Case 1:22-cv-02246-JPH-MKK Document 376 Filed 10/04/24 Page 1 of 22 PageID #:

7090

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

RENEE GABET and )

)
ANNIE OAKLEY ENTERPRISES, INC.,
)
) No. 1:22-cv-02246-JPH-MKK
Plaintiffs,
)
)
-vs.-
)
)
AMAZON.COM, INC., and
)
JOHN DOES 1-50,
)
Defendants. )
)

BRIEF IN SUPPORT OF MOTION FOR FEES INCURRED BY

AMAZON.COM, INC. IN MOVING FOR A PROTECTIVE ORDER (DKT. 334)
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TABLE OF CONTENTS

Page(s)

INTRODUCTION ------------------------------------------------------------------------------------------- 1

BACKGROUND--------------------------------------------------------------------------------------------- 2

I. PLAINTIFFS NOTICED AMAZON’S DEPOSITION AT

THEIR COUNSEL’S OFFICE IN GREENFIELD, FAR FROM AMAZON ---------- 2

II. AMAZON REQUESTED PLAINTIFFS TO RECONSIDER --------------------------- 2

III. AMAZON’S OPENING BRIEF PREEMPTIVELY

ADDRESSED PLAINTIFFS’ ARGUMENTS --------------------------------------------- 2

IV. THE COURT GRANTED AMAZON’S MOTION

BEFORE AMAZON FILED A REPLY BRIEF ------------------------------------------- 3

V. AMAZON’S $47,155 IN FEES FOR ITS MOTIONS ------------------------------------ 3

VI. PLAINTIFFS REJECTED AMAZON’S COMPROMISE

OFFER THAT WOULD HAVE AVOIDED THIS
MOTION AND ITS RELATED FEES ------------------------------------------------------ 4

ARGUMENT ------------------------------------------------------------------------------------------------- 4

I. RULE 37 PROVIDES FOR PRESUMPTIVELY MANDATORY FEE-SHIFTING

FOR SUCCESSFUL PROTECTIVE ORDER MOTIONS ------------------------------ 4

II. FEE-SHIFTING PRESUMPTIVELY APPLIES BECAUSE THE COURT

GRANTED AMAZON’S MOTION IN ITS ENTIRETY -------------------------------- 5

III. PLAINTIFFS CANNOT MEET THEIR BURDEN

TO SHOW A FEE-SHIFTING EXCEPTION APPLIES --------------------------------- 5

A. Amazon Conferred in Good Faith Before Moving ------------------------- 5

B. Plaintiffs’ Opposition Was Not Substantially Justified -------------------- 6

1. “Substantially Justified” Requires a Genuine Dispute ----------------- 6

a) The Meaning of “Substantially Justified” ------------------------- 6

b) No Substantial Justification in Similar Cases -------------------- 7

2. Plaintiffs Arguments Did Not Present a Genuine Dispute ------------ 8

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a) The Right to Notice Depositions Anywhere Does Not Include

the Right to be Unreasonable -------------------------------------- 8

b) Plaintiffs’ Transfer Argument Did Not

Create a Genuine Dispute------------------------------------------- 8

c) Plaintiffs’ Counterclaims Argument Did

Not Create a Genuine Dispute ------------------------------------ 10

d) Plaintiffs’ Relative Burden Arguments

Did Not Create a Genuine Dispute ------------------------------- 10

e) Plaintiffs’ Reliance on Afram, Sugarhill, and

DeepGulf Did Not Create a Genuine Dispute ------------------- 13

3. Other Circumstances Do Not Make an Award of Fees Unjust ------- 14

C. The Court Should Grant Amazon $47,155 in Reasonable Fees --------- 15

1. The Lodestar Method Is Used to Determine

a Reasonable Fee Award -------------------------------------------------- 15

2. Under the Lodestar Method, Amazon’s

Reasonable Fees Are $47,155 -------------------------------------------- 15

IV. CONCLUSION -------------------------------------------------------------------------------- 16

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TABLE OF AUTHORITIES

Cases: Page(s)

Afram Export Corp. v. Metallurgiki Halyps, S.A.,

772 F.2d 1358 (7th Cir. 1985) -------------------------------------------------------------------------- 13

Annie Oakley Enterprises, Inc. v. Amazon.com, Inc.,

No. 1:19-CV-1732-JMS-MJD, 2021 WL 2373779 (S.D. Ind. June 10, 2021)------------------- 15

DeepGulf, Inc. v. Moszkowski,

330 F.R.D. 600 (N.D. Fla. 2019)------------------------------------------------------------------ 13, 14

Est. of Perry ex rel. Rodgers v. Wenzel,

No. 12-C-664, 2013 WL 4004226 (E.D. Wis. Aug. 5, 2013) ------------------------------------ 7, 8

Gulf Stream Coach Inc. v. Glovia Int’l Inc.,

No. 3:07-CV-513 JTM, 2009 WL 1383796 (N.D. Ind. May 13, 2009) --------------------------- 11

