Maiteki v. Marten Transportation Ltd

Filing 290

ORDER granting in part and denying in part 271 Motion for Attorney Fees; granting in part and denying in part 285 Motion to Review Clerk's Order Taxing Costs. Marten is AWARDED $29,066.50 in attorneys fees, payable by Maitekis attorne ys, Andrew Nyombi and Ikechukwu Emejuru, and not by Maitekihimself. The costs taxed by the Clerk of Court 283 are REDUCED by $1,509.71, and Marten is therefore AWARDED costs in the amount of $6,840.37. ORDERED by Judge William J. Martinez on 07/18/2016.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-2021-WJM-CBS
RONALD MUKASA MAITEKI,
Plaintiff,
v.
MARTEN TRANSPORT LTD.,
Defendant.

ORDER ON PENDING MOTIONS

In these postjudgment proceedings, the only remaining parties are Plaintiff
Ronald Maiteki (“Maiteki”) and Defendant Marten Transport Ltd. (“Marten”). Currently
before the Court are two motions: Marten’s Motion for Attorneys’ Fees and Sanctions
(“§ 1927 Motion”) (ECF No. 271) and Maiteki’s Motion to Review Clerk’s Order Taxing
Costs (“Costs Motion”) (ECF No. 285). For the reasons explained below, both motions
are granted in part and denied in part.
I. ANALYSIS: SANCTIONS
Marten moves to recover a portion of its attorneys’ fees as a sanction against
Maiteki’s attorneys, Andrew Nyombi and Ikechukwu Emejuru (“Maiteki’s Counsel”).
Marten’s motion is intertwined with this Court’s order granting summary judgment in
favor of Marten (“Summary Judgment Order”) (see ECF No. 259), which was recently
affirmed by the Tenth Circuit. See Maiteki v. Marten Transp. Ltd., __ F.3d __, 2016 W L
3747396 (10th Cir. July 13, 2016). Familiarity with the Summary Judgment Order is

presumed.1
A.

Standard for Sanctions Under 28 U.S.C. § 1927
Marten primarily requests sanctions under 28 U.S.C. § 1927, which provides that

“[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such conduct.” Given
this statutory language, “[a] court may assess attorney[s’] fees against an attorney
under § 1927 if (a) the actions of the attorney multiply the proceedings, and (b) the
attorney’s actions are vexatious and unreasonable.” Shackelford v. Courtesy Ford, Inc.,
96 F. Supp. 2d 1140, 1144 (D. Colo. 2000). “Actions are considered v exatious and
unreasonable if the attorney acts in bad faith . . . or if the attorney’s conduct constitutes
a reckless disregard for the duty owed by counsel to the court.” Id.; see also Miera v.
Dairyland Ins. Co., 143 F.3d 1337, 1342 (10th Cir. 1998) (collecting various specific
scenarios that evince sanctionable conduct). The attorney’s conduct is judged

1

As midnight neared on Maiteki’s Counsel’s deadline to respond to Marten’s § 1927
Motion, Counsel filed a motion for leave to exceed the page limit, and then filed the response
itself, which ran to 40 pages. (ECF Nos. 277, 278.) The Court denied the motion to exceed the
page limit, explaining, among other things, that “part of the reason the Response is overlong is
certain unnecessary formatting choices, namely, the Response contains an extra space
between every paragraph, and appears to employ 1.5-inch left and right margins. Cf.
D.C.COLO.LCivR 10.1 (specifying 1-inch left and right margins and double-spacing).” (ECF
No. 279.) The Court nonetheless sua sponte granted Maiteki’s Counsel leave to file a 20-page
response within two days. (Id.) Counsel did so, filing a 19-page response—but with 0.5-inch
left and right margins. (See generally ECF No. 280.) Given that this Court’s order specified the
precise formatting required, Maiteki’s Counsel’s failure to employ that formatting resulted either
from unfathomable inattention or contemptuous disregard. In either case, the Court could strike
Maiteki’s Counsel’s response, deem Marten’s § 1927 Motion unopposed, and award the entire
amount of attorneys’ fees requested ($138,094.50). But that would be an unduly harsh result
on account of a margin size violation. The Court therefore accepts Maiteki’s Counsel’s
response as filed.

