Giang v. DeJoy

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROSALINN M. GIANG, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-22-112-D
)
DAVID STEINER, Postmaster General, 	)
)
Defendant. 	)
ORDER
Before the Court is Defendant’s Motion for Attorney’s Fees with Brief in Support
[Doc. No. 97]. Plaintiff filed a response [Doc. No. 99], which includes 220 pages of
exhibits.1 Defendant filed a reply [Doc. No. 105]. The matter is fully briefed and at issue.
FACTUAL BACKGROUND2
This action stems from Plaintiff’s former employment with the United States Postal
Service (USPS). Plaintiff filed suit against the Postmaster General, alleging that during her
employment as a mail processing clerk, she was discriminated against because of her race,
gender, national origin, age, and disability. Plaintiff further alleged that she was subjected
to a hostile work environment, retaliated against for engaging in EEO activities, and
constructively discharged.
1 Plaintiff’s response indicated that she was proceeding pro se, although she was represented by
counsel at the time of filing. The Court directed Plaintiff’s counsel to file a motion to withdraw if
she no longer represented Plaintiff [Doc. No. 102]. Thereafter, Cynthia Rowe D’Antonio filed a
Motion to Withdraw as Counsel for Plaintiff [Doc. No. 103], which is hereby GRANTED.
2 This factual background is largely taken from the Court’s Order granting Defendant’s Motion for
Sanctions [Doc. No. 93].
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Defendant filed a Motion to Dismiss [Doc. No. 29], which the Court granted in part
and denied in part [Doc. No. 48]. Only Plaintiff’s claims for Title VII retaliation, retaliatory
hostile work environment, and constructive discharge survived dismissal. In support of her
claims, Plaintiff had supplied the Court with various signed witness statements concerning
her allegations.
On November 26, 2024, Defendant filed a Notice of Suspected Fraud Committed
Upon the Court and Motion for a Stay of Proceedings [Doc. No. 72]. In it, Defendant
alleged that Plaintiff had submitted false and fraudulent statements to the Court in support
of her claims. Defendant stated that, for several of Plaintiff’s witness statements, “the
substantive content of the statements ha[d] often proven to be untrue or unknowable by the
named witness” and “the named witnesses neither signed nor ratified the statements.” Id.
at 1. In response, Plaintiff seemed to argue there was no harm “because the Plaintiff’s
documents, exhibits previously filed in this action have been all stricken and were not
considered by the Court.” [Doc. No. 75, at 1-2].
Given the seriousness of Defendant’s allegations, the Court stayed the action for
ninety days, subject only to Defendant seeking limited discovery into fabricated and/or
wrongfully obtained evidence in this case. In that Order [Doc. No. 80], the Court noted that
Plaintiff seemed to lack an appreciation for the seriousness of Defendant’s allegations, and
the Court further notified Plaintiff that courts have “issued the harsh sanction of dismissal
for far less serious offenses.” Id. at 2. The Court also ordered Plaintiff to comply with
discovery into the limited issue of fraudulent or fabricated statements. Id. at 3.
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Following the limited discovery period and expiration of the stay, Defendant filed a
Motion for Sanctions [Doc. No. 86], seeking dismissal of Plaintiff’s action, pursuant to the
Court’s inherent authority and Federal Rules of Civil Procedure 11, 37, and 41.
On February 6, 2026, the Court granted Defendant’s motion for sanctions and
dismissed this action with prejudice to refiling. In that Order [Doc. No. 93], the Court
concluded that many of Plaintiff’s witness statements filed in this action were either not
drafted or not signed by the purported witness. One witness declared that he was “not even
aware of the names Quang Nguyen and Rosalinn Giang before seeing” the signed witness
statement that Plaintiff attributed to him. Id. at 4. Facing several witnesses’ declarations
that they had not seen, drafted, or signed the purported witness statements, the Court noted
that Plaintiff repeatedly doubled down and argued either that the witness did sign the
statement or that the witness had since changed their story. Id. at 12.
