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Maiteki v. Marten Transportation Ltd.

United States District Court, D. Colorado

July 18, 2016



          WILLIAM J. MARTINEZ United States District Judge.

         In these postjudgment proceedings, the only remaining parties are Plaintiff Ronald Maiteki (“Maiteki”) and Defendant Marten Transport Ltd. (“Marten”). Currently before the Court are two motions: Marten’s Motion for Attorneys’ Fees and Sanctions (“§ 1927 Motion”) (ECF No. 271) and Maiteki’s Motion to Review Clerk’s Order Taxing Costs (“Costs Motion”) (ECF No. 285). For the reasons explained below, both motions are granted in part and denied in part.


         Marten moves to recover a portion of its attorneys’ fees as a sanction against Maiteki’s attorneys, Andrew Nyombi and Ikechukwu Emejuru (“Maiteki’s Counsel”). Marten’s motion is intertwined with this Court’s order granting summary judgment in favor of Marten (“Summary Judgment Order”) (see ECF No. 259), which was recently affirmed by the Tenth Circuit. See Maiteki v. Marten Transp. Ltd., ___F.3d ___, 2016 WL 3747396 (10th Cir. July 13, 2016). Familiarity with the Summary Judgment Order is presumed.[1]

         A. Standard for Sanctions Under 28 U.S.C. § 1927

         Marten primarily requests sanctions under 28 U.S.C. § 1927, which provides that “[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” Given this statutory language, “[a] court may assess attorney[s’] fees against an attorney under § 1927 if (a) the actions of the attorney multiply the proceedings, and (b) the attorney’s actions are vexatious and unreasonable.” Shackelford v. Courtesy Ford, Inc., 96 F.Supp.2d 1140, 1144 (D. Colo. 2000). “Actions are considered vexatious and unreasonable if the attorney acts in bad faith . . . or if the attorney’s conduct constitutes a reckless disregard for the duty owed by counsel to the court.” Id.; see also Miera v. Dairyland Ins. Co., 143 F.3d 1337, 1342 (10th Cir. 1998) (collecting various specific scenarios that evince sanctionable conduct). The attorney’s conduct is judged objectively; subjective bad faith is not required to justify § 1927 sanctions. See Hamilton v. Boise Cascade Exp., 519 F.3d 1197, 1203 (10th Cir. 2008) (“Where, ‘pure heart’ notwithstanding, an attorney’s momentarily ‘empty head’ results in an objectively vexatious and unreasonable multiplication of proceedings at expense to his opponent, the court may hold the attorney personally responsible.”). Ultimately, whether to award § 1927 sanctions is a matter committed to this Court’s discretion. Dominion Video Satellite, Inc. v. Echostar Satellite L.L.C., 430 F.3d 1269, 1278-79 (10th Cir. 2005).

         B. March 16, 2015 Letter

         Marten requests all of its attorneys’ fees incurred since March 16, 2015, which is the date on which Marten sent a letter to Maiteki’s Counsel describing Marten’s reasons for believing that Maiteki could never prevail on the merits. (ECF No. 271 at 8-11, 14 & n.7.) Marten argues that Maiteki’s Counsel continued to litigate Maiteki’s claims “long after counsel should have known those claims were meritless, ” which was supposedly no later than the date on which they received Marten’s letter. (Id. at 9-10.) See also Dreiling v. Peugeot Motors of Am., Inc., 768 F.2d 1159, 1165 (10th Cir. 1985) (§ 1927 sanctions justified where plaintiffs’ attorney “continued to assert claims for liability against [a defendant] with knowledge that [plaintiffs] had no factual or legal basis or claim of liability against [the defendant], and did so long after it would have been reasonable and responsible to have dismissed the claims against [the defendant]”).

         Marten’s March 16, 2015 letter is a fairly typical demand-style letter. (See ECF No. 271-3.) It mostly comprises deposition excerpts from a Marten employee who testified that Marten performed a by-the-book reinvestigation, as compared to excerpts from Maiteki himself, who continually answered “I don’t know” to questions regarding whether he had any basis to dispute Marten’s characterization of its reinvestigation. Although the letter ultimately turned out to be correct in various respects, the Court cannot say on this record that Maiteki’s Counsel should have known upon receiving that letter (or earlier) that Maiteki’s claims against Marten could not possibly succeed. The Court therefore denies Marten’s request for all of its attorneys’ fees since March 16, 2015.

