McPhaul v. College Hills Opco, LLC et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SAMMIE MCPHAUL, as the surviving brother of
decedent, ALFRED MCPHAUL, and as the soon to
be appointed administrator of THE ESTATE OF
ALFRED MCPHAUL,
Plaintiff,
v.
COLLEGE HILLS OPCO, LLC, doing business as
Legacy at College Hill, and CAMPBELL STREET
SERVICES LLC,
Defendants.
Case No. 24-1143-JWB-BGS
MEMORANDUM AND ORDER
The matter comes before the Court on the motion for costs filed by Defendants College
Hills OPCO, LLC and Campbell Street Services, LLC (collectively, “Defendants”). Doc. 81. The
motion requests an award of costs and attorneys’ fees incurred from “Plaintiff’s failures to obey the
Court’s Scheduling Order and timely designate expert witnesses, and the motion practice that was
directly caused as a result of such failures.” Id. at 1. Plaintiff opposes the motion arguing that an
award of costs and fees is unjust. Doc. 86. After reviewing the parties’ briefs and supporting
memoranda, the Court GRANTS in part and DENIES in part Defendants’ motion.
I. 	Background.
The procedural background of this case was extensively recounted in the Court’s recent
order granting leave to amend the scheduling order. See Doc. 75. For that reason, the Court will not
repeat the entire factual background but will briefly summarize the facts relevant to the motion
before the Court.
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The present motion is a continuation of a previous dispute. The dispute concerned Plaintiff’s
request to amend the scheduling order to disclose experts out of time. Doc. 58. This request came
amid a flurry of motion practice, most of which was precipitated by Plaintiff’s failure to timely
designate an expert. Plaintiff missed his expert deadline by nearly two months. Motions that arose
from Plaintiff’s failure to meet the expert disclosure deadline were: Defendants’ joint motion for
summary judgment (Doc. 55), Plaintiff’s motion to amend the scheduling order (Doc. 58),
Defendants’ joint motion to strike (Doc. 68), and the present motion for costs (Doc. 81).
Ultimately, the Court granted Plaintiff’s motion to amend the scheduling order and denied
Defendants’ motion to strike. Doc. 75. In that order, the Court found that Plaintiff failed to show
good cause to amend the scheduling order and found that excusable neglect was not present.
However, after reviewing the relevant factors, the Court concluded that any prejudice to the
Defendants could be cured. Thus, the Court granted the motion to amend the scheduling order
which effectively foreclosed summary judgment on that issue (see Doc. 76) and allowed Plaintiff to
disclose expert testimony. Shortly thereafter, the Defendants filed their motion for costs which
seeks an award of costs and attorneys’ fees for Plaintiff’s dilatory conduct. The briefing on the
motion is complete and the Court is prepared to rule.
II. 	Analysis.
Defendants first argue the Court should impose sanctions under several bases, including
Fed. R. Civ. P. 16(f), Fed. R. Civ. P. 37(c), 28 U.S.C. § 1927, and the Court’s inherent authority. The
Court will first determine whether it has authority to award costs and attorneys’ fees and then
analyze whether such an award is appropriate under the relevant framework.
Defendant argues that under Fed. R. Civ. P. 16(f)(1)(C), the Court is authorized to award
expenses and attorneys’ fees when a party or its attorney fails to obey a scheduling order. Plaintiff
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does not argue or challenge the Court’s authority to impose sanctions under this rule, instead
dedicating most of his brief arguing that sanctions are not appropriate.
Federal Rule of Civil Procedure 16(f) provides:
(1) 	In General. On motion or on its own, the court may issue any just orders, including
those authorized by Rule 37(b)(2)(A)(ii) – (vii), if a party or its attorney:
(A) fails to appear at a scheduling or other pretrial conference;
(B) is substantially unprepared to participate – or does not participate in good
faith – in the conference; or
(C) fails to obey a scheduling or other pretrial order.
(2) 	Imposing Fees and Costs. Instead of or in addition to any other sanction, the court
must order the party, its attorney, or both to pay the reasonable expenses – including
attorney’s fees – incurred because of any noncompliance with this rule, unless the
noncompliance was substantially justified or other circumstances make an award of
expenses unjust.
