Dinkins v. Apria Healthcare Group, Inc

Filing 46

MEMORANDUM AND ORDER overruling and denying 43 Objection to Pretrial Order on Attorneys' Fees and Motion to Review. Signed by District Judge Julie A. Robinson on 2/15/2013. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PEGGY DINKINS,

)
)
Plaintiff,
)
)
)
vs.
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)
APRIA HEALTHCARE GROUP,
)
INC.,
)
)
)
Defendant.
)
____________________________________)

Case No. 12-2112-JAR-JPO

MEMORANDUM AND ORDER
This is an employment discrimination case in which Plaintiff alleges federal claims of
race and age discrimination and retaliation against her former employer Apria Heathcare Group,
Inc. (“Apria”). Before the Court is counsel Joshua Seiden’s Objection to Pretrial Order on
Attorneys’ Fees and Motion to Review (Doc. 43). Mr. Seiden is Plaintiff Peggy Dinkins’ former
counsel. The motion is fully briefed and the Court is prepared to rule. As described more fully
below, the Court overrules and denies Mr. Seiden’s objections to Magistrate Judge O’Hara’s
Order granting Defendant Apria’s motion for its attorneys’ fees incurred in bringing its motion to
compel.
Background
Judge O’Hara entered a scheduling order in this matter on June 21, 2012, setting a July 6,
2012 deadline to exchange initial disclosures under Fed. R. Civ. P. 26(a)(1), and a November 30,
2012 deadline to complete discovery. Plaintiff’s initial disclosures were untimely and deficient.
Likewise, Plaintiff’s answers to Defendant’s interrogatories were deficient and she failed to
produce any documents requested by Defendant. Several times, Defendant attempted to meet

and confer with Plaintiff, but she would not cooperate in the discovery process. So Defendant
filed a motion to compel.1
Judge O’Hara conducted a hearing on the motion to compel on November 13, 2012. At
that hearing, Judge O’Hara also considered Mr. Seiden’s motion to withdraw as counsel, and
Defendant’s motion to suspend deadlines pending a follow-up scheduling conference. Judge
O’Hara granted Mr. Seiden’s motion to withdraw,2 and took the motion to compel under
advisement to allow Plaintiff to resolve the matter between her newly retained counsel and Mr.
Seiden before the follow-up scheduling conference. At that follow-up scheduling conference,
Judge O’Hara found the motion to compel to be moot based on the parties’ agreement and issued
an amended scheduling order. Judge O’Hara directed Defendant to file a motion for attorneys’
fees incurred in connection with filing the motion to compel by December 31, 2012.
Defendant filed a motion for attorneys’ fees as a discovery sanction under Fed. R. Civ. P.
37(a), based on the fees it incurred in attempting to resolve discovery disputes with Plaintiff and
her counsel in good faith, and in preparing the motion to compel. Both Mr. Seiden and Plaintiff
responded and opposed the motion, arguing that an award would be unjust, that Defendant did
not suffer prejudice from their conduct, that Mr. Seiden is not financially able to withstand the
requested sanction, and disputing the proper apportionment of any sanction as between Mr.
Seiden and Plaintiff. Judge O’Hara rejected these arguments, finding that Mr. Seiden’s lack of
experience in federal court does not justify the discovery abuses, that Defendant was prejudiced
by the discovery dispute, and that Mr. Seiden failed to submit sufficient evidence of his or Ms.

1

Doc. 27.

2
Judge O’Hara directed the Clerk not to terminate Mr. Seiden from receiving notices in this case because he
could be implicated in an attorneys’ fee request.

