Leon v. Summit County et al

Filing 57

MEMORANDUM DECISION AND ORDER granting 19 Motion to Dismiss for Failure to State a Claim; denying 22 Motion to Amend/Correct Complaint; denying 27 Motion to Convert Filings. Objections to Expenses are overruled. Signed by Judge David Nuffer on 11/28/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ANEXORA LEON,
Plaintiff,
v.
SUMMIT COUNTY and OFFICER
GRAHAM,
Defendants.

MEMORANDUM DECISION AND
ORDER:
• GRANTING [19] DEFENDANTS’
MOTION TO DISMISS;
• DENYING [22] PLAINTIFF’S
MOTION FOR LEAVE
TO AMEND THE COMPLAINT;
• DENYING [27] PLAINTIFF’S
MOTION TO CONVERT FILINGS
TO SUMMARY JUDGMENT; and
• OVERRULING [42] DEFENDANTS’
OBJECTION TO AWARD OF
EXPENSES ON MOTION TO
COMPEL
Case No. 2:17-cv-00165-DN-EJF
District Judge David Nuffer

Plaintiff Anexora Leon has filed suit against Summit County and Officer Mike Graham
(“Defendants”) alleging civil rights violations from a traffic stop and subsequent arrest for
driving under the influence of alcohol (“DUI”). Defendants have moved to dismiss (the “Motion
to Dismiss”) 1 for failure to state a claim under Rule 12(b)(6). 2 Ms. Leon has moved to amend the

1

Motion to Dismiss, docket no. 19, filed April 27, 2017. This was the second of two motions to dismiss filed by
Defendants. The first motion to dismiss addressed the initial complaint, which was amended following the first
motion to dismiss. Motion to Dismiss, docket no. 5, filed March 31, 2017. The first motion to dismiss already has
been terminated as moot. Order Finding as Moot Motion to Dismiss, docket no. 56, filed November 8, 2017. In the
second Motion to Dismiss, which is resolved by this Memorandum Decision and Order, Defendants refiled and
expanded upon their first motion to dismiss in response to the Amended Complaint.
2

Fed. R. Civ. P. 12(b)(6).

operative complaint (the “Motion to Amend”), 3 which is the First Amended Complaint (the
“Complaint”).
Complaint and Motion to Amend. The Complaint fails to state a claim under Section
1983 4 based on a Fourth Amendment violation or malicious prosecution. Under the totality of
the circumstances presented in the Complaint, Deputy Graham had at least an arguable
reasonable suspicion to make an arrest because Ms. Leon smelled of alcohol, admitted to some
drinking before driving, had slowed speech, and refused a portable blood test (“PBT”).
Amendment is futile because the additional allegations and claims in Ms. Leon’s proposed
Second Amended Complaint do not cure the deficiencies in her case or state a claim for relief.
The Motion to Dismiss is therefore GRANTED, and the Motion to Amend is DENIED.
Motion to Convert. During briefing of the Motion to Dismiss and Motion to Amend, the
parties raised a number of allegations of fact and sources outside the pleadings, prompting Ms.
Leon to file a Motion to Convert Filings to Summary Judgment (the “Motion to Convert”). 5 The
Motion to Convert is DENIED because the case can be decided on the Motion to Dismiss based
on the allegations in the Complaint and judicial notice.
Objection to Award of Expenses. While these motions were pending, Magistrate Judge
Furse resolved a motion to compel discovery (the “Motion to Compel”) 6 in Ms. Leon’s favor and
granted Ms. Leon her expenses from Defendants for the Motion to Compel. 7 Defendants

3

Motion to Amend, docket no. 22, May 11, 2017.

4

42 U.S.C. § 1983.

5

Motion to Convert Filings into Summary Judgment Motion, docket no. 27, May 26, 2017.

6

Motion to Compel Discovery, docket no. 35, filed July 5, 2017.

7

Memorandum Decision and Order Granting in Part Motion to Compel Discovery, docket no. 45, July 19, 2017.

