Muathe et al v. Fleming et al

Filing 83

MEMORANDUM AND ORDER granting 69 Motion for Attorney Fees; granting in part 73 Motion for Attorney Fees. Signed by District Judge Julie A. Robinson on 03/27/2017. (cv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KASEY KING,
Plaintiff,
Case No. 16-2108-JAR-GLR

v.
LORI B. FLEMING, ET AL.,
Defendant.

MEMORANDUM AND ORDER
On January 27, 2017, this Court entered a Memorandum and Order imposing sanctions
and dismissing this case in its entirety based on Plaintiff and his counsel’s conduct in attaching
and incorporating into his Second Amended Complaint (“SAC”) an admittedly manipulated
email, and based on counsel’s failure to conduct a reasonable inquiry into the veracity of the
exhibit containing the email (Doc. 64). Along with dismissal, the Court imposed sanctions in
the form of attorney’s fees and costs pursuant to Fed. R. Civ. P. 11(c)(4). The Court ordered
Plaintiff Kasey King, former Plaintiff Eric Muathe, and Plaintiffs’ counsel Adebayo Ogunmeno
to pay in equal shares to Defendants “all of the reasonable attorney’s fees and other expenses”
incurred since the filing of the manipulated exhibit attached to their SAC on July 27, 2016.1
To facilitate resolution of this matter, the Court directed Defendants to consult with
Plaintiffs King and Muathe, and Mr. Ogunmeno, regarding the amount of attorney’s fees and
costs to be awarded. The Court directed the parties to file a stipulation and request for order
setting forth the amount of fees and costs to be awarded if they reached an agreement. The Court
further directed that, if the parties could not agree, Defendants should file a memorandum setting
1

The conduct giving rise to sanctions and Court’s reasoning for sanctions is explained more fully in the
Memorandum and Order imposing sanctions. Doc. 64.

1

forth the amount of fees and expenses sought, the factual basis for the fees and expenses, and an
analysis of four factors that the Court identified as determinative on the issue of fees and
expenses. The parties were unable to reach an agreement, and Defendants filed Motions for
Attorney’s Fees.2 The motions are fully briefed and the Court is prepared to rule. For the
reasons explained below, the Court grants Defendants’ motions for attorney’s fees.
In White v. General Motors Corporation, Incorporated, the Tenth Circuit set forth four
factors for courts to consider when imposing monetary sanctions to ensure that the sanction
imposed is “the least severe sanction adequate to deter and punish the plaintiff.”3 These factors,
the court explained, “serve as limitations on the amount assessed.”4 Thus, to arrive at an
appropriate amount, courts must consider at least the following: (1) the reasonableness (lodestar
calculation) of the requested fees; (2) the minimum amount necessary to deter; (3) the sanctioned
party’s ability to pay; and (4) other factors, such as the offending party’s history, experience,
ability, the severity of the violation, and the risk of chilling effects on zealous advocacy.5 The
Court therefore considers Defendants’ requests for fees in light of these factors.
I.

Judge Fleming’s Request
Counsel Stephen Phillips, attorney for Judge Lori Fleming, filed a Motion to Set

Attorney’s Fees, seeking attorney’s fees in the amount of $6,150.00.6 Mr. Phillips attached to
the motion an affidavit summarizing his communications with opposing Counsel Ogunmeno and
detailing the request for fees.7 According to Mr. Phillips’ affidavit, the $6,150.00 in fees is

2

Docs. 69 & 73.

3

908 F.2d 675, 683–85 (10th Cir. 1990).

4

Id. at 684.

5

Id. at 684–85.

6

Doc. 69.

7

Doc. 69-1.

2

based on 30.75 documented hours working on this case and a $200 per hour fee.8 Mr. Phillips is
employed by the Kansas Attorney General’s Office, and thus he does not bill his clients and is
not paid by the hour. Mr. Phillips arrived at the $200 hourly rate based on his 23 years of
experience practicing with the Kansas Attorney General’s Office and his review of billing
statements submitted by outside counsel the Attorney General’s Office has retained in the past.9
Also attached to the motion is an affidavit submitted by Dennis Depew, Deputy Attorney
General for the Civil Litigation Division of the Kansas Attorney General’s Office.10 Mr. Depew
states that, based on his 32 years of experience in private practice and as a Deputy Attorney
General, and based on his familiarity with hourly billing rates in Kansas, he believes Mr.
Phillips’ $200 requested hourly rate is reasonable.
Mr. Phillips also submitted an exhibit detailing the hours he spent working on this case
since November 30, 2016.11 Nearly all of the work listed is related to the motion for sanctions
and responding to Plaintiff’s SAC. Mr. Phillips also states that the Attorney General’s Office is
not seeking fees for secretarial or paralegal work associated with defense of this matter,
attorney’s fees for counsel for Judge Kurtis Loy, any “costs” associated with the litigation, or
any fees related to emails or phone calls he received or made that did not occur within a block of
time allocated for this case.12
Mr. Phillips states in his affidavit that he communicated with Mr. Ogunmeno several
times regarding the amount of fees sought. Mr. Ogunmeno replied that Judge Fleming should

8

Id.

