HEARTS WITH HAITI INC et al v. KENDRICK

Filing 310

ORDER granting in part and denying in part 295 Verified Application for Attorney Fees; granting 296 Motion to Seal Unredacted Version of Exhibit Four to Its Application for Attorneys' Fees. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
HEARTS WITH HAITI, INC.,
et al.,
Plaintiffs,
v.
PAUL KENDRICK,
Defendant.

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2:13-cv-00039-JAW

SANCTIONS ORDER
On February 20, 2015, the Court issued an order finding Paul Kendrick in
contempt of court for violating the Consent Confidentiality Order (ECF No. 16) of this
Court dated April 19, 2013 and the Memorandum Decision on Motions to Retain
Classified Designation (ECF No. 81) dated October 21, 2013. Order on Consolidated
Mot. for Sanctions at 33-34 (ECF No. 293). As a sanction for his contempt of court,
the Court ordered Paul Kendrick to pay the amount of attorney’s fees and costs
necessitated by his contempt of court. Id. at 34. It rejected Plaintiffs’ requests for
more punitive sanctions and ordered Norman, Hanson & DeTroy, LLC (NHD), the
Plaintiffs’ law firm, to submit an application for approval of the attorney’s fees and
costs associated with their motions for contempt, and were instructed to only claim
payments for time spent that resulted in a favorable ruling. Id. at 31-33.
On March 6, 2015, NHD filed a verified application for attorney’s fees, seeking
$28,301.18 in attorney’s fees. Verified Appl. for Att’ys’ Fees at 8 (ECF No. 295). NHD
excluded time spent by paraprofessionals, time spent by members of the NHD firm

other than the four lawyers directly involved in the case, and out-of-pocket costs. Id.
at 3-4. All told, NHD documented $39,596.50 in attorney’s fees for time expended in
pursuing the motions for contempt, but sought $28,301.18 in recognition of the fact it
did not prevail on each motion or on its demanded scope of remedies. Id. at 7-8. NHD
asked that the Court require Mr. Kendrick to pay the sanction within thirty days of
the Court’s order. Id. at 8.
On March 25, 2015, Mr. Kendrick responded, urging the Court to impose a
sanction of less than $4,000.00 “for proving uncontested facts and achieving the
limited success they did relative to the extraordinary relief they chased.” Def.’s
Objection and Opp’n Mem. to Pls.’ Verified Appl. for Att’ys’ Fees at 1-2 (ECF No. 305).
Mr. Kendrick provided an analysis of the amount of attorney time that he contends
should have been expended on the motions for contempt and he totals the proper
charges related to that time to total $9,485.79. Id. at 14. Estimating that NHD was
“at most 40% successful in what they set out to do,” Mr. Kendrick suggests an award
of $3,794.32. Id. at 15-16.
This is a very troublesome case. There is no middle ground between the
earnest contentions of the Plaintiffs, who say they are wholly innocent of Mr.
Kendrick’s scurrilous and defamatory charges of child sexual abuse, and the dogmatic
allegations of the Defendant, Paul Kendrick, who maintains that the Plaintiffs are,
in fact, entirely guilty of these awful and injurious acts. But what brings the parties
to this Order is not the merits, rather, it is Mr. Kendrick’s refusal to abide by court
orders, one of which he proposed himself, while the question of who is right and who

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is wrong is being resolved by this Court. The Court appreciates Mr. Kendrick’s
devotion to the protection of children, but it also appreciates the Plaintiffs’ desire for
their day in court to disprove his allegations.

The confidentiality orders were

designed to maintain the status quo as the discovery process took place and the case
was being prepared for trial. The orders assured the parties that they would be able
to exchange private information without fear that the information would be
trumpeted to their harm in public.
What makes the motions and the sanction unusual is that when Mr. Kendrick
took the stand at the sanctions hearing on January 30, 2015, he frankly admitted
that he had violated at least some of the Court’s orders, essentially claiming he had
the moral right or obligation to do so in order to protect children from abuse. As it
turned out, therefore, Mr. Kendrick’s admission made the Plaintiffs’ motions for
sanctions a relatively easy task. Although the facts underlying each claimed violation
were complicated and the Plaintiffs’ lawyers were required to fit those facts into the
terms of different confidentiality orders, it remains true that when Mr. Kendrick
testified, he made the Plaintiffs’ case for them.
In considering the amount of the necessary sanction, the Court has considered
a number of factors. First, the Court accepts NHD’s representation as to the amount
of attorney time it expended in pursuit of these sanctions. Second, the Court approves
NHD’s hourly rates for each of the involved attorneys.

