Lakey et al v. Taylor et al

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CYNTHIA LAKEY and DOUGLAS LAKEY, 	)
as co-Special Administrators for 	)
the Estate of Jared Lakey, 	)
)
Plaintiffs, 	)
)
v. 	) 	Case No. CIV-20-152-RAW
)
CITY OF WILSON, et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This 	matter 	comes 	before 	the 	Court 	on 	Plaintiffs’ 	Motion 	to
Compel 	(Docket 	Entry 	#294). 	The 	Motion 	was 	referred 	to 	the
undersigned Magistrate Judge for final determination by presiding
United 	States 	District 	Judge 	Ronald 	A. 	White. 	Because 	Plaintiffs
seek 	dispositive 	sanctions 	associated 	with 	the 	Motion 	to 	Compel
and 	the 	court-ordered 	settlement 	conference, 	the 	undersigned
Magistrate 	Judge 	has 	determined 	that 	a 	Report 	and 	Recommendation
is appropriate. 1
1 	The 	Court 	notes 	that 	Plaintiffs 	seek 	dispositive 	sanctions
directly against Defendant Bryant as a party, but they also seek monetary
sanctions 	against 	Defendant 	Bryant 	and/or 	his 	attorney 	under 	various
civil 	and 	local 	rules. 	Although 	a 	magistrate 	judge 	can 	issue 	an 	order
on a non-dispositive pretrial matter, including an award of attorney’s
fees 	and 	costs, 	a 	magistrate 	judge 	cannot 	order 	relief 	that 	is
dispositive 	of 	a 	claim 	or 	defense. 	See 	generally 	Ocelot 	Oil 	Corp. 	v.
Sparrow 	Industries, 	847 	F.2d 	1458, 	1465 	(10th 	Cir. 	1988) 	(finding 	the
striking of pleading as a discovery sanction is akin to an involuntary
dismissal and is therefore beyond the magistrate judge’s power to order);
Hutchinson 	v. 	Pfeil, 	1999 	WL 	1015557, 	at 	*2 	(10th 	Cir. 	Nov. 	9, 	1999)
(non-dispositive sanctions may be determined by a magistrate judge). In
an 	abundance 	of 	caution, 	the 	undersigned 	Magistrate 	Judge 	has 	elected
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The 	Court 	held 	a 	hearing 	on 	the 	Motion 	to 	Compel 	and
Plaintiffs’ 	subsequent 	request 	for 	sanctions 	on 	January 	4, 	2023.
Steven Terrill was present for Plaintiffs, Wellon Poe was present
for 	Defendant 	Bryant, 	and 	Randall 	Wood 	was 	present 	for 	Defendant
David Duggan.
Background and Hearing
Plaintiffs’ Motion centers on the failure of Defendant Chris
Bryant, 	sued 	individually 	and 	in 	his 	official 	capacity 	as 	Carter
County Sheriff, to disclose a reinsurance policy for his insurer,
Association of County Commissioners of Oklahoma Self-Insured Group
(“ACCO-SIG”), 	which 	Plaintiffs 	contend 	violates 	the 	initial
disclosure 	requirements 	under 	Fed. 	R. 	Civ. 	P. 	26(a)(1)(A)(iv),
LCvR 	16.2(d), 	and 	the 	Settlement 	Conference 	Order 	(Docket 	Entry
#91) entered in the case. Plaintiffs requested an order directing
the 	production 	of 	all 	reinsurance 	contracts 	by 	Defendant 	Bryant.
In 	response, 	Defendant 	Bryant’s 	counsel 	questioned 	whether 	a
reinsurance 	policy 	was 	subject 	to 	mandatory 	disclosure, 	but
contemporaneous 	with 	the 	filing 	of 	the 	response, 	he 	provided
Plaintiffs with supplemental Rule 26 disclosures, including a copy
of the reinsurance agreement for ACCO-SIG for the fiscal year 2019-
2020. 	See 	Docket 	Entry 	#298. 	He 	asserted 	that 	Plaintiffs’ 	Motion
was now moot.
to 	make 	a 	report 	and 	recommendation 	for 	the 	district 	judge’s
consideration pursuant to 28 U.S.C. § 636(b)(1).
