Wood v. Khan Hotels LLC

Filing 81

ORDER - IT IS ORDERED: The defendant is awarded attorney fees in the amount of $8,655, to be satisfied personally by the plaintiff's counsel. Ordered by Judge John M. Gerrard. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LAURIE WOOD,
Plaintiff,

4:11-CV-3019

vs.
ORDER
KHAN HOTELS LLC,
Defendant.
This matter is before the Court on the Defendant's Motion for
Attorney's Fees (filing 70). The defendant seeks attorney fees pursuant to 28
U.S.C. § 1927, which provides that
[a]ny attorney or other person admitted to conduct cases in
any court of the United States or any Territory thereof 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.
Sanctions are warranted under § 1927 when attorney conduct, viewed
objectively, manifests either intentional or reckless disregard of the
attorney's duties to the court. EEOC v. Trans States Airlines, Inc., 462 F.3d
987, 996 (8th Cir. 2006); Lee v. L.B. Sales, Inc., 177 F.3d 714, 718 (8th Cir.
1999). The Court may require counsel to personally satisfy those attorney
fees. Clark v. United Parcel Serv., 460 F.3d 1004, 1011 (8th Cir. 2006).
Because § 1927 is penal in nature, it should be strictly construed so that it
does not dampen the legitimate zeal of an attorney in representing his client.
L.B. Sales, 177 F.3d at 718. The imposition of sanctions is a serious matter
and should be approached with circumspection. Id.
And the Court must enter findings of fact in ruling on a motion for
sanctions. Id. Findings ensure that the sanctions address the excess costs
resulting from the misconduct, provide the sanctioned party an adequate
opportunity to respond, and facilitate meaningful appellate review. Id. A
sanctioning court must make an effort to isolate the additional costs and fees
incurred by reason of conduct that violated § 1927. Lee v. First Lenders Ins.

Servs., Inc., 236 F.3d 443, 446 (8th Cir. 2001). But the task is inherently
difficult, and precision is not required. Id.
The Court finds that sanctions are warranted here. In its Memorandum
and Order (filing 68) of October 26, 2012, dismissing the plaintiff's complaint,
the Court stated that
[t]he record as a whole establishes, beyond any reasonable
dispute, that the plaintiff's claims are grounded at best in
speculation and gossip, and often far less than that. . . .
. . . Given the circumstances of this case, the Court finds it
difficult to imagine that the plaintiff's counsel did not know, even
at the time the plaintiff's complaint was filed, that most of her
claims were spurious. But it was certainly apparent in her replies
to the defendant's interrogatories (which were signed by the
plaintiff's counsel) and at the plaintiff's deposition, which the
plaintiff's counsel attended.
Filing 68 at 12-13. The Court's opinion has not changed since summary
judgment. The Court, mindful of its duty to strictly construe § 1927, see L.B.
Sales, 177 F.3d at 718, gives the plaintiff's counsel the benefit of every doubt.
But the Court has no doubt that after the plaintiff's deposition, the plaintiff's
counsel continued to litigate with intentional or reckless disregard of his duty
to the Court. See Trans States Airlines, 462 F.3d at 996. He effectively
admitted as much to opposing counsel in his attempt to settle the case. Filing
77-1 at 7. The Court is not unsympathetic to the position plaintiff's counsel
was in. Most litigators have, at one time or another, taken a case that turns
out not to have been as meritorious as it might have initially appeared. But
bad breaks are inevitable, and a lawyer is not permitted to use "zealous
advocacy" as an excuse to inflict his own bad luck on his opponent.
The Court, therefore, finds that the point at which these proceedings
were "unreasonably and vexatiously" multiplied was after the plaintiff's
extraordinary deposition. The Court finds it appropriate to tax the plaintiff's
counsel with excess costs, expenses, and attorney fees reasonably incurred
after that point.1 In making that determination, the Court considers the
hours reasonably spent on the work performed, and counsel's reasonable

It is also noteworthy that attorney fees relating to interrogatories were already charged to
the plaintiff by the United States Magistrate Judge as a discovery sanction, payable by
either the plaintiff or her counsel. See filings 53 and 57. So, the defendant has already
recovered some attorney fees relating to the pre-deposition conduct of plaintiff's counsel.
1

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hourly rate. See Farmers Coop. v. Senske & Son Transfer Co., 572 F.3d 492,
500 (8th Cir. 2009). And the Court may adjust that amount based upon the
particular circumstances of the case. Id.
The defendant's index in support of the motion for attorney fees does
not permit the Court to precisely determine which fees were attributable to
litigation before the deposition and which were incurred after the deposition
(primarily with respect to the summary judgment motion).2 The Court also
notes that the defendant's counsel is an Omaha law firm, but that the case
was to be tried in Lincoln. Filing 1 at 1. It is the Court's experience that
hourly rates are slightly more modest in Lincoln, and the relevant
community for determining hourly rates is the place where the case is tried.
Farmers Coop., 572 F.3d at 500.
The Court calculates the reasonably incurred attorney fees as follows:
Counsel
Joshua Dickenson (partner)
Lara Pabst (associate)
Judith Heiserman (paralegal)
Total

Reasonable number Reasonable Total
of hours for work
hourly rate
12 hrs.
$240 $2,880
25 hrs.
$195 $4,875
10 hrs.
$90
$900
$8,655

Accordingly, pursuant to § 1927, the Court awards attorney fees in the
amount of $8,655, to be satisfied personally by the plaintiff's counsel.
The defendant has also moved for expenses in the amount of $2,182.20,
for expenses incurred with respect to the plaintiff's deposition: a transcript
fee and video recording of the deposition. Filing 75. As explained above, the
Court's award under § 1927 is limited to proceedings after the deposition. So,
the deposition expenses themselves will not be taxed personally to the
plaintiff's counsel. The transcript fee is a cost taxable to the losing party
under Fed. R. Civ. P. 54(d)(1). See 168th and Dodge, LP v. Rave Reviews
Cinemas, LLC, 501 F.3d 945, 958 (8th Cir. 2007). A video recording of the
deposition, however, is taxable only if it is used at trial, which obviously did
not happen in this case, and the video recording that was apparently made
was not used to support the defendant's summary judgment motion. It is,
therefore, not taxable under the Court's Bill of Costs Handbook. See, id. at 3;
NECivR 54.1; see also 168th and Dodge, 501 F.3d at 958. The transcript fee
has already been charged to the plaintiff by the Clerk of the Court. See filing
80. Therefore, no further award of costs or expenses is warranted.
The Court's task might have been simpler—and the fee award larger—had defendant's
counsel considered the fee application guidelines set forth in NECivR 54.4.
2

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IT IS ORDERED:
1.

The defendant is awarded attorney fees in the amount of
$8,655, to be satisfied personally by the plaintiff's counsel.

Dated this 3rd day of May, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

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