Munoz v. John Doe Corporations

Filing 156

ORDER STAYING RULING ON EXPENSES by Magistrate Judge Steven C. Yarbrough. (kfo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROY MUNOZ,
Plaintiff,
vs.

Civ. No. 17-881 WJ/SCY

FCA US LLC,
Defendant.

ORDER STAYING RULING ON EXPENSES
THIS MATTER comes before the me on Defendant’s Notice of Filing of Affidavit of
Amy Bice Larson. Doc. 151. On November 7, 2019, I issued an order denying Plaintiff’s Motion
to Compel. Doc. 148. In that Order, I granted Defendant’s request for reasonable expenses
incurred in opposing Plaintiff’s motion under Fed. R. Civ. P. 37(a)(5)(B). Doc. 148 at 3-4. I
allowed Defendant 14 days from the date of the Order to file an affidavit outlining the expenses
it incurred in responding to the Motion to Compel. Doc. 148 at 4. Defendant filed such an
affidavit on November 21, 2019. Doc. 151. I allowed Plaintiff 14 days after Defendant filed its
affidavit to file any objections to the relief requested. Doc. 148 at 4. On December 5, 2019,
Plaintiff filed his objections to Defendant’s affidavit of attorney fees. Doc. 155. Thus, the
amount of Defendant’s claimed attorneys’ fees that are reasonable is an issue currently pending
before me.
Currently pending before Chief District Court Judge William P. Johnson are Plaintiff’s
Objections to Magistrate Judge’s Order of November 11, 2019 (Document No. 148) Denying
Plaintiff’s Motion to Compel (Document No. 141). Doc. 150. Plaintiff is seeking review of this
non-dispositive order under Fed. R. Civ. P. 72(a). Part of Plaintiff’s objections include an

objection to my award of expenses. Specifically, Plaintiff argues that Rule 37(a)(5)(B) “provides
that the Plaintiff should have been provided the opportunity to appear at a hearing before any
sanctions were awarded.” Doc. 150 at 11. Rule 37(a)(5)(B) mandates that if a motion to compel
is denied, the court “must, after giving an opportunity to be heard, require the movant, the
attorney filing the motion, or both to pay the party or deponent who opposed the motion its
reasonable expenses incurred in opposing the motion.” Fed. R. Civ. P. 37(a)(5)(B) (emphasis
added). I note that when Plaintiff filed his Reply to Defendant’s Response, in which Defendant
explicitly requested costs and attorneys’ fees under Rule 37 (Doc. 143 at 9), he had the
opportunity to be heard on the issue of whether he should have to pay these costs and fees.
Further, now that Defendant has filed an affidavit specifically setting forth the expenses it seeks,
Plaintiff will be provided the opportunity to be heard on the issue of whether those expenses are
reasonable.
The Tenth Circuit has not defined “opportunity to be heard,” but the District of Kansas
has concluded that for an “opportunity to be heard,” “[a]n actual hearing is not necessary . . . ,
and the Court may consider the issue of expenses on ‘written submissions.’” Cardenas v. Dorel
Juvenile Grp., Inc., 231 F.R.D. 616. 622 (D. Kan. 2005). “The ‘written submission’ requirement
is met where the moving party requests expenses in its motion or supporting brief and the
opposing party is given the opportunity to submit a brief in response.” Id.; see also N.M.
Oncology & Hematology Consultants, Ltd. v. Presbyterian Healthcare Servs., No. 12-CV-526
MV/GBW, 2017 WL 4271330, at *2 n.1 (D.N.M. Sept. 25, 2017). In this case, in its response to
Plaintiff’s Motion to Compel, Defendant asked for “costs and attorney fees incurred in opposing”
the motion. Doc. 143 at 9. Even though Plaintiff did not respond to Defendant’s request, he had
an opportunity to do so in his reply. See McCoo v. Denny’s Inc., 192 F.R.D. 675, 697 (D. Kan.

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2000) (“Here, Plaintiff specifically requested their expenses in their Motion to Compel. Denny’s
responded to the Motion, but chose not to address the sanctions issue. The Court therefore finds
that Denny’s has had sufficient ‘opportunity to be heard’ within the meaning of Fed. R. Civ. P.
37.”).
Nonetheless, it is possible that Chief Judge Johnson will rule in Plaintiff’s favor and, if he
does, the issue before me (what amount of attorneys’ fees are reasonable) will become moot.
Therefore, in the interest of judicial economy, I will defer deciding what attorneys’ fees are
reasonable until after Chief Judge Johnson resolves Plaintiff’s Objections to Magistrate Judge’s
Order of November 11, 2019 (Document No. 148) Denying Plaintiff’s Motion to Compel
(Document No. 141). Doc. 150.
IT IS SO ORDERED.

______________________________________
STEVEN C. YARBROUGH
United States Magistrate Judge

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