2

objectively; subjective bad faith is not required to justify § 1927 sanctions. See
Hamilton v. Boise Cascade Exp., 519 F.3d 1197, 1203 (10th Cir. 2008) (“W here, ‘pure
heart’ notwithstanding, an attorney’s momentarily ‘empty head’ results in an objectively
vexatious and unreasonable multiplication of proceedings at expense to his opponent,
the court may hold the attorney personally responsible.”). Ultimately, whether to award
§ 1927 sanctions is a matter committed to this Court’s discretion. Dominion Video
Satellite, Inc. v. Echostar Satellite L.L.C., 430 F.3d 1269, 1278–79 (10th Cir. 2005).
B.

March 16, 2015 Letter
Marten requests all of its attorneys’ fees incurred since March 16, 2015, which is

the date on which Marten sent a letter to Maiteki’s Counsel describing Marten’s reasons
for believing that Maiteki could never prevail on the merits. (ECF No. 271 at 8–11, 14 &
n.7.) Marten argues that Maiteki’s Counsel continued to litigate Maiteki’s claims “long
after counsel should have known those claims were meritless,” which was supposedly
no later than the date on which they received Marten’s letter. (Id. at 9–10.) See also
Dreiling v. Peugeot Motors of Am., Inc., 768 F.2d 1159, 1165 (10th Cir. 1985) (§ 1927
sanctions justified where plaintiffs’ attorney “continued to assert claims for liability
against [a defendant] with knowledge that [plaintiffs] had no factual or legal basis or
claim of liability against [the defendant], and did so long after it would have been
reasonable and responsible to have dismissed the claims against [the defendant]”).
Marten’s March 16, 2015 letter is a fairly typical demand-style letter. (See ECF
No. 271-3.) It mostly comprises deposition excerpts from a Marten employee who
testified that Marten performed a by-the-book reinvestigation, as compared to excerpts

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from Maiteki himself, who continually answered “I don’t know” to questions regarding
whether he had any basis to dispute Marten’s characterization of its reinvestigation.
Although the letter ultimately turned out to be correct in various respects, the Court
cannot say on this record that Maiteki’s Counsel should have known upon receiving that
letter (or earlier) that Maiteki’s claims against Marten could not possibly succeed. The
Court therefore denies Marten’s request for all of its attorneys’ fees since March 16,
2015.
C.

Summary Judgment Reply Brief
Although § 1927 sanctions are not available for all fees and costs incurred after

March 16, 2015, Marten notes that it incurred $29,066.50 specif ically in filing its reply in
support of summary judgment (see ECF No. 271 at 14), and Marten attacks Maiteki’s
Counsel’s summary judgment response brief as vexatious and multiplicative (id. at
11–12). The Court understands Marten to be arguing that it should at least receive its
fees with respect to its reply brief. The Court agrees.
An appropriate starting point for this analysis is Herzfeld & Stern v. Blair, 769
F.2d 645 (10th Cir. 1985). There, the defendant’s attorney appealed a judgment
against his client and included arguments never raised below, supported by purported
admissions that he did not cite, and which the court could not find in the record. Id. at
646. As to the record citations the attorney did include, the court found “citation after
citation in which his references are at least inaccurate, if not totally misleading.” Id. at
647. Indeed, “[t]he many instances in which counsel’s references to the record are
contrary to what is found indicate that he has been either cavalier in regard to his

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approach to this case or bent upon misleading the court.” Id. Either way, said the
court, “sanctions [against the attorney under § 1927] are not only proper, they are also
necessary.” Id.
Herzfeld, although more than thirty years old, might as well have been written in
response to this case. Soon after this Court began evaluating the parties’ summary
judgment arguments, the Court realized that a substantial number of Maiteki’s
Counsel’s record citations did not support the statem ents to which they were attached.
These discrepancies pervaded Maiteki’s position with respect to nearly every potentially
material fact and could not have been accidental, as extensively detailed in the
Summary Judgment Order. (See ECF No. 259 at 3–20.) Given the details provided in
that Order, the Court need only summarize its findings here:
•

Maiteki’s Counsel asserted that Marten fleet manager Wendy Sobotta
“admitted that Maiteki never had any speeding citations or incidents,”
when Sobotta actually stated in the relevant deposition testimony that she
was “[n]ot . . . aware” of any speeding citations. (Id. at 5.)

