Kluksdahl v. Loyola University New Orleans

Filing 23

ORDER AND REASONS: IT IS ORDERED that Plaintiff's 17 Motion for a New Trial is DENIED. IT IS FURTHER ORDERED that Defendant's 20 Motion to Recover Attorney's Fees and Costs is GRANTED IN PART. Plaintiff is hereby ordered to pay Defendant's reasonable attorneys' fees in the amount of $410.00. Signed by Judge Ivan L.R. Lemelle on 2/3/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN AARON KLUKSDAHL

CIVIL ACTION

VERSUS

NO. 16-2990

LOYOLA UNIVERSITY NEW ORLEANS

SECTION "B"(3)

ORDER AND REASONS
Before the Court is Plaintiff’s improperly-styled “Motion for
a New Trial.” Rec. Doc. 17. Defendant timely filed a response (Rec.
Doc. 19), as well as a “Motion to Recover Attorney’s Fees and
Costs” (Rec. Doc. 20). Plaintiff eventually filed an untimely
memorandum in opposition to the motion for fees. Rec. Doc. 22. For
the reasons discussed below,
IT IS ORDERED that Plaintiff’s “Motion for a New Trial” (Rec.
Doc. 17) is DENIED.
IT IS FURTHER ORDERED that Defendant’s “Motion to Recover
Attorney’s Fees and Costs” (Rec. Doc. 20) is GRANTED IN PART.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 8, 2016, John Aaron Kluksdahl (“Plaintiff”) filed a

130-page complaint, with 321 pages attached as exhibits. Rec. Docs.
1, 1-1, 1-2. After requesting an extension pursuant to Local Rule
7.8, Loyola University New Orleans (“Defendant”) timely answered
the complaint on June 28, 2016. See Rec. Docs. 5-7, 9.
On July 6, 2016, Defendant filed a motion to stay and, on
July 22, 2016, Plaintiff timely filed a memorandum in opposition.

Rec. Docs. 10-11. Defendant sought a motion to stay pursuant to
Colorado River Water Conservation District v. United States, 424
U.S. 800, 813 (1976), pending resolution of Plaintiff’s “identical
claims in state court,” and claiming that, if forced to proceed in
this federal matter, it would incur unnecessary expenses to engage
in “overlapping and unnecessary proceedings.” Rec. Doc. 10 at 1,
5.

Plaintiff

accused

Defendant

of

misrepresenting

that

the

entirety of his claims were also pled in state court and argued
that he would be prejudiced if the matter was stayed, because the
state court revoked his in forma pauperis status, purportedly
precluding him from filing further state court pleadings. Rec.
Doc. 11 at 1-2.
On August 12, 2016, we recognized that “[t]he first problem
in

determining

whether

to

abstain

under

Colorado

River

is

Plaintiff’s Complaint. Kluksdahl’s Complaint consists of 130 pages
of rambling, scattered arguments and factual allegations, which
unquestionably fail to include ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’” Rec. Doc.
12 at 2-3 (citing FED. R. CIV. P. 8(a)(2); Gordon v. Green, 602 F.2d
743, 745-46 (5th Cir. 1979)). Accordingly, we denied, without
prejudice, Defendant’s motion to stay and ordered Plaintiff to
file an amended complaint that complied with Federal Rule of Civil
Procedure 8 within thirty (30) days. Id. at 3. We also instructed
Plaintiff that his amended complaint should fully comply with the
2

formatting requirements of Local Rule 10.1 and “shall not exceed
twenty (20) pages.” Id. (emphasis in original) (citing Barnes v.
Tumlinson, 597 F. App’x 798, 799 (5th Cir.), cert. denied, 136 S.
Ct. 485 (2015); Cesarani v. Graham, 25 F.3d 1044, 1994 WL 261232,
at *1-2 (5th Cir. 1994) (unpublished)). Finally, we explicitly
stated that “ANY PARTY’S FAILURE TO COMPLY WITH THIS ORDER MAY
RESULT IN SANCTIONS, INCLUDING DISMISSAL OF ALL CLAIMS AND/OR
DEFENSES WITHOUT FURTHER NOTICE.” Id. at 4.
Thus, in accordance with our August 12, 2016 Order, Plaintiff
should have filed an amended complaint by September 12, 2016.
However,

as

of

October

18,

2016,

nothing

had

been

filed.

