Bark v. Northrop

300 F.R.D. 486, 88 Fed. R. Serv. 3d 1348, 2014 WL 2809339, 2014 U.S. Dist. LEXIS 84034
District Court, D. Oregon·Decided June 17, 2014·No. No. 3:13-cv-00828-AA·Published·Cited by 6 cases

Opinion

OPINION AND ORDER

AIKEN, Chief Judge:

Plaintiffs Bark, Friends of Mount Hood, the Northwest Environmental Defense Center, and the Sierra Club filed suit against defendants Lisa Northrop, Bill Westbrook, Kent Connaughton, and the United States Forest Service, alleging violations of the National Environmental Policy Act (“NEPA”) and the National Forest Management Act (“NFMA”). The Court subsequently granted defendants’ and defendant-intervenor RLK and Company’s (“RLK”) motions for protection, thereby precluding plaintiffs from engaging in discovery and limiting review of plaintiffs’ claims to the administrative record in accordance with the Administrative Procedure Act (“APA”). Pursuant to Fed.R.Civ.P. 26 and Fed.R.Civ.P. 37, RLK moves for expenses, in the amount of $34,170.95, incurred in connection with its motion for a protective order. For the reasons set forth below, RLK’s motion is granted in part, in that attorney fees and costs are awarded in the reduced sums of $10,965.82 and $863.94, respectively.

BACKGROUND

This dispute arises out of defendants’ decision to approve RLK’s development proposal for the Timberline Ski Area Mountain Bike Trails and Skills Park (the “Project”). On May 16, 2013, plaintiffs initiated this action, alleging that defendants’ acceptance of RLK’s Master Development Plan (“MDP”) and amendment of RLK’s Special Use Permit (“SUP”) violated NEPA and was both arbitrary and capricious under 5 U.S.C. § 706(2), and an agency action unlawfully withheld pursuant to 5 U.S.C. § 706(1).1

On June 4, 2013, the Court granted RLK’s motion to intervene. On June 25, 2013, defendants and RLK stipulated that they would not proceed with the Project until this Court made a decision on the merits. On July 16, 2013, defendants timely answered plaintiffs’ complaint. On August 12, 2013, defendants lodged the administrative record, comprising nearly 30,000 pages, for judicial review.

On October 16, 2013, plaintiffs served interrogatories, requests for admission, and requests for production on defendants and RLK. On October 31, 2013, defendants supplemented the administrative record with an additional 1,400-plus pages in response to plaintiffs’ concerns about missing documents. In November 2013, defendants and RLK separately moved for protective orders against discovery. Thereafter, the parties extensively briefed these motions, filing replies, surre-plies, and a notice of supplemental authority. On February 23, 2014, the Court granted defendants’ and RLK’s motions and entered a protective order that prevented plaintiffs from further pursuing their discovery requests.

On April 1, 2014, RLK filed the present motion for $34,170.95 in fees and costs based on work performed by Portland attorney Sarah Crooks and Boise, Idaho attorneys Robert Maynard, David Hunt, and Stephanie Regenold; RLK also sought fees for work rendered by paralegal Kim Sampo. Specifically, RLK requests $23,843.29 in fees relating to its motion for a protective order, $8,145.78 in fees arising out of the present motion, and $2,181.88 in costs, predominately for online legal research.

STANDARD

Under Fed.R.Civ.P. 26(e), a party attempting to avoid discovery may move for a protective order. For good cause shown, the court may issue such an order to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). “The court [490]*490must award attorney fees to a party who successfully moves for a protective order, unless that party failed to meet and confer in good faith before filing the motion, the opposing party’s position was ‘substantially justified,’ or other circumstances make such an award unjust.” Alexander v. Boeing Co., 2013 WL 5701432, *3 (W.D.Wash. Oct. 18, 2013) (citing Fed.R.Civ.P. 26(c)(3); Fed.R.Civ.P. 37(a)(5)); see also Rickels v. City of S. Bend, Ind., 33 F.3d 785, 786 (7th Cir.1994) (Fed.R.Civ.P. 37 “presumptively requires every loser to make good the victor’s costs”).

DISCUSSION

It is undisputed that the parties conferred extensively prior to RLK’s motion for protection, such that the first exception is not implicated. See RLK’s Mot. Expenses 5 (citing Maynard Decl. ¶¶ 6-8); Pls.’ Resp. to Mot. Expenses 4-11. RLK’s entitlement to expenses therefore hinges on whether plaintiffs were substantially justified or the existence of other circumstances.

I. Substantial Justification

Plaintiffs first assert that they were substantially justified in both seeking discovery and opposing RLK’s motion for a protective order. The party facing sanctions bears the burden of establishing that its position was substantially justified. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir.2001). An individual’s discovery conduct should be found substantially justified under Fed.R.Civ.P. 37 if it has “a reasonable basis in both law and fact.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). Thus, a position is substantially justified if it meets “the traditional reasonableness standard—that is justified in substance or in the main, or to a degree that could satisfy a reasonable person.” Id. (internal quotations omitted).

In this case, plaintiffs sought to discover information regarding the current and projected parking and day lodge operations at Timberline, as well as the efforts of RLK and/or defendants to evaluate parking capacity; plaintiffs also sought ten years worth of documents concerning parking usage at Timberline. See RLK’s Mem. in Supp. of Mot. Protective Order Ex, 1. According to RLK, a protective order was necessary to prevent discovery because judicial review under the APA was limited to the administrative record in existence at the time of the challenged agency action and none of the extra-record exceptions applied. In response to RLK’s motion, plaintiffs shifted their focus away from their 5 U.S.C. § 706(2) arbitrary and capricious claims and instead asserted that failure to act claims brought under 5 U.S.C. § 706

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Bark v. Northrop, 300 F.R.D. 486, 88 Fed. R. Serv. 3d 1348, 2014 WL 2809339, 2014 U.S. Dist. LEXIS 84034 (D. Or. 2014).

300 F.R.D. 486 (Bark v. Northrop) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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