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Plaintiffs replied that counsel’s failure to timely disclose
the 	reinsurance 	agreement 	not 	only 	violated 	Rule 	26, 	but 	also
precluded them from properly evaluating the case, making informed
decisions 	about 	strategy, 	or 	fully 	considering 	their 	settlement
position since they lacked coverage details and the identification
of 	persons 	with 	final 	settlement 	authority 	at 	the 	settlement
conference. In light of the failure to disclose, Plaintiffs sought
sanctions against Defendant Bryant under Fed. R. Civ. P. 16, Fed.
R. Civ. P. 37, and the Court’s inherent authority.
Counsel 	for 	Defendant 	Bryant 	requested 	permission 	to 	file 	a
sur-reply 	to 	address 	Plaintiffs’ 	request 	for 	sanctions. 	He
explained 	Carter 	County 	has 	a 	$2 	million 	dollar 	policy 	through
ACCO-SIG and the reinsurance agreement between ACCO-SIG and County
Reinsurance 	Limited 	(“CRL”) 	is 	a 	reimbursement 	policy 	and 	not 	an
excess insurance policy. He described the relationship as follows:
“ACCO-SIG simply gives notice of a potential claim as required by
the 	Treaty 	and 	advises 	and 	updates 	CRL 	as 	litigation 	continues,
and 	then 	seeks 	reimbursement 	for 	any 	funds 	expended 	over 	the
$500,000.00 	retention.” 	He 	further 	indicated 	that 	CRL 	in 	no 	way
dictates whether ACCO-SIG settles cases.
Plaintiffs 	maintain 	that 	the 	actions 	of 	Defendant 	Bryant’s
counsel 	(and 	his 	law 	firm) 	throughout 	this 	case 	and 	others
constitutes 	intentional 	or 	reckless 	disregard 	of 	the 	rules 	and
constitutes 	bad 	faith 	entitling 	Plaintiffs 	to 	sanctions. 	At 	the
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hearing, Plaintiffs reiterated that even though they now have the
reinsurance policy, they are unsure if a curative measure exists,
primarily based upon their lack of knowledge of the policy at the
settlement conference held before Magistrate Judge Jason Robertson
on May 18, 2022. They contend that not having the policy prior to
the settlement conference compromised their strategy because they
did not have a full understanding of all the policies possibly at
issue, and then made decisions after the settlement conference to
dismiss 	other 	defendants 	from 	the 	lawsuit. 	Moreover, 	Plaintiffs
assert 	that 	the 	language 	of 	the 	reinsurance 	policy 	suggests 	the
reinsurer 	may 	influence 	the 	settlement, 	pointing 	to 	language 	in
the agreement which states: “All Claim settlements that will give
rise 	to 	liability 	on 	our 	part 	under 	this 	Certificate 	require 	our
prior approval, which approval will not be unreasonably withheld.
Requests for settlement authority should be sent to our Executive
Director.” See Docket Entry #298-1, p. 4, ¶ C(2).
Defendant 	Bryant’s 	counsel 	acknowledged 	at 	the 	hearing 	that
the 	reinsurance 	policy 	should 	have 	been 	disclosed 	under 	Rule 	26
and 	that 	Defendant’s 	counsel’s 	law 	firm 	is 	now 	including 	the
reinsurance 	policy 	with 	its 	Rule 	26 	disclosures. 	He 	reiterated
that 	the 	policy 	is 	not 	an 	excess 	insurance 	policy, 	but 	it 	is 	a
reimbursement policy. He explained that any recovery is determined
according 	to 	the 	policy 	limits 	of 	the 	ACCO-SIG 	insurance 	policy,
and the reinsurance policy does not change the potential recovery
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under 	the 	insurance 	policy 	or 	what 	will 	be 	covered. 	The 	ACCO-SIG
claims 	representative 	receives 	his 	authority/approval 	from 	the
ACCO-SIG 	Board, 	and 	he 	attends 	a 	settlement 	conference 	with 	full
settlement 	authority. 	Although 	the 	claims 	representative 	may
notify 	the 	reinsurer, 	the 	reinsurance 	policy 	does 	not 	affect 	the
amount 	available 	under 	the 	insurance 	policy 	for 	settlement 	or
judgment. Defendant’s counsel indicated that even though the ACCO-
SIG 	insurance 	policy 	is 	a 	“diminishing 	policy,” 	the 	reinsurance
policy 	does 	not 	create 	a 	larger 	pool 	of 	money 	for 	a 	judgment 	or
settlement. He asserts that Plaintiffs have suffered no prejudice
from 	the 	failure 	to 	disclose 	the 	reinsurance 	policy 	prior 	to 	the
settlement 	conference 	because 	the 	ACCO-SIG 	claims 	representative
possessed 	authority 	to 	settle 	the 	case 	up 	to 	policy 	limits. 	He
further argued that on the day of the settlement conference there
was not a possible settlement.
