United States District Court, D. Colorado
DCD PARTNERS, LLC, PERSONAL INVOLVEMENT CENTER, LLC, REVEREND DR. J. BENJAMIN HARDWICK, a trustee of the Personal Involvement Center Trust No. 1, Petitioners,
v.
FRED ALBRACHT, Respondent.
ORDER AFFIRMING MAGISTRATE JUDGE'S ORDER GRANTING
ATTORNEYS'FEES AND OVERRULING RESPONDENT'S
OBJECTION
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Respondent Fred Albracht's
Objection (Doc.# 34) to an order by United States Magistrate
Judge Kristen L. Mix, in which Magistrate Judge Mix awarded
Petitioners $10, 155.00 in attorneys' fees. (Doc. # 33.)
For the reasons discussed below, the Court overrules
Respondent's Objection and affirms Magistrate Judge
Mix's Order Granting Attorneys' Fees. The Order is
incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(A); Fed.R.Civ.P. 72(a).
I.
BACKGROUND
This
matter arises out of litigation in the Central District of
California, in which Petitioners DCD Partners, LLC, Personal
Involvement Center, LLC, and Reverend Dr. J. Benjamin
Hardwick, as a trustee of the Personal Involvement Center
Trust No. 1, (collectively, “Petitioners”)
subpoenaed nonparty Respondent for deposition on November 18,
2016; the deposition was scheduled for December 15, 2016.
(Doc. # 1 at 2-3); see DCD Partners, et al. v.
Transamerica Life Ins. Co., 2:15-cv-03238-CAS-AJW (C.D.
Cal. Mar. 18, 2015); (Doc. # 3 at 8-37, 41-47.) Counsel for
Respondent contacted Petitioners on December 12, 2016, three
days before the scheduled deposition, to request that it be
rescheduled to January 2017 due to Respondent's poor
health. (Doc. # 1 at 3; Doc. # 3 at 57.) Over the following
several weeks, counsel for Petitioners and Respondent engaged
in several rounds of jointly attempting to schedule a
deposition of Respondent, Respondent's counsel cancelling
the scheduled deposition, Respondent's counsel promising
to have a date certain for a deposition within a few days,
and Respondent's counsel failing to provide dates
certain. (Doc. # 1 at 3-4; Doc. # 3 at 57-86.) On January 19,
2017, Petitioners informed Respondent's counsel that they
intended to file a motion to compel compliance with the
subpoena. (Doc. # 1 at 4; Doc. # 3 at 88.) Respondent's
counsel replied that such a motion would be “futile,
” as Respondent was “not well enough to be
deposed;” counsel promised “documentation from
his oncologist confirming this.” (Doc. # 3 at 90.) On
January 20, 2017, Respondent's counsel provided
Petitioners an undated note from Dr. J. Mark Barnett, M.D.:
[Respondent] is a patient currently under my care for a
diagnosis of metastatic Colorectal Cancer. He is currently
receiving palliative chemotherapy following a very recent
hospital inpatient stay because of his condition. Please take
all of this into consideration as to the patients [sic]
requested appearance.
(Id. at 92-94); see (Doc. # 31-7.)
On
January 25, 2017, Petitioners initiated the litigation in
this District, where Respondent then resided, by filing a
Motion to Compel Compliance with Deposition Subpoena (the
“Motion to Compel”). (Doc. # 1.) Petitioners
asserted that because the deadline for dispositive motions in
their litigation in the Central District of California was
January 27, 2017, they could “no longer wait for
[Respondent's counsel] to provide either dates or
alternatives to deposition.” (Id. at 5.)
Pursuant to Federal Rule of Civil Procedure 37(a)(1),
Petitioners requested that this Court compel Respondent to
attend a deposition on or before February 1, 2017.
(Id. at 8.) Respondent responded to the Motion to
Compel on February 15, 2017, citing Dr. Barnett's note as
evidence that Respondent was unable “to plan when he
[would be] physically and cognitively able” to be
deposed. (Doc. # 9 at 3.) Magistrate Judge Mix scheduled a
telephonic evidentiary hearing on the Motion to Compel for
June 1, 2017.[1] (Doc. # 15.)
On June
1, 2017, the day of the evidentiary hearing, the parties
jointly moved the vacate the hearing because counsel had
agreed “to produce [Respondent] for deposition”
on June 28, 2017, in Denver, Colorado. (Doc. # 16 at 2.)
Magistrate Judge Mix promptly vacated the scheduled hearing
(Doc. # 18), denied the Motion to Compel as moot, and ordered
Petitioners to file “on or before June 15, 2017, . . .
either (1) a notice of dismissal of this litigation, or (2) a
motion seeking expenses pursuant to Rule 37(d)(3), ”
(Doc. # 19).
Petitioners
filed a first Motion for Attorneys' Fees and Costs on
June 15, 2017. (Doc. # 20.) On January 17, 2018, Magistrate
Judge Mix denied Petitioners' first motion without
prejudice for failure to comply with the local rule requiring
“a detailed description of the services rendered, the
amount of time spent, the hourly rate charged, and the total
amount claimed.” (Doc. # 28); see
D.C.COLO.LCivR 54.3.
Petitioners
filed their second Motion for Attorneys' Fees and Costs
on January 30, 2018 (Doc. # 29), which this Court referred to
Magistrate Judge Mix (Doc. # 30). Respondent filed his
Response on February 20, 2018 (Doc. # 31), and attached as
exhibits two letters from his oncologist, Dr. Barnett (Doc. #
31-7, Doc. # 31-11.) The first letter was the one
Respondent's counsel had previously shared with
Petitioners; the second was dated July 17, 2017, from Dr.
Barnett, Respondent's oncologist, to Plaintiff's
counsel:
[Respondent] have been on palliative chemotherapy since early
January 2017 for recurrent disease. I had planned on giving
him a break from treatment in late June, but unfortunately
his repeat PET scan on 06/21/2017 revealed persistent
disease. Thus, I recommended continuing him on therapy for at
least another three months with repeat imaging at that time.
[Respondent] does have side effects from chemotherapy
including fatigue, bowel issues, and decreased appetite.
(Doc. # 31-11.) Petitioners replied on March 6, 2018. (Doc. #
32.) On August 8, 2018, Magistrate Judge Mix granted in part
Petitioners' second Motion for Attorneys' Fees and
Costs, awarding Petitioners $10, 155.00 in attorneys'
fees. (Doc. # 33.) Magistrate Judge Mix concluded that an
award of attorneys' fees was required by Rule 37(a)(5)(A)
because none of the Rule's exceptions
applied.[2] (Id. at 3-6.)
Respondent
filed his Objection to the Magistrate Judge's award of
attorneys' fees on August 22, 2018. (Doc. # 34.) As is
detailed below, Respondent argues that Magistrate Judge
Mix's Order is “clearly erroneous and contrary to
law” to the extent that she concluded “that
Respondent's inability to provide an exact date for his
deposition was not substantially justified and that an award
of fees was not unjust.”[3] (Id. at 1-2.)
Petitioners replied in support of Magistrate Judge Mix's
Order on September 5, 2018. (Doc. # 36.)
II.
CONTROLLI ...