Aviva Sports, Inc. v. Fingerhut Direct Marketing, Inc. et al
Filing
820
ORDER re. sanctions. (Written Opinion) Signed by Judge Joan N. Ericksen on July 23, 2013. (CBC)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Aviva Sports, Inc.,
Plaintiff,
v.
Civil No. 09-1091 (JNE/JSM)
ORDER
Fingerhut Direct Marketing, Inc., Menard, Inc.,
Kmart Corporation, Wal-Mart Stores, Inc., and
Manley Toys, Ltd.,
Defendants.
On March 20, 2013, the Honorable Janie S. Mayeron, United States Magistrate Judge,
issued an order granting in part and denying in part Plaintiff Aviva Sports, Inc.’s (“Aviva”)
Motion for Sanctions. In that order, the magistrate judge imposed sanctions on Defendant
Manley Toys, Ltd. (“Manley”) as well as on Manley’s attorney, Mr. Stephen M. Lobbin, and Mr.
Lobbin’s law firm, the Eclipse Group. 1 Lobbin objected to the Order, arguing in part that he was
not given notice of the possibility of personal sanctions. On May 3, 2013, the Court vacated that
part of the magistrate judge’s Order that imposed sanctions against Lobbin and put Lobbin on
notice that sanctions against him may be considered for his role in the failed depositions of
Manley’s Rule 30(b)(6) witness. Lobbin filed his response to the Court’s Order, and the Court is
now ready to rule on the issue of sanctions against Lobbin.
I.
BACKGROUND
The factual background underlying this issue was thoroughly set forth in the magistrate
judge’s March 20, 2013 Order, and the Court will not repeat it at length here. In summary,
Aviva had originally noticed a Rule 30(b)(6) deposition of Manley for January 11, 2011.
1
Because Lobbin is the only attorney at the Eclipse Group who participated on behalf of
Manley in the matters at issue, for purposes of this Order the court will treat Lobbin and the
Eclipse Group as one and the same (referred to as “Lobbin”).
1
Aviva’s attorney traveled to Hong Kong for the deposition. Manley identified Chan Siu Lun
(“Chan”) as its corporate deponent, and Manley’s counsel participated by telephone. 2 Chan was
not prepared to testify, and in April 2011, Aviva moved to compel Manley to produce a properly
prepared Rule 30(b)(6) witness. On January 3, 2012, the Court concluded that Manley’s
corporate designee was “woefully unprepared” to respond to numerous topics and ordered
Manley to produce a properly prepared Rule 30(b)(6) witness and pay the costs of a translator if
one would be needed. The Court also warned that if Manley again produces an unprepared
witness, the Court will entertain a motion for sanctions against Manley.
On June 7, 2012, Manley produced Richard Toth as its Rule 30(b)(6) witness. 3 Toth was
not adequately prepared to testify as to each of the identified topics at that time. Due to Toth’s
schedule, the deposition had to be continued on December 11, 2012. Aviva informed Lobbin
that at least the six-month delay would give Toth time to become better prepared. In December
2012, however, Toth was still grossly unprepared to provide meaningful testimony as to several
of the identified deposition topics. Aviva, believing that another motion to compel would be
futile, instead moved for an award of fees and costs incurred in connection with the failed
depositions and in bringing its motion for sanctions.
As this Court noted in its May 3, 2013 Order, the magistrate judge correctly found that
Toth was unprepared to testify as Manley’s corporate designee. For example, Toth—the
President of Manley Toys Direct (not Manley Toys, Ltd., the Defendant in this case)—did not
know how Manley Toys, Ltd. does business or why his company was even called “Manley,” and
he denied knowing anything about Manley Toys, Ltd. He could not provide any testimony
2
Lobbin was not yet Manley’s counsel at the time of the Chan deposition.
3
By this time, Lobbin had undertaken representation of Manley.
2
regarding the organizational structure of Manley Toys, Ltd. other than the names of the
individuals who own the company. He had no information regarding the revenues, units, costs
and profits received from the sales of the products at issue. It appears that Manley’s Chinese
counsel, Walter Fong, prepared brief (and only slightly responsive) answers to the identified
deposition topics, and Toth was completely unprepared to answer any follow-up questions
related to those topics. Generally speaking, if the answer to Aviva’s question was not on the
notes provided to him by Fong, Toth could not answer the question.
