Davis et al v. Jacob S. Ciborowski Family Trust et al

Filing 115

ORDER denying 110 Motion for Reconsideration. Re: 108 Order on Motion for Attorney Fees. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Dean Davis, et. al.
v.

Civil No. 11-cv-436-PB
Opinion No. 2013 DNH 089

Jacob S. Ciborowski
Family Trust, et. al.
MEMORANDUM AND ORDER
This case involves claims by plaintiffs that defendants –
Jacob S. Ciborowski Family Trust, which owns Phenix Hall in
downtown Concord, and Bagel Works, a café that leases space
within Phenix Hall – violated Title III of the Americans with
Disabilities Act (“ADA”) when they renovated Phenix Hall without
making the entrance accessible to disabled persons.

Magistrate

Judge Landya McCafferty awarded plaintiffs attorney’s fees they
incurred while preparing and filing motions to compel defendants
to provide interrogatory answers and objections to defendants’
motions for protective orders.

Presently before me is

defendants’ motion to reconsider the Magistrate Judge’s decision
(Doc. No. 110).

Because I conclude that the decision is not

clearly erroneous, I deny defendants’ motion.

I.

BACKGROUND

Plaintiffs filed their first amended complaint on September
20, 2011.

Doc. No. 3.

Bagel Works answered on November 21,

2011, and the Trust answered on November 23, 2011.
13, 15.
3, 2012.

Doc. Nos.

The parties jointly filed a discovery plan on January
Doc. No. 27.

On February 2, 2012, plaintiffs served interrogatories and
requests for production on the Trust.1

Doc. No. 33-1 at 1.

On

February 10, 2012, they served interrogatories and requests for
production on Bagel Works.

Doc. No. 34 at 2.

On March 19,

Bagel Works provided unsigned and incomplete responses to
plaintiffs’ discovery requests.

Id.

On March 30, the Trust

provided unsigned and incomplete responses to plaintiffs’
discovery requests, and each defendant provided plaintiffs with
a draft motion for a protective order.
1 at 2.

Doc. Nos. 33-1 at 2, 34-

On April 20, plaintiffs sent a follow-up letter to the

Trust in which they reasserted their requests for answers to the
interrogatories and production of certain documents.

1

Doc. No.

Plaintiffs state that the interrogatories were served by all
three plaintiffs. Doc. No. 33-1 at 1. Defendants apparently
believed that only plaintiff Dean Davis served interrogatories
on them. Doc. Nos. 36 at 1, 38 at 1. The Magistrate Judge
treated the interrogatories as having been served by all three
plaintiffs and noted that the motions to compel were filed by
all three plaintiffs. Doc. No. 77 at 4.
2

33-1 at 2, 7.

Plaintiffs sent a similar follow-up letter to

Bagel Works on April 23.

Doc. No. 34 at 2.

On June 6,

plaintiffs again sent letters to the defendants explaining the
legal basis of their discovery requests.

Doc. Nos. 33-2, 34-2.

A week later, having still not received a substantive response
from the defendants, plaintiffs filed motions to compel the
Trust and Bagel Works to answer the interrogatories and produce
related documents.
A.

Doc Nos. 33, 34.

Contested Discovery Requests
Plaintiffs’ motion to compel the Trust to produce discovery

covered Interrogatories 26, 28, 29, 30, and 31.

Through these

interrogatories, plaintiffs sought two categories of
information: (1) information about the Trust’s communications
with the City of Concord regarding use of the city sidewalk to
build a handicapped accessible entrance to Phenix Hall, and (2)
financial information.
The motion to compel Bagel Works to produce discovery
covered Interrogatories 21, 22, 23, and 24 – which are identical
to the four financial interrogatories (28, 29, 30, and 31)
plaintiffs served on the Trust – and Interrogatories 8, 10, 20,
and 30.

The latter four interrogatories requested information

about Bagel Works’ communications with the Trust and the City of

3

Concord regarding access to Phenix Hall and also requested
information relating to a 1992 letter the Disability Rights
Center apparently sent to Bagel Works.

Doc. No. 34-2 at 6-8,

13.
In each motion, plaintiffs provided substantive arguments
justifying their discovery requests and explaining the relevance
of the subject interrogatories to claims or defenses the parties
raised in the pleadings.

Plaintiffs also noted in each motion

that, even assuming the defendants had a valid basis for
objecting to the discovery, defendants had waived those
objections because their responses were untimely.

