Jorgensen v. Trees Acquisition et al

Filing 52

MEMORANDUM DECISION and Order granting 42 Motion for Sanctions. Defendant's counsel will prepare and file an affidavit and cost memorandum detailing the reasonable expenses, including attorney fees, incurred in opposing Plain tiff's Second Motion. Defendant's counsel's filing with the court should take place on or before August 16, 2013. After Defendant's counsel's filing, Ms. Brown will then have an opportunity to respond, thereby informing the Court of her position on the issue of sanctions, as noted above. Ms. Browns response should be filed with the court on or before August 30, 2013. Signed by Magistrate Judge Paul M. Warner on 7/30/13. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH - NORTHERN DIVISION

ANDREW JORGENSEN,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 1:11-cv-98-DB-PMW

TREES ACQUISITION, INC., a Utah
corporation,
Defendant.

District Judge Dee Benson
Magistrate Judge Paul M. Warner

This matter was referred to Magistrate Judge Paul M. Warner by District Judge Dee
Benson pursuant to 28 U.S.C. § 636(b)(1)(A). 1 Before the court is Trees Acquisition, Inc.’s
(“Defendant”) second Motion for Sanctions, filed pursuant to rule 37 of the Federal Rules of
Civil Procedure. 2 The court has carefully reviewed the memoranda submitted by the parties.
Pursuant to civil rule 7-1(f) of the United States District Court for the District of Utah Rules of
Practice, the court elects to determine the motion on the basis of the written memoranda and
finds that oral argument would not be helpful or necessary. See DUCivR 7-1(f).
BACKGROUND
On December 17, 2012, Andrew Jorgensen (“Plaintiff”), by and through his counsel filed
an initial Motion to Compel Discovery with the Court (“Initial Motion”). 3 On December 31,

1

See docket no. 38.

2

See docket no. 42.

3

See docket no. 36.

2012, Defendant filed a Memorandum in Opposition to the Initial Motion. 4 Plaintiff chose not to
file a reply to the Defendant’s opposition memorandum. 5 After the date to file a reply in support
of the Initial Motion had passed, the court, as customary, began a review of the parties’
memoranda in order to make a decision. After a careful review of the memoranda and arguments
on both sides, the court issued its Memorandum Decision and Order on February 7, 2013
(“Order”). 6
The Order denied Plaintiff’s Initial Motion for a number of reasons, among them: (1) the
court determined that fact discovery had not been reopened, as Plaintiff contended; and (2), that
Plaintiff had not submitted the motion to compel “in good faith [after] confer[ing] or
attempt[ing] to confer” with Defendant. FED. R. CIV. P. 37(a)(1). The Plaintiff’s Initial Motion
was not “dismissed” as Plaintiff claims, 7 rather, the court denied the Initial Motion based on the
merits of the claims, the Federal Rules of Civil Procedure, and common-law principles regarding
discovery.
On February 15, 2013, Plaintiff filed a second Motion to Compel Discovery (“Second
Motion”) that was substantially similar to the Initial Motion. 8 This filing by Plaintiff caused
Defendant to prepare and file another Memorandum in Opposition with the court, 9 specifically to
oppose the Second Motion and to move for an award of sanctions against Plaintiff. While at
mediation concerning this matter, Plaintiff became cognizant of the fact that the court had indeed
4

See docket no. 37.

5

See docket no. 43-1.

6

See docket no. 39.

7

Docket no. 43-1.

8

See docket no. 40.

9

See docket no. 41.

2

considered the merits of the Initial Motion when issuing the Order, denying the same. Upon this
realization, Plaintiff withdrew the Second Motion. 10 Thus, Defendant’s motion for sanctions is
all that is before the court.
ANALYSIS
After careful consideration, the court concludes that sanctions should be imposed upon
Plaintiff’s counsel, Lorraine P. Brown (“Ms. Brown”). While recognizing that sanctions may not
be available under rule 37 of the Federal Rules of Civil Procedure, see Dataq, Inc. v. Tokheim
Corp., 736 F.2d 601, 605 (10th Cir. 1984) (stating that because the plaintiff voluntarily withdrew
the motion to compel discovery the court neither granted nor denied the motion, and therefore,
rule 37 “simply does not provide for an award under such circumstances”), the court elects to
impose sanctions on Ms. Brown for negligent actions in representing her client, thus burdening
taxpayers, the court system, and opposing counsel.
In Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the Supreme Court noted it is well
established that courts have inherent powers not “governed . . . by rule or statute but by the
control necessarily vested in courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Id. at 43 (quotations and citation omitted). The Chambers
Court also stated that “[a] primary aspect of that discretion is the ability to fashion an appropriate
sanction for conduct which abuses the judicial process.” Id. at 44-45; see also In re Baker, 744
F.2d 1438, 1441 (10th Cir. 1984) (stating that courts have “inherent power” to “manage their
affairs as an independent constitutional branch of government”); Mass. Sch. of Law at Andover,

10

See docket no. 43.

