United States District Court, S.D. California
LINDA BLAIR, DIANE DEAL, AND SHANNON COLLINS, on behalf of themselves and all others similarly situated, Plaintiffs,
THE CBE GROUP, INC., Defendant.
ORDER RE: PLAINTIFFS' ATTORNEYS' FEES INCURRED IN RESPONDING TO DEFENDANT'S OBJECTION TO DISCOVERY ORDER
[Doc. No. 93]
MICHAEL M. ANELLO, District Judge.
On January 16, 2013, Plaintiff commenced this putative class action against Defendant for violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA"). On June 30, 2014, the parties filed a Joint Statement For Determination of Discovery Dispute regarding Defendant's Responses to Plaintiffs' Discovery - Set Two. See Doc. No. 91. On July 2, 2014, United States Magistrate Judge William V. Gallo issued an order ruling on the discovery disputes. See Doc. No. 92. Defendant CBE Group objected to Judge Gallo's order on multiple grounds pursuant to Federal Rule of Civil Procedure 72(a) and 28 U.S.C. § 636(b)(1)(A). See Doc. No. 93. Plaintiffs filed an opposition, in which they also sought attorneys' fees pursuant to Federal Rule of Civil Procedure 37 for fees incurred in responding to Defendant's objections.
On August 15, 2014, the Court found that Judge Gallo's July 2, 2014 Discovery Order was neither clearly erroneous nor contrary to law, and therefore overruled Defendant's objections in their entirety. See Doc. No. 107. However, the Court deferred ruling on the issue of attorneys' fees and required the parties to file supplemental briefing. Plaintiffs filed a supplemental brief, and Defendant responded. See Doc. Nos. 110, 112. For the reasons stated below, the Court AWARDS reasonable expenses to Plaintiffs in the amount of $6, 495.00.
Plaintiffs seek expenses in the amount of $13, 351 for attorneys' fees incurred in responding to Defendant's objection to Judge Gallo's July 2, 2014 Discovery Order. Defendant opposes the request, contending that Plaintiffs' requested attorneys' fees are neither warranted nor reasonable.
The Court first addresses the propriety of awarding expenses under Federal Rule of Civil Procedure 37 for attorneys' fees that Plaintiffs incurred in responding to Defendant's Rule 72(a) Objections.
A. Fed. R. Civ. P 37(a)
Federal Rule of Civil Procedure 37(a)(5) provides that if the court grants a motion to compel discovery, it "must" order the non-moving party to pay the moving party's "reasonable expenses incurred in making the motion." See Fed.R.Civ.P. 37(a)(5)(A). However, the Rule recognizes various exceptions, such as where the court finds the nonmoving party's nondisclosure, response, or objection was substantially justified, or an award of expenses would be unjust. See id.  If the court denies the motion, it "must" order the moving party to pay the non-moving party's reasonable expenses incurred in opposing the motion unless the motion itself was substantially justified or an award of expenses would be unjust. See Fed.R.Civ.P. 37(a)(5)(B). Finally, where the court grants in part and denies in part a motion to compel discovery, the court may "apportion the reasonable expenses for the motion." Fed.R.Civ.P. 37(a)(5)(C).
"A request for discovery is substantially justified' under Rule 37 if reasonable people could differ on the matter in dispute." United States EEOC v. Caesars Entm't, Inc., 237 F.R.D. 428, 435 (D. Nev. 2006) (citing Reygo Pacific Corp. v. Johnston Pump Co., 680 F.2d 647, 649 (9th Cir. 1982)); see also 8B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288 (3d ed. 2010) ("Making a motion, or opposing a motion, is substantially justified' if the motion raised an issue about which reasonable people could genuinely differ on whether a party was bound to comply with a discovery rule."). The non-moving party bears the burden of demonstrating its conduct was substantially justified. Aevoe Corp. v. AE Tech Co., No. 12-53, 2013 WL 5324787, at *2 (D. Nev. Sept. 20, 2013).
