UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIR E

Benjamin C . Riaas, Jr ., d/b/a

Resource Management Company

v . Civil No. 06-cv-366-JD

Janet Peschong, Personal

Representative for the

Estate of Frank Greaory

O R D E R

Benjamin C . Riggs moved to have Janet Peschong found in

contempt for failing to comply with the court's discovery order

issued on July 29, 2009 . On November 14, 2008, the magistrate

judge granted the motion to the extent of requiring Peschong to

review certain files and to produce responsive documents or state

that none were found . The motion was otherwise denied .

Riggs moved for reconsideration, arguing that his request to

review client files was not moot, as the magistrate judge found,

and that the magistrate failed to consider Peschong's failure to

produce certain emails . In response, Peschong explained the

interaction between Riggs and her counsel on the issues he raised

and asserted that the magistrate's ruling on Rigg's motion for

contempt was correct and that the motion for reconsideration was

unnecessary because the issues had been addressed by the parties .

Peschong further stated that Riggs's first request for the emails

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was made in his motion for contempt, so that it had not been

considered by the parties or the court in the course of

discovery . As a result, the emails were not an appropriate

subject for the contempt motion . In her objection to

reconsideration, Peschong asked for an award of her attorneys'

fees incurred in responding to Riggs's motion .

The magistrate denied Riggs's motion for reconsideration,

stating : "As succinctly stated in defendant's objection,

plaintiff's motion is unnecessary and plainly wrong . Defense

counsel's fees for the objection are to be paid by the

plaintiff ." Riggs objects, pursuant to 28 U .S .C . § 636(b)(1)(A),

contending that the magistrate's decision was error, inconsistent

with prior findings, and overlooked important facts and issues .

Riggs also contends that the award of fees was error because

facts and evidence showed he filed the motion in good faith .

Peschong filed an objection to Riggs's objection .

Riggs has not shown that the magistrate judge's decision on

the merits of his motion for reconsideration was either clearly

erroneous or contrary to law . § 636(b)(1)(A) . If the court

determines that any of the requirements of Federal Rule of Civil

Procedure 11(b) have been violated, "the court may impose an

appropriate sanction on a . . . party that violated the rule or

is responsible for the violation ." Fed . R . Civ . P . 11(c)(1) .

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Before doing so, however, the court must give the party notic e

and a reasonable opportunity to respond . Id . In addition, "[a]

motion for sanctions must be made separately from any other

motion and must describe the specific conduct that allegedly

violates Rule 11(b) ." Fed . R . Civ . P . 11(c)(2) . Although the

court may raise an issue of sanctions sua sponte, in that event,

the court must order the offending party to show cause why a

sanction should not be imposed . Fed . R . Civ . P . 11(c)(3) .

Peschong included a request for fees as part of her

objection to Riggs's motion for reconsideration . She did not

move separately for sanctions . The magistrate awarded fees

without first giving Riggs notice that the sanction could be

imposed and an opportunity to respond . Therefore, the fees award

is contrary to the applicable law and is vacated .

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Conclusion

For the foregoing reasons, the magistrate judge's decisio n

denying the plaintiff's motion for contempt and motion for

reconsideration is affirmed . The award of attorneys fees to the

defendant, included with the decision denying the plaintiff's

motion for reconsideration, is vacated .

SO ORDERED .

/s/ Joseph A . DiClerico, Jr .

Joseph A . DiClerico, Jr .

United States District Judge

February 20, 200 9

cc : Resource Management Company, Benjamin C . Riggs, Jr .

Douglas Gould, Esq .

Peter Callaghan, Esq .

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