The Court finds that failing to comply with the deadlines set forth in the scheduling order is conduct
sanctionable under Rule 16(f) and that it has authority to impose sanctions.
Having established the Court’s authority, the Court now turns to whether sanctions are
appropriate under the circumstances. The imposition of sanctions under Rule 16(f) is subject to the
court’s discretion. See Matter of Baker, 744 F.2d 1438, 1440, 1442 (10th Cir. 1984) (reviewing a
sanction imposed under Rule 16(f) for whether it was supported by the record and within the trial
court's discretion). Under Rule 16(f)(2), “‘[i]n the absence of a finding of bad faith, there must be a
sufficient nexus between noncompliance with the rules and the amount of fees and expenses
awarded as a sanction.’” Olcott v. Delaware Flood Co., 76 F.3d 1538, 1557 (10th Cir. 1996) (quoting
Turnbull v. Wilcken, 893 F.2d 256, 259 (10th Cir. 1990)).
In support thereof, Defendants emphasize that the Court has already found that Plaintiff
failed to show good cause and excusable neglect in relation to his late designation of expert
witnesses. They point out that the Court’s prior order stated that Plaintiff was aware of his expert
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disclosure deadline but failed to move for an extension of that deadline until nearly two months
after the deadline. Similarly, the Court found that Plaintiff’s delay was not compatible with a finding
of excusable neglect. Given the Court’s findings and the prejudice incurred, Defendants urge the
Court to find sanctions appropriate.
In support of their request under Rule 16(f), Defendants cite to Kiser v. Boeing Co., 163 F.R.D.
13 (D. Kan. 1995). Therein, the plaintiff provided an expert report four months after the expert
disclosure deadline and after a summary judgement motion had already been filed. Id., at 14. In
response, the defendant filed a motion to strike the untimely expert disclosure. Id. The court stated:
The failure to provide expert disclosures in a timely fashion in this case
is completely inexcusable. Counsel blatantly ignored the order of this
court, and failed to seek additional time if such was needed before
expert disclosures could be made. 	Instead, plaintiff waited until a
summary judgment motion had been filed, six weeks after the close of
discovery, to produce an expert report which plaintiff had been sitting
on for three months. 	There is no doubt in the court's opinion that
defendant has been severely prejudiced by the untimely action of the
plaintiff.
Id. Ultimately, the court denied defendant’s motion to strike and imposed sanctions under Rule
16(f). Id. In making that determination, the court held that it “cannot tolerate unexcused disregard
of deadlines set by the court which result in serious prejudice to the other party.” Id. The court in
Kiser ended up imposing an attorney’s fees award of $325.50, which was the amount incurred as a
result of filing the motion to strike.
Plaintiff argues that Kiser does not support sanctions in this case. He states that the Kiser
court recognized that “sanctions should not be lightly imposed” and courts should consider “the
least severe sanction” when imposing sanctions. Doc. 86, at 2. While the Court acknowledges this
principle, the Kiser court also found that “the court cannot tolerate unexcused disregard of deadlines
set by the court which results in serious prejudice to the other party” and found that sanctions under
Rule 16(f) “would appropriately balance these competing concerns.” Kiser, 163 F.R.D. at 14.
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To distinguish Kiser, Plaintiff argues that the plaintiff in Kiser “provided no explanation for
missing the deadline and waited until after summary judgment to disclose experts.” Doc. 86, at 8.
He contends that his own conduct demonstrated ongoing diligence, engaged discussions with
opposing counsel, and extensive explanations for his delay. Id.
The Court finds Plaintiff’s characterization of his conduct unpersuasive. In the prior order
granting leave to amend, the Court found that Plaintiff did not exercise “any degree of due
diligence” and provided “no explanation for his delay in seeking relief.” Doc. 75, at 9. Further, the
court in Kiser imposed an attorneys’ fees award because the plaintiff disregarded the deadlines in the
scheduling order when he attempted to designate an expert several months after the expert
disclosure deadline.
