SMITH v. BANK OF STANLY
Filing
63
MEMORANDUM OPINION AND RECOMMENDATION OF UNTIED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 10/8/2014 RECOMMENDING that, pursuant to Local Rule 83.4(a)(4), the Court order Plaintiff's counsel, Bruce M. Simpson of James, McElroy & Diehl, P.A., to pay Defendant $16,924.50 as a sanction for violating Local Rules 7.2(a)(2) and 26.1(b)(1).(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DANIELLE C. SMITH,
Plaintiff,
v.
BANK OF STANLY,
Defendant.
)
)
)
)
)
)
)
)
)
1:09CV951
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the undersigned Magistrate Judge in
connection with a hearing held pursuant to an Order directing
Plaintiff and her counsel to show cause why the Court should not
sanction each of them under Local Rule 83.4(a) for violating Local
Rules 7.2(a)(2) and 26.1(b)(1). (See Docket Entry 47; Docket Entry
dated July 14, 2011.)
For the reasons that follow, the Court
should require Plaintiff’s counsel - but not Plaintiff - to pay
Defendant $16,924.50 as a sanction for those violations.1
1
The Fourth Circuit recently stated, albeit in an unpublished
opinion, that a sanctions order “issued after the conclusion of the
underlying case — was not a nondispositive pretrial matter under
§ 636(B)(1)(a), and the magistrate [judge] was permitted only to
enter a Report and Recommendation subject to the district court’s
de novo review.” Reddick v. White, 456 F. App’x 191, 193-94 (4th
Cir. 2011) (emphasis added); see also 28 U.S.C. § 636(b)(1)(A)
(indicating that magistrate judges may rule on nondispositive,
pretrial matters). Under these circumstances, particularly given
that the Court has dismissed this case (see Docket Entry 46), the
undersigned Magistrate Judge will enter a Recommendation.
I.
BACKGROUND
Plaintiff’s Complaint alleged discrimination based on sex and
disability,
as
well
as
retaliation,
Americans with Disabilities Act.
under
Title
VII
and
(Docket Entry 2 at 9-10.)
the
The
undersigned Magistrate Judge recommended that the Court grant
summary judgment in favor of Defendant and order Plaintiff and her
counsel to show cause why the Court should not sanction them for
violating two provisions of the Court’s Local Rules. (Docket Entry
28 at 79.)
Specifically (as later established on the record at the
show cause hearing), Plaintiff and her counsel violated
Local Rule 7.2(a)(2) by including in her summary judgment
response brief a statement of fact asserting that
Defendant’s “story of adulterous bathroom sex has been
fabricated to try to justify further punishment
calculated
to
eliminate
its
sole
female Branch
Manager/Vice President” (Docket Entry 26 at 13), without
any citation to the record and in the absence of any
apparent evidentiary basis[, and violated] Local Rule
26.1(b)(1) by behaving in an unduly argumentative and
sarcastic manner during Plaintiff’s deposition (Docket
Entry 26-4 at 10; Docket Entry 26-8 at 7).
(Docket Entry 28 at 79-80; see also id. at 72-73 n.53 (detailing
examples of misconduct).)
The Court (per Senior United States District Judge N. Carlton
Tilley, Jr.) adopted that Recommendation and referred the action
back to the undersigned Magistrate Judge to conduct the show cause
hearing.
(Docket Entry 46 at 3; see also Docket Entry 47 at 3-4
(ordering Plaintiff to show cause why she and/or her counsel should
not face sanctions).)
At the direction of the Court (Docket Entry
-2-
47 at 3-4), Plaintiff filed a Memorandum opposing sanctions (Docket
Entry 51), Defendant responded (Docket Entry 52), and Plaintiff
replied (Docket Entry 53).
In responding to Plaintiff’s Memorandum opposing sanctions,
Defendant proposed that payment of a portion of its expenses totaling $49,818.59 - would serve as an appropriate sanction for
the violations at issue.
Entries 52-3,
52-4
(Docket Entry 52 at 5; see also Docket
(affidavits
supporting
claimed
expenses).)
Subsequently, the undersigned Magistrate Judge conducted the show
cause hearing.
