United States District Court, W.D. Oklahoma
R. ALEXANDER ACOSTA, Secretary of Labor, United States Department of Labor, Plaintiff,
MARGARET MARANTO, et al., Defendants.
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff's Motion for Determination of
Monetary Sanction [Doc. No. 117], filed pursuant to the Order
of September 21, 2017 [Doc. No. 116] (hereafter,
“Order”). By the Order, the Court granted a
motion for sanctions against Defendants' attorney, Bill
Wilkinson, pursuant to Fed.R.Civ.P. 26(g)(3), and reserved
for determination “the amount of the monetary sanction
to be imposed . . . based on expenses reasonably incurred by
Plaintiff as a result of [Mr. Wilkinson's] false
certification of Defendants' discovery responses.”
See Order at 8. Plaintiff now requests an award of
$3, 690.00, which represents 12.3 hours of counsel's time
at an hourly rate of $300.00. The Motion is supported by the
affidavit of Plaintiff's attorney, Karen Bobela,
regarding her work on discovery matters related to the false
the denial of a motion to conduct discovery regarding Ms.
Bobela's time records (see Order 11/17/17 [Doc.
No. 120]), Mr. Wilkinson has responded in opposition to the
Motion. See Defs.' Resp. Br. [Doc. No. 121]. The time
period for filing a reply brief has expired.
Court previously found that Mr. Wilkinson violated Rule
26(g)(1)(B) by failing to consult Defendants regarding their
responses and answers to Plaintiff's written discovery
requests, and falsely certifying those responses and answers.
When Plaintiff deposed Mr. Wilkinson's clients, Margaret
Maranto and Joe Maranto, part of the examination was spent
obtaining information that should have been provided and
establishing facts that should have been admitted, but for
Mr. Wilkinson's misconduct. The Court ruled that an
appropriate sanction is “an order to pay
Plaintiff's reasonable expenses caused by the
violation” and authorized Plaintiff to file a separate
motion to determine the amount to be assessed. See
Order at 5.
affidavit, Ms. Bobela represents that approximately half of
her examination of Mrs. Maranto and Mr. Maranto during their
depositions could have been avoided if Defendants had
provided full and accurate responses to Plaintiff's
written discovery. Ms. Bobela estimates that half of Mrs.
Maranto's 5-hour deposition (2.5 hours), half of Mr.
Maranto's 3.75-hour deposition (1.8 hours), half of an
8-hour period spent preparing to take the depositions (4
hours), and all of her time preparing the motion for
sanctions (4 hours) were the result of Mr. Wilkinson's
false certification of Defendants' discovery responses.
Ms. Bobela also represents that an hourly rate of $300.00 is
reasonable for an attorney with her level of expertise and
experience in the prevailing market. A lodestar calculation
(12.3 hours x $300/hour) yields the sum of $3, 690 sought by
response, Mr. Wilkinson does not challenge Plaintiff's
use of the lodestar method or the hourly rate assigned to Ms.
Bobela's work. He questions only Ms. Bobela's
estimate that his conduct caused her to perform 12.3 hours of
work that would otherwise have been unnecessary. Mr.
Wilkinson asserts that 12.3 hours “is excessive”
and “it is hard to believe that much time would have
been [saved]” if Defendants' discovery responses
“had been properly completed.” See
Defs.' Resp. Br. at 2, 3. Without explanation, Mr.
Wilkinson asks the Court “to reduce the reasonable fees
to be awarded to the amount of $1, 000.” Id.
court of appeals has provided guidance for determining the
amount of an appropriate monetary sanction for litigation
misconduct. See White v. General Motors Corp., 908
F.2d 675, 683-85 (10th Cir. 1995). In White, the
Tenth Circuit was considering sanctions for a violation of
Rule 11, but the court has approved this guidance for use
wherever an attorney-fee sanction is deemed appropriate,
“whether rooted in statute, rule, or a court's
inherent authority.” See Farmer v. Banco Popular of
N. Amer., 791 F.3d 1246, 1256, 1259 (10th Cir. 2015).
Under this guidance, the reasonableness of the amount of fees
and costs incurred is one factor to be considered, and a
lodestar method of calculation is “an acceptable
approach.” See Farmer, 791 F.3d at 1259;
White, 908 F.2d at 684. However, a trial court's
determination of fees need not be exacting, and “should
not result in a second major litigation.” See Fox
v. Vice, 563 U.S. 826, 838 (2011) (internal quotation
omitted); see also Goodyear Tire & Rubber Co. v.
Haeger, 137 S.Ct. 1178, 1187 (2017).
consideration of the facts and circumstances presented, the
Court finds that a substantial award is appropriate. The
Court further finds that attorney fees incurred by Plaintiff
to depose Mr. and Mrs. Maranto about information they had
previously been asked to provide in written discovery may
constitute expenses reasonably incurred as a result of Mr.
Wilkinson's violation of Rule 26(g)(1)(B). The
difficulty, as observed by Mr. Wilkinson, is identifying what
portion of deposition-related time is attributable to
Defendants' incomplete or inaccurate discovery responses.
Even when admissions are made, interrogatories are answered,
and documents are produced before a deposition is taken, it
is not uncommon for an opposing party's attorney to
question a witness about the same subject matters, either to
confirm the completeness of discovery responses or clarify
the information provided. Thus, Ms. Bobela's estimate
that half of her preparation and deposition time was devoted
to “topics related to the [wage law] violations that
Mrs. Maranto ultimately admitted” (Motion at 3) does
not mean Ms. Bobela would not otherwise have covered these
same topics in the Marantos' depositions, at least to
some degree. It is also difficult to draw a direct
correlation between preparation time and deposition time.
however, Ms. Bobela's time to prepare Plaintiff's
motion for sanctions was incurred as a result of Mr.
Wilkinson's violation. The Court finds that
Plaintiff's claim of 4 hours of attorney time for this
task is reasonable. The Court further finds that 4 hours
represents a reasonable amount of additional deposition time
expended by Ms. Bobela as a result of Defendants'
incomplete and inaccurate discovery responses. Multiplying
these 8 hours by the uncontested hourly rate of $300 yields a
lodestar amount of $2, 400. The Court finds this sum
represents an appropriate monetary sanction to be levied
against Mr. Wilkinson pursuant to Rule 26(g)(3).
THEREFORE ORDERED that Plaintiff's Motion for
Determination of Monetary Sanction [Doc. No. 117] is GRANTED,
as set forth herein. The Court assesses a monetary sanction
against attorney Bill Wilkinson in the amount of $2, ...