2

objected to the decision on the expenses (the “Expenses Objection”). 8 The Expenses Objection is
OVERRULED. Even though Defendants prevail on their Motion to Dismiss, the dismissal of
Ms. Leon’s claims does not excuse Defendants’ failure to comply with discovery requirements.
Defendants have had an opportunity to be heard on the issue of whether to impose expenses, 9
and Defendants arguments are rejected. Defendants are permitted a response, if any, to Ms.
Leon’s pending Affidavit in Support of Attorney Fees, 10 but only as to the amount of fees
claimed and not as to the grounds for the award.
Table of Contents
Background ..................................................................................................................................... 3
Discussion ....................................................................................................................................... 5
Motion to Dismiss ............................................................................................................... 5
Ms. Leon’s Allegations Do Not State a Fourth Amendment Claim. ...................... 6
Ms. Leon’s Malicious Prosecution Claim Does Not State a Claim for Relief. ...... 8
No Underlying Cause of Action Supports Injunctive Relief. ............................... 10
Class Certification Is Moot. .................................................................................. 11
Motion to Amend .............................................................................................................. 11
Motion to Convert to Summary Judgment........................................................................ 14
Objection to Expenses on Motion to Compel ................................................................... 14
Order ........................................................................................................................................... 16

BACKGROUND
Ms. Leon sued Summit County, Utah, and Officer Graham, a deputy in the Summit
County Sheriff’s Office. 11 The Complaint contains “Class Allegations” plus three identified
causes of action: (1) a Section 1983 claim under the Fourth Amendment; (2) a Section 1983

8

Objection to Magistrate Judge Decision, docket no. 42, filed July 18, 2017 (filed based on the oral ruling from
Judge Furse, docket no. 39, filed July 11, 2017).
9

Id. at 9–10.

10

Affidavit in Support of Attorney Fees, docket no. 44, filed July 18, 2017.

11

Complaint (“Initial Complaint”), docket no. 2, filed March 7, 2017.

3

claim for malicious prosecution; and (3) a demand for injunctive relief. 12 The proposed Second
Amended Complaint adds allegations of improperly conducted field sobriety tests and a Section
1983 Claim based on Summit County’s alleged failure to train Deputy Graham. 13
The allegations concern a traffic stop that occurred on October 27, 2016. 14 Deputy
Graham stopped Ms. Leon based on her expired car registration. 15 While interacting with Ms.
Leon regarding her expired registration, Deputy Graham expanded his search of Ms. Leon based
on suspicion that she had consumed alcohol. 16 Deputy Graham smelled alcohol. 17 He observed
that Ms. Leon spoke quickly. 18 Ms. Leon admitted to drinking recently before the stop—that
“she had consumed one beer at lunch.” 19 Ms. Leon then performed field sobriety tests, which did
not dispel Deputy Graham’s concerns. 20 In the Proposed Second Amended Complaint, Ms. Leon
alleges that the field sobriety tests were not conducted properly. 21
Ms. Leon undisputedly drank alcohol prior to Deputy Graham’s traffic stop. The only
question was exactly how much alcohol was in her system, which required a chemical test.
Deputy Graham requested a portable breath test (PBT), but Ms. Leon did not immediately

12

Amended Complaint, docket no. 15, filed April 13, 2017. The amended complaint (the “Complaint”) is the
operative complaint for purposes of this Memorandum Decision and Order, although allegations in the Initial
Complaint and proposed Second Amended Complaint are cited where pertinent to the analysis of the issues. St.
Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (permitting judicial
notice of the record on a motion to dismiss).
13

Proposed Second Amended Complaint, Attachment 1 to Motion to Amend, docket no. 22-1, filed May 11, 2017.

14

Complaint ¶ 7.

15

Id. ¶¶ 8, 9.

16

Id. ¶¶ 15, 16.

17

Id. ¶ 15.

18

Id. ¶ 18.

19

Id. ¶ 16.

20

Id. ¶¶ 19, 20.

21

Proposed Second Amended Complaint ¶¶ 22–53.

