Wilson v. Greater Las Vegas Association of Realtors

Filing 92

ORDER Denying 80 Motion for Attorney Fees. Signed by Magistrate Judge Nancy J. Koppe on 7/28/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NEDRA WILSON,
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Plaintiff(s),
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vs.
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GREATER LAS VEGAS ASSOCIATION OF
REALTORS,

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Defendant(s).
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Case No. 2:14-cv-00362-APG-NJK
ORDER

(Docket No. 80)

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Pending before the Court is Defendant’s motion for attorneys’ fees. Docket No. 80.1 Plaintiff

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filed a response in opposition, and Defendant filed a reply. Docket Nos. 88, 91. The Court finds this

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matter properly resolved without oral argument. See LR 78-1. For the reasons discussed below,

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Defendant’s motion for attorneys’ fee is DENIED.

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The pending motion for attorneys’ fees arises out of Defendant’s motion to compel, which the

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Court granted in part and denied in part. Docket No. 70 (motion to compel); Docket No. 78 (order).

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Pursuant to Federal Rule of Civil Procedure 37(a)(5)(C), Defendant now moves for sanctions in the

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amount of its reasonable attorneys’ fees incurred in prosecuting its motion to compel and the instant

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motion.2 Docket No. 80 at 1.

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//

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Defendant subsequently filed an amended motion correcting typographical errors. Docket No. 81.

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Unless otherwise stated, references to “Rules” refer to the Federal Rules of Civil Procedure.

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Where a motion to compel is granted in part and denied in part, it is Rule 37(a)(5)(C), not Rule

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37(a)(5)(A), that applies. CPA Lead, LLC v. Adeptive ADS LLC, 2016 WL 3176569, *2 (D. Nev. June

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2, 2016). Rule 37(a)(5)(C) applies even if a party prevails on the “lion’s share” of the motion. Izzo v.

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Wal-Mart Stores, Inc., 2016 WL 409694, *7 (D. Nev. Feb. 2, 2016). “[T]he primary difference between

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these two rules is that one requires the payment of costs, where the other grants the court discretion in

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making such a determination.” Switch Comm. Grp. LLC v. Ballard, 2011 WL 5041231, *1 (D. Nev.

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Oct. 24, 2011).

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Rule 37(a)(5)(C) states that “[i]f the motion is granted in part and denied in part, the court may

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. . . apportion the reasonable expenses for the motion.” Fed.R.Civ.P. 37(a)(5)(C). In exercising its

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discretion, the Court may consider the exceptions available under Federal Rule of Civil Procedure

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37(a)(5)(A). Limtiaco v. Auction Cars.Com, LLC, 2012 WL 5179708, *1 (D. Nev. Oct. 17, 2012)

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(citing Switch Comm. Grp. LLC, 2011 WL 5041231 at *2). Under these exceptions, “an award of

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expenses is not appropriate if: (1) the movant filed the motion before attempting in good faith to obtain

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the disclosure or discovery without court action; (2) the opposing party’s nondisclosure, response, or

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objection was substantially justified; or (3) other circumstances make an award of fees unjust.” Aevoe

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Corp. v. AE Tech Co., 2013 WL 5324787, *1 (D. Nev. Sept. 20, 2013) (citing Fed.R.Civ.P.

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37(a)(5)(A)(i-iii)). While the Court may consider these exceptions, the Court is not required to do so

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in declining to award sanctions under Rule 37(a)(5)(C). CPA Lead, LLC, 2016 WL 3176569 at *2

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(finding that under “the liberal requirements” of Rule 37(a)(5)(C), the Court is “not required to make

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a finding that [a party’s] opposition was ‘substantially justified’”).

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Whether to award attorneys’ fees is at the Court’s discretion, and the Court finds that sanctions

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are inappropriate here. Id. The Court will not order sanctions “when it finds that a position was

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substantially justified in that the parties had a genuine dispute on matters on which reasonable could

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differ as to the appropriate outcome.” Roberts v. Clark County School District, 312 F.R.D. 594, 609

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(D. Nev. 2016). Further, “even if there is no substantial justification, sanctions should not be imposed

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if ‘other circumstances’ make such sanctions ‘unjust.’” Hyde & Drath v. Baker, 24 F.3d 1162, 1172

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(9th Cir. 1994). The burden of showing special circumstances is on the party subject to sanctions. Id.

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at 1171 (citing Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir.1983).
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“[G]ood or bad faith may be a consideration in determining whether imposition of sanctions

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would be unjust.” Painter v. Atwood, 2013 WL 4774762, *2 (D. Nev. Sept. 3, 2013) (citing Hyde &

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Drath, 24 F.3d at 1171). Here, there is no indication that Plaintiff’s conduct was the result of bad faith.

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Plaintiff produced all responsive documents and refused to identify which documents corresponded to

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which requests based on her counsel’s erroneous view of the law. See Docket No. 88 at 6. As in

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Painter, this dispute “appears to be an isolated incident” in Plaintiff’s otherwise cooperative approach

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to discovery. Painter, 2013 WL 4774762 at *2.

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Further, Plaintiff submits that sanctions would be unjust due to her financial circumstances.

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Docket No. 88 at 6. “Although financial indigence by itself does not necessarily make an award of

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expenses unjust, ‘there are situations in which financial indigency may tilt against the imposition of

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Rule 37 sanctions.’” Painter, 2013 WL 4774762 at *3 (quoting Bosworth v. Record Data of Maryland,

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Inc., 102 F.R.D. 518, 521 (D. Md. 1984). One of those situations is where a fee request is unreasonable.

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Id.

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Also as in Painter, Defendant’s fee request is unreasonable. Defendant requests $13,100 in

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attorneys’ fees, which reflect 52.4 hours spent prosecuting the underlying motions. Docket No. 80 at

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7-8.3 52.4 hours spent prosecuting a motion to compel and requesting sanctions is clearly unreasonable.

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Walker v. N. Las Vegas Police Dep’t, 2016 WL 3536172 at *3 (finding 47.7 hours spent prosecuting

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motion to compel and requesting sanctions to be clearly unreasonable); see also Alutiiq Int'l Solutions,

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LLC v. Lyon, 2012 WL 4182026, at *3-4 (D. Nev. Sept. 17, 2012) (finding 34 hours spent on motion

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to compel to be unreasonable); Marrocco v. Hill, 291 F.R.D. 586, 589 (D. Nev. 2013) (finding 30.6

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hours spent on motion to compel to be unreasonable); Izzo v. Wal-Mart Stores, Inc., 2016 WL 1337335,

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*3-4 (D. Nev. Apr. 5, 2016) (finding 47.9 hours spent on opposition to motion to compel to be

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unreasonable). The underlying discovery dispute turned principally on an unsupported privilege claim

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and a refusal to identify whether responsive documents were produced. Docket No. 78 at 2-6.

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Considering these issues, the motion did not “necessitate extensive legal research or work.” Painter,

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Defendant requests fees for 42.7 hours and 9.7 hours spent on prosecuting the motion to compel
and motion for attorneys’ fees, respectively. Docket No. 80 at 7-8.
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2013 WL 4774762 at *3. Therefore, Defendant’s requested fees are unreasonable.

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In light of the isolated nature of Plaintiff’s misconduct and the unreasonableness of Defendant's

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expenses coupled with Plaintiff’s limited financial resources, the Court finds that an award of sanctions

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would be unjust. Accordingly, pursuant to Rule 37(a)(5)(C), the Court DENIES Defendant’s motion

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for attorneys’ fees.

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IT IS SO ORDERED.

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Dated: July 28, 2016

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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