Finkle et al v. Regency CSP Ventures Limited Partnership et al
Filing
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MEMORANDUM OPINION AND ORDER denying 199 Motion for Costs and Fees. Signed by U.S. District Judge Lawrence L. Piersol on 3/12/15. (SLW)
FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
MAR 12 2015
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SOUTHERN DIVISION
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PHILLIP FINKLE,
CIV 13-4019
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Plaintiff,
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-vs* MEMORANDUM OPINION AND
ORDER DENYING MOTION
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FOR COSTS AND FEES
REGENCY CSP VENTURES LIMITED *
PARTNERSHIP; U.S. HOTEL AND
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RESORT MANAGEMENT, INC.,
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Defendants.
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Plaintiff, Phillip Finkle (Finkle), moves pursuant to 28 U.S.C. § 1927 and pursuant to the
Court's inherent authority to enforce its rulings, for an award of costs and attorney's fees incurred
as a result of a mistrial in this case. Defendants resist the motion. For the following reasons, the
motion will be denied.
BACKGROUND
The parties are familiar with the facts of this case and the Court will not repeat them except
where necessary. At a hearing held on the morning of triai the Court addressed a "plethora of
motions in limine" filed by the parties. (Doc. 205 at 4.) The first two motions, filed by Finkle, were
to exclude from evidence the South Dakota Highway Patrol accident report and accompanying field
notes completed by Trooper Barrick, and any opinion or testimony from Trooper Barrick regarding
the collision, how it occurred or who was at fault. The Court noted that a Daubert hearing should
have been requested to determine whether Trooper Barrick was qualified to give expert testimony.
The Court ruled that Trooper Barrick's accident report, field notes and opinions about the cause of
the accident would be inadmissible at trial. (Doc. 205 at 5-7.) Defendants' counsel requested
clarification of the ruling:
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Your Honor, just a point of clarification. I think the Trooper is going to testify, and
there's pictures of where the skidmarks started and where it ended, and is it okay for
him to testify that he measured it and it was X distance? You're just saying the field
notes are not going to be coming into evidence?
(Doc. 205 at 7.) The Court explained:
I'm saying field notes and Exlnbit 210 [the Accident Report] aren't coming into
evidence. Yes, he can put pictures into evidence. It seems to me he could put the
length of skidmarks. Of course on cross-examination they can establish where the
skidmarks are and where they end. We really don't have it well documented. We do
know there are that many skidmarks, and he can put that in. Does that answer your
question?
(Doc. 205 at 7.) The Court also ruled that any evidence or testimony that Kathy Funk did not receive
a citation as a result of the accident would be inadmissible at trial.
During Finkle' s opening statement on that same day, his lawyer discussed Trooper Barrick' s
investigation at the scene of the accident. At one point Finkle's counsel stated, ''You're also going
to hear from Trooper Barrick who will testify, when he asked Miss Funk what happened, she didn't
mention one vehicle that was stopped in front of her, and that's why she didn't stop." (Doc. 205 at
46.) Later, during Defendants' opening statement, Defendants' counsel said: ''The highway patrol
officer interviewed both Mr. Finkle and Kathy [Funk]. The trooper completed an Accident Report,
and he did not list Kathy on the Accident Report." (Id. at 58.) Finkle objected immediately after the
statement was made and the Court sustained the objection. (Id.) When the opening statement was
completed, Finkle's counsel asked to approach the bench. He moved for a mistrial, asserting that
mentioning the accident report and saying Kathy Funk's name was not listed on the report violated
the Court's pretrial orders. (Id. at 59.) After hearing argument on the motion outside the presence
of the jury, the Court concluded that the statement violated the Court's order. (Id. at 67.) The Court
noted that stating Funk's name was not listed in the accident report gave rise to an inference that no
citation was given to her. The Court made it clear that Defendants' counsel did not intend to violate
the order prohibiting a reference to no citation. (Id. at 70, 71, 79.) The mention of the accident
report could have been cured with a jury instruction, but the Court was unable to craft an instruction
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sufficient to cure the inference from the lack of citation, and the Court granted Pinkie's motion for
a mistrial. (Id. at 79-80.) Following the mistrial and prior to the
retria~
Finkle filed the pending
motion for costs and fees.
