Genoa National Bank v. Odette et al

Filing 80

MEMORANDUM AND ORDER that GNB's Application for Attorney's Fees and Expenses, 76 is granted in part, and GNB is entitled to an award of attorney's fees and expenses against Odette in the total amount of $1,923.61. Ordered by Judge Joseph F. Bataillon. (DKM, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GENOA NATIONAL BANK,
Plaintiff,
vs.
RONALD V. ODETTE and
RONALD V. ODETTE FAMILY
LIMITED PARTNERSHIP,
Defendants.

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8:10CV438

MEMORANDUM AND ORDER

This matter is before the court on the plaintiff’s “Application for Attorney’s Fees and
Expenses,” Filing No. 76. For the following reasons, the plaintiff’s application will be
granted in part.
I. BACKGROUND
Plaintiff Genoa National Bank (GNB) filed a four-count complaint against
Defendants Ronald V. Odette (Odette) and the Ronald V. Odette Family Limited
Partnership (Odette Family LP). See Filing No. 1. After noting that GNB had failed to
establish that the parties were citizens of different states, the court ordered GNB to show
cause why its complaint should not be dismissed for lack of subject matter jurisdiction. See
Filing No. 57. GNB obtained leave to take Odette’s deposition in order to establish his
state of citizenship, see Filing Nos. 58, 62, but Odette failed to appear, see Filing Nos. 65,
66. GNB then prepared a response to the show cause order without the benefit of
deposing Odette, see Filing Nos. 67, 68, and moved for sanctions under Federal Rule of
Civil Procedure 37, see Filing No. 65. After carefully considering GNB’s motion for
sanctions, the court determined “that an award of ‘reasonable expenses, including

attorney’s fees,’” would be appropriate, and it invited GNB to apply for such an award.
Mem. & Order at 4, Filing No. 69 (quoting Fed. R. Civ. P. 37(d)(3)). On February 9, 2012,
GNB submitted an application for an award of $3,627.50 in attorney’s fees and $183.23
in expenses. See Filing Nos. 76, 77. Odette has not responded to the application, though
he has had ample opportunity to do so.
II. DISCUSSION
A. Law
Federal Rule of Civil Procedure 37(d) states that if a party fails to appear for his
deposition after being served with proper notice, “the court must require the party failing
to act, 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.” Thus, the rule “authorizes an award
encompassing ‘all expenses, whenever incurred, that would not have been sustained had
the opponent conducted itself properly.’” Comiskey v. JFTJ Corp., 989 F.2d 1007, 1012
(8th Cir. 1993) (quoting In re Stauffer Seeds, Inc., 817 F.2d 47, 50 (8th Cir. 1987)). “Rule
37 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.’” Roadway Express, Inc. v. Piper, 447 U.S.
752, 763-64 (1980) (quoting National Hockey League v. Metropolitan Hockey Club, 427
U.S. 639, 643 (1976)).
B. Analysis
The court finds that GNB is not entitled to recover the entire award requested in its
application.
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First, the court must deny GNB’s requests to recover the fees of paralegal Sandi L.
Armstrong, who performed 2.1 hours of work at an hourly rate of $125 (for a total of
$262.50), and the fees of attorney Donald L. Swanson, who performed 0.3 hours of work
at an hourly rate of $290 (for a total of $87). See Pl.’s Evid. Index, Ex. 1-A at 1-3, Filing
No. 77-1. GNB has failed to “identify the status and background” of these people with
sufficient detail to allow the court to determine whether the hourly rates are reasonable.
See NECivR 54.4(a)(2).1 Thus, the award will be reduced by $349.50.
Next, and more problematically, GNB’s fee application includes a number of
requests for expenses that were not “caused by” Odette’s failure to attend the deposition,
and are therefore not recoverable. For example, GNB would have incurred expenses
preparing for and attending Odette’s scheduled deposition even if Odette had appeared.
See Pl.’s Evid. Index, Ex. 1-A at 1, Filing No. 77-1. See also Makohoniuk v. Central Credit
Services, Inc., No. 4:09-cv-00185, 2010 WL 3633862, at *1-2 (S.D. Iowa Sept. 8, 2010)
(explaining that expenses and fees for deposition preparation and travel could not be
included in Rule 37(d) award because they were not caused by the plaintiff’s failure to
appear). Also, it appears that GNB seeks to recover all of the expenses associated with
the preparation of its response to the show cause order, even though Odette’s appearance
at the deposition would not have fully eliminated the need to file that response.
The court turns first to the issues of deposition preparation and attendance. The
fee application includes only one entry that concerns these matters. See Pl.’s Evid. Index,
Ex. 1-A at 1, Filing No. 77-1. The entry is compound, however; it also lists time spent

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Jam es F. Cann’s qualifications and experience are described in his affidavit, see Pl.’s Evid. Index,

Ex. 1, Cann Aff.

