Martin v. SGT Inc et al

Filing 195

MEMORANDUM DECISION and order: Martin's 179 Motion for Reconsideration or Relief from Judgment is DENIED and SGT is awarded $205,310.29 in attorneys' fees and expenses. Signed by Judge Robert J. Shelby on 05/22/2023. (jl)

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6030 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CHRISTINE MARTIN,
Plaintiff,
v.
SGT, INC. f/k/a TGT, INC., a Wyoming
corporation,
Defendant.

MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION
OR RELIEF FROM JUDGMENT AND
GRANTING IN PART DEFENDANT’S
REQUEST FOR ATTORNEYS’ FEES
AND EXPENSES
Case No. 2:19-cv-00289-RJS
Chief Judge Robert J. Shelby

On December 28, 2022, the court granted terminating sanctions and an award of
attorneys’ fees and expenses for Defendant SGT, Inc. after concluding Plaintiff Christine Martin
had altered and deleted material evidence. 1 Now before the court are SGT’s requests for
attorneys’ fees and expenses, 2 and Martin’s Motion for Reconsideration or Relief from
Judgment, requesting reconsideration of the court’s attorney fee sanction. 3 For the reasons
explained herein, Martin’s Motion is DENIED and SGT’s requested attorneys’ fees and expenses
are GRANTED IN PART.

1

Dkt. 142, Memorandum Decision and Order Granting Defendant’s Renewed Third Motion for Sanctions.

Dkt. 147, Defendant’s Brief in Support of Attorneys’ Fees and Expenses; Dkt. 188, Defendant’s Supplemental
Brief in Support of Attorneys’ Fees.

2

3

Dkt. 179.

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6031 Page 2 of 37

BACKGROUND AND PROCEDURAL HISTORY 4
Martin filed this action alleging SGT exceeded the scope of a license to use her artwork,
thereby breaching an oral contract between the parties. 5 After protracted discovery mired by
Martin’s misconduct and “scattershot” document productions, 6 the court was alerted to
uncontroverted evidence that she had altered and destroyed material evidence concerning the
parties’ oral contract. 7 After reviewing the evidence, the court found—by clear and convincing
evidence—that Martin had altered a July 2018 email to the owner of SGT, Timothy Tasker, by
adding language helpful to her position, which was then forwarded to her counsel. 8 The court
further found that Martin had “deleted all other copies [of the email] in her possession which
could be used to undermine her forgery,” violating her obligation to retain materials related to
the litigation. 9 “By altering and destroying material evidence,” the court concluded that Martin
had “undermined the discovery process, her own credibility, the authority of the court, and the
legitimacy of this litigation—which she initiated.” 10
In light of Martin’s repeated discovery abuses and the misconduct surrounding the July
2018 email, the court determined “serious sanctions” were warranted. 11 On December 28, 2022,

The court assumes the parties’ familiarity with the facts and procedural history of this long-running dispute, which
has been detailed at length in previous court orders. See, e.g., Dkt. 142 at 2–15; Dkt. 120, Order Overruling
Plaintiff’s Objection to Order Granting Sanctions at 1–7; Dkt. 77, Order Granting Defendant’s Second Motion for
Sanctions at 1–3. Therefore, the court will reiterate only the facts and procedural history relevant to the parties’
latest briefings.
4

5

See Dkt. 2, Complaint and Jury Demand.

6

See Dkt. 142 at 1–11.

7

See id. at 11–15.

Whereas the unaltered email stated that Tasker was “buying intellectual property,” Martin’s subsequent production
of the email stated he was “buying use of intellectual property,” thereby supporting her contention that SGT had
only purchased a license to use her artwork. See id. at 11–15, 26–32.
8

9

Id. at 30.

10

Id. at 32.

11

Id.

2

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6032 Page 3 of 37

the court therefore granted SGT’s Renewed Third Motion for Sanctions 12 and terminated
Martin’s lawsuit with prejudice. 13 Additionally, the court determined SGT was entitled to an
award of reasonable expenses associated with Martin’s discovery misconduct and spoliation
pursuant to Federal Rule of Civil Procedure 37(b)(2)(C), which was assessed against Martin
personally. 14
The court’s December 28, 2022 Order prompted a flurry of activity by Martin and her
counsel. First, on January 11, 2023, Martin’s counsel 15 attempted to discontinue representation
by filing a Notice of Withdrawal of Counsel. 16 Because the withdrawal would leave Martin
unrepresented even as she faced a substantial attorney fee sanction, the court directed counsel to
comply with the withdrawal procedures of Local Rule 83-1.4(c). 17 However, shortly thereafter,
Martin obtained new counsel from the law firm of Zimmerman Booher, 18 and promptly filed a
Notice of Appeal with the United States Tenth Circuit Court of Appeals. 19 In particular, Martin
appealed the court’s “December 28, 2022 Judgment in a Civil Case . . . [and] all subsidiary
rulings and orders leading to final judgment.” 20 Given the appearance of her new counsel, the
court granted Martin’s former counsels’ request for leave to withdraw from representation. 21

12

Dkt. 126.

13

Dkt. 142 at 44.

14

Id. at 42–44.

At the time, Martin’s counsel consisted of Timothy B. Smith, Paul R. Smith, and Elena T. Vetter, all with the law
firm of Parsons Behle & Latimer and formerly with the now-defunct law firm of Jones Waldo Holbrook &
McDonough. Hereafter, they will be referred to as her “former counsel.”
15

16

Dkt. 146.

17

See Dkt. 150, Notice of Deficiency at 1 (citing DUCivR 83-1.4(c)).

See Dkt. 154, Notice of Appearance by Troy L. Booher; Dkt. 155, Notice of Appearance by Caroline Anais Olsen;
Dkt. 156, Notice of Appearance of Dick J. Baldwin.

18

19

Dkt. 157.

20

Id.

21

See Dkt. 164, Order Granting Motion to Withdraw as Counsel.

3

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6033 Page 4 of 37

While her appeal was pending, Martin responded to SGT’s fee application 22 by arguing,
among other things, that former counsel should pay for SGT’s attorneys’ fees and expenses
“because the sanctions arose from counsel’s conduct.” 23 She also claimed the spoliation of
evidence “was an unfortunate accident” potentially caused by her “severe dyslexia . . . and
processing disorder,” rather than “an attempt to tamper with evidence.” 24 SGT disputed Martin’s
post hoc theory for the spoliation of the July 2018 email and challenged her argument as
procedurally improper. 25 Following SGT’s objections, Martin submitted the present Motion for
Reconsideration or Relief from Judgment under Federal Rules of Civil Procedure 54(b) and
60(b)(6), respectively, “to provide a procedural vehicle by which the court can exercise its
discretion and impose attorney fee sanctions on prior counsel, rather than on [her].” 26
In the following weeks, the Tenth Circuit abated Martin’s appeal, “[i]n the interest of
judicial economy,” pending this court’s “decision regarding the amount of attorney’s fees and
costs” owed to SGT. 27 Additionally, the court received extensive briefing from SGT, 28 Martin, 29
and former counsel 30 concerning the reasonableness of SGT’s fee request and Martin’s argument

22

Dkt. 147.

Dkt. 175, Plaintiff’s Opposition to Defendant’s Brief in Support of Attorneys’ Fees and Expenses at 1. Martin’s
first Opposition, Dkt. 169 [SEALED], contained confidential content covered by the Standard Protective Order. See
Dkt. 174, Plaintiff’s Motion to Seal. Accordingly, Martin moved to seal her filing and then refiled the redacted
Opposition as Dkt. 175. Based on the foregoing, the court exclusively references Martin’s redacted Opposition at
Dkt. 175.
23

24

Dkt. 175 at 6.

See Dkt. 176, Defendant’s Objections to Plaintiff’s New Evidence and Reply in Support of Attorneys’ Fees and
Expenses at 5–12.

25

26

Dkt. 179 at 2.

27

See Dkt. 190-4, Exhibit D: Order, Martin v. SGT, Inc., No. 23-4011.

28

See Dkt. 186, Defendant’s Opposition to Plaintiff’s Motion for Reconsideration or Relief from Judgment.

See Dkt. 190, Plaintiff’s Reply in Support of Motion for Reconsideration or Relief from Judgment; Dkt. 192,
Response to Defendant’s Supplemental Brief in Support of Attorneys’ Fees; Dkt. 193, Plaintiff’s Response to Her
Former Counsel’s Brief Relating to Defendant’s Request for Attorneys’ Fees.

29

30

See Dkt. 191, Plaintiff’s Former Counsel’s Brief Relating to Defendant’s Request for Attorneys’ Fees.

4

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6034 Page 5 of 37

that the court should shift the attorney fee sanction to former counsel. Moreover, SGT filed a
second fee request “for the work it performed post-judgment to recover the fees [previously]
awarded to it.” 31 Upon full consideration of the parties’ briefing, oral argument concerning
Martin’s Motion was heard on May 2, 2023, 32 and the matter taken under advisement. For the
reasons discussed below, the court DENIES Martin’s Motion for Reconsideration or Relief from
Judgment and GRANTS IN PART SGT’s requested attorneys’ fees and expenses.
LEGAL STANDARDS
Martin proceeds under Rules 54(b) and 60(b)(6), which allow parties to request
reconsideration of a prior court order or relief from a judgment or order, respectively. Although
not formally recognized by the Federal Rules of Civil Procedure, motions for reconsideration are
generally construed under either Rule 54(b) or Rule 60(b), depending on when the motion is
filed. 33 Motions for reconsideration filed before entry of final judgment are construed under
Rule 54(b), whereas motions for relief filed more than ten days after judgment are generally
construed under Rule 60(b). 34 Because there is some ambiguity regarding the finality of the
court’s December 28, 2022 Order and Judgment, 35 Martin moves for relief under both Rules,
with Rule 54(b) as her primary procedural vehicle and Rule 60(b) as her alternate. 36

31

Dkt. 188 at 2.

32

See Dkt. 194, Minute Entry for Proceedings on May 2, 2023.

33

See Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005) (citing Fed. R. Civ. P. 59(e), 60(b), and 54(b)).

See Gale v. Uintah Cnty., No. 2:13-cv-725-RJS-DBP, 2021 U.S. Dist. LEXIS 193345, at *5 (D. Utah Oct. 5,
2021) (discussing the distinction between Rule 54(b) and Rule 60(b) motions).
34

The “question of finality” has been referred to the Tenth Circuit panel assigned to consider Martin’s appeal, and
thus the court will not opine on the finality of its December 28, 2022 Order and Judgment. See Dkt. 190-4 at 2.
35

Dkt. 179 at 3 (“[O]ut of an abundance of caution, [] Martin alternatively seeks relief under rule 60(b)(6), due to
the extraordinary circumstances relating to the relief she seeks.”).