DISCUSSION
Title 28 U.S.C. § 1927 provides that a district court "may'' require an attorney ''who so
multiplies the proceedings in any case unreasonably and vexatiously'' to pay "the excess costs,
expenses, and attorneys' fees reasonably incurred because of such conduct." The Eighth Circuit has
held that the statute permits sanctions when counsel's conduct, ''viewed objectively, manifests either
intentional or reckless disregard ofthe attorney's duties to the court." Clarkv. United Parcel Service,
Inc., 460 F.3d 1004, 1011 (quoting Tenkku v. Normandy Bank, 348 F.3d 737, 743 (8th Cir. 2003)).
The Court has substantial discretion in determining whether sanctions are appropriate. See Lee v.
First Lenders Ins. Servs., Inc., 236 F.3d 443, 445 (8th Cir. 2001). ''The imposition of sanctions is
a serious matter and should be approached with circumspection." O'Connell v. Champion Int'!
Corp., 812 F.2d 393, 395 (8th Cir. 1987). "Because section 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." Lee v. L.B. Sales, Inc., 177 F.3d 714, 718 (8th Cir. 1999) (citation and internal quotation
marks omitted).
Guided by these principles, the Court, in its discretion, will not sanction Defendants' counsel
under 28 U.S.C. § 1927. Although Defendants' counsel caused the mistrial and thereby multiplied
the proceedings, she did not do so vexatiously. The Court had ruled that the accident report, field
notes, and evidence ofTrooper Barrick's opinions would not be admissible, but that Trooper Barrick
would be allowed to testify regarding skidmarks, information that was included in his field notes.
Then, during Finkle's opening statement, his lawyer discussed Trooper Barrick's investigation at the
scene ofthe accident, and told the jury that Trooper Barrick would testify regarding what Miss Funk
told him about the accident. Finkle's opening statement invited some comments by Defendants'
counsel about Trooper Barrick' s investigation, and Defendants' counsel believed, albeit unreasonably,
that the Court's ruling allowed her to make the statement that caused the mistrial. The Court's
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evidentiary rulings on numerous issues made during the morning were followed by jury selection and
then a one hour break for lunch. Opening statements began almost immediately after the lunch break.
It was a face-paced morning during which many evidentiary issues were addressed, and there was not
a lot of time between the Court's rulings and opening statements when the reference to the
inadmissible evidence was made by Defendants' counsel. The lawyers involved in the trial zealously
represented their clients at all times. Even ifit was unreasonable for Defendants' counsel to believe
the Court's rulings allowed her statement, viewed objectively under the circumstances of this case,
counsel's error in referring to the accident report and the lack of citation does not rise to the level of
intentional or reckless disregard ofher duties to the Court as required for sanctionable conduct under
28 U.S.C. § 1927.
Furthermore, there is no evidence ofbad faith and thus the Court will not award fees or costs
under its inherent authority to enforce its orders and rulings. See Roadway Express, Inc. v. Piper,
447 U.S. 752, 765 (1980) (a finding ofbad faith would have to precede assessing attorneys' fees as
a sanction against a party under the court's inherent powers."); see also Willhite v. Collins, 459 F.3d
866, 870 (8th Cir. 2006) (award ofattorneys' fees permissible under court's inherent power ifperson
sanctioned acted in bad faith). Accordingly,
IT IS ORDERED that Plaintiff's motion for costs and fees, doc. 199, is denied.
Dated this 12th day of March, 2015.
BY THE COURT:
(l,UULAJ..
L~ScM-
wrence L. Piersol
United States District Judge
ATTEST:
JOSEPH HAAS, CLERK
BY;5muw, ~
(SEAL)~
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