The Court further found that Plaintiff had failed to participate in the discovery
period related to Plaintiff’s fraudulent witness statements. Id. at 14. The Court noted that
Plaintiff had failed to respond to Defendant’s third set of discovery requests (after receiving
a 2-week extension) and failed to appear for the February 4, 2025 inspection of the original
signed witness statements. Id. at 14-15. Upon analyzing the Ehrenhaus factors for the
sanction of dismissal, the Court concluded that dismissal of this action was appropriate. Id.
at 11-17; see Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992).
Thereafter, Defendant filed the present Motion for Attorney’s Fees [Doc. No. 97],
pursuant to Rule 37(b)(2)(C).
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STANDARD OF DECISION
FED . R. CIV . P. 37 provides that if a party “fails to obey an order to provide or permit
discovery,” 	the 	Court 	may 	invoke 	sanctions, 	to 	include 	“dismissing 	the 	action 	or
proceeding in whole or in part.” F ED . R. CIV . P. 37(b)(2)(A)(v).3 Subsection (b)(2)(C)
provides that “[i]nstead of or in addition to the [sanctions] above, the court must order the
disobedient party … to pay the reasonable expenses, including attorney’s fees, caused by
the failure, unless the failure was substantially justified or other circumstances make an
award of expenses unjust.” F ED . R. CIV . P. 37(b)(2)(C).
DISCUSSION
I. 	Timeliness of Plaintiff’s Response to Motion for Attorney’s Fees
Pursuant to the Court’s Local Civil Rules, “[o]bjections to the allowance of
attorney’s fees must be filed within 14 days from the date the motion for attorney’s fees is
filed.” LCvR54.2. Plaintiff filed her response 21 days after Defendant’s motion for
attorney’s fees was filed, rendering the response untimely. Thereafter, Plaintiff filed a
Motion for Leave to Approve to Submit Evidence and Explanation for Untimely Response
to Defendant’s Motion for Attorney’s Fee [Doc. No. 104]. Construing Plaintiff’s motion
for leave as a request to deem her response timely, Defendant notified the Court that he did
not object to the Court deeming Plaintiff’s response timely, but that he did object to any
additional arguments contained therein. [Doc. No. 106]. Given that Defendant does not
3 The Court also has the inherent authority to “impose appropriate sanctions to discourage
misconduct and protect the integrity of judicial proceedings.” United States v. Rapower-3, LLC,
470 F. Supp. 3d 1232, 1249 (D. Utah July 6, 2020).
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object, the Court will deem Plaintiff’s response to Defendant’s motion for attorney’s fees
timely filed.
II. 	Attorney’s Fees
Defendant seeks attorney’s fees for counsel’s time spent seeking discovery into and
litigating the issue of Plaintiff’s fraudulent submissions to the Court. During the course of
the limited discovery into fraudulent witness statements submitted by Plaintiff, the Court
previously found that Plaintiff had failed to respond to Defendant’s third set of discovery
requests and had failed to produce documents for inspection. As stated above, the Court
must order Plaintiff to pay the reasonable expenses associated with these failures “unless
the failure was substantially justified or other circumstances make an award of expenses
unjust.” FED . R. CIV . P. 37(b)(2)(C).
In response, Plaintiff first contends that an award of expenses would be unjust due
to financial hardship. However, in 225 pages of exhibits, Plaintiff does not provide the
Court with any documentation related to her alleged financial hardship. See Blackburn v.
Webb, No. CIV-23-379-R, 2024 WL 4607718, at *4 (W.D. Okla. Oct. 29, 2024) (“The
imposition of fees [under Rule 37(b)(2)] is mandatory upon the Court unless it would be
unjust to do so. Similar to the analysis above, the fact that Plaintiffs are pro se paupers does
not preclude them from being sanctioned with fees.”).
