Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 15-1481
In Re: SUBPOENA OF AMERICAN NURSES ASSOCIATION,

Movant.
---------------------GAIL HINTERBERGER,
Plaintiff - Appellant,
and
CATHOLIC HEALTH SYSTEM,
Defendant,
v.
AMERICAN NURSES ASSOCIATION,
Movant - Appellee.
No. 15-1803
In Re: SUBPOENA OF AMERICAN NURSES ASSOCIATION,

Movant.
---------------------CATHERINE GORDON,
Plaintiff - Appellant,
and
KALEIDA HEALTH,
Defendant,
v.
AMERICAN NURSES ASSOCIATION,
Movant - Appellee.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt.
Roger W. Titus, Senior District
Judge. (8:11-cv-02836-RWT; 8:11-cv-02837-RWT)
Submitted:
March 31, 2016
Before DUNCAN
Circuit Judge.
and
AGEE,
Decided:
Circuit
Judges,
and
April 7, 2016
DAVIS,
Senior
Affirmed in part, vacated in part, and remanded by unpublished

per curiam opinion.
J. Nelson Thomas, Jared K. Cook, THOMAS & SOLOMON, LLP,

Rochester, New York, for Appellants. Maureen E. Cones, Bruke H.
Sullivan, AMERICAN NURSES ASSOCIATION, Silver Spring, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gail Hinterberger and Catherine Gordon (Appellants) appeal
the district courts orders overruling their objections to the
magistrate judges opinions and orders relying on Fed. R. Civ.
P. 45(d)(2)(B)(ii) to shift expenses incurred by the American
Nurses Association (ANA) during a proceeding in which ANA was
required to produce certain discoverable materials related to an
action initiated by Appellants against Catholic Health System
and Kaleida Health.
Expenses incurred by ANA and shifted to
Appellants included attorneys fees incurred in relation to the

production of discovery materials, attorneys fees incurred in
relation
to
ANAs
motion
to
shift
expenses billed by BIA to ANA.

magistrate
judge
improperly
expenses,
and
e-discovery
Appellants argue that (1) the
considered
ANAs
motion
to
shift
expenses because the motion was untimely; (2) attorneys fees

are
not
expenses
subject
to
shifting
under
Fed.
R.
Civ.
P.
45(d)(2)(B)(ii); * and (3) the magistrate judge improperly shifted

expenses
for
BIAs
e-discovery
disclose
the
expenses
prior
to
services
where
incurring
the
ANA
failed
expenses.
to
We
affirm the district courts judgments in part, vacate in part,

and remand.
At the time ANA incurred the expenses at issue, the Rule

permitting shifting of expenses was located at Fed. R. Civ. P.
45(c)(2)(B)(ii).
I
We
review
district
courts
decision
to
extend
the
timeframe a party has to file a pleading or motion for an abuse

of discretion.
2006).
an
See Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir.
A district court abuses its discretion when it acts in
arbitrary
manner,
when
it
fails
to
consider
judicially-
recognized factors limiting its discretion, or when it relies on

erroneous factual or legal premises.
United States v. Henry,
673 F.3d 285, 291 (4th Cir. 2012).

Rule 6(b) of the Federal Rules of Civil Procedure grants a
district court the power to extend the time for a party to file
a motion.
motion
Fed. R. Civ. P. 6(b)(1).
has
deadline
if
elapsed,
the
district
time-delinquent
Where a deadline to file a

court
party
may
only
files
demonstrates excusable neglect for the delay.
extend
the
motion
and
Fed. R. Civ. P.
6(b)(1)(B).
Here, the magistrate judge determined that ANAs motion to
shift
filing
expenses
was
untimely,
motion
for
attorney
but
construed
fees
and
ANAs
costs
notice
or,
in
of
the
alternative, motion for leave to file instanter as a motion to

extend under Fed. R. Civ. P. 6(b)(1)(B).
We conclude that the
magistrate judges construction does not constitute an abuse of

discretion.
ANAs notice filing cited Fed. R. Civ. P. 6(b),
argued that excusable neglect supported extending the deadline,

4
and requested that the court grant leave to file its Motion for
Attorneys Fees and Costs instanter.
Further supporting the
magistrate judges construction, ANA attached an affidavit from

its lead attorney identifying the cause of ANAs delay in filing
its motion.
Turning to whether ANA satisfied the standard for obtaining
an
extension
to
file
its
motion
for
expenses,
excusable
neglect under Rule 6(b) is a somewhat elastic concept and is

not limited strictly to omissions caused by circumstances beyond
the control of the movant.
Pioneer Inv. Serv. Co. v. Brunswick
Assoc. Ltd. Pship, 507 U.S. 380, 392 (1993).

typically
neglect
satisfies
by
the
standard
demonstrating
that
for
the
Although a party
demonstrating
delay
is
the
excusable
result
of
circumstances beyond the partys control, courts have recognized

that
excusable
neglect
may
extend
to
inadvertent
delays.
Id.
Factors for a court to consider when evaluating whether a
party has demonstrated excusable neglect for a delay include (1)

the danger of prejudice to the [other party]; (2) the length
of the delay and its potential impact on judicial proceedings;
(3) the reason for the delay, including whether it was within
the
reasonable
control
of
the
movant acted in good faith.