At 	the 	conclusion 	of 	the 	hearing, 	the 	Court 	took 	the 	matter
under 	advisement 	and 	soon 	thereafter 	entered 	an 	Order 	directing
Plaintiffs’ counsel to file a statement of the amount of costs and
attorney’s 	fees 	expended 	in 	the 	preparation 	and 	attendance 	of
Plaintiffs 	and 	counsel 	at 	the 	May 	18, 	2022 	settlement 	conference
and 	the 	briefing 	associated 	with 	the 	Motion 	to 	Compel 	and
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subsequent request for sanctions. See Docket Entry #324. 2
Analysis
Federal Rule of Civil Procedure 26 states that “a party must,
without awaiting a discovery request, provide to the other parties
. 	. 	. 	for 	inspection 	and 	copying 	as 	under 	Rule 	34, 	any 	insurance
agreement 	under 	which 	an 	insurance 	business 	may 	be 	liable 	to
satisfy 	all 	or 	part 	of 	a 	possible 	judgment 	in 	the 	action 	or 	to
indemnify or reimburse for payments made to satisfy the judgment.”
Fed. 	R. 	Civ. 	P. 	26(a)(1)(A)(iv). 	It 	is 	clear 	to 	this 	Court 	that
under 	the 	plain 	language 	of 	Rule 	26, 	the 	ACCO-SIG 	reinsurance
policy 	should 	have 	been 	disclosed 	to 	Plaintiffs. 	Even 	though
Defendant 	Bryant’s 	counsel 	did 	not 	sign 	the 	Rule 	26 	initial
disclosures, once he entered an appearance in the case (a mere four
days after the filing of the initial disclosures), 3 he had a duty
to timely supplement the disclosures under Rule 26(e), which this
Court finds he did not do until after Plaintiffs filed their Motion
to Compel on September 2, 2022.
Moreover, this Court finds that by failing to timely disclose
the 	reinsurance 	policy, 	the 	May 	18, 	2022 	settlement 	conference
2 	Plaintiffs filed an Application for Costs and Fees Per Court
Order, 	which 	this 	Court 	construed 	as 	a 	Statement 	of 	Costs 	and 	Fees
Pursuant to Court Order.
3 	The Court notes that Mr. Poe did not sign Defendant Bryant’s
Initial Disclosures (Docket Entry #61) which were filed with the Court
on 	January 	29, 	2021. 	He 	entered 	an 	appearance 	in 	the 	case 	shortly
thereafter on February 2, 2021 (Docket Entry #62).
