Opinion
18-CV-01245(JLS)(JJM)
2021-04-05
Raymond WHITE, Plaintiff, v. City of Buffalo Police Officer Robert LARUSCH, et al., Defendants.
Fares A. Rumi, Matthew A. Albert, The Phoenix Law Group PLLC, Darien Center, NY, for Plaintiff. Maeve Eileen Huggins, City of Buffalo Law Department, Buffalo, NY, for Defendants Robert Larusch, Brandon Hawkins, Lauren Tripp, Zachary Williams. Joseph A. Matteliano, Augello & Matteliano LLP, Buffalo, NY, for Defendants Jon Gullo, Lieutenant Ciechalski, William O'Sullivan, James Ratel, Robert Kemp.
Fares A. Rumi, Matthew A. Albert, The Phoenix Law Group PLLC, Darien Center, NY, for Plaintiff.
Maeve Eileen Huggins, City of Buffalo Law Department, Buffalo, NY, for Defendants Robert Larusch, Brandon Hawkins, Lauren Tripp, Zachary Williams.
Joseph A. Matteliano, Augello & Matteliano LLP, Buffalo, NY, for Defendants Jon Gullo, Lieutenant Ciechalski, William O'Sullivan, James Ratel, Robert Kemp.
DECISION AND ORDER
JEREMIAH J. MCCARTHY, United States Magistrate Judge
Before the court is plaintiff Raymond White's motion to compel production of a video, and for an award of attorney's fees necessitated by the motion [40]. Having reviewed the parties’ submissions [40, 42, 43] and heard oral argument on March 31, 2021 [44], for the following reasons the motion is denied, without prejudice to renewal.
Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF pagination.
BACKGROUND
In this action, plaintiff Raymond White seeks recovery pursuant to 42 U.S.C. § 1983 for alleged false imprisonment, malicious prosecution, and excessive use of force arising from an August 2, 2017 at Buffalo General Hospital. Amended Complaint [22]. On May 18, 2020 White demanded that defendants produce "any and all video surveillance ... related to the incident involving Plaintiff on August 2, 2017". [40-1], ¶13.
When that production was not forthcoming, White's previous attorney e-mailed the Kaleida defendants’ attorney on January 28, 2021, stating: "just following up on the request for video of the incident. According to [defendant] Ciechalski's email, which was turned over via discovery ... there was video preserved of the incident .... In order to ideally avoid unnecessary motion practice, please advise as to the status of the video of the incident in question". [40-4].
Not receiving a response, White filed this motion on March 15, 2021. At 8:30 the next morning, the Kaleida defendants’ attorney e-mailed the video to White's attorney, stating: "My apologies, I believed the video had been sent previously. It is attached again." [42-1].
DISCUSSION
Since the video has now been produced, that portion of the motion seeking its production is now moot. Although White "does not impute any ill will to the Defendants", he argues that "the law ... require[s] attorney fees be awarded to the Plaintiff accordingly". Rumi Declaration [43], ¶7, citing Fed. R. Civ. P. ("Rule") 37(a)(5)(A).
That Rule provides that "if the disclosure or requested discovery is provided after the motion was filed - the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust".
The burden is "on the disobedient party to avoid expenses by showing that his failure is justified or that special circumstances make an award of expenses unjust", and "the provision requires the award of expenses unless the disobedient party meets that burden". Novak v. Wolpoff & Abramson LLP, 536 F.3d 175, 178 (2d Cir. 2008). As White notes, the Kaleida defendants do not "assert that such factors exist". Rumi Declaration [43], ¶8 (emphasis added).
However, Rule 37(a)(5)(A) provides only for an award of the movant's expenses incurred in connection with the motion. White - the movant - does not allege that he incurred any obligation to pay his attorneys for making this motion - for example, he does not explain whether his fee arrangement with his attorney is contingent, fixed fee, or hourly. Some courts view this factor as irrelevant. See , e.g. , Centennial Archaeology, Inc. v. AECOM, Inc., 688 F.3d 673 (10th Cir. 2012). I do not agree.
DISCUSSION
Citing the 1970 Advisory Committee's note to Rule 37(a)(4), the court in Centennial Archaeology reasoned that "[t]he purpose of Rule 37 attorney-fee sanctions would be thwarted if a party could escape the sanction whenever opposing counsel's compensation is unaffected by the abuse, as when the fee arrangement is a contingency fee or ... a flat rate". 688 F.3d at 680.