36

5

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6035 Page 6 of 37

Motions for reconsideration under Rule 54(b) may only be granted based on the
availability of new evidence, an intervening change in the controlling law, or the need to correct
clear error or prevent manifest injustice. 37 A motion for reconsideration therefore may be
granted only where “the court has misapprehended the facts, a party’s position, or the controlling
law” 38—that is, “extraordinary circumstances.” 39 Importantly, motions to reconsider are
improper when used to “revisit issues already addressed or advance arguments that could have
been raised in prior briefing.” 40
Rule 60(b), by contrast, “permits a party to seek relief from a final judgment, and request
reopening of [the] case, under a limited set of circumstances.” 41 Martin’s specific ground for
relief comes under Rule 60(b)(6), which affords courts “a grand reservoir of equitable power to
do justice in a particular case.” 42 Relief under this subsection “is appropriate only when
circumstances are so unusual or compelling that extraordinary relief is warranted or when it
offends justice to deny such relief.” 43 Generally, the situation must be one beyond the control of

Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995); see also Pia v. Supernova Media,
Inc., No. 2:09-cv-840-DN-EJF, 2014 U.S. Dist. LEXIS 175028, at *4 (D. Utah Dec. 18, 2014) (“There are three
scenarios in which a litigant may successfully argue for reconsideration: when (1) substantially different, new
evidence has been introduced; (2) subsequent, contradictory controlling authority exists; or (3) the original order is
clearly erroneous.” (internal quotation marks and citations omitted)).
37

Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (explaining the nearly identical Rule
59(e) motion for reconsideration standard).

38

39

Van Skiver v. United States, 952 F.2d 1241, 1244–45 (10th Cir. 1991).

40

Servants of the Paraclete, 204 F.3d at 1012.

41

Kemp v. United States, 142 S. Ct. 1856, 1861 (2022) (internal quotation marks and citation omitted).

42

Cashner v. Freedom Stores, Inc., 98 F.3d 572, 579 (10th Cir. 1996).

43

Christ Ctr. of Divine Phil., Inc. v. Elam, 831 F. App’x 903, 905 (10th Cir. 2020).

6

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6036 Page 7 of 37

the party requesting relief under Rule 60(b)(6) to warrant relief. 44 It is “not intended to allow a
party to present its argument on the merits as many times as it takes to get it right.” 45
ANALYSIS
I.

Martin’s Motion for Reconsideration or Relief from Judgment
A. Martin’s Motion Must Be Construed Under Rule 60(b)
The court first addresses whether Martin’s Motion should be construed under Rule 54(b),

as she asserts, or Rule 60(b)(6). As prefaced above, the finality of the court’s December 28,
2022 Order and Judgment is unclear under Tenth Circuit case law, so Martin moves for relief
under both Rules. 46 But she maintains that “[w]hat seems clear is that the attorney fee
sanction—as distinct from the terminating sanction—is not final because the court has not yet
reduced that award to a sum certain.” 47 Therefore, she contends that the court can, under Rule
54(b), reconsider its decision to assess the attorney fee sanction against her personally. 48 SGT
counters that Martin already appealed the court’s sanction by filing a Notice of Appeal, thereby
divesting this court of jurisdiction to reconsider its prior sanction. 49
The Supreme Court explains, “[t]he filing of a notice of appeal is an event of
jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district
court of its control over those aspects of the case involved in the appeal.” 50 Yet, while a notice

Abraham v. WPX Energy Prod., LLC, 322 F.R.D. 592, 605 (D.N.M. 2017) (citing Ackermann v. United States,
340 U.S. 193, 202, 71 S. Ct. 209, 95 L. Ed. 207 (1950); Van Skiver v. United States, 952 F.2d 1241, 1244–55 (10th
Cir. 1991)).
44

Thunder Mt. Custom Cycles, Inc. v. Thiessen Prods., No. 06-cv-02527-PAB-BNB, 2008 U.S. Dist. LEXIS
105856, at *11–12 (D. Colo. Dec. 24, 2008) (citing Cashner, 98 F.3d at 580).
45

46

Dkt. 179 at 3.

47

Id.

48

Id.

49

See Dkt. 186 at 2–3.

50

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam).

7

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6037 Page 8 of 37

of appeal narrows a district court’s plenary jurisdiction over the case, its jurisdictional effect is
not absolute. The Federal Rules of Civil Procedure and Tenth Circuit case law contemplate a
“jurisdiction phased de-escalation process” during the first twenty-eight days following entry of
final judgment, wherein a district court “goes from pre-final judgment plenary jurisdiction . . . to
limited review.” 51 After twenty-eight days following entry of final judgment, the district court’s
review is limited to requests for relief from judgment under Rule 60. 52 However, even after
filing a notice of appeal, the district court retains jurisdiction over certain “collateral matters not
involved in the appeal,” such as “the propriety and amount of attorney’s fees.” 53
Martin does not dispute that her Motion was filed more than twenty-eight days following
entry of the court’s December 28, 2022 Order. 54 But she argues the court can properly consider
her Rule 54(b) request for reconsideration without disrupting the jurisdictional handoff with the
Tenth Circuit because the “attorney fee sanction . . . is not final.” 55 In particular, she notes “the
court has not yet reduced that award to a sum certain” and cites numerous Tenth Circuit cases
holding that “an award of attorney’s fees is final for purposes of appeal only after the amount is
determined.” 56

Martinez v. Dart Transp., Inc., 547 F. Supp. 3d 1153, 1169 (D.N.M. 2021) (citing Servants of the Paraclete, 204
F.3d at 1012).
51

Van Skiver, 652 F.2d at 1243; see also Martinez, 547 F. Supp. 3d at 1169 (“[T]he Federal Rules set forth a
jurisdiction phased de-escalation process, wherein the district court goes from pre-final judgment plenary
jurisdiction . . . to solely rule 60 review after twenty-eight days.”).
52

53
Garcia v. Burlington N. R. Co., 818 F.2d 713, 721 (10th Cir. 1987); see also CGC Holding Co., Ltd. Liab. Co. v.
Hutchens, 780 F. App’x 604, 606 (10th Cir. 2019) (“[T]he district court loses jurisdiction over only ‘those aspects of
the case involved in the appeal,’ and so it ‘may address matters that are not comprehended within the appeal.’”
(quoting United States v. Madrid, 633 F.3d 1222, 1226–27 (10th Cir. 2011))).
54

See Dkt. 179 at 7.

55

Id. at 3.

Id. at 3–4 (quoting Phelps v. Washburn Univ. of Topeka, 807 F.2d 153, 154 (10th Cir. 1986) (internal quotation
marks omitted)); see also Phelps, 807 F.2d at 154 (“[I]f an award of attorney’s fees is not reduced to a sum certain,
it is not final.”).
56

8

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6038 Page 9 of 37

While district courts generally retain jurisdiction to address the propriety and amount of
attorneys’ fees even after an appeal, 57 Martin limited the court’s jurisdiction over the attorney fee
sanction as a collateral matter when she requested Tenth Circuit review of her personal liability
for attorneys’ fees. 58 Though Martin disputes the weight of the docketing statement used to flag
her attorney fee question for the Tenth Circuit, 59 the court finds that the combined effect of her
docketing statement and Notice of Appeal placed the attorney fee sanction beyond the realm of
reconsideration. At the moment she filed her Notice of Appeal, the court was “divest[ed] . . . of
its control over those aspects of the case involved in the appeal,” 60 including the prudence of the
court’s attorney fee sanction. Indeed, it can hardly be said the sanction is a “collateral matter[]
not involved in the appeal” when it features prominently among Martin’s requests for appellate
review. 61
Nevertheless, Martin points out that the Tenth Circuit granted her request to abate her
appeal given some of the uncertainty around finality. 62 Yet, while the Tenth Circuit has abated
Martin’s appeal “pending the . . . court’s decision regarding the amount of attorney’s fees and
costs,” 63 the court does not read its order of abatement as broadly as Martin. She argues that the
Tenth Circuit’s order allows the court to reconsider the attorney fee sanction and even shift the

57
See Tiscareno v. Frasier, No. 2:07-cv-00336, 2015 U.S. Dist. LEXIS 161639, at *8 (D. Utah Dec. 1, 2015)
(collecting Tenth Circuit cases).

See Appellant’s Docketing Statement at 3, Martin v. SGT Inc. et al., No. 23-4011 (10th Cir. Feb. 10, 2023)
(requesting consideration of, among other questions, “[w]hether the court properly ordered [] Martin to personally
pay attorney fees for her prior counsel’s failure to produce documents with the proper organization and formatting”);
Dkt. 157 at 1 (appealing “(i) the December 28, 2022 Judgment in a Civil Case [Dkt. 143], and (ii) all subsidiary
rulings and orders leading to final judgment”).

58

59

See Dkt. 190 at 3.

60

Griggs, 459 U.S. at 58.

61

See Garcia, 818 F.2d at 721.

62

See Dkt. 190 at 2.

63

See Dkt. 190-4 at 2 (emphasis added).

9

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6039 Page 10 of 37

fee to her former counsel. 64 However, the order merely abates Martin’s appeal, “[i]n the interest
of judicial economy,” until the court determines “the amount of attorney’s fees and costs” owed
by Martin. 65 The Tenth Circuit has neither remanded the case nor signaled that the court should
consider any aspect of the sanction beyond determining the amount of attorneys’ fees and costs
reasonably owed to SGT. Accordingly, the court declines to read the Tenth Circuit’s narrow
order of abatement as restoring its jurisdiction to reconsider the attorney fee sanction placed at
issue by Martin herself. 66
B. Martin Does Not Qualify for Extraordinary Relief Under Rule 60(b)(6)
Although the court is jurisdictionally barred from reconsidering its attorney fee sanction
under Rule 54(b), Martin also requests relief under Rule 60(b)(6). 67 In contrast to other motions,
the court retains jurisdiction to consider Rule 60(b) motions long after the filing of a notice of
appeal. 68 Where a party files a Rule 60(b) motion while an appeal is pending, Federal Rule of
Civil Procedure 62.1 provides that the district court may: “(1) defer considering the motion; (2)
deny the motion; or (3) state either that it would grant the motion if the court of appeals remands
for that purpose or that the motion raises a substantial issue.” 69 While the Federal Rules and
Tenth Circuit case law do not allow the court to outright grant Rule 60(b) motions, they clearly

64

See Dkt. 190 at 2.

