Denton et al v. Suter
MEMORANDUM OPINION AND ORDER: The Court DENIES Plaintiffs' Motion for Attorneys' Fees [Dkt. No. 190 ], though without prejudice as to their request for fees for any work performed not in connection with Plaintiffs' unsuccessful motions. (Ordered by Magistrate Judge David L. Horan on 6/12/2017) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
PETER DENTON, ET AL.,
MEMORANDUM OPINION AND ORDER
Plaintiffs Peter Denton and Harvest Investors, L.P. have filed a Motion to
Award Fees for Compliance with Discovery and Contempt Orders [Dkt. No. 190], which
has been referred to the undersigned United States magistrate judge for determination
under 28 U.S.C. § 636(b). See Dkt. No. 46.
The parties met and conferred on this motion and continue to disagree. At the
Court’s direction, see Dkt. No. 199, Defendant Rudolf Suter filed his response, Dkt. No.
203, and Plaintiffs filed their reply, Dkt. Nos. 204. Although Plaintiffs have requested
a hearing on this motion, the Court finds that there is no need for one.
For the reasons and to the extent explained below, the Court DENIES without
prejudice Plaintiffs Peter Denton and Harvest Investor L.P.’s Motion to Award Fees
for Compliance with Discovery and Contempt Orders [Dkt. No. 190].
Plaintiffs each obtained judgments against Mr. Suter for over $1,000,000.00.
Plaintiffs subsequently served Mr. Suter post-judgment discovery requests as
part of their attempt to collect on their judgments.
Mr. Suter did not fully respond to Plaintiffs’ discovery requests, even after the
Court ordered him to do so. See Dkt. No. 173 (citing this failure to hold Mr. Suter in
contempt). He, instead, left the country.
United States District Judge David C. Godbey entered an order finding Mr.
Suter to be “in civil contempt of this Court.” Id. at 6. He specifically ordered that
“Defendant shall be coercively incarcerated until” certain conditions are met. See id.
at 6-7 (listing the conditions that must be met).
Mr. Suter returned to the United States several months later and was arrested
based on Judge Godbey’s Order of Civil Contempt and Coercive Incarceration [Dkt. No.
173] (the “Contempt Order”) and the corresponding warrant for his arrest. See Dkt.
Nos. 174 & 175 at 1-2. He also now faces criminal charges in a separate proceeding
pending in this court as Case No. 3:17-cr-46-N (N.D. Tex.).
In their Motion to Award Fees for Compliance with Discovery and Contempt
Order, Plaintiffs seek attorneys’ fees for the time that they have spent on this case
since Mr. Suter’s arrest in December 12, 2016. They specifically ask for fees for the
“approximately 75 hours” they have spent trying to “enforc[e] the Orders compelling
[Mr.] Suter to obey the discovery rules, the discovery process and the Order of
Contempt.” Dkt. No. 190 at 2.
Plaintiffs’ counsel spent at least part of the 75 hours at issue preparing four
motions that would be filed before this Court: Plaintiffs’ Motion to Enforce Attorneys’
Fees Award [Dkt. No. 182], Motion for Ongoing Discovery [Dkt. No. 184], Motion to
Compel Enforcement of Turnover Order in Aid of Satisfaction of Judgments [Dkt. No.
187], and this Motion for Attorney Fees for Compliance with Discovery [Dkt. No. 190].
The undersigned denied two of these motions, see Dkt. Nos. 206 & 207, and
recommended that Judge Godbey deny another, see Dkt. No. 205.
Plaintiffs’ counsel also appear to have spent part of the 75 hours at issue on
other activities. See Dkt. No. 190 at 2 (Plaintiffs describing the “approximately 75
hours of attorney and legal assist time” at issue as time spent “investigating the
situation, responding to lawyers in New York, preparing court ordered responses, filing
motions, conducting legal research, reviewing [Mr. Suter’s] testimony[,] and preparing
a logical way for [Mr.] Suter to cure his discovery violations and comply with his
Plaintiffs contend that “there are multiple bases for this Honorable Court to
order [Mr.] Suter to pay for the fees [they] ha[ve] incurred as a result of [Mr.] Suter’s
non-compliance with the Orders of this Honorable Court.” Id. According to Plaintiffs,
these include Federal Rules of Civil Procedure 37(c) and 37(d) and the Court’s contempt
Mr. Suter responds that “Rule 37 does not apply in this instance, because [he]
has not committed a new violation of the discovery rules during his incarceration. And
Plaintiffs’ alternative suggestion that fees should be awarded under the Court’s
contempt power is meritless – even if [the undersigned] were authorized to impose such
an order without District Court approval, see 28 U.S.C. § 636(e) – because [he] is
already laboring under an Order of civil contempt and remains subject to that Order.
He has done nothing since that Order was issued to justify an additional finding of
contempt or further sanctions.” Dkt. No. 203 at 3.
Legal Standards and Analysis
Plaintiffs are not entitled to fees for time preparing motions that are either
meritless, premature, or both.
Plaintiffs argue that they are entitled to attorneys’ fees, at least in part, for the
time they have spent in preparing motions they have filed since Mr. Suter returned to
the United States. Plaintiffs have filed these motions to either recover attorneys’ fees
from Mr. Suter or satisfy their judgment against him.