However, "[a]lthough advisory committee notes are due some deference ... they cannot be allowed to contradict the express language of a Rule". United States v. Nahodil, 36 F.3d 323, 328 (3d Cir. 1994). Courts must "give the Federal Rules of Civil Procedure their plain meaning". Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 540, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991). While the Rules "should be liberally construed ... they should not be expanded by disregarding plainly expressed limitations". Schlagenhauf v. Holder, 379 U.S. 104, 121, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964).
The issue here is whether there is a plain meaning to the phrase "reasonable expenses incurred" as used Rule 37(a)(4)(B). In discerning the plain meaning of a term, courts often resort to Black's Law Dictionary. In United States Department of Justice, Tax Division v. Hudson, 626 F.3d 36 (2d Cir. 2010), the Second Circuit did just that in defining the plain meaning of the word "incurred". That case involved a claim for attorney's fees pursuant to 26 U.S.C. § 7430 by an attorney who had successfully represented himself in tax-related litigation. 26 U.S.C. § 7430(a)(2) provided that "[i]n any administrative or court proceeding which is brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty under this title, the prevailing party may be awarded a judgment or a settlement for ... reasonable litigation costs incurred in connection with such court proceeding", and § 7430(c)(1)(B)(iii) defined "reasonable litigation costs" as "reasonable fees paid or incurred for the services of attorneys in connection with the court proceeding".
See , e.g. , Sullivan v. Hudson, 490 U.S. 877, 894, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989) ("[t]he plain meaning of ‘civil action’ is a proceeding in a court, see Black's Law Dictionary 26, 222 (5th ed. 1979)").
The court concluded that "Hudson is ineligible to receive attorney's fees under the plain wording of ... § 7430", reasoning that "Hudson never paid an attorney; so the question is whether he may be said to have incurred attorney's fees by virtue of the time he invested litigating the tax issue in bankruptcy court. ‘Incur’ means ‘to suffer or bring on oneself (a liability or expense).’ Black's Law Dictionary 836 (9th ed. 2009) .... While Mr. Hudson did expend time and effort to litigate (successfully) the issue of the IRS's interest assessment on the settlement amount, he ... incurred no obligation for the services of an attorney and therefore is not entitled to attorney's fees pursuant to IRC § 7430." Id. at 38, 39. See also Town of New Windsor v. Tesa Tuck, Inc., 935 F. Supp. 317, 320, n. 3 (S.D.N.Y. 1996) ("a thing for which there exists no obligation to pay, either express or implied, cannot in law be claimed to constitute an ‘expense incurred").
In In re Dawes, 652 F.3d 1236 (10th Cir. 2011), the Tenth Circuit likewise quoted Black's in reaching the same conclusion as to the plain meaning of the word "incurred". In Dawes, the court was called upon to interpret the phrase "any tax ... incurred by the estate" in 11 U.S.C. § 503(b)(1)(B)(i). In addressing "the plain language of § 503(b)", the court asked: "what does it mean for a tax to be incurred by the estate?" Id. at 1239 (emphasis in original). Answering its own question, the court reasoned that "Black's Law Dictionary tells us that to ‘incur’ means to ‘suffer or bring on oneself,’ as in a ‘liability or expense’ ", and concluded that this definition does not "leave any room for debate on this proposition: one who has ‘incurred’ an expense is liable for it." Id. (emphasis in original).
Although this court is not bound by Centennial Archeology in any event, I question whether its interpretation of the word "incur" can stand in light of Dawes, since "one panel may not overturn a decision by a prior panel". United States v. Khan, 989 F.3d 806, 822 (10th Cir. 2021).
Since the word "incur" "has a definition that is as well-settled as it is precise" ( id. ) and has the same meaning under the "plain wording" and "plain language" of the statutes at issue in Hudson and Dawes, I do not see how it can have a different meaning for purposes of Rule 37(a)(5)(A). While I regret that this interpretation does not afford a remedy for an attorney who has not charged his or her client for the time spent in preparing a motion to compel, courts "are not at liberty to ignore the mandate of [a] Rule ... in order to obtain ‘optimal’ policy results". Carlisle v. United States, 517 U.S. 416, 430, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996). "[P]olicy question[s] ... must be resolved through the rule-making process and not by judicial decision." United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960).
CONCLUSION
Absent a demonstration that White is obligated to reimburse his attorney for the time spent in preparing and arguing the motion, he is not entitled to relief under Rule 37(a)(5)(A). Therefore, his motion [40] is denied, without prejudice to renewal upon a proper showing. If White can show that he is obligated to reimburse his attorney for that effort, or that relief is available on some basis other than Rule 37(a)(5)(A), his renewed motion shall include the attorney's contemporaneous time records.
SO ORDERED .