         C. Summary Judgment Reply Brief

         Although § 1927 sanctions are not available for all fees and costs incurred after March 16, 2015, Marten notes that it incurred $29, 066.50 specif ically in filing its reply in support of summary judgment (see ECF No. 271 at 14), and Marten attacks Maiteki’s Counsel’s summary judgment response brief as vexatious and multiplicative (id. at 11-12). The Court understands Marten to be arguing that it should at least receive its fees with respect to its reply brief. The Court agrees.

         An appropriate starting point for this analysis is Herzfeld & Stern v. Blair, 769 F.2d 645 (10th Cir. 1985). There, the defendant’s attorney appealed a judgment against his client and included arguments never raised below, supported by purported admissions that he did not cite, and which the court could not find in the record. Id. at 646. As to the record citations the attorney did include, the court found “citation after citation in which his references are at least inaccurate, if not totally misleading.” Id. at 647. Indeed, “[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.” Id. Either way, said the court, “sanctions [against the attorney under § 1927] are not only proper, they are also necessary.” Id.

         Herzfeld, although more than thirty years old, might as well have been written in response to this case. Soon after this Court began evaluating the parties’ summary judgment arguments, the Court realized that a substantial number of Maiteki’s Counsel’s record citations did not support the statements to which they were attached. These discrepancies pervaded Maiteki’s position with respect to nearly every potentially material fact and could not have been accidental, as extensively detailed in the Summary Judgment Order. (See ECF No. 259 at 3-20.) Given the details provided in that Order, the Court need only summarize its findings here:

• Maiteki’s Counsel asserted that Marten fleet manager Wendy Sobotta “admitted that Maiteki never had any speeding citations or incidents, ” when Sobotta actually stated in the relevant deposition testimony that she was “[n]ot . . . aware” of any speeding citations. (Id. at 5.)
• Maiteki’s Counsel repeatedly referred to an e-mail chain as evidence of systemic failure to reinvestigate, when the e-mail chain actually related only to one specific issue involved in the reinvestigation. (Id. at 6, 7-8.)
• Maiteki’s Counsel asserted that Marten “never investigated” Maiteki’s Illinois speeding incident, denied that a warning letter in the record was genuine, and claimed that “Marten never . . . disciplines” drivers for speeding, all purportedly supported by an interrogatory response that actually says, “Generally speaking, Marten does not conduct internal investigations [regarding its drivers who have been cited for speeding].” (Id. at 5-7.)
• Maiteki’s Counsel asserted that “Marten has a practice and pattern of falsifying” information it places in its internal records regarding drivers, citing a single incident in which the Federal Trade Commission received a complaint that Marten had “inaccurate information” on a driver’s work history report. The FTC had no records of acting on this complaint. (Id. at 10-11.)
• Maiteki’s Counsel argued that “Marten’s [digital human resources file] is severely error prone, ” citing out-of-context and otherwise opaque deposition testimony where the only language relevant to errors is Maiteki’s Counsel’s own assertion-not assented to by Marten’s witness-that the human resources file contains errors. (Id. at 11-12.)
• Maiteki’s Counsel claimed that Marten, upon reinvestigating driver history, “has had to make corrections and clarifications on several occasions, ” citing a deposition excerpt that says nothing more than that Marten has, in fact, corrected driver history reports based on information learned during reinvestigation. (Id. at 12-13.)
• Maiteki’s Counsel asserted that Marten can still access historical speed-tracking data regarding Maiteki, based on deposition testimony that actually explains Marten’s continuing use of speed-tracking data on its current drivers, not its ability to access historical data. (Id. at 15-16.)
• Maiteki’s Counsel deemed it “undisputed” that Marten, as a matter of policy, “does not use or even condone” speed-tracking technology (and therefore could not have known about speeding it attributed to Maiteki), citing a driver handbook and deposition testimony showing only that Marten does not condone its drivers’ use of devices such as radar detectors or police scanners-not that Marten disapproves of devices by which it can track its own drivers’ speed. (Id. at 17-19.) This Court specifically found that Maiteki’s Counsel’s characterization of Marten’s position was “intentionally misleading.” (Id. at 19.)[2]
• Maiteki’s Counsel argued that Marten’s trucks are governed and therefore “cannot speed past the posted speed limit anywhere, ” when Maiteki’s own deposition actually explained that Marten’s trucks cannot speed where the posted speed limit matches the governor’s speed limit. (ECF No. 19-20.) The Court found that ...

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