Howard v. Boyd ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 SAMUEL HOWARD, Case No. 2:20-cv-00462-GMN-NJK 7 Plaintiff, Order 8 v. 9 REBECCA BOYD, et al., 10 Defendants. 11 On October 19, 2021, the Court granted Plaintiff’s motion to compel responses to his 12 discovery requests. Docket No. 25. The Court further ordered Defendants to show cause as to 13 why they should not be ordered to pay Plaintiff’s reasonable costs in filing his motion to compel 14 due to their complete failure to respond to his discovery requests. Id. Defendants responded to 15 the Court’s order to show cause on October 26, 2021. Docket No. 26. 16 A pillar of federal litigation is that discovery should proceed with minimal involvement of 17 the Court. Cardoza v. Bloomin’ Brands, Inc., 141 F. Supp. 3d 1137, 1145 (D. Nev. 2015) (quoting 18 F.D.I.C. v. Butcher, 116 F.R.D. 196, 203 (E.D. Tenn. 1986)). Instead of forcing judicial oversight 19 of every dispute, parties are expected to approach discovery with an eye toward cooperation, 20 practicality, and sensibility. In re Convergent Techs. Securities Litig., 108 F.R.D. 328, 331 (N.D. 21 Cal. 1985). The governing rules reflect this in several ways, including providing a presumption 22 that reasonable expenses—including attorneys’ fees—will be awarded to the party that prevails on 23 a discovery motion. Rickels v. City of S. Bend, Ind., 33 F.3d 785, 786-87 (7th Cir. 1994).1 By 24 design, these “rules should deter the abuse implicit in carrying or forcing a discovery dispute to 25 26 1 Such expenses are awarded after an “opportunity to be heard.” Fed. R. Civ. P. 37(a)(5)(A). An “opportunity to be heard” does not require either a formal hearing or a separate 27 motion for an award of expenses. See, e.g., Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000). The Court afforded Defendants the opportunity to be heard 28 via their response to the Court’s order to show cause. 1 the court when no genuine dispute exists.” Fed. R. Civ. P. 37(a)(4) advisory committee’s note to 2 1970 amendment; see also Marquis v. Chrysler Corp., 577 F.2d 624, 642 (9th Cir. 1978). 3 The losing party may rebut the presumption of an award of expenses by establishing that 4 its position was “substantially justified.” Fed. R. Civ. P. 37(a)(5)(A)(ii). A position is substantially 5 justified when “the parties had a genuine dispute on matters on which reasonable people could 6 differ as to the appropriate outcome.” Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 609 (D. 7 Nev. 2016) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The party facing an award 8 of expenses bears the burden of establishing substantial justification. See Flamingo Trails, 316 9 F.R.D. 327, 335 (D. Nev. 2016). An award of expenses is also unwarranted when the prevailing 10 party did not attempt in good faith to obtain the discovery before seeking judicial intervention or 11 when an award of expenses would be unjust. Fed. R. Civ. P. 37(a)(5)(A)(i), (iii). District courts 12 have “great latitude” in awarding expenses under Rule 37. Lew v. Kona Hosp., 754 F.2d 1420, 13 1425 (9th Cir. 1985). 14 In their response to the Court’s order to show cause, Defendants primarily rely on two 15 reasons in asking the Court not to order them to pay Plaintiff’s reasonable expenses. See Docket 16 No. 26. First, Defendants submit that Plaintiff failed to meet and confer because he states that he 17 attempted to contact Defendants’ counsel through outside assistance, without providing a 18 declaration or details about his attempts to meet and confer. Id. at 4. 19 The Court has already granted Plaintiff’s motion to compel; therefore, any argument 20 regarding whether Plaintiff met his meet and confer requirement under the Court’s Local Rules to 21 file that motion misses the mark. In any event, Plaintiff is a death row inmate who has no access 22 to email and limited access to the telephone. Docket No. 21 at 2. The “requirement to meet and 23 confer face-to-face or via telephonic or video conference does not apply in the case of an 24 incarcerated individual appearing pro se, in which case the meet-and-confer requirement may be 25 satisfied through written communication.” LR IA 1-3(f)(1). Plaintiff submits that he attempted to 26 meet and confer in the only way available to him before filing his motion and Defendants present 27 no evidence or argument to rebut this statement. Therefore, though it is unnecessary to make such 28 1 a finding at this point, the Court finds that Plaintiff satisfied his obligations under this Court’s 2 Local Rules to meet and confer prior to filing a motion to compel. 