Maiteki v. Marten Transport, Ltd.

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 28, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RONALD MUKASA MAITEKI,
Plaintiff - Appellant,
v. No. 16-1298
(D.C. No. 1:12-CV-02021-WJM-CBS)
MARTEN TRANSPORT, LTD., (D. Colo.)
Defendant - Appellee,
and
VOYAGER EXPRESS,
Defendant.
–––––––––––––––––––––––––––––––––––
RONALD MUKASA MAITEKI,
Plaintiff - Appellant,
v. No. 16-1320
(D.C. No. 1:12-CV-02021-WJM-CBS)
MARTEN TRANSPORT, LTD., (D. Colo.)
Defendant - Appellee,
and
VOYAGER EXPRESS,
Defendant.
------------------------------
ANDREW NYOMBI; IKECHUKWU
EMEJURU,
Attorneys - Appellants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, LUCERO, and HARTZ, Circuit Judges.
_________________________________
Marten Transport, Ltd. (“Marten”) obtained summary judgment on Ronald
Maiteki’s claims relating to negative information Marten provided to a consumer
reporting agency about Maiteki’s driving record. See Maiteki v. Marten Transp. Ltd.,
828 F.3d 1272 (10th Cir. 2016) (affirming grant of summary judgment). Marten then
sought an award of costs from Maiteki under Fed. R. Civ. P. 54(d) and 28 U.S.C.
§ 1920, and sanctions against Maiteki’s counsel, Andrew Nyombi and Ikechukwu
Emejuru, under 28 U.S.C. § 1927. The district court granted both requests in part,
awarding Marten $6,840.37 in costs and ordering counsel to pay Marten $29,066.05
in attorneys’ fees. Maiteki appeals the cost award (No. 16-1298) and counsel appeal
the fee award (No. 16-1320). Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm both awards.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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I
We review an award under § 1927 for abuse of discretion. Hamilton v. Boise
Cascade Express, 519 F.3d 1197, 1202 (10th Cir. 2008). That statute provides for
sanctions against an attorney who “multiplies the proceedings in any case
unreasonably and vexatiously” for the “attorneys’ fees reasonably incurred because
of such conduct.” § 1927. “[A]ny conduct that, viewed objectively, manifests either
intentional or reckless disregard of the attorney’s duties to the court, is sanctionable.”
Hamilton, 519 F.3d at 1202 (quotation omitted). “[W]e have found sanctions
appropriate . . . when counsel repeatedly refers to facts in the record that simply are
not there.” Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1153 (10th Cir. 2007)
(citing Herzfeld & Stern v. Blair, 769 F.2d 645, 647 (10th Cir. 1985)). In Herzfeld
we explained that “[t]he many instances in which counsel’s references to the record
are contrary to what is found indicate that he has been either cavalier in regard to his
approach to this case or bent upon misleading the court,” and in either event “added
grievously to the frivolous nature of [the case],” rendering a sanction under § 1927
“not only proper . . . [but] necessary.” 769 F.2d at 647.
Taking guidance from Herzfeld, the district court sanctioned Maiteki’s counsel
based on their response to Marten’s motion for summary judgment, which it
characterized as blatantly misstating the evidence as to nearly every potentially
material fact. The district court found that these misstatements required Marten’s
counsel to expend significant time correcting the record and addressing frivolous
claims and theories. It ordered counsel to compensate Marten for fees incurred in
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preparing the summary judgment reply brief. Because Maiteki’s counsel challenged
only Marten’s entitlement to fees, and not the reasonableness of the claimed hours or
rates, the district court granted the amount requested, $29,066.50, which it considered
reasonable on its face.
Nothing counsel argues on appeal demonstrates reversible error in the district
court’s exercise of its discretion over the fee award. Having reviewed their efforts to
justify, explain, or excuse their dubious record citations as reasonably accurate, we
are convinced that the district court’s unfavorable assessment does not reflect a
“clear error of judgment,” a decision “exceeding the bounds of permissible choice,”
or “an arbitrary, capricious, whimsical, or manifestly unreasonable judgement.” Sun
River Energy, Inc. v. Nelson, 800 F.3d 1219, 1228 (10th Cir. 2015) (quotation and
alteration omitted). We also reject counsel’s objection that the rationale articulated
by the district court for imposing the sanction was inadequate.1
Counsel contend that Herzfeld does not support the sanction imposed here
because that case involved misconduct in addition to misrepresentation of the record.