Houston v. C.G. Sec. Servs., Inc.,

820 F.3d 855 (7th Cir. 2016) --------------------------------------------------------------------------- 15

KAI Servs., Inc. v. MES Int’l, Inc.,

No. 1:04CV226, 2006 WL 8455913 (W.D.N.C. Apr. 7, 2006) ------------------------------------- 7

Kelora Sys., LLC v. Target Corp.,

No. C 11-01548 CW (LB), 2011 WL 3895303 (N.D. Cal. Aug. 29, 2011) -------------------- 8, 9

Morin v. Nationwide Fed. Credit Union,

229 F.R.D. 362 (D. Conn. 2005) ----------------------------------------------------------------------- 11

Musser v. Gentiva Health Servs.,

356 F.3d 751 (7th Cir. 2004) ------------------------------------------------------------------------ 7, 14

Operative Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Canada AFL-CIO v. Benjamin,
144 F.R.D. 87 (N.D. Ind. 1992 -------------------------------------------------------------------------- 9

Pierce v. Underwood,
487 U.S. 552 (1988) -------------------------------------------------------------------------------------- 6

Pogue v. Nw. Mut. Life Ins. Co.,

No. 3:14-CV-598-CRS-CHL, 2016 WL 2343898 (W.D. Ky. May 3, 2016)---------------- 11, 12

Rackemann v. LISNR, Inc.,

No. 1:17-CV-00624-MJD-TWP, 2018 WL 3328140 (S.D. Ind. Jul. 6, 2018) ---------------- 7, 12

Rickels v. City of S. Bend, Ind.,

33 F.3d 785 (7th Cir. 1994) ------------------------------------------------------------------------ 1, 2, 4

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Senior Lifestyle Corp. v. Key Benefit Administrators, Inc.,

No. 1:17-CV-02457-JMS-MJD, 2020 WL 3642511 (S.D. Ind. Jul. 6, 2020) --------------------- 6

Struve v. Gardner,
No. 1:19-CV-04581-RLY-MJD, 2020 WL 9601852 (S.D. Ind. Dec. 3, 2020) ------------------- 5

Sugarhill Recs. Ltd. v. Motown Rec. Corp.,

105 F.R.D. 166 (S.D.N.Y. 1985), ----------------------------------------------------------------- 13, 14

Statutes and Rules:

Fed. R. Civ. P. 26 ........................................................................................................................ 4, 5

Fed. R. Civ. P. 37 .......................................................................................................... 1, 4, 5, 6, 14

Other Authorities:

8A Federal Practice and Procedure (Wright & Miller) § 2112 (3d ed.) ----------------------------- 9

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INTRODUCTION

The most reasonable interpretation for why plaintiffs’ counsel insisted that Amazon’s

deposition take place at his office in Greenfield, Indiana, is that he wanted to burden Amazon.

Defendants do not normally bear the burden of appearing for a deposition away from their principal

place of business. Of course, Amazon would seek a protective order if plaintiffs insisted on

Greenfield. Amazon is based across the country in Seattle, Washington. Plaintiffs did not budge,

Amazon filed its motion, and the Court granted it. (Dkt. 347 (the “Order”).) Now, to avoid an

award of fees, plaintiffs must show that they presented a genuine dispute. They must show that,

even though the Court granted Amazon’s motion, a different court in these circumstances might

have exercised its discretion to require Amazon’s deposition in Greenfield.

Plaintiffs cannot meet this burden. Plaintiffs presented no reasonable arguments that would

rebut the established presumption that out-of-state corporations—even large ones—are deposed at

their principal place of business, not any place of business. When plaintiffs noticed Amazon’s

deposition in Greenfield, Amazon explained why it should proceed in Seattle. Amazon responded

to the arguments plaintiffs made in three telephonic conferences and numerous emails. Amazon’s

opening brief preemptively addressed plaintiffs’ arguments. The Court issued the Order granting

Amazon’s motion without waiting for Amazon to file a reply brief.

Plaintiffs should not have burdened Amazon with moving for a protective order, or sapped

judicial resources spent on deciding that motion they forced Amazon to file. Rule 37’s

presumptively mandatory fee-shifting sanction is designed to “deter the abuse implicit in carrying

or forcing a discovery dispute to court when no genuine dispute exists.” Fed. R. Civ. P. 37 advisory

committee’s note to 1970 amendment. Since Amazon’s motion did not turn on a genuine dispute,

the Court should award Amazon its fees under Rule 37’s mandatory fee provisions. It also should

award Amazon its fees for the current motion. See Rickels v. City of S. Bend, Ind., 33 F.3d 785,

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788 (7th Cir. 1994) (awarding successful protective order movant fees for seeking fees because

“[n]othing less will make her whole; anything less would defeat the function of Rule 37(a)(4).”).

