United States District Court, D. New Mexico
ALVIN C. FREDRICKSON, Plaintiff,
CANNON FEDERAL CREDIT UNION, et al., Defendants.
ORDER AWARDING ATTORNEY'S FEES
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Court's Order
Granting in Part and Denying in Part Plaintiff's Motion
to Compel (the “Order”), (Doc. 58), in which
the Court ordered Defendant to show cause why it should be
required to pay Plaintiff's reasonable expenses;
Defendant Cannon Federal Credit Union's Response to
Order to Show Cause, (Doc. 66), filed April 10, 2017;
and Plaintiff's Reply Brief Concerning Cannon Federal
Credit Union's Response to Order to Show Cause,
(Doc. 68), filed April 24, 2017.
February 16, 2017, one week after sending a good faith
letter, Plaintiff filed his Motion to Compel Cannon
Federal Credit Union (the “Motion”), (Doc.
42), seeking full and complete responses to several discovery
requests. (Doc. 42 at 1). On March 2, 2017, Defendant
responded advancing two arguments: first, that the Motion was
“unnecessary” because Plaintiff was
“unreasonable” in the timing of a good faith
letter, depositions, and his Motion, and second, that the
Motion was moot because Defendant would supplement its
responses within ten days of filing the response, save two
exceptions. (Doc. 46 at 1-3). Despite Defendant's
representation, Defendant did not supplement its responses
until eighteen days later, when the Court entered the
parties' stipulated protective order. (Doc. 51). Further,
Defendant objected to producing not two, but four documents.
(Doc. 58 at 1-2).
Court granted in part and denied in part Plaintiff's
Motion, ordering Defendant to produce two redacted documents
and allowing Defendant to not produce two other documents.
(Doc. 58 at 1-2; Doc. 66-2 at 2-3). The Court also ordered
Defendant to show cause why it should not be required to pay
Plaintiff's reasonable expenses associated with the
Motion, particularly after Defendant said it would supplement
its responses and then failed to do so. (Doc. 58 at 2).
motion to compel is granted, or requested discovery is
provided after a motion to compel is filed, the Court
“must, after giving an opportunity to be heard, ”
require the party or attorney whose conduct necessitated the
motion, or both, to “pay the movant's reasonable
expenses incurred in making the motion, including
attorney's fees.” Fed.R.Civ.P. 37(a)(5)(A). The
Court must not order payment if: “the movant filed the
motion before attempting in good faith to obtain the
disclosure or discovery without court action”; the
party's “nondisclosure, response, or objection was
substantially justified”; or “other circumstances
make an award of expenses unjust.” Fed.R.Civ.P.
37(a)(5)(A)(i)-(iii). The court may also apportion reasonable
expenses if the motion is granted in part and denied in part.
Fed.R.Civ.P. 37(a)(5)(C). Additionally, although Defendant
notes Plaintiff did not move for expenses, (Doc. 66 at 1),
the Court has the inherent authority to control and supervise
the litigation before it. Kaufman v. American Family Mut.
Ins. Co., 601 F.3d 1088, 1092 (10th Cir. 2010); U.S.
v. Carrigan, 804 F.2d 599, 603 (10th Cir. 1986).
Court has reviewed Defendant's arguments and is
unconvinced Defendant should not pay Plaintiff's
reasonable expenses associated with the Motion. Defendant
spends the majority of its response arguing its legal theory
of the case and presenting its version of the
facts. To the extent Defendant argues its initial
non-disclosure was substantially justified, the Court is not
persuaded. Defendant has still not offered any compelling
reason why it stated it would supplement its responses within
ten days and utterly failed to do so. Defendant did not
condition its supplemental responses on a protective order in
its response to the Motion. Further, Defendant failed to
supplement its responses even after Plaintiff agreed to hold
Defendant's responses confidential. (Doc. 49-1 at 1-2).
To the extent Defendant protests that the Motion was
unnecessary, clearly it was necessary, as Defendant failed to
timely supplement its responses and objected to more
documents than it originally claimed it would. Contrary to
its arguments otherwise, Defendant's conduct, not
Plaintiff's conduct, necessitated the Court's
objects that awarding Plaintiff attorney's fees would
discourage parties from voluntarily complying with discovery
requests. (Doc. 66 at 7). On the contrary, the Court intends
to discourage parties from delaying their responses to
discovery requests; from representing they will respond,
failing to respond in a timely manner, and then changing the
terms under which they have agreed to respond; and from
attempting to circumvent deadlines imposed by the rules of
foregoing reasons, the Court finds Defendant's
nondisclosure was not substantially justified, Plaintiff made
a good faith effort to obtain discovery without the
Court's intervention, and no circumstances make an award
of fees unjust.
THEREFORE ORDERED that Defendant pay Plaintiff's counsel,
Treinen Law Office PC, $5, 060.00 in fees related to the
Plaintiff's Motion to Compel Cannon Federal Credit
Union, (Doc. 42), by June 7, 2017.
 The Court wishes to address
Defendant's repeated mentioning that Plaintiff and the
Court refused to reschedule depositions set for February 15,
2017, resulting in counsel having to travel from out of state
to attend the depositions. (Doc. 46 at 2; Doc. 66 at 3). The
Court notes the depositions were noticed on January 6, 2017,
(Doc. 27), but Defendant did not move to vacate them until
February 10, 2017-five days before they were set. (Doc. 38).
Defendant's sole argument for asking to the Court to
force Plaintiff to reset the depositions was that one of
Defendant's four attorneys of record had a longstanding,
out-of-country trip planned. (Doc. 38 at 1; Doc. 38-1).
Defendant did not then, and has not now, offered any reason
why one of Defendant's ...