Neither
the
magistrate
movant;
and
(4)
whether
the
Id. at 395.
judge
nor
the
district
court
articulated an analysis of the factors governing an excusable

5
neglect
finding.
Nonetheless,
we
conclude
that
the
sufficiently supports a finding of excusable neglect.

the
first
factor,
Appellants
present
no
arguments
record
Regarding
suggesting
that they were prejudiced by the delay and nothing in the record
suggests that they suffered prejudice.
On the second factor, a
delay of, at most, 100 days is not lengthy in the context of

litigation
that
lasted
3.5
years,
and
the
delay
had
no
discernable impact on the judicial proceedings where it occurred

after the discovery matter was resolved and after the district
court had already determined what types of expenses would be
shifted to Appellants.
Regarding the third factor, the record
suggests that the delay was due to medical issues suffered by

the lead attorney for ANA and confusion regarding when ANAs
motion was due.
Finally, nothing in the record suggests that
ANA acted in anything but good faith.
Accordingly, we conclude
that the extension of the deadline for ANA to file its motion to
shift expenses did not constitute an abuse of discretion.
II
We
review
de
novo
any
underlying
legal
interpretation
regarding the scope of a Federal Rule of Civil Procedure.
Payne
ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 203 (4th Cir.
2006).
However,
we
review
decisions
scope for an abuse of discretion.
that
fall
within
that
Id.; see also Carefirst of
Md., Inc. v. Carefirst Pregnancy Ctr., Inc., 334 F.3d 390, 396
6
(4th
Cir.
2003)
(reviewing
abuse of discretion).
order
in
course
of
discovery
for
A district court abuses its discretion if
its conclusion is guided by erroneous legal principles or rests

upon a clearly erroneous factual finding.
Westberry v. Gislaved
Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (citation omitted).
Under Fed. R. Civ. P. 45, a party to litigation may serve a
subpoena for the production of discoverable material on a nonparty to the litigation.
In turn, the non-party may contest the
subpoena, and if a court orders production on the subpoena, the

order must protect a person who is neither a party nor a partys
officer
from
significant
expense
resulting
from
Fed. R. Civ. P. 45(d)(2)(B)(ii (emphasis added).
compliance.
Although Fed.
R. Civ. P. 45 does not explicitly define what constitutes an

expense resulting from compliance, we conclude that attorneys
fees incurred by the non-party that are necessary to a discovery
proceeding under Rule 45 are expenses that may be shifted to the
discovery-seeking
party.
First,
applying
the
cannon
of
construction of in pari materia and looking toward Fed. R. Civ.

P. 45(d)(1), which governs shifting expenses in situations where
a discovering party places an undue burden on the non-party,
attorneys
fees
can
constitute
discovering
party.
See
appropriate
sanction
Fed.
.
an
R.
may
reasonable attorneys fees.).
expense
Civ.
include
P.
shifted
45(d)(1)
lost
to
the
([A]n
earnings
and
Second, the 1991 amendments to

7
Fed. R. Civ. P. 45 were adopted in an effort to enlarge the

protections
court.
afforded
persons
who
are
required
to
assist
the
Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th
Cir. 2013).
Shifting attorneys fees necessary to discovery is
consistent with this purpose, as well as the amendments purpose

of encouraging discovering parties to keep discovery requests
narrow and specific to the issues at hand in the underlying
litigation.
Although we conclude that attorney fees incurred by nonparties may be shifted under Fed. R. Civ. P. 45(d)(2)(B)(ii),
the shifting of attorneys fees is only appropriate where the
attorneys fees are actually necessary to a non-party complying
with a discovery order.
Here, the magistrate judge specifically
concluded that attorneys fees stemming from the preparation of

discovery
status
reports,
attendance
at
discovery
hearings,
privilege review of discovery materials, and HIPPA review of

discovery materials were all necessary to ANAs compliance with
the discovery order, and nothing in the record overcomes this
conclusion.
However, ANA was also permitted to recover attorney
fees for time spent outlin[ing] and draft[ing] the motion for
attorney fees.
Legal fees of this variety were plainly not
necessary to ANAs compliance with the discovery order as they

were incurred after discovery was completed and as a result of
ANAs
effort
to
recover
fees,
8
rather
than
in
an
effort
to
produce
discoverable
material.
Accordingly,
ANAs
attorneys
fees incurred in pursuit of attorneys fees were not subject to

