Mountain Dudes v. Split Rock et al

Filing 227

MEMORANDUM DECISION. Signed by Magistrate Judge Dustin B. Pead on 01/07/2014. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

MOUNTAIN DUDES,
Plaintiff,

MEMORANDUM DECISION

v.

Case No. 2:08-cv-00940-CW-DBP

SPLIT ROCK, et al.,

District Judge Clark Waddoups

Defendants.

I.

Magistrate Judge Dustin B. Pead

INTRODUCTION

This supplemental matter was referred to the Court. Plaintiff is Mountain Dudes. Defendant
relevant here is Split Rock, Inc. Relevant nonparties include: (1) Split Rock Interior; (2) Split
Rock Design; (3) Split Rock at Entrada Real Estate Company (Landea Realty); (4) Split Rock
Development Group; (5) Split Rock Development; (6) Split Rock Construction; (7) Split Rock
Holdings; (8) the Ren G. Boyce Family Limited Partnership; (9) the Bartley Smith Family
Limited Partnership; (10) the Kent L. Bylund Family Limited Partnership; and (11) the Joseph L.
and Susan A. Platt Family Protected Limited Partnership. The Court refers to Defendant and the
relevant nonparties collectively as the “Responding Parties.”
The Court now considers Plaintiff’s motion for a protective order and for attorney’s fees
incurred by drafting the motion. (Docket No. 214.) For the reasons discussed below, the Court
GRANTS the motion.
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II.

PROCEDURAL HISTORY

On November 9, 2012, the District Court ordered a default judgment in Plaintiff’s favor
against Defendant Split Rock, Inc. for $1,175,507.98. (Dkt. No. 165.) Defendant failed to
satisfy the judgment. On April 26, 2013, Plaintiff moved for supplemental orders in
supplemental proceedings. (Dkt. No. 178.) On September 29, 2013, the District Court adopted
this Court’s Report and Recommendation to grant Plaintiff’s motion. (Dkt. No. 209.) Pursuant
thereto, this Court held supplemental proceedings on November 12, 2013. (Dkt. No. 212.)
During the hearing, Defendant Split Rock, Inc. produced twenty boxes of documents that
contained employee records. Responding Parties further anticipated producing tax returns.
Responding Parties requested that the documents and tax returns be designated confidential
because they contained employees’ personal identifying information. Plaintiff agreed to this
request. Accordingly, the parties orally stipulated to a protective pertaining to any personal
information in the twenty boxes of documents and tax returns. (Dkt. No. 212.)
The Court instructed the parties to submit a proposed stipulated protective order to reflect
their oral agreement within fourteen days, which date fell on November 26, 2013. (Id.) At the
hearing’s conclusion, the Court warned Responding Parties that it expected them to cooperate
and that it would entertain motions for attorney’s fees and sanctions if they failed to do so.
III.

PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER

After the November 12, 2013 hearing, Plaintiff’s counsel drafted a proposed protective order.
(Dkt. No. 214-1.) Plaintiff’s counsel twice emailed Responding Parties’ counsel to obtain his
approval for the proposed order. (Dkt. No. 214, Ex. A.) 1 Responding Parties’ counsel never

1

Plaintiff’s counsel sent his first email on November 19, 2013, and he sent a follow-up email on
November 25, 2013. (Dkt. No. 214, Ex. A.)
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responded to these emails. To comply with this Court’s November 26, 2013 deadline, Plaintiff
submitted a non-stipulated motion for a protective order on that date. (Dkt. No. 214.)
On December 2, 2013, Responding Parties opposed Plaintiff’s motion for a protective order.
(Dkt. No. 217.) However, on December 19, 2013, Responding Parties filed a reply wherein they
agreed to withdraw their opposition. (Dkt. No. 220 at 3.) In return for withdrawing the
opposition, Responding Parties requested that Plaintiff’s proposed protective order apply to all
documents produced in “post-collection discovery . . . .” (Id. at 2.) 2 The parties never discussed
this issue at the November 12, 2013 hearing. Nevertheless, on January 3, 2014, Plaintiff agreed
to apply its proposed protective order to all post-collection discovery. 3 Given these
circumstances, the Court GRANTS Plaintiff’s motion for a protective order. (Dkt. No. 214.) 4
IV.

PLAINTIFF’S MOTION FOR ATTORNEY’S FEES

Plaintiff requests the reasonable attorney’s fees it incurred by bringing its motion for a
protective order, and having to reply to Responding Parties’ original opposition. (Dkt. No. 218
at 3, 11.) Fed. R. Civ. P. 37(a)(5) “applies to the award of expenses” when a party files a motion
for a protective order. Fed. R. Civ. P. 26(c)(3). If the Court grants the motion, it “must” award
the movant the reasonable expenses it incurred by making the motion, including attorney’s fees.
Id. 37(a)(5)(A). However, the Court must not award expenses where the movant filed the motion
before making a good faith attempt to confer with the opposing party. Id. 37(a)(5)(A)(i).