4

comply with the request. 22 Defendants instead were forced to rely on a blood test to which Ms.
Leon submitted, 23 the results of which took time to process.
Based on the observations at the traffic stop, Summit County charged Ms. Leon with
misdemeanor DUI (as well as a license plate infraction). 24 The DUI charge was pending against
Ms. Leon for two and a half months. 25 The blood test results came in showing blood alcohol
content (BAC) at the time of the blood draw was .01, 26 below the legally proscribed limit. 27
Summit County moved to dismiss the case against Ms. Leon with prejudice on January 17,
2017—after reviewing Ms. Leon’s BAC results—and the court granted dismissal. 28
DISCUSSION
Motion to Dismiss
A complaint may be dismissed for failure to state a claim under Rule 12(b)(6). 29
Defendants filed a Motion to Dismiss on this basis. Ms. Leon opposed the Motion to Dismiss. 30
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” 31 As the Supreme Court explained in
Ashcroft v. Iqbal, “only a complaint that states a plausible claim for relief survives a motion to

22

Id. at ¶¶ 55–58; Initial Complaint ¶¶ 18–20.

23

Complaint ¶¶ 21, 24.

24

Id. ¶ 26; Motion to Dismiss at 8.

25

Complaint ¶¶ 26, 27.

26

Id. ¶ 25.

27

Utah Code § 41-6a-502(1).

28

Id. ¶ 27.

29

Fed. R. Civ. P. 12(b)(6).

30

Opposition to Motion to Dismiss, docket no. 24, filed May 25, 2017.

31

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

5

dismiss.” 32 “[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is
entitled to relief.” 33 Also, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” 34 Setting aside the legal
conclusions in the Complaint, Ms. Leon’s well-pleaded facts do not state a plausible claim for
relief for the reasons that follow.
Ms. Leon’s Allegations Do Not State a Fourth Amendment Claim.
Section 1983 provides a civil action for the deprivation of Constitutional rights. 35 Ms.
Leon sues Defendants under Section 1983 for a violation of her Fourth Amendment right to
freedom from unreasonable search and seizure. 36 “A traffic stop is a seizure for Fourth
Amendment purposes, and must be justified by reasonable articulable suspicion.” 37 Ms. Leon
contends that, although Deputy Graham had cause to stop her based on her expired registration,
Deputy Graham “lacked the reasonable suspicion required to expand the scope of the stop” by
investigating and arresting her for DUI. 38
Under Tenth Circuit law, Ms. Leon’s allegations do not support a Section 1983 action
based on the Fourth Amendment. “When a warrantless arrest is the subject of a [Section] 1983
action, the defendant is entitled to qualified immunity if probable cause existed to arrest the

32

556 U.S. 662, 679 (2009).

33

Id. (internal quotation marks and citations omitted).

34

Id. at 678.

35

42 U.S.C. § 1983.

36

Complaint ¶¶ 28–34.

37

U.S. v. Ledesma, 447 F.3d 1307, 1312 (10th Cir. 2006) (citing Terry v. Ohio, 392 U.S. 1, 20 (1968)).

38

Complaint ¶¶ 32–34.

6

plaintiff.” 39 Probable cause to arrest exists if the facts and circumstances within the officer’s
knowledge are sufficient to justify a prudent officer in believing the defendant committed or is
committing an offense. 40 Thus, qualified immunity applies if the officer had “arguable
reasonable suspicion.” 41 A prudent officer is justified in believing a driver has committed a DUI
where (1) the officer witnessed the individual driving a vehicle; (2) the officer observed indicia
of alcohol consumption, including the odor of alcohol and unusual speech; and (3) the driver
refused to take a PBT (breathalyzer). 42 Indicia of alcohol consumption, including the odor of
alcohol, give an officer reasonable suspicion to detain and investigate a driver for DUI. 43
Probable cause may then develop, justifying an arrest, based on the driver’s refusal to take a
PBT. 44 The Tenth Circuit also has found “arguable reasonable suspicion” entitling an officer to
qualified immunity where the driver admitted to having “one beer three hours ago.” 45
Under the totality of the circumstances in this case, Deputy Graham had at least an
“arguable reasonable suspicion” to detain and arrest Ms. Leon for DUI. He observed Ms. Leon
driving a vehicle. 46 He smelled alcohol coming from Ms. Leon’s car and observed that she was
speaking quickly. 47 Ms. Leon admitted to having a beer at lunch before driving. 48 Under Utah
law, all drivers consent to BAC tests by operating a vehicle—so long as the peace officer has

39

Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007) (citing Atwater v. Lago Vista, 532 U.S. 318, 322 (2001)).