Third, the Court has

considered the fact that the Magistrate Judge previously sanctioned Mr. Kendrick
$1,000.00 for a prior violation and that this $1,000.00 penalty did not deter Mr.

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Kendrick from committing the violations now before the Court. Mem. Decision on
Mot. for Sanctions at 4 (ECF No. 144). Fourth, the Court has assessed Mr. Kendrick,
given his strong sense of right and wrong, as someone unlikely to make an in-person,
under oath promise to the Court and break that promise. On January 30, 2015, Mr.
Kendrick stated under oath that before disseminating information about the case in
the future, he will “ask [his] attorneys to immediately approach the judge,” Tr. of
Proceedings 107:17-22 (ECF No. 292), a promise the Court intends to hold Mr.
Kendrick to. Fifth, the Court has considered that Mr. Geilenfeld is apparently still
in prison in Haiti and if—as Mr. Kendrick firmly believes and Mr. Geilenfeld
emphatically denies—he represents a danger to children, Mr. Geilenfeld is no danger
to children right now. Sixth, the Court has considered that the merits of these
motions are interwoven with the merits of the underlying action. As the Court
observed in its Order, “the harm caused by disseminating a false allegation is
markedly different from the harm caused by disseminating a true one, and the
resolution of the truth or falsity of Mr. Kendrick’s accusations against Mr. Geilenfeld
and Hearts with Haiti must await trial.” Order on Consolidated Mot. for Sanctions
at 32. If the jury determines that Mr. Kendrick defamed Mr. Geilenfeld and Hearts
with Haiti, then its assessment of damages will be a preferable place to resolve the
monetary dispute between the parties than a motion for sanctions. By contrast, if
the jury determines that Mr. Kendrick has not defamed Mr. Geilenfeld and Hearts
with Haiti, then the Court will have punished Mr. Kendrick in a case where a jury
ultimately sided with him. Seventh, the Court has considered that its sanction

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against Mr. Kendrick is for his actions that go beyond the merits of the case and strike
at the heart of the civil justice system, penalizing him for willful violations of court
orders, something no court can countenance without eroding its authority.
The Court has considered each of these factors and the need to “fashion
sanctions that will ensure compliance with the Court’s orders and at the same time
correct some of the damage done by their violations.” Asociacion de Suscripcion
Conjunta del Seguro de Responsabilidad Obligatorio v. Sec’y of the Treasury of P.R.,
No. 08-1707 (JAF), 2013 U.S. Dist. LEXIS 4124, at *18 (D.P.R. Jan. 9, 2013).
The Court GRANTS in part and DENIES in part Plaintiffs’ Verified
Application for Attorneys’ Fees (ECF No. 295). The Court ORDERS a sanction in the
total amount of $8,000.00 in favor of the Plaintiffs and against Defendant Paul
Kendrick. The Court declines the Plaintiffs’ request that Mr. Kendrick be ordered to
remit payment within thirty days of this Order. The Court is extremely disturbed
that following the January 30, 2015 hearing, Mr. Kendrick apparently emailed others
and said that he will ignore the Court sanctions order. But if the Court ordered
immediate payment, the Court foresees endless proceedings in which the Court and
the parties grapple with enforcement, while the merits of the case remain unresolved.
The Court views the ultimate resolution of the merits of this case by a jury, not the
piecemeal determination of side disputes, to be the main event and something that
should happen as soon as possible, once Mr. Geilenfeld’s issues with the Haitian
authorities are resolved.

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As a housekeeping matter, the Court GRANTS Norman, Hanson & DeTroy,
LLC’s Motion to Seal Unredacted Version of Exhibit Four to Its Application for
Attorneys’ Fees (ECF No. 296).
Finally, on January 30, 3015, counsel for the Plaintiffs updated the Court as
to the status of the case. After reminding the Court that Haiti has an inquisitional
model for criminal justice in which a judge investigates the case and makes
recommendations as to whether to proceed criminally, Attorney Deane said that the
judge has completed an investigation in Haiti and that the prosecutor has reviewed
the judge’s investigation. He indicated that the next step was for the judge who
handled the investigation to review the prosecutor’s comments and to decide whether
to issue what is called an ordinance, something similar to a probable cause
determination. Attorney Deane thought that process would be completed within
thirty to sixty days. The Court is unaware of any further developments in Haiti.
Meanwhile, the parties continue to litigate discovery issues and a discovery
conference is scheduled before the Magistrate Judge on April 24, 2015. As Mr.
Geilenfeld’s physical presence in this Court appears to be essential to the proper
disposition of the lawsuit, the Court will inquire how the parties intend to proceed
given his continued incarceration.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of April, 2015

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