United States District Court, D. New Mexico
December 22, 2016
DAVITA HEALTHCARE PARTNERS, INC., F/K/A DAVITA, INC., a Delaware Corporation Plaintiff,
SAN JUAN INDEPENDENT PRACTICE ASSOCIATION, a New Mexico corporation; and SAN JUAN REGIONAL MEDIAL CENTER, INC., A New Mexico corporation, Defendants.
ORDER ON MOTION TO COMPEL RESPONSES TO DAVITA'S
SECOND SET OF INTERROGATORIES AND REQUESTS FOR
FASHING, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on plaintiff DaVita Healthcare
Partner, Inc.'s (“DaVita”) Motion to Compel
Responses to DaVita's Second Set of Interrogatories and
Requests for Production (Doc. 69). Defendant San Juan
Regional Medical Center (“SJRMC”) filed a
response (Doc. 71), and DaVita filed a reply (Doc. 73).
Having reviewed the parties' submissions, as well as the
relevant law, I find the motion's request for an order to
compel is MOOT. However, for the reasons stated below, I will
GRANT DaVita's request for attorney's fees.
served its Second Set of Interrogatories and Requests for
Production on defendant SJRMC on August 19, 2016. Doc. 69-1.
SJRMC responded to these discovery requests on September 19,
2016. Doc. 69-2. The next day, Davita emailed SJRMC about
what it perceived as deficiencies in the response, requesting
that SJRMC supplement its answers. Doc. 69-3. SJRMC
responded, stating that it would comply with DaVita's
request and provide supplemental information. Doc. 69-4. DaVita
emailed SJRMC on September 24, 2016 and explained that-
because it only had until October 14, 2016 to file a motion
to compel if necessary-it needed to receive all supplemental
responses no later than October 7, 2016. Doc. 69-5.
received no supplemental responses, DaVita filed its motion
to compel on October 13, 2016. Doc. 69. DaVita asked the
Court to issue an order to compel SJRMC to provide complete
answers to DaVita's Second Set of Interrogatories and
Requests for Production, and for attorney's fees incurred
in connection with the motion to compel. Id. at 6.
Later on the same day that DaVita filed the motion to compel,
SJRMC provided supplemental documents and responses. Doc. 71
at 1. Both parties agree that the Court no longer needs to
issue an order to compel. Doc. 71 at 3; Doc. 73 at 1. The
only remaining issue for the Court to decide is whether
DaVita is entitled to attorney's fees.
argues that attorney's fees are not appropriate because
it never represented that it could meet the October 7, 2016
deadline proposed by plaintiff for supplementing its
responses, and because DaVita did not request a conference
with the Court prior to filing its motion to compel. Doc. 71
at 2. SJRMC further argues that Rule 37 sanctions are not
appropriate in this case. SJRMC asks the Court to analyze the
request for attorney's fees using the factors listed in
Rivera v. Volvo Cars of North America, L.L.C., 2015
WL 11089501 (D.N.M. July 20, 2015), and to find that it
should not be required to pay attorney's fees. Doc. 71 at
1-2. However, as DaVita points out, Rivera is not on
point. Doc. 73 at 3. Rivera deals with the
imposition of sanctions under Federal Rules of Civil
Procedure 37(b)(2) and 37(c)-neither of which form the basis
of DaVita's requested relief. See Rivera, 2015
WL 11089501, at *2; see also Doc. 69 at 1 (stating
that DaVita's motion was filed pursuant to Federal Rules
of Civil Procedure 37(a)(3), (a)(4), and (a)(5)).
Rule of Civil Procedure 37(a)(5), the rule governing the
payment of expenses, states:
(A) If the Motion Is Granted (or Disclosure or Discovery
Is Provided After Filing). If the motion is granted--or
if the disclosure or requested discovery is provided after
the motion was filed--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. But the court must not order this
(i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court
(ii) the opposing party's nondisclosure, response, or
objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A).
SJRMC admits that it provided supplemental discovery requests
only after DaVita filed its motion to compel. Doc. 71 at 2.
DaVita did not file this motion without first conferring in
good faith. Both DaVita's September 20, 2016 and
September 24, 2016 emails document this good faith. The
September 24, 2016 email advised SJRMC that it needed
supplemental discovery no later than October 7, 2016.
SJRMC's argument that DaVita needed to contact them again
before filing a motion to compel, Doc. 71 at 2, is without
merit. If SJRMC was unable to produce the supplemental
discovery by October 7, 2016, the onus was on SJRMC to
communicate this to DaVita and request an extension, which
would have prevented DaVita from investing the time and
expense on a motion to compel.
argument that the parties were required to seek a
conference with me prior to filing a motion to compel, Doc.
71 at 2-4, is also unavailing. While I do encourage
telephonic conferences for minor discovery disputes, as
DaVita points out, these conferences are permissive, not
mandatory. See Phone Conferences at
see also Doc. 73 at 5. Finally, SJRMC does not
argue, nor is there any evidence to support a finding that
SJRMC's “nondisclosure, response, or objection was
substantially justified[, ]” or that other
circumstances make the award of attorney's fees unjust.
I order SJRMC to pay DaVita's reasonable costs, including
attorney's fees, in bringing the Motion to Compel (Doc.
69). Counsel for DaVita shall submit an affidavit of
reasonable expenses, including attorney's fees, incurred
in the preparation of the motion to compel by January 6,
2017. See Fed. R. Civ. P. 37(a)(5). SJRMC's
counsel shall have until January 20, 2017 to file objections
to DaVita's requested expenses.
 DaVita states that this email was sent
on September 23, 2016. Doc. 73 at 2. However, the document is
dated September 19, 2016. Doc. 69-4.
 D.N.M.LR 26.6 requires a party to file
a motion to compel within 21 days after being served with
discovery objections. Federal Rule of Civil Procedure applies
to local rules, and, prior to December 1, 2016, allowed three
additional days to act after service by mail or
electronic means. Fed.R.Civ.P. 6(a), (d). Thus, DaVita's
motion to compel based on discovery objections served on
September 19, 2016 was due by October 13, 2016, the day it