40

Id.

41

Vondrak v. City of Las Cruces, 535 F.3d 1198, 1207 (10th Cir. 2008) (quoting U.S. v. Cortez, 449 U.S. 411, 417–
18 (1981)).
42

Wilder, 490 F.3d at 813 (citing Miller v. Harget, 458 F.3d 1251, 1259–60 (11th Cir. 2006)).

43

Id.

44

Wilder, 490 F.3d at 813; Miller, 458 F.3d at 1259–60.

45

Vondrak, 535 F.3d at 1207.

46

Complaint ¶ 7.

47

Id. ¶¶ 15, 18.

48

Id. ¶ 16.

7

grounds to believe the driver violated DUI laws—and drivers are not entitled to choose between
methods for the chemical test. 49 Ms. Leon, however, refused to take a PBT, insisting instead on a
blood test with delayed results. 50 Even though the test results later came back below the legal
limit, the results do not negate Deputy Graham’s arguable reasonable suspicion. “Since probable
cause for a warrantless arrest is determined in terms of the circumstances confronting the
arresting officer at the time of the seizure, the validity of such an arrest is not undermined by
subsequent events in the suspect’s criminal prosecution, such as dismissal of charges or
acquittal.” 51 Deputy Graham is entitled to qualified immunity from Ms. Leon’s Section 1983
claim because the Complaint reveals arguable reasonable suspicion for a DUI arrest.
Summit County’s liability is tied to the liability of Deputy Graham. “A municipality may
not be held liable where there was no underlying constitutional violation by any of its officers.” 52
With no basis to proceed against Deputy Graham, who is entitled to qualified immunity, the
Section 1983 claim for Fourth Amendment violations against Summit County is likewise
dismissed.
Ms. Leon’s Malicious Prosecution Claim Does Not State a Claim for Relief.
Ms. Leon asserts a second cause of action for malicious prosecution under Section
1983. 53 She contends that “Summit County lacked probable cause to charge [her] with a DUI
because her BAC was .01.” 54 Summit County moved to dismiss its DUI case against Ms. Leon

49

Utah Code § 41-6a-520.

50

Proposed Second Amended Complaint ¶¶ 55–58; Initial Complaint ¶¶ 18–20.

51

Summers v. State of Utah, 927 F.2d 1165, 1166–67 (10th Cir. 1991) (internal citations omitted).

52

Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993).

53

Complaint ¶¶ 35–44.

54

Id. ¶ 39.

8

with prejudice after reviewing Ms. Leon’s BAC results, and the court granted dismissal. 55 From
this chain of events, Ms. Leon alleges that “Summit County prosecutes DUIs which lack
probable cause” based on a policy or practice of “commenc[ing] prosecution of DUIs prior to
receiving the results of BAC chemical tests.” 56
The allegation of Summit County’s practices or policies are supported only by the
allegations of fact concerning Ms. Leon’s own experience, which does not state a plausible claim
for relief. As discussed above, Ms. Leon put herself in the position of waiting for blood test
results by refusing a PBT. 57 Without the test results to establish her BAC, Defendants operated
under arguable reasonable suspicion when arresting Ms. Leon and charging her with DUI. 58
Moreover, the cause of action for malicious prosecution under Section 1983 is barred by
prosecutorial immunity. “It is well established that prosecutors are absolutely immune from suit
under section 1983 concerning activities intimately associated with the judicial process, such as
initiating and pursuing criminal prosecutions. 59 “Prosecutors are entitled to absolute immunity
for their decisions to prosecute, their investigatory or evidence-gathering actions, their evaluation
of evidence, their determination of whether probable cause exists, and their determination of
what information to show the court.” 60 The extent of the immunity depends on the function
performed, not the identity of the actor. 61

55

Id. ¶ 27.