In the magistrate judge’s March 20 Order, affirmed in part by this Court, the magistrate
judge imposed sanctions against Manley under both Rule 37 of the Federal Rules of Civil
Procedure and 28 U.S.C. § 1927, finding that “Manley’s decision to send Toth to the deposition
armed with little knowledge beyond the notes prepared by Fong is indefensible.” March 20,
2013 Order, at 16 (ECF No. 797). The magistrate judge also concluded that Lobbin played a
“key role” in the failure of the second deposition and that he knew or should have known that
Toth was unprepared. “Any lawyer acting with a reasonable amount of skill and diligence would
have recognized that Toth was not the right deponent and the fault for failing to adequately
prepare Toth lies with Manley and its counsel.” Id. at 17. The magistrate judge found that
Lobbin willfully disregarded the Court’s order regarding Manley’s Rule 30(b)(6) deposition. As
examples, the magistrate judge explained that Lobbin attempted to justify Toth’s “dismal
performance” by citing the need for an English-proficient deponent, despite the fact that the
Court explicitly provided that Manley could produce a non-English-speaking deponent so long as
it paid for a translator. Lobbin emphasized the “convenience” of having Toth testify—
presumably because Toth lives in the United States. The magistrate judge concluded that
“counsel’s conduct in the deposition was objectively reckless and so egregious that it amounted
3
to bad faith” and “unnecessarily prolonged these proceedings by putting Aviva through the time
and expense of participating in this useless deposition.” Id. at 18.
II.
DISCUSSION
“A court may require counsel to satisfy personally attorneys’ fees reasonably incurred by
an opposing party when counsel’s conduct ‘multiplies the proceedings in any case unreasonably
and vexatiously.’” Clark v. United Parcel Serv., Inc., 460 F.3d 1004, 1011 (8th Cir. 2006)
(quoting 28 U.S.C. § 1927). Section 1927 provides:
Any attorney or other person admitted to conduct cases in any court of the United
States . . . who so multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such conduct.
28 U.S.C. § 1927 (2006). “The statute permits sanctions when an attorney’s conduct, ‘viewed
objectively, manifests either intentional or reckless disregard of the attorney’s duties to the
court.’” Clark, 460 F.3d at 1011 (quoting Tenkku v. Normandy Bank, 348 F.3d 737, 743 (8th
Cir. 2003)); see also Lee v. First Lenders Ins. Servs., Inc., 236 F.3d 443, 445 (8th Cir. 2001);
Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1544 (11th Cir. 1993) (explaining that
§ 1927 “allows district courts to assess attorney’s fees against litigants, counsel, and law firms
who willfully abuse the judicial process by conduct tantamount to bad faith.” (internal quotation
marks omitted)).
“Federal Rule of Civil Procedure 37(b) authorizes sanctions for failure to comply with
discovery orders.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 763 (1980). If the Court finds
that there has been a failure to comply with a discovery order, “the court must order the
disobedient party, the attorney advising that party, or both to pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).
4
Rule 37 sanctions are permissible where there is “an order compelling discovery, a willful
violation of that order, and prejudice to the other party.” Chrysler Corp. v. Carey, 186 F.3d
1016, 1019 (8th Cir. 1999). These sanctions “must be applied diligently both ‘to penalize those
whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be
tempted to such conduct in the absence of such a deterrent.’” Comiskey v. JFTJ Corp., 989 F.2d
1007, 1012 (8th Cir. 1993) (internal quotation marks and citation omitted).
Lobbin makes four arguments as to why sanctions against him are unwarranted; the Court
will address each argument in turn. First, Lobbin points to his “honorable credentials,”
“unblemished 18-year professional record” and “reasonable personal and professional
disposition.” The Court does not question Lobbin’s credentials, record or disposition. None of
these things, however, provide any justification or explanation for Lobbin’s reckless disregard of
his duties to the court in this matter. “All attorneys, as ‘officers of the court,’ owe duties of
complete candor and primary loyalty to the court before which they practice.” Malautea, 987
F.2d at 1546; see also Model Rules of Prof’l Conduct Preamble ¶ 1 (2013) (stating that a lawyer
is “an officer of the legal system and a public citizen having special responsibility for the quality
of justice” who “should demonstrate respect for the legal system and for those who serve it,
including judges [and] other lawyers,” and that “it is . . . a lawyer’s duty to uphold legal
process”). Lobbin’s eighteen years of experience as an attorney should have made him acutely
aware of his professional duties and his obligation to ensure that his client complied with the
Court’s discovery orders. Further, his experience should have provided him with ample
understanding of discovery procedures and proper deposition preparedness.
