Jo Dague v. Kevin Dumesic, et al, No. 09-16427 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 29 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JO C. DAGUE, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF LARRY L. DAGUE, No. 09-16427 D.C. No. 2:05-cv-0533-JCM-RJJ Plaintiff - Appellant, MEMORANDUM * v. KEVIN DUMESIC, GREG HAZEN, MIKE HORN, LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Defendants- Appellees. Appeal from the United States District Court District of Nevada James C. Mahan, District Judge, Presiding Argued and Submitted October 7, 2010 San Francisco, California Before: RYMER and N.R. SMITH, Circuit Judges, and LEIGHTON **, District Judge * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. ** The Honorable Ronald B. Leighton, United States District Judge for the Western District of Washington, sitting by designation. Appellant Joe Dague appeals the District Court s denial of reconsideration of the magistrate s order awarding attorney s fees to appellees. The standard of review is abuse of discretion. See United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1369 (9th Cir. 1980). Based on the record, the magistrate did not abuse his discretion by holding that the correspondence via mail between the parties did not satisfy the meet and confer requirement of Fed. R. Civ. P. 37(a) and D. Nev. R. 26-7(b). See Shufflemaster, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996) Upon denying the motion to compel, it was within the magistrate s discretion to award attorney fees to appellees under Fed. R. Civ. P. 37(a)(5)(B). Thus, the district court did not abuse its discretion in denying the reconsideration of the magistrate s order. The appellee s request for attorney s fees on the appeal is denied because the appeal is not frivolous. AFFIRMED.

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