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Vitale & Associates, LLC v. Lowden

United States District Court, D. Nevada

May 2, 2014

SUE LOWDEN, et al., Defendants.


CAM FERENBACH, Magistrate Judge.

This matter involves Vitale & Associates' action against former U.S. Senate candidate Sue Lowden for unpaid campaign expenses. (Amend. Compl. #12) at 2[1]). Before the court is Nonparty Robert Beers' Rule 37(a)(5)(B) motion for attorney's fees and costs (#51). Vitale & Associates filed a response (#63); and Beers did not reply. For the reasons stated below, Beers' motion is granted.


Beers' motion requests attorney's fees and costs incurred in defending against Vitale & Associates' motion to compel (#28). For purposes of deciding Beers' motion, the relevant facts include: (1) the allegations in Vitale & Associates' complaint; (2) the circumstances leading up to Vitale & Associates' motion to compel; and (3) the court's resolution of Vitale & Associates' motion to compel. Each is discussed below.

I. Vitale & Associates' Allegations

On June 8, 2010, former Nevada State Senator Sue Lowden was defeated by Sharron Angle in the Republican primary for United States Senate. (Beers Decl. (#35-1) at ¶ 7). On August 8, 2012, Vitale & Associates commenced a breach of contract action against Lowden. ( See Compl. (#1) at 2:14); (Amend. Compl. (#12) at 2). The essence of Vitale & Associates' complaint is that "Lowden, either directly or through an agent, entered into a contract for services" with Vitale & Associates under the terms of which Lowden is currently obligated to pay Vitale & Associates $77, 796.88. ( Id. at ¶¶ 6, 9).

II. Vitale & Associates' Motion to Compel

Discovery is underway; but it has been strained. In August 2013, Plaintiff's counsel, John Head, contacted Beers to obtain the campaign's financial records. (Beers Decl. (#35-1) at ¶ 9). Beers agreed to assist Head with his request; but Beers informed Head that he would need time to locate the relevant files. ( Id. ¶ 10). Two years had elapsed since the campaign disbanded, and Beers had since been elected to the Las Vegas City Council. ( Id. at ¶¶ 8, 10).

On September 19, 2013, Beers and Head agreed to schedule Beer's informal deposition and document production for October 23 or 24, 2013. ( Id. at ¶ 12); ( see also Email (#63-4) at 1). Nonetheless, on September 30, 3013, Head served Beers with a subpoena that noticed the deposition for October 16, 2013. (Pl.'s Mot. to Compel (#28) at 1). Beers immediately called Head. (Beers Decl. (#35-1) at ¶ 15). Beers informed Head that he is unavailable to meet on October 16 because-as Beers had previously stated-the Las Vegas City Council convenes on Wednesdays. ( Id. at ¶ 17); ( see also Sept. 17, 2013, Email (#63-5) at 2) (notifying Head, on a prior occasion, that Beers attends city council meetings because Beers is a Councilmember). October 16, 2013 was a Wednesday.[2] Beers further stated that the documents were ready to be delivered and that Beers was just waiting for appropriate instructions. (Beers Decl. (#35-1) at ¶ 18).

Head never responded. ( Id. at ¶ 16). Instead, on October 15, 2013, he flew from Colorado to Nevada for the deposition. The next morning, Head convened the deposition at 9:00 a.m., waited eleven minutes, and stated on the record: "Mr. Beers has not appeared and so I traveled here from Denver for this deposition and I'm disappointed that he didn't show up." (Beers Depo. (#28-7) at 3:3, 3:9-11).

On October 17, 2013, Head threatened Beers, stating that Beers disobeyed a valid subpoena and should be held in "contempt." (Beers Decl. (#35-1) at ¶ 20). Head, however, did not tell Beers where or when Beers could produce the requested documents so that Beers could comply with the subpoena.[3] ( Id. ¶ 20).

On December 16, 2013, Head filed a motion to compel, which requested sanctions and costs for Beer's alleged failure to appear at the deposition. ( See Pl.'s Mot. to Compel (#28) at 6). On December 26, 2013, Beers delivered three boxes of financial records to Head's office. (Beers Decl. (#35-1) at ¶ 22). On January 9, 2014, Beer hired counsel, which sent Head a letter confirming a phone call in which both parties agreed that Beers fully complied with Head's subpoena. (Letter (#35-1) at 1).

III. The Court's Resolution of Vitale & Associates' Motion to Compel

On February 3, 2014, the court denied the motion to compel in its entirety. In so doing, the court held that Head's motion to compel was meritless for six reasons: (1) Head did not comply with Rule 37's certification requirement; (2) nonparties, like Beers, generally are not sanctioned absent an enforcement order; (3) the motion was moot because Beers had already produced all responsive documents; (4) Head created Beers' noncompliance with the subpoena by issuing a subpoena date Head knew or should have known Beers could not accommodate; (5) the motion appeared to have ...

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