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Alberts v. HCA Inc.

May 19, 2009


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 1, 4, 5




This matter is before the court on various motions arising out of certain non-party subpoenas issued by the defendants in connection with an adversary proceeding before the bankruptcy court.*fn1 The subpoenas were initially issued under the authority of the district court rather than the bankruptcy court. The plaintiff contends that even after the defendants agreed to ask the bankruptcy court to resolve the parties' dispute over the enforceability of the subpoenas, the defendants neglected to formally withdraw the subpoenas in the district court, forcing the plaintiff to file a motion to quash. The plaintiff asserts that by forcing him to file an unnecessary motion, the defendants imposed an undue burden justifying the award of attorney's fees under Federal Rule of Civil Procedure 45(c)(1). In opposition, the defendants assert that the plaintiff failed to comply with the "meet and confer" requirements of Local Civil Rule 7(m), that the plaintiff lacks standing to seek sanctions under Rule 45(c)(1), and that the defendants' behavior did not impose an undue burden. The defendants cross-move to strike the plaintiff's motion for non-compliance with Local Civil Rule 7(m). Because the plaintiff failed to comply with Local Civil Rule 7(m) and because the plaintiff has failed to establish that the defendants imposed an undue burden, the court denies the plaintiff's motion for attorney's fees. Furthermore, the court denies as moot the defendants' cross-motion to strike and the plaintiff's motion to quash as discussed below.


On November 19, 2004, the plaintiff -- the trustee in a Chapter 11 bankruptcy -- initiated an adversary proceeding to recover a $71 million payment made to the defendants that allegedly constituted a fraudulent conveyance. Pl.'s Mot. at 2. In January 2006, the defendants informed the plaintiff that they intended to depose Samuel Alberts (the trustee and plaintiff in the adversary proceeding), Martin Cohen (a non-party member of the advisory trust committee), and Neil Demchick (a non-party financial advisor to the trust). Id. The plaintiff vehemently objected, contending that the defendants had no legitimate reason to depose him and Cohen and that the deposition of Demchick was not appropriate at this time because he had not yet been designated as an expert in the underlying actions. Id., Ex. 4. The defendants responded in a letter dated February 10, 2006, asserting that these individuals possessed relevant non-privileged information regarding the allegedly fraudulent transfer. Id., Ex. 5. Accompanying that letter were non-party subpoenas directing Cohen and Demchick to produce documents and appear for a deposition and a notice of deposition directed to plaintiff Alberts. Id. The subpoenas were issued out of the district court. Id.

In response, the plaintiff rejected the justification offered by the defendants for the disputed discovery and proposed that the dispute be decided by the bankruptcy court handling the adversary proceeding. Id., Ex. 7. Specifically, the plaintiff asked for the defendants' agreement that "[his] motion for protective order and motion to quash be heard by the [Bankruptcy] Court at the March 10, 2006 hearing." Id. In their response dated February 16, 2006, the defendants agreed that the bankruptcy court should resolve the matter and proposed a briefing schedule. See id., Ex. 8. Pursuant to that agreement, the plaintiff filed a motion for a protective order in the bankruptcy court. See id. at 3-4.

On February 17, 2006, the plaintiff sent a one-paragraph letter to the defendants asking that they confirm that the parties had agreed "to treat the subpoenas as coming from the Bankruptcy Court." Id., Ex. 9. On February 24, 2006, after receiving no response from the defendants and making no further efforts to confer with the defendants, the plaintiff filed a motion to quash the subpoenas in this court. See id. at 4. In his motion, the plaintiff requested that this court abstain from ruling until the bankruptcy court had ruled on his pending motion for a protective order. See Liquidating Trustee's Mot. to Quash & Request for Abstention at 9. On March 7, 2006, the defendants withdrew the subpoenas. See Defs.' Notice of Withdrawal of Subpoenas & Resp. to the Liquidating Tr.'s Mot. to Quash at 1. On March 10, 2006, the bankruptcy court ruled on the plaintiff's motion by authorizing the defendants to depose him but prohibiting them from deposing Cohen and Demchick. See Defs.' Opp'n, Ex. I.

The plaintiff subsequently brought this motion for attorney's fees under Federal Rule of Civil Procedure 45(c)(1) seeking to recover the costs incurred in bringing the motion to quash in this court. The plaintiff's motion to quash and motion for attorney's fees, together with the defendants' cross-motion to strike, are the only matters related to this dispute brought before this court.*fn2


A. Local Civil Rule 7(m)

1. Legal Standard for Local Civil Rule 7(m)

Local Civil Rule 7(m) provides that "[b]efore filing any nondispositive motion in a civil action, counsel shall discuss the anticipated motion with opposing counsel, either in person or by telephone, in a good-faith effort to determine whether there is any opposition to the relief sought and . . . to narrow the areas of disagreement." LCvR 7(m) (emphasis added). "The purpose of the Local Rule is to promote the resolution of as many litigation disputes as possible without court intervention, or at least to force the parties to narrow the issues that must be brought to the court." Ellipso, Inc. v. Mann, 460 F. Supp. 2d 99, 102 (D.D.C. 2006). Failure to comply with the rule will result in denial of the motion. See, e.g., Abbott GmbH & Co. KG v. Yeda Research & Development, Co., 576 F. Supp. 2d 44, 48 (D.D.C. 2008) (denying motion under Local Civil Rule 7(m) where the movant waited until the day of filing to call opposing counsel regarding the motion); U.S. ex rel. K&R Ltd. P'ship v. Mass. Hous. Fin. Agency, 456 F. ...

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