Doc. Nos. 33-

1 at 6, 8; 34-1 at 2 6, 10.
Each defendant filed an objection to the motion to compel
served on it, addressing the substantive arguments they believed
justified their refusal to provide the discovery.
37.

Doc. Nos. 35,

Neither defendant addressed the fact that its responses

were untimely.

Plaintiffs filed replies to the objections, and

defendants subsequently filed surreplies.

Doc. Nos. 46, 47, 66,

70.
In combination with their objections to plaintiffs’ motions
to compel, each defendant moved for a protective order.
No. 35, 37.

Defendants later re-filed their motions for

4

Doc.

protective orders as independent documents, Doc. Nos. 49, 50, in
accordance with Magistrate Judge McCafferty’s instructions and
local rules.

Doc. No. 43.

The Trust’s motion for a protective order covered
Interrogatories 10, 15, 16, 17, 19, 20, 27, 28, 29, 30, and 31.
Doc. No. 50-1 at 2-3.

Interrogatories 15-17 requested

information about properties the Trust owns other than Phenix
Hall.

Id. at 6-7.

Interrogatories 10, 20, and 28-31 were

covered by the motion to compel and are described above.
Interrogatory 19 asked the Trust for information about resources
it had consulted to determine Phenix Halls’ historical
significance.

Doc. No. 50-2 at 23.

Interrogatory 27 asked the

Trust whether it had asked the City of Concord for permission to
build a ramp in front of Phenix Hall.

Id. at 31.

Bagel Works’

motion for a protective order covered Interrogatories 21-24,
which relate to Bagel Works’ finances.
B.

Doc. No. 49-1 at 1-2.

Orders on the Motions to Compel and for a Protective Order
1.

Order Granting Plaintiffs’ Motion to Compel

Magistrate Judge McCafferty granted plaintiffs’ motion to
compel.

She concluded that defendants had waived any viable

objections to plaintiffs’ discovery requests because their
responses were untimely, and they failed to address the

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untimeliness of their responses, much less provide “good cause”
for it, as Fed. R. Civ. P. 33(b)(4) requires.2

Doc. No. 77 at 6.

The Magistrate Judge ordered the parties to file briefs on the
issue of whether an award of attorney’s fees would be
appropriate.
2.

Order Denying Defendants’ Motions for Protective
Orders

Magistrate Judge McCafferty denied defendants’ motions for
protective orders because neither defendant provided “good cause
for the court to find that a protective order is necessary . . .
to avoid annoyance, embarrassment, oppression, or undue burden
or expense” as required by Fed. R. Civ. P. 26(c).
at 2.

Doc. No. 78

She then ordered the parties to file briefs on the issue

of whether an award of attorney’s fees in connection with the
motions for protective orders would be appropriate.
C.

Id. at 8.

Motion for Attorney’s Fees
1.

Legal Standard

Under the federal rules, if a motion to compel is granted,
“the court must, after giving an opportunity to be heard, require

2

Although it was unnecessary to reach the merits, “in the
interest of completeness,” the Magistrate Judge explained why
the plaintiffs’ substantive arguments were meritorious and the
motions would have been granted even if the defendants’
responses had been timely. Doc. No. 77 at 6.
6

the party . . . 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.”

Fed. R. Civ. P. 37(a)(5)(A).

Expenses are not

awarded, however, if the opposing party’s nondisclosure, response,
or objection was substantially justified.3

Id.

“‘Substantially

justified’ does not mean ‘justified to a high degree,’ but only
‘justified in substance or in the main – that is, justified to a
degree that could satisfy a reasonable person.’”

Sheppard v. River

Valley Fitness One, L.P., 428 F.3d 1, 12 (1st Cir. 2005) (quoting

3

Expenses also are not awarded if the moving party filed the
motion before making a good faith attempt to obtain the
discovery without court action or if other circumstances would
make the award unjust. Fed. R. Civ. P. 37(a)(5)(A). Defendants
do not dispute that plaintiffs attempted in good faith to
resolve the discovery dispute before filing motions to compel.
An award of expenses may be unjust “where the prevailing party
also acted unjustifiably.” Fed. R. Civ. P. 37 advisory
committee’s notes. Here, defendants argued that it would be
unjust to award attorney’s fees to plaintiffs because defendants
were forced to “cling” to irrelevant defenses when plaintiffs
unreasonably refused to promise that they would not bring a
claim regarding barrier removal. Doc. No. 107-1 at 9.
Defendants further argued that an award of attorney’s fees would
be unjust because they objected only to the timing of discovery.
Id. Magistrate Judge McCafferty concluded that the defenses to
which defendants were forced to “cling” were totally irrelevant
to plaintiffs’ claims. Defendants therefore had no basis for
maintaining those defenses. Plaintiffs were reasonable in
seeking discovery related to the irrelevant defenses that
defendants unreasonably refused to abandon. Defendants failed
to convince the Magistrate Judge that awarding attorney fees
would be unjust, and have not demonstrated why that conclusion
was clearly erroneous.
7

Pierce v. Underwood, 487 U.S. 552, 565 (1988)).