Consequently, we dismissed Plaintiff’s claims and closed the case.
Rec. Docs. 13-14. In the Order dismissing his claims, we instructed
Plaintiff that any motion for reconsideration must be filed within
thirty (30) days. Rec. Doc. 13 at 1-2. On November 17, 2016,
Plaintiff attempted to file a “Motion for New Trial,” but the
document was marked deficient. Rec. Doc. 15. Plaintiff was given
until December 9, 2016 to remedy the deficiency. Rec. Doc. 16. On
December 2, 2016, Plaintiff filed the instant “Motion for New
Trial.” Rec. Doc. 17.
II.

PLAINTIFF’S “MOTION FOR NEW TRIAL”
A. THE PARTIES’ CONTENTIONS

In his motion, Plaintiff claims that he “was not afforded an
opportunity to submit a pleading in opposition [to this Court’s
3

August 12, 2016 Order] arguing that Plaintiff’s claims satisfied
the requirements of Rule 8(a)2.” Rec. Doc. 17 at 1. Plaintiff
argues

that

the

twenty-page

limit

was

“absurd

and

severely

prejudicial,” because the dispute between the parties has lasted
several years and Plaintiff’s complaint contains nine independent
claims upon which relief could be granted. Id. at 2. Further, when
Defendant filed motions for no cause of action and to strike in
state court, the court ruled in favor of Plaintiff. Id. at 3.
According

to

Plaintiff,

“[e]quity

and

the

law

require

the

defendant, not the court, to initiate/file a no cause of action
motion under Rule 8(a)2 either with the answer or after pleadings
have been closed in a motion on the pleadings or a motion for
summary judgment.” Id. at 4.
Plaintiff also appears to address the merits of Defendant’s
earlier motion to stay, arguing that several of the claims in his
federal complaint were not included in his state court petition.
Id. at 3.
Throughout his motion and accompanying memorandum, Plaintiff
suggests that this Court is biased in favor of Defendant. For
example, he states that “[e]quity does not permit the court to
advocate on behalf of defendant, Loyola,” that this Court’s Order
“advise[d] the Defendant instructing Defendant to file a Motion
utilizing a specific legal argument based upon case law,” that
“Defendant

attorneys

are

fully
4

capable

of

litigating

against

Plaintiff if the court maintained an impartial position between
litigants while rendering Orders and Reasons,” and that “the Order
and

Reasons

read

as

if

a

teacher

or

tutor

were

grading

or

critiquing their student’s work to the student’s parents to whom
the teacher or tutor was greatly indebted or indentured.” Id. at
1-2, 4.
Defendant opposes Plaintiff’s motion because (1) Plaintiff
has yet to file an amended complaint in accordance with this
Court’s earlier Order and (2) Plaintiff’s motion does not comply
with the requirements of Federal Rule of Civil Procedure 59. Rec.
Doc. 19 at 1.
B. LAW AND ANALYSIS
Plaintiff’s improperly-styled “Motion for a New Trial” will
be treated as a motion for reconsideration. “The Federal Rules of
Civil

Procedure

do

not

specifically

recognize

a

motion

for

reconsideration.” Jenkins v. Bristol-Myers Squibb, No. 14-2499,
2016 WL 5874984, at *5 (E.D. La. Oct. 7, 2016) (citing St. Paul
Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th
Cir.

1997)).

Nonetheless,

“[a]

motion

asking

that

the

court

reconsider a prior ruling is evaluated either as a motion to alter
or amend a judgment under Federal Rule of Civil Procedure 59(e) or
as a motion for relief from a final judgment, order or proceeding
under Federal Rule of Civil Procedure 60(b).” In re FEMA Trailer
Formaldehyde Prods. Liab. Litig., No. 07-1873, 2011 WL 6130788, at
5

*3 (E.D. La. Dec. 7, 2011) (internal quotation marks omitted). The
determination of which rule applies turns on the timing of the
motion. Texas A&M Research Found. v. Magna Transp., Inc., 338 F.3d
394, 400 (5th Cir. 2003). “If the motion was filed within twentyeight days after the entry of the judgment or order at issue, the
motion can be brought under Rule 59(e). If it is filed after that
time, it falls under Rule 60(b).” In re FEMA, 2011 WL 6130788 at
*3 (internal citations omitted).
Here, Plaintiff’s motion was not filed within twenty-eight
days of our October 18, 2016 Order and Reasons. See Rec. Docs. 15,
17.1