Next, Plaintiff argues that she was unable to answer the third set of interrogatories
in writing due to her being out of state taking care of her daughter who was in a coma from
October 2024 until her death in April 2025. In his reply, Defendant provides:
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Although Plaintiff now claims that her comatose daughter
prevented 	her 	from 	complying 	with 	the 	Court’s 	Order
regarding discovery in this case, this is the first instance in
which undersigned counsel is aware where Plaintiff claims she
was unable to comply with discovery due to a comatose
daughter. Multiple filings were made by the Plaintiff during the
time this event was said to occur, and none of them mention
this fact. Indeed, when Plaintiff was deposed regarding these
issues and extensively questioned as to the reasons for her
failure to respond to the Defendant’s discovery requests or
allow inspection of documents, Plaintiff’s response as to the
inspection of documents was ‘Of course I don’t want to.’
Following that admission, Plaintiff gave numerous unrelated
explanations for her failure to provide documents and allow
inspection of original statements, claiming she was out of
town, she forgot, she was trying to get an attorney, she was
sick, and/or her husband was sick. Critically, in none of her
explanations does Plaintiff include caring for a comatose
daughter or her family. Nor was this listed as a reason for her
need to seek extensions for discovery responses, inspection of
documents, or the rescheduling of her deposition, all topics
upon which the Plaintiff and Defendant emailed extensively.
This situation similarly did not keep Plaintiff from sending the
Defendant discovery requests or from filing a Motion to
Compel. In short, it is simply not a credible justification for
failing to comply with the Court’s Order regarding discovery.
[Doc. No. 105, at 3].
Upon reviewing the discovery materials, e-mails between Plaintiff and defense
counsel, e-mails between Plaintiff’s counsel and defense counsel, and the case record, the
Court finds no record of Plaintiff mentioning her daughter when asking for extensions,
filing her own motion to compel, or during her deposition.4 Although the Court is hopeful
4 Even in Plaintiff’s Response to Defendant’s Motion for Sanctions [Doc. No. 89], which was filed
with the assistance of counsel, Plaintiff’s response merely provides that “from January 2025 to
February 2025, Plaintiff was dealing with out-of-state travels, a severely ill Husband, and was
searching for an attorney,” and that the third set of discovery requests from Defendant “may have
been inadvertently overlooked.” Id. at 9.
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that Plaintiff would not mislead the Court about her daughter’s coma or death, the Court
finds that Plaintiff has not shown a substantial justification for failing to participate in
discovery, especially considering that Plaintiff’s contemporaneous excuses were limited to
circumstances such as Plaintiff being sick, out of town, forgetting, and trying to hire an
attorney.5
Next, Plaintiff asserts that she invited defense counsel to review the signed witness
statements on February 28, 2025, April 24, 2025, May 5, 2025, and May 23, 2025. Even if
true, all of these offers came after Plaintiff had failed to appear at the documents inspection
with the signed statements, and three of these offers came after Defendant had already
moved to dismiss this action as a sanction.
Aside from these arguments, Plaintiff appears to triple down on her underlying
claims and continues to stand by the witness statements that the Court previously found
were either fabricated or forged. Plaintiff argues that she has “demonstrated that her
documents are authentic and credible, and she apparently had no control over employees
changing their sto[ry] for motivational purposes, such as promises of promotions within
the U.S. Post Office.” [Doc. No. 99, at 5]. Nothing in Plaintiff’s response causes the Court
to reconsider its previous finding that Plaintiff’s witness statements were either not drafted
by, shown to, and/or executed by the witness tied to the statement. Further, at least three
5 And, in the Court’s Order granting Defendant’s Motion for Sanctions [Doc. No. 93], the Court
found “Plaintiff’s various excuses for not attending the February 4 inspection—that she was afraid
Defendant would take the documents, that she was sick, that her husband was sick, and that she
forgot—[were] not credible.” Id. at 14.
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witnesses declared that they either had no knowledge of the facts contained in their witness
statement [Doc. No. 93, at 5-6], with another witness declaring that he “was not even aware
of the names Quang Nguyen and Rosalinn Giang before seeing [his purported] statement.”