65

Dkt. 190-4 at 2.

Compare id. at 2 (abating Martin’s appeal “pending the district court’s decision regarding the amount of
attorney’s fees and costs”), with Tiscareno, 2015 U.S. Dist. LEXIS 161639, at *10 (“The Tenth Circuit’s decision
remanding the case to the district court for the express purpose of resolving the sanctions issue and any other
collateral matters further confirms the collateral nature of the sanctions order.”).
66

67

See Dkt. 179 at 3.

See Burgess v. Daniels, 576 F. App’x 809, 813 (10th Cir. 2014) (unpublished); West v. Ortiz, No. 06-1192, 2007
U.S. App. LEXIS 5700, at *17 n.5 (10th Cir. Mar. 9, 2007) (unpublished) (“[A] notice of appeal does not divest a
district court of jurisdiction to consider a Rule 60(b) motion, although it prevents a district court from granting such
a motion unless it notifies this court of its intention to grant the motion upon proper remand.”).
68

69

Fed. R. Civ. P. 62.1.

10

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6040 Page 11 of 37

delineate that the court may at least consider the merits of such motions. 70 It is pursuant to this
principle that the court considers and ultimately denies Martin’s Motion.
Martin offers several reasons the court should tap its “grand reservoir of equitable power”
afforded under Rule 60(b) to shift the attorney fee sanction to former counsel. 71 First, she argues
her “prior counsel was responsible for most of the conduct that triggered sanctions,” 72 and the
court should therefore shift the attorney fee sanction “so that the sanctions . . . better reflect the
conduct that gave rise to them.” 73 Second, Martin avers former counsel obscured the reasons for
the court’s early discovery sanctions and dissuaded her from attending late-stage proceedings “to
minimize [their] own role in the sanctioned conduct.” 74 Martin maintains that this conflict with
her former counsel limited her ability to argue that they should bear the brunt of the attorney fee
sanction. 75 Finally, Martin attempts to explain the alteration and deletion of material evidence
based, at least partly, on the email management practices she uses to cope with her “severe
dyslexia” and “processing disorder.” 76 The court considers each argument through the lens of
the extraordinary relief she seeks under Rule 60(b)(6).

70

See id.; Burgess, 576 F. App’x at 813 (collecting cases).

Martin does not clearly distinguish her arguments between her Rule 54(b) request for reconsideration and Rule
60(b)(6) request for relief. Instead, she maintains that her arguments satisfy the standards for relief under all of the
relevant Rules—54(b) and 60(b)(6). See Dkt. 190 at 4–6.

71

72

Dkt. 175 at 9.

73

Dkt. 193 at 2.

74

Dkt. 175 at 1–2.

75

See Dkt. 179 at 6–7.

76

See Dkt. 175 at 1–2, 6–8.

11

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6041 Page 12 of 37

i.

The Court’s Allocation of Rule 37(b)(2)(C) Expenses

The court first considers Martin’s contention that former counsel, rather than herself,
bears primary responsibility for the Rule 37(b)(2)(C) attorney fee sanction ordered by the court,
sufficient to warrant extraordinary relief under Rule 60(b)(6). 77
In relevant part, Rule 37(b)(2)(C) provides that when a party fails to obey a discovery
order, “the court must order the disobedient party, the attorney advising that party, or both to pay
the reasonable expenses, including attorneys’ fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust.” 78 However,
neither Rule 37(b)(2)(C) nor Tenth Circuit case law clearly dictates how the court should allocate
these mandatory fees between the disobeying party and counsel. 79
In the absence of controlling case law on how Rule 37(b)(2)(C) fees should be allocated,
the court looks first to Tenth Circuit cases where fees were assessed directly against counsel. In
Sun River Energy, Inc. v. Nelson, for example, the Tenth Circuit affirmed a district court’s
decision to assess Rule 37(b)(2)(C) fees directly against an attorney who knew about an
insurance policy that his client had a duty to disclose, but then denied its existence when asked
by opposing counsel. 80 In the underlying case, the district court concluded the attorney “must be
viewed as significantly culpable,” “regardless of [his] precise mens rea . . . in failing to . . .

77

See id. at 1, 8–11; Dkt. 179 at 5 (seeking relief on these grounds under Rule 60(b)(6) in the alternative).

78

Fed. R. Civ. P. 37(b)(2)(C).

79
Some out-of-circuit courts contemplate an obligation to “determine ‘how much responsibility is due to the client’s
recalcitrance and how much to the lawyer’s condonance or participation in the client’s disobedience’” when
apportioning fees under Rule 37(b)(2)(C). See McDonald’s USA, LLC v. Craft, 326 F.R.D. 39, 41 (D.D.C. 2018)
(quoting Weisberg v. Webster, 749 F.2d 864, 873–74 186 (D.C. Cir. 1984)). Similarly, outside the Rule 37 context,
the Tenth Circuit has long advised courts to follow an approach “designed to solve the management problem. If the
fault lies with the attorneys, that is where the impact of sanction should be lodged. If the fault lies with the clients,
that is where the impact of the sanction should be lodged.” In re Baker, 744 F.2d 1438, 1441 (10th Cir. 1984)
(addressing the propriety of a district court sanction directly against counsel for various pre-trial delays).
80

Sun River Energy, Inc. v. Nelson, 800 F.3d 1219, 1223 (10th Cir. 2015).

12

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6042 Page 13 of 37

disclose the existence of [the] insurance [policy].” 81 Although it appears no other court has used
“significant culpability” as the benchmark for assessing Rule 37(b)(2)(C) fees against counsel,
sister court decisions generally confirm that there must be a compelling reason to do so—above
and beyond mere incompetence or obstinance. There appear to be two general circumstances
where Rule 37(b)(2)(C) fees are assessed against counsel: (1) where counsel is solely responsible
for the violation of a discovery order, 82 or (2) where counsel has a high degree of culpability
relative to the disobedient party. 83
Further afield, other circuits and district courts also recognize a high bar to assessing fees
directly against counsel under Rule 37. 84 Notably, the Third Circuit has held that an attorney

81
Sun River Energy, Inc. v. Nelson (Sun River I), No. 11-cv-00198-MSK-MEH, 2011 U.S. Dist. LEXIS 173688, at
*13 (D. Colo. Mar. 7, 2013) (emphasis added).

See, e.g., Quarrie v. Wells, No. 17-350 MV/GBW, 2020 U.S. Dist. LEXIS 33816, at *8-9 (D.N.M. Feb. 27, 2020)
(assessing Rule 37(b)(2)(C) fees against defense counsel where “[t]here [was] no indication that Defendants were
responsible” for violating the court order and counsel “ask[ed] that any sanction . . . be against [them] alone”);
Farani v. Express Recovery Servs., No. 2:10-cv-331-DB-PMW, 2011 U.S. Dist. LEXIS 150714, at *15–16 (D. Utah
Oct. 21, 2011) (assessing fees against counsel where “much of what Plaintiff did, or failed to do, . . . was done
exclusively by Plaintiff’s counsel long after communication with Plaintiff had ceased”), report and recommendation
adopted, 2012 U.S. Dist. LEXIS 2006 (D. Utah Jan. 3, 2012).
82

83
See, e.g., Sun River I, 800 F.3d at 1223; Porter Bridge Loan Co. v. Hentges, No. 09-cv-593-JED-FHM, 2013 U.S.
Dist. LEXIS 50210, at *15–16 (N.D. Okla. Apr. 8, 2013) (affirming magistrate judge’s decision to assess fees
against a disobeying party and its counsel, jointly and severally, where, among other things, counsel helped delay
the discovery process and filed papers falsely asserting certain documents were not responsive to opposing counsel’s
requests).
84
See, e.g., Naviant Mktg. Sols. v. Larry Tucker, 339 F.3d 180, 185 (3rd Cir. 2003) (“Under Rule 37, an attorney
may only be sanctioned for personally violating a discovery order or for advising a client to do so.”); Bolger v.
District of Columbia, 248 F.R.D. 339, 346–47 (D.D.C. 2008) (refusing to assess Rule 37 sanctions directly against
counsel without “firm evidence that any counsel of record intentionally violated or sought to violate a discovery
order or obligation”); 1st Tech., LLC v. Rational Enters., No. 2:06-cv-01110-RLH-GWF, 2008 U.S. Dist. LEXIS
106100, at *28–30 (D. Nev. July 29, 2008) (same); see also Alden v. Mid-Mesabi Assocs. Ltd. P’ship, No. 06-954
(JRT/RLE), 2008 U.S. Dist. LEXIS 123190, at *25 (D. Minn. Feb. 25, 2008) (“[I]t is far too facile to presume, in the
absence of evidence to support a presumption, that simply because a client fails to responsibly allow discovery, her
attorney should be blamed. If, as the Defendants purport, [counsel] is involved in the abuses we have detailed, then
he and his client can apportion the sanctions amongst themselves, consistent with their respective degrees of
culpability.”).

13

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6043 Page 14 of 37

may be sanctioned under Rule 37 only for personally violating a discovery order or advising a
client to do so. 85
In awarding attorneys’ fees and expenses to SGT under Rule 37(b)(2)(C), the court
decided to assess them directly against Martin rather than her counsel. 86 Martin challenges the
court’s allocation of the Rule 37(b)(2)(C) sanction on the basis that it is inconsistent with the
stated reasons for granting the December 28, 2022 sanctions. 87 She stresses that the December
28, 2022 Order discussed the relevance of both the alteration and deletion of the July 2018 email
and the preceding discovery misconduct—the latter of which she attributes primarily to her
former counsel. 88 In particular, she contends that her “prior counsel waited to request an
extension of time [for discovery] until two days past the deadline,” leading her discovery to be
untimely. 89 She also maintains former counsel “did not explain that there were any problems
with the way she had produced documents” or even that the court had sanctioned her for
discovery misconduct. 90 “Instead, she believed she had fulfilled her discovery obligations and
that counsel was disclosing the documents.” 91
Former counsel disputes Martin’s recollection of these events and disclaims any
responsibility for the misconduct they frame as the primary cause of the December 28, 2022

Naviant, 339 F.3d at 185 (3rd Cir. 2003); see also Lambert v. Jariwala & Co., No. 18-17295 (ZNQ)(DEA), 2022
U.S. Dist. LEXIS 122346, at *16 (D.N.J. Apr. 28, 2022) (applying the same threshold).
85

86

See Dkt. 142 at 42–44.