Accordingly,

it

will

be

treated

as

a

motion

for

reconsideration under Federal Rule of Civil Procedure 60(b). This
rule provides that
On motion and just terms, the court may relieve a party
. . . from a final judgment, order, or proceeding for
the following reasons:
(1)
(2)
(3)
(4)
(5)

mistake, inadvertence, surprise, or excusable
neglect;
newly discovered evidence that, with reasonable
diligence, could not have been discovered in time
to move for a new trial under Rule 59(b);
fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party;
the judgment is void;
the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that

However, the motion was filed on the thirtieth day after our October 18, 2016
Order and Reasons was issued, it was simply marked deficient. Because Plaintiff
subsequently filed a motion that complied with Local Rules within the deadline
given for the deficiency remedy, we will treat the motion as though it was filed
within the thirty-day deadline given in our October 18, 2016 Order and Reasons.
1

6

(6)

has been reversed or vacated; or applying
prospectively is no longer equitable; or
any other reason that justifies relief.

it

FED. R. CIV. P. 60(b). Notably, “Rule 60(b)(6) has been described
as a ‘residual clause used to cover unforeseen contingencies,’ and
as

‘a

means

for

accomplishing

justice

in

exceptional

circumstances.” Sussman v. Fin. Guards, LLC, No. 15-2373, 2017 WL
193604, at *2 (E.D. La. Jan. 18, 2017) (quoting Shoemaker v. Estis
Well Serv., L.L.C., 122 F. Supp. 3d 493, 511-12 (E.D. La. 2015)
(quoting Steverson v. GlobalSantaFe Corp., 508 F.3d 300, 303 (5th
Cir. 2007) (quoting Stipelcovich v. Sand Dollar Marine, Inc., 805
F.2d 599, 604-05 (5th Cir. 1986)))).
Here, Plaintiff does not expressly state a ground for relief
under Rule 60(b). He does not assert some mistake, new evidence,
fraud, that the judgment is void, or some exceptional circumstance
warranting reconsideration. Nonetheless, he repeatedly suggests
that this Court’s Order was inequitable. However, it is widely
recognized that a party’s failure to heed Rule 8’s demand for “a
short and plain statement” may lead to dismissal. See, e.g. Gordon,
602 F.2d 743 (vacating the district court’s judgment and remanding
for dismissal of the 4,000-page complaint without prejudice to
“promptly” file a complaint in compliance with Rule 8); Barnes,
597 F. App’x 798 (affirming the district court’s dismissal of the
plaintiff’s claims with prejudice after plaintiff failed to follow
the court’s order to file an amended complaint no longer than
7

thirty pages); Cesarani, 25 F.3d 1044, 1994 WL 261232 (affirming
the dismissal of the plaintiff’s claims and sanctions against the
plaintiff after the plaintiff filed a 104-page complaint and failed
to follow the court’s order to file an amended complaint no longer
than twenty pages).
Generally, “[a] district court may dismiss an action, sua
sponte, under Rule 41(b) for failure to prosecute or to comply
with an order of the court.” Cesarani, 1994 WL 261232 at *1 (citing
McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988)). The
dismissal will be affirmed “only where there is ‘a clear record of
delay or contumacious conduct by the plaintiff,’ and ‘lesser
sanctions would not serve the best interests of justice.’” Id.
(quoting Williams v. Brown & Root, Inc., 828 F.2d 325, 328-29 (5th
Cir. 1987)); see also Dorsey v. Scott Wetzel Servs., Inc., 84 F.3d
170, 171-72 (5th Cir. 1996) (citing Salinas v. Sun Oil Co., 819
F.2d 105, 106 (5th Cir. 1987)).
Here, we ordered Plaintiff to file an amended complaint that
complied with Rule 8 and did not exceed twenty pages. Rec. Doc. 12
at 3. Even though the amended complaint was due within thirty days,
we waited two months. Nothing was filed. Plaintiff did not file an
amended complaint, a motion to reconsider our Order and Reasons,
or a motion for extension of time; in sixty days, he filed nothing.
Accordingly, we dismissed the case without prejudice pursuant to
Rule 41(b). Rec. Doc. 13. Even now, when Plaintiff asks us to
8

reconsider our dismissal (which also explicitly provided that any
motion for reconsideration should be accompanied by an amended
complaint), he refuses to file an amended complaint and instead
merely argues that the twenty-page limit is “absurd and severely
prejudicial.”
demonstrates

