Lucken et al v. Heritage Bank National Association et al

Filing 101

ORDER granting in part and denying in part 92 Motion for Attorney Fees. Pursuant to this Court's order of April 14, 2017, plaintiffs are to pay defendants $10,203.04. Signed by Chief Magistrate Judge CJ Williams on 5/17/2017. (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
THE JOHN ERNST LUCKEN
REVOCABLE TRUST, and JOHN
LUCKEN and MARY LUCKEN,
Trustees,
Plaintiffs,

No. 16-CV-4005-MWB

vs.

ORDER

HERITAGE BANKSHARES GROUP,
INC., et al.,
Defendants.
____________________
I.

INTRODUCTION

This matter is before the Court pursuant to defendants’ submission of
attorney’s fees and expenses pursuant to the April 14, 2017, order (Doc. 84). The
Court granted in part and denied in part defendants’ motion for sanctions regarding
plaintiffs’ expert William Tank. (Doc. 67). The Court ordered plaintiffs shall
pay defendants’ reasonable attorney’s fees and costs incurred in the filing of this
motion, cover the cost of William Tank’s deposition, and that defendants shall
submit to the Court an itemized list of costs and attorney’s fees incurred with the
filing of this motion and costs incurred in taking William Tank’s deposition. (Doc.
84).
On May 3, 2017, defendants submitted an itemized list of attorney’s fees
and expenses totaling $16,706.79. (Doc. 92). On May 9, 2017, plaintiffs resisted
defendant’s submission of attorney’s fees and expenses pursuant to the April 14,
2017, order (Doc. 84), in that the Court did not order plaintiffs to pay attorney’s

fees related to preparing or taking of William Tank’s deposition.

Plaintiffs

requested the Court reduce the award to defendants to no more than $9,498.04.
(Doc. 95).
For the reasons that follow, the Court agrees that its April 14, 2017, order
does not include attorney’s fees accrued in preparing and taking William Tank’s
deposition, but only attorney’s fees related to costs incurred pursuant to the filing
of the motion for sanctions regarding plaintiffs’ expert William Tank. (Doc. 67).
Accordingly, the Court grants award of $10,203.04 to be paid by plaintiffs to
defendants pursuant to its April 14, 2017, order (Doc. 84).
II.

PROCEDURAL HISTORY

Plaintiffs filed this lawsuit on January 14, 2016. (Doc. 1). On April 27,
2016, the Court adopted the parties’ agreed-upon scheduling order that, among
other things, set the deadline for discovery as February 15, 2017. (Doc. 14). The
Court later granted a motion to extend deadlines for depositions to March 15,
2017, but denied any extension of the deadlines for written discovery other than
that previously ordered for response to defendants’ second request for production.
(Doc. 45). On March 21, 2017, defendants filed a motion for sanctions against
plaintiffs due to their failure to produce their expert, William Tank, for a
deposition within the deposition deadline of March 15, 2017. Defendants claimed
plaintiffs refused to allow them to take the deposition of William Tank, despite
defendants’ good faith attempts to proceed with a deposition prior to that date.
(Doc. 67).
Defendants requested that this Court enter an order sanctioning plaintiff due
to their failure to produce their expert, William Tank, for a deposition. Due to
plaintiffs’ deliberate obstruction, defendants believed that exclusion of plaintiffs’
expert William Tank, was the appropriate relief, and the Court should enter an
order prohibiting plaintiff from calling William Tank as a witness to testify in this
matter at trial. Defendants further requested attorney’s fees and costs associated
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with this matter, and any further relief this Court deemed just and proper under
the circumstances.
On March 29, 2017, plaintiffs were granted an extension of time to file
their resistance to the motion for sanctions until April 7, 2017. On April 7, 2017,
plaintiffs resisted the motion for sanctions, claiming defendants’ motion failed to
demonstrate any harm or prejudice in conjunction with their allegation that
plaintiffs failed to produce their expert witness, William Tank, for deposition.
On April 14, 2017, the Court order granted in part and denied in part
defendants’ motion for sanctions regarding plaintiffs’ expert William Tank. (Doc.
84). The Court ordered the following: (1) plaintiffs to pay defendants’ reasonable
attorney’s fees and costs incurred in the filing of this motion; (2) plaintiffs shall
cover the cost of William Tank’s deposition; and (3) that Defendants shall submit
to the Court an itemized list of costs and attorney’s fees incurred with the filing of
this motion and costs incurred in taking William Tank’s deposition.
The Court concluded that defendants could have been prejudiced by
plaintiffs’ refusal to produce their expert William Tank for deposition.

The

plaintiffs’ excuse that at the time of the request for deposition, plaintiff was
proceeding pro se, did not absolve the responsibility to comply with a scheduling
order. The Court found that under Federal Rule of Civil Procedure 16(f), plaintiffs
are subject to mandatory monetary sanctions in the form of “the reasonable
expenses—including attorney’s fees—incurred because of any noncompliance”
with the March 15 deadline.

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III.

DISCUSSION

This matter involves the enforcement of the Court’s order for sanctions of
April 14, 2017, in accordance with Federal Rule 16(f) (2). FED R. CIV P.
16(f)(2).1 As discussed previously, sanctions are appropriate and in proportion to
plaintiffs’ violation. See Nick v. Morgan's Foods, Inc., 270 F.3d 590, 595 (8th
Cir. 2001).
In the Court’s order of April 14, 2017, the Court reviewed defendants’
request for specific sanctions. The sanctions ordered are appropriate based on the
totality of the circumstances in accordance with Federal Rule 37 (b)(2) (B) and
(C).2 See Goings v. Chickasaw County, Iowa, No. 06-CV-2063-LRR, 2008 WL
686917 (N.D. Iowa March 10, 2008). The intent of the Court’s order of April
14, 2017, was to restore the defendants to the place they would have been had
plaintiffs provided William Tank for a deposition. Since defendants would have
borne the costs of attorney’s fees for taking the deposition without a motion to
compel, the Court finds it appropriate that they continue to bear the costs of
attorney’s fees now.