See Dkt. 175 at 8–11 (“Imposing monetary sanctions against Ms. Martin’s prior counsel is appropriate here
because her prior counsel was responsible for most of the conduct that triggered sanctions . . . .”).

87

88

Id. at 11.

89

Id. at 9.

90

Id.

91

Id.

14

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6044 Page 15 of 37

sanctions: Martin’s alteration and deletion of the July 2018 email. 92 Counsel contends that
“[w]ith the exception of a missed deadline near the beginning of discovery, [they] acted
reasonably and diligently throughout the course of this case.” 93 Nevertheless, former counsel
alleges “the documents produced by [] Martin were completely disorganized,” 94 and she was
unwilling to undertake the effort to properly screen her files to ensure full and adequate
disclosure. 95 Martin’s former lead attorney, Timothy B. Smith, further states that he kept Martin
apprised of “all relevant case updates . . . [and] thoroughly discussed [the] sanctions entered . . .
against her.” 96 Based on these circumstances, former counsel argues that the court’s allocation
of Rule 37(b)(2)(C) fees against Martin was proper. 97
The competing narratives posed by Martin and her former counsel raise significant
questions of credibility, negligence, causation, and professional responsibility—questions that
are better left to a separate malpractice action benefiting from the full adversarial process,
reciprocal discovery, and due process protections. 98 While courts have seemingly broad
discretion to assess fees against the “disobeying party, the attorney advising that party, or

See Dkt. 191 at 4–5 (“Former Counsel believes that the email alteration was the ultimate reason the Court . . .
grant[ed] terminating sanctions in this case. Former Counsel had nothing to do with this. Likewise, Former Counsel
are not to blame for Ms. Martin’s other discovery defalcations.” (internal citations omitted)).

92

93

Id. at 4.

94

Id.

95

Dkt. 191-1, Exhibit 1: Declaration of Timothy B. Smith ¶ 17.

96

Id. ¶¶ 10, 12, 17.

97

See Dkt. 186 at 3–7.

98
Cf. Harvey v. Yellow Freight Sys., Inc., 936 F. Supp. 790, 795 (D. Kan. 1996) (explaining that because parties
choose an attorney as their representative, they are held accountable for their attorneys’ acts and omissions and that
“[a]ny recourse against [the] attorneys for their alleged malpractice must be brought in a timely, separate action
against them.”).

15

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6045 Page 16 of 37

both,” 99 the factual disputes presented here weigh against unilaterally assessing the sanction
against former counsel absent clear signs of misconduct. Understandably, courts that have
assessed Rule 37(b)(2)(C) sanctions directly against counsel have generally done so only for
blatant or uncontested discovery abuses 100—circumstances that are not clearly evident here. 101
Where there are hotly disputed facts and fingerpointing, some courts have concluded that the
disobedient party and counsel are “best suited” to work out apportionment for themselves. 102 On
balance, the murky record now before the court calls for similar restraint.
However, even if the court was inclined to reconsider its prior allocation of the Rule
37(b)(2)(C) fees, it is jurisdictionally barred from doing so under the standards of Rule 54(b).
Instead, the court’s jurisdiction is limited to considering Martin’s request under Rule 60(b)(6)—
an exceptional recourse that “is appropriate only when circumstances are so unusual or

99
Fed. R. Civ. P. 37(b)(2)(C); see also Joint Stock Co. Channel One Russ. Worldwide v. Infomir LLC, No. 16-CV1318 (GBD) (BCM), 2017 U.S. Dist. LEXIS 165702, at *56 (S.D.N.Y. July 18, 2017) (“The Court has wide
discretion to apportion Rule 37 monetary sanctions between a party and its counsel.” (collecting cases)).
100
See, e.g., KCI USA, Inc. v. Healthcare Essentials, Inc., No. 1:14CV549, 2018 U.S. Dist. LEXIS 118077, at *19–
25 (N.D. Ohio July 16, 2018) (assessing Rule 37(b)(2)(C) attorney fee sanction against counsel “based on [their]
assistance in the creation of fabricated evidence” and lack of candor with the court), vacated for lack of notice, 797
F. App’x 1002 (6th Cir. 2020); Encana Oil & Gas (USA), Inc. v. Zaremba Family Farms, Inc., 2014 U.S. Dist.
LEXIS 193514, at *1–2 (W.D. Mich. Mar. 3, 2014) (justifying the imposition of Rule 37(b)(2)(C) sanctions against
defense counsel, for obstructive behavior and willful violation of a court order); Yeboah v. United States, 99 CIV
4923(JFK)(THK), 2000 U.S. Dist. LEXIS 15400, at *11–15 (S.D.N.Y. Oct. 20, 2000) (awarding sanctions against
“counsel personally” where “his own conduct, including misrepresentations and repeated dishonored commitments,
wasted the time and resources of [defendants] and the Court”).

Without opining on the competence of Martin’s selected counsel, the court sees no indication former counsel was
complicit in Martin’s failure to produce files well after the discovery deadline or her alteration and deletion of the
July 2018 email. See Dkt. 142 at 2–15.
101

See, e.g., Joint Stock Co. Channel One Russ. Worldwide v. Infomir LLC, No. 16-CV-1318 (GBD) (BCM), 2019
U.S. Dist. LEXIS 166373, at *87-88 (S.D.N.Y. Sep. 26, 2019) (assessing Rule 37(b)(2)(C) sanction against
plaintiffs and their counsel, jointly and severally, “permitting them to settle the issue without further public motion
practice”); Merck Eprova AG v. Gnosis S.P.A., 2010 U.S. Dist. LEXIS 38867, at *22 (S.D.N.Y. Apr. 20, 2010)
(declining to apportion liability between the disobeying party and its counsel, “under the belief that they are best
suited to make that decision, and out of concern that requiring them to disclose information sufficient to determine
apportionment could compromise attorney-client confidentiality”); Alden, 2008 U.S. Dist. LEXIS 123190, at *25
(directing sanction solely against disobeying party, with the understanding that the party and counsel could
“apportion the sanctions amongst themselves, consistent with their respective degrees of culpability.”).
102

16

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6046 Page 17 of 37

compelling that extraordinary relief is warranted or when it offends justice to deny such
relief.” 103 While Martin argues that the court should have allocated all, or at least some, of the
Rule 37(b)(2)(C) sanction to former counsel, 104 the court decided—following full consideration
of the record before it—that she was the appropriate party to bear SGT’s expenses. 105 Her new
allegations, while potentially relevant to questions concerning former counsel’s competence or
possible conflicts, do not demonstrate “a blatant error in the prior decision [that] would result in
serious injustice if not corrected” or any other recognized ground for Rule 60(b)(6) relief. 106
Therefore, the court declines to tap into the “grand reservoir of equitable power” afforded by
Rule 60(b)(6) to reallocate the attorney fee sanction.
ii.

Former Counsel’s Purported Conflict of Interest and Incompetence

Beyond the context of Rule 37(b)(2)(C) fee-shifting, Martin retraces other areas where
former counsel’s performance fell below her expectations. Among other purported lapses,
Martin notes former counsel missed the deadline to respond to SGT’s discovery requests, 107
failed to challenge the court’s determination that she waived her discovery objections, 108 and did
not rebut SGT’s request for attorneys’ fees and expenses. 109 She further avers former counsel
“failed to take any accountability” for the problems with her document productions and even
dissuaded her from appearing for late-stage proceedings “because doing so allowed [them] to

103

Christ Ctr. of Divine Phil., Inc. v. Elam, 831 F. App’x 903, 905 (10th Cir. 2020) (unpublished).

104

See Dkt. 175 at 11.

105

See Dkt. 142 at 42–44.

See Orient Mineral Co. v. Bank of China, No. 2:98-CV-238BSJ, 2010 U.S. Dist. LEXIS 14533, at *101 (D. Utah
Feb. 18, 2010) (discussing circumstances that meet the threshold for relief under Rule 60(b)(6)).
106

107

Dkt. 175 at 3.

108

Id. at 3–4.

109

Id. at 8.

17

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6047 Page 18 of 37

minimize [their] own role in the sanctioned conduct.” 110 Martin contends these circumstances
gave rise to a direct conflict with former counsel, which now warrants extraordinary postjudgment relief under Rule 60(b)(6). 111
Indeed, some courts have “considered the possibility that a severe and prejudicial
attorney conflict of interest might be enough to create ‘extraordinary circumstances’ and warrant
relief from a judgment under Rule 60(b)(6).” 112 But these are usually extreme cases where, for
example, counsel had an undisclosed relationship with an opposing party 113 or represented
adverse co-defendants. 114 It would be a remarkable expansion of the Rule 60(b)(6) grounds for
relief for the court to hold, as Martin appears to argue, that the expected tension between a party
and her counsel faced with Rule 37(b) sanctions and a spiraling lawsuit supports such an
exceptional remedy. 115 In the absence of any direct authority supporting Martin’s position, 116
these circumstances do not warrant the exceptional remedy afforded by Rule 60(b)(6).
110

Id. at 1–2, 4.

See Dkt. 190 at 5 (“The basis for [] Martin’s motion is that her prior counsel’s interests were in direct conflict
with [] Martin’s interests in arguing that the court should impose attorney fee sanctions against her prior counsel.”).
111

Stanley v. City Univ. of N.Y., John Jay Coll., No. 18-cv-4844 (AJN), 2020 U.S. Dist. LEXIS 217687, at *4
(S.D.N.Y. Nov. 19, 2020) (citing Moskowitz v. Coscette, 51 F. App’x 37, 38 (2d Cir. 2002)). But see Burton v. Bd.
of Educ. for Chi., No. 17 C 1337, 2019 U.S. Dist. LEXIS 231860, at *8 (N.D. Ill. Jan. 14, 2019) (“Plaintiffs’ claims
of [counsel’s] incompetence, disinterest, and conflict are not grounds for relief under either Rule 60(b)(1) or Rule
60(b)(6).”); Pantoja v. Tex. Gas & Transmission Corp., 890 F.2d 955, 960 (7th Cir. 1989) (“Even if their allegations
of attorney misconduct are true, Rule 60(b)(6) does not address their situation. Instead, the plaintiffs’ remedy lies
against the attorney . . . .”).
112

Stanley, 2020 U.S. Dist. LEXIS 217687, at *6 (granting Rule 60(b)(6) relief where, among other defects, counsel
for the plaintiff started working at the defendant college halfway through the representation).
113

Church & Dwight Co. v. Kaloti Enters. of Mich., L.L.C., 2011 U.S. Dist. LEXIS 110955, at *24 (E.D.N.Y. Sep.
27, 2011) (granting Rule 60(b)(6) relief where counsel “failed to address the blatant conflict of interest posted by his
simultaneous representation” of co-defendants with adverse interests); Marderosian v. Shamshak, 170 F.R.D. 335,
342 (D. Mass. 1997).
114

115

See Dkt. 175 at 10–11; 179 at 5–6.