BACKGROUND

I. PLAINTIFFS NOTICED AMAZON’S DEPOSITION AT THEIR

COUNSEL’S OFFICE IN GREENFIELD, FAR FROM AMAZON

Plaintiffs’ original complaint acknowledged that Amazon’s principal place of business is

in Seattle. (Dkt. 1 at 3.) Plaintiffs noticed Amazon’s deposition for plaintiffs’ counsel’s office in

Greenfield. (Dkt. 335-5 at 2; Dkt. 335-6 at 2; Dkt. 335-7 at 2.)

II. AMAZON REQUESTED PLAINTIFFS TO RECONSIDER

After plaintiffs emailed their contentions about why the deposition should proceed in

Greenfield, Amazon emailed rebuttal arguments. (Exs. B, C.) 1 Amazon informed plaintiffs that if

Amazon had to move for a protective order, it would seek its fees. (Ex. B.) Amazon further

explained its position to plaintiffs’ counsel in three different telephonic meet and confers. (Hamm

Decl. at ¶ 11.)

III. AMAZON’S OPENING BRIEF PREEMPTIVELY

ADDRESSED PLAINTIFFS’ ARGUMENTS

Amazon’s opening brief seeking a protective order explained why the reasons plaintiffs

provided for a Greenfield deposition lacked merit. Among other things, the brief preemptively

addressed the transfer argument, the counterclaims argument, and the relative burden argument

plaintiffs made in their opposition brief. (Dkt. 336 at 11–16.) 2

1
All exhibits cited herein are exhibits to the accompanying Declaration of Klaus H. Hamm
(“Hamm Decl.”).
2
Page number citations to documents in the Court’s record are to page numbers printed at the top
of the page.

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IV. THE COURT GRANTED AMAZON’S MOTION

BEFORE AMAZON FILED A REPLY BRIEF

The Order granted Amazon’s motion for a protective order in its entirety. Amazon

requested an order that its deposition must proceed in Seattle, and the Court ordered that the

deposition must proceed in Seattle unless Amazon agreed otherwise. (Dkt. 334 at 2; Dkt. 347 at

8.) The Court issued the Order before Amazon filed its rebuttal to plaintiffs’ opposition brief.

V. AMAZON’S $47,155 IN FEES FOR ITS MOTIONS

Amazon expended considerable resources on meeting and conferring with plaintiffs’

counsel regarding their various purported reasons for a Greenfield deposition, and on its motion

for protective order, and it is expending considerable resources on its motion for fees. Amazon is

not requesting that it recover the time spent conferring with plaintiffs in advance of filing its

motions (it does seek to recover time spent on one substantive meet and confer email because

Amazon used significant work product from this email in the protective order motion).

Furthermore, multiple attorneys and a paralegal participated in preparing Amazon’s briefs,

including three outside counsel, one outside paralegal, and one inside counsel, but one attorney

had primary responsibility. Amazon seeks fees for only the time spent by the attorney primarily

responsible for preparing the briefs at the rate of $550 per hour: 3

Brief Hours Rate Amount

Protective Order Opening Brief 30.9 $550 $16,995.00
Protective Order Reply Brief 17.8 $550 $ 9,790.00
Fees Motion Opening Brief 22.2 $550 $12,120.00
Fees Motion Reply Brief (estimated) 4 15.0 $550 $ 8,250.00
TOTAL 85.9 $47,155.00

3
Using the attorney’s standard billing rate of $625 per hour, the fees total $53,687.50.
4
This is an estimate because Amazon has not yet begun to prepare this brief. If the Court requests,
Amazon later will submit billing records for the time spend preparing this brief.

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(Ex. A; Hamm Decl. ¶¶ 8–10.)

VI. PLAINTIFFS REJECTED AMAZON’S

COMPROMISE OFFER THAT WOULD HAVE
AVOIDED THIS MOTION AND ITS RELATED FEES

To avoid further motion practice, Amazon offered to forgo seeking its fees incurred on its

motion for protective order and on its motion for fees in exchange for plaintiffs agreeing to pay a

portion ($15,000) of Amazon’s total estimated fees ($50,000). (Ex. E; Hamm Decl., ¶ 13.) Amazon

made this proposal a week in advance of this filing and gave plaintiffs until 12 pm E.T. on

October 3, 2024, to accept Amazon’s proposed compromise. (Ex. E; Hamm Decl., ¶ 13.) But

plaintiffs did not agree.

ARGUMENT

I. RULE 37 PROVIDES FOR PRESUMPTIVELY

MANDATORY FEE-SHIFTING FOR
SUCCESSFUL PROTECTIVE ORDER MOTIONS

Presumptively mandatory fee-shifting requires the Court to award Amazon its fees for

prevailing on its motion for protective order under Rule 26(c). Rule 26(c)(3) provides that “Rule

37(a)(5) applies to the award of expenses.” Rule 37(a)(5)(A) controls an award of fees when a

protective order motion is granted. It provides a mandatory-fee-award presumption: “If the motion

is granted … the court must, after giving an opportunity to be heard, require the party or deponent

whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay

the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” See

also Rickels, 33 F.3d at 786 (“Rule 37(a)(4) [later re-styled as Rule 37(a)(5)] presumptively

requires every loser to make good the victor’s costs”).

