Universal Settlements International, Inc. v. National Viatical, Inc. et al

Filing 251

MEMORANDUM OPINION AND ORDER denying Defendants' appeal 232 , affirming the decision of the magistrate judge's March 23, 2009 order denying Defendants' request for attorney's fees and costs; 232 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

U N IV E R S A L SETTLEMENTS, INTERNATIONAL, INC., a Canadian c o rp o r a tio n , P l a in tif f , F ile No. 1:07-CV-1243 v. H O N . ROBERT HOLMES BELL N A T IO N A L VIATICAL, INC., JAMES T O R C H IA , and MARC A. CELELLO, D e f e n d a n ts . / M E M O R A N D U M OPINION AND ORDER T h is matter is before the Court on Defendants National Viatical, Inc. and James T o r c h ia 's appeal of Magistrate Judge Ellen S. Carmody's March 23, 2009, denial of D e f en d a n ts ' request for costs and attorney's fees incurred in bringing their motion to compel d isc o v e ry responses from Plaintiff Universal Settlements International, Inc. ("USI"). (Dkt. N o . 201, Mot. to Compel; Dkt. No. 229, 3/23/09 Order; Dkt. No. 232, Appeal.) A magistrate judge's resolution of a nondispositive pretrial matter should be modified o r set aside on appeal only if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); W.D. Mich. LCivR 72.3(a). The "clearly erroneous" s ta n d a rd applies only to the magistrate judge's findings of fact. Gandee v. Glaser, 785 F. S u p p . 684, 686 (S.D. Ohio 1992). The magistrate judge's legal conclusions are reviewed

u n d e r the "contrary to law" standard. Id. "`A finding is `clearly erroneous' when although t h e re is evidence to support it, the reviewing court on the entire evidence is left with the d e f in ite and firm conviction that a mistake has been committed.'" Adams County Reg'l W a te r Dist. v. Vill. of Manchester, 226 F.3d 513, 517 (6th Cir. 2000) (quoting United States v . United States Gypsum Co., 333 U.S. 364, 395 (1948)). D e f en d a n ts contend that the magistrate judge clearly erred in refusing to award fees a s mandated by Rule 37 of the Federal Rules of Civil Procedure. Rule 37 provides in p ertin en t part that if a motion to compel discovery is granted, or if the requested discovery is provided after the motion was filed, "the court must, after giving an opportunity to be h e a r d , require the party or deponent whose conduct necessitated the motion, the party or a tto rn e y advising that conduct, or both to pay the movant's reasonable expenses incurred in m ak ing the motion, including attorney's fees." Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). R u le 37(a)(5)(A) further provides that the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the d isc lo su re or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was su b stan tially justified; or (iii) other circumstances make an award of expenses unjust. Id. D e f e n d a n ts contend that there is no dispute that their motion was substantially g ra n te d , that they attempted in good faith to obtain disclosure without court action, that

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P la in tif f 's nondisclosure was not substantially justified, and that there are no circumstances th a t would make an award of expenses unjust. The magistrate judge's order indicates that Defendants' motion to compel was granted in part, denied in part, and resolved in part. (3/23/09 Order 2.) Under Rule 37, if a motion is not granted in full, the award of reasonable expenses is not mandatory. If a motion is g ra n ted in part and denied in part, "the court may, after giving an opportunity to be heard, a p p o r tio n the reasonable expenses for the motion." Fed. R. Civ. P. 37(a)(5)(C) (emphasis a d d e d ). Where, as here, the magistrate judge granted the motion only in part, it was within h e r discretion to apportion attorney fees or to require each party to bear its own expenses. S e e , e.g., Davis v. City of Springfield, Nos. 04-3168, 07-3096, 2009 WL 1542801, at *5 (C.D. Ill. June 1, 2009) (deeming it appropriate for each party to bear its own expenses when a Rule 3 7 motion was allowed in part and denied in part); Schwarz & Schwarz of Virginia, L.L.C. v . Certain Underwriters at Lloyd's London Who Subscribed to Policy Number NC959, No. 6 :0 7 c v 0 0 0 4 2 , 2009 WL 1043929, at *6 (W.D. Va. Apr. 17, 2009) (same); Allstate Property a n d Cas. Ins. Co. v. Salazar-Castro, No. 08-2110-CM, 2009 WL 928601, at *5 (D. Kan. Apr. 3 , 2009) (same). The magistrate judge acted within her discretion in denying Defendants' re q u e s t for attorney's fees and costs. Her ruling was not clearly erroneous or contrary to law. A c c o r d i n g l y, I T IS HEREBY ORDERED that upon consideration and review of Defendants' a p p e al of the magistrate judge's order denying Defendants' request for attorney's fees and

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c o sts (Dkt. No. 232), the magistrate judge's March 23, 2009, order (Dkt. No. 229) is A F F IR M E D .

Dated: July 15, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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