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DCD Partners, LLC v. Albracht

United States District Court, D. Colorado

November 20, 2018

DCD PARTNERS, LLC, PERSONAL INVOLVEMENT CENTER, LLC, REVEREND DR. J. BENJAMIN HARDWICK, a trustee of the Personal Involvement Center Trust No. 1, Petitioners,
FRED ALBRACHT, Respondent.



         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 ...

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