The federal rules

also permit attorney’s fees to be awarded to a party that
successfully opposes a motion for a protective order.

See Fed. R.

Civ. P. 26(c)(3); Sheppard, 428 F.3d at 11.
Following the Magistrate Judge’s orders, plaintiffs filed a

motion for attorney’s fees, seeking a total of $17,550 for 89.45
hours of work allegedly performed in connection with the motions
to compel and the motions for protective orders.

Doc. No. 98 ¶

14.
1.

The Parties’ Arguments

Plaintiffs argued that defendants waived any objections to
the interrogatories because their responses were untimely, and,
therefore, they lacked substantial justification to refuse to
provide discovery or to object to the motion to compel.4

Doc.

No. 98-1 at 5.
Defendants addressed the untimeliness of their discovery
objections in a cursory manner.

They acknowledged receiving a

letter from plaintiffs on March 26, Doc. No. 107-1 at 2, 107-2,
in which the plaintiffs notified the Trust that it had failed to

4

Plaintiffs also made arguments regarding the merits of
defendants’ argument that they were substantially justified in
objecting to plaintiffs’ discovery requests and moving for
protective orders. See Doc. No. 98-1 at 5-8, 9-10, 11-14.
8

timely respond to the interrogatories.5

Doc. No. 98-1 at 5.

On

March 27, defense counsel sent a letter to plaintiffs explaining
that defendants had encountered some problems gathering the
documents necessary to respond to the interrogatories.

Doc. No.

107-1 at 2; 107-2.

Counsel made no attempt in that letter to

justify the delay.

The letter stated simply:

I appreciate your patience in connection with the Trust’s
response to your interrogatories. I emailed James last
week to let him know there was a delay in gathering the
requested documents. I had hoped to have them all by the
end of the week. Unfortunately, that did not happen. I
believe I have them now and will be getting them to you
prior to the deadline in your letter.
Doc. No. 107-2.

Defendants provided no further explanation in

their opposition brief or any of their previous filings for
their untimely responses.
Defendants’ March 27 letter suggests that, at the earliest,
defendants notified plaintiffs of their difficulty gathering
responsive documents in an email to “James” sent the week prior
to March 27.

There is no indication that that email offered an

explanation for the delay, and the email is not in the record.

5

That letter is not in the record, and defendants do not
describe its substance. Plaintiffs made a brief reference to
the March 26 letter in their motion for fees. I assume the
March 26 letter that the plaintiffs mention is the same one to
which the defendants refer. Plaintiffs do not indicate whether
they corresponded with Bagel Works about the fact that its
responses also were late.
9

Although defendants thank plaintiffs for their patience and
refer to a deadline in plaintiffs’ March 26 letter, they neither
assert nor offer evidence that, within the initial thirty days
after serving the interrogatories, the plaintiffs agreed to
extend the deadline for responding to the interrogatories.
3.

Order Granting Plaintiffs’ Motion for Attorney’s Fees

Magistrate Judge McCafferty concluded “that defendants have
not met their burden to show that their actions were either
substantially justified or that unusual circumstances exist
which would make an award of fees unjust.”

Doc. No. 108 at 3.

Consistent with this conclusion, she awarded plaintiffs fees in
the amount of $11,000 for work related to the motions to compel
and motions for protective orders.

Id. at 5.

Judge McCafferty

also concluded that counsel would be required to pay the fees,
stating, “Based on the circumstances that led to the motions to
compel and the motions for a protective order . . . it appears
that defendants’ discovery conduct was based on the advice of
counsel.”

Id. at 9.

Defendants have filed a motion for reconsideration of the
Magistrate Judge’s order awarding attorney’s fees and requiring
that counsel pay the fees.6

6

Defendants make a third argument that the court should wait to
10

II.

STANDARD OF REVIEW

I construe a motion for reconsideration of a magistrate
judge’s decision imposing discovery sanctions as an appeal from
an order deciding a non-dispositive motion.

