Barren v. Roger et al

Filing 93

ORDER Denying 81 Defendants' Motion for Attorney Fees. Signed by Magistrate Judge Carl W. Hoffman on 7/16/2014. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GREGORY D. BARREN, SR.,

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Plaintiff,
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vs.
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OFFICER T. ROBINSON, et al.,
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Defendants.
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__________________________________________)

Case No. 2:11-cv-00650-RLH-CWH
ORDER

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This matter is before the Court on Defendants’ Motion for Attorney Fees (#81), filed April
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30, 2014; Plaintiff’s Response (#88), filed May 22, 2014; and Defendants’ Reply (#90), filed June
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2, 2014.
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BACKGROUND
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On April 24, 2014, the undersigned entered an order denying Plaintiff’s motion to compel
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(#61). See Order (#79). In denying the motion, the Court held that Plaintiff’s failure to comply
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with the meet and confer requirements prior to filing the motion was not substantially justified. It
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further held that Plaintiff had grossly misstated the nature of the Defendants’ responses and
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appeared to be manufacturing dispute to drive up the costs of litigation. Consequently, Defendants
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were invited to submit an affidavit of fees pursuant to Rule 37(a)(5).
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On April 30, 2014, Defendants filed their motion for attorney fees requesting $1,156.00 in
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connection with the underlying motion to compel. (#81). Plaintiff opposes the request, arguing
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that his motion was made in good faith and that he did not fully understand the requirement to meet
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and confer prior to filing a motion to compel. He further argues that he believed his motion
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justified and believed that he had satisfied the prerequisites to filing the motion in order to obtain
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discovery. He represents that he tried to the best of his ability to comply with the rules and asks
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that the Court consider the fact that he is not an attorney and is proceeding pro se in this matter. He

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further notes that his monthly income does not come close to being able to afford the fees sought by

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Defendants. In reply, Defendants reiterate that Plaintiff’s status as a pro se litigant does not absolve

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him of the responsibility to comply with the applicable rules.

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DISCUSSION
Pursuant to Rule 37(a)(5)(B), if a motion to compel discovery is denied, “the court . . .

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must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or

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both to pay the party or deponent who opposed the motion its reasonable expenses incurred in

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opposing the motion, including attorney’s fees. But the court must not order this payment if the

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motion was substantially justified or other circumstances make an award of expenses unjust.”

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Discovery conduct is “substantially justified” if it is a response to a genuine dispute or if reasonable

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people could differ as to the appropriateness of the contested action. See Garity v Donahoe, 2014

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WL 1168913 *3 (D. Nev.) (citations omitted).

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In its order denying the motion to compel, the Court held that the failure to meet and confer

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was not substantially justified. Plaintiff argues that, even if he did not meet and confer properly, he

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made a good faith effort to do so but simply misunderstood the requirement that it not be done by

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letter. Even though Plaintiff is proceeding pro se, such status does not absolve him of the

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responsibility to comply with applicable rules. Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir.

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2007) (“The hazards which beset a layman when he seeks to represent himself are obvious. He

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who proceeds pro se with full knowledge and understanding of the risks does so with no greater

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rights than a litigant represented by a lawyer, and the trial court is under no obligation to become an

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“advocate” for or to assist and guide the pro se laymen through the trial thicket.”). A pro se litigant

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is under the same obligation as any other litigant to comply with both the Local and Federal Rules.

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See King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987) (“Pro se litigants must follow the same rules of

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procedure that govern other litigants.”); see also Carter v. C.I.R., 784 F.2d 1006, 1009 (9th Cir.

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1986) (holding that although a party is pro se, he is “expected to abide by the rules of the court in

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which” he litigates). The failure to adequately meet and confer prior to filing a motion to compel is

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not substantially justified, whether one is proceeding pro se or not.

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Nevertheless, the Court finds that an award of expenses would be unjust under the
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circumstances. Plaintiff’s status as a pro se litigant proceeding in forma pauperis is not, standing

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alone, sufficient to insulate him from an award of fees under Rule 37. Garity, 2014 WL *5-6

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(citations omitted). The Court notes, however, that Plaintiff did make an effort to confer with

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Defendant prior to filing the motion. Even though that effort was subsequently held to be deficient,

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it was made. That effort, when combined with Plaintiff’s status as a pro se litigant proceeding in

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forma pauperis, would make an award under the circumstances unjust. Though the Court declines

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to make an award of fees this time, it will not hesitate to award fees in the future.

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Based on the foregoing and good cause appearing therefore,

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IT IS HEREBY ORDERED that Defendants’ Motion for Attorney Fees (#81) is denied.

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DATED: July 16, 2014.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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