The two cases cited by Martin—Ames v. Miller, 184 F. Supp. 2d 566, 575 (N.D. Tex. 2002) and Marderosian,
170 F.R.D. at 340–42—do not stand for the proposition that a conflict between a client and counsel over fee-shifting
or other sanctions supports Rule 60(b)(6) relief. Instead, these cases deal with counsel who represented one client to
the direct detriment of another client. Moreover, the movants sought relief from the dismissal of claims and a jury
verdict, respectively, not a fee sanction for which there is possible recourse through a malpractice action.
116

18

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6048 Page 19 of 37

Likewise, former counsels’ other purported shortcomings do not open the door to Rule
60(b)(6) relief. While some courts have recognized that gross negligence by an attorney can
provide a basis for Rule 60(b)(6) relief, 117 it is widely disfavored. 118 The Tenth Circuit has
specifically expressed a “strong predisposition . . . against [the] granting of 60(b) relief for
inadequacy of a party’s chosen counsel.” 119 “If a client’s chosen counsel performs below
professionally acceptable standards, with adverse effects on the client’s case, the client’s remedy
is . . . a legal malpractice lawsuit against the deficient attorney.” 120
Martin alleges numerous lapses by former counsel, ranging from their failure to respond
to SGT’s discovery requests to discouraging her from attending the court’s hearing on SGT’s
Renewed Third Motion for Sanctions. 121 However, these allegations are vigorously disputed by
former counsel, 122 and it is unclear from the record whether former counsels’ shortcomings, if
present, contributed to this outcome. Ultimately, these intertwined questions of competence and
causation are “properly addressed in a malpractice action,” where the parties have the benefit of
the full adversarial process and reciprocal discovery—“not under Rule 60(b).” 123

See Al-Sabah v. Agbodjogbe, No. 20-2375, 2021 U.S. App. LEXIS 33129, at *4–5 (4th Cir. Nov. 8, 2021)
(collecting cases).

117

D’Angelo v. State Farm Fire & Cas. Co., 32 F. App’x 604, 605 (2d Cir. 2002) (holding that “[a]n attorney’s
misconduct only rises to the level contemplated by Rule 60(b)(6) in cases of ‘constructive disappearance’ or a
similar inability to provide adequate representation”); Longs v. City of S. Bend, 201 F. App’x 361, 364 (7th Cir.
2006) (“Rule 60(b)(6) is unavailable when attorney negligence or other attorney misconduct is at issue.”).
118

Thunder Mt. Custom Cycles, 2008 U.S. Dist. LEXIS 105856, at *8 (citing Nelson v. Boeing Co., 446 F.3d 1118,
1119–20 (10th Cir. 2006)).
119

120

Nelson, 446 F.3d at 1119.

121

Dkt. 175 at 8–11.

122

See Dkt. 191 at 2–5.

See Thunder Mt. Custom Cycles, 2008 U.S. Dist. LEXIS 105856, at *12; see also Haynes v. Memmen, No. 03-cv00577-WYD-MEH, 2008 U.S. Dist. LEXIS 64998, at *3–5 (D. Colo. Aug. 5, 2008) (“[T]he conduct of Plaintiff’s
counsel is not ‘a reason that justifies relief’ from the judgment entered in this case, because Plaintiff may pursue a
malpractice action against his attorney if his inability to prevail in this lawsuit is truly the result of his counsel’s
negligence.” (quoting Nelson, 446 F.3d at 1121)).
123

19

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6049 Page 20 of 37

iii.

Martin’s Newly Offered Speculation Concerning the Alteration and Deletion of
the July 2018 Email Does Not Warrant Extraordinary Equitable Relief

As her final basis for relief, Martin offers a new theory for how the July 2018 email was
altered and deleted based on email management practices she uses to cope with her dyslexia and
processing disorder. 124 However, setting aside some of the questions raised by Martin’s new
theory, it is unclear how her proposed explanation procedurally aligns with her larger Rule
60(b)(6) request for relief. Indeed, while a motion for reconsideration allows the court to revisit
its orders where it “misapprehended the facts, a party’s position, or the controlling law,” 125 the
court is jurisdictionally barred from reconsidering the attorney fee sanction at this juncture. 126
Instead, Martin must rely on the court’s “grand reservoir for equitable power” under Rule
60(b)(6), 127 which is reserved for “extraordinary circumstances and only when necessary to
accomplish justice.” 128 Upon full consideration of the record and the parties’ briefings, the court
does not deem Martin’s speculation an extraordinary circumstance warranting relief under Rule
60(b)(6).
In sum, none of Martin’s arguments convince the court that extraordinary relief is
justified under Rule 60(b)(6). In effect, she asks the court to subsume an adequate remedy at
law—a state malpractice action—with equitable principles reserved for only the most
extraordinary circumstances. 129 And there are ample reasons to refrain from doing so. As noted

124
See Dkt. 175 at 2 (“Martin has severe dyslexia and a processing disorder, which make written communication
difficult. She has compensated for her disability in a variety of ways, including occasionally revising emails that
have already been sent for the purpose of resending the email to clarify the prior communication.”).
125

Cf. Servants of the Paraclete, 204 F.3d at 1012.

126

See supra Section I.A.

127

See Dkt. 179 at 3, 7; Dkt. 190 at 9.

128
129

Cashner, 98 F.3d at 579.
Id.

20

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6050 Page 21 of 37

above, federal courts are generally ill-equipped and unwilling to adjudicate hyper-factual
disputes about attorney competence and causation as part of a Rule 37(b)(2)(C) sanction. 130
Here, it would almost certainly require giving short shrift to the procedural safeguards and
reciprocal discovery provided by a separate malpractice action. It would also likely compel
SGT—now relegated to the role of interested bystander—to continuing incurring legal expenses
to safeguard their hard-fought sanctions against a party opponent. Therefore, the court denies
Martin’s Motion and turns to the last question properly before the court—the amount of
attorneys’ fees and expenses reasonably owed to SGT for Martin’s misconduct under Rule
37(b)(2)(C).
II.

Reasonable Attorneys’ Fees and Expenses
SGT requests a total of $232,119.79 in attorneys’ fees and expenses, reflecting

$190,421.29 related to the court’s attorney fee sanction under Rule 37(b)(2)(C) 131 and a further
$41,698.50 for SGT’s post-judgment efforts to obtain those fees. 132 With respect to its
requested award under Rule 37(b)(2)(C), SGT maintains it “paid all of the invoiced fees and
expenses in full,” 133 and submits extensive records supporting its requested attorneys’ fees and
expenses. 134 For the reasons discussed below, the court GRANTS IN PART SGT’s requested
fees and expenses under Rule 37(b)(2)(C), with mandatory deductions of $26,372 for attorneys’

See, e.g., Infomir, 2019 U.S. Dist. LEXIS 166373, at *87–88; Merck Eprova AG, 2010 U.S. Dist. LEXIS 38867,
at *22; Alden, 2008 U.S. Dist. LEXIS 123190, at *25.
130

131

SGT requests $177,869.95 in attorneys’ fees and $12,551.34 in costs and expenses. See Dkt. 147 at 2.

132

Dkt. 188 at 2.

133

Dkt. 147 at 2.

See Dkt. 148, Declaration of Timothy P. Getzoff; Dkts. 148-1–23, Exhibits A–W: Monthly Invoices from
October 2020 to September 2022; Dkt. 148-24, Exhibit X: Summary Table of Fees and Expenses; Dkt. 149,
Declaration of Stephen M. Sansom; Dkt. 189, Declaration of Timothy P. Getzoff; Dkts. 189-1–3, Exhibits 1–3:
Monthly Invoices from February 2023 to April 2023; Dkt. 189-4, Exhibit 4: Summary Table of Supplemental Fees
and Costs.
134

21

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6051 Page 22 of 37

fees that were not caused by Martin’s misconduct and $437.50 for unconnected expenses. The
court also GRANTS SGT’s requested post-judgment attorneys’ fees, leading to a total award of
$205,310.29.
As previously discussed, Rule 37(b)(2)(C) requires the court to “order the disobedient
party . . . to pay the reasonable expenses, including attorney’s fees, caused by the [party’s]
failure” to comply with a discovery order. 135 Implicit in this language are two requirements that
ultimately guide the court’s assessment of SGT’s fee application: (1) any award must have been
caused by Martin’s violation of a discovery order and (2) the award must be reasonable. 136 The
court addresses each of these requirements in turn.
A. Fees and Expenses Caused by Martin’s Misconduct
In the larger context of Rule 37(b)(2), the Tenth Circuit cautions that any sanctions
assessed for violations of a discovery order must be “proportional to the specific violations of the
rules.” 137 To that end, the court “must generally limit its sanction to those expenses and
attorney’s fees directly attributable to a party’s sanctionable conduct.” 138 In other words, “but
for the party’s actions, the funds to pay the cost would have been allocated differently.” 139
In the absence of a fully developed argument on the matter of Rule 37(b)(2)(C) fees, the
court declined SGT’s request for all litigation expenses accrued during the entirety of fact
discovery. 140 Instead, based on the “parties’ filings . . . and the circumstances of the

135

Fed. R. Civ. P. 37(b)(2)(C).

Id.; see also Optrics Inc. v. Barracuda Networks Inc., No. 17-cv-04977-RS (TSH), 2021 U.S. Dist. LEXIS
21738, at *28 (N.D. Cal. Feb. 4, 2021) (“Fee awards, if awarded, are subject to two conditions. . . . The award must
be limited to fees directly resulting from the violation, and the fees awarded must be reasonable.”).
136

137

Olcott v. Del. Flood Co., 76 F.3d 1538, 1557 (10th Cir. 1996).

138

Faraday, 2021 U.S. Dist. LEXIS 145941, at *9 (citing Olcott, 76 F.3d at 1557 (10th Cir. 1996)).

139

Id.

140

See Dkt. 142 at 43–44.

