United States District Court, D. Hawaii
ORDER REVERSING IN PART THE MAGISTRATE JUDGE'S
OCTOBER 19, 2017 ORDER
DERRICK K. WATSON, UNITED STATES DISTRICT
October 19, 2017, the Magistrate Judge granted
Plaintiffs' Motion to Compel and ordered Defendants to
provide satisfactory responses to long-standing discovery
requests. In doing so, however, the Magistrate Judge denied
Plaintiffs' request for attorneys' fees associated
with the motion. Although the Magistrate Judge acknowledged
that Federal Rule of Civil Procedure 37(a)(5)(A) ordinarily
requires the payment of expenses, including such fees, if a
motion to compel is granted, he denied Plaintiffs'
request, finding that “circumstances make an award of
expenses unjust, ” based upon his conclusion that the
case was “being driven almost entirely by
attorneys' fees.” 10/19/17 Order at 4, Dkt. No 166.
now appeal only the portion of the Magistrate Judge's
October 19, 2017 Order denying their request for
attorneys' fees. Because the Magistrate Judge granted
Plaintiffs the relief sought in their Motion to Compel and
the award of expenses is not unjust in light of the specific
circumstances supporting Plaintiffs' request-defense
counsel's discovery conduct-the Court reverses only the
portion of the Magistrate Judge's Order denying
Plaintiffs' fees under Federal Rule of Civil Procedure
37(a)(5)(A). Plaintiffs are awarded $8, 740.83 in fees.
Settlement Of Claims And Appeal Of Order Awarding
Arsenio Pelayo and Brandon Boreliz, limousine
driver-employees of Platinum Limousine Services, Inc.
(“Platinum”), filed a collective action against
Platinum and its principal, Kurt Tsuneyoshi, alleging that
Defendants failed to pay wages and expenses for various
employment-related activities, as required by state and
federal law. The parties settled the underlying claims
on January 15, 2016.See Dkt. No. 122.
September 27, 2016, Plaintiffs were awarded $47, 917.34 in
fees and costs under the Court's Order Adopting in Part
and Modifying in Part the Magistrate Judge's Findings and
Recommendation on Plaintiffs' Motion for Attorneys'
Fees and Costs. Dkt. No. 139 (9/27/16 Order). On October 27,
2016, Defendants appealed the award, Dkt. No. 140, and
Plaintiffs cross-appealed. Dkt. No. 141. No stay of execution
of the judgment was sought by Defendants in this Court prior
to the filing of Plaintiffs' Motion to Compel, nor was a
supersedeas bond posted.
Plaintiffs' Motion To Compel
served written discovery requests on Tsuneyoshi, pursuant to
Federal Rule of Civil Procedure 69(a)(2), on January 27,
2017. Dkt. No. 148-3. When the discovery
requests went unanswered, Plaintiffs sought to meet and
confer with Defendants' counsel on several occasions.
See Decl. of Richard Holcomb ¶ 30, Dkt. No.
168-2. Plaintiffs also informed Defendants' counsel,
beginning in February 2017, that Plaintiffs would stipulate
to a stay of collection if Defendants posted a sufficient
surety bond. According to Plaintiffs, the only response
received to their discovery requests and offer was sent on
April 11, 2017. On that date, instead of answering the
interrogatories and producing documents, Defendants wrote the
following after each of Plaintiffs' requests:
Kurt Tsuneyoshi objects on the ground that, as you have
previously been informed, an appellate bond is being posted
in connection with the de minimis/nuisance value settlement
of $5, 575.00 (total) you obtained on behalf of two of your
clients. Kurt Tsuneyoshi further objects on the ground that
all discovery is stayed pending mediation.
Holcomb Decl. ¶ 21, Dkt. No. 148-2. Plaintiffs'
counsel immediately objected to the sufficiency and accuracy
of these responses. Holcomb Decl. ¶ 24, Dkt. No. 148-2.
Indeed, from April 11 until June 22, 2017, Plaintiffs sent
four more letters and e-mails, following up on the discovery
issues and requesting a meet and confer. Holcomb Decl.
¶¶ 23-28, Dkt. No. 148-2. When the parties were
finally able to schedule a meet and confer for July 5, 2017,
defense counsel did not appear or return Plaintiffs'
counsel's telephone calls. Five days later, counsel for
Defendants emailed Plaintiffs' counsel and, on July 25,
2017, counsel for the parties did meet and confer. Holcomb
Decl. ¶¶ 34-39, Dkt. No. 148-2. At that meet and
confer, defense counsel promised that the bond would be
posted on July 28, 2017, and, in exchange, Plaintiffs agreed
to forego further discovery responses. Holcomb Decl. ¶
39, Dkt. No. 148-2.
bond (or discovery responses) was provided by the July 28
deadline, Plaintiffs again wrote defense counsel requesting
the posting of the bond by no later than August 10, 2017 or,
at minimum, an assurance that the bond would be posted by
August 11, 2017. Holcomb Decl. ¶ 41, Dkt. No. 148-2.
no response, on August 11, 2017, Plaintiffs filed a Motion to
Compel Answers to Plaintiffs' First Interrogatories and
Request for Production of Documents Pursuant to Fed. R. Civ.
P., Rule 69(a)(2) or Alternatively, the Posting of a
Supersedeas Bond (“Motion to Compel”). Dkt. No.
148. By that motion, Plaintiffs sought an order compelling
responses to Plaintiffs' discovery requests that were
served pursuant to Rule 69(a)(2) on January 27, 2017. In the
alternative, Plaintiffs requested the posting of a
supersedeas bond in the amount of the judgment at issue, $47,
917.34. Plaintiffs also sought sanctions, including, but not
limited to, an award of fees and costs, pursuant to Rule
37(a)(5). See Mem. in Supp. of Mot. to Compel at
2-3, Dkt. No. 148-1.
filed a response to Plaintiffs' Motion to Compel on
August 28, 2017. The response did not cogently explain why no
stay had been sought nor any bond posted since the entry of
the Court's 9/27/16 Order, other than to mention
“failed settlement attempts.” See Dkt.
No. 151 at 2. Defendants also objected to the requested
discovery as improper “hybrid” requests that
exceeded the limits of the Federal Rules and that were
propounded to harass Defendants. Id. at 4-5.
first time at the September 18, 2017 hearing on the Motion to
Compel, defense counsel informed the Magistrate Judge and
Plaintiffs' counsel that Defendants had, in fact,
obtained a bond and would seek a stay. Dkt. No. 161 (9/18/17
Hrg. Tr.). In part because the bond was not provided to
either the Magistrate Judge or Plaintiffs, however, the
Magistrate Judge directed the parties to meet and confer to
attempt to reach resolution and “to file an appropriate
request for a stay.” The Magistrate Judge continued the
hearing on the Motion to Compel to October 4, 2017.
10/19/17 Order And Appeal
parties were unable to reach a resolution on Plaintiffs'
outstanding discovery requests, and Defendants did not file a
motion for a stay. As a result, at the October 4, 2017
continued hearing, the Magistrate Judge granted in part and
denied in part the Motion to Compel, and set an October 25,
2017 deadline for Defendants' supplemental responses.
Dkt. No. 163 ...