Rule 37(a)(5)(A)’s second sentence provides exceptions for rebutting the presumption:

“the court must not order this payment if: (i) the movant filed the motion before attempting in good

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faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s

nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make

an award of expenses unjust.” Under Rule 37(a)(5) fee-shifting, the “burden of persuasion is on

the losing party to avoid assessment of fees, rather than on the winning party to obtain such an

award.” Struve v. Gardner, No. 1:19-CV-04581-RLY-MJD, 2020 WL 9601852, at *1 (S.D. Ind.

Dec. 3, 2020) (quoting Malibu Media, LLC v. Harrison, No. 1:12-CV-01117-WTL-MJD, 2014

WL 5392097, at *1 (S.D. Ind. Oct. 23, 2014)).

II. FEE-SHIFTING PRESUMPTIVELY APPLIES BECAUSE THE

COURT GRANTED AMAZON’S MOTION IN ITS ENTIRETY

Rule 37(a)(5)(A)’s mandatory-fee-shifting presumption applies because the Court granted

Amazon’s motion for a protective order. (Dkt. 347.) As a result, the Court now must grant plaintiffs

an opportunity to be heard. Plaintiffs, their counsel, or both must pay Amazon’s reasonable

attorney fees unless they meet their burden of showing that one of the fee-shifting exceptions

apply. See Fed. R. Civ. P. 26(c); Fed. R. Civ. P. 37(a)(5)(A).

III. PLAINTIFFS CANNOT MEET THEIR BURDEN

TO SHOW A FEE-SHIFTING EXCEPTION APPLIES

A. Amazon Conferred in Good Faith Before Moving

The first Rule 37(a)(5)(A) fee-shifting exception is “the movant filed the motion before

attempting in good faith to obtain the [requested relief] without court action.” 5 Amazon met and

conferred by telephone three times with plaintiffs prior to moving to try to obtain its agreement

that its deposition should proceed in Seattle rather than Greenfield, where plaintiffs noticed it.

(Hamm Decl. ¶ 11.) Amazon also sent plaintiffs numerous emails addressing their arguments.

5
The rule text is modified above for the protective order context. The actual text is “the movant
filed the motion before attempting in good faith to obtain the disclosure or discovery without court
action.”

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(Exs. B, C.) Amazon also informed plaintiffs it would seek to recover its fees if it had to move for

a protective order and the Court granted it. (Ex. B.) Amazon also met and conferred with plaintiffs

before filing the current motion and offered to compromise. (Ex. D, E; Hamm Decl. ¶ 13.)

B. Plaintiffs’ Opposition Was Not Substantially Justified

The second Rule 37(a)(5)(A) fee-shifting exception is “the opposing party’s [request] was

substantially justified.” 6 Plaintiffs presented no argument that created a genuine dispute that

Amazon should face the burden of sitting for a deposition away from its principal place of business

under this case’s circumstances, so plaintiffs cannot meet their burden to show that this exception

applies to relieve plaintiffs of their obligation to pay Amazon’s fees.

1. “Substantially Justified” Requires

a Genuine Dispute

a) The Meaning of
“Substantially Justified”

The Rule 37(a)(5) advisory committee notes to the rule’s 1970 amendment provide a

definition of “substantially justified”:

On many occasions, to be sure, the dispute over discovery between

the parties is genuine, though ultimately resolved one way or the
other by the court. In such cases, the losing party is substantially
justified in carrying the matter to court.

Thus, for this exception, the losing party must show that “reasonable people could disagree about

the proper outcome of the motion.” Senior Lifestyle Corp. v. Key Benefit Administrators, Inc.,

No. 1:17-CV-02457-JMS-MJD, 2020 WL 3642511, at *2 (S.D. Ind. Jul. 6, 2020).

A genuine dispute means the opposing party had a reasonable position, which requires

more than presenting a merely non-frivolous argument. Pierce v. Underwood, 487 U.S. 552, 565

(1988) (“To be ‘substantially justified’ means, of course, more than merely undeserving of

6
The rule text is modified above for the protective order context. The actual text is “the opposing
party’s nondisclosure, response, or objection was substantially justified.”

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sanctions for frivolousness.”). A party’s position is not substantially justified when it is contrary

to “well-established legal principles.” Rackemann v. LISNR, Inc., No. 1:17-CV-00624-MJD-TWP,

2018 WL 3328140, at *3 (S.D. Ind. Jul. 6, 2018); Musser v. Gentiva Health Servs., 356 F.3d 751,

758 (7th Cir. 2004) (a “misunderstanding of the law does not equate to a substantial justification”).

b) No Substantial Justification
in Similar Cases

Various district courts have awarded fees against plaintiffs who notice their opponents’

witnesses’ depositions in locations other than where the witnesses are located. In Est. of Perry ex

rel. Rodgers v. Wenzel, No. 12-C-664, 2013 WL 4004226 (E.D. Wis. Aug. 5, 2013), the plaintiffs

noticed the depositions of the defendant Milwaukee city and county employees at plaintiffs’

counsel’s offices in Pewaukee city outside of Milwaukee County. The opinion held, “[t]he

convenience of plaintiffs’ counsel cannot trump the convenience of the witnesses he seeks to

depose.” Id. at *1. And because the plaintiffs presented “no compelling reason to depart from the

usual practice, and the traditional common courtesy, that ‘a party seeking discovery must go where

the desired witnesses are normally located,’” the opinion awarded fees against the plaintiffs. Id.