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Federal Rules of Civil Procedure Rule 16(f)(2)(B)(C) Imposing Fees and Costs. Instead
of or in addition to any other sanction, the Court must order the party, its attorney, or
both to pay the reasonable expenses—including attorney's fees—incurred because of any
noncompliance with this rule, unless the noncompliance was substantially justified or
other circumstances make an award of expenses unjust.
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Federal Rules of Civil Procedure Rule 37(b)(2)(B)(C)
(B) For Not Producing a Person for Examination. If a party fails to comply with an order
under Rule 35(a) requiring it to produce another person for examination, the Court may
issue any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party
shows that it cannot produce the other person.
(C) Payment of Expenses. Instead of or in addition to the orders above, 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 the failure was
substantially justified or other circumstances make an award of expenses unjust.

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Here, defendants have submitted an itemized list of (1) attorney’s fees
totaling $13,766.25 (itemized Doc. 92 exhibit A and B), (2) paralegal fees totaling
$2,081.25 (itemized Doc. 92 exhibit C), and (3) usual cost and expenses totaling
$859.29 (itemized Doc. 92 exhibit D). The total fees and expenses submitted is
$16,706.79. (Doc. 92).
Defendants have included in the itemized bill attorney’s fees totaling
$5,160.00 and paralegal fees totaling $1,343.75 from the preparation and
attendance of Mr. Tank’s deposition on April 26, 2017, in Des Moines, Iowa.
These attorney’s fees include the following listed expenses: telephone call dated
4/14/17 for scheduling William Tank’s deposition; preparation for deposition on
4/24/17 and 4/25/17; travel time to Des Moines for deposition on 4/26/17 and
attendance of deposition on the same day. These attorney fees are independent of
attorney’s fees and costs incurred by defendants in filing their motion for sanctions
regarding plaintiff’s expert witness William Tank. (Doc. 67).
The paralegal fees include: discussion of deposition with attorney on
4/17/17, preparation for deposition on 4/25/17, and travel and attendance for
deposition on 4/26/17. Defendants have itemized costs incurred both for filing a
motion for sanctions and costs of William Tank’s deposition totaling $859.29.
(Doc. 92 exhibit D). These costs are in accordance with the order of April 14,
2017.
Plaintiffs resist the total amount submitted by the defendants and request
the Court reduce the award to the defendants to no more than $9,498.04. Plaintiffs
request: (1) that no fee be allowed after April 11, 2017, the date on which the
Court held the hearing on defendants’ motion for plaintiffs’ sanctions; (2)
reduction for excess travel time to and from Cedar Rapids on 4/10 and 4/11/17;
and (3) reduction in billable travel time on 4/26/17 to Des Moines in order to
reconcile with time charged by the paralegal for the same trip.
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Defendants respond to plaintiffs’ resistance (Doc. 100) claiming that the
Court intended the order of April 14, 2017, to be interpreted broadly to include
attorney and paralegal fees incurred deposing William Tank. Defendants argue
that to exclude those attorney and paralegal fees would not fully sanction plaintiffs’
violation of noncompliance with the Court’s scheduling order. Defendants deny
that the travel time they billed from Sioux City to Cedar Rapids on April 10 and
11, 2017, was excessive and identify that there was no discrepancy between the
attorney and paralegal travel time from Sioux City to Des Moines on 4/26/17.
The Court’s order of April 14, 2017, required plaintiffs to pay defendants
mandatory monetary sanctions in the form of “the reasonable expenses—including
attorney’s fees incurred because of any noncompliance” with the March 15
deposition deadline. The Court agrees with plaintiffs’ resistance that the award
should not include attorney or professional fees for the deposition of William
Tank. Attorney’s fees for preparing and taking the deposition of William Tank is
not within the sanctions of the Court order of April 14, 2017. (Doc. 84).
The Court identifies two itemized attorney fee entries after April 11, 2017,
that were incurred with the filing of the motion and review of the Court’s order
on that motion on April 14, 2017, and April 17, 2017, totaling $285.00. These
two charges are appropriately awarded to defendant. Plaintiff requests reduction
in award amount of $420.00 for 1.4 billable hours for excess travel time of 0.7
hours each direction to and from Cedar Rapids on April 10 and 11, 2017. See
Doc. 95 exhibit A google maps. The Court finds the travel time in question on
April 10 and 11 of 2017, is appropriate due to typical stops and delays that a four
hour and nineteen-minute trip may encounter. Additionally, plaintiff requests
reduction of $600 in award amount to reconcile the discrepancy in billed travel of
the attorney and his paralegal on April 26, 2017. The travel time for attorney and
paralegal from Sioux City to Des Moines are included in the professional fees for
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the deposition of William Tank that the Court agrees are not awarded to
defendants, therefore this discrepancy is moot.
IV.

CONCLUSION

Pursuant to this Court’s order of April 14, 2017, plaintiffs are to pay
defendants $10,203.04. This amount includes defendants’ reasonable attorney’s
fees and costs incurred in the filing of the motion for sanctions and the cost of
William Tank’s deposition.
IT IS SO ORDERED this 17th day of May, 2017.

_________________________________
C.J. Williams
Chief United States Magistrate Judge
Northern District of Iowa

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