•

Maiteki’s Counsel repeatedly referred to an e-mail chain as evidence of
systemic failure to reinvestigate, when the e-mail chain actually related
only to one specific issue involved in the reinvestigation. (Id. at 6, 7–8.)

•

Maiteki’s Counsel asserted that Marten “never investigated” Maiteki’s
Illinois speeding incident, denied that a warning letter in the record was
genuine, and claimed that “Marten never . . . disciplines” drivers for
speeding, all purportedly supported by an interrogatory response that

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actually says, “Generally speaking, Marten does not conduct internal
investigations [regarding its drivers who have been cited for speeding].”
(Id. at 5–7.)
•

Maiteki’s Counsel asserted that “Marten has a practice and pattern of
falsifying” information it places in its internal records regarding drivers,
citing a single incident in which the Federal Trade Commission received a
complaint that Marten had “inaccurate information” on a driver’s work
history report. The FTC had no records of acting on this complaint. (Id. at
10–11.)

•

Maiteki’s Counsel argued that “Marten’s [digital human resources file] is
severely error prone,” citing out-of-context and otherwise opaque
deposition testimony where the only language relevant to errors is
Maiteki’s Counsel’s own assertion—not assented to by Marten’s
witness—that the human resources file contains errors. (Id. at 11–12.)

•

Maiteki’s Counsel claimed that Marten, upon reinvestigating driver history,
“has had to make corrections and clarifications on several occasions,”
citing a deposition excerpt that says nothing more than that Marten has, in
fact, corrected driver history reports based on information learned during
reinvestigation. (Id. at 12–13.)

•

Maiteki’s Counsel asserted that Marten can still access historical speedtracking data regarding Maiteki, based on deposition testimony that
actually explains Marten’s continuing use of speed-tracking data on its
current drivers, not its ability to access historical data. (Id. at 15–16.)
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•

Maiteki’s Counsel deemed it “undisputed” that Marten, as a matter of
policy, “does not use or even condone” speed-tracking technology (and
therefore could not have known about speeding it attributed to Maiteki),
citing a driver handbook and deposition testimony showing only that
Marten does not condone its drivers’ use of devices such as radar
detectors or police scanners—not that Marten disapproves of devices by
which it can track its own drivers’ speed. (Id. at 17–19.) This Court
specifically found that Maiteki’s Counsel’s characterization of Marten’s
position was “intentionally misleading.” (Id. at 19.)2

•

Maiteki’s Counsel argued that Marten’s trucks are governed and therefore
“cannot speed past the posted speed limit anywhere,” when Maiteki’s own
deposition actually explained that Marten’s trucks cannot speed where the
posted speed limit matches the governor’s speed limit. (ECF No. 19–20.)
The Court found that Maiteki’s Counsel “[could ]not truthfully represent”
otherwise. (Id. at 20.)

In response to all this, Maiteki’s Counsel deems it
noteworthy that Marten does not state why it believes these
were misrepresentations despite the fact that [Maiteki]
2

This tactic of intentional misdirection actually continues in Maiteki’s Counsel’s
response to Marten’s § 1927 Motion. Referring to the Sobotta deposition passage discussed in
the first bullet point, above, Counsel argues that Sobotta was designated by Marten’s attorneys
as someone “knowledgeable” regarding, among other things, Maiteki’s “driving record and
violations during his employment.” (ECF No. 280 at 4.) Based on this, says Counsel, Sobotta
“was aware of the claims in [Maiteki’s] amended complaint and was prepared to testify on these
allegations including allegations by Maiteki that the speeding citations that Marten alleged did
not exist.” (Id.) This entire argument is framed to give the impression that Sobotta was
Marten’s designated Rule 30(b)(6) witness, whose lack of knowledge might bind Marten. But
Sobotta was not Marten’s 30(b)(6) witness. (See ECF No. 286 at 5 & n.3.)

