United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
LAWRENCE R. LEONARD, Magistrate Judge.
On April 30, 2014, the Court issued its Order, ECF No. 210, ("the April 30 Order") granting in part, denying in part, and deferring in part Plaintiff Flame S.A.'s ("Flame") third motion to compel discovery from Freight Bulk Pte LTD ("FBP"), ECF No. 179, and granting in part and denying in part Flame's fourth motion to compel discovery from FBP, ECF No. 181. In its third motion to compel, Flame requested attorneys' fees and costs pursuant to Federal Rule of Civil Procedure 37 ("Rule 37"). In the April 30 Order, the Court found that FBP's position was not substantially justified and that an award of reasonable expenses was not unjust, and directed Flame to submit a motion substantiating its costs and fees pursuant to the factors enumerated in Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 43-44 (4th Cir. 2009). ECF No. 210 at 7-8. Several months later, Flame did so. Now before the Court is Flame's First Motion for Attorneys' Fees and Costs with a brief in support filed on August 12, 2014. ECF Nos. 385-86. This motion seeks an award of fees and costs in connection with Flame's third and fourth motions to compel, which were the subject of the Court's April 30 Order, and also in connection with its first motion to compel, which was granted by this Court in its prior Order issued on April 10, 2014, ECF No. 149 ("the April 10 Order"). FBP filed a response to Flame's motion on August 18, 2014, ECF No. 405, and Flame filed a reply on August 22, 2014, ECF No. 419. Having been fully briefed, the Motion is ripe for disposition.
I. PROCEDURAL BACKGROUND
A. Prior Discovery Motions
Flame's first motion to compel discovery was filed on December 13, 2013, and sought, inter alia, evidence relevant to Flame's theory that the named defendants were all "alter-egos" for each other. ECF No. 25. Flame sought an Order overruling FBP's objections to certain of Flame's First Request for Production of Documents ("RFP") and compelling FBP to produce responsive documents. ECF No. 26 at 1. Flame did not move for its reasonable expenses in this motion. See ECF Nos. 25, 26. Flame filed a second motion to compel discovery on March 5, 2014. ECF No. 92. This second motion to compel involved Flame's First Interrogatories, Second RFP, and Notice of Entry Upon Vessel, directed to FBP, and again sought evidence relevant to the alter-ego theory. Id. at 1. Flame sought as relief an Order overruling FBP's objections and compelling FBP to respond, and granting Flame immediate entry aboard the attached vessel and permission to examine electronically stored information of FBP aboard the vessel, in accordance with its request to inspect under Federal Rule of Civil Procedure 34 ("Rule 34"). ECF No. 93 at 3-13. Flame did not move for reasonable expenses in this motion. See ECF Nos. 92, 93.
The Court held a hearing on the two motions to compel on April 9, 2014 ("April 9 hearing"). ECF No. 148. At the hearing and in a subsequent Order issued the next day, the Court found that the alter-ego theory was relevant and an appropriate subject of discovery with respect to the named defendants, and therefore granted Flame's first motion to compel. Id. ; ECF No. 149. However, it denied the second motion to compel because it had been filed before FBP's responses to the discovery were even due. ECF No. 149 at 2. At the conclusion of the hearing, the Court directed the parties to a conference room and ordered them to meet and confer immediately thereafter regarding their outstanding discovery issues. ECF Nos. 148, 147 at 22-24. Neither Flame nor FBP moved for reasonable expenses pursuant to Rule 37 during the hearing, even though they were each successful on one motion. See ECF No. 147.
B. Discovery Motions Decided by the Court's April 30 Order, Which Awarded Reasonable Expenses to Flame.
Unable to reconcile their differences following the Court-ordered meet-and-confer, Flame filed its third, ECF No. 179, and fourth, ECF No. 181, motions to compel discovery on April 21, 2014. Flame's third motion to compel basically reiterated its second motion compel, once again seeking responsive answers and documents from FBP to Flame's First Interrogatories and Second RFP, but this time it had FBP's responses to discovery in hand. ECF No. 179. The motion also sought, again, an Order granting Flame immediate entry aboard the attached vessel and permission to examine electronically stored information of FBP aboard the vessel, in accordance with its request to inspect under Rule 34. Id. at 4. Flame also requested attorneys' fees and costs incurred in making the motion. Id. at 4-5.
