DaVita Healthcare Partners, Inc. v. San Juan Independent Practice Association, et al.

Filing 79

ORDER by Magistrate Judge Laura Fashing finding as moot in part and granting in part 69 Motion to Compel. Counsel for DaVita shall submit an affidavit of reasonable expenses, including attorneys fees, incurred in the preparation of the motion to compel by January 6, 2017. SJRMCs counsel shall have until January 20, 2017 to file objections to DaVitas requested expenses. (ccp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVITA HEALTHCARE PARTNERS, INC.,
F/K/A DAVITA, INC., a Delaware Corporation
Plaintiff,
v.

1:16-cv-00125-RJ-LF

SAN JUAN INDEPENDENT PRACTICE
ASSOCIATION, a New Mexico corporation; and
SAN JUAN REGIONAL MEDIAL CENTER, INC.,
A New Mexico corporation,
Defendants.
ORDER ON MOTION TO COMPEL RESPONSES TO DAVITA’S SECOND
SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION
THIS MATTER is before the Court on plaintiff DaVita Healthcare Partner, Inc.’s
(“DaVita”) Motion to Compel Responses to DaVita’s Second Set of Interrogatories and Requests
for Production (Doc. 69). Defendant San Juan Regional Medical Center (“SJRMC”) filed a
response (Doc. 71), and DaVita filed a reply (Doc. 73). Having reviewed the parties’
submissions, as well as the relevant law, I find the motion’s request for an order to compel is
MOOT. However, for the reasons stated below, I will GRANT DaVita’s request for attorney’s
fees.
DaVita served its Second Set of Interrogatories and Requests for Production on defendant
SJRMC on August 19, 2016. Doc. 69-1. SJRMC responded to these discovery requests on
September 19, 2016. Doc. 69-2. The next day, Davita emailed SJRMC about what it perceived
as deficiencies in the response, requesting that SJRMC supplement its answers. Doc. 69-3.
SJRMC responded, stating that it would comply with DaVita’s request and provide supplemental

information. 1 Doc. 69-4. DaVita emailed SJRMC on September 24, 2016 and explained that—
because it only had until October 14, 2016 to file a motion to compel if necessary—it needed to
receive all supplemental responses no later than October 7, 2016. 2 Doc. 69-5.
Having received no supplemental responses, DaVita filed its motion to compel on
October 13, 2016. Doc. 69. DaVita asked the Court to issue an order to compel SJRMC to
provide complete answers to DaVita’s Second Set of Interrogatories and Requests for
Production, and for attorney’s fees incurred in connection with the motion to compel. Id. at 6.
Later on the same day that DaVita filed the motion to compel, SJRMC provided supplemental
documents and responses. Doc. 71 at 1. Both parties agree that the Court no longer needs to
issue an order to compel. Doc. 71 at 3; Doc. 73 at 1. The only remaining issue for the Court to
decide is whether DaVita is entitled to attorney’s fees.
SJRMC argues that attorney’s fees are not appropriate because it never represented that it
could meet the October 7, 2016 deadline proposed by plaintiff for supplementing its responses,
and because DaVita did not request a conference with the Court prior to filing its motion to
compel. Doc. 71 at 2. SJRMC further argues that Rule 37 sanctions are not appropriate in this
case. SJRMC asks the Court to analyze the request for attorney’s fees using the factors listed in
Rivera v. Volvo Cars of North America, L.L.C., 2015 WL 11089501 (D.N.M. July 20, 2015), and
to find that it should not be required to pay attorney’s fees. Doc. 71 at 1–2. However, as DaVita
points out, Rivera is not on point. Doc. 73 at 3. Rivera deals with the imposition of sanctions
1

DaVita states that this email was sent on September 23, 2016. Doc. 73 at 2. However, the
document is dated September 19, 2016. Doc. 69-4.
2

D.N.M.LR 26.6 requires a party to file a motion to compel within 21 days after being served
with discovery objections. Federal Rule of Civil Procedure applies to local rules, and, prior to
December 1, 2016, allowed three additional days to act after service by mail or electronic means.
FED. R. CIV. P. 6(a), (d). Thus, DaVita’s motion to compel based on discovery objections served
on September 19, 2016 was due by October 13, 2016, the day it was filed.
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under Federal Rules of Civil Procedure 37(b)(2) and 37(c)—neither of which form the basis of
DaVita’s requested relief. See Rivera, 2015 WL 11089501, at *2; see also Doc. 69 at 1 (stating
that DaVita’s motion was filed pursuant to Federal Rules of Civil Procedure 37(a)(3), (a)(4), and
(a)(5)).
Federal Rule of Civil Procedure 37(a)(5), the rule governing the payment of expenses,
states:
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After
Filing). If the motion is granted--or if the disclosure or requested discovery is
provided after the motion was filed--the court must, after giving an opportunity to
be heard, require the party or deponent 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. But the court
must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
FED. R. CIV. P. 37(a)(5)(A).
Here, SJRMC admits that it provided supplemental discovery requests only after DaVita
filed its motion to compel. Doc. 71 at 2. DaVita did not file this motion without first conferring
in good faith. Both DaVita’s September 20, 2016 and September 24, 2016 emails document this
good faith. The September 24, 2016 email advised SJRMC that it needed supplemental
discovery no later than October 7, 2016. SJRMC’s argument that DaVita needed to contact them
again before filing a motion to compel, Doc. 71 at 2, is without merit. If SJRMC was unable to
produce the supplemental discovery by October 7, 2016, the onus was on SJRMC to
communicate this to DaVita and request an extension, which would have prevented DaVita from
investing the time and expense on a motion to compel.

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SJRMC’s argument that the parties were required to seek a conference with me
prior to filing a motion to compel, Doc. 71 at 2–4, is also unavailing. While I do
encourage telephonic conferences for minor discovery disputes, as DaVita points out,
these conferences are permissive, not mandatory. See Phone Conferences at
http://www.nmd.uscourts.gov/content/honorable-laura-fashing; see also Doc. 73 at 5.
Finally, SJRMC does not argue, nor is there any evidence to support a finding that
SJRMC’s “nondisclosure, response, or objection was substantially justified[,]” or that
other circumstances make the award of attorney’s fees unjust.
Therefore, I order SJRMC to pay DaVita’s reasonable costs, including attorney’s fees, in
bringing the Motion to Compel (Doc. 69). Counsel for DaVita shall submit an affidavit of
reasonable expenses, including attorney’s fees, incurred in the preparation of the motion to
compel by January 6, 2017. See FED. R. CIV. P. 37(a)(5). SJRMC’s counsel shall have until
January 20, 2017 to file objections to DaVita’s requested expenses.
IT IS SO ORDERED.

__________________________
Laura Fashing
United States Magistrate Judge

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