The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
Each side in this bitter employment discrimination case has been guilty of discovery abuse at one time or another. Each side has sought and obtained sanctions against the other. Plaintiff struck first, obtaining an award of over $44,000 in attorney's fees against defendants in consequence of the defendants' defiance of a discovery order. DI 103. As these things tend to go, defendants struck back. In August 2008, Magistrate Judge Francis ruled that defendants were entitled to a partial award of attorney's fees and costs, later fixed at more than $80,230.44, as a result of plaintiff having filed a partially baseless discovery motion. DI 117, 146. This Court upheld the latter rulings. DI 132, 195. The matter now is before the Court on (1) defendants' motion for the entry of judgment against plaintiff's counsel in the amount of $80,230.44 and a writ of execution, and (2) plaintiff's cross-motion to vacate the $80,230.44 award or, alternatively, to certify the propriety of that award for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
The logical starting point is plaintiff's cross-motion, as the vacatur of the award would moot defendants' motion.
Plaintiff contends that the award should be vacated on the ground of a supposed intervening change in law. He argues that subsequent Second Circuit decisions demonstrate that Judge Francis should have applied a four-part test before imposing the award, a test that would involve consideration of the "(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of . . . noncompliance." He asserts that the applicability of this test to the award of fees on an unsuccessful discovery motion first was made clear in Charette v. Department of Social Services, 2009 WL 1475469 (2d Cir. May 28, 2009). The argument is without merit.
As an initial matter, the four-pronged test to which plaintiff refers sets out factors that the Court of Appeals "may [find] useful in evaluating a district court's exercise of discretion to dismiss an action under Rule 37." Agiwal v. Mid Island Mortgage Co., 555 F.3d 298, 302 (2d Cir. 2009) (emphasis added). But the issue before this Court when the award of a portion of the motion expenses was made against plaintiff's counsel was not whether to dismiss the case -- it was whether the expense of defending against the baseless portion of counsel's motion should have been shifted to him. Indeed, the factors themselves speak to "non-compliance" and thus by their literal terms have no application to the kind of conduct in question. Moreover, the Advisory Committee Notes to Rule 37 make plain that the standard for cost-shifting with respect to discovery motion practice is quite different from that which the Second Circuit has applied to the issue of dismissal as a discovery sanction. Advisory Committee Note to 1970 Amendment, reprinted at & MOORE'S FEDERAL PRACTICE § 37 App.03, at 37App.-8 to 37App.-9 (3d ed. 2009). Indeed, the Rules presumptively make expense-shifting the appropriate response to unjustified discovery motion practice, and an order shifting expenses in these circumstances is reviewable only for abuse of discretion. Id. §§ 37.23, 37.23.
The suggestion that the Charette case somehow changed this is baseless. Charette quite obviously applied the four-pronged test upon which plaintiff now relies to the review of so much of the order appealed from in that case as dismissed the action as a discovery sanction. While it is true that the panel vacated also a modest award of counsel fees, it is not clear whether those fees were awarded under Rule 37(a)(5) and, in any case, the Court did not explain its reasoning for that aspect of its ruling. Moreover, Charette was decided by summary order and therefore has no precedential effect. 2d Cir. R. 32.1. The attempt by plaintiff's counsel to suggest otherwise, and to portray Charette as requiring the application of the Agiwal factors in determining whether to shift the expense of unjustified discovery motion practice, thus is perhaps sanctionable in and of itself.
Plaintiff's request for certification under Section 1292(b) also is without merit. The Court sees no controlling question of law as to which there is reasonable ground for difference of opinion. It is entirely persuaded that an interlocutory appeal would materially retard rather than expedite the ultimate conclusion of this already far too protracted litigation. Moreover, plaintiff's counsel has not even addressed the question whether the judgment that defendants seek to have entered would be interlocutory in nature.
Having rejected plaintiff's contention that the award should be vacated on the merits, there are only two remaining objections to the relief sought by the defendants. Plaintiff argues first that the award in substance is one of costs and, in consequence, that S.D.N.Y. Civ. R. 54.1 prohibits the taxation of costs until the entry of final judgment. In any case, he argues, enforcement of any judgment against plaintiff's counsel should be stayed because enforcement would be ruinous to plaintiff's counsel and affect adversely his ability to pursue the case. These arguments are unpersuasive.
The $80,230.44 award was made pursuant to Fed. R. Civ. P. 37(a)(5)(C), which permits a court that grants in part and denies in part a discovery motion, "after giving an opportunity to be heard, [to] apportion the reasonable expenses for the motion."*fn1 In the course of making the award, Judge Francis observed, quite correctly, that "the defendants are entitled to an award of a portion of the costs, including attorneys' fees, that they have incurred in connection with the motion." DI 117, at 8. Plaintiff seizes on the use of the word "costs" to argue that the award was one of "costs" within the meaning of S.D.N.Y. Civ. R. 54.1. But he is quite mistaken.
Local Rule 54.1 deals with the taxation of costs by a prevailing party via a bill of costs. It thus relates to the taxation of costs pursuant to 28 U.S.C. § 1920, which permits a prevailing party to tax certain court and other fees and expenses and to have the bill of costs, to the extent allowed, included in the judgment. It has nothing at all to do with an award of the ...