But, as noted above, Herzfeld stated that the misrepresentations “added grievously”
to the grounds for sanction, which it characterized as “not only proper . . . [but]
necessary.” 769 F.2d at 647. The district court aptly looked to Herzfeld for guidance
1
Counsel summarily assert that the sanction award violated their due process
rights because it was imposed without notice. Given that sanctions were awarded on
Marten’s motion (which specified the amounts sought for, among other things,
responding to Maiteki’s opposition to summary judgment, and cited attached exhibits
supporting the amount claimed) and after briefing by both sides, this contention is
inexplicable. See Sun River Energy Inc., 800 F.3d at 1230 (opportunity to brief
sanction issue satisfies due process).
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in imposing a sanction based on repeated mischaracterization of the record—conduct
we have indicated, citing Herzfeld, is a sufficient ground for finding sanctions
appropriate, see Lewis, 500 F.3d at 1153. We affirm the district court’s decision in
this regard.
II
We also review the district court’s cost award for abuse of discretion. See
In re Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009).
After the entry of final judgment entitling Marten to an award of costs under Rule
54(d), the parties could not agree on the items to be allowed under § 1920. A
telephonic hearing was set before the court clerk, but at the scheduled time Maiteki’s
counsel did not answer the clerk’s call. Maiteki later challenged various items by
motion, however, and the district court considered those challenges notwithstanding
counsel’s failure to appear for the hearing.2
Maiteki challenges four specific aspects of the cost order, all relating to
depositions. The first concerns his own deposition, conducted by multiple defendants
over two days. Maiteki contends Marten should not recover the full cost of the
transcript but only a pro rata amount to cover the part reflecting its own questions
during the examination. The district court rejected this contention because the
2
To the extent Maiteki’s repeated references to the cost hearing being
“ex parte” are intended as a procedural objection to the award, the objection is
meritless. His counsel’s absence was the result of their own failure to appear and, in
any event, the district court decided the matter—denying some of the costs sought—
after considering the parties’ briefing.
5
questions of co-defendants’ attorneys contributed to each others’ cases, and because
Marten justifiably ordered a full transcript given that court reporting firms generally
do not offer partial transcripts at a discount. Maiteki does not address these reasons
on appeal and has thus failed to demonstrate a reversible abuse of discretion. See
Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first
task of an appellant is to explain to us why the district court’s decision was wrong.”).
Second, Maiteki objects to paying for deposition transcripts with respect to an
expert he had designated for damages issues. He complains that the award was unfair
because, as a trade-off agreed to by Maiteki for withdrawing the expert, Marten had
not been required to pay the expert’s witness fee for appearing at the deposition. But
Marten being relieved of its obligation to pay an expert witness fee is unrelated to the
issue at hand: whether Marten obtained the expert’s deposition transcript for use in
the case. And the fact that Maiteki eventually withdrew the expert does not
undermine Marten’s obvious reasons for previously obtaining the transcript in
preparation for the expert’s testimony on damages at trial.3
Maiteki’s third objection concerns deposition transcripts for two witnesses of
one of Marten’s co-defendants. He asserts that Marten did not refer to the transcripts
3
Maiteki may also be objecting that the expert’s testimony was not used in
connection with Marten’s (already pending) summary judgment motion. But
deposition transcripts are properly obtained for trial as well as for summary
judgment, and their cost is still properly recoverable even if the grant of summary
judgment ultimately obviates the need for trial. See Mitchell v. City of Moore,
218 F.3d 1190, 1204-05 (10th Cir. 2000).
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in its summary judgment briefing and obtained them solely for discovery purposes.
Marten explains, however, that these witnesses could have provided evidence
regarding the reasons Voyager did not hire Maiteki, which was relevant to Maiteki’s
claim for damages against Marten had the case gone to trial. We agree with the
district court’s assessment that ordering the transcript was reasonable.
Finally, Maiteki contends he should not have had to cover the cost of
videotaping the deposition of his damages expert. The district court explained that
because deposition transcripts and deposition videos serve different purposes, the
better practice is to allow the costs of both videotaped and stenographic depositions,
absent some good reason not to do so. See Meredith v. Schreiner Transp., Inc.,
814 F. Supp. 1004, 1006 (D. Kan. 1993), cited with approval in Tilton v. Capital
Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir. 1997) (holding cost of videotaped
deposition is recoverable under § 1920). Maiteki objects that the deposition—
videotaped or transcribed—was simply not necessary. We have already rejected that
broad objection in concluding above that the district court properly found that the
deposition was necessarily obtained for use in the case. Maiteki also insists that the
videotaping cost should not have been allowed simply because he had opposed the
use of a videographer at the time. He cites no authority for this facially dubious
proposition.
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III
The judgment of the district court awarding costs against Maiteki and
imposing sanctions on Maiteki’s counsel is affirmed. Marten’s motion for appellate
sanctions is denied.
Entered for the Court
Carlos F. Lucero
Circuit Judge
8