22

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6052 Page 23 of 37

longstanding discovery disputes,” the court awarded SGT a narrower range of attorneys’ fees and
expenses for the discovery period from September 5, 2020 up to December 28, 2022,
encompassing SGT’s Second Motion for Sanctions, Third Motion for Sanctions, and Renewed
Third Motion for Sanctions. 141 Martin does not challenge the time range for sanctions, nor does
she argue that any of SGT’s proffered expenses were unrelated to the discovery misconduct—
rather, she places the blame for that misconduct on her former counsel. 142 Nevertheless, the
court is duty-bound by Rule 37(b)(2)(C) to closely scrutinize SGT’s fee application to ensure
that all recovered expenses were caused by Martin’s discovery abuses. 143
The depth and pervasiveness of Martin’s discovery misconduct exacerbated SGT’s
litigation expenses at nearly every turn, requiring counsel to needlessly expend hundreds of
hours parsing through unorganized productions and preparing motions for sanctions. 144 Though
these factors support the conclusion that SGT’s litigation expenses over the past two years
largely resulted from Martin’s misconduct, the court discerns two workstreams that would have
been necessary regardless of her misconduct. First, SGT had an obligation to produce
unprivileged materials for Martin’s review as part of the discovery process whether or not Martin
did the same. 145 However, SGT’s time records show 23.8 hours billed for its own document

141

Id.

142

See Dkt. 175 at 11–18.

143
See Bindner v. Traub, No. 21-492 GBW/SCY, 2022 U.S. Dist. LEXIS 181317, at *4 (D.N.M. Oct. 4, 2022)
(removing expenses that were not caused by the violation of a discovery order from an award under Rule
37(b)(2)(C)); see also Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186, n. 5, 197 L. Ed. 2d 585
(2017) (“Rule-based and statutory sanction regimes similarly require courts to find . . . a causal connection before
shifting fees.” (citing Fed. R. Civ. P. 37(b)(2)(C))).
144

See Dkt. 142 at 2–15; Dkts. 148-1–23.

See Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 308 (D. Kan. 1996) (“A party may
not withhold discovery solely because it has not obtained to its satisfaction other discovery.”); see also Alifax
Holding Spa v. Alcor Sci., Inc., No. 14-440 WES, 2019 U.S. Dist. LEXIS 5823, at *5-6 (D.R.I. Jan. 11, 2019)
(“Each party has an independent obligation to produce relevant, discoverable information. [One party’s] obligations
are not contingent on [the other’s] performance.” (collecting cases)).
145

23

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6053 Page 24 of 37

productions and discovery responses during the sanction period. 146 Second, SGT seeks
reimbursement for 8.4 hours examining the authorship of Martin’s artwork and developing what
appears to be a related legal strategy. 147 While these steps were possibly prompted by Martin’s
lackluster productions, they appear related to a strategy to undermine Martin’s credibility on the
merits of her claim. 148 In any event, the court finds that these workstreams were not caused by
Martin’s misconduct and hence cannot be recovered under Rule 37(b)(2)(C). 149
In total, the court determines that 42.7 hours must be deducted from SGT’s fee request
under Rule 37(b)(2)(C) because they were not caused by Martin’s discovery misconduct. These
hours were billed during the three months before Martin’s misconduct came to dominate the
course of litigation—from September to November 2020. 150 In addition to the 32.2 hours
deducted for the two unrelated workstreams discussed above, the court will deduct half of the
hours expended on other workstreams during the same period to account for SGT’s efforts that
were unrelated to Martin’s misconduct. 151 Finally, the court will deduct $10,000 to account for
tasks that would have been necessary regardless of the discovery abuses for the remainder of the

See Dkt. 148-1 at 3–5; Dkt. 148-2 at 3–6 (referencing counsel’s efforts related to document collection,
production, and discovery responses).

146

See Dkt. 148-3 at 4 (referencing conferrals between Simler and Getzoff regarding SGT’s “strategy on false
copyright” and related tasks).
147

See id. (reflecting Simler’s legal research on the “effect of false statements/omissions in registration application”
and concomitant investigation of the “prior publication/true authorship” of Martin’s artwork).
148

149
Cf. Goodyear, 581 U.S. at 108–09 (explaining “the need for a court, when using its inherent sanctioning authority
(and civil procedures), to establish a causal link—between the litigant’s misbehavior and legal fees paid by the
opposing party,” which is “appropriately framed as a but-for test”).
150

See Dkts. 148-1–3.

Cf. Fox v. Vice, 563 U.S. 826, 838, 131 S. Ct. 2205, 180 L. Ed. 2d 45 (2011) (“[T]rial courts need not, and indeed
should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough
justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and
may use estimates in calculating and allocating an attorney’s time.”); Malloy v. Monahan, 73 F.3d 1012, 1018 (10th
Cir. 1996) (“[T]he district court need not identify and justify every hour allowed or disallowed, as doing so would
run counter to the Supreme Court’s warning that a request for attorney’s fees should not result in a second major
litigation.” (quotations and citations omitted)).
151

24

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6054 Page 25 of 37

sanction period, leading to a total deduction of $26,372. 152 These deductions are summarized as
follows:
Deductions for Tasks Not Caused by Martin’s Misconduct
Workstream
Timekeeper
Hours
Hourly
Rate 153
BNS
19.4
$395
Discovery Responses /
TPG
0.7
$575
Related Tasks
CER
3.7
$190
Copyright Strategy /
BNS
8.0
$395
Authorship
TPG
0.4
$575
Investigation
BNS
5.2
$395
SMS
0.3
$575
50% Deduction of Other
Tasks (September –
TPG
2.2
$575
November 2020)
CER
1.8
$190
RJG
2.0
$190
General Deduction
Total
42.7

Deduction
$7,663
$403
$703
$3,160
$230
$2,054
$173
$1,265
$342
$380
$10,000
$26,372

B. Reasonableness of SGT’s Requested Fees and Expenses
Next, the court considers the reasonableness of SGT’s fee request. In determining the
reasonableness of a request for attorneys’ fees under Rule 37, district courts in the Tenth Circuit
generally employ the familiar “lodestar” approach by multiplying counsel’s hours reasonably
spent on the litigation by a reasonable hourly rate. 154 Under the lodestar approach, the party
requesting the fees—SGT—bears the burden to “prove and establish the reasonableness of each

152

See Malloy, 73 F.3d at 1018.

153
Because these time entries were entered at the beginning of the sanction period, the court assumes that SGT’s
low-end hourly rates apply. See Dkt. 148 at 7–9 (stating the hourly rate ranges for Holland & Hart timekeepers
during the sanction period).

See Bindner, 2022 U.S. Dist. LEXIS 181317, at *2 (applying the lodestar approach to determine the
reasonableness of requested fees under Rule 37(b)(2)(C)); Emuveyan v. Ewing, No. 2:19-cv-00616, 2022 U.S. Dist.
LEXIS 157871, at *4 (D. Utah Aug. 29, 2022) (applying the lodestar approach to determine the reasonableness of a
request to shift fees accrued from a successful motion for spoliation); Webb v. Cty. of Stanislaus, No. 2:21-mc00696-JNP-JCB, 2022 U.S. Dist. LEXIS 78387, at *7 (D. Utah Apr. 29, 2022) (applying the lodestar method for
calculating attorneys’ fees as a discovery sanction under Rule 37(a)(5)(A)).
154

25

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6055 Page 26 of 37

dollar, each hour, above zero.” 155 SGT must also provide evidence supporting the hours worked
and the claimed rate. 156 Where this is found lacking, “the district court may reduce the award
accordingly.” 157
i. Reasonable Hours
“[T]he first step in calculating the lodestar [is to] determin[e] the number of hours
reasonably spent by counsel for the party seeking fees.” 158 In assessing the reasonableness of
counsel’s claimed hours, the court considers: “(a) whether the hours are supported by adequate
billing records; (b) whether the attorney has exercised billing judgment; and (c) whether the
hours pended on each task are reasonable.” 159
a. Billing Records
The fee applicant must submit to the court “meticulous, contemporaneous time records
that reveal, for each lawyer for whom fees are sought, all hours for which compensation is
requested and how those hours were allotted to specific tasks.” 160 SGT’s counsel has submitted
detailed contemporaneous time records and billing statements covering the period from
September 5, 2020 to the court’s sanction hearing on August 23, 2022. 161 During this nearly
two-year period, counsel’s records show they spent over 400 hours litigating SGT’s requests for
sanctions and conducting fact discovery. 162 Additionally, the lead attorney for SGT, Timothy P.

155

Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986) (internal quotation marks omitted).

156

Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 139 (1983).

157

Id. at 432.

158

Case by Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1250 (10th Cir. 1998).

159

Webb, 2022 U.S. Dist. LEXIS 78387, at *8 (citing Case, 157 F.3d at 1250).

160

Case, 157 F.3d at 1250.

161

See Dkts. 148-1–23.

162

Id.

26

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6056 Page 27 of 37

Getzoff, provides further context on counsel’s representation during the relevant period,
supported by the aforementioned records from his law firm, Holland & Hart. 163
While Martin generally does not challenge the adequacy of SGT’s billing records, she
critiques the method used by SGT to deduct the court’s prior sanction award from its current
request. 164 Instead of eliminating specific time entries associated with the prior award, SGT
simply subtracted the prior award amount, $41,557.13, from its claimed attorneys’ fees accrued
during the relevant sanction period. 165 Martin argues, with some merit, that “SGT’s method . . .
obfuscates the specific entries for which it is currently seeking fees.” 166 Recognizing this
deficiency, the court presumes that all billing entries provided by SGT to support their present
fee applications do not relate to the prior award. 167
b. Billing Judgment
Next, the court must ensure SGT’s counsel properly “exercised billing judgment.” 168
“Billing judgment consists of winnowing the hours actually expended down to the hours
reasonably expended.” 169 In doing so, “[c]ounsel for the prevailing party should make a good
faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessary.” 170

163

Dkt. 148.

164

See Dkt. 175 at 12.

See Dkt. 147 at 4 (“SGT’s prior fee award included fees and expenses incurred during the same period
as the present award, for the same tasks . . . . As such, SGT subtracted $41,557.13 . . . from its current fee and
expense request.”).

165

166

Dkt. 175 at 12.

Cf. Case, 157 F.3d at 1250 (noting that courts may reduce an attorney’s claimed hours if the “time records are
‘sloppy and imprecise’” (citation omitted)).
167

168

Id.

169

Id. (citations omitted).