In deciding Flame's third motion to compel, the Court reiterated its holding that the alterego theory was a relevant topic of discovery regarding the named defendants, and overruled FBP's interrogatory objections and ordered it to answer all of the propounded interrogatories. ECF No. 210 at 3-5. Of the sixty-seven contested RFPs, the Court ordered FBP to respond fully to sixty-three of them, and to respond to a limited extent to two more. Id. at 5. It sustained FBP's objections to two RFPs. Id. The RFPs to which the Court sustained FBP's objections dealt with records sought to be produced strictly from entities that were not named defendants in this action, and the Court sustained these objections because such discovery requests exceeded the parameters of the April 10 Order. ECF No. 210 at 3-5. In the April 30 Order, the Court again reiterated that the scope of permissible discovery was limited to the named defendants. Id. at 5. The Court also deferred ruling on Flame's request for entry upon the vessel to give FBP the opportunity to adequately respond to Flame's discovery requests. Id. at 6. Hence, the Court granted in part, denied in part, and deferred in part Flame's third motion to compel. Id. at 7.
Flame's fourth motion to compel involved Flame's Third RFP. ECF No. 181. Flame did not request attorneys' fees and costs incurred in making the motion, although it did ask for "all other just and necessary relief." Id. at 2. In deciding the motion, the Court overruled FBP's objections and ordered it to respond fully to twenty-eight contested RFPs, and to respond to a limited extent to two more. ECF No. 210 at 6-7. It sustained FBP's objections to fourteen RFPs for the same reason it sustained FBP's objections to the two RFPs in Flame's Second RFP, i.e., it would not require FBP to produce documents from entities that were not named defendants. Id. Hence, the Court granted in part and denied in part Flame's fourth motion to compel. Id. at 7.
C. The Court's Award Granting Flame's Request for Fees in the April 30 Order.
At the end of its Order, the Court found that, having already ruled in its April 10 Order that discovery regarding Flame's alter-ego theory was permissible, FBP's position in resisting such discovery was not substantially justified, and an award of expenses was not otherwise unjust. Id. at 7-8. Under its discretionary authority, the Court did award Flame the reasonable expenses incurred in making both motions. Although the Court referenced Rule 37(a)(5)(A), it should have referenced Rule 37(a)(5)(C), since the two motions addressed in the Order were granted in part and denied in part. Id. While Rule 37(a)(5)(A) provides that the Court must award reasonable expenses if the motion is granted (absent the exceptions delineated in subparts (i-iii)), Rule 37(a)(5)(C) provides that the Court may apportion the reasonable expenses for the motion if it is granted in part and denied in part (absent the same exceptions). Compare Rule 37(a)(5)(A), with Rule 37(a)(5)(C). Despite the predominant success Flame achieved in securing relief, it nonetheless was not entirely successful, as the Court sustained certain FBP objections and refused to widen the parameters of its April 10 Order, which limited discovery to those entities who were named defendants. See ECF No. 210. In addition, it deferred ruling on Flame's request for entry upon the vessel, ECF No. 210 at 6, and Flame never raised that issue again. Finally, Flame's subsequent motion asking the Court to reconsider that part of the April 30 Order which sustained FBP's objections, ECF No. 232, demonstrates that even Flame believed that it was not entirely successful in achieving the relief it sought. Accordingly, the Court will appropriately apply Rule 37(a)(5)(C)'s direction to apportion the reasonable expenses for the motions. See, e.g., Mitchell v. Nat'l R.R. Passenger Corp., 217 F.R.D. 53, 60 (D.D.C. 2003) (finding an apportioned award was appropriate when the movant prevailed on six out of seven discovery issues).
A. Rule 37 Standard for Awarding Fees ...