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Dinkins’ financial ability to satisfy the requested fee award. After reviewing Defendant’s time
charts, Judge O’Hara found that the requested fees are reasonable and that while both Mr. Seiden
and Ms. Dinkins should be responsible for the award, Mr. Seiden “bears the brunt of the blame
in this matter.” He apportioned the award as follows: $3201.00 to be paid by Mr. Seiden, and
$1067.00 to be paid by Ms. Dinkins.
Discussion
Fed. R. Civ. P. 72(a) allows a party to provide specific, written objections to a magistrate
judge’s nondispositive order. With respect to a magistrate judge’s order relating to
nondispositive discovery sanctions, the district court does not conduct a de novo review; rather,
the court applies a more deferential standard by which the moving party must show that the
magistrate judge’s order is “clearly erroneous or contrary to law.”3 Under the clearly erroneous
standard, “‘the reviewing court [must] affirm unless it on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.’”4 A magistrate judge’s order is
contrary to law if it “fails to apply or misapplies relevant statutes, case law or rules of
procedure.”5
Mr. Seiden first objects to Judge O’Hara’s ruling about his financial ability to pay the fee
award. He points to the affidavit he executed and attached to his response to the motion for
attorneys’ fees, where he set forth his financial circumstances. In his motion for review, and in

3

Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1465 (10th Cir. 1988); see 28 U.S.C. § 636(b)(1)(A);
Fed. R. Civ. P. 72(a).
4

Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006) (quoting Ocelot Oil Corp., 847 F.2d at 1464).

5
Walker v. Bd. of Cnty. Comm’rs of Sedgwick Cnty., No. 09-1316-MLB, 2011 WL 2790203, at *2 (D. Kan.
July 13, 2011) (quotation omitted).

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his affidavit, Mr. Seiden discusses his self-reporting to the Disciplinary Administrator based on
his conduct in this case and suggests that the impact of the subsequent investigation, in
conjunction with the censure he received in Judge O’Hara’s fee Order, sufficiently sanctions him
for the discovery abuses in this matter. But Judge O’Hara’s Order makes clear that he did
consider Mr. Seiden’s affidavit and found it to be insufficient evidence upon which to reduce the
fee award. On the record before him, Judge O’Hara found no basis to reduce the requested fees
on the basis of financial ability to pay because Mr. Seiden presented no evidence other than his
conclusory statements in the affidavit. Such a finding was not clearly erroneous.
Next, Mr. Seiden objects to Judge O’Hara’s finding that Apria was prejudiced by the
discovery abuses necessitating its motion to compel. Mr. Seiden contended, and argues again in
this motion, that Defendant was not prejudiced because it received the discovery less than three
weeks after the deadline and the discovery deadline was extended. The Court agrees with Judge
O’Hara that Defendant was prejudiced by the dispute. Defendant, after spending considerable
time and effort attempting to meet and confer with Mr. Seiden, was forced to expend time and
effort filing the motion to compel. And by Mr. Seiden’s own admission, the amended deadlines
added nine months to the discovery process, delaying the litigation. Judge O’Hara’s finding that
Defendant was prejudiced was not clearly erroneous.
Finally, Mr. Seiden objects to the apportionment of the attorney fee award. He
specifically contests Judge O’Hara’s finding that he bears more responsibility for the discovery
issues than Ms. Dinkins. He points to Plaintiff’s unwillingness to furnish him with requested
discovery materials and suggests that she made deliberately false statements to the Court in
responding to the attorney fee request. Once again, Mr. Seiden does not meet his burden of

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showing that Judge O’Hara’s finding was clearly erroneous. Judge O’Hara found both Ms.
Dinkins and Mr. Seiden responsible for the discovery abuses in this case, but found Mr. Seiden
more culpable given his status as a licensed attorney who is charged with complying with the
Court’s rules of practice and procedure, and with explaining these issues to his client. The Court
finds that Judge O’Hara’s apportionment finding was supported by the evidence and record in
this case.
Judge O’Hara conducted a hearing and carefully considered the record in this case, and
the arguments and evidence presented by the parties in determining whether attorneys’ fees
should be awarded to Defendant under the standard set forth in Fed. R. Civ. P. 37(a)(5). His
findings that sanctions should be awarded and apportioned between Plaintiff and her former
attorney were not clearly erroneous or contrary to law.
IT IS THEREFORE ORDERED BY THE COURT that Mr. Seiden’s Objection to
Pretrial Order on Attorneys’ Fees and Motion to Review (Doc. 43) is overruled and denied.
IT IS SO ORDERED.
Dated: February 15, 2013
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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