Likewise, here, the Court found that Plaintiff ignored deadlines, exercised undue delay, and
caused the Defendants prejudice. While the plaintiff in Kiser waited four months to designate an
expert (and after the discovery deadline), the Plaintiff in this case waited two months and also waited
until after a summary judgment motion had been filed. Both circumstances are egregious, and both
resulted in unnecessary expense and prejudice to the opposing party. The facts in the case are very
similar to the circumstances present in Kiser. Therefore, the Court is inclined to impose a sanction
of reasonable fees; however, before it does so, it will consider other arguments advanced by
Plaintiff.
Plaintiff argues that an appropriate sanction has already been imposed – public reprimand.
Specifically, he refers to language in the Court’s prior order which stated: “Plaintiff’s counsel is
warned that future failures to comply with the deadlines set forth in the scheduling order could
result in case dispositive sanctions. The Court has no appetite for further delays, particularly from
Plaintiff's counsel.” Doc. 75, at 16. Plaintiff’s conduct may have been lightly rebuked, but it served
as a caution that the Court may not be inclined to grant a similar motion in the future. The order
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did not, however, serve as a sanction. Nor did it cure the monetary prejudice Defendants incurred
by Plaintiff’s mistakes. The Court also cannot find that its “reprimand” serves the goal “to deter
and, if necessary, punish improper conduct.” Kiser, 163 F.R.D. at 14.
Plaintiff goes on to argue that a monetary sanction should not be imposed because he was
acting in good-faith, and the delays were caused by “legitimate confusion.” Doc. 86, at 5. Again, the
Court cannot agree with Plaintiff’s characterization. The deadlines in the scheduling order were
straightforward. Plaintiff needed to disclose his expert by April 14, 2025. Instead, Plaintiff waited
two months after the fact to ask for additional time, and after the Defendants filed a motion for
summary judgment on that issue. The Court understands that there is some factual dispute as to the
existence of agreements made between counsel (see, e.g., Doc. 75, at 6-8), but that does not affect
Plaintiff’s responsibility to request additional time when deadlines are approaching. The Court also
emphasizes that Plaintiff took no action for nearly two months and waited till after Defendants have
filed a motion for summary judgment. This goes beyond a simple missed deadline and elicits the
concerns noted by the Kiser court.
Plaintiff next argues that any prejudice to the Defendants is fully curable. He cites to the
Court’s prior order which found that the “the prejudice can be cured by deeming Plaintiff’s expert
disclosure timely served, giving Defendants' time to designate their experts, and resetting the case
schedule.” Doc. 75, at 15. He states that resetting the case schedule and allowing Defendants to
prepare their own experts completely remedies any harm from the late designation. Again, that
resolution may have cured the practical prejudice the Defendants incurred regarding preparing their
defense and getting the case back on track. It does not, however, cure the additional expense they
incurred from Plaintiff’s dilatory conduct.
Plaintiff also presents rehashed arguments from his motion to amend the scheduling order.
He argues that delays in document production prevented him from timely disclosing his experts. As
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the Court noted in its prior order, it may be true that Plaintiff was not able to designate experts, but
the appropriate course of action was to request additional time. Plaintiff did not. These arguments
were disposed of in the previous order, and the Court will not discuss them further.
Lastly, Plaintiff argues that strategic case decisions are not sanctionable. This refers to a
proposal discussed between the parties whereby the Plaintiff would dismiss the case without
prejudice subject to certain terms. The parties could not agree on terms and the proposal never
materialized. Plaintiff argues that he should not be penalized for not pursing the proposal. It is not
entirely clear whether Defendants are pursing attorneys’ fees for these matters, but their brief does
touch upon these events and, at least impliedly, suggests that Plaintiff’s conduct is also responsible
for these expenses. The Court will not impose any sanctions relating to the potential dismissal of
the case. Further, it will not impose any sanction regarding the previously filed motion to
consolidate or Defendants’ technical objections to Plaintiff’s expert disclosures – issues that
Defendants also raise in their brief. Those are too far attenuated from Plaintiff’s dilatory conduct
regarding the missed expert deadline. See Olcott, 76 F.3d at 1557 (finding that there must be a
sufficient nexus between noncompliance with the rules and the fees awarded as a sanction).