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before 	Magistrate 	Judge 	Robertson 	was 	compromised, 	as 	a
representative 	for 	the 	reinsurance 	provider 	did 	not 	attend 	the
settlement 	conference 	nor 	was 	Magistrate 	Robertson 	given 	the
opportunity to determine whether the representative’s presence was
required. See Settlement Conference Order (Docket Entry #91) at ¶
5, p. 2 (“Any insurance company that (1) is a party, (2) can assert
that it is contractually entitled to indemnity or subrogation out
of 	settlement 	proceeds, 	or 	(3) 	has 	received 	notice 	or 	a 	demand
pursuant 	to 	an 	alleged 	contractual 	requirement 	that 	it 	defend 	or
pay 	damages, 	if 	any, 	assessed 	within 	its 	policy 	limits 	in 	this
case 	must 	have 	a 	fully 	authorized 	settlement 	representative
present 	at 	the 	conference.”); 	see 	also 	LCvR 	16.2(d) 	(“Other
interested 	entities 	such 	as 	insurers 	or 	indemnitors 	shall 	attend
[the 	settlement 	conference] 	and 	are 	subject 	to 	the 	provisions 	of
this Rule. . . . [O]nly the settlement judge may excuse attendance
of any attorney, party or party representative.”). The record shows
that 	no 	representative 	was 	present 	at 	the 	settlement 	conference
for 	the 	reinsurer. 	See 	Docket 	Entry 	#264. 4 	This 	Court 	therefore
finds 	there 	were 	violations 	of 	Rule 	26, 	the 	Court’s 	Settlement
Conference Order, and LCvR 16.2(d).
4 	The minutes entered after the settlement conference show that
Defendant 	Bryant 	was 	present 	at 	the 	conference 	with 	his 	counsel, 	Mr.
Poe, 	a 	representative 	of 	Carter 	County, 	and 	the 	ACCO-SIG 	insurance
representative.
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Based 	upon 	these 	violations, 	Plaintiffs 	seek 	an 	array 	of
possible 	sanctions 	under 	Rule 	37, 	including 	sanctions 	directly
against Defendant Bryant under Rule 37(c)(1) - monetary sanctions,
wavier of privilege and compelling production of all files related
to 	the 	case, 	a 	show 	cause 	order, 	an 	order 	compelling 	Defendant
Bryant 	to 	produce 	the 	notice 	of 	claim 	to 	the 	reinsurer, 	an 	entry
of 	default 	against 	Defendant 	Bryant, 	the 	striking 	of 	unsupported
assertions 	or 	discovery 	on 	those 	issues 	at 	Defendant 	Bryant’s
expense, an order that a notice be filed in all the cases subject
to reinsurance for the last 10 years, and a referral to grievance
and 	disciplinary 	bodies. 	This 	Court, 	however, 	finds 	that 	Rule
37(c)(1) 	sanctions 	against 	Defendant 	Bryant 	are 	not 	warranted 	in
this case. There is no evidence that shows Defendant Bryant was in
any 	way 	culpable 	for 	counsel’s 	failure 	to 	timely 	disclose 	the
reinsurance policy or for the reinsurer’s lack of participation in
the 	court-ordered 	settlement 	process. 	The 	Court 	also 	finds 	that
the 	additional 	sanctions 	requested 	by 	Plaintiffs 	that 	directly
affect the party are inappropriate.
Based 	upon 	the 	briefing 	and 	arguments 	of 	counsel 	at 	the
hearing, this Court recommends that monetary sanctions in favor of
Plaintiffs and against Defendant Bryant’s counsel are warranted in
this 	case. 	Under 	Rule 	37(a)(5)(A), 	if 	a 	Motion 	to 	Compel 	for
failing to make a disclosure under Rule 26(a) is granted or if the
disclosure 	is 	made 	after 	the 	motion’s 	filing, 	“the 	court 	must,
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after 	giving 	an 	opportunity 	to 	be 	heard, 	require 	the 	party 	. 	. 	.
whose 	conduct 	necessitated 	the 	motion, 	the 	party 	or 	attorney
advising 	that 	conduct, 	or 	both 	to 	pay 	the 	movant’s 	reasonable
expenses 	incurred 	in 	making 	the 	motion, 	including 	attorney’s
fees.” 	Such 	fees 	and 	costs 	must 	be 	awarded 	unless 	Plaintiffs 	did
not make a “good faith” attempt to obtain the disclosure prior to
filing the Motion, the nondisclosure was substantially justified,
or other circumstances make such an award unjust. Here, the Court
finds that Plaintiffs made a good faith effort to obtain a copy of
the reinsurance policy from counsel prior to filing their Motion,
and 	the 	failure 	to 	disclose 	the 	reinsurance 	policy 	was 	not
substantially 	justified 	nor 	are 	there 	other 	circumstances 	making
an 	award 	of 	fees 	and 	costs 	against 	counsel 	unjust, 	as 	Rule 	26
specifically states that such a policy is subject to disclosure.
