Westmark Development Corporation et al v. City of Burien

Filing 106

ORDER on dft's 96 Rule 37 Motion to Compel by Judge Ricardo S Martinez.(RS)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9
10
11

WESTMARK DEVELOPMENT
CORPORATION and TRIZEC INVESTMENT
CORPORATION,

ORDER ON MOTION TO COMPEL
Plaintiffs,

12
v.

13
14

CASE NO. C08- 1727RSM

CITY OF BURIEN,
Defendant.

15
16
17

This matter is before the Court for consideration of defendant’s Rule 37 motion to compel. Dkt.

18

# 96. Defendant City of Burien (“Burien”) asks that the Court direct plaintiffs Westmark Development

19

Corporation and Trizec Corporation (“Westmark”) to fully respond to discovery requests served upon

20

plaintiff on February 12, 2013. Westmark has opposed the motion, asserting that it was unnecessary and

21

that it has provided all that was requested. The Court finds that the certification requirements have been

22

met, and that the motion should be granted in part.

23
24

DISCUSSION
The issue remaining in this case is Westmark’s request for attorney’s fees. Burien asserts that it

25

served reasonable and limited discovery on Westmark, consisting of five interrogatories and five

26

requests for production. Dkt. # 96, pp. 2, 4. The discovery “asked Westmark to identify and produce

27

records substantiating the estimated two million dollars in attorney fees it seeks to recover in this

28
ORDER

1

lawsuit.” Id., p. 4. Burien states that Westmark has provided approximately 1,000 pages of attorney

2

billing records, but as of the date of filing the motion, only 200 of the pages were marked with notations

3

indicating those fees sought.1 Id., p. 5. Although supplementation was promised, as of the date the

4

motion was filed the production had not been supplemented. Id.

5

In opposing the motion, Westmark points to an agreed extension of the discovery deadline to

6

July 17, 2013, which was to accommodate personal difficulties affecting Westmark’s counsel.

7

Westmark expresses surprise that the motion to compel was filed after the Court adopted the proposed

8

extended schedule. See, Dkt. # 95. Westmark further asserts that it supplemented its production on

9

June 2, 2013, the day before this motion was ripe, to fully provide notations as to which specific billing

10

entries were considered to be part of the attorney fee request. Thus, now Burien “has all the information

11

it requested and knows for each and every time record whether that specific entry is being claimed as

12

recoverable, or not being claimed.” Westmark’s Opposition, Dkt. # 100, p. 3.

13

Burien in reply asserts that the June 2 supplement did not complete the request, because

14

“Westmark has not identified the total amount of fees it seeks to collect in this lawsuit, as requested by

15

Interrogatory No. 2.” Burien’s Reply, Dkt. # 103, p. 2. Nor has Westmark “explained how the claimed

16

fees relate to its substantive due process claim, as requested by Interrogatory No. 3.” Id. Burien also

17

notes that Westmark “has avoided a response to the issue of expert witnesses, as requested by

18

Interrogatory No. 5.” Id. However, beyond the cursory statements that Burien served five

19

interrogatories and Westmark objected to every one, Burien made no argument in the motion to compel

20

regarding the interrogatories, and thus did not properly put Westmark’s responses at issue. The Court

21

cannot order plaintiff to respond to interrogatories for reasons which remain unstated by defendant. The

22

motion to compel shall accordingly be denied as to the interrogatory responses.

23
24

Westmark filed a surreply to Burien’s reply but did not provide prior notice as required by Local
Rule LCR 7(g)(1). The surreply has not been considered by the Court.

25
26
27
28

1

Each billing entry is marked with a “0", a “50", or “100" to indicate that Westmark seeks 0,
50%, or 100 % of the amount stated.
ORDER

1
2

CONCLUSION
Burien’s motion to compel is GRANTED as to the Request for Production asking for documents

3

substantiating the attorney fee request, and DENIED as to the Interrogatories.

4

documents were provided in the end, the Court must still consider an award of fees to Burien as the

5

prevailing party. Fed.R.Civ.P. 37(a)(5)(A). However, as Burien only achieved partial success on the

6

motion, the Court shall “apportion the reasonable expenses for the motion.” Fed.R.Civ.P. 37(a)(5)(C).

7

The Court finds that an award of 50% of the requested amount is appropriate, unless Westmark can

8

demonstrate circumstances that make such award unjust. Fed.R.Cvi.P. 37(a)(5)(A)(iii). Westmark

9

shall accordingly have two weeks from the date of this Order to demonstrate why it should not be

Although the requested

10

required to pay $1015 in attorney’s fees for Burien’s expenses in bringing the motion. No additional

11

fees shall be allowed for Burien’s reply at Dkt. # 100.

12

DATED July 22, 2013.

13

A

14
15

RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER