United States District Court, D. New Mexico
ORDER GRANTING CENTURION’S MOTION FOR AN AWARD
OF REASONABLE EXPENSES INCURRED IN OPPOSING PLAINTIFF’S
SECOND MOTION TO COMPEL
FASHING, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on defendant Centurion
Correctional Healthcare of New Mexico, LLC’s
(“Centurion”) Motion for an Award of Reasonable
Expenses Incurred in Opposing Plaintiff’s Second Motion
to Compel, filed on April 26, 2019. Doc. 146. Mr.
Montaño filed his response on June 14, 2019. Doc. 153.
Centurion filed its reply on June 25, 2019. Doc. 156. Having
read the submissions of the parties and being fully advised,
the Court finds that the motion is well taken and that the
expenses and fees are reasonable, and it will GRANT the
Background and Procedural Posture
Montaño filed a motion to compel on July 18, 2018.
Doc. 104. The motion was based on a “good faith
effort” letter to Centurion from Mr.
Montaño’s former attorney seeking
supplementation of certain responses to discovery requests.
Id. The Court denied this motion without prejudice
on the grounds it was premature. Doc. 112. The Court
determined that the motion was premature in part because Mr.
Montaño had failed to certify that he had conferred or
attempted to confer with the opposing party in an effort to
obtain the discovery he sought without the Court’s
intervention pursuant to Federal Rule of Civil Procedure
37(a)(1). Id. at 2. The Court explained that
The duty to confer requires more than setting forth
conflicting positions in written correspondence. [Zuniga
v. Bernalillo Cty., No. CV 11-877 RHS-ACT, 2013 WL
12333609, at *2 (D.N.M. Jan. 10, 2013) (unpublished)]. To
confer means more than making a demand for compliance; it
means “to hold a conference; compare views; consult
together.” Id. (quoting Hoelzel v. First
Select Corp., 214 F.R.D. 634, 635 (D. Colo. 2003)).
Aside from the letter, there has been no further
communication between the parties regarding Centurion’s
discovery requests. It appears from Centurion’s
response that many of the discovery requests addressed in the
letter may be resolved by further conference between the
parties. See Doc. 105 at 8–13.
112 at 2. The Court denied the motion “to give the
parties an opportunity to further meet and confer regarding
the discovery responses . . . .” Id. at 3.
November 1, 2018, Mr. Montaño filed a second motion to
compel against Centurion. Doc. 120. This second motion was
again based in part on the “good faith effort”
letter. Id. at 2. The Court noted that it had
previously advised Mr. Montaño of his obligation to
follow the same rules of procedure that govern other
litigants, including the obligation to meet and confer with
regard to discovery disputes. Doc. 145 at 2–3. Because
Mr. Montaño failed to fulfill his obligations and he
was not otherwise entitled to the discovery he sought, the
Court denied the second motion. Id.
to Rule 37(a)(5)(B), the Court ordered Centurion to file a
motion and affidavit for its reasonable expenses incurred in
opposing Mr. Montaño’s second motion to compel,
which is the subject of the present motion. Doc. 146.
motion to compel is denied, the Court
must, after giving an opportunity to be heard,
require the movant, the attorney filing the motion, or both
to pay the party or deponent who opposed the motion its
reasonable expenses incurred in opposing the motion,
including attorney’s fees. But the court must not order
this payment if the motion was substantially justified or
other circumstances make an award of expenses unjust.
Civ. P. 37(a)(5)(B) (emphasis added).
motion, Centurion seeks an award in the amount of $1, 202.81
for the time and expenses expended in opposing Mr.
Montaño’s second motion to compel. See
Doc. 146-1. Mr. Montano does not object to the reasonableness
of the fees and expenses requested. Instead, he, once again,
argues that Centurion failed to respond to the good faith
effort letter and has failed to provide him with medical
records. Doc. 153 at 2–3. As Centurion points out:
Plaintiff did not dispute that he was aware of his duty to
confer or attempt to confer in good faith with Centurion
before he filed his Second Motion to Compel. See,
Document 153. Plaintiff did not dispute that he refused to
confer or attempt to confer in good faith with Centurion.
Id. Plaintiff did not dispute that his failure to
confer or attempt to confer in good faith with Centurion was
a violation of Rule 37(a)(5)(B). Id. Plaintiff did
not dispute that this Court warned him before he filed his
Second Motion to Compel that he was required to confer or
attempt to confer in good ...