170

Hensley, 461 U.S. at 434.

27

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6057 Page 28 of 37

Getzoff avers he subtracted the court’s prior sanction from the fee request, as well as any
fees predating the start of the relevant sanction period. 171 However, no other deductions were
deemed necessary. 172 Additionally, SGT claims that all of counsel’s claimed hours “were
reasonably incurred in tasks necessary to litigating this action,” 173 and that all corresponding
invoices were “paid in full.” 174
Martin challenges her opposing counsel’s billing judgment on the grounds that the
claimed hours necessarily reflect “duplicative time,” such as time spent by attorneys
familiarizing themselves with the facts of the case. 175 In particular, Martin contends “at least 20
hours of Mr. [Ryan H.] Seewald’s time” should be reduced to account for the time he spent
taking over for associate Benjamin N. Simler, who left Holland & Hart during the
representation. 176 Yet, beyond assuming that Seewald necessarily spent time familiarizing
himself with the case, Martin does not point to any time entries for duplicative or unnecessary
work by Seewald, or any other counsel for that matter. 177 On the contrary, the court has

171

Dkt. 148 ¶¶ 13, 16.

172

Dkt. 147 at 7.

173

Id.

174

Id. at 4.

175

See Dkt. 175 at 17–18.

176

Id. at 17; see also Dkt. 95, Notice of Withdrawal of Counsel for Benjamin N. Simler.

177
See Dkt. 175 at 17–18; see also Mglej v. Gardner, No. 2:13-cv-00713-CW, 2022 U.S. Dist. LEXIS 102834, at *5
(D. Utah June 7, 2022) (declining to reduce a fee amount where “Defendant fail[ed] to identify which billings [were]
redundant or superfluous but rather conclude[d] that . . . work . . . should be excluded for the sole purpose that it
takes time to bring each attorney up to speed”).

28

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6058 Page 29 of 37

meticulously reviewed the billing records for Seewald and other counsel, and discerns no entries
for duplicative or non-compensable work. 178
Finally, Martin broadly contests that “[t]he number of hours billed by SGT was greatly
disproportionate to the amount of time and work that was reasonably necessary.” 179 But again,
she does not provide any examples of time entries that are unreasonable or unwarranted under
the circumstances. 180 SGT’s counsel had no way of knowing that recoverable fees were even
possible until the later stages of this litigation, and thus they had every reason to carefully
scrutinize their monthly bills to their client when they were first sent. 181 The resulting billing
record—reflecting less than 500 hours for two years of contentious discovery disputes 182—
reflects a reasonably constrained billing practice by SGT’s counsel. Therefore, the court finds
that counsel’s billing judgment was proper and declines to reduce SGT’s requested fee award on
the grounds argued by Martin.
c. Reasonableness of Hours
Finally, the court “look[s] at the hours expended on each task to determine if they are
reasonable.” 183 In assessing the reasonableness of counsel’s claimed hours, the court acts “much
as a senior partner in a private law firm would review the reports of subordinate attorneys when
Seewald’s time entries first appear in the invoice for December 2021. Dkt. 148-15 at 3. At the outset, his efforts
were focused on analyzing the circumstances of the July 2018 email, with no indication that he billed for any time
reviewing background materials or transitioning onto the case. See Yost v. Stout, No. 06-4122-JAR, 2009 U.S. Dist.
LEXIS 149983, at *11 (D. Kan. Dec. 4, 2009) (declining to reduce fees where, despite plaintiff’s contention that
attorneys “necessarily spent time coming up to speed,” the court saw “no indication that . . . timekeepers billed time
researching background material”).
178

179

See Dkt. 175 at 18.

180

Id.

See Dkt. 176 at 17 (“To be clear, SGT’s counsel avoided charging for duplicative work because doing so would
be a disservice to SGT, who reviewed and paid the invoices as they were issued. See Dkt. 148 ¶¶ 8, 9. Neither SGT
nor Holland & Hart had any expectation of being reimbursed for fees at the end of this case.”).
181

182

See Dkts. 148-1–23.

183

Case, 157 F.3d at 1250 (quotations and citations omitted).

29

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6059 Page 30 of 37

billing clients.” 184 The court may reduce the hours claimed by counsel that were “unnecessary,
irrelevant and duplicative.” 185 As part of this analysis, the court typically considers the factors
set forth in Case by Case v. Unified Sch. Dist. No. 233 186 and Johnson v. Georgia Highway Exp.,
Inc. 187 However, there has been some deviation among sister courts as to whether this additional
analysis is necessary in the context of an attorney fee sanction under Rule 37. 188 Given the
substantial sum sought by SGT, the court opts to briefly discuss the relevant Case and Johnson
guideposts to the extent they are relevant to SGT’s request.
First, the Case factors generally support the fees sought by SGT. While Martin’s claim
was not necessarily a complicated one, this case quickly devolved into an acrimonious and
difficult affair, requiring extensive maneuvering by SGT’s counsel. 189 Over the course of more
than two years, counsel was required to press for documents and metadata, review voluminous

184

Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (quotations and citation omitted).

185

Case, 157 F.3d at 1250.

In making the reasonableness determination, the court “considers the following factors: (1) ‘the complexity of the
case,’ (2) ‘the number of reasonable strategies pursued,’ (3) ‘the responses necessitated by the maneuvering of the
other side,’ and (4) ‘the potential duplication of services.’” Utah Physicians for a Healthy Env’t., Inc. v. Diesel
Power Gear, LLC, No. 2:17-cv-00032-RJS, 2021 U.S. Dist. LEXIS 15091, at *7 (D. Utah Jan. 26, 2021)
(quoting Case, 157 F.3d at 1250).
186

488 F.2d 714, 717–19 (5th Cir. 1974) (stating that when considering the reasonableness of attorney fees, the court
should consider: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite
to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of
the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations; (8) the amount
involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability
of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar
cases); see also Gottlieb v. Barry, 43 F.3d 474, 482 (10th Cir. 1994) (stating that the Tenth Circuit applies the
twelve Johnson factors in statutory fee cases).
187

188
In Pipeline Prods. v. Madison Cos., LLC, a sister court observed that “courts more often consider the Johnson
factors when awarding compensatory attorneys’ fees under a fee-shifting statute rather than when assessing
attorneys’ fees as a punitive sanction.” No. 15-4890-KHV, 2019 U.S. Dist. LEXIS 121072, at *7 n.1 (D. Kan. July
19, 2019). In the absence of briefing from the parties on the relevant Johnson factors, the Pipeline Prods. court
declined to conduct a separate analysis expressly considering the Johnson factors. Id. But see Vehicle Projects v.
Icarpets, Inc., No. 16-cv-01013-RBJ, 2018 U.S. Dist. LEXIS 238474, at *15 (D. Colo. Mar. 23, 2018) (referencing
the Johnson factors in assessing an attorneys’ fee sanction under Rule 37).
189

See Dkt. 142 at 2–15.

30

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6060 Page 31 of 37

and “scattershot” document productions, and litigate multiple rounds of nuanced sanctions before
the court—leading to a rare outcome of terminating sanctions. 190 Rather than billing for
duplicative efforts, counsel’s claimed hours seem reasonably constrained given the
circumstances of the past two years and counsel’s concentrated efforts to uncover the alteration
and deletion of material evidence.
The Johnson factors lend further support to the reasonableness of SGT’s fee request.
While the court need not discuss every Johnson factor, several are particularly relevant here. 191
First, the past two years of discovery have required extensive time and labor from SGT’s counsel
to not only uncover the spoliation of the July 2018 email, 192 but also repeatedly litigate sanctions
before the court. 193 Second, the case required counsel to address difficult questions surrounding
Martin’s culpability and the appropriateness of severe terminating sanctions absent direct
evidence of wrongdoing. 194 Third, SGT’s counsel proved to be capable attorneys with an
exacting attention to detail. As a result, they were able to discover Martin’s discovery abuse and
litigate an early end to her lawsuit given the rampant discovery misconduct. 195 Having
considered the rest of the Johnson factors, the court concludes that these factors either support
the reasonableness of SGT’s requested fees or have little bearing on the present case.
In sum, the court declines to reduce the number of hours claimed by SGT beyond the
mandatory deductions for time entries that were not caused by Martin’s misconduct.

190

Id. at 2–15, 44.

191

See Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 854 (10th Cir. 1993).

192

See Dkt. 142 at 2–15; Dkts. 148-1–23.

193

See Dkt. 73, SGT’s [Second] Motion for Sanctions; Dkt. 104, SGT’s Third Motion for Sanctions; Dkt. 126.

194

See Dkt. 126 at 15–24.

195

See Dkt. 142 at 44.

31

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6061 Page 32 of 37

ii. Reasonable Rates
The court next reviews the reasonableness of SGT’s claimed hourly rates. As “[t]he
party requesting fees,” SGT bears “the burden of showing that the requested rates are in line with
those prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation.” 196 In contrast to the broad discretion generally afforded to
district courts assessing attorneys’ fees, the Tenth Circuit admonishes district courts not to
“ignore[] the parties’ market evidence and set[] an attorney’s hourly rate using the rates [they]
consistently grant[].” 197 Moreover, courts may not use their “own knowledge to establish the
appropriate rate unless the evidence of prevailing market rates . . . is inadequate.” 198
The “relevant market” in this case is the Salt Lake City, Utah legal market. 199 SGT’s
lead counsel, Getzoff, claims an hourly rate of $575 to $695 for himself, $395 to $415 for
Simler, $385 for partner Jessica Smith, $315 to $380 for Seewald, and $190 to $255 for paralegal
and other litigation support. 200 SGT also presents a declaration from partner Stephen Sansom,
who claims an hourly rate of $415 to $450. 201 Getzoff avers these fees “are in line with those
charged by top-tier law firms with intellectual property expertise in the Mountain West.” 202

196

Ellis v. University of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir.1998).

197

Case, 157 F.3d at 1255.

United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1234 (10th Cir. 2000); see also Case, 157
F.3d at 1257 (“Only if the district court does not have before it adequate evidence of prevailing market rates may the
court, in its discretion, use other relevant factors, including its own knowledge, to establish the rate.”).
198

See Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983) (stating that the relevant market consists of “the area in
which the litigation occurs” or “the area in which the court sits”); accord Case, 157 F.3d at 1256.
199

Dkt. 148 ¶¶ 41–46. Getzoff attests his rates increased to $765 starting in 2023, however, his firm “manually
reduced the requested fees for [his] time entries on 2023 invoices down to [his] 2022 rate,” as a means of avoiding
further “reasonableness” objections from Martin. See Dkt. 189 ¶ 11.
200

201

Dkt. 149 ¶ 5.