(quoting Yaskawa Elec. Corp. v. Koomorgen Corp., 201 F.R.D. 443, 444 (N.D. Ill. 2001)).

Similarly, in KAI Servs., Inc. v. MES Int’l, Inc., No. 1:04CV226, 2006 WL 8455913, at *6

(W.D.N.C. Apr. 7, 2006), the Court awarded defendants their fees for bringing a motion for a

protective order requiring their depositions to take place where they are located. The opinion held,

“[a]pplication of the proper legal rules to the facts of this case by a ‘reasonable person,’ … would

clearly indicate that the depositions … should be conducted in Moscow [Russia] and California,

respectively, rather than in Charlotte.” Id. (awarding fees where defendants also provided plaintiff

with relevant authority, requested plaintiff to amend deposition location, and informed plaintiff

they would seek fees if forced to move).

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2. Plaintiffs Arguments Did Not Present a

Genuine Dispute

a) The Right to Notice

Depositions Anywhere Does
Not Include the Right to be
Unreasonable

Yes, it is true that there is no Federal Rule of Civil Procedure expressly addressing a party’s

deposition location. So, yes, it is possible to notice a party’s deposition anywhere, including the

moon, without automatically breaking a rule. But the absence of an express rule does not make all

deposition locations reasonable. A party should not insist on an unreasonable deposition location.

The well-established legal principle that a corporate defendant’s deposition takes place at its

principal place of business makes it unreasonable to insist on a deposition elsewhere, absent a good

reason. Just because nothing expressly forbade plaintiffs from noticing Amazon’s deposition

anywhere does not mean they created a genuine dispute by noticing it at their own counsel’s office.

See, e.g., Est. of Perry, 2013 WL 4004226 at *1 (plaintiffs’ insistence on deposing defendants at

plaintiffs’ counsel’s office not substantially justified).

b) Plaintiffs’ Transfer
Argument Did Not Create a
Genuine Dispute

Plaintiffs’ argument that Amazon’s motion to transfer to the Southern District means it

must be deposed there was not substantially justified. Amazon’s opening brief explained this

action’s transfer remedied plaintiffs’ “obvious forum-shopping,” not witness inconvenience, and

the Court should “reject plaintiffs’ latest attempt to benefit from its obvious forum-shopping.”

(Dkt. 336 at 12 (quoting Dkt. 45 at 11).) The Order agreed: “Plaintiffs do not now get to use their

forum-shopping to their benefit.” (Dkt. 347 at 5.) Amazon’s opening brief relied on Kelora Sys.,

LLC v. Target Corp., No. C 11-01548 CW (LB), 2011 WL 3895303 (N.D. Cal. Aug. 29, 2011), as

the court in that case “den[ied] plaintiff’s attempt to depose Dell in California, which is not its

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principal place of business, even though Dell moved to transfer to California because ‘the motion

to transfer was based on factors other than convenience or expense.’” (Dkt. 336 at 12.)

In opposition, rather than address Amazon’s arguments, plaintiffs simply repeated their

initial transfer motion argument, as if a motion for transfer, no matter the reason, waives

deposition-location objections. (Dkt. 345 at 4.) To bolster this audacious argument, Plaintiffs’

opposition substantively altered quotations:

It is “well-established that a [party] having selected a particular

forum for the adjudication of his case should be prepared to answer
a notice of deposition in that locality.” Operative Plasterers’ &
Cement Masons’ Int’l Ass’n of U.S. & Canada AFL-CIO v.
Benjamin, 144 F.R.D. 87, 91 (N.D. Ind. 1992).

(Id. (alteration in plaintiffs’ brief).) Instead, Operative Plasters’ states that when a “plaintiff” (not

“party”) selects a forum, it should be deposed there. 144 F.R.D. at 91. It does not support plaintiffs’

argument because Amazon is not the plaintiff. 7

Besides, transfer was sought to this District only because plaintiffs previously filed here:

Amazon did not choose this forum in the first dispute between the parties. And, in requesting

transfer to this district, Amazon sought only to leverage this Court’s prior experience in dealing

with plaintiffs and the discovery issues it feared might again be presented, concerns which have

unfortunately proved all too warranted.

Thus, Plaintiffs tried to leverage their own forum shopping, did not address Amazon’s

opening brief’s persuasive arguments about transfer, and substantively altered quotations.