56

Id. ¶¶ 42, 43.

57

Proposed Second Amended Complaint ¶¶ 55–58; Initial Complaint ¶¶ 18–20.

58

Vondrak, 535 F.3d at 1207.

59

Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1489 (10th Cir. 1991) (internal quotations omitted) (citing
Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976)).
60

Nielander v. Bd. of Cty. Comm’rs of Cty. of Republic, Kan., 582 F.3d 1155, 1164 (10th Cir. 2009).

61

Kalina v. Fletcher, 522 U.S. 118, 127 (1997)).

9

Here, Ms. Leon’s malicious prosecution claim concerns activities intimately associated
with the judicial process:
•

charging Ms. Leon with a DUI even though her blood test results later revealed a
BAC of .01; 62

•

commencing prosecution of DUIs prior to receiving the result of BAC chemical
tests; 63 and

•

dismissing the charges against Ms. Leon after evaluating the evidence. 64

As part of the judicial process, these activities by Defendants are protected by prosecutorial
immunity. Ms. Leon’s Section 1983 claim for malicious prosecution therefore fails.
No Underlying Cause of Action Supports Injunctive Relief.
Ms. Leon’s third cause of action seeks injunctive relief against Defendants. 65
Specifically, the Complaint requests “an order where Summit County is enjoined from
prosecuting DUI charges against an individual without first obtaining that individuals [sic]
chemical test results.” 66 The claim for injunctive relief is dismissed.
Injunctive relief is a remedy, not an independent cause of action. Injunctive relief is
available as a remedy only where a party prevails on a separate legal theory. Because Ms. Leon’s
two Section 1983 claims fail, so too does her request for injunctive relief.
Also, the requested relief is inconsistent with the law. BAC is only one avenue to proving
a DUI case against a criminal defendant under Utah law. Regardless of the driver’s BAC, a DUI
violation occurs if the driver is under the influence of alcohol “to a degree that renders the person

62

Complaint ¶ 39.

63

Id. ¶ 42.

64

Id. ¶ 40.

65

Id. ¶¶ 45–58.

66

Id. ¶ 58.

10

incapable of safely operating a vehicle.” 67 Summit County should not be required to withhold
charges until it has obtained chemical test results.
Class Certification Is Moot.
Ms. Leon seeks to pursue her claims as the representative of a class of similarly situated
plaintiffs. 68 Because Ms. Leon’s claims are dismissed, class certification is moot. Even assuming
that the action could satisfy the requirements for certification under Rule 23, 69 the prospective
class would be in the same position as Ms. Leon—that is, without a viable claim.
Motion to Amend
With her Motion to Amend, Ms. Leon seeks leave to file a Second Amended
Complaint. 70 After amending once as a matter of course, a party may only amend its complaint
“with the opposing party’s written consent or the court’s leave,” and “[t]he court should freely
give leave when justice so requires.” 71 The courts have identified circumstances in which justice
does not require leave to amend: “on a showing of undue delay, undue prejudice to the opposing
party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously
allowed, or futility of amendment.” 72 Based on a thorough review, the proposed Second
Amended Complaint does not cure the deficiencies in Ms. Leon’s action. “A proposed
amendment is futile if the complaint, as amended, would be subject to dismissal.” 73 The Motion
to Amend is denied because amendment would be futile.

67

Utah Code § 41-6a-502(1)(b).

68

Complaint ¶¶ 59–65.

69

Fed. R. Civ. P. 23(a).

70

Motion to Amend.

71

Fed. R. Civ. P. 15(a)(2).

72

Duncan v. Mgr., Dep’t of Safety, 397 F.3d 1300, 1315 (10th Cir. 2005) (quoting Frank v. U.S. West, Inc., 3 F.3d
1357, 1365 (10th Cir. 1993)).

73

Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir.1999).

