Hayles v. Jarriel et al

Filing 259

ORDER denying 252 Motion for Attorney Fees. Signed by Judge B. Avant Edenfield on 10/9/13. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
WINSTON HAYLES,
Plaintiff,
6:10-cv-31

v.

TARMARSHE SMITH; and KAREN
DEKLE,
Defendant.
ORDER
I.

INTRODUCTION

Before the Court is Defendants’ Motion
For Expenses And Fees Related To ReOpened Expert Witness Deposition. ECF
No. 252. Defendants seek sanctions against
Winston Hayles and/or his attorney for
conduct leading to a second deposition of
Hayles’s expert witness. Id. Hayles argues
an award is unwarranted because (1) “a
second deposition was an improvident use of
resources;” and (2) “the instant motion . . .
seek[s] to relitigate issues previously heard
and decided.” ECF No. 255 at 2, 3.
Although the Court disagrees with Hayles’s
arguments, it nevertheless finds an award
unwarranted and so DENIES Defendants’
motion.
II.

BACKGROUND

This case began in April, 2010, with
Hayles as a pro se litigant. ECF No. 1.
Discovery originally closed that December.
See ECF No. 18. Over a year later, Hayles’s
current counsel appeared on his behalf, ECF
No. 177, and moved to reopen discovery.
ECF No. 180. The Court granted that

motion and extended discovery until August
21, 2012. ECF No. 183.
Part of the purpose of the new discovery
period was to allow Hayles to “identify an
orthopedic doctor to provide expert
testimony at trial and submit an expert
report.” ECF No. 182 at 2. But Hayles
never identified an expert of any kind before
the period ended.
On January 18, 2013, Hayles again
moved to reopen discovery, this time “for
the limited purpose of identifying Dr.
Obinwanne Ugwonali [as an expert] . . .
submitting Dr. Ugwonali’s expert report and
permitting Defendants the opportunity to
depose him.” ECF No. 193 at 2. Hayles’s
motion in particular noted that “Dr.
Ugwonali ha[d] already prepared his expert
report.” Id. at 5. The Court granted the
motion, but required Hayles to promptly
disclose Dr. Ugwonali’s opinion and make
him available for deposition within thirty
days of the Court’s order. ECF No. 197.
Hayles produced the expert report the
next day, ECF No. 198-2 (acknowledging
the incompleteness of the initial report and
promising to file a supplement), and an
addendum six days later. See ECF No. 1984. Despite the addendum, Defendants
continued to believe Dr. Ugwonali’s report
contained “the opinion to be given at trial,”
but not “the basis and reasons for the
opinion.” ECF No. 198-5 at 2. Defendants
requested additional expert disclosures from
Hayles but received none before Dr.
Ugwonali’s deposition on February 25,
2013. ECF No. 252 at 5.
Two days after the deposition, Hayles’s
counsel filed with the Court a “Rule 26

Report” for Dr. Ugwonali. ECF No. 202. It
contained the first and second expert
disclosures, Dr. Ugwonali’s CV, and a new
disclosure entitled “Addendum.” ECF No.
202-1. Defendants contend that addendum
revealed, for the first time, the basis and
reasons for Dr. Ugwonali’s opinion. ECF
No. 252 at 5.

Defendants filed the present motion. ECF
No. 252.
III. DISCUSSION
Defendants ask the Court to award
$3,489.60—their expenses and attorney’s
fees related to the second Ugwonali
deposition—as a sanction for Hayles and his
counsel’s conduct leading to the reopening
of Dr. Ugwonali’s deposition. Id. at 15.
Defendants point to three sources of
authority in requesting such sanctions.

“Following disclosure of the Addendum,
Defendants’ counsel conferred with counsel
for [Hayles] and requested that [Dr.
Ugwonali’s] deposition be re-opened at
Plaintiff’s cost for the purpose of allowing
questioning based on the Addendum.” Id. at
6; ECF No. 204-2. Defendants allege that
Hayles’s counsel refused that request. ECF
No. 252 at 7.

First, Defendants argue Federal Rule of
Civil Procedure 37 allows the Court to
impose sanctions, including attorney’s fees,
for Hayles alleged failure to comply with a
court order and failure to disclose required
details in an expert witness report. Id. at 89. Second, Defendants argue that 28 U.S.C.
§ 1927 justifies sanctions because Hayles
and his counsel’s conduct “unreasonably
and vexatiously” multiplied these
proceedings. Id. at 12. Third, Defendants
appeal to the Court’s inherent power to
impose sanctions for bad faith litigation
conduct. Id. at 13. The Court first addresses
Rule 37, then § 1927 and the Court’s
inherent powers.