Plaintiffs are not entitled to the fees they request to the extent they are based
on their work on these motions. The Court denied Plaintiffs’ Motion to Enforce
Attorneys’ Fees Award [Dkt. No. 182] and Motion for Ongoing Discovery [Dkt. No. 184]
as either premature, meritless, or both, see Dkt. Nos. 206-07, and denies the motion at
issue for the reasons described below. It would be counter-productive to award
Plaintiffs’ attorneys’ fees for the time that they spent filing unsuccessful motions that
also required time and expense by the Court and Mr. Suter. See FED. R. CIV. P.
37(a)(5)(B) (When a discovery motion “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, including attorney’s fees. But the court must not order this
payment if the motion was substantially justified or other circumstances make an
award of expenses unjust.”).
Mr. Suter’s continued failure to either respond to Plaintiffs’ discovery requests
or satisfy their judgments is arguably the impetus for these motions. But, as Mr. Suter
correctly notes, he “has done nothing to require Plaintiffs to incur [these] additional
fees.” Dkt. No. 203 at 2. Rather, these motions and the unsuccessful arguments
supporting them “are the product of Plaintiffs’ own undertakings.” Id. at 5.
For this reason, the Court denies Plaintiffs’ motion to the extent that they seek
attorneys’ fees in connection with Plaintiffs’ Motion to Enforce Attorneys’ Fees Award
[Dkt. No. 182], Plaintiffs’ Motion for Ongoing Discovery [Dkt. No. 184], and this Motion
for Attorney Fees for Compliance with Discovery [Dkt. No. 190].
Plaintiffs are not entitled to attorneys’ fees for their expenses preparing the
Motion for Enforcement of Turnover Order, at least at this time.
Unlike the other motions for which Plaintiffs seek fees, the Court has yet to
formally rule on Motion to Compel Enforcement of Turnover Order in Aid of
Satisfaction of Judgments [Dkt. No. 187]. Accordingly, even if the Court were to find
that there was some basis for awarding fees to the prevailing party on this motion, it
is premature for Plaintiffs to seek these fees now – particularly where the undersigned
has recommended that Judge Godbey deny it. See Dkt. No. 205. For this reason, the
Court denies Plaintiffs’ motion to the extent that Plaintiffs seek fees in connection with
Plaintiffs’ Motion to Compel Enforcement of Turnover Order in Aid of Satisfaction of
Judgments [Dkt. No. 187].
Plaintiffs are not entitled to attorneys’ fees for their other expenses, at least at
In addition to the fees in connection with their motions, Plaintiffs also seek
attorneys’ fees for the other work that they performed to enforce and execute the terms
of the Contempt Order and to ensure Mr. Suter’s compliance with his discovery
As explained above, the parties dispute whether the Court has the authority to
award the fees they seek based on Federal Rule of Civil Procedure 37(c) and Rule 37(d)
or the Court’s inherent power to sanction the parties for failing to comply with a court
The Court denies this motion – without weighing in on these arguments at this
time – because it cannot determine the precise relief that Plaintiffs would be entitled
to even if the Court were inclined to grant Plaintiffs motion as to the remaining fees.
See Northern Telecom, Inc. v. Datapoint Corp., No. 3:82-cv-1039-D, 1992 WL 210076,
at *4 (N.D. Tex. June 4, 1992) (denying Plaintiff’s motion without prejudice because
“[t]he court cannot determine at this juncture the precise relief to be granted”).
Plaintiffs have included time entries to support the fees that they seek on this
motion. But this list of time entries includes time that Plaintiffs spent working on their
unsuccessful motions, for which they are not entitled to fees. Some of these entries
plainly relate to work on their motions. See, e.g., Dkt. No. 190, Ex. 1-A at 3
(“Finalization of Motion to Enforce Court Order”). But others are less clear. See, e.g., id.
at 2 (“Preparation of Reports to Peter Denton”).
As a result – even if the Court were inclined to go through each time entry listed
– it would be unable to determine the specific fees that Plaintiffs incurred for work that
is entirely separate from their work on their unsuccessful motions.
The Court DENIES Plaintiffs’ Motion for Attorneys’ Fees [Dkt. No. 190], though
without prejudice as to their request for fees for any work performed not in connection
with Plaintiffs’ unsuccessful motions. See generally Brown v. Bridges, No. 3:12-cv-4947P, 2015 WL 410062, *1 -*4 (N.D. Tex. Jan. 30, 2015) (explaining that, when a district
judge refers a motion for sanctions to a magistrate judge, the sanction chosen by the
magistrate judge, rather than the sanction sought by the party, governs the
determination of whether Federal Rule of Civil Procedure 72(a) or 72(b) applies and
that, when the magistrate judge finds that dismissal or another sanction disposing of
a claim is unwarranted, the motion should be characterized as non-dispositive and may
be ruled on by the magistrate judge) (followed in Green Hills Dev. Co., LLC v. Credit
Union Liquidity Servs., LLC, No. 3:11-cv-1885-L-BN, Dkt. No. 373 at 2 (N.D. Tex. Dec.
DATED: June 12, 2017
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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