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attached the actual deposition transcripts and excerpts for
the Court to reach a decision. Marten’s argument would
have made sense had [Maiteki] not attached pertinent
deposition transcripts and merely made representations
without any factually corresponding excerpts.
(ECF No. 280 at 13.) This is frankly astounding. Maiteki’s Counsel appears to believe
that attaching evidence gives them license to characterize that evidence in any way
they want, and it is for this Court to decide whether they have characterized it
accurately. Maiteki’s Counsel are seriously mistaken. As officers of the Court, it is their
duty to convey evidence accurately. Most attorneys, of course, try to convey evidence
in the best possible light for their clients. But there is a difference between putting
evidence in the best possible light and blatantly misstating the evidence. Maiteki’s
Counsel engaged in the latter practice, and it is no excuse that they gave this Court the
materials necessary to uncover their misrepresentations.
Maiteki’s Counsel’s approach to the evidence was vexatious and objectively
unreasonable. Moreover, it unnecessarily multiplied these proceedings because, at a
minimum, it required Marten’s attorneys to spend significant time in Marten’s summary
judgment reply brief correcting Maiteki’s Counsel’s pervasive misstatements. (See ECF
No. 236 at 2–10; see also ECF 271-16 at 2 (Marten attorney timenote reflecting a
meeting with fellow attorneys to discuss “factual misstatements by Maiteki’s attorneys
and addressing all of them within page limits”).) Moreover, Marten was forced to shape
its reply brief to address claims and theories from Maiteki’s Counsel that had by then
become frivolous in light of Counsel’s inability to present properly characterized,
supporting evidence. (ECF No. 236 at 10–20.)

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Accordingly, pursuant to § 1927, Marten is awarded its attorneys’ fees
reasonably incurred in preparing and filing its summary judgment reply brief.
D.

Response to Motion to Strike
Marten also breaks out the attorneys’ fees incurred in responding to Maiteki’s

“Expedited Motion to Bar Admission or Strike as Untimely Production of Evidence or to
for [sic] Leave to File a Surreply” (“Motion to Strike”). (ECF No. 239; see also ECF No.
271 at 14–15.) This Motion addressed certain evidence that Marten disclosed for the
first time with its summary judgment reply brief, supposedly to refute an argument
raised in Maiteki’s response. The Court did not consider Marten’s additional evidence
when resolving Marten’s summary judgment motion, thereby mooting Maiteki’s Motion
to Strike. (ECF No. 259 at 8, 49.)
The Court finds that it cannot determine whether the Motion to Strike was
vexatiously multiplicative without resolving it on its merits—and the Court declines to
resolve it on its merits at this stage, given that it is moot. Nonetheless, on its face, the
Motion appears to present a nonfrivolous argument for exclusion of newly disclosed
evidence. Although the Motion to Strike continues Maiteki’s Counsel’s penchant f or
distracting rhetoric (e.g., “Marten introduced a new strange species of evidence,” ECF
No. 239 ¶ 13), it nonetheless makes a facially fair argument for exclusion of evidence
disclosed for the first time after discovery deadlines have passed. Therefore, the Court
will not award to Marten the attorneys’ fees incurred in responding to the Motion to
Strike.

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E.