Lobbin next points to the fact that Aviva requested a sanction against Manley, rather than
against Manley’s attorney. As Lobbin acknowledges, the Court may order sanctions sua sponte,
5
which is precisely why this matter is currently before the Court. Whether or not Aviva chose to
seek sanctions against Manley, Lobbin, or both does not factor into this Court’s analysis as to
whether such sanctions against Lobbin are, in fact, warranted. As an attorney, Lobbin owes a
duty to the Court, and it is for the Court to determine whether that duty has been neglected.
Lobbin also contends that the Court should not consider misconduct on the part of
Manley’s prior counsel in assessing whether sanctions against Lobbin are appropriate. As
Lobbin correctly notes, Manley has switched lead counsel numerous times during the course of
this litigation; Lobbin did not begin representing Manley until early May 2012, a month before
Toth’s first deposition. Before Lobbin entered this litigation, the Court on several occasions had
warned or reprimanded Manley’s previous counsel. See, e.g., Jan. 3, 2012 Order, at 17-20, 3436, 40-42 (ECF No. 508); May 11, 2012 Order, at 11, 13, 20-23 (ECF No. 601). The Court
assures Lobbin that he is not being “penalized personally for conduct that occurred before he
ever got involved in the litigation.” Resp. Br. 8 (ECF No. 817). The fact that former counsel
had been repeatedly warned regarding Manley’s noncompliance with discovery orders, however,
should have served as notice to Lobbin that he was assuming representation of a potentially
noncompliant client that had previously engaged in discovery misconduct. Lobbin had access to
the electronic record in this case and assumed representation of Manley with full knowledge of
the events that had already transpired. Thus, while Lobbin is not personally responsible for the
conduct that occurred prior to May 2012, he was at least on notice of Manley’s obvious contempt
for the judicial system and this Court’s orders and that the Court was not letting Manley’s
attorneys off the hook for Manley’s misconduct.
Next, Lobbin asserts that he should not be personally sanctioned for the failed Rule
30(b)(6) deposition because he was not authorized to select or prepare the witness and he did not
6
assume representation of Manley until May 2012, shortly before Toth’s June deposition. He
contends that because he was not authorized to select or prepare the corporate deponent, he could
not cause the “deposition testimony to be any different or better than it was” and “that it could
not have gone better no matter what I did.” Resp. Br. 4 (ECF No. 817). Walter Fong, Manley’s
Chinese counsel, submitted a declaration in which he states that although Lobbin’s “input”
regarding the deposition was “welcomed,” it was Fong who took responsibility for selecting and
preparing Toth. The Court identifies several problems with this argument.
First, although Lobbin had only recently begun representing Manley prior to Toth’s first
deposition in June 2012, Lobbin had ample time to correct Toth’s deficiencies prior to the
continuation of Toth’s deposition in December 2012. Lobbin provides no evidence or argument
as to what steps he took or attempted to take between the failed June deposition and the failed
December deposition. In his declaration in objection to the magistrate judge’s March 20, 2013
Order, at 4 (ECF No. 804), Lobbin states that “[p]erhaps I could have personally conducted the
witness selection and preparation process, and traveled to China for that purpose; however, I was
assured repeatedly in discussions with Manley’s representative that the designated Rule 30(b)(6)
witness would be fully prepared to provide information in response to the deposition topics.”
Even giving Lobbin the benefit of the doubt that he did not have enough time to become
involved in the preparation of the 30(b)(6) witness prior to the June deposition and that he
reasonably relied on his client’s assurances that the witness would be prepared, there is no
excuse for Lobbin’s failure to intervene between the two deposition dates. By the conclusion of
the June deposition, Lobbin was certainly on notice that Toth was inadequately prepared. At that
point, it was unreasonable for Lobbin to rely on any further assurances from Manley that the
7
deficiencies would be corrected by December. 4 Cf. Fed. R. Civ. P. 26(g) Adv. Com. Notes, 1983
Amendments (stating that an attorney “may rely on assertions by the client and on
communications with other counsel in the case as long as that reliance is appropriate under the
circumstances” and “what is reasonable is a matter for the court to decide on the totality of the
circumstances” (emphasis added)); In re Kunstler, 914 F.2d 505, 514 (4th Cir. 1990) (“Blind
reliance on the client is seldom a sufficient inquiry.” (internal quotation marks omitted)).
