Opinion
Civil Action No. 07-cv-00885-PAB-BNB.
November 25, 2008
ORDER
This matter is before me on Defendant Spirit Energy, LLC's Verified Motion for Attorney's Fees; Certificate of Compliance [Doc. # 84, filed 7/3/2008] (the "Motion for Fees"). The Motion for Fees is DENIED.
The Motion for Fees was referred to me for ruling on November 19, 2008, promptly after the case was reassigned to a different district judge.
Although it is not specified, the Motion for Fees apparently is brought under Rule 37(a)(5)(A), Fed.R.Civ.P., which provides:
If the motion [to compel] is granted — or 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.
Here, I found expressly that Spirit Energy had failed to comply with the meet and confer requirements of local rule of practice 7.1A, D.C.COLO.LCivR. Rule 37(a)(5)(A)(i) expressly precludes the award of attorney fees to Spirit Energy under these circumstances.
In addition, I granted Spirit Energy's motion in part, but I denied it in part finding that as to four of the disputed discovery requests the plaintiff's responses or objections were substantially justified. In view of my ruling, taken as a whole, I find that it would be unjust to award Spirit Energy is attorney fees.
IT IS ORDERED that the Motion for Fees is DENIED.