11

The proposed Second Amended Complaint includes three of the same causes of action
which are dismissed by this decision: Section 1983 claims for unreasonable search and seizure
and malicious prosecution, and a request for injunctive relief. 74 Because these causes of action
fail to state a claim for the reasons stated in the discussion of the Motion to Dismiss, they are
futile.
Ms. Leon proposes to assert a new claim against Summit County under Section 1983 for
“failure to train.” 75 This claim alleges that Summit County failed to properly train Deputy
Graham in the grounds to expand the scope of a traffic stop; conducting field sobriety tests; and
probable cause to initiate an arrest. 76 The proposed Second Amended Complaint also expands
Ms. Leon’s allegations regarding the field sobriety tests Deputy Graham conducted. 77 Ms. Leon
claims that, given her blood test results showing a BAC of .01, the field tests results suggesting a
higher BAC must have been conducted improperly. 78 Ms. Leon also alleges deficiencies in the
particular tests Deputy Graham administered. 79
This is a poor case for challenging Defendants’ practices in conducting field sobriety
tests. Deputy Graham arrested Ms. Leon based on not only her performance on the tests, but
because he detected the odor of alcohol, because Ms. Leon admitted to some drinking, and
because she refused to take a PBT. Even assuming for purposes of the Motion to Amend that Ms.
Leon’s allegations of improperly conducted field sobriety tests are true, Ms. Leon’s performance

74

Proposed Second Amended Complaint ¶¶ 65–73, 80–99, docket no. 22-1.

75

Id. ¶¶ 74–79.

76

Id. ¶¶ 76–78.

77

Id. ¶¶ 22–64.

78

Id. ¶¶ 28, 37.

79

Id. ¶¶ 22–64.

12

on the tests did not dispel Deputy Graham’s suspicion of intoxication. 80 Ms. Leon’s allegation
that she suffered an unconstitutional expansion of the scope of the traffic stop, an
unconstitutional arrest, or an unconstitutional prosecution 81 is conclusory and not supported by
the allegations of fact. 82 The proposed Second Amended Complaint would not survive a motion
to dismiss and is therefore futile. 83
Ms. Leon’s claims are dismissed, and she is denied leave to amend. Dismissal under
12(b)(6) is generally with prejudice where amending would be futile. 84 In Hargrave v. Chief
Asian, LLC, 85 for example, the Tenth Circuit dismissed a trademark case with prejudice, finding:
“No amendment could change the fact that [plaintiff] did not own the contested trademark.” 86 As
in the Hargrave case, 87 no amendment could change certain dispositive aspects of this case. No
amendment would change the fact that Defendants are a county and police officer entitled to
absolute or qualified immunity. No amendment would change the fact that Ms. Leon admitted to
drinking beer before driving and then refused a PBT. Therefore, the Complaint 88 is dismissed
with prejudice.

80

Amundsen v. Jones, 533 F.3d 1192, 1200 (10th Cir. 2008) (finding no net effect on an officer’s reasonable
suspicion where field sobriety tests neither provided additional evidence of impairment nor dispelled the officer’s
earlier suspicions of intoxication).
81

Proposed Second Amended Complaint ¶ 79.

82

Ashcroft, 556 U.S. at 678.

83

Gohier, 186 F.3d at 1218.

84

Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006).

85

479 F. App’x 827 (10th Cir. 2012).

86

Id. at 831 (citing Brereton, 434 F.3d at 1219).

87

479 F. App’x at 831.

88

Docket no. 15.

13

Motion to Convert to Summary Judgment
Ms. Leon filed the Motion to Convert, seeking to convert the briefing on the Motion to
Dismiss and Motion to Amend to a motion for summary judgment. 89 Defendants oppose the
Motion to Convert. 90 The filings need not be converted to a motion for summary judgment
because the Motion to Dismiss and Motion to Amend can be decided based on the allegations in
the Complaint and the pleadings on file without evaluating the additional facts presented in the
briefing. Therefore, the Motion to Convert is denied.
Objection to Expenses on Motion to Compel
The Magistrate Judge previously granted Ms. Leon’s Motion to Compel discovery from
Defendants. 91 In granting the Motion to Compel, the Magistrate Judge also granted Ms. Leon her
reasonable expenses incurred in making the motion. 92 Defendants object to the decision to grant
Ms. Leon expenses. The Expenses Objection is overruled.
Defendants contend that the decision was procedurally improper because the Magistrate
Judge did not permit “an opportunity to be heard” on the expenses issue as required by Rule
37(a)(5). The rule provides that, absent certain inapplicable exceptions, if a motion to compel is
granted “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.” 93 The deficiency in Defendants’ opportunity to be heard, if any, has been cured.