(Docket Entry dated July 14, 2011.)2
At the
conclusion of the proceeding, the undersigned Magistrate Judge
determined, for reasons stated on the record, that Plaintiff’s
counsel should pay Defendant the reasonable expenses it incurred as
a result of the deposition misconduct, but took under advisement
the issue of whether the Court should similarly sanction Plaintiff.
(See id.)3
The undersigned Magistrate Judge also ordered the
Parties to make supplemental filings addressing the appropriate
2
The Clerk’s Office maintains a recording of the proceeding
documented by the Docket Entry dated July 14, 2011.
3
As discussed on the record at the show cause hearing, the
undersigned Magistrate Judge concludes that, in part due to the
difficulty of isolating the additional expenses attributable to
Plaintiff’s counsel’s unsupported statement of fact (in violation
of Local Rule 7.2(a)(2)), the Court should order payment of a
portion of Defendant’s expenses incurred in connection with
Plaintiff’s counsel’s deposition misconduct (in violation of Local
Rule 26.1(b)(1)) as a sanction for both violations.
-3-
amount of expenses Plaintiff’s counsel should pay as a sanction.
(See id.)
In that regard, Defendant submitted a Supplemental Affidavit
(Docket Entry 57), including billing records detailing expenses in
the
reduced
amount
of
$23,163.09
(Docket
Entry
57-1
at
3).
Plaintiff responded, contesting Defendant’s claimed expenses and,
further,
asserting
several
objections
to
the
imposition
of
sanctions, some of which she had raised at the show cause hearing.
(Docket Entry 58 at 1-8.)
Defendant did not reply.
(See Docket
Entries dated July 22, 2011, to present.)
II.
A.
DISCUSSION
Expense-Shifting as a Sanction for Misconduct
Under this Court’s Local Rules, the Court may issue as a
sanction “an order imposing costs, including attorney’s fees,
against the party, or the party’s attorney, who has failed to
comply with a [L]ocal [R]ule.”
M.D.N.C. R. 83.4(a)(4).
At the
hearing, and in her subsequent filing, Plaintiff argued that the
Supreme Court’s decision in Fox v. Vice, 131 S. Ct. 2205 (2011),
counseled against expense-shifting in this case. (See Docket Entry
dated July 14, 2011; Docket Entry 58 at 6-7.)
In that regard,
Plaintiff contends that “[t]he Supreme Court recognized that in
certain civil rights cases, such as the one before it, federal
statutes allow the shifting of fees and expenses, contrary to the
normal ‘American Rule’ . . . . Even in those circumstances, the
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Court said such shifting of fees should only occur in extreme
situations, such as where a plaintiff’s action is found to be
‘frivolous’ . . . .”
(Docket Entry 58 at 6-7.)
Plaintiff’s argument and reliance on Fox erroneously conflates
expense-shifting
under
civil
rights
statutes,
designed
to
compensate a plaintiff who “serves as a private attorney general,
vindicating a policy that Congress considered of the highest
priority . . . [and to] reimburse a plaintiff for what it cost him
to vindicate civil rights,” Fox, 131 S. Ct. at 2213 (internal
quotation marks and alterations omitted), with expense-shifting as
a sanction for misconduct by litigants, designed to “curb abuses,”
Business Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S.
533, 553 (1991).
Moreover, unlike expense-shifting under civil
rights statutes, “sanctions [for misconduct do not] shift the
entire cost of litigation; they shift only the cost of a discrete
event,” id.
“Indeed, there are ample grounds for recognizing that
in narrowly defined circumstances federal courts have inherent
power to assess attorney’s fees against counsel even though the
so-called ‘American Rule’ prohibits fee shifting in most cases.”
Chambers
v.
NASCO,
Inc.,
501
U.S.
32,
45
(1991)
(internal
citations, quotation marks, and alterations omitted). One of those
defined circumstances occurs “when a party shows bad faith by
delaying or disrupting the litigation . . . .”
-5-
Id. at 46.
Because the facts of this case (established at the show cause
hearing) fit within the expense-shifting rubric contemplated by
Business Guides and Chambers, Fox’s discussion of the “American
Rule” does not void the prior conclusion that the conduct of
Plaintiff’s counsel warrants imposition of a sanction requiring
payment of a portion of Defendant’s expenses.
B.
Sanctions against Plaintiff
This Court’s Local Rules provide that, “[i]f an attorney or a
party fails to comply with a [L]ocal [R]ule of this [C]ourt, the
[C]ourt may impose sanctions against the attorney or party, or
both.”