Plaintiffs’ transfer argument did not present a genuine dispute.

7
Plaintiffs’ brief also states: “8A Wright, Miller & Marcus, Federal Practice and Procedure: Civil
2d § 2112 (“Since [party] has selected the forum, he or she will not be heard to complain about
having to appear there for a deposition.”).” (Dkt. 345 at 5 (alteration in plaintiffs’ brief).) The
second edition, quoted by plaintiffs, was published in 1994 and superseded in 2010. The third
edition uses “plaintiff,” not “party.” 8A Federal Practice and Procedure (Wright & Miller) § 2112
(3d ed.).

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c) Plaintiffs’ Counterclaims
Argument Did Not Create a
Genuine Dispute

Plaintiffs’ argument that Amazon should be deposed in the Southern District because it

filed counterclaims there did not create a genuine dispute. Amazon’s opening brief observed that

its counterclaims mirror its defenses. (Dkt. 336 at 14–15.) The Court agreed that Amazon’s

counterclaims “overlap significantly with its defenses.” (Dkt. 347 at 5.) Amazon’s opening brief

argued most of plaintiffs’ deposition topics are not directed to Amazon’s cancellation

counterclaims. (Dkt. 336 at 13–14.) Again, the Court agreed that “a vast majority of Plaintiffs’

deposition topics are directed to Plaintiffs’ claims, not Amazon’s counterclaims.” (Dkt. 347 at 5.)

Plaintiffs’ opposition did not even attempt to rebut the above arguments, which the Court

found persuasive. Instead, plaintiffs’ brief relied on an irrelevant prior Court order striking

Amazon’s trial counsel’s name from plaintiffs’ trial witness list (Dkt. 345 at 11 (quoting Dkt. 140

at 4)), which the Order granting fees notes “does not hold (or even suggest) what Plaintiffs seek

here: a requirement that said deposition be held in Southern Indiana.” (Dkt. 347 at 8 (discussing

Dkt. 140).) Plaintiffs also focused on whether Amazon’s cancellation counterclaims are permissive

or compulsory without addressing the case Amazon’s opening brief cited showing this issue is not

determinative. (Dkt. 336 at 10 (citing Chris-Craft Indus. Prod., Inc. v. Kuraray Co., 184 F.R.D.

605, 608 (N.D. Ill. 1999)).) Thus, plaintiffs’ reliance on Amazon’s counterclaims did not create a

genuine dispute.

d) Plaintiffs’ Relative Burden

Arguments Did Not Create
a Genuine Dispute

Plaintiffs’ argument that plaintiffs would have had a relatively greater burden deposing

Amazon in Seattle than Amazon would have had by appearing in Greenfield did not create a

genuine dispute. Plaintiffs’ relative travel burden argument made unreasonable arguments about

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both sides’ burdens. Plaintiffs argued Amazon’s travel burden is small by quoting a prior Court

order out of context to support their contention that the Court previously decided that missing

multiple days of work due to travel is not burdensome. (Dkt. 345 at 7 (quoting Dkt. 230 at 4).)

Plaintiffs argued their travel burden is big by incorrectly relying on the premise that they

themselves must travel for Amazon’s deposition in Seattle. (Dkt. 345 at 4–5, 7 (Amazon seeks “to

force the counter-defendant to travel across the country to depose the counter-plaintiff’s 30(b)(6)

representative;” considering burden “[i]f Plaintiffs and their counsel travelled to Seattle”).)

Instead, only plaintiffs’ counsel must travel, which is a relatively insignificant burden. See, e.g.,

Dkt. 347 at 4 (“if the depositions occur in Seattle, only Plaintiff’s counsel needs to make the cross-

country trip”); Morin v. Nationwide Fed. Credit Union, 229 F.R.D. 362, 363 (D. Conn. 2005)

(“travel for depositions is expected for litigators”); Gulf Stream Coach Inc. v. Glovia Int’l Inc.,

No. 3:07-CV-513 JTM, 2009 WL 1383796, at *2 (N.D. Ind. May 13, 2009) (“such trips are

relatively routine for lawyers engaged in federal litigation”); Pogue v. Nw. Mut. Life Ins. Co., No.

3:14-CV-598-CRS-CHL, 2016 WL 2343898, at *4 (W.D. Ky. May 3, 2016) (“the fact that

traveling to Milwaukee for the deposition may be inconvenient and expensive for Pogue (should

he choose to attend) and his counsel, is unpersuasive”).

