File Unjustified Motion for Protective Order Based on Motion to Dismiss, Pay Other Party’s Attorney’s Fees

On September 27, 2016, Judge Godbey issued an Order (available here) in Nu-You Technologies v. Eltoweissy. The plaintiff filed a motion for attorney’s fees, seeking about $4,500 to compensate it for the fees incurred in responding to defendants’ motion for a protective order. Under Federal Rule 37, the Court can award attorney’s fees to the party who prevailed on a motion for a protective order, unless the motion was substantially justified. Judge Gobey wrote:

In this case, the Defendants’ motion for a protective order sought to stay the case until the Court ruled on the Defendants’ pending motion to dismiss. Courts have repeatedly rejected this argument. See, e.g., Glazer’s Wholesale Drug Co. v. Klein Foods, Inc., 2008 WL 2930482, at *1 (N.D. Tex. 2008) (“The court declines to stay discovery merely because defendant believes it will prevail on its motion to dismiss.”); Ford Motor Co. v. U.S. Auto Club, Motoring Div., Inc., 2008 WL 2038887, at *1 (N.D. 2008) (“such a stay is the exception rather than the rule”). Nor do the Defendants offer a compelling argument to the contrary. Thus, the Court finds that the Defendants’ motion for a protective order was not substantially justified.

The Court provided that Defendants had 30 days to pay the $4,500.

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