EAST ST. LOUIS – Trailer maker Cottrell Inc. owes car hauler Gary Ellenberger $2,718.76 and their lawyers both owe the court greater respect, according to U.S. District Judge David Dugan.
Dugan sanctioned Cottrell for misconduct in discovery on Dec. 9, and warned that he would sanction both sides if their behavior continues.
He found it difficult to interpret their conduct as anything short of an expression of disregard for rules and orders.
They failed to follow his orders three times.
Amy Lorenz-Moser of Town and Country, Mo. represents Cottrell.
Brian Wendler of Edwardsville represents Ellenberger, who sued Cottrell at St. Clair County circuit court in 2018.
Wendler alleged that Ellenberger sustained severe shoulder injuries when he tried to tighten a strap on a Cottrell rig in 2017.
Cottrell removed the complaint to district court in 2019, asserting diverse jurisdiction as a Georgia citizen.
Wendler served 76 discovery requests and Lorenz-Moser answered five months later with objections.
Wendler drafted a motion to compel answers and sent it to Lorenz-Moser, but Wendler didn’t file it in court.
They didn’t hold a mandatory meeting on discovery until this February.
Wendler moved to compel answers on April 7.
At a hearing a day later, Dugan gave them two weeks to meet and submit a discovery report bearing both signatures.
He gave Lorenz-Moser three weeks to reply to Wendler’smotion.
Magistrate Judge Gilbert Sison presided over a settlement conference on April 22, and set another conference June 15.
Dugan received a response to Wendler’s motion and on May 3, he once again gave the parties two weeks to submit a joint report.
He directed them to identify unresolved issues and pertinent objections that might require rulings prior to the settlement conference.
They didn’t file anything, and the conference ended without agreement.
Sison held another conference in September, and it ended without agreement.
In October, Dugan set a hearing “to decide if an award of attorney’s fees is merited.”
At the hearing, on Oct. 14, Wendler requested a sanction of $11,328.16.
That amount represented 28.2 hours at $400 per hour plus $48.16 for mileage.
Dugan took it under advisement and gave the parties a week to propose a scheduling order.
Cottrell proposed one and Ellenberger proposed two, for their third joint violation of Dugan’s orders for joint action.
Dugan awarded sanctions but sharply reduced the amount, finding Wendler’s own conduct caused most of his extra expense.
He sustained 58 of Cottrell’s objections, finding Wendler s interrogatories and production requests overly broad and confusing.
He overruled 18 objections for attorney client privilege, finding Cottrell didn’t submit a privilege log and he couldn’t assess whether the privilege was true.
He found 18 successful objections out of 76 represented about 24 percent, so he multiplied Wendler’s bill by that number and came up with $2,718.76.
“Counsel in this case have opposed each other in a number of similar matters over the years,” he wrote.
“From comments by counsel, it is evident that discovery disputes are not foreign to them.
“The seriousness of the sanctions here should reflect, at least in part, the level of judicial resources that have been marshaled to address disputes that were readily resolvable with even a modicum of meaningful effort.”
He reserved ruling on application of appropriate sanctions.
He has set trial May 16.