                             UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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

                                            4
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

                                              5
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

                                            6
(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 non-

party 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

                                             7
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 non-

parties 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

                                       8
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 e-

discovery 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.

                                           9
     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




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