Opinion
Civil Action 20-1867 (TJK/GMH)
06-13-2022
KHONDKER NASREEN, Plaintiff, v. CAPITOL PETROLEUM GROUP, LLC, et al., Defendants.
MEMORANDUM ORDER
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
This matter is before the Court on the Report and Recommendation (“R & R”) filed by Magistrate Judge G. Michael Harvey on April 11, 2022. See ECF No. 53. In the R & R, Judge Harvey recommended that the Court grant in part and deny in part Defendants' Motion for an Award of Attorneys' Fees and Costs of Motion to Compel, see ECF No. 50, and award them $5,957.42 in reasonable expenses under Federal Rule of Civil Procedure 37(a)(5)(C) out of the $10,709.95 they requested, see ECF No. 53 at 2, 5. The R & R advised the parties that they had fourteen days from receipt of the R & R to file written objections to it. See ECF No. 53 at 29 (citing LCvR 72.3(b)). Neither party has filed objections, and the deadline to do so has passed. Thus, any objections are deemed waived. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-55 (1985). In these circumstances, the Court reviews the R & R only for clear error. See IMAPizza, LLC v. At Pizza Ltd., No. 17-cv-2327 (TJK) (GMH), 2021 WL 3168132, at *2 (D.D.C. July 27, 2021). Clear error does not exist just because the Court would have decided an issue differently; rather, the Court must have the “definite and firm conviction that a mistake has been committed.” Momoh v. Osayande, 564 B.R. 1, 3 (D.D.C. 2017); see also Cuddy v. Carmen, 762 F.2d 119, 124 (D.C. Cir. 1985). Finding no such error, the Court will adopt the R & R in full.
The Court assumes familiarity with the background of this case and of Defendants' Motion. See ECF No. 49 at 2-5; ECF No. 53 at 2-4. In short, after Judge Harvey granted in part and denied in part a motion to compel that Defendants filed-a motion that the Court had already denied in part before referring it to a magistrate judge-Defendants moved under Rule 37(a)(5)(C) for an award of reasonable expenses, including attorneys' fees, incurred in relation to the motion to compel. See Minute Order of January 26, 2022; ECF No. 49; ECF No. 50 at 1. Specifically, Defendants sought $10,434.50 in attorneys' fees and $275.45 in costs, for a total award of $10,709.95. See ECF No. 50-2 at 1, 5. Plaintiff opposed the Rule 37(a)(5)(C) motion, advancing several reasons why any award of reasonable expenses was unwarranted. See ECF No. 51.
Rule 37(a)(5)(C) provides that if a party's motion to compel is “granted in part and denied in part, ” as happened here, then the Court “may . . . apportion the reasonable expenses for the motion.” See Fed.R.Civ.P. 37(a)(5)(C). This provision “vests the District Court with discretion” to decide whether and how to apportion such expenses. See Baylor v. Mitchell Rubenstein & Assocs., P.C., 857 F.3d 939, 951 (D.C. Cir. 2017).
Although Rule 37(a)(5)(A) and Rule 37(a)(5)(B)-applicable when the Court grants in full or denies in full a motion to compel, respectively-explicitly mention that attorneys' fees may be awarded as part of the “reasonable expenses, ” Rule 37(a)(5)(C) does not mention attorneys' fees. A few courts have concluded that this means that attorneys' fees may not be awarded under Rule 37(a)(5)(C). See, e.g., EEOC v. Bardon, Inc., No. RWT-08-1883 (CBD), 2010 WL 989051, at *3-4 (D. Md. Mar. 12, 2010). However, most courts have included attorneys' fees as part of the “reasonable expenses” that may be awarded under Rule 37(a)(5)(C). See Alliance Indus., Inc. v. Longyear Holding, Inc., No. 08CV490S (HBS), 2010 WL 3991636, at *5 & n.7 (W.D.N.Y. Oct. 12, 2010) (collecting authorities). Courts in this district have followed that majority approach. See, e.g., Escamilla v. Nuyen, No. 14-cv-852 (AK), 2015 WL 4245868, at *11 (D.D.C. July 14, 2015); Beck v. Test Masters Educ. Servs., Inc., No. 04-cv-1391 (JDB), 2012 WL 10817176, at *11 & n.5 (D.D.C. Sept. 25, 2012); DL v. District of Columbia, 251 F.R.D. 38, 49 (D.D.C. 2008). Given that Plaintiff does not argue otherwise, this Court will follow that majority approach here. See Ford v. Massarone, 902 F.3d 309, 314 (D.C. Cir. 2018); Nemariam v. Fed. Dem. Republic of Ethiopia, 491 F.3d 470, 483 (D.C. Cir. 2007).
After a thorough analysis, Judge Harvey recommended that the Court award Defendants $5,681.97 out of the $10,434.50 they requested in attorneys' fees and $275.45, or all of what they requested, in costs, for a total award of $5,957.42. See ECF No. 53 at 29. Judge Harvey's recommendation was largely based (1) on the one hand, the absence of circumstances that would make any award unjust; but (2) on the other hand, Defendants' “less-than-complete victory” on their motion to compel as well as some attorney-time claimed in their fees calculation that they should not have counted, which militated against awarding them all that they requested. See id. at 6, 10, 17, 23, 29. These were proper considerations under Rule 37(a)(5)(C). See, e.g., Pietrangelo v. Refresh Club, Inc., No. 18-cv-1943 (DLF/ZMF), 2021 WL 1209300, at *12 (D.D.C. Mar. 31, 2021); Buie v. District of Columbia, 327 F.R.D. 1, 15-16 (D.D.C. 2018); CFTC v. Trade Exchange Network Ltd., 159 F.Supp.3d 5, 7-8 (D.D.C. 2015). And the Court finds no clear error in Judge Harvey's analysis.
Thus, it is hereby ORDERED that:
1. The Report & Recommendation, ECF No. 53, is ADOPTED in its entirety;
2. Defendants' Motion for an Award of Attorneys' Fees and Costs of Motion to Compel, ECF No. 50, is GRANTED IN PART and DENIED IN PART; and
3. Defendants are AWARDED $5,681.97 in attorneys' fees and $275.45 in costs, for a total award of $5,957.42.
SO ORDERED.