However, the Court will impose some monetary sanctions under Rule 16(f).1 The Court
agrees that reasonable monetary sanctions would be the least severe sanction to serve the purpose of
deterrence and compensating Defendants for the extreme delays in this case. To be clear, the Court
is not imposing monetary sanctions only because a deadline was missed. But because of the length
1 Since the Court finds that it has sufficient basis to impose sanctions under Rule 16(f), it need not make a
finding as to Defendants’ arguments under Rule 37(c) and 28 U.S.C. § 1927. However, as to Defendants’
argument that the Court may impose sanction on its own inherent authority, the Court agrees that is also has
authority it impose sanctions on that basis. In re Byrnes, No. BR 20-01070-T, 2023 WL 4362384, at *9 (D.
N.M. July 6, 2023) (stating that the court “may impose sanctions on a party for misconduct in discovery
under its inherent power to manage its own affairs”). See also Garcia v. Berkshire Life Ins. Co. of Am., 569 F.3d
1174, 1179 (10th Cir. 2009). The Court’s inherent authority to impose sanctions “can be invoked even if
procedural rules exist which sanction the same conduct.” Id. at 49.
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of delay, the resulting motion practice it caused, and the unnecessary expense Defendants incurred,
the Court finds these particular circumstances warrant a modest award of fees. Since the failure to
timely provide the expert report is clearly the error of counsel, whatever sanctions are imposed by
the Court will be imposed against Plaintiff’s counsel and not the Plaintiff.
“The Court should consider the following circumstances when determining the monetary
sanctions appropriate in a given case, all of which serve as limitations on the amount assessed: (1)
reasonableness calculation, (2) minimum to deter, (3) ability to pay, and (4) other factors (i.e.,
offending party’s history, experience, and ability, the severity of the violation, the degree to which
malice or bad faith contributed to the violation, the risk of chilling the type of litigation involved).”
Kiser, 163 F.R.D. at 15. Consistent with the above factors, the Court will consider an award of fees
for: (1) the motion for summary judgment (Docs. 55, 64), (2) the motion to amend the scheduling
order (Doc. 65), and (3) Defendants’ motion to strike (Docs. 68, 70). Defendants are cautioned that
it will not impose an award of excessive attorneys’ fees or award fees for duplicative tasks given that
the motions were filed jointly.
No later than November 19, 2025, Defendants shall provide Plaintiff with the exact dollar
amount attributed to the motions set forth above along with the corresponding billing statements.
Thereafter, the parties must confer on or before December 3, 2025, in an attempt to reach an
agreement regarding the issue of reasonable attorneys’ fees and expenses. Again, the Court cautions
Defendants that it will not impose an excessive award of fees, and any request should be limited to
the reasonable attorneys’ fees and expenses directly attributable to filing a response to Plaintiff’s
motion to amend the scheduling order, filing the motion to strike, and filing the motion for
summary judgment.
If the parties are unable to agree as to an appropriate amount of attorneys’ fees and
expenses, no later than December 10, 2025, Defendants shall file an affidavit and any supporting
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memoranda setting forth the claimed attorneys’ fees and expenses sought. Plaintiff shall then have
until December 17, 2025, to file a response. After reviewing the affidavit and any filed response,
the Court will enter a short order imposing its award of reasonable fees. The Court will take the
above factors into consideration when imposing the sanction.
In sum, the Court finds that Plaintiff's counsel’s failure to timely designate experts,
combined with the nearly two-month delay before seeking relief, warrants a monetary sanction
limited to the reasonable expenses Defendants incurred in responding to the motion to amend, filing
the motion to strike, and filing the summary judgment motion necessitated by that failure.
IT IS THEREFORE ORDERED that Defendants’ motion for costs (Doc. 81) is
GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that the parties confer regarding reasonable expenses by
December 3, 2025. If an agreement cannot be reached, Defendants shall file an affidavit by
December 10, 2025, setting forth the reasonable expenses requested. Plaintiff may file a response
on or before December 17, 2025.
IT IS SO ORDERED.
Dated November 12, 2025, at Wichita, Kansas.
/s/
Brooks G. Severson
United States Magistrate Judge
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