Plaintiffs ignored that plaintiffs often sue large corporations in federal courts remote from

the corporation’s principal place of business, but the presumption of principal place of business

depositions remains well-established. The Order highlights the argument’s unreasonableness,

stating, “[b]y Plaintiffs’ logic, Amazon would be required to provide witnesses in any forum in

any federal case due to its connections in every state.” (Dkt. 347 at 5) See also Pogue, 2016 WL

2343898, at *3–4 (W.D. Ky. May 3, 2016) (if “difference in available funds for travel were

sufficient to overcome the presumption, then the rule requiring depositions to take place at the

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corporation’s principal place of business would never have arisen … party with fewer financial

resources [would] automatically hav[e] power to compel the party with greater financial resources

to succumb to its choice of deposition locations”), objections overruled, No. 3:14-CV-00598-CRS,

2016 WL 9779798 (W.D. Ky. June 16, 2016). Plaintiffs’ focus on Amazon’s Indiana presence did

not create a genuine dispute because it is contrary to the “well-established legal principle[]” that

the depositions of even large corporate defendants generally occur at their principal place of

business. Rackemann, 2018 WL 3328140, at *3 (S.D. Ind. July 6, 2018) (party’s position not

substantially justified when contrary to “well-established legal principles”).

Plaintiffs’ argument about Amazon’s Indiana presence is also unreasonable because it

requires forfeiture of Amazon’s right to select its own deposition designees. As the Order noted, a

“corporation, including Amazon, is under no obligation to designate any individual just for

convenience of Plaintiffs.” (Dkt. 347 at 7.) Plaintiffs’ brief also fails to identify any Amazon

employees who could possibly testify, making their argument even more unreasonable. As the

Order noted with rhetorical understatement, the “Court is not convinced that it would necessarily

be reasonable to require Amazon to prepare one of its warehouse or delivery center employees to

testify about these topics[.]” (Id.)

Plaintiffs also misstated Amazon’s Indiana presence. Plaintiffs repeatedly claimed Amazon

has 29 “offices” in Indiana (Dkt. 345 at 3, 7, 8), but these facilities are fulfillment centers,

warehouses, distribution centers, and grocery stores. (Dkt. 335-1 at ¶ 3.) Plaintiffs’ argument that

Amazon is “essentially the fifth largest company in Indiana,” was based on illogical methodology

that compares Amazon’s current and future investment in Indiana with the current market

capitalization of Indiana companies. (Dkt. 345 at 9.) Plaintiffs’ brief argued that “Amazon … in

Indiana … has $32,500,000,000 in investments,” but this present-tense contention included

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projected future investments. (Dkt. 345 at 3, 8–9.) Plaintiffs argued Amazon has been a party in

34 federal Indiana cases and 553 Indiana state cases since 2020, but this argument is based on

inaccurate lists that plaintiffs created but did not doublecheck. 8 (Id. at 9.) Finally, plaintiffs argued

Amazon is entitled “to a ‘$150 million’ incentive from the State of Indiana,” but cited a source

that does not support this argument. (Id. at 9 (boldface in original) (citing 345-1).)

Plaintiffs’ relative burden argument did not create a genuine dispute. It was based upon:

misstating the Court’s prior ruling about deposition burden, the premise that plaintiffs rather than

their counsel must travel, logic contrary to a well-established legal principle, and stripping Amazon

of its right to select its deposition designees. It was also based on misstating facts about Amazon’s

presence in Indiana.

e) Plaintiffs’ Reliance on
Afram, Sugarhill, and
DeepGulf Did Not Create a
Genuine Dispute

The cases plaintiffs’ opposition relied upon did not create a genuine dispute because they

do not even arguably apply here. The Court’s Order notes that Afram Export Corp. v. Metallurgiki

Halyps, S.A., 772 F.2d 1358 (7th Cir. 1985), is about a “foreign corporation which was seeking to

depose its own president in Greece.” (Dkt. 347 at 5.) Afram does not create a genuine dispute

because, unlike Afram, Amazon’s protective order motion involved a standard, domestic discovery

situation, not a foreign trial-testimony deposition.

The opinion in Sugarhill Recs. Ltd. v. Motown Rec. Corp., 105 F.R.D. 166 (S.D.N.Y.

1985), issued from a district court with a Local Rule 15 that a party seeking to locate a deposition

8
For example, Amazon is not a party in the very first case on plaintiffs’ list of federal court cases
in which Amazon is supposedly a party. (Dkt. 345-7.) Similarly, just a cursory glance through
plaintiffs’ list of state court cases in which Amazon is supposedly a party (Dkt. 345-6) indicates
that Nos. 50, 81, 208 are cases that do not involve Amazon or an Amazon affiliate, which is easily
confirmed by reviewing the records for those cases on https://public.courts.in.gov/mycase.

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far from the courthouse may have to pay opposing counsel’s expenses. The Court’s Order notes

that Sugarhill’s rationale of minimizing collective travel time “supports the Court’s decision here,

where it is more convenient and efficient to have Plaintiffs’ counsel travel to Seattle as opposed to

having Amazon’s three witnesses as well as their attorney(s) travel to Indiana.” (Dkt. 347 at 6.)

Sugarhill does not create a genuine dispute because it involves a unique, inapplicable local rule

and is supported by a rationale that favors Amazon’s position.