M.D.N.C. R. 83.4(a) (emphasis added).
Generally, federal
courts have deemed clients fully accountable for the conduct of
their attorneys, based on agency law.
In that regard, the Circuit
Courts of Appeals, including the Fourth Circuit, have considered
the client as the principal and the attorney as the client’s agent;
thus, the attorney’s acts bind the client.
See, e.g., Robinson v.
Wix Filtration Corp., LLC, 599 F.3d 403, 409 (4th Cir. 2010) (“As
both
the
recognized,
Supreme
a
Court
party
and
our
voluntarily
circuit
chooses
his
have
consistently
attorney
as
his
representative in the action, and, thus, he cannot later ‘avoid the
consequences of the acts or omissions of this freely selected
agent.’” (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 633-34
(1962)));
Gripe v. City of Enid, 312 F.3d 1184, 1189 (10th Cir.
2002) (“Those who act through agents are customarily bound by their
-6-
agents’ mistakes.
attorney.”).
It is no different when the agent is an
Under
this
formulation
of
the
attorney-client
relationship, a “district court[] [has the] discretion to impose
. . . sanctions [against the client] without a finding that [the
client] acted in bad faith or was herself guilty of willful
misconduct.”
Everyday Learning Corp. v. Larson, 242 F.3d 815, 817
(8th Cir. 2001).
However, a number of Circuit Courts of Appeals appear to have
softened that position, finding it unfair to sanction a client who
did not influence or participate in the attorney’s misconduct. See
Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 561 (7th Cir. 2011)
(reversing district court’s dismissal for want of prosecution where
“all of the errors appear[ed] to be the fault of [the plaintiff’s
counsel]
and
none
seems
to
have
anything
to
do
with
[the
plaintiff’s] complaint against [the defendant]”); Rentz v. Dynasty
Apparel
Indus.,
Inc.,
556
F.3d
389,
397-99
(6th
Cir.
2009)
(affirming district court’s decision to impose Rule 11 sanction
against attorney individually where client did not cause his
counsel to include unsupported and false factual allegation in
amended complaint and memorandum opposing summary judgment); Tenkku
v. Normandy Bank, 348 F.3d 737, 743-44 (8th Cir. 2003) (modifying
district court’s sanctions order where client had no role in her
counsel’s violation of Rule 11 and vexatious multiplication of
proceedings, such that entire sanction fell on counsel); Shepherd
-7-
v. American Broad. Cos., Inc., 62 F.3d 1469, 1484 (D.C. Cir. 1995)
(“Like other courts, we disfavor sanctioning a party for counsel’s
misconduct unless the party itself is somehow implicated.”).
The Fourth Circuit has not directly articulated the standard
district courts should employ when considering a sanction against
a client for attorney misconduct.
affirmed
the
district
court’s
In one case, the Fourth Circuit
decision
not
to
sanction
the
plaintiffs (in addition to their counsel) for Rule 11 violations,
because “[t]he record reveal[ed] that, on advice of their lawyers,
they instituted the action [and,] [t]hereafter, they [were] shown
to have participated in no significant, active way, leaving to the
advice of counsel all decisions.” Bakker v. Grutman, 942 F.2d 236,
242 (4th Cir. 1991). Similarly, the Fourth Circuit recently noted,
in determining that a district court intended to sanction an
attorney (but not his client) for misbehavior during a deposition
when the district court used the term “[p]laintiffs,” that “the
[district] court focused entirely on the conduct of [the attorney]
without suggesting any complicity or fault on the part of his
clients.”
Sartin v. McNair Law Firm, PA, 756 F.3d 259, 266 (4th
Cir. 2014).
The Fourth Circuit further added that “the conduct
that drew the [district] court’s ire — [the attorney’s] handling of
discovery — was not the type of conduct in which [the attorney’s]
clients would typically participate.”
-8-
Id. at 266-67.
Conversely, in another recent case, the Fourth Circuit, citing
agency-law principles, affirmed - by a divided panel - a district
court’s entry of summary judgment (and its denial of post-judgment
relief) against
a
plaintiff
whose
attorney
response in opposition to summary judgment.
408-11.
failed
to
file
a
Robinson, 599 F.3d at
In contrast, the dissenting judge in that case cited that
court’s “longstanding recognition that ‘the sanctions for attorney
neglect should be borne if at all possible by the attorney himself
rather than by his client.’”
