Alberts, Trustee v. Galen Hospital Illinois, Inc. et al

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
GREATER SOUTHEAST COMMUNITY
HOSPITAL CORPORATION I, et
al.,
Debtors.
___________________________
SAM J. ALBERTS, TRUSTEE FOR
THE DCHC LIQUIDATING TRUST,
Plaintiff,
v.
HCA INC., et al.,
Defendants.
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Case No. 02-02250
(Chapter 11)
(Jointly Administered)
Adversary Proceeding No.
04-10366
DECISION AND ORDER RE MOTION BY DEFENDANTS FOR RECONSIDERATION
The defendants have moved for reconsideration of this
court’s order dismissing the plaintiff Alberts’ motion to compel
certain discovery on the basis that the court dismissed the
motion to compel without addressing the defendants’ request for
attorney’s fees and expenses incurred in opposing the motion.
The Decision and Order below is hereby signed.
Dated: May 3, 2006.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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I
Alberts is wrong in arguing that reconsideration is
inappropriate because nothing new has been raised in seeking
reconsideration. Neither Rule 59 nor Rule 60 controls as no
final appealable judgment was ever entered. However, a court is
free to reject any motion that seeks via a request for
reconsideration to rehash that which the court has already
considered and rejected. Here, I did not consider the
defendants’ request for attorney’s fees and expenses, and
reconsideration is entirely appropriate.
II
In pursuing their request for attorney’s fees and expenses,
the defendants place reliance on LBR 7026-1(c) which provides:
Counsel (including any pro se party) shall confer with
one another concerning a discovery dispute (other than
a failure to respond at all to written discovery or a
failure to appear for deposition) and make sincere
attempts to resolve the differences between them. The
Court will not consider any discovery motion unless the
moving party has filed a certificate reciting (1) the
date and time of the discovery conference, the names of
all persons participating therein and any issues
remaining to be resolved, or (2) the moving party's
attempts to hold such a conference without success.
Alberts’ counsel apparently believed that an exchange of
correspondence with the defendants’ counsel fulfilled the purpose
of this rule: the defendants’ counsel’s reply to Alberts’
counsel’s request for supplemental discovery made clear that the
defendants would stand on their objections to Alberts’ discovery.
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1 Had such a motion been filed, the court might well have
directed the parties to confer in person (not via the rigid
vehicle of correspondence) given how close the question is
whether the correspondence recited by Alberts satisfied the Local
Bankruptcy Rule.
3
Although it is a close question, the court agrees that Alberts
sufficiently complied with the Local Bankruptcy Rule requiring
that the parties confer in good faith.
Moreover, even if there was a failure to comply with the
Local Bankruptcy Rule, the defendants are not entitled to
attorney’s fees. If the defendants were of the view that the
motion did not satisfy the Local Bankruptcy Rule, they could have
brought that to the attention of Alberts’ counsel and demanded
that the motion be retracted or that the parties confer in person
before Alberts continued to press the motion. If that did not
elicit a favorable response by Alberts, the defendants could have
filed a motion to be excused from filing an opposition (and to
strike Alberts’ discovery as non-compliant with the Local
Bankruptcy Rule) and, in the alternative, for an extension of the
time to respond if the court rejected their view.1 While
violations of the court’s Local Bankruptcy Rule requiring that
the parties first confer will meet with a refusal to consider a
discovery motion, at the same time a party against whom the
discovery motion is directed has an obligation to mitigate its
damages. The defendants here simultaneously moved to strike
Alberts’ motion to compel and addressed that same motion on the
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merits. That put the defendants to expense that they could have
avoided if Alberts’ motion indeed did violate the Local
Bankruptcy Rule. In that circumstance, it is not appropriate to
award attorney’s fees and expenses to the defendants based on any
failure of Alberts to comply with the Local Bankruptcy Rule
(assuming the facts demonstrate such a failure).
The defendants do not contend that, aside from the alleged
failure to comply with the Local Bankruptcy Rule, Alberts’ motion
was meritless, and, indeed, do not contest Alberts’
representation that after Alberts filed his motion, the
defendants provided further discovery responses as had been
sought by Alberts’ motion.
The defendants complain that Alberts failed to withdraw his
motion until the day of the scheduled hearing, and that
attorney’s fees ought to be awarded for that belated withdrawal
of the motion. Alberts responds that he had kept the motion on
file because he had a right to recover attorney’s fees, and
decided shortly before the hearing to withdraw the motion and
forego recovering attorney’s fees. Although it would have been a
better example of civility for Alberts to alert the defendants'
counsel sooner that the motion would not be pursued, I do not
believe that fees should be imposed against Alberts.
In accordance with the foregoing, it is
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ORDERED that the Motion by Defendants HCA Inc. and Galen
Hospital Illinois, Inc. for Reconsideration and Request for
Expenses and Fees in Opposing Plaintiff's Motion to Compel
(Docket Entry No. 118) is DENIED.
[Signed and dated above.]
Copies to: All counsel of record; Office of U.S. Trustee.
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