Deposition of Maiteki’s Expert
After the close of summary judgment briefing, Marten (and former codefendant

Voyager Express) deposed Maiteki’s designated damages expert, Mr. Deo Rubbani.
This deposition spanned two days. Having read the transcripts of that deposition, the
Court agrees with Marten’s characterization:
Throughout both days of the deposition, Mr. Rubbani
engaged in dilatory and obstructionist behavior, refusing to
answer a number of questions, and, amazingly, claiming
ignorance of a number of common words of the English
language, including “attorney,” “deposition,” “lawsuit,” and
“book.” Further, he unreasonably evaded answering a
question as to whether he understood that he was under
oath, requiring Marten’s counsel to re-ask the question
numerous times.
Mr. Rubbani also took calculated actions to insult Marten’s
counsel . . . .
(ECF No. 271 at 6.) In other words, Rubbani’s conduct was thoroughly unprofessional.
Marten now wants to hold Maiteki’s Counsel liable for the multiplication of proceedings
that Rubbani caused. (ECF No. 271 at 6–8, 15.)
Although Rubbani certainly made the deposition difficult, Marten (and Voyager)
noticed that deposition, so Marten would have incurred some amount of the fees it now
claims even if Rubbani had behaved impeccably. The question for § 1927 purposes is
whether the deposition was substantially and unreasonably lengthened due to Maiteki’s
Counsel’s conduct. Marten has two theories in this regard.
Marten’s first theory is that Maiteki’s Counsel “actively promoted” Rubbani’s
obstructive behavior. (ECF No. 271 at 7–8.) As circumstantial evidence, Marten offers
the fact that (a) Maiteki himself at times behaved with similar unprofessionalism in his
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own deposition (an assertion with which this Court agrees, see ECF No. 259 at 35–39),
and (b) Maiteki’s Counsel withdrew Rubbani as an expert witness at the final pretrial
conference. The Court concludes that this evidence, although raising a valid suspicion,
is not enough on its own to sustain the charge that Maiteki’s Counsel procured
Rubbani’s obstructionism. To justify § 1927 sanctions based on such accusations, the
Court would likely need to hold an evidentiary hearing, which Marten has not requested.
Accordingly, the Court will not award § 1927 sanctions on this theory.
Marten’s second theory is that Maiteki’s Counsel “did not take any action to
address, let alone change, Mr. Rubbani’s behavior. To the contrary, [Counsel]
appeared to encourage that behavior by making countless inappropriate objections and
arguing with defense counsel for no good reason.” (ECF No. 271 at 7.) The Court
agrees that Maiteki’s Counsel made numerous inappropriate objections and was
unnecessarily argumentative. However, the Court could not locate a case in which
such behavior was an appropriate basis for § 1927 sanctions (as opposed to Federal
Rule of Civil Procedure 30(d)(2) sanctions). In addition, Marten has of fered no basis for
determining how much of the deposition costs—which, again, would have been incurred
to some degree no matter what—were the result of Maiteki’s Counsel’s behavior, as
compared to Rubbani’s behavior or even Voyager’s counsel’s behavior.3 The Court
therefore will not award § 1927 sanctions to Marten based on the f ees incurred in
connection with the Rubbani deposition.

3

For example, Voyager’s counsel, Maiteki’s Counsel, and Rubbani spent significant time
arguing over whether Rubbani was required to answer certain questions regarding his
immigration status. (ECF No. 271-8 at 4–6.) The Magistrate Judge eventually ruled, intradeposition, that this line of questioning was irrelevant. (Id. at 33–33.)

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F.

Sanctions under the Fair Credit Reporting Act
The Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., contains two

nearly identical provisions for litigation sanctions:
Upon a finding by the court that an unsuccessful pleading,
motion, or other paper filed in connection with an action
under this section was filed in bad faith or for purposes of
harassment, the court shall award to the prevailing party
attorney’s fees reasonable in relation to the work expended
in responding to the pleading, motion, or other paper.
15 U.S.C. § 1681n(c); id. § 1681o(b).4 Marten seeks sanctions under these provisions
also. (ECF No. 271 at 12–13.) However, both provisions explicitly apply to “an action
under this section.” Maiteki did not sue Marten under §§ 1681n or 1681o, but rather
under § 1681s-2. (See ECF No. 157 at 31; compare id. at 23, 24, 40, 42 (asserting
causes of action against other defendants under §§ 1681n and 1681o).) T hus, these
sanctions provisions do not apply. Even if they did, the Court would find that the only
“pleading, motion, or other paper” for which Marten should be awarded fees is its
summary judgment reply brief. The Court has already concluded that fees are
appropriate for that reply under § 1927. The Court therefore denies fees under FCRA.
G.