Id. at 421 (King, J., dissenting)
(citing Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir. 1978)).
Given the foregoing guidance from the Fourth Circuit, this
Court has the discretion to sanction Plaintiff for her attorney’s
misconduct pursuant to agency law, but it may decline to impose
such a sanction if Plaintiff played an insubstantial role in the
sanctionable conduct.
Such an interpretation accords with the
Local Rules, which provide that “the imposition of sanctions for
violation of a [L]ocal [R]ule is discretionary with the [C]ourt
. . . . [and that] the [C]ourt may consider . . . whether other
circumstances make the imposition of sanctions inappropriate.”
M.D.N.C. R. 83.4(b); see also Blue v. United States Dep’t of Army,
914 F.2d 525, 538 (4th Cir. 1990) (“A district court’s decision to
impose sanctions is entitled to substantial deference.
A district
court is in the best position to review the factual circumstances
and render an informed judgment as it is intimately involved with
-9-
the case, the litigants, and the attorneys on a daily basis.”
(internal citations, quotation marks, and alteration omitted)). In
other words, a client’s lack of involvement in the sanctionable
conduct may
constitute
a
circumstance
rendering inappropriate
sanctions on the client.
A
review
of
the
record
does
not
support
the
view
that
Plaintiff played a culpable role in her attorney’s violations of
the Local Rules.
As to the violation of Local Rule 7.2(a)(2), the
decision to include in a brief the unsupported assertion that
Defendant fabricated a story to discredit Plaintiff - like the
“handling of discovery — was not the type of conduct in which
clients would typically participate,” Sartin, 756 F.3d at 266-67;
see also Rentz, 556 F.3d at 397-99 (affirming district court’s
decision to sanction attorneys and not client for inclusion of
unsupported
statement
of
fact
in
memorandum
opposing
summary
judgment, despite client’s active participation in litigation). In
the absence of evidence that Plaintiff encouraged her counsel to
include
that
statement,
said
violation
reflects
a
lapse
in
professional judgment by an attorney not easily attributable to a
client, particularly one like Plaintiff without prior experience as
a party to litigation (see Docket Entry 26-3 at 3).
Similarly,
the
record
does
not
establish
that
Plaintiff
encouraged her attorney to behave in a rude and abusive manner
during the deposition on October 20, 2011, in violation of Local
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Rule 26.1(b)(1).
Although, as noted on the record at the show
cause hearing, Plaintiff engaged in obstreperous conduct during her
deposition on October 19, 2010, she lacked any prior experience
giving a deposition (id.) and, further, her counsel appeared to
encourage
the
evasions
(see,
e.g.,
Docket
Entry
26-6
at
69
(“[PLAINTIFF’S COUNSEL]: Maybe if you won’t be quite as assertive
and argumentative and angry when [Plaintiff] says something and
challenge her so much about it, maybe it will be a little easier
for her to talk about her situation.”)).
Finally, Plaintiff’s
behavior at her deposition did not cause her attorney to behave in
a rude and sarcastic manner.
See Warner v. DSM Pharma Chems. N.
Am., Inc., Nos. 1:07CV302, 1:07CV312, 2009 WL 1347162, at *5 (W.D.
Mich. May 13, 2009) (unpublished) (“[A]ttorneys are expected to
stand back from the heat of battle and to make dispassionate
decisions.”), aff’d, 452 F. App’x 677 (6th Cir. 2011); Johnson v.
TCB Constr. Co., Inc., No. 2:05CV370(DCB)(JMR), 2007 WL 37769, at
*2 (S.D. Miss. Jan. 4, 2007) (unpublished) (“[A]ttorneys are
expected to keep in check their own behavior to ensure that they
are conducting themselves in a manner that would maintain the honor
of the legal profession and our system of justice.”).
In sum, taking account of all the relevant considerations, the
Court
should
not
impose
any
individually.
-11-
sanction
against
Plaintiff
C.
Amount of Monetary Sanction against Plaintiff’s Counsel
Defendant’s Supplemental Affidavit details expenses totaling
$23,163.09.
(Docket Entry 57-1 at 3.)
Defendant reportedly
incurred these expenses in connection with the deposition it could
not complete on October 20, 2010, the rescheduled deposition on
November 9-10, 2010, and the show cause process.
at 2-5.)