2

Plaintiff’s proposed protective order already applies to the twenty boxes of documents that
Defendant Split Rock, Inc. produced, as well as additional documents such as tax returns, bank
statements, and all documents referred to in the Supplemental Orders adopted by the District
Court. (See Dkt. No. 214-1 at 2-3; Dkt. No. 189, Ex. 1, Attach. B.)
3

Plaintiff’s counsel, Randy M. Andrus, agreed by leaving a voicemail with this Court’s
Chambers.
4

The Court will concurrently issue the protective order with this Memorandum Decision.
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Additionally, the Court must not award expenses where the opposing party’s failure to cooperate
was “substantially justified,” or where “other circumstances make an award of expenses unjust.”
Id. 37(a)(5)(A)(ii)-(iii).
Here, the Court concludes Plaintiff deserves the attorney’s fees it incurred by filing the
motion for protective order and by replying to Responding Parties’ opposition. Responding
Parties orally stipulated to a protective order at the November 12, 2013 hearing. (Dkt. No. 212.)
After the hearing, Plaintiff drafted a proposed protective order that reflected the parties’ oral
stipulation. (Dkt. No. 214-1.) Plaintiff drafted this proposed order solely for Responding
Parties’ benefit.
Nevertheless, Responding Parties ignored Plaintiff’s two good-faith email attempts to obtain
their consent to the proposed order. (Dkt. No. 214, Ex. A.) Responding Parties’ counsel claims
he “intended to call” Plaintiff’s counsel about the proposed order prior to the November 26, 2013
deadline but did not because he “was involved in an emergency matter, including a Temporary
Restraining Order, and Applications for Preliminary Injunction.” (Dkt. No. 221 at 3 ¶ 10.) This
excuse does not constitute other circumstances that make an award unjust. The Court earlier
warned Responding Parties to cooperate, and provided them with a deadline to submit a
proposed protective order (Dkt. No. 212).
The Court also finds that Responding Parties’ original opposition to Plaintiff’s motion was
not substantially justified. Responding Parties opposed Plaintiff’s motion because they wanted
the documents they produced marked “CONFIDENTIAL” (Dkt. No. 217-2, Ex. B ¶ 7) rather
than “CONFIDENTIAL PRODUCED PURSUANT TO PROTECTIVE ORDER” (Dkt. No.
214-1 at 3 ¶ 1) as Plaintiff proposed. (Dkt. No. 217 at 3-4.) Responding Parties also opposed

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Plaintiff’s motion because Plaintiff’s proposed order did not extend to privileged information
that Responding Parties “inadvertently” produced. (Id. at 4.)
The Court agrees with Plaintiff that Responding Parties’ argument about a
“CONFIDENTIAL” designation borders on the “absurd.” (Dkt. No. 218 at 11.) Plaintiff’s
proposed designation of “CONFIDENTIAL PRODUCED PURSUANT TO PROTECTIVE
ORDER” is “common and standard, and assists as a reminder that there is [a] protective order
involved rather than just a marking of ‘confidential’.” (Id.) The Court similarly rejects
Responding Parties’ privilege argument because the protective order stipulated to by the parties
at the November 12, 2013 hearing never contemplated privileged information.
V.

ORDERS

For the reasons set forth above, the Court issues the following ORDERS:
The Court GRANTS Plaintiff’s motion for a protective order. (Dkt. No. 214.)
Under Fed. R. Civ. P. 26(c)(3) and Fed. R. Civ. P 37(a)(5)(A), the Court GRANTS
Plaintiff’s motion for attorney’s fees incurred by filings its motion for a protective order. (Dkt.
No. 214.) By January 21, 2014, Plaintiff shall submit a memorandum of costs to the Court. In
this memorandum, Plaintiff will specify the amounts it seeks from Responding Parties, and/or
their counsel. By February 4, 2014, Responding Parties may respond to that memorandum.

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After receiving these submissions, the Court will determine an appropriate dollar amount, and
enter the order against the appropriate parties. 5
Dated this 7th day of January, 2014.

By the Court:

Dustin B. Pead
United States Magistrate Judge

5

The Court does not anticipate significant attorney’s fees will be involved given the limited
nature of Plaintiff’s motion and Responding Parties’ opposition. (Dkt. Nos. 214; 217.)
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