3 Defendants’ more relevant argument at this stage is whether Plaintiff met the meet and 4 confer requirements of Fed.R.Civ.P. 37. Rule 37(a)(5)(A) states, in relevant part, that if the motion 5 to compel “is granted – or if the … requested discovery is provided after the motion was filed – 6 the court must, after giving an opportunity to be heard, require the party … whose conduct 7 necessitated the motion … to pay the movants reasonable expenses incurred in making the 8 motion…” The Rule further states, in relevant part, that the Court must not order this payment 9 unless the movant attempted in good faith to obtain the discovery without court action prior to 10 filing the motion. Fed.R.Civ.P. 37(a)(5)(A)(i). The Court finds that Plaintiff attempted to obtain 11 the discovery without court action prior to filing his motion to compel; therefore, he meets the 12 requirement of Fed.R.Civ.P. 37(a)(5)(A)(i). 13 Defendants further submit that, after Deputy Attorney General DiMaggio began 14 employment at the Office of the Nevada Attorney General in late September 2021, he immediately 15 worked to resolve the discovery dispute without further Court involvement.2 Docket No. 26 at 4- 16 6. Defendants submit that these efforts were in good faith and show that Defendants were 17 substantially justified in their failure to respond to Plaintiff’s discovery requests. Id. The heart of 18 the underlying discovery issue in this case, however, involves inaction by the Office of the Nevada 19 Attorney General during the months prior to Mr. DiMaggio’s employment. See Docket No. 25. 20 Plaintiff’s discovery requests were initially served on August 10, 2021. Id. Defendants fail to 21 provide any information or justification for why they ignored Plaintiff’s discovery requests prior 22 to Mr. DiMaggio’s employment. Further, Defendants misconstrue the meaning of the term 23 “substantial justification.” A position is substantially justified when “the parties had a genuine 24 25 2 Defendants’ submission that their responses to discovery requests, served after Plaintiff filed his motion to compel, moot Plaintiff’s motion to compel flies in the face of the plain text of 26 Fed.R.Civ.P. 37(a)(5)(A), which clearly states that the Court must order Defendants to pay expenses when the discovery is provided after a motion to compel is filed. Further, though the 27 issue is not currently before the Court, Defendants’ response to the Court’s order to show cause seems to indicate that Defendants improperly objected to Plaintiff’s discovery requests, rather than 28 responding to them substantively. See Docket No. 26 at 5-6. 1} dispute on matters on which reasonable people could differ as to the appropriate outcome.” 2|| Roberts 312 F.R.D. at 609. Defendants present no argument that they had a genuine dispute with Plaintiff as to whether they should respond to his discovery requests. Instead, it appears that 4|| Defendants dropped the ball and simply failed to respond. This type of negligence does not qualify 5|| as substantial justification.? 6 Defendants’ response to the Court’s order to show cause fails to demonstrate that 7| Defendants’ failure to respond to Plaintiff's discovery requests was substantially justified or that 8|| any other circumstances exist that would make an award of expenses unjust. Therefore, the Court ORDERS Defendants to pay Plaintiff's reasonable expenses in having to litigate his motion to 10] compel.* 11 The Court encourages the parties to confer in an attempt to agree on an amount of expenses. 12|| No later than November 5, 2021, Defendants must file notice on the docket as to whether the 13] parties have come to an agreement on the amount of expenses Defendants will pay Plaintiff. Ifthe 14] parties cannot come to an agreement, Plaintiff must file a Motion to Calculate Expenses, which 15|| sets out with specificity all reasonable expenses he incurred in litigating his motion to compel, no later than November 30, 2021. 17 IT IS SO ORDERED. 18 Dated: October 28, 2021. ff ten _ NANCY J. KOPP, *. 20 UNITED STATES MAGISTRATE JUDGE ———__________ > Defendants present essentially no argument as to why any award of expenses would be 23} unjust. See Docket No. 26. Courts only address well-developed arguments. Kor Media Grp., LLC v. Green, 294 F.R.D. 579, 582 n.3 (D. Nev. 2013). The Court finds that Defendants fail to demonstrate any reason why an award of Plaintiff’s expenses would be unjust. 25 * Defendants’ response is rife with statements that misconstrue the relevant Rules and caselaw and that fail to set forth the full facts surrounding their failure to conduct discovery. 26] Further, Defendants’ counsel appears to have called Plaintiff, a pro se inmate litigant, and made an agreement with him regarding their responses to his discovery requests that is inconsistent with 27] the plain language of the Federal and Local Rules. The Court expects competent, candid representation from counsel. Failure to practice in a manner that complies with all Rules in the 28] future could result in significant sanctions.