Conser v. Campbell et al

Filing 58

ORDER granting 56 Movant Roger W. Warren's Motion to Compel Payment of Mediator's Fees. Plaintiff is to provide full payment of the mediator's fees in the amount of $787.50 to Mr. Warren no later than 10 days following the date of this Order. Plaintiff must also file a notice of compliance no later than 5 days following his payment to Mr. Warren. Failure to comply with this order may result in sanctions, up to and including a finding of contempt. Signed by Magistrate Judge Gwynne E. Birzer on 11/6/18. (adc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CLAYTON E. CONSER
Plaintiff,
v.
BRONSON CAMPBELL and
CITY OF VALLEY FALLS, KANSAS
Defendants.

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Case No. 17-2313-CM-GEB

ORDER
This matter is before the Court on Movant Roger W. Warren’s Motion to Compel Payment
of Mediator’s Fees (ECF No. 56). Mr. Warren represents that, although Defendant paid its half
of the mediation fees, Plaintiff failed to pay his half, in the amount of $787.50, and Plaintiff’s
counsel has ignored repeated requests for payment. No party responded to the motion, and the
time for responses under D. Kan. Rule 6.1(d)(1) has expired. Therefore, the Court may grant the
motion as uncontested under D. Kan. Rule 7.4, without further notice.
However, prior to granting the motion, a brief discussion of the Court’s jurisdiction over
the request is necessary. This matter was dismissed prior to the filing of Movant’s motion. (See
Memorandum and Order, ECF No. 54; Judgment, ECF No. 55.) The Court notes, although Movant
did not address the issue in his motion, it has sua sponte reviewed the standards by which it may,
in its discretion, assert ancillary jurisdiction over Movant’s request.1

1

See Aikens v. Deluxe Fin. Servs., Inc., No. 01-2427-CM-DJW, 2006 WL 2714513, at *2-3 (D.
Kan. Sept. 22, 2006) (citing, inter alia, Jenkins v. Weinshienk, 670 F. 2d 915, 918 (10th Cir. 1982)).
Although the court in Aikens declined to assert ancillary jurisdiction over a mediator fee dispute,
the facts of that dispute were distinguishable from the facts at hand. In Aikens, the mediator’s fee

Applying those standards, the Court finds this request arose from the undersigned’s
Scheduling Orders in this case, ordering the parties to participate in mediation (ECF No. 22, 29).
Deciding the request requires no further factfinding proceeding, particularly in this instance, where
the motion is unopposed. Additionally, although not deciding the motion would not deprive any
party of any important procedural or substantive right, this Court finds the issue should be decided
in order to protect the integrity of the proceeding. As previously mentioned, this Court directly
ordered the parties to participate in mediation, and in doing so, expects both the parties and counsel
subject to its order to follow through with the entire mediation process—including the full payment
of the mediator’s fees.
Having reviewed the Motion and being fully advised in the premises, the Court hereby
GRANTS Movant’s Motion to Compel Payment of Fees as uncontested pursuant to D. Kan. Rule
7.4. Plaintiff is to provide full payment of the mediator’s fees in the amount of $787.50 to Mr.
Warren no later than 10 days following the date of this Order. Plaintiff must also file, with this
Court, a notice of compliance no later than 5 days following his payment to Mr. Warren. Failure
to comply with this order may result in sanctions, up to and including a finding of contempt.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 6th day of November, 2018.

s/ Gwynne B. Birzer
Honorable Gwynne E. Birzer
U.S. MAGISTRATE JUDGE

request was disputed, and one law firm claimed the mediator breached the mediation agreement.
A determination of whether the mediator breached the agreement would have required substantial
factfinding, including additional discovery and an evidentiary hearing. See Aikens, 2006 WL
2714513, at *3-4.