National Union Fire Insurance Company of Pittsburgh, PA v. Aspen Custom Trailers, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
National Union Fire Insurance Company of Pittsburgh, PA, as subrogee of Specialized
Transport & Rigging, LLC, v. Aspen Custom Trailers, Inc.
Case No. 3:21-cv-00077-TMB
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
This matter comes before the Court on Defendant Aspen Custom Trailers, Inc.’s (“Aspen”):
(1) Status Report dated February 6, 2023,1 (2) Motion to Compel,2 (3) Motion for Sanctions,3 and
(4) Motion to Expedite the Motion for Sanctions.4
By way of brief background, the Court granted Aspen’s Motion to Dismiss in February 2022 and
subsequently entered judgment for Aspen (the “Judgment”).5 Aspen then sought an award of
attorney’s fees under Federal Rule of Civil Procedure 54 and Alaska Rule of Civil Procedure 82
from Plaintiff National Union Fire Insurance Company of Pittsburgh, PA (“National Union”).6 In
June 2022, the Court ordered National Union to pay $1,977.50 in attorney’s fees on or before
July 2, 2022, and amended the Judgment to reflect this fee award.7 National Union did not make
payment by the Court-ordered date.8
Between July 6 and September 25, 2022, Aspen contacted counsel for National Union on six
separate occasions to request payment, to no avail.9 Aspen proceeded to serve a writ of execution
on Wells Fargo, which Aspen believed was a bank where National Union did business, but “[e]ach
time Aspen made an effort to collect from [National Union’s bank account], there was a zero
balance and thus nothing was collected.”10 Aspen then served National Union with post-judgment
1 Dkt. 22 (Status Report).
2 Dkt. 19 (Motion to Compel).
3 Dkt. 23 (Motion for Sanctions).
4 Dkt. 24 (Motion to Expedite).
5 Dkt. 11 (Order Granting Motion to Dismiss); Dkt. 14 (Judgment).
6 See Dkt. 12 (Motion for Attorney’s Fees). Alaska law related to attorney’s fees applied because
National Union asserted diversity jurisdiction. See Dkt. 1 at 2 (Complaint); Dkt. 15 (Order
Granting Motion for Attorney’s Fees).
7 Dkt. 15; Dkt. 14-1 (Judgment with Attorney’s Fees).
8 Dkt. 19 at 2 (Motion).
9 Id.
10 Id.; see also Dkt. 17 (Process Receipt and Return); Dkt. 18 (Process Receipt and Return).
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discovery requests to locate a bank account with sufficient funds.11 National Union did not respond
to these discovery requests, even after Aspen sent a reminder by email.12
On December 14, 2022, Aspen filed the Motion to Compel, which seeks National Union’s response
to its post-judgment discovery requests.13 In this motion, Aspen also seeks an award of the costs
and fees incurred in its collection attempts, which totaled $4,620 at the time of filing.14 National
Union did not file a response, and the Court held a hearing on January 26 to determine why the
Judgment had not been paid.15
At that hearing, named counsel for both parties in this case appeared, along with Matthew Fricker,
national counsel for National Union. The Court asked Fricker to explain why National Union had
ignored the Court’s June 2022 order to pay the Judgment. Fricker denied that National Union had
ignored the order and provided several excuses for why it had not paid, suggesting that other
parties, including a representative for National Union’s parent company, might be responsible.
Fricker then proposed that the Court issue another order directing National Union to pay the
Judgment but without the additional attorney’s fees that Aspen currently seeks. The Court rejected
this suggestion as duplicative of the clear order in June 2022 to pay the Judgment and directed the
parties to meet and confer to resolve this matter as efficiently as possible. The Court warned the
parties that if National Union did not agree to pay Aspen within 10 days, it would set another
hearing at which Fricker would appear in person to explain National Union’s failure to follow the
Court’s order. The Court then ordered the parties to confer and file a joint status report.16
Aspen filed the Status Report on February 6, 2023.17 In it, Aspen provides a disconcerting update
regarding National Union’s meet-and-confer efforts. Aspen indicates that it emailed Fricker and
local counsel for National Union immediately after the hearing to propose a resolution to the
matter.18 Specifically, Aspen proposed that National Union pay a total of $6,638.65, which
accounts for the Judgment ($1,977.50), post-judgment interest ($41.15), and the additional
attorney’s fees ($4,620) requested in the Motion to Compel.19 According to Aspen, National Union
has failed to provide a substantive response to this proposal, has not responded to Aspen’s offer to
talk on the telephone, and has “persisted in its refusal to pay the [Judgment].”20
11 Dkt. 19-1 (Post-Judgment Discovery Requests).
12 Dkt. 19 at 3.
13 Dkt. 19.
14 Id. at 3.
15 See Dkt. 21 (Minute Entry).
16 Id.
17 Dkt. 22.
18 Id. at 3; Dkt. 22-1 (Emails Between Aspen and National Union).
19 Dkt. 22-1 at 2.
20 Dkt. 22 at 3.
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One day after filing the Status Report, Aspen filed its Motion for Sanctions and Motion to Expedite
the Motion for Sanctions.21 Pursuant to Federal Rule of Civil Procedure 37(b), Aspen seeks an
additional $1,925 in attorney’s fees accrued since filing the Motion to Compel, to be paid by either
National Union or Fricker.22
Having reviewed these recent filings, the Court hereby ORDERS the parties’ local counsel and
Fricker to appear in person on March 2, 2023 at 9:00 AM in Anchorage Courtroom 1 for a
combined hearing on the Motion to Compel and the Motion for Sanctions.23 National Union is
also ORDERED to make available to participate in the hearing in-house general counsel for
National Union or National Union’s parent company. National Union’s client representative
may participate telephonically.
Furthermore, the Court DENIES the Motion to Expedite the Motion for Sanctions because
Aspen has not shown good cause for a determination on expedited consideration.24 However, to
ensure adequate time to review the briefing on the Motion for Sanctions before the hearing,
the Court ORDERS National Union’s response due on or before February 20, 2023, and
Aspen’s reply due on or before February 24, 2023.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: February 9, 2023
21 Dkt. 23; Dkt. 24.
22 Dkt. 23 at 3.
23 Contrary to Aspen’s suggestion in the Motion for Sanctions, the Court has not yet ruled on the
Motion to Compel. See Dkt. 23 at 3.
24 See L. Civ. R. 7.3(a).
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