United States District Court, D. New Mexico
matter comes before the Court upon Defendant's Motion for
Costs and Fees, filed September 9, 2019. (Doc. 134).
Plaintiff filed a response on September 19, 2019, and
Defendant filed a notice of completion of briefing on
September 20, 2019. (Docs. 135 and 136). Considering the
Motion and the accompanying briefing, the Court grants the
Motion for Costs and Fees (Doc. 134), in part, in that the
Court awards Defendant a total of $163, 500.47 in
attorney's fees and costs.
March 6, 2018, Plaintiff filed a Federal Employers Liability
Act claim against Defendant alleging he sustained a back
injury while in the course and scope of his employment. (Doc.
1). Following Plaintiff's July 10, 2018, deposition,
Defendant filed a motion to dismiss Plaintiff's Complaint
as a sanction for Plaintiff's abuse of the discovery
process, pursuant to Federal Rules of Civil Procedure 26, 37,
and 41, and the Court's inherent authority. (Doc. 56).
After considering the parties' briefing, on August 30,
2019, the Court found that Plaintiff “knowingly and
intentionally lied under oath, made material and false
misrepresentations, and abused the discovery process”
in his answers to written discovery requests and during his
deposition. (Doc. 133) at 48. Specifically, the Court found
Plaintiff's answers were deliberately false as to: (1)
his previous back injuries; (2) the extent of his injuries
and post-incident activities; (3) instructions from his
physical therapist; (4) his gym use; (5) prior complaints to
his employer; (6) his prior drug use; (7) communications he
made immediately after the incident; (8) his social media
use; and (9) his motorcycle ownership. Id. at 4-30.
Additionally, the Court found numerous incidents of
obstructionist behavior by Plaintiff during his deposition.
Id. at 30-40.
consideration of the factors set forth in Ehrenhaus v.
Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), the Court
granted Defendant's motion to dismiss, dismissed
Plaintiff's claims with prejudice, and granted
Defendant's request for an award of costs and
attorney's fees. Id. at 48. The Court ordered
Defendant to file a “motion for costs and fees,
supported by bills and/or affidavits, detailing which
violations it believes warrant costs and fees, and totaling
the claimed requests.” Id. at 47. The Court
further ordered Plaintiff to “respond to the motion,
including clear identification of disputed costs and
Motion for Costs and Fees, Defendant asserts this lawsuit
should not have proceeded beyond Plaintiff's deposition,
so Defendant asks for an award of all expenses incurred from
that date forward, in the amount of $227, 669.00. (Doc. 134)
at 1. In the alternative, Defendant requests an award of fees
and costs directly related to Plaintiff's violations of
the Federal Rules of Civil Procedure and abuse of the
judicial process, in the amount of $151, 564.75. Id.
response, Plaintiff first notes that the Court has not
concluded that he was not injured on the job or that
Defendant was not negligent, and Plaintiff states that he has
presented testimony and documents in support of his injury
claim. (Doc. 1) at 1-2. Plaintiff further notes that he has
not returned to his prior job at BNSF and has no other
regular income. Id. at 2. Therefore, Plaintiff
argues dismissal of his case as a sanction for his discovery
abuses is sufficiently severe and that an award of
attorney's fees and costs is not warranted. (Doc. 135) at
4-5. Plaintiff alternatively contends that Defendant should
not recover “fees and costs associated with the
ordinary prosecution or defense of a claim versus those
associated with the alleged misconduct.” Id.
at 5. Specifically, Plaintiff argues that fees relating to
“the filing of motions for summary judgment, ”
the “Bain report, ” and paralegal work, should
not be included in the award. Id. at 6.
courts have “broad discretion to calculate fee
awards” granted as sanctions for litigation misconduct.
Goodyear Tire & Rubber Co. v. Haeger, 137 S.Ct.
