United States District Court, D. Colorado
A. BRIMMER United States District Judge
matter is before the Court on Plaintiff's Contemporaneous
Objection to Magistrate Judge's Order Granting Attorney
Fees [Docket No. 800] filed by plaintiff Dean Carbajal. In
light of plaintiff's pro se status, the Court
reviews his filings liberally. See Haines v. Kerner,
404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 n.3 (10th Cir. 1991).
December 8, 2015, defendants Adam Barrett, Darin Desel, James
Dixon, Jay Lopez, Gilberto Lucio, Michael O'Neill, Jesse
Rembert, Joel Smith, Perry Speelman, and the City and County
of Denver (collectively the “Denver defendants”)
filed a motion for attorney's fees [Docket No. 756]
incurred in responding to plaintiff's motion to open
discovery [Docket No. 731], motion for sanctions and
emergency hearing [Docket No. 733], third motion for
extension of time [Docket No. 740], and motion for stay of
summary judgment proceedings. Docket No. 741. Plaintiff's
motions were denied by the magistrate judge. Docket No. 753.
On February 29, 2016, the magistrate judge granted the Denver
defendants' motion for attorney's fees and ordered
plaintiff to pay $7, 040.50. Docket No. 786. Plaintiff filed
an objection to the magistrate judge's order [Docket No.
800] and the Denver defendants filed a response. Docket No.
argues that the magistrate judge erred by characterizing his
four motions as motions to compel. Docket No. 800 at 1. He
states that the characterization was “indicative of
Magistrate [Judge] Mix's extreme hate and bias towards
Mr. Carbajal.” Id. at 2. Plaintiff also
briefly asserts that the magistrate judge ignored the fact
that his motions provided “some basis for modification
of the scheduling order.” Id. at 1.
district courts review magistrate judges' orders
regarding nondispositive motions under a “clearly
erroneous or contrary to law” standard. 28 U.S.C.
§ 636(b)(1)(A); Fed.R.Civ.P. 72(a). Under this standard
of review, a magistrate judge's finding should not be
rejected merely because the Court would have decided the
matter differently. See Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985). A district court must
affirm a magistrate judge's decision unless “on the
entire evidence[, the district court] is left with the
definite and firm conviction that a mistake has been
committed.” Ocelot Oil Corp. v. Sparrow
Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)); Allen v. Sybase, Inc., 468 F.3d 642, 658
(10th Cir. 2006).
to Fed.R.Civ.P. 37(a)(1), “a party may move for an
order compelling disclosure or discovery.” The
magistrate judge found that plaintiff's motions, while
couched as motions to re-open discovery, extend time, stay
proceedings, and seek sanctions, are properly construed as
motions to compel under Rule 37 because all four motions
request relief related to defendants' alleged withholding
of discovery materials. Docket No. 786 at 2. While it is true
that plaintiff's motions relate to the defendants'
allegedly wrongful withholding of documents, they do not seek
to compel disclosure or production of documents, which is the
purpose of Rule 37. See Docket No. 731 (seeking to
reopen discovery); Docket No. 733 (seeking sanctions for
alleged misconduct and an injunction against witness
intimidation); Docket No. 740 (seeking a stay of proceedings
and an extension of the briefing schedule for summary
judgment motions); Docket No. 741 (same). Moreover, the
motions were not accompanied by the certification required by
Rule 37 for motions to compel, see Fed. R. Civ. P.
37(a)(1), or the identification required by Local Rule 37.1,
which militates against characterizing them as Rule 37
states that, if a Rule 37 motion is denied, the court must
“require the movant . . . to pay the party or deponent
who opposed the motion its reasonable expenses incurred in
opposing the motion, including attorney's fees.”
Fed.R.Civ.P. 37(a)(5)(B). If the motion was
“substantially justified or other circumstances make an
award of expenses unjust, ” the court must not order
the payment of expenses. Id.
the magistrate judge nor the Denver defendants cited any
authority for characterizing plaintiff's motions as Rule
37 motions. Despite plaintiff specifically complaining about
such characterization in his objection, the Denver defendants
still have not provided any such authority. See Streeter
v. Soo Line Railroad, 2008 WL 2937744 at *2 (E.D. Wis.
July 23, 2008) (denying motion for attorney's fees based
on Rule 37(a)(5)(B) when plaintiff did not file a motion to
compel and where defendant cited no authority to
recharacterize a motion for sanctions as a Rule 37 motion).
The Denver defendants argue that plaintiff's motions
required them to draft responses that were, “in
substance, typical of those associated with a Rule 37 motion
to compel.” Docket No. 756 at 4. Defendants, however,
provide no authority to use the nature of the work required
to draft a response as the basis to recharacterize motions as
Rule 37 motions. Plaintiff did not seek to compel disclosure
or discovery and, as such, his motions are not properly
construed as Rule 37 motions to compel in order to subject
him to Rule 37 sanctions.
foregoing reasons, it is
that Plaintiff's Contemporaneous Objection to Magistrate
Judge's Order Granting Attorney Fees [Docket No. 800] is
SUSTAINED. It is further
that the attorney's fee award, see Docket ...