As the attorney advising Manley’s conduct and as an officer of the Court, Lobbin was
required to do something to try to assure Manley’s compliance. If he was not aware that
Manley’s designated 30(b)(6) witness was unprepared prior to the June deposition, he certainly
should have been aware of this fact after the deposition. There is no evidence that Lobbin
attempted to take any steps to further prepare Toth or otherwise ensure that Manley produced an
adequately prepared 30(b)(6) witness for deposition during the six-month interval. For example,
there is no indication that Lobbin ever traveled to China to assist in discovery or personally
engage with his Chinese client, nor is there any suggestion that he spoke with Toth between the
two depositions to assess Toth’s preparation and adequacy to testify. Lobbin’s late entry into
this litigation does not explain his complete disregard for this Court’s discovery orders as
evidenced by Toth’s continued dismal performance in December 2012. While perhaps Lobbin
could have been excused from responsibility for the failed June deposition, he offers nothing to
excuse his actions—or lack thereof—leading up to the December deposition.
4
It is questionable whether Lobbin’s reliance on Manley’s assurances was ever reasonable,
given his own acknowledgment that Manley is a “challenging litigation client” and his awareness
of Manley’s other previous discovery abuses. A quick glance at the ECF record in this case
reveals a docket littered with motions and orders for sanctions against Manley. Lobbin should
have been that much more diligent in his attempts to make sure Manley complied with this
Court’s discovery orders, and given Manley’s history of noncompliance and disobedience, a
reasonable attorney would have been wary of Manley’s assurances in the first place.
8
It is also apparent from Lobbin’s statements during Toth’s deposition and from Lobbin’s
subsequent submissions to the Court that he took the absurd position that Toth was adequately
prepared for the deposition. During the deposition, Lobbin asserted that Toth’s “general
knowledge” of the identified topics was sufficient, despite the magistrate judge’s January 3
Order contemplating testimony from a corporate deponent who could testify specifically on the
identified topics. In his objections to the magistrate judge’s imposition of sanctions, Lobbin
repeatedly asserted that Toth was a proper and prepared witness. The only reason he does not
continue to make this assertion now is because this Court expressly stated that it will not further
entertain that argument in connection with this matter. See May 3, 2013 Order (ECF No. 812).
The Court recognizes that Lobbin has a duty to zealously advocate for his client, but even that
advocacy must be “within the bounds of the law.” Model Rules of Prof’l Conduct Preamble ¶ 9
(2013). Here, Lobbin not only asserted that Toth was an adequately prepared deponent in
connection with his advocacy for his client, he also made this assertion in his own objections to
the magistrate judge’s order of sanctions against him personally. See Obj. to Magistrate Judge’s
March 20, 2013 Sanctions Order by Non-Party the Eclipse Group LLP, at 7 (ECF No. 803)
(“Contrary to the Magistrate Judge’s determinations, the witness was prepared and provided
appropriate answers for almost all of the topics.”). It is difficult for the Court to characterize
Lobbin’s conduct simply as “competent, good-faith advocacy” on behalf of his client, Resp. Br.
3 (ECF No. 817), in light of Lobbin’s previous statements and submissions.
Lobbin appears to believe that the fact that Manley’s Chinese counsel took responsibility
for the selection and preparation of Manley’s 30(b)(6) witness somehow absolves him of any
wrongdoing. He is mistaken. Lobbin is Manley’s United States counsel and the counsel of
record in this case, and he has a professional responsibility not only to his client, but also to the
9
Court. “An attorney’s duty to a client can never outweigh his or her responsibility to see that our
system of justice functions smoothly.” Malautea, 987 F.2d at 1546. “This concept is as old as
common law jurisprudence itself.” Id. Lobbin cannot stick his head in the sand and cower
behind his client’s disobedient conduct. Lobbin may be held responsible for Manley’s discovery
violations, even if he did not personally instigate the conduct. See Devaney v. Cont’l Am. Ins.
Co., 989 F.2d 1154, 1161-62 (11th Cir. 1993) (explaining that Rule 37 does not require that in
order for sanctions to be imposed upon the attorney, the attorney must have instigated the
relevant misconduct).