1178, 1184 (2017). However, “such an order is limited
to the fees the innocent party incurred solely because of the
misconduct.” Id. A party seeking
attorneys' fees bears the burden of proving “all
hours for which compensation is requested and how those hours
were allotted to specific tasks.” Case v. Unified
Sch. Dist. No. 233, Johnson Cty., Kan., 157 F.3d 1243,
1250 (10th Cir. 1998). Moreover, the party requesting fees
must make “a good faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise
unnecessary.” Hensley v. Eckerhart, 461 U.S.
424, 434 (1983).
determine the reasonableness of a fee request, the Court
calculates the so-called “lodestar amount, ”
which presumptively reflects a “reasonable” fee.
Pennsylvania v. Delaware Valley Citizens' Council for
Clean Air, 478 U.S. 546, 563-65 (1986); Cooper v.
Utah, 894 F.2d 1169, 1171 (10th Cir.1990). The lodestar
calculation is the product of the number of attorney hours
“reasonably expended” and a “reasonable
hourly rate.” Hensley, 461 U.S. at 433;
Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th
Awarding Fees and Costs is Warranted
first argues that dismissal of his case is a sufficient
sanction for his discovery abuses, and notes that none of the
cases cited by Defendant stand for the proposition that both
dismissal of claims and an award of fees and costs are
justified for discovery violations. (Doc. 135) at 4-5.
Plaintiff cites to no authority holding that courts may not
dismiss a party's claims and award fees and costs.
Indeed, the Federal Rules of Civil Procedure allow courts to
dismiss an action in whole or in part and order
attorney's fees as a sanction for failure to comply with
a discovery order. See Fed. R. Civ. P. 37(b)(2)(C)
(explaining award of attorney's fees is “[i]nstead
of or in addition to” other sanctions, including
dismissal of action). Moreover, the Tenth Circuit has upheld
a district court's decision to dismiss a case with
prejudice and award attorney's fees based on discovery
violations. See Norouzian v. Univ. of Kan. Hosp.
Auth., 438 Fed.Appx. 677, 680 (10th Cir. 2011) (holding
district court did not abuse its discretion in dismissing
case with prejudice and awarding attorney's fees incurred
in bringing motions to compel).
also argues that awarding attorney's fees would
“chill future employee injury claims, ” and he
urges the Court to “consider the effect of such a
sanction on BNSF employees who are injured in the
future.” (Doc. 135) at 5. This assertion fails to
recognize that the Court's decision to dismiss this case
and award fees and costs is a result of finding Plaintiff
“willfully, wantonly, and in bad faith failed to comply
with his oath, failed to submit true and accurate
interrogatory answers, and allowed misleading and incomplete
responses to requests for production.” (Doc. 133) at
47. As such, the Court's decision will have no effect on
future claims that are litigated absent such egregious
conduct. For these reasons, the Court finds that awarding
Defendant fees and costs is warranted.
Blanket Award or Award Fees Incurred as a Result of
asks the Court to order Plaintiff to pay all fees and costs
it incurred on and after the date of Plaintiff's
deposition. (Doc. 134) at 2-10. Defendant relies on
Chambers v. NASCO, Inc., wherein the United States
Supreme Court affirmed sanctions in the entire amount of
attorney's fees incurred by the aggrieved party in the
litigation. 501 U.S. 32, 58 (1991) (affirming award of nearly
one million dollars in attorney's fees). Defendant also
relies on Farmer v. Banco Popular of N. Am., in
which the Tenth Circuit affirmed the district court's
decision to sanction a litigant by awarding all fees incurred
after the date the bad faith behavior began instead of
tailoring the sanction to each particular wrong. 791 F.3d
1246, 1258-59 (10th Cir. 2015). Defendant argues the
appropriate “trigger date” is the date of
Plaintiff's deposition- July 10, 2018-because, even
though Plaintiff had earlier been misleading and untruthful
in his interrogatory answers, “a bulk of his bad faith
behavior occurred at his deposition with extensive fallout
afterward through to the briefing on the subject Motion [for
Costs and Fees].” (Doc. 134) at 6. Defendant asserts
that Plaintiff “would not have had a good faith basis
to proceed with the litigation if he had told the truth at