Moreover, this Court also finds that Plaintiffs are entitled
to reasonable fees and costs associated with the continued briefing
after Defendant Bryant’s counsel disclosed the reinsurance policy,
the 	fees 	and 	costs 	associated 	with 	the 	hearing, 	and 	the 	fees 	and
costs 	attributed 	to 	Defendant 	Bryant 	from 	the 	settlement
conference. 	Under 	LCvR 	16.2(d), 	the 	“[f]ailure 	to 	attend 	the
settlement conference or failure to cooperate fully may result in
the 	imposition 	of 	sanctions 	in 	accordance 	with 	the 	[the 	Court’s
local rules] . . . and Fed. R. Civ. P. 16(f).” Rule 16(f) provides
that 	“[o]n 	a 	motion 	or 	on 	its 	own, 	the 	court 	may 	issue 	any 	just
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orders 	. 	. 	. 	if 	a 	party 	or 	its 	attorney 	. 	. 	. 	fails 	to 	obey 	a
scheduling 	or 	other 	pretrial 	order.” 	The 	Court’s 	local 	rules
further 	provide 	that 	“[a]ny 	party 	who, 	in 	the 	Court’s 	judgment,
acts in bad faith or impairs settlement proceedings, may be subject
to 	appropriate 	sanctions.” 	(emphasis 	added). 	It 	continues 	that
“[f]ailure 	to 	appear, 	or 	to 	participate 	in 	good 	faith 	in 	a
settlement 	conference 	ordered 	by 	the 	Court, 	may 	result 	in 	any 	of
the 	following 	sanctions[,]” 	including 	an 	“assessment 	of 	expenses
and 	fees 	against 	a 	party, 	attorney 	individually, 	insurer 	or
indemnitor, 	or 	combination 	thereof[.]” 	LCvR 	16.2(l). 	Here, 	the
Court 	finds 	that 	pursuant 	to 	the 	Settlement 	Conference 	Order 	and
the Court’s local rules, the reinsurer should have participated in
the 	settlement 	conference. 	Because 	the 	reinsurer 	did 	not
participate, 	it 	is 	difficult 	to 	measure 	the 	prejudice 	to
Plaintiffs, but this Court finds that the reinsurer’s absence most
certainly 	impaired 	the 	settlement 	proceedings 	from 	Plaintiffs’
standpoint, and the Court hereby recommends that sanctions against
Defendant 	Bryant’s 	counsel 	are 	appropriate 	for 	Plaintiffs’
reasonable 	fees 	and 	costs 	associated 	with 	the 	settlement
conference, the briefing before the Court, and the hearing.
When determining if attorney’s fees and costs are reasonable,
the Court may utilize affidavits, briefs, depositions, and its own
knowledge and experience. See Jones v. Eagle-North Hills Shopping
Centre, L.P., 478 F. Supp. 2d 1321, 1326 (E.D. Okla. 2007), citing
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National Assoc. of Concerned Veterans v. Secretary of Defense, 675
F.2d 1319, 1325 (D.C. Cir. 1982). It may also rely on its knowledge
and 	experience 	when 	determining 	the 	appropriate 	number 	of 	hours
for the requested relief. See Case v. Unified Sch. Dist. No. 233,
Johnson County, Kan., 157 F.3d 1243, 1250 (10th Cir. 1998). In the
statement filed by Plaintiffs’ counsel, Plaintiffs seek $2,541.00
in 	costs 	and 	attorney’s 	fees 	associated 	with 	the 	settlement
conference 	and 	$17,975.00 	associated 	with 	the 	briefing 	on 	the
Motion 	to 	Compel, 	the 	subsequent 	request 	for 	sanctions, 	and 	the
hearing. 	Plaintiffs 	assert 	that 	a 	reasonable 	hourly 	rate 	for
counsel Spencer Bryan is $500.00 per hour and a reasonable hourly
rate for Steven Terrill is $350.00 per hour. The $500.00 per hour
rate is based on a stipulated rate approved by an Oklahoma district
court, 	Mr. 	Bryan’s 	specialty 	of 	practice, 	and 	his 	years 	of
practice. Mr. Terrill’s rate is based on specialty of practice and
his years of practice.