Finally, DeepGulf, Inc. v. Moszkowski, 330 F.R.D. 600, 608 (N.D. Fla. 2019), considers a

local rule favoring place of trial depositions that does not exist in this Court. The Court’s Order

notes that plaintiffs “fail to realize” that Deepgulf also “explains the exceptions to that rule and the

relevant factors a court would examine to decide the location of the deposition.” (Dkt. 347 at 6.)

Deepgulf does not create a genuine dispute because it involves a unique, inapplicable local rule

and includes an explanation that plaintiffs failed to realize. See, e.g., Musser, 356 F.3d at 758

(Seventh Circuit opinion affirming Rule 37(c)(1) sanction, similarly requiring a showing of

substantial justification, because “misunderstanding of the law does not equate to a substantial

justification” for the losing party’s position).

3. Other Circumstances Do Not Make an

Award of Fees Unjust

Finally, the third Rule 37(a)(5)(A) fee-shifting exception is “other circumstances make an

award of expenses unjust.” The parties have conferred, and plaintiffs have not come forward with

any other explanation that an award of fees would be unjust. Plaintiffs contend only that their

positions were reasonable. But, as addressed above, plaintiffs’ positions were unreasonable and

did not create a genuine dispute. Plaintiffs cannot meet their burden to show that this exception

applies.

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C. The Court Should Grant Amazon $47,155 in

Reasonable Fees

1. The Lodestar Method Is Used

to Determine a Reasonable Fee Award

This Court uses the lodestar method to determine fee award amounts and has done so in

this case and in prior litigation between plaintiffs and Amazon. See Dkt. 346 at 14–16; Annie

Oakley Enterprises, Inc. v. Amazon.com, Inc., No. 1:19-CV-1732-JMS-MJD, 2021 WL 2373779,

at *10 (S.D. Ind. June 10, 2021) (“no support for Plaintiffs’ position that the lodestar method may

not be used to determine attorneys’ fees, even where flat fee arrangements may set a ceiling on

recoverable fees”). The lodestar method is “a computation of the reasonable hours expended

multiplied by a reasonable hourly rate.” Houston v. C.G. Sec. Servs., Inc., 820 F.3d 855, 859 (7th

Cir. 2016) (quoting Divane v. Krull Elec. Co., 319 F.3d 307, 317–18 (7th Cir. 2003)).

2. Under the Lodestar Method, Amazon’s

Reasonable Fees Are $47,155

Amazon seeks to recover fees of $47,155. This represents 85.9 hours of attorney time at a

rate of $550 per hour. The number of hours for which Amazon seeks fees is reasonable. Amazon

seeks to recover fees for 30.9 hours for preparing its opening brief in support of a motion for

protective order. This is a reasonable amount of time because plaintiffs made many arguments that

Amazon needed to address even though doing so required considerable work and a lengthy brief.

Amazon’s motion reasonably included supporting declarations from four different people (its three

deposition designees and someone familiar with Amazon’s supposed Indiana “offices”), which

required even more attorney time. Amazon does not seek recovery of fees for the considerable

time spent conferring with plaintiffs in numerous telephone and email conferences. Amazon also

seeks fees for the time spent by a single attorney, and it does not seek to recover fees for the

considerable time spent by three other attorneys and a paralegal who assisted on and reviewed the

motion.

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Amazon seeks to recover fees for 17.8 hours for preparing its reply brief in support of its

motion for protective order. The Court granted Amazon’s motion the day before Amazon’s reply

brief was due. Amazon had prepared a complete draft by then, even though the Court’s ruling

spared Amazon from spending an estimated at least five more hours finalizing and filing it.

Amazon seeks to recover fees for 22.2 hours for preparing the current motion brief and a

conservative, good-faith estimated 15 hours to prepare its reply brief. It is also reasonable to award

Amazon its fees for these briefs. As the Court has noted, such fees are recoverable because “[i]f

the prevailing party must pay for its own briefing to recover fees, it will never be made whole.”

(Dkt. 346 at 13.) While Amazon has not yet spent the time to prepare its reply brief, by the time

the Court decides this motion it will have done so.

Amazon requests recovery at a rate of $550 per hour for the attorney who principally

prepared Amazon’s motions. The Court already has held this rate is reasonable. (Id. at 14.) The

number of reasonable hours (85.9) multiplied by the reasonable hourly rate ($550 per hour), results

in fees of $47,155.

IV. CONCLUSION

For the foregoing reasons, Amazon respectfully requests that the Court order plaintiffs,

their counsel, or both to pay Amazon’s reasonable fees, namely $47,155, for moving for a

protective order and for moving for fees.

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October 4, 2024 Respectfully submitted,

/s/ Klaus H. Hamm

Robert T. Cruzen (Admitted pro hac vice)
Klaus H. Hamm (Admitted pro hac vice )
Caroline L. Desmond (Admitted pro hac vice)
KLARQUIST SPARKMAN, LLP
121 S.W. Salmon Street, Suite 1600
Portland, OR 97204
Telephone: (503) 595-5300
Fax: (503) 595-5301
[email protected]
[email protected]
[email protected]

Counsel for Defendant

AMAZON.COM, INC.

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