Phinney v.

Wentworth Douglas Hosp., 199 F.3d 1, 6 (1st Cir. 1999).

On a

timely appeal of an order deciding a non-dispositive motion,
“the district judge may . . . set aside the order if it ‘is
clearly erroneous or contrary to law.’”

PowerShare, Inc. v.

Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010) (quoting Fed. R.
Civ. P. 72(a)).

Under this standard, I accept the magistrate’s

“findings of fact and conclusions drawn therefrom unless, after
scrutinizing the entire record, [I] form a strong, unyielding
belief that a mistake has been made.”

Phinney, 199 F.3d at 4

(citation and quotations omitted); see also Riggs v. Peschong,
Civil No. 06-CV-366-JD, 2008 WL 1995453, *2 (D.N.H. May 6,
2008).

If the magistrate judge “does not offer a reasoned

award attorney’s fees, if at all, until the litigation is over.
Defendants cite no legal authority in support of their position.
They also raise this issue for the first time in their motion
for reconsideration. A motion for reconsideration is not “a
vehicle . . . for litigating for the first time issues the Court
was not previously asked to decide.” Northwest Bypass Group v.
U.S. Army Corps of Engineers, 490 F. Supp. 2d 184, 189 (D.N.H.
2007). Accordingly, I decline to address the merits of their
suggestion.
11

explanation” for her decision, the court must review the record
“‘with particular, even painstaking care.’”

Holland v. Island

Creek Corp., 885 F. Supp. 4, 5 (D.D.C. 1995) (quoting Berger v.
Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1385, 1408
(D.C. Cir. 1988) (citation and quotations omitted).
Here, Magistrate Judge McCafferty concluded that the
defendants lacked substantial justification to object to
plaintiffs’ discovery requests and motions to compel, or to file
motions for protective orders.

Although she provided extensive

analysis supporting her decisions in the orders granting the
motions to compel and denying the motions for protective orders,
she did not explain in the order awarding fees why she concluded
that defendants lacked substantial justification for objecting to
plaintiffs’ discovery requests.

Thus, I review the record with

“painstaking care” to determine whether her ruling was clearly
erroneous.

A.

See Holland, 885 F. Supp. at 5.

Motion for Reconsideration
To succeed on their motion for reconsideration, defendants

must demonstrate that they were substantially justified in
concluding that they had not waived their right to object to
plaintiffs’ interrogatories; only then will the court consider
the substance of their objections.

See, e.g., Afreedi v.

Bennett, 517 F. Supp. 2d 521, 525-26 (D. Mass. 2007) (granting
12

motion for fees where counsel failed to make timely responses to
discovery requests and waited months after the due date to
feebly explain the delay, raising the excuse of her client’s
mental health problems in an opposition to a motion for fees);
Cargill, Inc. v. Ron Burge Trucking, Inc., 284 F.R.D. 421, 42428 (D. Minn. 2012) (granting motion for fees where the party’s
responses were untimely, there was no evidence that the parties
agreed to extend the deadline for responding, and the offending
party raised objections that it had previously waived).
The Federal Rules of Civil Procedure clearly state that the
party responding to interrogatories must “serve its answers and
any objections within 30 days after being served with the
interrogatories” unless the parties stipulate to or the court
orders a different deadline.

Fed. R. Civ. P. 33(b)(2).

Here,

neither party has represented either that the parties agreed to
extend the deadline or that the court ordered an extension
beyond thirty days.

Thus, when defendants filed their responses

at the end of March 2012, those responses were untimely.
The rules further state that “[a]ny ground not stated in a
timely objection is waived unless the court, for good cause,
excuses the failure.”

Fed. R. Civ. P. 33(b)(4).

Courts

consider a variety of factors in determining whether a party had

13

good cause (or whether there was “excusable neglect”) in failing
to timely respond to discovery requests.

Williams v. N.Y. City

Dep’t of Corr., 219 F.R.D. 78, 85 (S.D.N.Y. 2003) (citing
Pioneer Inv. Servs. Co. v. Brunswick Assoc., 507 U.S. 380, 395
(1993)).

Those factors include “prejudice to the adversary, the

length of the delay, the reason for the error, the potential
impact on the judicial proceedings, whether it was within the
reasonable control of the movant, and whether the movant acted
in good faith.”

Id. (citations and quotations omitted).