In counsel’s response to Plaintiffs’ statement, he primarily
challenges 	the 	reasonableness 	of 	the 	hourly 	rate 	for 	Plaintiffs’
counsel, 	asserting 	that 	Mr. 	Bryan’s 	rate 	was 	a 	stipulated 	fee 	in
state court (the reasonableness of the fee was not challenged) and
the specialty of practice for counsel is minimized since the matter
before 	the 	Court 	is 	a 	mere 	discovery 	matter. 	Regarding 	any 	fees
and 	costs 	associated 	with 	the 	settlement 	conference, 	Defendant
Bryant’s 	counsel 	asserts 	that 	because 	Defendant 	Bryant 	is 	one 	of
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three 	groups 	of 	defendants 	in 	the 	case, 	to 	the 	extent 	Plaintiffs
recover fees and costs associated with the settlement conference,
they are only entitled to recover one third of the total amount.
Based 	upon 	a 	review 	of 	Plaintiffs’ 	statement 	of 	fees 	and
costs, 	the 	parties’ 	briefing 	and 	argument 	at 	hearing, 	and 	the
results 	ultimately 	achieved 	by 	Plaintiffs, 	this 	Court 	recommends
that 	a 	reasonable 	hourly 	rate 	for 	Mr. 	Bryan 	is 	$350.00 	per 	hour
and a reasonable hourly rate for Mr. Terrill is $300.00 per hour.
The Court bases the hourly rate on what has been found reasonable
in this Court in the recent past. See, e.g., Singh v. ABF Freight
System, 	Inc., 	2021 	WL 	3666273, 	at 	*3 	(E.D. 	Okla., 	Aug. 	18, 	2021)
(finding 	the 	reasonable 	hourly 	rate 	on 	a 	motion 	to 	compel 	was
$350.00 	per 	hour). 	Moreover, 	the 	Court 	finds 	that 	the 	38.2 	hours
of time expended on the Motion to Compel, the subsequent research
and 	briefing 	on 	sanctions, 	and 	the 	hearing 	before 	the 	Court 	was
reasonable 	at 	the 	above 	hourly 	rates, 	for 	a 	total 	amount 	of
attorney’s 	fees 	and 	costs 	of 	$12,995.00. 	Further, 	the 	Court
recommends that Plaintiffs are only entitled to recover one-third
of 	the 	fees 	and 	costs 	associated 	with 	the 	settlement 	conference,
which totals $753.66. The Court hereby recommends that Plaintiffs
be 	awarded 	reasonable 	fees 	and 	costs 	in 	the 	total 	amount 	of
$13,748.66 against counsel for Defendant Bryant.
IT 	IS 	THEREFORE 	THE 	RECOMMENDATION 	OF 	THIS 	COURT 	that
Plaintiffs’ 	Motion 	to 	Compel 	(Docket 	Entry 	#36) 	be 	GRANTED, 	and
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that Plaintiffs be awarded a total of $13,748.66 for the reasonable
fees 	and 	costs 	associated 	with 	the 	filing 	of 	the 	Motion 	and 	as 	a
result 	of 	the 	failure 	by 	Defendant 	Bryant’s 	counsel 	to 	timely
disclose the reinsurance policy and the failure to comply with the
Court’s 	Settlement 	Conference 	Order 	and 	the 	Court’s 	local 	rules.
Any 	objections 	to 	this 	Report 	and 	Recommendation 	must 	be 	filed
within 	fourteen 	days. 	See 	18 	U.S.C. 	§ 	636(b)(1); 	Fed. 	R. 	Civ. 	P.
72(b).
DATED this 25th day of April, 2023.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
6:20-cv-00152-RAW Document 413 Filed in ED/OK on 04/25/23 Page 13 of 13