Spirit Realty, L.P. v. GH&H Mableton, LLC

319 F.R.D. 474, 2017 WL 36364
CourtDistrict Court, S.D. New York
DecidedJanuary 2, 2017
Docket15 Civ. 5304 (GWG)
StatusPublished

This text of 319 F.R.D. 474 (Spirit Realty, L.P. v. GH&H Mableton, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spirit Realty, L.P. v. GH&H Mableton, LLC, 319 F.R.D. 474, 2017 WL 36364 (S.D.N.Y. 2017).

Opinion

MEMORANDUM ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge

Plaintiff Spirit Realty, L.P., formerly known as Cole Operating Partnership II, L.P. (“Spirit Realty”) moves pursuant to Federal Rule of Civil Procedure 37(a)(5)(A) for expenses it incurred resulting from five disputes with defendant GH&H Mableton, LLC (“GH&H”) during the discovery phase of this action.1 While the Court is dismissing the action today in a separate Opinion and Order, a court may consider a motion for sanctions based on “procedural violations” even if the action is no longer pending. See generally Hernandez v. Conriv Realty Assocs., 116 F.3d 35, 41 (2d Cir. 1997) (upholding award of attorneys fees under Fed. R. Civ. P. 16(c)).

Governing Law

Plaintiff moves exclusively under Federal Rule of Civil Procedure Rule 37(a)(5)(A). Rule 37(a) governs orders “compelling disclosure or discovery.” Rule 37(a)(5) provides that, if a motion to compel discovery is granted, the Court must grant the movant its reasonable expenses incurred in making the motion, including attorneys’ fees, unless the movant did not make a good faith attempt to obtain the discovery without court action; the movant failed to confer in advance with the non-movant; the non-movant’s action was “substantially justified”; or “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). Monetary sanctions under these rules serve two purposes: “In part, they are intended to deter discovery abuses. At the same time, they are designed to compensate the prevailing party for expenses it would not have incurred had the sanctioned party conducted itself properly.” SJ Berwin & Co. v. Evergreen Entm’t Grp., 1994 WL 501753, at *2 (S.D.N.Y. Sept. 14, 1994) (citation omitted) (interpreting pri- or version of Rule 37). We now examine each of the five disputes for which Spirit Realty claims fees.

[476]*476Plaintiffs Application to Quash Subpoenas

Plaintiff notes that defendant, without seeking permission from the Court, issued two subpoenas to third parties approximately 45 days after discovery had closed. PI. Appl. at 5-6. Plaintiff filed a letter seeking to quash the subpoenas based on untimeliness. Letter from Isaac M. Gabriel, counsel for plaintiff, to the Hon. Gabriel W. Gorenstein, filed May 17, 2016 (Docket # 30). After defendant responded, the Court granted the application to quash. See Memo Endorsement on Response to Motion, filed May 20, 2016 (Docket # 33). While plaintiff seeks its expenses for having to file its letter, no fees can be awarded because the letter did not seek “an order compelling disclosure or discovery.” Therefore, the application for expenses is denied.2

Defendant’s Application to Extend the Discovery Period

Plaintiff seeks its expenses based on the fact that, shortly after the Court granted the application to quash the subpoenas, GH&H sought an extension of the discovery period, see Letter from Christopher M. Port-erfield, counsel for defendant, to the Hon. Gabriel W. Gorenstein, dated May 25, 2016 (Docket # 34) (“May 25 Letter”), “even though at that point discovery had been closed for approximately two (2) months,” Pl. Appl. at 3. The Court denied this request the next day without requiring plaintiff to respond to GH&H’s letter. Order, filed May 26, 2016 (Docket # 35). Once again, no fees will be awarded because plaintiff at no time sought “an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a).

Defendant’s Application to Extend the Deadline for Filing a Summary Judgment Motion

In the same letter that defendant wrote seeking an extension of the discovery period, defendant also sought to extend the summary judgment deadline from May 25, 2016, to July 12, 2016. May 25 Letter. Plaintiff opposed this application in a letter. Letter from Isaac M. Gabriel, counsel for plaintiff, to the Hon. Gabriel W. Gorenstein, dated May 27, 2016 (Docket # 36). Again, no fees will be awarded for this letter because it did not seek “an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a).

Scheduling of Rule 30(b)(6) Deposition

Spirit Realty had significant difficulty in scheduling a deposition with a designee of GH&H, making emailed requests for mutually convenient dates over many weeks without a satisfactory response. See Plaintiffs Letter Motion for Discovery, filed Feb. 26, 2016 (Docket # 17) (“Feb. 26 Letter”), Ex. D. Spirit Realty served a 30(b)(6) notice on GH&H on February 17, 2016, unilaterally setting a deposition date for March 4. Id. at Ex. C. GH&H responded on February 23, requesting that the parties reschedule the deposition for the week of March 14, because March 4 would not be convenient for the designee or for GH&H’s attorney. Id. at Ex. G. Counsel for Spirit Realty had already purchased airline tickets for the March 4 deposition, however, and would incur fees totaling $400 to change flights. Id. at 4 n.3. In an order resolving the dispute, this Court ordered reimbursement of the $400. See Order, filed Mar. 2, 2016 (Docket # 20).

Unlike the disputes previously discussed, this dispute relates to an application for an order “compelling disclosure or discovery.” We begin by addressing defendant’s argument that Rule 37(a)(5) does not apply because plaintiff made its application by letter rather than by motion. Response at 1-2. While Rule 37(a)(5) refers to a “motion,” the Court’s Individual Practices make clear that any application for discovery must be made by letter and notes that “the Court may decide the [discovery] dispute based solely on the letters.” See Individual Practices of Judge Gabriel W. Gorenstein ¶ 2.A Additionally, this District’s Local Rules permit certain motions to take the form of a letter rather than including the caption and other matters of form normally required. See S.D.N.Y. Local Civ. R. 7.1(d). In these circumstances, the letter plaintiff wrote qualifies as a “motion” under Fed. R. Civ. P. 7(b), which requires that motions be “in writing,” [477]*477“state with particularity the grounds for seeking the order,” and “state the relief sought.” Thus, fees may be awarded under Fed. R. Civ. P. 37(a)(5). See generally Mantell v. Chassman, 512 Fed.Appx. 21, 24 (2d Cir. 2013) (summary order) (affirming imposition of sanctions under Rule 37(a)(5) based on letter seeking to compel discovery); JSC Foreign Econ. Ass’n Tecnostroyexport v. Int’l Dev. & Trade Servs., Inc., 2005 WL 1958361, at *14 n.7 (S.D.N.Y. Aug. 16, 2005) (“It would be unfair to [movant] to deprive it of Rule 37’s cost shifting protection because of the absence of a formal motion despite extensive judicial proceedings.”).

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Related

Angel Hernandez v. Conriv Realty Associates
116 F.3d 35 (Second Circuit, 1997)
Mantell v. Chassman
512 F. App'x 21 (Second Circuit, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
319 F.R.D. 474, 2017 WL 36364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spirit-realty-lp-v-ghh-mableton-llc-nysd-2017.