See

Kissick v. Three Deer Assoc., 265 F.R.D. 55, 57 (D. Conn. 2010)
(finding good cause where defendants’ objections were untimely
due to administrative error); Williams, 219 F.R.D. at 86
(S.D.N.Y. 2003) (finding lack of good cause where plaintiff
failed to comply with a discovery deadline, provided no excuse
for her failure, and never requested an extension of the
discovery deadline).
Defendants acknowledged their untimeliness for the first
time in their joint brief objecting to plaintiffs’ motion for
fees.

See Doc. No. 107; Kissick, 265 F.R.D. at 57.

Although

defendants implied in their objection that plaintiffs assented
to their late responses, they never actually asserted that the
parties agreed to extend the deadline for defendants’ responses.

14

See Doc. No. 107.

Nor did they otherwise attempt to explain the

late filings or address the factors that contribute to a finding
of good cause.
Even now, defendants have failed to explain why they were
substantially justified in pursuing objections to
interrogatories that they had waived by failing to file timely
responses.

In fact, they do not address the timeliness of their

responses at all in their motion for reconsideration.
No. 110-1.

See Doc.

Under these circumstances, I cannot conclude that

their resistance to the motion to compel was substantially
justified.
Defendants also lacked substantial justification for filing
motions for protective orders.

The only arguments defendants

offered in support of their motions were the arguments they were
required to assert, if at all, in timely objection to
plaintiffs’ interrogatories.

Defendants may not circumvent Fed.

R. Civ. P. 33(b)(5), barring untimely objections to
interrogatories, by filing motions for protective orders on the
basis of objections it should have timely lodged against
properly served interrogatories.
Magistrate Judge McCafferty’s conclusion that the
defendants lacked substantial justification for objecting to

15

plaintiffs’ discovery requests was not clearly erroneous given
that defendants waived their objections by failing to respond
within thirty days to plaintiffs’ interrogatories.
B.

Requirement that Counsel Pay the Attorney’s Fees
Courts have discretion under Fed. R. Civ. P. 37(a)(5)(A) to

determine against whom to assess attorney’s fees.

See, e.g.,

Saalfrank v. Town of Alton, Civil No. 08-cv-46-JL, 2010 WL
839884, at *12 (D.N.H. Mar. 5, 2010); Enterasys Networks, Inc.
v. DNPG, LLC, Civil No. 04-CV-209-PB, 2006 WL 1633598, at *1
(D.N.H. June 12, 2006).
In this case, Magistrate Judge McCafferty concluded that,
in light of the circumstances leading to the motions, “it
appears that defendants’ discovery conduct was based on the
advice of counsel.”

Doc. No. 108 at 9.

Defendants made no

argument to the contrary in their objection to plaintiffs’
motion for fees.

Doc. No. 107.

In their motion for

reconsideration, defendants state only that the record does not
affirmatively demonstrate that counsel was the driving force
behind defendants’ discovery conduct; they do not assert or
provide any evidence that the defendants’ discovery conduct was
not based on the advice of counsel.

Plaintiffs take no position

on whether counsel or his clients should pay attorney’s fees.

16

Discovery decisions are normally strategic decisions made by
attorneys and not their clients.

Defendants have failed to

demonstrate that Magistrate Judge McCafferty’s conclusion was
“clearly erroneous,” and I form no “strong, unyielding belief
that a mistake has been made.”
and quotations omitted).

Phinney, 199 F.3d at 4 (citation

Accordingly, I affirm the Magistrate

Judge’s order requiring defendants’ counsel to pay plaintiffs’
attorney’s fees.
IV.

CONCLUSION

I might well have reached a different conclusion in this
case if I had reviewed this matter de novo.

Viewed with the

benefit of hindsight, it is quite clear that this is a trivial
dispute that could have been avoided if counsel on both sides
had worked cooperatively to solve the problem.

While the

Magistrate Judge’s fee award in this case was not clearly
erroneous, the Disability Rights Center is not free from blame.
The interrogatories in question sought information with respect
to irrelevant defenses and the plaintiffs would have had no need
for the information if the parties had acted reasonably and
agreed that the defenses could be withdrawn without prejudice.
People hire lawyers to resolve disputes, not to exacerbate them.
Sadly, this case has not been a shining example of what we
17

expect from members of the New Hampshire bar.

The motion to

reconsider (Doc. No. 110) is denied.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
June 26, 2013
cc:

Aaron Jesse Ginsburg, Esq.
Cindy Robertson, Esq.
James P. Ziegra, Esq.
Jack P. Crisp, Jr., Esq.

18