Id. at 4. Plaintiff’s continued insistence that her witnesses all signed the witness statements
for Plaintiff, then conspired to change their stories for various reasons, does not persuade
the Court that a monetary sanction under F ED . R. CIV . P. 37(b)(2)(C) would be unjust.6
For these reasons, the Court finds that an award of expenses under Rule 37(b)(2)(C)
is appropriate.
III. 	Amount of Fees
Having concluded that attorney’s fees are appropriate under Rule 37(b), the Court
must decide the reasonable amount of fees to award Defendant. “A court will generally
determine what fee is reasonable by first calculating the lodestar—the total number of
hours reasonably expended multiplied by a reasonable hourly rate—and then adjust the
lodestar upward or downward to account for the particularities of the suit and its outcome.”
Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997). “Counsel for the party claiming
6 As Defendant points out, Plaintiff’s response also includes statements that are demonstrably
untrue. Plaintiff claims that she informed defense counsel that she was traveling and would not be
back to Oklahoma City until “after February 2025.” However, the e-mails attached to Plaintiff’s
response reflect that Plaintiff told defense counsel that she would not be back until “after January
2025,” which defense counsel maintains is the reason why the documents inspection was
rescheduled for February 4, 2025 [Doc. No. 99-7, at 3]. In fact, in Plaintiff’s December 30, 2024
email, she notes that she will be “in town by February 3, 2025” and asks that defense counsel
“[p]lease reschedule the appointment to produce for inspection original signed witness statements
after February 3, 2025.” [Doc. No. 99-7, at 2]. In another portion of her response, Plaintiff implies
that Defendant also committed discovery violations by failing to respond to Plaintiff’s Motion to
Compel [Doc. No. 79]. However, the Court denied Plaintiff’s motion to compel prior to
Defendant’s response deadline for Plaintiff’s failure to confer in good faith as required by
LCvR37.1 [Doc. No. 82].
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the fees has the burden of proving hours to the district court by submitting meticulous,
contemporaneous time records that reveal … all hours for which compensation is requested
and how those hours were allocated to specific tasks.” Case v. Unified Sch. Dist. No. 233,
Johnson Cnty. Kan., 157 F.3d 1243, 1250 (10th Cir. 1998). A district court may “reduce the
reasonable hours awarded if ‘the number [of compensable hours] claimed by counsel
include[s] hours that were unnecessary, irrelevant and duplicative.’” Case, 157 F.3d at 1250
(citation omitted).
First, the Court finds that defense counsel Sarah A. McMurray’s hourly rate of $215
is reasonable. In making this determination, the Court notes Ms. McMurray’s 12 years of
experience 	in 	litigation, 	“to 	include 	extensive 	experience 	defending 	employment
discrimination cases.” [Doc. No. 97, at 4]. The hourly rate of $215 is also within the range
of reasonable rates charged by attorneys in the Oklahoma City metropolitan area, with
which the Court is familiar.
Next, the Court must assess the reasonableness of the hours billed by defense
counsel. In her Certification and Declaration [Doc. No. 97-1], Ms. McMurray certifies the
following hours:
• 	2 hours drafting discovery requests and deficiency
letters 	regarding 	the 	limited 	issue 	of 	Plaintiff’s
fabricated statements
• 	12 hours preparing for and taking Plaintiff’s deposition
• 	2 hours appearing at Koquise Edwards’ deposition
• 	9 hours reviewing and compiling relevant materials for,
drafting, and revising the Motion for Sanctions [Doc.
No. 86] and Reply [Doc. No. 92]
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• 	1 hour drafting the Motion for Attorney’s Fees [Doc.
No. 97] and Declaration [Doc. No. 97-1]
[Doc. No. 97-1, at 2-3]. For these 26 hours spent, defense counsel seeks $5,590 in fees (26
x $215).
