order as to
its demand for legal fees to compensate the costs of
preparing its response to the motion. Plaintiffs shall file a
notice of stipulation to fees with the Court, or, if no
agreement can be reached, Correct Health shall file evidence
of its fees with the Court, within 21 days of service of this
Order. In the event that further briefing on the
reasonableness of the fees ...