89

Motion to Convert, docket no. 27.

90

Opposition to Motion to Convert, docket no. 31, filed June 9, 2017.

91

Memorandum Decision and Order Granting in Part Motion to Compel Discovery, docket no. 45, July 19, 2017.

92

Id.; Fed. R. Civ. P. 37(a)(5).

93

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

14

Defendants submitted in their Expenses Objection the reasons they contest the award of
expenses. 94 These reasons have been considered and rejected.
Defendants argue that attorney’s fees are not warranted in this case because they did not
engage in delay tactics; because “boilerplate objections” are not sanctionable; and because
Defendants did not act in bad faith, vexatiously, wantonly, or for oppressive reasons. 95 However,
Defendants have drawn the standard they apply from inapposite sources. In Liguaria Foods, Inc.
v. Griffith Laboratories, Inc., the district judge declined to impose sanctions for boilerplate
discovery responses but then proceeded to put litigators on notice that judges should be
encouraged to impose sanctions for such inadequate discovery responses moving forward. 96 The
Utah case Defendants cite is not binding and predates substantial revisions to Utah’s discovery
rules. 97 The Supreme Court case of Chambers v. NASCO, Inc. 98—holding that fees should be
awarded for bad faith, vexatious, wanton, or oppressive actions—did not involve a motion to
compel. Rather, Rule 37 presumes that a party forced to file a meritorious motion to compel will
be awarded its expenses for the motion, including reasonable attorney’s fees. 99 The Magistrate
Judge correctly granted expenses under Rule 37, and the Expenses Objection is overruled.
Ms. Leon’s counsel already filed an Affidavit in Support of Attorney Fees (the “Fees
Affidavit”). 100 Defendants did not respond to the Fees Affidavit, presumably relying on their

94

Expenses Objection at 9–10.

95

Id.

96

320 F.R.D. 168, 190–91 (N.D. Iowa 2017) (urging judges to impose “increasingly severe sanctions to change the
culture of discovery abuse” because “[f]ederal discovery rules and the cases interpreting them uniformly finding the
‘boilerplate’ discovery culture impermissible are not aspirational, they are the law.”).

97

Expenses Objection at 9–10 (citing Morton v. Continental Baking Co., 938 P.2d 271, 274 (Utah 1997)).

98

501 U.S. 32 (1991).

99

Fed. R. Civ. P. 37(a)(5)(A) (using the mandatory “must” in its provision on awarding expenses to a party who
prevails on a motion to compel).

100

Docket no. 44, filed July 18, 2017.

15

pending Expenses Objection. Defendants are permitted a response, if any, to Ms. Leon’s pending
Fees Affidavit, 101 but only as to the amount of fees and not as to the grounds for the award.
ORDER
IT IS HEREBY ORDERED that the Motion to Dismiss 102 is GRANTED. Ms. Leon’s
claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Ms. Leon’s Motion to Amend 103 and Motion to
Convert 104 to Summary Judgment are DENIED.
IT IS FURTHER ORDERED that Defendants’ Objection to the Expense Award is
OVERRULED. Ms. Leon’s Fees Affidavit has been referred to the Magistrate Judge for a
decision. Defendants must file their response to the Fees Affidavit, if any, 105 within 14 days of
this Memorandum Decision and Order. Such response is limited to contesting the amount of fees
requested, not whether the award is permitted.
A judgment will be entered consistent with this Memorandum Decision and Order. The
Clerk is directed to close the case.
Dated November 28, 2017.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

101

Affidavit in Support of Attorney Fees, docket no. 44, filed July 18, 2017.

102

Docket no. 19.

103

Docket no. 22.

104

Docket no. 27.

105

Docket no. 44.

16