Butler v. Target Corporation

Filing 23

MEMORANDUM AND ORDER. This court retained limited jurisdiction of this matter for the sole purpose of determining the amount of costs/fees pursuant to the procedure outlined in a previous order. The court hereby awards no fees and costs to the plaintiff for the reasons stated in this order. Signed by U.S. District Senior Judge Sam A. Crow on 2/20/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KERRI BUTLER, individually
and as the mother and
natural guardian of R.B.,
Plaintiffs,
vs.

Case No. 12-4092-SAC

TARGET CORPORATION,
Defendant.
MEMORANDUM AND ORDER
The case comes before the court on the plaintiff’s untimely
submission of fees and costs (Dk. 21) and the defendant’s response and
objection to the plaintiff’s submission (Dk. 22). In an order filed October 31,
2012, the court granted the plaintiff’s motion to remand and also granted
her separate motion pursuant to 28 U.S.C. § 1447(c) for fees and costs
incurred as a result of Target’s objectively unreasonable removal of this
action. (Dk. 18). The court’s order spelled out the procedure for determining
and imposing this order of fees and cost:
The parties are directed to confer and reach agreement as to the
amount of costs/fees if possible. If no agreement is reached, the
plaintiff shall file her motion for determination of the cost/fees amount
by November 21, 2012. The motion shall include “a statement that . . .
the parties have been unable to reach an agreement with regard to
the” amount of costs/fees, “a memorandum setting forth the factual
basis” for the criteria relevant in determining the reasonable
costs/fees, and “time records, affidavits or other evidence” in support
of the requested amount of costs/fees. See D. Kan. Rule 54.2(c). The
defendant shall have 14 days to file a response. Id. at 54.2(d).

(Dk. 18, p. 11).
On January 10, 2013, the plaintiff filed a “submission of fees and
costs” that sets forth her counsel’s typical hourly rate and a listing of time
spent on different matters resulting from the removal. The filing asks for
$1,740 (8.7 hours times $200 per hour). (Dk. 21). This filing fails to meet
several material requirements of the court’s prior order. It was not filed by
November 21, 2012, and is devoid of any request for extension of time or
showing of excusable neglect. It does not include a statement that the
parties have been unable to reach an agreement on the amount of
costs/fees. According to the defendant’s filing, the “[p]laintiff’s counsel never
made contact with defendant’s counsel attempting to reach an agreement to
costs and fees.” (Dk. 22, p. 3). Finally, the plaintiff’s submission does not
include any affidavit or other evidence in support of the hours listed in the
submission.
In light of the plaintiff’s complete failure to follow the court’s
prior order based on requirements cited from D. Kan. Rule 54.2, the
defendant asks the court to deny or overrule the plaintiff’s submission or to
award no fees or costs to the plaintiff. The defendant’s response plainly put
the plaintiff on notice of the deficiencies with her filing. Despite this notice,
the plaintiff has not filed any reply nor made any attempt to comply with the
court’s order and the requirements of D. Kan. Rule 54.2.

The court is convinced that these circumstances warrant no
award of fees and costs here:
Finally, plaintiffs have failed to comply with the required procedure set
out in D. Kan. Rule 54.2. That rule provides for a motion for statutory
attorney fees, then promptly-initiated consultation with the opposing
party, and then the filing of a memorandum with the factual basis for
the motion. See id. The rule expressly provides that the court may not
consider a motion for fees until the moving party has filed a statement
of compliance with the consultation requirement. In this case, plaintiffs
filed their motion and supporting memorandum simultaneously,
without a statement or any other suggestion of a consultation with
Purolite. Indeed, even after Purolite pointed out this defect in its
response brief, plaintiffs refused to cure that defect or even to address
the local rule in their reply brief. Therefore, plaintiffs' motion is
properly denied for that reason as well.
Layne Christensen Co. v. Bro-Tech Corp., 871 F.Supp.2d 1104, 1124 (D.
Kan. 2012). Not only did the plaintiff fail to comply with all material parts of
the court-ordered procedure adapted from its local rule, but the plaintiff also
offers no explanation or justification for doing so. The court cannot sanction
such disregard with any award of fees and costs.
IT IS THEREFORE ORDERED that the court retaining limited
jurisdiction of this matter for the sole purpose of determining the amount of
costs/fees pursuant to the procedure outlined above hereby awards no fees
and costs to the plaintiff for the reasons stated above.
Dated this 20th day of February, 2013, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge