Brown v. University of Kansas, The et al

Filing 103

MEMORANDUM AND ORDER denying plaintiff's motion for costs 89 . Signed by Magistrate Judge Kenneth G. Gale on 4/17/2012.(Gale, Kenneth)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT M. BROWN,

)
)
Plaintiff,
)
)
v.
)
)
THE UNIVERSITY OF KANSAS, et al., )
)
Defendants. )
___________________________________ )

Case No. 10-CV-2606-EFM-KGG

ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS
This Court granted the plaintiff’s motion to compel the further deposition of defendant
Mazza because defense counsel improperly instructed the witness in his first deposition not to
answer a question. (Dkt. 85). The Court’s order was qualified by a restriction on the further
deposition intended to protect certain confidential student information. Plaintiff now moves for
sanctions under Fed. R. Civ. Proc. 30(d)(2) and 37(a)(5), requesting the award of expenses
incurred in making the motion. (Dkt. 89).1 Because the plaintiff has not demonstrated that he has
incurred “expenses,” this motion is denied.
The rules cited require or authorize the award of “reasonable expenses and attorney fees”
as sanctions under the circumstances covered by those rules. Under Rule 30(d)(2) the Court may
award sanctions if a party “impedes, delays, or frustrates” the fair examination of a deponent.
Rule 37(a)(5)(A) applies to general motions to compel, and requires the Court to award sanctions
unless the opposing party’s conduct was “substantially justified” or unless “other circumstances

1

The Court assumes the plaintiff is relying on one or both of these rules. Plaintiff’s
citation to Fed.R.Civ.P. 30(a)(5)(A) appears to be erroneous.

make an award of expenses unjust.” 2 Either rule, however, limits sanctions to “reasonable
expenses and attorney fees.”
The plaintiff, who represents himself in this case, requests as sanctions compensation for
his time spent on the motion to compel at the rate of $65 per hour, claiming that this time was
taken from time he would have spent working at his job. He also requests that any expenses of
the supplemental deposition be borne by the defense. Defendant objects and cites case law for
the general proposition that a pro se defendant is not entitled to attorney fees.3 Defendant also
states that it has agreed to bear the costs of the repeat deposition including the Court reporter’s
attendance fee. The plaintiff does not disagree with the argument that attorney fees are not
recoverable by him, but claims that the hourly compensation he lost should be recoverable as an
expense. Plaintiff has cited no authority for the proposition that this type of claim may be
compensable as a discovery sanction. 4

2

Because of the ruling in this matter, the Court does not decide whether plaintiff would be
entitled to sanctions. The Court notes that during and after the deposition defendant attempted to
navigate an issue regarding protecting the confidential information of students. Although the
Court held that the defense did so incorrectly, the Court’s recognition in its prior order that the
general concern was legitimate may constitute “other circumstances” making the award of
sanctions inappropriate.
3

Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991) (disallowing
attorney's fees to a lawyer representing himself in a 42 U.S.C. § 1988 action); See also Garcia v.
Tandy, 2000 WL 703010 (C.A.10 (N.M.)) (Pro se litigant not entitled to an award of fees under
§1988); Brown v. Lian, 2011 WL 2652342 (W.D. NY 2011) (Pro se plaintiff’s statement of
expenses for motion to compel should not include an attorney’s fees application); Marcello v.
Maine, 238 F.R.D. 113, 117 (D. Maine 2006) (Pro se litigant cannot collect attorney’s fees for
the time they spent in preparing and filing for an award of costs); Prousalis v. Jamgochian, 38
Fed.Appx. 903, 904 (4th Cir. 2002) (attorney’s fees are not available to an attorney proceeding
pro se); Lozano v. Peace, CV 05-0174, 2005 WL 1629644, 2005 U.S. Dist. LEXIS 40360
(E.D.N.Y. July 11, 2005) (holding that pro se litigants are not entitled to attorney’s fees pursuant
to Rule 4).
4

Even if compensable, plaintiff has only presented argument concerning this loss, and has
not provided evidence from which the Court could make such an award.

Plaintiff has mistaken the concept of an “expense” with “damages.” The sanctions
provisions to not allow an award of damages in the tort or contract sense. Expenses are those
costs incurred by the plaintiff in making the motion or in redeposing the witness. The plaintiff
has not requested any such expenses, or presented any evidence in support of any expenses.
The motion is DENIED.

S/ KENNETH G. GALE
Kenneth G. Gale
United States Magistrate Judge