Amount to Award
Marten claims $29,066.50 in attorneys’ fees for its summary judgment reply brief.

(ECF No. 271 at 14.) Marten further claims that this a reasonable amount under the
traditional lodestar analysis (id.), although Marten does not attach a breakdown of the
hours specifically expended in generating the claimed $29,066.50 in fees.

4

The only difference between §§ 1681n(c) and 1681o(b) is that the latter begins with
“On” rather than “Upon.”

12

In point of fact, the Court has discretion whether or not to apply the lodestar
analysis when calculating a § 1927 fee award. See Hamilton, 519 F.3d at 1206–07.
Maiteki’s Counsel, however, does not argue for any other approach. Indeed, although
Maiteki’s Counsel contests whether § 1927 fees should be awarded, Counsel has no
fallback argument regarding the total fee award or the reasonableness of Marten’s
claimed hours or rates.
Normally the Court would not award fees without a more-specific breakdown
than what Marten has provided. However, in light of Maiteki’s Counsel’s total failure to
object, and because the claimed amount does not strike the Court as unreasonable on
its face, the Court will award $29,066.50, as requested.5
II. ANALYSIS: COSTS
When entering final judgment, the Court awarded Marten its costs. (ECF No.
275.) Marten and Maiteki could not agree on Marten’s allowable costs, and therefore
sought a hearing in front of the Clerk of Court. See D.C.COLO.LCivR 54.1. Given that
lead counsel for both parties was out-of-state, the hearing was to be conducted
telephonically. (ECF No. 285 at 2.) At the appointed time of the hearing, the Clerk of
Court’s hearing officer called Maiteki’s Counsel’s office, but no one answered the
phone. Mr. Nyombi, one of Maiteki’s attorneys, claims he “was ill with eye health

5

As is typical in responses to motions for sanctions, Maiteki’s Counsel’s response
argues that Marten should itself be sanctioned for filing a supposedly baseless motion for
sanctions. (ECF No. 280 at 2, 18–19.) Counsel cites no authority—not even § 1927—for such
sanctions. Cf. D.C.COLO.LCivR 7.1(d) (“a motion involving a contested issue of law shall state
under which rule or statute it is filed and be supported by a recitation of legal authority
incorporated into the motion”). Furthermore, Counsel has not moved separately for such
sanctions. In any event, Marten’s motion was not baseless, and therefore not sanctionable.

13

problems and could not attend the hearing.” (Id.) At some unspecified time—and
apparently too late—Mr. Nyombi notified his co-counsel, Mr. Emejuru, about the need
to substitute. (Id.) Mr. Emejuru then called the hearing officer and learned that the
“hearing had just ended.” (Id.)
Maiteki has now filed his Costs Motion (ECF No. 285), challenging many of the
deposition transcript and videography costs included in the $8,350.08 taxed by the
Clerk of Court (ECF No. 283). Marten does not argue that Maiteki’s Counsel’s failure to
attend the hearing affects the Costs Motion in any way. The Court will therefore resolve
it on its merits.
A.

