Merchia v. United States of America et al

Filing 185

Magistrate Judge Marianne B. Bowler: Memorandum and ORDER entered withdrawing 166 Motion for Sanctions against the plaintiff Pankaj Merchia without prejudice, allowing 182 request to withdraw the motion for sanctions and denying 182 request for costs and fees. (Belpedio, Lisa)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
PANKAJ MERCHIA,
Plaintiff,
v.
UNITED STATES OF AMERICA
INTERNAL REVENUE SERVICE
DAVID KAUTTER, COMMISSIONER,
Defendant.

CIVIL ACTION NO.
18-10424-PBS

MEMORANDUM AND ORDER RE:
DEFENDANT UNITED STATES’ MOTION FOR SANCTIONS AGAINST
THE PLAINTIFF PANKAJ MERCHIA (DOCKET ENTRY # 166);
DEFENDANT UNITED STATES’ NOTICE OF WITHDRAWAL
OF MOTION FOR SANCTIONS
(DOCKET ENTRY # 182)
August 17, 2021
BOWLER, U.S.M.J.
In a twofold “Notice of Withdrawal of Motion for Sanctions,”
defendant United States of America Internal Revenue Service David
Kautter, Commissioner, (“defendant”) requests: (1) a withdrawal
of a motion for sanctions (Docket Entry # 166) without prejudice
to re-filing the motion if the court does not adopt a Report and
Recommendation (Docket Entry # 180); and (2) a ruling on “its
costs and fees” for “bringing a successful motion to compel”
(Docket Entry # 108) and “taking a second deposition of Pankaj
Merchia.”

(Docket Entry # 182).
DISCUSSION

Regarding the second request, the motion to compel (Docket
Entry # 108), a supporting brief (Docket Entry # 110), and a
reply brief (Docket Entry # 121) did not ask for sanctions in the

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form of costs or fees against plaintiff Pankaj Merchia
(“Merchia”).

The only “costs” mentioned were in a footnote in

the reply brief against nonparty Shona Pendse for her nonappearance at a deposition (Docket Entry # 121, n.5), which was
the subject of a separate motion (Docket Entry # 87).

As to

Merchia, the motion to compel “move[d] to compel” him “to produce
documents” “pursuant to Fed. R. Civ. P. 37(a)(1)-(5)” (Docket
Entry # 108, p. 1) and to reopen and take his deposition for a
second time (Docket Entry # 110, p. 12) (Docket Entry # 121, p.
12).
In an August 2020 Memorandum and Order, this court did not
grant the motion in its entirety as to Merchia.
135, pp. 8-9, 10 n.6, 12).

(Docket Entry #

Notably, this court narrowed the time

period sought in certain document requests from a 2008 to 2012
period to 2012 (Docket Entry # 135, pp. 8-9, 10 n.6) and stated
that defendant may take the second deposition (Docket Entry #
135, pp. 10-11).

The allowance in part and denial in part of the

motion to compel as to Merchia (Docket Entry # 135, p. 12)
therefore invokes a discretionary basis to award costs and fees
under Fed. R. Civ. P. 37(a)(5)(C).

See Shea v. Millett, Civil

Action No. 17-cv-12233-ADB, 2019 WL 4218477, at *2 (D. Mass.
Sept. 9, 2019) (denying “Defendant’s request for costs and fees
pursuant to its discretion under Federal Rule of Civil Procedure
37 to apportion reasonable expenses for a motion to compel that
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is granted in part and denied in part”) (citing Fed. R. Civ. P.
37(a)(5)(C)); Fed. R. Civ. P. 37(a)(5)(C) (if “Motion is Granted
in Part and Denied in Part, the court may . . . apportion the
reasonable expenses for the motion”) (emphasis added).
Exercising that discretion, costs and fees are not warranted, and
defendant’s alternative request to set a briefing schedule is not
necessary.
CONCLUSION
In conclusion, the request to withdraw the motion for
sanctions (Docket Entry # 182) is ALLOWED and the motion for
sanctions (Docket Entry # 166) is WITHDRAWN without prejudice.
The request for costs and fees (Docket Entry # 182) is DENIED.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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