(Docket Entry 57
In response, Plaintiff’s counsel objects to a number of
Defendant’s claimed expenses as not resulting from the misconduct
at issue and challenges other claimed expenses as unreasonable and
excessive.
(See Docket Entry 58 at 2, 5-8.)
First, Plaintiff’s counsel contests Defendant’s inclusion of
expenses associated with the deposition of Plaintiff that occurred
on October 19, 2010, prior to the misconduct of Plaintiff’s counsel
at the deposition on the following day.
(Id. at 2.)
Similarly,
Plaintiff’s counsel objects to various incidental expenses.
(Id.)
Ultimately, any expenses incurred on October 19-20, 2010, did not
arise from the behavior of Plaintiff’s counsel, because Defendant
would have incurred similar expenses had the depositions proceeded
properly.
As a result, the expenses for the additional days of
depositions in November - which the misconduct of Plaintiff’s
counsel actually necessitated - would reflect a more appropriate
sanction. Therefore, the Court should exclude all expenses for the
depositions on October 19-20, 2010 (totaling $6,238.59), leaving a
sanction amount of $16,924.50.
-12-
Plaintiff’s counsel, however, also challenges the inclusion of
any expenses for the depositions of November 9-10, 2010, because
“it seems that hardly any of those costs should be considered to be
associated with or caused by the matters which are the subject of
the Show Cause Order.”
Plaintiff’s
counsel
(Id. at 5.)
seeks
to
In objecting in this fashion,
re-litigate
issues
adequately
addressed at the show cause hearing, including by attempting to
assign blame to defense counsel for Plaintiff’s counsel’s own
misbehavior.
(See id.)
Having already considered such arguments
on the record at the show cause hearing (see Docket Entry dated
July 14, 2011), the undersigned Magistrate Judge declines to
revisit them. Simply put, the Court should not order any reduction
in expenses claimed for the depositions on November 9-10, 2010.
Next, Plaintiff’s counsel opposes Defendant’s inclusion of the
costs
of
expedited
deposition
transcripts,
claiming
that
“[e]xpedited transcripts are a luxury that [] Defendant chose.”
(Docket Entry 58 at 2; see also id. at 5 (noting that Defendant
also claims expedited transcript fees for the depositions on
November
9-10,
2010).)
However,
given
the
timing
of
those
depositions in relation to the deadline for dispositive motions,4
4
The discovery deadline actually fell on October 17, 2010
(see Docket Entry 18 at 1), with dispositive motions due 30 days
later, see Fed. R. Civ. P. 56(b); M.D.N.C. R. 56.1(b). The Parties
apparently conducted depositions beyond the discovery deadline by
agreement due to various scheduling conflicts. (See Docket Entry
19 at 6-10; Docket Entry 21-1 at 1.)
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Defendant’s
election
to
obtain
expedited
transcripts
appears
reasonable and the Court should not order any reduction of expenses
in that regard.
See Ford v. Zalco Realty, Inc., 708 F. Supp. 2d
558, 562 (E.D. Va. 2010) (allowing inclusion of costs for expedited
transcripts in civil rights expense award when deposition occurred
within one month of filing of summary judgment brief).
As a final matter, Plaintiff’s counsel generally objects to
the expenses claimed by Defendant as “exceed[ing] the minimum
amount reasonably calculated to deter the conduct that is the
subject of the Show Cause Order, . . . disproportionate to the
severity of the violation asserted, and [] not justified based on
history and experience.”
(Docket Entry 58 at 7.)
In support of
that argument, Plaintiff cites to a Fourth Circuit case for the
proposition that a district court considering the appropriate Rule
11 sanction must evaluate several factors (see id. at 7-8): “(1)
the reasonableness of the opposing party’s attorney’s fees; (2) the
minimum to deter; (3) the ability to pay; and (4) factors related
to the severity of the Rule 11 violation,” In re Kunstler, 914 F.2d
505, 523 (4th Cir. 1990).
In that case, the Fourth Circuit
reversed sanctions against three attorneys totaling $122,834.28, in
large part because the district court did not afford the sanctioned
individuals
the
opportunity
to
challenge
sanctions, as well as the sanction amount.
the
propriety
of
Id. at 523-34.