Deposition Transcripts
Concerning deposition transcripts, costs may be taxed if they appeared

reasonably necessary to the litigation of the case at the time they were incurred. In re
Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009). Costs
incurred solely for the “convenience of counsel,” however, are not recoverable. Id. at
1147.
The Court rejects Maiteki’s challenge to Marten’s payment for the entire
transcript of Maiteki’s deposition. The deposition spanned two days to accommodate
counsel for each co-defendant to ask questions. That does not mean, however, that
Marten should only have paid (or that Maiteki should only be charged) for Marten’s
specific portion of the deposition. All co-defendants’ attorneys contributed to each
other’s cases through their questions. In any event, the Court has never heard of a
court reporting firm willing to reproduce only part of a deposition at a discount. Nor is

14

the Court aware of how it might simulate such a discount for purposes of taxing costs to
Maiteki. Thus, Marten justifiably ordered the entire transcript of Maiteki’s deposition.
The Court likewise rejects Maiteki’s claim that Marten should not have paid for
the transcripts of the Rubbani deposition. Marten (and Voyager) noticed these
depositions, and it would be very unusual for a party not to obtain the transcript of a
deposition it noticed. Maiteki eventually withdrew Rubbani, but only after the second
deposition setting. Marten’s costs for the Rubbani transcripts were therefore
appropriate.
Finally, the Court rejects Maiteki’s claim that Marten should not have ordered the
transcripts for the depositions of two Voyager employees. The connection of those
employees to Marten’s case is somewhat less direct, but the Court cannot say that
Marten’s choice to obtain these transcripts was not reasonable at the time the choice
was made. The Court therefore will not subtract any deposition transcript costs from
Marten’s claim.
B.

Deposition Videos
Because deposition transcripts and deposition videos serve different purposes

(the former is best for presenting written arguments, the latter is best for presenting
testimony in court), “the better practice is to allow the costs of both videotaped and
stenographic depositions, absent some good reason not to do so.” Meredith v.
Schreiner Transp., Inc., 814 F. Supp. 1004, 1006 (D. Kan. 1993), cited with approval in
Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir. 1997).

15

Maiteki has articulated no good reason to disallow the costs for videotaping the
depositions that Marten noticed. However, the Court agrees with Maiteki that the costs
of videotaping the Konsela and Sobotta depositions should not be assessed ag ainst
him. Maiteki noticed the Konsela and Sobotta depositions, not Marten, and Maiteki
never intended to videotape them. Marten itself arranged to have a videographer
present. This led to a dispute requiring resolution by the Magistrate Judge. The
Magistrate Judge asked Maiteki’s Counsel, “[T]hey’re not asking you to pay for the
videographer, are they?” Before Maiteki’s Counsel could respond, counsel for Marten
answered, “No, we’re not, Your Honor.” (ECF No. 271-11 at 4.)
This exchange, on its face, could mean only that Marten would not send the
videographer’s bill directly to Maiteki’s Counsel. It does not necessarily mean that
Marten never intended to attempt to recoup the cost later. However, under the
circumstances that led to the Magistrate Judge’s intervention, the Court finds that
Marten should not be permitted to recoup this cost. Not only did counsel for Marten
deny any intent to require Maiteki’s Counsel to pay for the videographer, but arranging
for video at a deposition that you did not notice strikes this Court as something done for
the convenience or preference of counsel, rather than as reasonably necessary.
Williams, 558 F.3d at 1148. Accordingly, the cost of those deposition videos
($1,509.71) will be subtracted from Marten’s final award of costs.
III. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Marten’s Motion for Attorneys’ Fees and Sanctions (ECF No. 271) is GRANTED
IN PART and DENIED IN PART as follows:
16

a.

Marten is AWARDED $29,066.50 in attorneys’ fees, payable by Maiteki’s
attorneys, Andrew Nyombi and Ikechukwu Emejuru, and not by Maiteki
himself;

b.
2.

Marten’s Motion for Attorneys’ Fees and Sanctions is otherwise DENIED;

Maiteki’s Motion to Review Clerk’s Order Taxing Costs (ECF No. 285) is
GRANTED IN PART and DENIED IN PART as follows:
a.

The costs taxed by the Clerk of Court (ECF No. 283) are REDUCED by
$1,509.71, and Marten is therefore AWARDED costs in the amount of
$6,840.37; and

b.

Maiteki’s Motion to Review Clerk’s Order Taxing Costs is otherwise
DENIED.

Dated this 18th day of July, 2016.
BY THE COURT:

William J. Martínez
United States District Judge

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