Rec.
that

Doc.
our

17

at

request

2.
for

Fifth
an

Circuit

amended

precedent

complaint

was

reasonable and that Plaintiff’s ongoing refusal to obey this
Court’s Order warranted dismissal. Accordingly, we decline to
reconsider

our

October

18,

2016

Order

dismissing

Plaintiff’s

claims.
III. DEFENDANT’S MOTION FOR ATTORNEY’S FEES
In conjunction with its opposition memorandum, Defendant
filed a “Motion to Recover

[the]

Attorney’s Fees and Costs”

associated with defending Plaintiff’s “untimely and frivolous”
“Motion for a New Trial.” See Rec. Doc. 20 at 1-2. Even though the
motion was set for submission on February 1, 2017 and, pursuant to
Local Rule 7.5, any opposition memorandum was due on January 24,
2017, Plaintiff did not file a response until January 27, 2017.
Rec. Doc. 22. His arguments are addressed below.
First,

we

must

determine

if

Defendant

is

entitled

to

attorney’s fees. Second, if we find that it is so entitled, we
must determine the appropriate amount to be awarded.
In our dismissal, we stated that a motion for reconsideration
could be filed within thirty days, but that, “[b]ecause such a
9

motion would not have been necessary had a timely pleading been
filed, the costs incurred in connection with the motion, including
attorney’s fees, may be assessed against the party moving for
reconsideration.” Rec. Doc. 13 at 2 (citing FED. R. CIV. P. 16, 83).
Rule 16(f)(1)(C) provides that “[o]n motion or on its own, the
court may issue any just orders . . . if a party or its attorney:
. . . fails to obey a scheduling or other pretrial order.” It also
states that “[i]nstead of or in addition to any other sanction,
the court must order the party, its attorney, or both to pay the
reasonable expenses—including attorney’s fees—incurred because of
any noncompliance with this rule, unless the noncompliance was
substantially justified or other circumstances make an award of
expenses unjust.” FED. R. CIV. P. 16(f)(2) (emphasis added).
Here,

Defendants

argue

that

Plaintiff’s

motion

for

reconsideration was both “untimely and frivolous.” Rec. doc. 20 at
1-2. While we agree that Plaintiff’s motion is meritless, it was
not technically untimely. Our October 18, 2016 dismissal Order
gave Plaintiff thirty days within which to file a motion for
reconsideration. Rec. Doc. 13. Plaintiff attempted to file his
motion on November 17, 2016 (the thirtieth day after the Order was
issued), but the motion was marked deficient. Rec. Doc. 15. Because
Plaintiff is proceeding pro se, the deficiency remedy was due by
December 9, 2016. Id. Ultimately, the motion was filed within this
extended deadline, on December 2, 2016. Rec. Doc. 17.
10

Nonetheless,
reconsider

our

contemporaneously

Plaintiff’s

motion

earlier

dismissal

file

amended

an

did

not

and,

persuade
by

complaint,

us

failing

Plaintiff

to
to

again

failed to comply with our earlier orders. Plus, we warned Plaintiff
that the filing of a motion for reconsideration could result in an
assessment of fees against him. Rec. Doc. 13 at 2.
In his memorandum in opposition to Defendant’s motion for
fees, Plaintiff argues, perhaps in an attempt to show that his
noncompliance was substantially justified, that (1) Defendant’s
motion was not properly served, (2) he gave valid reasons for not
filing an amended complaint in his “Motion for New Trial”; and (3)
his motion should not have been marked deficient.2 Rec. Doc. 22 at
2-6. When Plaintiff was served with a copy of Defendant’s motion
is irrelevant; we are now considering his memorandum in opposition,
so he has not been prejudiced, even if Defendant did not timely
serve

Plaintiff.

We

have

already

discussed

and

dismissed

Plaintiff’s failure to file an amended complaint and, again, we do
not find his excuses persuasive in light of existing rules and
precedent.

