UNPUBLISHED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
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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 Decided: April 7, 2016

Before DUNCAN and AGEE, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Gail Hinterberger and Catherine Gordon (Appellants) appeal 

the district court’s orders overruling their objections to the 

magistrate judge’s 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 attorney’s fees incurred in relation to the 

production of discovery materials, attorney’s fees incurred in 

relation to ANA’s motion to shift expenses, and e-discovery 

expenses billed by BIA to ANA. Appellants argue that (1) the 

magistrate judge improperly considered ANA’s motion to shift 

expenses because the motion was untimely; (2) attorney’s 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 BIA’s e-discovery services where ANA failed to 

disclose the expenses prior to incurring the expenses. We 

affirm the district court’s 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).
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I

We review a district court’s decision to extend the 

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

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

2006). “A district court abuses its discretion when it acts in 

an arbitrary manner, when it fails to consider judiciallyrecognized 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. Fed. R. Civ. P. 6(b)(1). Where a deadline to file a 

motion has elapsed, a district court may only extend the 

deadline if the time-delinquent party files a motion and 

demonstrates excusable neglect for the delay. Fed. R. Civ. P. 

6(b)(1)(B).

Here, the magistrate judge determined that ANA’s motion to 

shift expenses was untimely, but construed ANA’s “notice of 

filing motion for attorney fees and costs or, in 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 judge’s construction does not constitute an abuse of 

discretion. ANA’s notice filing cited Fed. R. Civ. P. 6(b), 

argued that excusable neglect supported extending the deadline, 
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and requested that the court “grant leave to file its Motion for 

Attorneys’ Fees and Costs instanter.” Further supporting the 

magistrate judge’s construction, ANA attached an affidavit from 

its lead attorney identifying the cause of ANA’s 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. P’ship, 507 U.S. 380, 392 (1993). Although a party 

typically satisfies the standard for demonstrating excusable 

neglect by demonstrating that the delay is the result of 

circumstances beyond the party’s 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”; and (4) “whether the 

movant acted in good faith.” Id. at 395. 

Neither the magistrate judge nor the district court 

articulated an analysis of the factors governing an excusable 
6

neglect finding. Nonetheless, we conclude that the record 

sufficiently supports a finding of excusable neglect. Regarding 

the first factor, Appellants present no arguments 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 ANA’s 

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 that fall within that 

scope for an abuse of discretion.” Id.; see also Carefirst of 

Md., Inc. v. Carefirst Pregnancy Ctr., Inc., 334 F.3d 390, 396 
7

(4th Cir. 2003) (reviewing order in course of discovery for 

abuse of discretion). 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 party’s 

officer from significant expense resulting from compliance.” 

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

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

“expense resulting from compliance,” we conclude that attorney’s

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, 

attorney’s fees can constitute an expense shifted to the 

discovering party. See Fed. R. Civ. P. 45(d)(1) (“[A]n 

appropriate sanction . . . may include lost earnings and 

reasonable attorney’s fees.”). Second, the 1991 amendments to 
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Fed. R. Civ. P. 45 were adopted in an effort “to enlarge the 

protections afforded persons who are required to assist the 

court.” Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th 

Cir. 2013). Shifting attorney’s fees necessary to discovery is 

consistent with this purpose, as well as the amendment’s 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 attorney’s fees is only appropriate where the 

attorney’s fees are actually necessary to a non-party complying 

with a discovery order. Here, the magistrate judge specifically 

concluded that attorney’s 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 ANA’s 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 ANA’s compliance with the discovery order as they 

were incurred after discovery was completed and as a result of 

ANA’s effort to recover fees, rather than in an effort to 
9

produce discoverable material. Accordingly, ANA’s attorney’s

fees incurred in pursuit of attorney’s 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 attorney’s fees necessary to the production of 

discovery materials, we vacate those portions of the magistrate 

judge’s opinions and district court’s opinions that assigned 

attorney’s 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 BIA’s 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 BIA’s charges. 

Although Appellants dispute these findings on appeal, nothing in 

the record demonstrates clear error below. Accordingly, we 

affirm the shifting of expenses for BIA’s e-discovery services.
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Consistent with the aforementioned reasoning, we affirm the 

extension of the deadline for ANA to file its motion to shift 

expenses, the shifting of attorney’s fees necessary to the 

production of discovery materials, and the shifting of expenses 

for BIA’s e-discovery services. We vacate those portions of the 

magistrate judge’s and district court’s opinions that shifted 

attorney’s fees and expenses stemming from ANA’s efforts to 

shift expenses to Appellants. We remand this case to permit the 

district court to recalculate the shifting of expenses to 

exclude attorney’s fees and expenses not necessary to ANA’s 

compliance with the discovery order. We 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