Defendants then asked the Court to
strike the addendum or in the alternative
“allow the reopening of [Dr. Ugwonali’s]
deposition at Plaintiff’s cost.” Id. The
Magistrate Judge denied the motion to
strike, but reopened the deposition with a
hearing to come later on Defendants request
that Hayles pay their costs. Id.
The parties scheduled the reopened
deposition for Monday, April 22, 2013. Id.
The night before, Hayles’s counsel notified
Defendants that Dr. Ugwonali would not
appear for the deposition unless he received
pre-payment of his expert fee.
Id.
Circumstances made that impossible for
Defendants and the parties rescheduled the
deposition for May 13, 2013. Id.

A. Rule 37
When a district court orders a party to
provide discovery, compliance is mandatory.
“If a party . . . fails to obey an order . . . the
court must order the disobedient party, the
attorney advising that party, or both to pay
the reasonable expenses, including
attorney’s fees, caused by the failure, unless
. . . circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(b)(2).

Ultimately, this case went to trial, where
a jury decided Hayles failed to prove
excessive force by a preponderance of the
evidence. ECF No. 247. Two weeks later

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Rule 37 also allows courts to “order
payment of the reasonable expenses,
including attorney’s fees,” associated with a
party’s failure “to provide information or
identify a witness as required by Rule 26(a)
or (e).” Fed. R. Civ. P. 37(c). The
mandatory default sanction, however, for a
failure to disclose is a bar on using the
undisclosed evidence at trial. Id. at (1).
Imposition of expenses and fees for
nondisclosure, on the other hand, is a
discretionary sanction available to
supplement or replace exclusion of evidence
when a court finds it appropriate. Id. at
(1)(A).

therefore declines to impose sanctions under
Rule 37(b).
2. Failure to disclose
Defendants also argue that sanctions
should be imposed for a failure to disclose
the reasons and basis for Dr. Ugwonali’s
expert opinion. ECF No. 252 at 10. Perhaps
Hayles failed to disclose the reasons and
basis for Dr. Ugwonali’s opinion. Even
assuming that’s true, the Court finds
sanctions inappropriate in this case.
First, the award of expenses as a
sanction for a failure to disclose is a
discretionary remedy. See Fed. R. Civ. P.
37(c)(1)(A) (stating that courts “ may order
payment” of a party’s reasonable expenses.”
(emphasis added)). The default sanction is
exclusion of the evidence or witness a party
fails to disclose. Id. at (c)(1).

1. Failure to comply with a court order
Defendants argue that Hayles and his
counsel violated the Magistrate Judge’s
January 28, 2013 order, which required
Hayles to “promptly disclose the opinion of
his expert witness,” and “make his expert
witness available for deposition within thirty
days” of the order. ECF No. 197.

Exclusion occurred here, although not as
a result of Hayles’s failure to disclose.
Before trial, Defendants filed a motion in
limine seeking to exclude Dr. Ugwonali’s
testimony under Federal Rule of Evidence
702 and the reliability standard of Daubert
v. Merrell Dow Pharmaceuticals, 505 U.S.
579. See ECF No. 236. The Court agreed
with Defendants and excluded Dr.
Ugwonali’s expert testimony. ECF No. 238.

The Court doubts that Hayles failed to
comply. Hayles’s counsel submitted an
expert report, albeit an incomplete one, see
ECF No. 198-2, the day after the Court’s
order requiring “prompt disclosure.” ECF
No. 197. Counsel then amended that report
six days later. ECF No. 198-4. And Dr.
Ugwonali’s first deposition took place
within thirty days of the Court’s order.
Whether or not the potentially deficient
expert report in fact constitutes a failure to
comply with a court order, it is not “clear
that [Hayles] and/or his counsel simply
refused to let the rules govern their
conduct.” ECF No. 252 at 10. The Court

If Defendants had asked the Court
shortly after the second deposition to
sanction Hayles by excluding Dr.
Ugwonali’s testimony, the Court may have
granted that request. Failure to follow
discovery rules, even absent bad faith, opens
the door to sanctions. See BankAtlantic v.
Blythe Eastman Paine Webber, Inc. , 12 F.3d
1045, 1049 (11th Cir. 1994) (noting that
“failure” as used in Rule 37 does not
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connote “refusal”). The Court may have
even awarded Defendants the expenses they
ask for now if they demonstrated prejudice
from Hayles’s failure to disclose.