9

Id. at 3.

10

Id. at 10.

11

Id. at 9.

12

Id. at 2–3.

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waive attorney’s fees, or in the alternative submit a request for fees based on Mr. Phillips’ salary,
rather than the $200 hourly rate he used.13
A.

Reasonableness (Lodestar Calculation)

The Court finds Judge Fleming’s request for $6,150.00 in attorney’s fees reasonable.
First, the Court is convinced that the underlying $200 hourly rate Mr. Phillips used to calculate
fees is exceedingly reasonable in light of his experience, the complexity of this case, and rates
typically approved by this Court and other courts.14 Plaintiffs and Mr. Ogunmeno provide no
good reason, and the Court can find none, in support of their request to tie the hourly rate to Mr.
Phillips’ salary. As explained above, the $200 hourly rate adequately reflects Mr. Phillips’
experience, the complexities of this case, and hourly rates of which this Court has historically
approved. Additionally, the request for $6,150.00 does not include work by Mr. Phillips before
November 30, 2016, work by paralegals or support staff, work by counsel for Judge Loy, or any
“costs” associated with the litigation. Based on these considerations, the Court finds Judge
Fleming’s request for $6,150.00 in attorney’s fees reasonable.
B.

Minimum Amount Necessary to Deter

The Court also finds that $6,150.00 is the minimum amount necessary to deter Plaintiffs
and Mr. Ogunmeno’s conduct. As the Court explained in its Memorandum and Order imposing
sanctions, Plaintiffs and Mr. Ogunmeno’s misconduct was serious.15 Additionally, as described
more fully below, Plaintiffs and Mr. Ogunmeno have a history of noncompliance with the rules

13

Id. at 1–2; see Doc. 76 at 1.

14

See, e.g., Schoonover v. Colvin, No. 12-1469-JAR, 2016 WL 7242512, at *2 (D. Kan. Dec. 15, 2016)
(approving rate of $400 an hour); Hoffman v. Poulsen Pizza LLC, No. 15-2640-DDC-KGG, 2017 WL 25386, at *7
(D. Kan. Jan. 3, 2017) (approving rates of $600, $450, and $400 an hour).
15

Doc. 64.

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of this Court and other courts.16 Finally, Plaintiffs and Mr. Ogunmeno refused to withdraw their
SAC after Defendants alerted them to the violative conduct, and they continue to press this
litigation after being sanctioned. Thus, a monetary sanction in the amount of $6,150.00 is
necessary to deter the conduct at issue in this case.
C.

Sanctioned Party’s Ability to Pay

In their response, Plaintiffs and Mr. Ogunmeno do not address their ability to pay the
requested attorney’s fees. Indeed, the response states that “King, Muathe, and Ogunmeno don’t
want to engage in whether they can avoid to pay attorney fees sanctions. How can you determine
affordability of sanctions? Sanction is punishment. It is not what you bargain for.”17 The four
factors outlined above, including ability to pay, are limiting factors meant to ensure the
reasonableness of monetary sanctions.18 Without having any indication as to Plaintiffs or Mr.
Ogunmeno’s inability to pay, and in light of the reasonableness and necessity of the requested
fees, the Court is not inclined to reduce the fee award. The Court is unwilling to speculate as to a
party’s ability to pay, or lack thereof, without any information from the sanctioned party.
D.

Other Factors

Finally, the Court must consider other factors bearing on the amount of monetary
sanctions, including the offending party’s history, experience, ability, the severity of the
violation, and the risk of chilling effects on zealous advocacy. Judge Fleming in her motion does
not directly address Plaintiffs and Mr. Ogunmeno’s history. But as the Court explained above,
Plaintiffs and Mr. Ogunmeno pressed ahead even after being notified of and sanctioned for the

16

See Doc. 18; Doc. 73-5.

17

Doc. 76 at 2.

18

White v. Gen. Motors Corp., 908 F.2d 675, 684 (10th Cir. 1990).