As an initial matter, Defendant appears to question the propriety of awarding attorneys' fees under Rule 37 because the requested fees concern Plaintiffs' response to a Rule 72(a) objection-not the underlying motion to compel. This argument is unavailing. District courts have routinely awarded attorneys' fees pursuant to Federal Rule of Civil Procedure 37 for fees incurred in responding to a Rule 72(a) objection. See, e.g., Marrocco v. Hill, 291 F.R.D. 586, 590 (D. Nev. 2013) (holding "reasonable fees incurred in responding to a Rule 72(a) objection are recoverable under Rule 37(a)(5)(A)"); MAS, Inc. v. Nocheck, LLC, No. 10-13147, 2011 WL 1135367, at *5 (E.D. Mich. Mar. 28, 2011) (granting the plaintiff's unopposed request for attorneys' fees incurred in responding to the defendant's Rule 72(a) objection because "such fees and costs were incurred in making the motion'" under Rule 37); Tourgeman v. Collins Fin. Servs., Inc., No. 08-1392, 2010 WL 4117416, *2 (S.D. Cal. Oct. 18, 2010) (overruling the defendant's Rule 72(a) objection and referring the matter to the magistrate judge to award the plaintiff attorneys' fees incurred in connection with the plaintiff's response to the defendant's objection); Catapult Commc'ns Corp. v. Foster, 2009 WL 2707040, *2 (N.D. Ill. Aug. 25, 2009) (holding that "under Rule 37, the fees incurred in responding to Defendant's motion for reconsideration are compensable"); Brandon v. D.R. Horton, Inc., No. 07-1256, 2008 WL 2096883, at *3 (S.D. Cal. May 16, 2008) (awarding the defendant attorneys' fees incurred in opposing the plaintiff's Rule 72(a) objection). As another district court explained:
If only the original motion to compel were compensable, the fee-shifting provision of Rule 37 would have little effect. A motion for reconsideration that attacks the original motion to compel could cost as much or more than the original motion itself; limiting the fees to the original motion, therefore, would not "deter a party from pressing to a court hearing frivolous requests for or objections to discovery." Fed.R.Civ.P. 37(a)(4) advisory committee's note on 1970 Amendments. For that reason, the Court finds that, under Rule 37, the fees incurred in responding to Defendant's motion for reconsideration are compensable.
Catapult, 2009 WL 2707040, *2; see also Marrocco, 291 F.R.D. at 590. Although Catapult involved a motion for reconsideration, the court's reasoning is persuasive in the current context. Thus, contrary to Defendant's argument, the fact that Plaintiffs seek only those attorneys' fees incurred in responding to Defendant's Rule 72(a) objection does not preclude an award of attorneys' fees under Rule 37.
Defendant next asserts the Court should not award attorneys' fees because its "Rule 72(a) objection was both necessary to preserve Defendant's interests on appeal and substantially justified because it raised genuine disputes supported by evidence and case authority." Doc. No. 112 at 5. This argument is not well-taken. As set forth in detail its August 15, 2014 Order, the Court found Defendant's objections were wholly meritless and therefore overruled the objections in their entirety. See Doc. No. 97. The Court further finds that Defendant's Rule 72(a) objections were not substantially justified because there was no "genuine dispute" as to any of the issues raised, and reasonable people could not differ as to the appropriateness of the objections. See Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541 (1988).
Finally, to the extent Defendant asserts that an award of reasonable expenses under Rule 37 is not appropriate because Plaintiff's underlying motion to compel was not granted in full, the Court is not persuaded. Rule 37(a)(5)(C) expressly authorizes the court to "apportion the reasonable expenses for the motion" where a court grants in part and denies in part the motion to compel. Fed.R.Civ.P. 37(a)(5)(C). Although Plaintiffs move for attorneys' fees under Rule 37(a)(5)(A)-presumably because Defendant's objections were overruled in their entirety-the analysis underlying an award of reasonable expenses pursuant to either Rule 37(a)(5)(A) or Rule 37(a)(5)(C) is the same. See Switch Commc'ns Grp. LLC v. Ballard, No. 11-285, 2011 WL 5041231, *2 (D. Nev. Oct. 24, 2011). Further, courts have recognized that "the primary difference between these two rules is that one requires the payment of costs, where the other grants the court discretion in making such a determination." Id. at *1. Even assuming the discretionary ...