Pursuant to Rule 37(b)(2)(C), the fees requested by defense counsel must be “caused
by the failure” necessitating the sanction(s) issued under Rule 37(b)(2)(A). To that end,
defense counsel has not sufficiently explained how taking the deposition of Plaintiff and a
key witness were caused by Plaintiff’s failures to cooperate with discovery. The same is
true for defense counsel’s time spent “drafting discovery requests,” which is block-billed
with defense counsel’s time spent drafting deficiency letters. As there is not a sufficient
explanation in Defendant’s motion or declaration that this time was billed in connection
with Plaintiff’s failures to cooperate with discovery, this time will not be considered.7
However, the Court will consider defense counsel’s nine hours of time billed for
reviewing and compiling relevant materials for, drafting, and revising the Motion for
Sanctions [Doc. No. 86] and Reply [Doc. No. 92], as well as the one hour spent drafting
the present Motion for Attorney’s Fees [Doc. No. 97] and Declaration [Doc. No. 97-1]. By
their nature, these actions were necessitated by Plaintiff’s failure to cooperate in the
discovery ordered by the Court, and these are proper fee items under Rule 37(b)(2)(C). See
7 And, because the Court has already imposed the harsh sanction of dismissal with prejudice, the
Court declines to award this portion of the requested attorney’s fees under the Court’s “inherent
power to assess attorney’s fees … for actions taken in bad faith, vexatiously, wantonly, or for
oppressive reasons.” See Sun River Energy, Inc. v. Nelson, 800 F.3d 1219, 1227 (10th Cir. 2015)
(citation omitted).
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Case, 157 F.3d at 1254 (“An award of reasonable attorneys’ fees may include compensation
for work performed in preparing and presenting the fee application.”) (quoting Mares v.
Credit Bureau of Raton, 801 F.2d 1197, 1205 (10th Cir. 1986)).
Finally, the Court notes that Defendant did not provide contemporaneous billing
records for the Court’s review, and Defendant’s Declaration [Doc. No. 97-1] contains
“block-billing” descriptions of defense counsel’s time spent on the motion for sanctions
and motion for attorney’s fees. Based on the length and detail of the Motion for Sanctions
[Doc. No. 86]—and because defense counsel had to parse through a lengthy response brief
in preparing the Reply [Doc. No. 92]—the Court has no reason to find this billed time
unreasonable. However, because billing records are expected to be “meticulous,” the Court
will apply a 25% reduction to account for the issue of block-billing. See Okla. Nat. Gas
Co. v. Apache Corp., 355 F. Supp. 2d 1246, 1265 (N.D. Okla. 2004) (“Instead, the
undersigned will adopt the tack taken by courts that have used a general reduction to
compensate for hours not properly recorded.”) (citing cases); Davis v. Dura-Line Corp.,
No. CIV-22-224-RAW-GLJ, 2023 WL 6129489, at *3 (E.D. Okla. Sept. 19, 2023) (“The
Court therefore finds a reduction is appropriate due to the block billing submitted by
Defendant’s counsel in this case.”); Payne v. Tri-State Careflight, LLC, 278 F. Supp. 3d
1276, 1299 (D.N.M. 2017) (“Block billing does not call for disallowing the entire sum,
although the Court may reduce the overall amount.”). Accordingly, the Court will further
reduce Defendant’s attorney’s fee award by 25% to account for the block billing provided
by defense counsel.
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The permitted 10 hours of time billed at $215/hour ($2,150), further reduced by
25% as provided herein, amounts to an attorney’s fee award of $1,612.50.
CONCLUSION
For these reasons, Defendant’s Motion for Attorney’s Fees with Brief in Support
[Doc. No. 97] is GRANTED in part as set forth herein. IT IS THEREFORE ORDERED
that Plaintiff must pay to Defendant attorney’s fees in the amount of $1,612.50 within 45
days of this Order.
IT IS SO ORDERED this 18th day of June, 2026.
TIMO~½ E	~,~~lUNITED STA TE S DISTRICT m DGE
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