                                                                            FILED
                              NOT FOR PUBLICATION                            OCT 29 2010

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT

JO C. DAGUE, INDIVIDUALLY AND                    No. 09-16427
AS SPECIAL ADMINISTRATOR OF
THE ESTATE OF LARRY L. DAGUE,                    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.
