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Garity v. Donahoe

United States District Court, D. Nevada

March 21, 2014

ROSEMARY GARITY, Plaintiff,
v.
USPS PMG PATRICK DONAHOE, Defendant.

ORDER

C. W. HOFFMAN, Jr., Magistrate Judge.

This matter is before the Court on Defendant United States Postal Service Postmaster General Patrick Donahoe's ("Defendant") Memorandums in Support of Attorney's Fees and Costs (#105) and (#106), corrected documents (#108) and (#109), all filed on October 23, 2013 (hereinafter referred to as #108 and #109). The Court also considered Plaintiff's Responses (#114) and (#115), both filed on October 30, 2013. This matter is also before the Court on Plaintiff's Motion to be Heard (#116), filed on October 30, 2013, Defendant's Response (#124), filed on November 18, 2013, and Plaintiff's Reply (#126), filed on November 23, 2013.

BACKGROUND

On September 5, 2013, the Court conducted a hearing in which Plaintiff's Motion to Compel (#57) was denied and Defendant's Motion for Protective Order (#64) and Motion to Quash (#65) were granted. See Minutes of Proceedings #84. Pursuant to Federal Rule of Civil Procedure 37, the Court provided Defendant with the opportunity to apply for reasonable expenses by submitting an application for attorneys fees and costs within 30 days. On October 23, 2013, after being granted an extension of time, Defendant filed the instant Memorandums for Attorney's Fees and Costs (#108) and (#109). In doing so, Defendant seeks $1, 140.26 in attorneys fees in connection with Defendant's Motion for Protective Order (#64) and Motion to Quash (#65) and $6, 654.12 in attorneys fees in connection with Plaintiff's Motion to Compel (#57). In opposition, Plaintiff submits a variety of arguments against an award of fees such as, she should be given an opportunity to be heard, costs should be reviewed for taxation issues, the fees based on an overhead rate are unreasonable, and the time entries at not specific enough. Further, Plaintiff filed a motion requesting that she be able to respond to Defendant's request for attorneys fees and argues against an award because she is a pro se plaintiff. In contrast, Defendant contends that Plaintiff's arguments are based on a misunderstanding of the basis for the fees at issue and controlling law and include citation to irrelevant legal authority.

DISCUSSION

A. Plaintiff's Request for Hearing

Prior to analyzing whether an award of fees is appropriate, the Court will briefly restate the events related to Defendant's requests for fees to clearly establish the correct time line. On September 5, 2013, the Court conducted a hearing in which the undersigned heard arguments on three motions. See Minutes of Proceeding #84. After careful consideration, the Court denied Plaintiff's Motion to Compel (#57) and granted Defendant's Motion for Protective Order (#64) and Motion to Quash (#65).[1] At the end of the hearing, in accordance with Rule 37(a), the Court provided Defendant with the opportunity to request reasonable expenses incurred in successfully defending Plaintiff's Motion to Compel (#57) and prevailing on Defendant's Motion for a Protective Order (#64) and Motion to Quash (#65) by submitting an application for fees and costs within 30 days. Id. Defendant availed himself of this opportunity by filing the instant Memorandums in Support of Attorney's Fees and Costs (#108) and (#109) on October 23, 2013. In addition, at the end of the September 5, 2013 hearing, the undersigned notified Plaintiff that she would have an opportunity to respond to Defendant's application for fees and costs. Id. In fact, Plaintiff took advantage of her opportunity to respond by filing Responses (#114) and (#115) on October 30, 2013. Moreover, Plaintiff filed an additional Motion to be Heard (#116) on October 30, 2013 and Reply (#126) on November 23, 2013 in which she reiterates arguments in her Responses (#114) and (#115) and raises new arguments.

Accordingly, the Court finds that Plaintiff has been given an "opportunity to be heard" with respect to whether fees should be awarded to Defendant and exercised this opportunity with the filing of Responses (#114) and (#115). Fed.R.Civ.P. 37(a)(5). To the extent that Plaintiff requests a hearing in her Motion to be Heard (#116), the Court will exercise its discretion to deny that request pursuant to Local Rule 78-2 that states, "All motions may, in the Court's discretion, be considered and decided with or without a hearing." The Court finds that additional oral argument on this issue is unnecessary.