202

Dkt. 148 ¶ 47.

32

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6062 Page 33 of 37

Additionally, SGT cites numerous recent cases in this district wherein comparable hourly rates
were found reasonable for various intellectual property disputes. 203
Martin challenges the rates claimed by SGT’s counsel as unreasonable, and further
argues that her lawsuit was not a complicated affair warranting specialized rates. 204 She
contends the “litigation was [mostly] limited to basic discovery disputes that could be handled by
an attorney without significant experience.” 205 Rather than the rates claimed by SGT’s counsel,
Martin claims that her former counsel’s lower rates provide a better benchmark for
reasonableness. 206 Additionally, she cites a recent case from this district, where a claimed rate of
$600 per hour for a California-based attorney was found unreasonable absent “any evidence of
Salt Lake City market rates.” 207
While the hourly rates claimed by SGT’s counsel are substantial, they are not
unprecedented. 208 After bringing a copyright claim against SGT, Martin cannot now challenge
SGT’s decision to hire experienced counsel adept at handling those very claims. And while
SGT’s counsel may have been more expensive than her own, “it is hard to argue with
success.” 209 Over the course of the litigation, SGT had no way of knowing for certain that the
Dkt. 147 at 5–7 (citing ESIP Series 1, LLC v. Doterra Int’l, LLC, No. 2:15-cv-00779-RJS, 2022 U.S. Dist.
LEXIS 231525 (D. Utah Dec. 23, 2022); Crim. Productions, Inc. v. Brinkley, No. 2:17-cv-00550-DN, 2020 UJ.S.
Dist. LEXIS 266864, *4 (D. Utah June 30, 2020)).
203

204

See Dkt. 175 at 13–14.

205

Id. at 14.

206

Id.

207

See Webb, 2022 U.S. Dist. LEXIS 78387, at *14–15.

208
See ESIP Series 1, LLC v. Doterra Int’l, LLC, No. 2:15-cv-00779-RJS, 2022 U.S. Dist. LEXIS 231525 (D. Utah
Dec. 23, 2022); Waas v. Red Ledges Land Development, Inc., No. 2:20-cv-00580-TC-DBP, 2022 U.S. Dist. LEXIS
1323, 2022 WL 35717, at *4 (D. Utah Nov. 2, 2021) (holding that $650 was a reasonable hourly rate for partners to
bill in Salt Lake City).
209
See Flying J Inc. v. Comdata Network, Inc., No. 1:96-CV-066BSJ, 2007 U.S. Dist. LEXIS 84554, at *65 (D.
Utah Nov. 15, 2007) (“The fact is that [Defendant’s] counsel ultimately prevailed in this proceeding, and the
plaintiffs’ counsel did not. The outcome itself suggests that [Defendant] correctly invested the necessary litigation
resources in its defense, while the plaintiffs somehow fell short of their own goal.”).

33

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6063 Page 34 of 37

lawsuit would terminate early rather than lead to a trial necessitating full preparedness. It
follows that many of the expenses accrued over the past two years relate to counsel’s review of
Martin’s productions, which required some specialized knowledge of copyright law and other
areas relevant to the merits of the case. 210 It was also reasonable for SGT’s counsel to continue
shepherding the defense, even as it pertained to discovery disputes and requests for sanctions, as
the prospect of a trial on the merits continued until the court granted terminating sanctions on
December 28, 2022. Nevertheless, SGT exercised prudent billing judgment, assigning less
expensive associates to handle the lion’s share of the workload. 211 On balance, the court finds
that the claimed hourly rates are reasonable based on the skill, experience, and reputation SGT’s
counsel brought to bear on a difficult case. 212
iii. Litigation Expenses
SGT has submitted adequate documentation for the following out-of-pocket expenses
incurred during fact discovery and while litigating sanctions against Martin: “research costs;
filing fees; costs for hosting a Relativity document database used to maintain, process, and
review documents received and produced; deposition and court reporter costs; and costs incurred
for necessary travel to hearings” before the court. 213 The total comes to $12,551.34, 214 to which

210

See Dkts. 148-1–3; see also Dkt. 176 at 14–17.

211
See Dkts. 148-1–23; Dkt. 148 ¶¶ 43, 45 (stating that “day-to-day work on the case was supplied by” associates
Simler and Seewald).

See Blum v. Stenson, 465 U.S. 886, 895 n.11, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984) (“[T]he burden is on the
fee applicant to produce satisfactory evidence . . . that the requested rates are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience and reputation.”); see also
Case, 157 F.3d at 1257 (“The quality of the lawyer’s performance in the case should also be considered.”).
212

213

Dkt. 147 at 7; Dkt. 148 ¶ 40.

214

Dkt. 147 at 7; Dkt. 147 ¶¶ 13–14.

34

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6064 Page 35 of 37

Martin has not objected. 215 The court has closely reviewed the Holland & Hart’s monthly billing
records and finds these disbursements are reasonable and legitimate expenses that would
normally be charged to paying clients. However, the court must deduct $437.50 for expenses
that were not necessarily related to Martin’s misconduct, such as Relativity fees for SGT’s own
productions and fees for a pro hac vice application. SGT is therefore awarded $12,113.84 in
litigation expenses.
iv. Post-Judgment Fees
In addition to the substantial attorneys’ fees and expenses sought under Rule 37(b)(2)(C),
SGT seeks recovery of fees for the time counsel spent pursuing this award. 216 It is wellestablished in the Tenth Circuit that a party may recover such fees accrued during the process of
seeking fees. 217 “However, the award of fees for the preparation of the fee application is not
without limits.” 218 A district court has broad discretion to deny an award for hours spent
pursuing fees if the fee petitioner was unsuccessful or if the “underlying claim for fees was
unreasonable.” 219
Martin’s efforts to shift the attorney fee sanction to her former counsel and dispute the
reasonableness of SGT’s fee application have prompted extensive post-judgment briefing from
SGT. 220 While Martin counters that SGT could have sat on the sidelines while she attempted to

215
See Dkt. 175 at 11–18 (reflecting objections against SGT’s attorneys’ fees, but not the requested expenses); Dkt.
176 at 18 (“Plaintiff appears to concede that SGT’s request for expenses is proper and reasonable.”).
216

See Dkt. 188 at 2.

See Cummins v. Campbell, 44 F.3d 847, 855 (10th Cir. 1994) (“The Tenth Circuit generally allows recovery of
fees for an attorney’s work in seeking attorney’s fees.”).
217

218

Id.

219

Id.

220

See Dkt. 176; Dkt. 186; Dkt. 188.

35

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6065 Page 36 of 37

shift the fees to her former counsel, 221 SGT had no obligation to be a neutral party. On the
contrary, SGT was fully entitled to defend a hard-fought outcome against the reconsideration
sought by Martin. 222 Moreover, SGT’s post-judgment briefing was generally limited to the
novel arguments raised by Martin, ranging from the procedural vehicles she used to seek
reconsideration to her surprising post-hoc explanation for spoliation. 223 At the same time, SGT
declined to take sides on whether Martin or her counsel should pay the Rule 37(b)(2)(C) fees. 224
Instead, it merely sought to prevent the case from becoming a sideshow malpractice trial and
focus on the task at hand—“a simple accounting of SGT’s attorneys’ fees.” 225
While the court will reduce SGT’s requested fees and expenses by $26,809.50, this was
neither the result of Martin’s briefing nor an indication that SGT’s “underlying claim for fees
was unreasonable.” 226 The only reductions deemed necessary herein are the mandatory
reductions for fees and expenses not caused by Martin’s misconduct, taken sua sponte by the
court to comply with the requirements of Rule 37(b)(2)(C). By and large, this Order vindicates
SGT’s request for attorneys’ fees and expenses. 227 And “[i]t is obviously fair to grant a fee for

See Dkt. 192 at 1 (“The court should not award any supplemental fees, because SGT chose to incur significant
additional fees by litigating issues that do not affect its rights.”).
221

222

See Dkt. 175; Dkt. 179.

223
See Dkt. 176 at 5–7 (objecting to Martin’s attempt to prompt “a mini malpractice trial”), 8–12 (objecting to the
unusual procedural vehicle for Martin’s request for relief), 12–20 (supporting its fee request); Dkt. 186 at 2–3
(arguing that Martin’s Motion is jurisdictionally barred given her pending appeal), 3–8 (arguing that Martin’s
arguments for post-judgment relief do not meet the threshold for extraordinary relief under either Rule 54(b) or
60(b)(6)).
224

See Dkt. 176 at 6.

225

Id. at 5–7.

226

See Cummins, 44 F.3d at 855.

227
See Valenzuela v. Coleman, No. 18-cv-00329-CMA-STV, 2022 U.S. Dist. LEXIS 120009, at *53 (D. Colo. July
7, 2022) (“In this case, the Court finds that reducing fees for hours spent on Plaintiff’s fee request is not warranted
because Plaintiff was largely successful in his Motion for Attorney’s Fees and the request was not unreasonable.”
(internal quotation marks and citation omitted)).

36

Case 2:19-cv-00289-RJS Document 195 Filed 05/22/23 PageID.6066 Page 37 of 37

time spent litigating the fee issue . . . since it [was] the adversary who made the additional work
necessary.” 228
As with its request for Rule 37(b)(2)(C) expenses, SGT has presented meticulous records
demonstrating its entitlement to the requested post-judgment fees, which are reasonably limited
and evidence appropriate billing judgment by counsel. SGT’s claimed hours are also reasonably
constrained, reflecting about ninety hours of work for a complex post-judgment dispute with no
less than six substantive briefs filed by Martin over the past few months. 229 Under these
circumstances, the court concludes that SGT’s post-judgment fee request is reasonable.
CONCLUSION
For the foregoing reasons, Martin’s Motion for Reconsideration or Relief from Judgment
is DENIED and SGT is awarded $205,310.29 in attorneys’ fees and expenses.
SO ORDERED this 22nd day of May, 2023.
BY THE COURT:

___________________________
ROBERT J. SHELBY
United States Chief District Judge

228

Glass v. Pfeffer, 849 F.2d 1261, 1266 n.3 (10th Cir. 1988) (internal quotation marks and citation omitted).

229

See Dkt. 169 [SEALED]; Dkt. 175; Dkt. 179; Dkt. 190; Dkt. 192; Dkt. 193.

37