3

Inc. v. Am. Bar Ass’n, 914 F. Supp. 1172, 1179 (E.D. Pa. 1996) (“As part of its inherent power, a
court has wide latitude in fashioning an appropriate remedy.”).
In Baker, the Tenth Circuit noted that lawyers have a “high duty to insure the expeditious
and sound management of the preparation of cases for trial.” Baker, 744 F.2d at 1440. The Baker
court went on to state that:
[W]e are dealing with the matter most critical to the court itself: management of its
docket and avoidance of unnecessary burdens on the tax-supported courts . . . . The
primary purpose of sanctions in this context is to insure reasonable management
requirements for case preparation. The secondary purpose is to compensate opposing
parties for inconvenience and expense incurred because of any noncompliance . . . .
Id. at 1441 (emphasis added).
The court notes, that in this particular matter, there does not seem to be an act of defiance
or bad faith by Ms. Brown. Rather, by filing the Second Motion, which was substantially similar
to the Initial Motion, Ms. Brown’s actions were negligent in light of the Order. Had she carefully
reviewed the Order issued on the Initial Motion, she would have never filed the Second Motion.
Thus, Ms. Brown has unduly burdened opposing counsel, the court, and the taxpayers who
support the court by wasting time and precious resources.
Ms. Brown acknowledges that she is fully responsible for filing the Second Motion, and
that she is solely responsible for her “mistaken assumptions.” 11 The court is not persuaded by her
explanation as to why she thought the Initial Motion was “dismissed,” rather than denied on the
merits. The Order was issued in a standard manner. Also, the court is not persuaded by her
arguments that she withdrew the Second Motion as soon as she realized her mistaken assumption

11

Docket no. 45-2.

4

and, therefore, no sanctions should be imposed. At the point of Ms. Brown’s withdrawal, the
economic impact was already imposed upon Defendant.
The sanctions imposed are to apply only to Ms. Brown. See FED. R. CIV. P. 37(a)(5)(A)
(providing that “the party or deponent whose conduct necessitated the motion, the party or
attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in
making the motion, including attorney’s fees” (emphasis added)). In quoting the Baker decision,
the Tenth Circuit stated in M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869 (10th Cir. 1987),
that “[w]here sanctions are concerned, however, we have cautioned that ‘if the fault lies with the
attorneys, that is where the impact of the sanction should be lodged.’” Id. at 873 (quoting Baker,
744 F.2d at 1442). As Ms. Brown herself has noted, she and she alone is responsible for her
actions. As such, Ms. Brown is the only person that sanctions are intended for, and she alone
shall be responsible for the payment thereof. She is not to demand, ask for, or accept any aid,
assistance, or help in making the payment, specifically from her client in this matter.
In the interest of caution, and to provide Ms. Brown with an opportunity to be heard on
the issue, the court gives the following guidance. On or before August 16, 2013, Defendant’s
counsel shall file with the court an affidavit and cost memorandum detailing the reasonable
expenses, including attorney fees, incurred in opposing Plaintiff’s Second Motion. Defendant’s
counsel is not to take into consideration any time or expenses incurred in opposing the Initial
Motion. After receiving Defendant’s counsel’s affidavit and cost memorandum, Ms. Brown shall
file a written submission detailing her position as to the reasonableness of the expenses. The
court does not want further argument on the appropriateness of sanctions, as that has already
been decided. Ms. Brown will file her response with the court on or before August 30, 2013.

5

After receipt of those filings, the court will make a final determination concerning the award of
sanctions against Ms. Brown.
CONCLUSION
In summary, IT IS HEREBY ORDERED:
1.

Defendant’s Motion for Sanctions 12 is GRANTED.

2.

Defendant’s counsel will prepare and file an affidavit and cost memorandum

detailing the reasonable expenses, including attorney fees, incurred in opposing
Plaintiff’s Second Motion. Defendant’s counsel’s filing with the court should take place
on or before August 16, 2013.
3.

After Defendant’s counsel’s filing, Ms. Brown will then have an opportunity to

respond, thereby informing the Court of her position on the issue of sanctions, as noted
above. Ms. Brown’s response should be filed with the court on or before August 30,
2013.
IT IS SO ORDERED.
DATED this 30th day of July, 2013.
BY THE COURT:

________________________________
PAUL M. WARNER
United States Magistrate Judge

12

See docket no. 42.

6