United States District Court, D. Nevada
FIDELITY NATIONAL TITLE INSURANCE COMPANY, successor-in-interest LAWYERS TITLE INSURANCE COMPANY, Plaintiff,
TAHOE REGIONAL PLANNING AGENCY, et al., Defendants. AND RELATED CROSS CLAIMS
ORDER RE AWARD OF EXPENSES FOR DISCOVERY VIOLATION
WILLIAM G. COBB, Magistrate Judge.
Before the court is Plaintiff's counsel's Declaration regarding Plaintiff's Request for "Sanctions" (Doc. #166), Defendants' Response (Doc. #167) and Plaintiff's Reply (Doc. #171).
On March 25, 2014, this court entered a comprehensive order addressing the discovery dispute between Plaintiff Fidelity National Title Insurance Company and Defendant Jean Merkelbach, individually, and as Trustee of the Rockwell 1997 Trust and as Trustee of the SES Trust, Rockwell Lot, LLC, a Nevada Limited Liability Company (collectively, Merkelbach). (Doc. #165.) Without reiterating the court's analysis and resolution of the discovery dispute, the court found the Defendant's failure to respond was not substantially justified and required Merkelbach to answer Plaintiff's discovery.
Fed. R. Civ. P. 37(a)(5)(A)
If a motion to compel is granted, the prevailing party is entitled to an award of "reasonable expenses incurred in making the motion, including attorneys fees." Rule 37(a)(5)(A). Exceptions to this otherwise mandatory requirement are if the movant failed to attempt to first informally resolve the discovery dispute (37(a)(5)(A)(i); whether the opposing party's non-disclosure was "substantially justified" (37(a)(5)(A)(ii); or if other circumstances exist which would make the award of expenses "unjust." 37(a)(5)(A)(iii). Unless one of the three enumerated exceptions is found to exist, the award of such expenses is mandatory: "... the court must... require the party... whose conduct necessitated the motion... to pay the movant's reasonable expenses...." (37(a)(5)(A).
This court in its discovery order determined that Merkelbach's failure to respond to the discovery was not substantively justified. The court also determined that holding Merkelbach responsible for Plaintiff's expenses would not be "unjust." (Doc. #165 at 6.)
Initially, the court notes Plaintiff's underlying motion to compel sought sanctions against Defendants. (Doc. #148 at 2.) Plaintiff's Declaration of Counsel also references an award of sanctions. (Doc. #166.) The monetary reimbursement contemplated by Rule 37(a)(5)(A) is not couched in terms of sanctions, but rather paying a successful movant's reasonable expenses-including attorney's fees-incurred in making the motion.
The issue before the court at this time is whether the amount of expenses sought by Plaintiff, i.e., $2, 607.00, is reasonable. (Doc. #166 at 2-3; Doc. #171 at 3-4.) After a careful review of Plaintiff's Declarations (Doc. ##166, 171) and consideration of Merkelbach's opposition (Doc. #167), the court concludes that an award of fees Plaintiff incurred in ...