¶ 7, Filing No. 77-1, and the court finds that his hourly rate of $220 is reasonable.
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“mak[ing] a record of no-show appearance.” Id. Although the court finds that GNB should
be able to recover the expenses it incurred making a record of Odette’s failure to appear,
see Makohoniuk, 2010 WL 3633862, at *2, the court cannot separate the amount of time
spent on this task from that spent on deposition preparation and attendance. As a result,
the entire entry will be stricken, and the fee award will be reduced by $176.
The majority of the remaining entries listed in the “attorney’s fees” portion of the
application concern the preparation of the motion for sanctions, the preparation of the
response to the show cause order, and specific tasks that are likely associated with the
latter, see, e.g., Pl.’s Evid. Index, Ex. 1-A at 1, Filing No. 77-1 (listing the task “Review
voter registration data.”). The court finds that GNB is entitled to recover the expenses
incurred preparing the motion for sanctions; however, each one of the entries that involves
work on the motion for sanctions is compounded with tasks associated with the response
to the show cause order. See Pl.’s Evid. Index, Ex. 1-A at 1-3, Filing No. 77-1 (entries
dated 12/14/11, 12/28/11, 12/29/11, and 12/30/11). Because the court cannot disentangle
the entries, all of them will be considered jointly (with the exception of the 2/07/12 entry
concerning the preparation of the application for attorney’s fees).2
It is impossible to know with any degree of certainty whether Odette’s participation
in the deposition would have reduced the amount of work that GNB was required to devote
to the preparation of the show cause order. If Odette’s testimony established that he was
an Oklahoma citizen at the time of the filing of the complaint, GNB’s burden would have

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GNB requests a total fee of $440 for the preparation of the application for attorney’s fees and
expenses. See Pl.'s Evid. Index, Ex. 1-A at 3, Filing No. 77-1. This request is reasonable, and it will be
granted.
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been greatly eased. If Odette testified otherwise, however, it is likely that GNB would have
been unable to avoid devoting significant work to the citizenship question.3 In the interests
of judicial economy, and in order to best promote the letter and spirit of Rule 37, the court
will reduce by half each of the entries that, in its judgment, relate to the preparation of the
response to the show cause order (and have not already been stricken). This results in a
$1,331 reduction.4
One final set of adjustments remain to be made. GNB’s expense itemization
includes a $3 charge for a “Driving Record” from the Nebraska Department of Motor
Vehicles. See Pl.’s Evid. Index, Ex. 1-A at 3, Filing No. 77-1. The expense is dated
12/07/11, which predates Odette’s failure to appear at his deposition on December 14,
2011. Thus, it cannot be said that this expense was caused by Odette’s failure to appear,
and the award must be reduced by $3. Of the remaining expenses, the court reporter’s fee
is fully recoverable.

See Makohoniuk, 2010 WL 3633862, at *2 (“Costs and fees

associated with making a record at the aborted deposition, including the costs of the court
reporter . . . are recoverable.”). The others are not clearly related to any particular task,
however, and therefore the court will reduce each of them by half. This results in a further
reduction of $27.62
In summary, the court finds that GNB’s request for $3,810.73 must be reduced by
$1,887.12, which results in an award of $1,923.61. As Odette is not represented by
counsel, he is personally responsible for paying the award. Accordingly,

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The court notes in passing that O dette continues to m ake representations that he is not an
Oklahom a citizen. See generally Filing No. 75.
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This total was calculated as follows: ($616 + $44 + $594 + $44 + $44 + $968 + $242 + $110) / 2.
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IT IS ORDERED that GNB’s Application for Attorney’s Fees and Expenses, Filing
No. 76, is granted in part, and GNB is entitled to an award of attorney’s fees and expenses
against Odette in the total amount of $1,923.61.
DATED this 30th day of March, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
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