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Rule 11 violations.19 Additionally, Defendants My Town Media, Inc. (“My Town”) and Joe
Manns have submitted with their motion for attorney’s fees a state court order in another case
imposing filing restrictions against Plaintiffs for similar conduct.20 Finally, the Court has
previously admonished Mr. Ogunmeno for violations of local rules apart from the conduct that
gave rise to the Rule 11 sanctions.21 Based on this history, the Court finds the requested
monetary sanctions necessary.
Defendants do not address Mr. Ogunmeno’s experience or ability, but as Mr. Ogunmeno
states in his response, he has at least three other pending cases currently in federal court, one of
which is before this Court.22 The requested fees are thus necessary to deter similar conduct in
later litigation before this and other federal courts. The Court is also guided by the severity and
willful nature of the Rule 11 violations at issue here.
Finally, the Court considers the chilling effect, if any, that the imposition of attorney’s
fees would have on zealous advocacy. Plaintiffs and Mr. Ogunmeno make much of this factor in
their response. But the Court is not convinced that awarding the requested attorney’s fees will
chill zealous advocacy. To the contrary, the sanctions the Court has imposed are intended to
ensure more effective advocacy by encouraging counsel to inquire reasonably into the factual
circumstances of a case before filing papers with the Court in the future, as Rule 11
contemplates.23 However, to the extent the monetary sanctions will have any chilling effect on
advocacy, the Court finds this effect is outweighed by the reasonableness of the requested fees,

19

See supra Part I.B.

20

Doc. 73-5.

21

See Doc. 18.

22

Glenn v. Hrgota, No. 16-cv-2092-JAR.

23

Fed. R. Civ. P. 11(b).

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the necessity of the fees, the apparent ability of the offending parties to pay, the offending
parties’ history, and the severity of the offending conduct.
Having considered the factors above, the Court finds that $6,150.00 in attorney’s fees is
both reasonable and the minimum amount necessary to deter the offending conduct.
Accordingly, Plaintiff King, Mr. Muathe, and Mr. Ogunmeno shall each pay $2,050.00 in
attorney’s fees to Judge Fleming, to be payed to the Kansas Attorney General’s Office.
II.

Defendants My Town and Manns’ Request
Defendants My Town and Manns filed a motion for attorney’s fees, requesting fees in the

amount of $15,000.24 As Mr. Phillips did, counsel for Defendants My Town and Manns,
Bernard Rhodes, submitted an affidavit detailing his work on this matter, his hourly rate, and his
attempted communications with Mr. Ogunmeno. Mr. Rhodes states in his affidavit that the
requested fee amount is based on 41 hours of work on this case at an hourly rate of $375. This
rate was fixed pursuant to a pre-existing agreement with Defendant My Town’s insurance
carrier. According to Mr. Rhodes, his regular hourly rate for 2016 was $525, and for 2017 is
$550. Additionally, Mr. Rhodes states that the $375 rate is well within the range of hourly rates
for similarly qualified lawyers in Kansas City, as well as rates that this Court and other courts
have approved in the past.25
Attached to Mr. Rhodes’ affidavit is a breakdown of the hours he spent working on this
case since July 27, 2016. Mr. Rhodes’ work during this time largely related to responding to
Plaintiff’s SAC, conducting discovery, and responding to the conduct that gave rise to the Rule

24

Defendants move for attorney’s fees pursuant to the Court’s imposition of Rule 11 sanctions and in the
alternative under 28 U.S.C. § 1927. The Court’s Memorandum and Order directing Plaintiffs and Mr. Ogunmeno to
pay reasonable attorney’s fees and expenses to “Defendants” applies to Defendants My Town and Manns, as well as
Judges Fleming and Loy, as the Rule 11 violations prejudiced all Defendants. See Doc. 64.
25

See supra note 14.

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11 sanctions.26 Some of his work, however, consisted of responding to Plaintiffs’ First Amended
Complaint. Mr. Rhodes also summarized his attempts to communicate with Mr. Ogunmeno
regarding the fee issue.27 Mr. Rhodes attempted to contact Mr. Ogunmeno five times, but never
heard back.28
A.

Reasonableness (Lodestar Calculation)

The Court finds Defendants My Town and Manns’ request for attorney’s fees reasonable.
Defense counsel’s hourly rate is appropriate given his experience, the complexity of this case,
and rates typically approved by this Court and other courts. Plaintiffs and Mr. Ogunmeno do not
challenge Mr. Rhodes’ hourly rate. Additionally, the amount of hours that gave rise to the
requested fees is reasonable. Plaintiffs and Mr. Ogunmeno argue that the offending email was
not necessary to support their state law claims against Defendants My Town and Manns. But the
Court has previously explained how the offending email affected the state law claims, and how
Plaintiffs’ and Mr. Ogunmeno’s conduct prejudiced all Defendants.29 Thus, the Court finds that
the $15,000 in attorney’s fees that Defendants My Town and Manns request are reasonable.
B.