In
contrast, this Court has provided Plaintiff’s counsel adequate
-14-
opportunities to challenge the appropriateness of sanctions through
briefing and the show cause hearing, as well as the opportunity to
challenge the amount of any sanction.
Further, although Plaintiff’s counsel asserts in a conclusory
fashion that “a sanction of the magnitude sought would tend to
chill the prospect of similar plaintiffs being able to obtain
representation and effectively pursue claims of the type involved”
(Docket Entry 58 at 8), the recommended sanction, in fact, would
serve the purpose of addressing and deterring particular forms of
misconduct without regard to the nature of any particular type of
litigation.
Plaintiff’s counsel has identified no basis on which
the Court could conclude that a sanction for rude and abusive
behavior
would
litigation.
have
any
chilling
(See id. at 7-8.)
effect
on
any
appropriate
To the extent Plaintiff’s counsel
contends “that
special treatment of sanctions should be given to
attorneys
handle
who
unpopular
civil
rights
[or
employment
discrimination] claims, . . . [the Court should] reject this claim
out of hand.
All attorneys are to be held to the same standards of
conduct, no matter who their clients are.”
Oliveri v. Thompson,
803 F.2d 1265, 1280 (2d Cir. 1986).
Moreover, Plaintiff’s counsel has offered no support for the
contention that the sum involved represents an excessive amount in
proportion to the severity of the violations (see Docket Entry 58
at
7-8)
and
a
review
of
sanctions
-15-
imposed
under
similar
circumstances
confirms
the
reasonableness
of
the
recommended
sanction, see, e.g., In re First City Bancorporation of Tex., Inc.,
282 F.3d 864, 865 (5th Cir. 2002) (affirming imposition of $25,000
sanction
against
attorney
where
“[h]is
attitude
and
remarks
. . . were - to understate his conduct - obnoxious”); GMAC Bank v.
HFTC Corp., 252 F.R.D. 253, 254, 257, 265 (E.D. Pa. 2008) (denying
motion for reconsideration as to sanctions totaling $29,322.61
imposed against attorney and client for client’s abusive behavior
during deposition).
In addition, Plaintiff’s counsel apparently
ignores the fact that the recommended sanction shifts only expenses
related to his deposition misconduct and thus does not include any
additional consequence for his unsupported statement of fact in
Plaintiff’s brief opposing summary judgment.
at 5-8.)
(See Docket Entry 58
Finally, the misconduct by Plaintiff’s counsel merits a
substantial sanction because, for our court systems to function
appropriately, litigants and their counsel must behave civilly.
See, e.g., Huggins v. Coatesville Area Sch. Dist., Civ. A. No. 074917,
2009
WL
2973044,
at
*3
(E.D.
Pa.
Sept.
16,
2009)
(unpublished) (“Treating an adversary with advertent discourtesy,
let alone calumny or derision, rends the fabric of the law.”);
Freeman
v.
Schointuck,
192
F.R.D.
187,
189
(D.
Md.
2000)
(“[S]ystemic and deliberate abuses such as displayed by [the]
[d]efendants’
counsel
during
[the]
deposition
cannot
go
unsanctioned as they are destructive of the very fabric which holds
-16-
together the process of pretrial discovery - cooperative exchange
of information without the need for constant court intervention.”).
Given the pertinent circumstances, including the continued
failure of Plaintiff’s counsel to accept full responsibility for
his
misconduct,
expense-shifting
in
the
amount
of
$16,924.50
represents a reasonable and proportional sanction.
III.
The
established
CONCLUSION
violations
26.1(b)(1) warrant sanctions.
of
Local
Rules
7.2(a)(2)
and
However, given the lack of evidence
of Plaintiff’s direct culpability for such misconduct, the Court
should
assess
a
sanction
against
Plaintiff’s
counsel
only.
Accordingly, as provided by Local Rule 83.4(a)(4), the Court should
order Plaintiff’s counsel to pay certain of Defendant’s expenses to
address the violations.
IT IS THEREFORE RECOMMENDED that, pursuant to Local Rule
83.4(a)(4), the Court order Plaintiff’s counsel, Bruce M. Simpson
of James, McElroy & Diehl, P.A., to pay Defendant $16,924.50 as a
sanction for violating Local Rules 7.2(a)(2) and 26.1(b)(1).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 8, 2014
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