awarding expenses, their absence is relevant
“to the path which the . . . Court might
follow in dealing with [Hayles’s] failure to
comply.”
Societe Internationale Pour
Participations Industrielles et
Commerciales, S.A. v. Rogers , 357 U.S. 197,
208 (1958). Particularly in light of the
unavailability of exclusion of Dr.
Ugwonali’s testimony as a sanction due to
its previous exclusion on other grounds,
Hayles’s counsel’s possible negligent failure
to disclose does not support an award of
expenses.

Instead of seeking sanctions at the time
Hayles allegedly failed to disclose the
reasons and basis for Dr. Ugwonali’s
opinion, Defendants waited until after trial,
some three months after they deposed Dr.
Ugwonali a second time. Compare ECF No.
252 at 7 (noting date of May 13, 2013 for
Dr. Ugwonali’s second deposition), with
ECF No. 239 (minute entry for first day of
trial, August 27, 2013). By that time, Dr.
Ugwonali’s testimony had been excluded
and the Defendants had prevailed at trial.

B. 28 U.S.C. § 1927 and the Court’s
Inherent Power
“Any attorney admitted to conduct cases
in any court of the United States . . . who so
multiplies the proceedings in any case
unreasonably and vexatiously may be
required by the court to satisfy personally
the excess cost, expenses, and attorneys’
fees reasonably incurred because of such
conduct.” 28 U.S.C. § 1927. In this circuit,
attorneys violate § 1927 “only when the
attorney’s conduct is so egregious that it is
‘tantamount to bad faith.’” Amlong &
Amlong, P.A. v. Denny’s Inc. , 500 F.3d
1230, 1239 (11th Cir. 2006). Bad faith in
the § 1927 context, however, turns not on an
attorney’s dishonesty of belief, see Black’s
Law Dictionary 159 (9th ed. 2009), but “on
the attorney’s objective conduct.” Amlong
& Amlong , 500 F.3d at 1239.

Second, Hayles and his counsel’s
conduct do not suffer the taint of bad faith.
From Defendants’ own exhibits, it is
apparent Hayles’s counsel endeavored to
cooperate with defense counsel. See ECF
No. 252-1 at 16 (Hayles’s counsel
attempting to alleviate inconvenience of
deposition rescheduling by suggesting the
use of special interrogatories), 17
(apologizing for the late notice, caused by
Dr. Ugwonali’s delay in notifying Hayles’s
counsel, about Dr. Ugwonali’s request for
prepayment). She also made no attempt to
hide the insufficiency of the initial expert
report prepared by Dr. Ugwonali, even
stating that a supplemental disclosure would
soon be forthcoming (it was). See ECF No.
198-2 at 2. Although she very well may not
have abided by the letter of Rule 26,
Hayles’s counsel did not willfully hide the
Ugwonali ball from Defendants.

Under either a subjective or an objective
standard, Hayles and his counsel did not
engage in bad faith litigation conduct. Even
if Hayles’s counsel failed to properly
disclose the basis and reasons for Dr.
Ugwonali’s opinion as required by Federal

Although a lack of bad faith or willful
disregard of the rules does not preclude
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Rule of Civil Procedure 26(a), she did not
“engage in litigation tactics that needlessly
obstruct the litigation of a non-frivolous
claim” such that sanctions under § 1927 are
appropriate. Id. at 1242. In fact, counsel’s
actions can hardly be construed as “tactics”
at all; they more closely resemble
inadvertent mistakes, if anything. And
because the scope of the Court’s authority
under § 1927 “is either broader than or
equally as broad as [its] . . . authority to
issue a sanctions order under its inherent
powers,” the failure of § 1927 to support
sanctions means the same is true of the
Court’s inherent power. Id. at 1239.
IV. CONCLUSION
The Court DECLINES to award
sanctions under Rule 37, 28 U.S.C. § 1927,
or its inherent powers. So, Defendants
motion, ECF No. 252, is DENIED.

This 9th day of October 2013.

B. AVANT EDENFIELD, JUDGE
UNITED STATES DISTRICT COURT JUDGE
SOUTHERN DISTRICT OF GEORGIA

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