The phrase “attorney advising such conduct” does not . . . exclude either an
attorney’s willful blindness or his acquiescence to the misfeasance of his client; to
the contrary, the phrase instructs that when an attorney advises a client in
discovery matters, he assumes a responsibility for the professional disposition of
that portion of a lawsuit and may be held accountable for positions taken or
responses filed during that process. Sanctions exist, in part, to remind attorneys
that service to their clients must coexist with their responsibilities toward the
court, toward the law and toward their brethren at the bar.
Id.
Even if the Court accepted that Lobbin acted in good faith and truly believed that
Manley—despite having clearly shown complete and utter disregard for this Court’s discovery
orders throughout the course of this four-year litigation—would take the steps it needed to take
to adequately prepare its designated 30(b)(6) witness, Lobbin’s subjective good faith alone is not
enough to absolve him of all responsibility for this fiasco. “Subjective good faith ought not to be
an infinitely expansive safe harbor to protect an attorney” who behaves in a way “that a
competent attorney could not under any conceivable justification reasonably believe” to be
appropriate. Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987). “Although subjective
good faith on the part of a non-attorney party appellant may in some instances excuse otherwise
unreasonable conduct, we are entitled to demand that an attorney exhibit some judgment.” Id.
10
“To excuse objectively unreasonable conduct by an attorney would be to state that one who acts
‘with “an empty head and a pure heart” is not responsible for the consequences.’” Id. (quoting
McCandless v. Great Atl. & Pac. Tea Co., 697 F.2d 198, 200 (7th Cir. 1983)).
Based on the extensive record in this case, Lobbin’s unreasonable reliance on Manley’s
assurances, and his failure to make any diligent attempt to comply with the Court’s discovery
order prior to the disastrous December deposition, the Court finds that Lobbin’s behavior, when
viewed objectively, constituted intentional or reckless disregard of his duties, at best
characterized as a willful blindness toward his client’s disdain for the judicial process. Lobbin’s
utter failure to attempt to discharge his duties as an officer of the Court unreasonably and
vexatiously multiplied the proceedings in this case and amounted to bad faith. There was a
discovery order compelling Manley’s production of a prepared 30(b)(6) deponent, a willful
violation of that order, and Aviva was prejudiced by that violation—both in the time and money
expended on the failed deposition and in Aviva’s inability to acquire through discovery the
information it needed to pursue its claims. There is nothing to show that the failure to comply
with the discovery order was substantially justified or that there are any other circumstances that
would make an award of expenses unjust. “This conduct . . . amounts to a near total dereliction
of professional responsibility” and “[s]uch abusive conduct should not, can not, and will not be
cost-free.” Comiskey, 989 F.2d at 1012. Sanctions against Lobbin under Federal Rule of Civil
Procedure 37(b) or 28 U.S.C. § 1927 are warranted. 5 Lobbin shall be jointly and severally liable
5
In this Court’s May 3, 2013 Order, the Court stated that it “does not intend to conduct a
hearing on this matter, unless the parties request and demonstrate the need for such a hearing.”
May 3, 2013 Order (ECF No. 812) (emphasis added). Lobbin responded that he requests a
hearing because “the negative personal, professional and financial impact of any such monetary
sanction being considered is serious enough to justify an opportunity for counsel to explain, in
person, his actions and intentions in question and the lack of any bad faith or mens rea on his
part.” Resp. Br. 2 (ECF No. 817). The Court does not minimize the impact of the imposition of
11
for Aviva’s reasonable expenses—including attorneys’ fees—incurred in connection with the
failed depositions and in bringing the motion for sanctions.
Both 42 U.S.C. § 1927 and Federal Rule of Civil Procedure 37(b)(2)(C) provide for the
award of the costs, expenses, and attorneys’ fees reasonably incurred as a result of the
misconduct. “The most useful starting point for determining the amount of a reasonable fee is
the number of hours reasonably expended on the litigation multiplied by a reasonable hourly
rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Hours that are excessive, redundant or
otherwise unnecessary are not “reasonably expended” and should be excluded from the
calculation. Id. The reasonableness of a fee is a matter within the Court’s discretion. Id. at 433,
437. Aviva’s attorney, Keith Sorge (“Sorge”), submitted an affidavit stating that he spent at least
69.9 hours in connection with preparing for and attending the two Toth depositions and the
motion for sanctions. Sorge’s billing rate is $400 per hour, resulting in claimed fees of
$27,960.00. Sorge’s affidavit also states that attorney Ryan Sorge (“Ryan Sorge”) spent 5.5
hours reviewing and identifying documents to be used at the deposition, at a billing rate of $225
per hour. Sorge also claims costs totaling $103.00. Manley submitted a response, objecting to
the number of hours claimed by Keith Sorge as unreasonable. Manley does not object to the
billing rates of $400 and $225 per hour, the 5.5 hours expended by Ryan Sorge, or the claimed
costs.