Finally,

the

fact

that

Plaintiff’s

motion

was

originally marked deficient played no role in our analysis. Even
though Defendant argued that Plaintiff’s motion was untimely, we
took into account the deficiency designation and the fact that

Plaintiff also argues that our October 18, 2016 Order and Reasons and
accompanying Judgment were “not final but interlocutory.” Rec. Doc. 22 at 1.
This argument is both without merit and irrelevant.
2

11

Plaintiff ultimately timely filed his motion within the deficiency
remedy deadline. Thus, in light of the frivolousness of the
arguments made in Plaintiff’s motion and his repeated failures to
file an amended complaint, we find that Defendant is entitled to
reasonable attorney’s fees under Rule 16(f).3
To calculate an award of attorney’s fees, the Fifth Circuit
uses the “lodestar method.” Forbush v. J.C. Penney Co., 98 F.3d
817, 822 (5th Cir. 1996).
Initially, the district court must determine the
reasonable number of hours expended on the litigation
and the reasonable hourly rate for the participating
lawyer. The lodestar is then computed by multiplying the
number of hours reasonably expended by the reasonable
hourly rate. Id. The district court may then adjust the
lodestar upward or downward . . . .
Id. (citing La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324
(5th Cir. 1995)). Further, the hourly rate charged may be adjusted
“in accordance with the market rates of the forum community” and
“the

Court

should

eliminate

all

time

that

is

‘excessive,

duplicative, or inadequately documented.’” Unum Life Ins. Co. of
Am. v. Tautenhahn, No. 09-63, 2010 WL 3703793, at *2 (W.D. La.
Sept. 13, 2010) (citing Watkins v. Fordice, 7 F.3d 453, 457-59
(5th Cir. 1993)).
We also recognize that Plaintiff was granted leave to proceed in forma
pauperis. Rec. Doc. 3. However, we are unaware of any rule or case law that
would protect Plaintiff from the assessment of fees solely because of his pauper
status. To the contrary, courts explicitly recognize that “in forma pauperis
status does not preclude the imposition of monetary sanctions under [Federal
Rule of Civil Procedure] 37.” Ballew v. Randstad Inhouse Servs., L.P., No. 1113, 2012 WL 2445080, at *8 (M.D. Ala. June 27, 2012) (citing Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989)).
3

12

Here, Defendant attached a time and expense sheet to its
motion. It shows that, after we dismissed the case on October 18,
2016, Partner Kelly Juneau Rookard worked 0.50 hours at the rate
of $200.00/hour and associate Gretchen F. Richards worked 0.10
hours at the rate of $150.00/hour, for a total of $115.00. Rec.
Doc. 20-2 at 2. On or after Plaintiff filed his motion on November
17, 2016, Rookard worked 1.3 hours at the rate of $200.00/hour and
Richards worked 0.80 hours at the rate of $150.00/hour, for a total
billing amount of $380.00. Id. at 1-2. Finally, on October 31,
2016, after our dismissal order was issued but before Plaintiff
filed

his

motion,

Defendant

made

582

copies

at

the

rate

of

$0.10/copy, for a total of $58.20; similarly, on November 30, 2016,
after Plaintiff filed his deficient motion but before he filed his
remedied

motion,

$0.10/copy,

for

Defendant
a

total

made

of

588

$58.80.

copies
Id.

at

at

the

rate

of

3.

Consequently,

Defendant asks this Court for an award of $612.00 (the sum of
$115.00, $380.00, $58.20, and $58.80). Rec. Doc. 20-1 at 4.
Defendant does not explain the bill for the copies it made on
October 31, 2016 and November 30, 2016. Notably, as of October 18,
2016, the entire record consisted of only 720 pages. Essentially,
we cannot be sure what Defendant was copying and, without some
explanation, a fair assessment of the need for these copies cannot
occur.

Accordingly,

Defendant

will

not

be

awarded

associated with these copies (a total of $117.00).
13

the

costs

Further, because both a partner and an associate worked on
behalf of Defendant, some of the costs are duplicative. For
example, both attorneys charged their client for the receipt and
review of Plaintiff’s motion. See Rec. Doc. 20-2 at 1-2. We will
deduct the 0.20 hours that Rookard spent reviewing the notice of
submission (id. at 1, a total of $40.00) and the 0.30 hours that
Richards spent reviewing the motion (id. at 2, a total of $45.00).
IV.

CONCLUSION

For the reasons outlined above,
IT IS ORDERED that Plaintiff’s “Motion for a New Trial” (Rec.
Doc. 17) is DENIED.
IT IS FURTHER ORDERED that Defendant’s “Motion to Recover
Attorney’s Fees and Costs” (Rec. Doc. 20) is GRANTED IN PART.
Plaintiff

is

hereby

ordered

to

pay

Defendant’s

reasonable

attorneys’ fees in the amount of $410.00.
New Orleans, Louisiana, this 3rd day of February, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

14