Papa v. Munster Real Estate Venture, LLC

• Decision Date: 12 May 2014
• Docket Number: 2:12-cv-389
• Parties: SAM AND PATRICIA PAPA, HUSBAND AND WIFE, Plaintiffs, v. MUNSTER REAL ESTATE VENTURE, LLC, Defendant.
• Court: U.S. District Court — Northern District of Indiana

SAM AND PATRICIA PAPA, HUSBAND AND WIFE, Plaintiffs, v. MUNSTER REAL ESTATE VENTURE, LLC, Defendant.

2:12-cv-389

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

ENTERED: May 12, 2014

OPINION AND ORDER

This matter is before the court on the Verified Statement of Costs [DE 21] filed by the plaintiffs on February 24, 2014, and the Motion for Summary Judgment [DE 24] filed by the defendant, Munster Real Estate Venture, LLC, on March 31, 2014. For the following reasons, the Verified Statement of Costs [DE 21] is GRANTED, and the Motion for Summary Judgment [DE 24] is DENIED.

Background

On April 20, 2011, the plaintiff, Patricia Papa, attended a doctor's appointment on the property owned by the defendant, Munster Real Estate Venture, LLC. A ramp ran from the sidewalk to the asphalt parking lot. The raised edge on either side of the ramp was six inches above the walking surface of the ramp on the west end, where the ramp met the parking lot, and consistently sloped down to become flush with the ramp on the east end, where the ramp met the sidewalk. The Americans with Disabilities Act standard for accessible design allows a 1:50 cross slope, which this ramp exceeded.

As Papa was leaving her appointment, she saw an elderly man with a cane three-quartersof the way down the ramp and became distracted. Papa testified that:

A: Then suddenly I hit the bump on this curb by the side and that's where I fell.

Q: Do you remember what happened to your feet as you were falling? Did you feel your toe stub or anything like that?

A. No. Suddenly I was just going down.

[Papa Dep., p. 17-18]

Q: Why would you have stepped over then to the left, do you know?

* * *

A. No. I was just — I didn't really step to the right. I wasn't going over the bump. I was just — I mean, it's — you don't know where — you don't really walk right down the center. I saw him and suddenly I hit the curb there.

[Papa Dep., p. 19]

Q: Where were you looking when your foot struck the side of the ramp?

A: I don't know, just —

A: I don't know. It just all happened so fast. I was walking out and that was it. I really don't remember.

[Papa Dep., p. 34-35].

On January 1, 2014, the plaintiffs filed a motion to compel production of certain documents from Munster Real Estate. When Munster Real Estate did not respond, the plaintiffs filed a motion for summary ruling on January 29, 2014. Munster Real Estate represents that the day before the plaintiffs filed their motion for summary ruling it turned over the documents sought in the motion to compel.

Due to the delay in producing the documents, the plaintiffs also sought to extend the discovery deadline. The plaintiffs explained that they could not conduct a meaningful deposition without the documents. The court granted the plaintiffs' motion to extend the discoverydeadline, motion for summary ruling, and motion to compel, and directed the plaintiffs to file a statement of the costs incurred "prosecuting the Motion to Compel Discovery." [DE 17] The plaintiffs submitted their statement on February 24, 2014, asking in relevant part to be compensated for .4 hour spent preparing the motion for summary ruling and 1 hour preparing the motion for extension of the discovery deadline. Munster Real Estate objects to these costs and moves for summary judgment, arguing that the plaintiffs cannot establish the cause of Patricia Papa's injuries.

Discussion

The parties first dispute the amount of recoverable attorney's fees the defendant owes pursuant to the court's February 10, 2014 Order granting the plaintiffs' motion to compel and awarding fees. The recoverable fees are limited to the reasonable fees that an attorney would charge a client. Bowerman v. Wal-Mart Stores, Inc., 2000 U.S. Dist. LEXIS 21616, at * 3 (S.D. Ind. Nov. 30, 2000). The court will consider whether the costs reportedly incurred in making the motion were reasonably necessary by evaluating the reasonableness of the time spent preparing the motion and the rates charged. Equal Employment Opportunity Commission v. Accurate Mechanical Contractors, Inc., 863 F.Supp. 828, 834 (E.D. Wis. 1994).