shifting under Fed. R. Civ. P. 45(d)(2)(B)(ii), and it was error
to shift these fees to Appellants.
Therefore, while we affirm
the shifting of attorneys fees necessary to the production of

discovery materials, we vacate those portions of the magistrate
judges
opinions
and
district
courts
opinions
that
assigned
attorneys fees incurred by ANA in pursuit of their motion to

shift expenses and remand for correction of the fee shifting
amount.
Similarly, miscellaneous expenses incurred after the
completion of discovery in an effort to recover fees are not

subject
to
shifting
under
Fed.
R.
Civ.
P.
45(d)(2)(B)(ii).
Thus, we also vacate the portion of the order that shifted FedEx
and PACER expenses associated with the motion to shift fees.
Finally, the magistrate judge shifted expenses for BIAs ediscovery services.
In shifting these expenses, the magistrate
judge found that (1) ANA advised Appellants that producing the
requested
discovery
would
entail
significant
expense;
(2)
Appellants were dilatory in communicating with ANA after the

district court ordered discovery; and (3) Appellants changed the
scope
of
the
requested
discovery,
increasing
BIAs
charges.
Although Appellants dispute these findings on appeal, nothing in

the
record
demonstrates
clear
error
below.
Accordingly,
affirm the shifting of expenses for BIAs e-discovery services.

9
we
Consistent with the aforementioned reasoning, we affirm the

extension of the deadline for ANA to file its motion to shift
expenses,
the
shifting
of
attorneys
fees
necessary
to
the
production of discovery materials, and the shifting of expenses

for BIAs e-discovery services.
We vacate those portions of the
magistrate judges and district courts opinions that shifted

attorneys
fees
and
expenses
shift expenses to Appellants.

district
exclude
court
to
attorneys
compliance
with
the
stemming
and
discovery
ANAs
efforts
to
We remand this case to permit the
recalculate
fees
from
the
shifting
expenses
not
order.
We
of
expenses
to
necessary
to
ANAs
dispense
with
oral
argument because the facts and legal contentions are adequately

expressed in the materials before this court and argument would
not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
10

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

In Re: SUBPOENA OF AMERICAN NURSES ASSOCIATION,

In Re: SUBPOENA OF AMERICAN NURSES ASSOCIATION,

March 31, 2016

Affirmed in part, vacated in part, and remanded by unpublished

J. Nelson Thomas, Jared K. Cook, THOMAS & SOLOMON, LLP,

Unpublished opinions are not binding precedent in this circuit.

Expenses incurred by ANA and shifted to

Appellants included attorneys fees incurred in relation to the

expenses billed by BIA to ANA.

Appellants argue that (1) the

expenses because the motion was untimely; (2) attorneys fees

45(d)(2)(B)(ii); * and (3) the magistrate judge improperly shifted

affirm the district courts judgments in part, vacate in part,

At the time ANA incurred the expenses at issue, the Rule

timeframe a party has to file a pleading or motion for an abuse

See Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir.

A district court abuses its discretion when it acts in

recognized factors limiting its discretion, or when it relies on

United States v. Henry,

673 F.3d 285, 291 (4th Cir. 2012).

Fed. R. Civ. P. 6(b)(1).

Where a deadline to file a

demonstrates excusable neglect for the delay.

alternative, motion for leave to file instanter as a motion to

We conclude that the

magistrate judges construction does not constitute an abuse of

ANAs notice filing cited Fed. R. Civ. P. 6(b),

argued that excusable neglect supported extending the deadline,

Further supporting the

magistrate judges construction, ANA attached an affidavit from

neglect under Rule 6(b) is a somewhat elastic concept and is

Pioneer Inv. Serv. Co. v. Brunswick

Assoc. Ltd. Pship, 507 U.S. 380, 392 (1993).

circumstances beyond the partys control, courts have recognized

Factors for a court to consider when evaluating whether a

party has demonstrated excusable neglect for a delay include (1)

movant acted in good faith.

articulated an analysis of the factors governing an excusable

sufficiently supports a finding of excusable neglect.

On the second factor, a

delay of, at most, 100 days is not lengthy in the context of

discernable impact on the judicial proceedings where it occurred

Regarding the third factor, the record

suggests that the delay was due to medical issues suffered by

Finally, nothing in the record suggests that

ANA acted in anything but good faith.

regarding the scope of a Federal Rule of Civil Procedure.

scope for an abuse of discretion.

Id.; see also Carefirst of

A district court abuses its discretion if

its conclusion is guided by erroneous legal principles or rests

In turn, the non-party may contest the

subpoena, and if a court orders production on the subpoena, the

Fed. R. Civ. P. 45(d)(2)(B)(ii (emphasis added).

R. Civ. P. 45 does not explicitly define what constitutes an

construction of in pari materia and looking toward Fed. R. Civ.