Infante Vasquez et al v. Heartland Express Inc. of Iowa, et al

Filing 49

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Raymond E. Hill and Heartland Express, Inc. of Iowa are awarded attorney's fees and costs in the amount of Two Thousand Five Hundred Dollars ($2,500.00). IT IS FURTHER ORDERED tha t Plaintiffs shall pay to Defendants the awarded fees and costs on or before December 31, 2012. IT IS FURTHER ORDERED that failure to make such payment in a timely fashion may result in dismissal of this action. Signed by District Judge Audrey G. Fleissig on 11/30/12. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARIA DEL REFUGIO
INFANTE VASQUEZ, et al.,
Plaintiffs,
vs.
RAYMOND E. HILL, et al.,
Defendants.

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Case No. 4:11CV01561AGF

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ alternative request for an award of costs
associated with the dismissal by some of the Plaintiffs of a state court action previously filed in
the Circuit Court of Phelps County, Missouri and related to the claims asserted herein. (Doc. No.
20). The Court previously entered an Order (Doc. No. 38) refusing to dismiss Plaintiffs’ suit as
a sanction pursuant to Federal Rule of Civil Procedure 41(b), but indicating that an award of the
attorney’s fees incurred in the related lawsuit might be appropriate. The Court asked Defendants
to submit documentation in support of such an award and to explain why such expenditures have
not been, or will not be, of use in the current action.
In response to the Court’s Order, Defendants filed documentation, asserting that they
should be awarded $9,778.50 in attorney’s fees attributable to the appearance of counsel and
support staff on the day of the previously scheduled trial. Defendants contend that these
attorney’s fees will not be useful in this litigation as they represent time expended for travel to
and from Rolla, Missouri, for the trial, attendance at the trial, and lodging and dining expenses,
which cannot be recouped or re-used in this action.

In response, Plaintiffs urge the Court to deny or reduce the award on the grounds that
choice of law issues addressed and resolved in the Circuit Court on the day of trial will prove
useful in this action; that Defendants’ own request to transfer the Circuit Court case from Jackson
County, a location near their attorney’s offices, to Rolla gave rise to the significant travel
expenses; and that Judge Story, the presiding judge in the Circuit Court proceeding, explicitly
stated that he did not want to penalize “the three children” (who are the plaintiffs in this action)
because of questions that arose regarding the immigration status of Cesar Gordillo, the former
class representative, who is no longer a party to the action.1 Doc. No. 7-6 at 6.
The Court has discretion to determine and adjust the amount of attorney’s fees
awarded as “costs” under Federal Rule Of Civil Procedure 41(b) and properly considers the
proportionality of the sanction in light of the litigant’s transgressions and whether a less
severe sanction could remedy the prejudice to the opposing party. Cf. Smith v. Gold Dust
Casino, 526 F.3d 402, 405 (8th Cir. 2008) (considering the propriety of dismissal with
prejudice as a sanction under Rule 41(b)); Doe v. Cassel, 403 F.3d 986, 990 (8th Cir. 2005)
(same). Indeed, “[i]f it appears that there was a good reason for the dismissal of the prior
action or that the plaintiff financially is unable to pay the costs,” a court need not require the
payment of any previously incurred costs and attorney’s fees. 9 C. Wright & A. Miller,
Federal Practice and Procedure § 2375 at 772 (2008).

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At the time of the state court continuance and the imposition of sanctions there,
Judge Story stated this “[sanctions order ] does not apply to the three children that were
added today.” Doc. No. 7-6 at 6. The order was, however, made applicable to a plaintiff
in this action, Maria Del Refugio Infante Vasquez, as the substituted representative for
Cesar Gordillo. Id.
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Here, the Court notes that the named Plaintiff in the state court action, whose
immigration status gave rise to the dismissal, is no longer a party to the suit; that several of the
current Plaintiffs were not parties to that suit; and that issues pertinent to these proceedings
were apparently resolved at those final state court proceedings. Having considered the degree
of prejudice to Defendants, the proportionality of the award in light of “the [remaining
litigants’] transgressions,” and those factors identified by Plaintiffs in support of a reduction
of the requested award, the Court will award Defendants $2,500.00 in attorney’s fees and
costs, constituting slightly more than 25 percent of the requested amount. Rodgers v.
Curators of Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir. 1998).
Accordingly,
IT IS HEREBY ORDERED that Defendants Raymond E. Hill and Heartland
Express, Inc. of Iowa are awarded attorney’s fees and costs in the amount of Two Thousand
Five Hundred Dollars ($2,500.00).
IT IS FURTHER ORDERED that Plaintiffs shall pay to Defendants the awarded
fees and costs on or before December 31, 2012.
IT IS FURTHER ORDERED that failure to make such payment in a timely fashion
may result in dismissal of this action.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 30th day of November, 2012.

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