The parties dispute whether the plaintiffs can recover for the hour spent preparing the motion to extend discovery and the .4 hour billed for preparing the motion for summary ruling. The court's order granting attorney's fees directed the plaintiffs' counsel to file a statement of the "costs incurred in prosecuting the Motion to Compel Discovery". The motion for summary ruling certainly was incurred in the process of prosecuting the motion to compel as it sought afavorable ruling on the plaintiffs' motion to compel in light of Munster Real Estate's failure to respond. Munster Real Estate contends that the motion was unnecessary because it turned over the documents sought in the motion to compel the day before the motion for summary ruling was filed. However, it did not moot the motion to compel when Munster Real Estate turned over the documents because the plaintiffs' request for attorney's fees remained pending. The court finds that the time billed for preparing the motion for summary ruling was within the scope of the fees the court authorized.

The plaintiffs' motion to extend the discovery deadline was based entirely upon Munster Real Estate's failure to produce the documents sought in the plaintiffs' motion to compel. Although the costs were not incurred in prosecuting the motion to compel, they were derivative of Munster Real Estate's failure to turn over the discovery in a timely fashion. It would be unfair for the plaintiffs to incur the cost as a result of Munster Real Estate's failure to abide by its obligations. For this reason, the court will allow the plaintiffs to recover the fees associated with their motion to extend the discovery deadline. The plaintiffs' motion [DE 21] is GRANTED and Munster Real Estate is DIRECTED to pay attorney's fees and costs in the amount of $990.00.

Munster Real Estate moves for summary judgment on the plaintiffs' claims, arguing that the plaintiffs cannot establish causation. Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper only if it is demonstrated that "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548 , 91 L. Ed. 2d 265 (1986); Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7^th Cir. 2012); Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009). Theburden is upon the moving party to establish that no material facts are in genuine dispute, and any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Company, 398 U.S. 144, 160, 90 S. Ct. 1598, 1610, 26 L. Ed.2d 142, 155 (1970); Stephens, 569 F.3d at 786. A fact is material if it is outcome determinative under applicable law. There must be evidence on which the jury could reasonably find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986); Stephens, 569 F.3d at 786; Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). However, summary judgment may be entered against the non-moving party if it is unable to "establish the existence of an essential element to [the party's] case, and on which [that party] will bear the burden of proof at trial . . .". Kidwell, 679 F.3d at 964 (citing Benuzzi v. Bd. of Educ., 647 F.3d 652, 662 (7th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Summary judgment is inappropriate for determination of claims in which issues of intent, good faith, and other subjective feelings play dominant roles. Ashman v. Barrows, 438 F.3d 781, 784 (7th Cir. 2006). Upon review, the court does not evaluate the weight of the evidence, judge the credibility of witnesses, or determine the ultimate truth of the matter; rather, the court will determine whether there exists a genuine issue of triable fact. Wheeler, 539 F.3d at 634 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986)).

In deciding a motion for summary judgment, the trial court must determine whether the evidence presented by the party opposed to the summary judgment is such that a reasonable jury might find in favor of that party after a trial.

The inquiry performed is the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

[T]his standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986).

See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149-51, 120 S.Ct. 2097, 2109, 147 L. Ed.2d 105, 120-22 (2000) (setting out the standard for a directed verdict); Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. at 2553; Stephens, 569 F.3d at 786; Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)(stating that a genuine issue is one on which a reasonable fact finder could find for the nonmoving party); Springer v. Durflinger, 518 F.3d 479, 483 (7th Cir. 2008)(stating that a genuine issue exists and summary judgment is inappropriate if there is sufficient evidence for a jury to return a verdict for the nonmoving party).

The elements that a plaintiff must prove to succeed on a negligence claim in Indiana are (1) a duty owed to the plaintiff, (2) a breach of that duty by the defendant, and (3) the breach proximately caused the plaintiff's damages. Bond v. Walsh & Kelly, Inc., 869 N.E.2d 1264, 1266 (Ind. App. 2007) (citing ...