sanctions and has provided Lobbin with ample notice and opportunity to explain his actions and
intentions; Lobbin has not demonstrated a need for an in-person hearing on this matter. See
Tenkku, 348 F.3d at 744 (explaining that where the sanctioned party is “afforded ample notice
and opportunity to be heard” on the question of whether a sanction should be imposed and the
amount of the sanction, a hearing is not necessary); Chrysler Corp., 186 F.3d at 1022-23
(explaining that the Fifth Amendment’s due process requirements are met “where the record
demonstrates a willful and bad faith abuse of discovery and the non-cooperating party could not
be unfairly surprised by the sanction” and “the sanctioned party has a real and full opportunity to
explain its questionable conduct before sanctions are imposed”).
12
The Court finds that the attorneys’ fees incurred by Ryan Sorge ($1,237.50), the claimed
costs ($103.00), and Keith Sorge’s hourly rate of $400 per hour are reasonable. The Court also
finds, despite Manley’s objection, that the twelve hours Sorge claims for actually deposing Toth
and preparing for and participating in the motion hearing is reasonable. Toth’s two depositions
together lasted approximately seven hours, and the hearing on the motion for sanctions lasted
approximately one hour. Factoring in transit and reasonable preparation time, the Court does not
find twelve hours expended on the depositions and hearing to be unreasonable.
Sorge also states that he spent approximately fourteen hours preparing for each of the two
Toth depositions, including time spent reviewing documents, researching Manley, and drafting
questions; Manley objects that the twenty-eight hours is unreasonable because the second Toth
deposition was merely a continuation of the first deposition and did not require significant
additional preparation. Given the numerous documents involved in this case, the Court finds that
it was reasonable for Sorge to spend fourteen hours preparing for the first Toth deposition. It
was not, however, reasonable to spend an additional fourteen hours preparing for what should
have been a continuation of the first deposition. The Court finds that seven hours is a reasonable
time to have spent in preparation for the second of the two depositions.
Finally, Sorge claims to have spent twenty-nine hours drafting the submissions in support
of Aviva’s motion for sanctions and responding to Manley’s opposition to that motion, including
time spent reviewing Toth’s deposition. The Court finds this amount of time to be excessive.
Aviva’s memorandum in support of its motion was only sixteen pages and was not factually or
legally complex. Aviva’s barely-four-page reply brief contained no new factual information and
included no citations to law. Throughout both briefs, Aviva primarily relied on citations to and
quotes from Toth’s deposition—and although that deposition transcript was approximately three-
13
hundred pages long, the Court does not find that it should have required more than a few hours to
read. The Court finds twenty-nine hours to be an unreasonable amount of time to read through
the deposition, draft the motion papers, and read and respond to Manley’s objections. Instead,
fifteen hours represents a reasonable amount of time necessary to conduct these activities.
In sum, the Court finds that Sorge reasonably expended forty-eight hours in connection
with the two Toth depositions and motion hearing. At a rate of $400 per hour, this amounts to
attorneys’ fees of $19,200. Upon adding this amount to the $1,237.50 fees incurred by Ryan
Sorge and the costs of $103.00, the Court finds that Manley and Lobbin are jointly and severally
liable for $20,540.50 in reasonable fees and costs incurred in connection with this discovery
misconduct.
III.
CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. Sanctions against Attorney Stephen Lobbin are imposed pursuant to Federal Rule of
Civil Procedure 37(b)(2)(C) and 28 U.S.C. § 1927. Lobbin shall be jointly and
severally liable for Aviva’s reasonable costs and attorneys’ fees incurred in
connection with the failed depositions and in bringing the motion for sanctions.
2. Manley and Lobbin are jointly and severally liable for reasonable fees and costs in the
amount of $20,540.50.
Dated: July 23, 2013
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge
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