In addition, the Court notes that after filing the Motion to be Heard (#116), Plaintiff subsequently stated that she "was not requesting a Motion hearing, " but rather, merely wanted an opportunity to oppose Defendant's request for fees. Pla.'s Motion #120, 1, lns 24-25. Plaintiff alleges, numerous times, that the Court granted Defendant fees without providing Plaintiff with an opportunity to respond.[2] See, e.g., Pla.'s Resp. #114-1, 1, lns 15-16. The Court provided an extended summary of the relevant events above to demonstrate that this allegation is false. In addition, Plaintiff's statement that she was denied the opportunity to respond is inconsistent with her filing Responses (#114) and (#115). Therefore, to the extent that Plaintiff's Motion to be Heard (#116) is not a request for a hearing, but rather, is supplemental briefing to Responses (#114) and (#115), the Court will strike it as an unauthorized sur-reply in violation of Local Rule 7-2.

Local Rule 7-2 provides for three briefs: a motion, a response, and a reply; accordingly, a sur-reply is not a filing allowed without court leave and may only be allowed when a party should be given the opportunity to respond to new information presented in a reply brief. See Fireman's Fun Ins. Co. v. Sloan Valve Co., 2012 WL 4962957, *2 (D. Nev. Oct. 16, 2012) (citing Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996)); see also Padilla v. Nevada, 2012 WL 380003 (D. Nev. Feb. 6, 2012) (noting sur-replies are not authorized by either the Federal Rules of Civil Procedure or this Court's Local Rules). Plaintiff filed her Motion to be Heard (#116) on October 30, 2013. Moreover, Plaintiff states that her Motion to be Heard (#116) is not a request for a hearing, but rather an opportunity to state additional arguments against granting Defendant a fee award. See Pla.'s Mot Motion #120, 1, lns 24-25. On that same day, October 30, 2013, Plaintiff filed her Responses (#114) and (#115) to Defendant's Memorandums for Fees and Costs (#108) and (#109). Defendant had not yet filed his reply, which was later filed on November 18, 2013 as a consolidated response to Plaintiff's Motion to be Heard (#116) and reply brief to Plaintiff's Responses (#114) and (#115). Therefore, Plaintiff failed to request leave of the Court to file a surreply. Further, the Court finds that there are no grounds for a sur-reply as Defendant had not yet filed a reply brief. As a result, the Court will order the Clerk of the Court to strike Plaintiff's Motion to be Heard (#116). Moreover, the Court finds that Defendant's Response (#124) to Plaintiff's Motion to be Heard and Plaintiff's Reply (#126) should also be stricken as unnecessarily supplemental briefing that was filed without seeking leave of the Court. Therefore, with a clear understanding of the time line of events and briefing before the Court, the Court will now analyze whether attorneys fees are warranted.

B. Sanctions Pursuant to Rule 37(a)(5)

Federal Rule of Civil Procedure 37(a)(5)(A) states, "[T]he court must, after giving an opportunity to be heard, require the party... 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." (Emphasis added). Similarly, Rule 37(a)(5)(B) states, "If the motion is denied, the court... must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees." (Emphasis added). Accordingly, the Court is required to provide Defendant with the opportunity to apply for attorneys fees under Rule 37(a).

Here, Defendant has submitted two requests for fees. First, Defendant submitted a request for fees in connection with prevailing on Defendant's Motion for Protective Order (#64) and Motion to Quash (#65). See Def.'s Memorandum #108. Federal Rule of Civil Procedure 26 deals with protective orders and states that "Rule 37(a)(5) applies to the award of expenses." Fed.R.Civ.P. 26(c)(3). Second, Defendant submitted a request for fees in connection with opposing Plaintiff's Motion to Compel (#57). See Def.'s Memorandum #109. Rule 37(a)(5)(B) applies to this request given that Plaintiff's Motion to Compel (#57) was denied. Accordingly, the Court will carefully consider Defendant's two requests for fees in accordance with Rule 37(a)'s standard.

An award of expenses is not appropriate if: (1) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action, (2) the opposing party's non-disclosure, response, or objection was substantially justified, or (3) other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(A)(i-iii) and 37(a)(5)(B). The burden is on the losing party to affirmatively demonstrate that its discovery conduct was substantially justified. See Adv. Comm. Notes to 1970 Amendment to former Fed.R.Civ.P. 37(a)(4). Discovery conduct is "substantially justified if it is a response to a genuine dispute or if reasonable people could differ as to the ...


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