Minimum Amount Necessary to Deter

The Court, however, is not convinced that $15,000 is the minimum amount necessary to
deter Plaintiffs and Mr. Ogunmeno’s conduct in this case. The Court is already imposing
monetary sanctions on Plaintiffs in relation to Judge Fleming. Additionally, some of the work
summarized in Mr. Rhodes’ affidavit related to Plaintiffs’ First Amended Complaint, which did
not incorporate the offending email. Although the Court does not wish to minimize the serious

26

Doc. 73-1 at 6–7.

27

Id. at 4.

28

Id.

29

See Doc. 64.

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nature of Plaintiffs and Mr. Ogunmeno’s Rule 11 violations, and although the Court is convinced
that the fees Defendants My Town and Manns seek are reasonable, the Court finds that an
amount less than $15,000 would be sufficient to deter the conduct at issue here, in light of the
other monetary sanctions the Court has imposed and the dismissal of Plaintiffs’ case in its
entirety with prejudice. The Court is satisfied that the combination of these sanctions will deter
Plaintiffs, Mr. Ogunmeno, and others similarly situated from engaging in similar conduct in the
future. Accordingly, the Court will reduce the amount of fees Plaintiffs and Mr. Ogunmeno will
be required to pay to Defendants My Town and Manns to $12,000.
C.

Ability to Pay

As with their response to Judge Fleming’s motion, Plaintiffs and Mr. Ogunmeno do not
address their ability to pay in response to Defendants My Town and Manns’ motion. In their
response, they again state “King, Muathe, and Ogunmeno do not want to engage in [an]
affordability debate. The reality is imposition of sanction is punishment.”30 However, Mr.
Ogunmeno does state that he “recently received a notice letter that his Life Sales contract with
Transamerica [has] been cancelled for lack of production in 24 months. So much for be [sic]
able to afford payment of attorney sanctions.”31 This statement and the accompanying letter
indicating termination of the contract provide little, if any, insight into Mr. Ogunmeno’s ability
to pay sanctions.32 The Court is unwilling to speculate as to Mr. Ogunmeno’s ability to pay
monetary sanctions, as it is his burden to provide this information to the Court. Without more,
the Court declines to reduce the amount of attorney’s fees—beyond what it has already
reduced—based on the inability of Plaintiffs or Mr. Ogunmeno to pay.

30

Doc. 76 at 3.

31

Id.

32

See Doc. 76-1.

9

D.

Other factors

The Court finds that the other factors that guide the determination on the amount of
monetary sanctions support imposition of fees in the amount of $12,000. As explained more
fully above, the misconduct that gave rise to sanctions was severe and the sanctioned parties
have a history in this Court and other courts of admonitions and sanctions for violations of
various rules of litigation.33 Additionally, Mr. Ogunmeno has other pending cases before this
Court and other federal courts, and thus there is an obvious need for deterrence. Finally, to the
extent attorney’s fees will chill zealous advocacy, that effect is minimal compared to the factors
explained above that weigh in favor of imposing meaningful monetary sanctions. For these
reasons, the Court orders Plaintiffs and Mr. Ogunmeno to pay $12,000 in attorney’s fees to
Defendants My Town and Manns. Plaintiffs and Mr. Ogunmeno shall each pay $4,000—their
equal shares—in attorney’s fees to Defendants My Town and Manns.
IT IS THEREFORE ORDERED BY THE COURT that Defendant Lori Fleming’s
Motion to Set Attorney’s Fees (Doc. 69) is granted. The Court imposes attorney’s fees in the
amount of $6,150.00. Plaintiff Kasey King, Eric Muathe, and counsel Adebayo Ogunmeno shall
each pay $2,050.00 in attorney’s fees to the Kansas Attorney General’s Office for its defense of
Defendant Fleming.
IT IS FURTHER ORDERED BY THE COURT that Defendants My Town Media,
Inc. and Joe Manns’ Application for Attorney’s Fees (Doc. 73) is granted in part. The Court
imposes attorney’s fees in the amount of $12,000.00. Plaintiff Kasey King, Eric Muathe, and
counsel Adebayo Ogunmeno shall each pay $4,000.00 in attorney’s fees to Defendants My Town
Media, Inc. and Joe Manns.

33

See supra Part I.D.

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IT IS SO ORDERED.
Dated: March 27, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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