WildEarth Guardians et al v. Kraayenbrink et al

Filing 122

MEMORANDUM DECISION AND ORDER ON PLAINTIFFS' MOTION FOR FEES denying 110 Motion for Attorney Fees. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

WILDEARTH GUARDIANS, CASCADIA
WILDLANDS, KOOTENAI ENVIRONMENTAL
ALLIANCE, CENTER FOR BIOLOGICAL
DIVERSITY, WESTERN WATERSHEDS
PROJECT, PROJECT COYOTE,

Case No.: 4:14-cv-00488-REB
MEMORANDUM DECISION AND
ORDER ON PLAINTIFFS’ MOTION
FOR FEES

Plaintiffs,
vs.
UNITED STATES FOREST SERVICE,
CHARLES A. MARK, in his official capacity,
Defendants.
Pending is Plaintiffs’ Motion for Fees on Motion for Protective Order (Dkt. 110). Having
carefully considered the record, and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order:
PROCEDURAL BACKGROUND
Plaintiffs, various environmental groups, sued the United States Bureau of Land
Management (“BLM”), the United States Forest Service (“USFS”), and others to stop a wolf
derby on public lands near Salmon, Idaho. Compl. (Dkt. 1). Defendants asserted an affirmative
defense of res judicata based on a 2013 order of U.S. Magistrate Judge Candy W. Dale denying
a temporary restraining order in a similar case. The parties’ joint litigation plan acknowledged a
disagreement as to whether discovery on the res judicata defense was appropriate. Joint Lit. Plan
(Dkt. 25-1). In resolving that disagreement, this Court issued a Case Management Order
providing in relevant part that “[t]he Court will allow discovery on the issue of res judicata. If
Plaintiffs object to any materials being sought, they may seek a protective order.” CMO ¶ 3 (Dkt.

MEMORANDUM DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR FEES – 1

28). Subsequently, Defendants did seek discovery pertaining to a possible defense based on res
judicata, and Plaintiffs did seek a protective order barring that discovery (Dkt. 33). After an
unfortunately extended delay, the Court granted Plaintiffs’ motion for protective order, holding
that in this case the res judicata defense fails as a matter of law. Order 2 (Dkt. 91). Accordingly,
the Court then barred Defendants from seeking further discovery on that topic. Id. at 5.
After various parties settled or withdrew, the Court ultimately resolved cross-motions for
summary judgment in favor of Defendant USFS and dismissed the case (Dkts. 108, 109). The
remaining Plaintiffs’ appeal is pending (Dkt. 116).
At issue here is Plaintiffs’ Motion for Fees on Motion for Protective Order (Dkt. 110).
Plaintiffs assert that because they prevailed on their motion for protective order, they are entitled
to their reasonable attorney fees and litigation expenses as a matter of right under Federal Rules
of Civil Procedure 26(c)(3) and 37(a)(5). They seek a total of $137,313.27 in fees and costs1 for
litigating the motion for protective order. Mot. for Prot. Order Fees 2 (Dkt. 110).
Defendants challenge both the basis for, and the amount of, the fee request. They assert
that under the circumstances of the case, the motion for protective order should be regarded as
more like a motion to strike or a motion for partial summary judgment rather than a typical
motion for protective order. Defs.’ Opp. 7 (Dkt. 119). Alternatively, they argue that even if the
motion were treated as a true motion for protective order, Plaintiffs are still not entitled to fees
under Rule 37(a)(5)(A)(ii) because Defendants were both “substantially justified” in seeking the
discovery and under Rule 37(a)(5)(A)(iii) because “other circumstances [would] make an award
of expenses unjust.” Id. at 8–14. Finally, they argue the requested fee amount is “grossly
excessive.” Id. at 14–17.
1

As discussed below, this request was later reduced substantially.

MEMORANDUM DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR FEES – 2

In reply, Plaintiffs offer a revised fee request that is reduced to $66,139.97, somewhat
less than half the original request. Pls.’ Reply Ex. 4 (Dkt. 121-4).
APPLICABLE LAW
Federal Rule of Civil Procedure 26(c)(3), addressing protective orders, provides that
“Rule 37(a)(5) applies to the award of expenses.” That Rule, in turn, provides:
If the motion is granted—or if the disclosure or requested discovery is provided
after the motion was filed—the court must, after giving an opportunity to be heard,2
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. But the court must not
order this payment if:
(i) the movant filed the motion before attempting in good 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.
FED. R. CIV. P. 37(a)(5) (footnote added).
ANALYSIS
The Court denies Plaintiffs’ Motion for Fees. Rule 37 is titled “Failure to Make
Disclosures or to Cooperate in Discovery; Sanctions.” At a fundamental level, there was no
failure, lack of cooperation, or conduct worthy of sanctions here. The parties each had legitimate
positions, and therefore also legitimate disputes, about the viability of the res judicata defense
from the outset. The issue was properly brought before the Court at the initial scheduling
conference. Plaintiffs did not convince the Court at that conference the defense was not viable,

2

No oral argument was taken on the instant motion. The Rule requires “an opportunity
to be heard,” but “an opportunity to be heard does not require an oral or evidentiary hearing on
the issue.” Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir.
2000).

MEMORANDUM DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR FEES – 3

and so the Court issued a Case Management Order expressly allowing Defendant to pursue
discovery on that matter. CMO (Dkt. 28).
It would be an inequitable and unusual result to allow Plaintiffs — who prevailed on the
protective order motion but not in the overall case — to recover their fees for disproving
Defendants’ good-faith affirmative defense. The Court concludes that Defendants’ discovery
requests were substantially justified based on the Court’s Case Management Order expressly
allowing such discovery. Thus, an award of expenses under Rules 26(c)(3) and 37(a)(5) is
improper under Rule 37(a)(5)(A)(ii). The Court further concludes, for the same reasons, that
there are circumstances present that would make an award of expenses unjust. Thus, an award of
expenses is improper under Rule 37(a)(5)(A)(iii).
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Fees on
Motion for Protective Order (Dkt. 110) is DENIED.
DATED: January 3, 2018

________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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