United States District Court, D. Nebraska
ELLA J. RHONE, as wife of Bruce N. Rhone, Sr., deceased; Plaintiff,
UNION PACIFIC RAILROAD CO., Defendant.
MEMORANDUM AND ORDER
R. ZWART, UNITED STATES MAGISTRATE JUDGE
court previously ordered Union Pacific is entitled to
sanctions in five separate cases, including the
above-captioned action. See, Byrd v. UPRR,
8:18-cv-36-CRZ; Jones v. UPRR, 8:18-cv-178-JFB-CRZ;
Reynolds v. UPRR, 8:18-cv-303-JFB-CRZ; Edgett v.
UPRR, 8:18-cv-407-JFB-CRZ; Rhone v. UPRR,
8:18-cv-00597-JFB-CRZ. These sanctions orders arose from the
plaintiffs' failure to timely comply with this
court's order requiring each plaintiff to show that he or
she was duly appointed as the personal representative or
administrator of his or her respective decedent
plaintiff's estate. Prior to their death, each of the
decedents were employees of Union Pacific. As to all five
cases, the plaintiffs are represented by the same attorney.
each of the five cases, Union Pacific's core briefing was
substantially the same, with additions to each brief
discussing the case-specific circumstances. The court's
order imposing sanctions stated that upon receiving
Defendant's itemized fee application, or a stipulation of
the parties as to the fees owed, the court would award
attorney fees to the defendant for conducting discovery and
filing a motion as to the plaintiffs' lack of capacity to
sue. The court clarified that Union Pacific was entitled to a
single, not quadruple, recovery for the attorney work and
briefing common to each case.
Pacific's fee applications request a total recovery of
$10, 664.50, allocated as follows: $8, 649.00 to Rhone; $1,
060.00 to Byrd; $875.50 to Jones; $40.00 to Reynolds; and
$40.00 to Edgett. As Jones, Reynolds, and Edgett, plaintiffs
did not object to the railroad's fee applications.
Plaintiff Rhone objects to the fee application, arguing Union
Pacific's evidence “is not explicit enough to
determine if the Defendant has billed ‘for re-inventing
the wheel, '” and having previously briefed the
same issues for cases filed by Plaintiff's counsel, Union
Pacific did not need to write a new brief. (Filing No. 30, at
CM/ECF p. 1) Plaintiff's counsel “seeks leave to
conduct limited discovery on the issue of redundant work
product and duplicative billings.” (Filing No. 30, at
CM/ECF p. 2).
Pacific responds that Plaintiff's objections are too
general to be considered. It further argues that in the prior
cases cited by Plaintiff's counsel, Union Pacific was
moving to dismiss, not for sanctions, and different research
was necessary. Finally, it argues:
Plaintiffs seemingly suggest that Union Pacific could have
(or even should have) copied-and-pasted its briefing from the
earlier cases. Union Pacific did not do so because the issues
involved are distinct and arose in different circumstances.
Its attention to those details, which led it to drafting a
new brief, hopefully resulted in better briefs and more
refined arguments. More thoroughly researched briefs are
hopefully more helpful to Courts than the one-size-fits-all
approach that Plaintiffs argue should have been employed.
Union Pacific should not be penalized for its lawyers'
conscientiousness and should receive the full amount of the
(Filing No. 32, at CM/ECF p. 4).
court agrees. Copy/pasted briefs are sometimes warranted, but
not when the issues, such as the standards for dismissal
compared to sanctions, are not identical. And copying from
prior briefs can stifle a party's ability to provide more
current and cogent arguments. The court cannot rely on the
general and cursory statements of Plaintiff's counsel as
a basis for second-guessing Union Pacific's belief that
new briefing was warranted under the circumstances. And the
court will not permit discovery on the issue of why Union
Pacific decided to write a new brief and whether that
decision was appropriate, particularly where Plaintiff's
counsel is already struggling to timely perform the discovery
needed on the underlying substantive claims.
on the evidence before the court, Union Pacific's core
brief applicable to all cases, and its reply brief for this
case, were primarily written by an associate who billed
$165.00 per hour. Plaintiff's counsel does not challenge
this billing rate, and the court finds it is very reasonable.
The associate spent 51.7 hours drafting the briefs; 20.2 of
those hours attributed to reviewing Plaintiff's opposing
brief and drafting a reply. Other than arguing that a new
brief was unnecessary, plaintiff's counsel does not
challenge the No. of associate hours spent on drafting the
briefs. The court finds the associate hours spent were
reasonable. The court also finds the additional review and
drafting time invested by the supervising partner, 2.6 hours
at $200.00 per hour, was abundantly reasonable. As requested, the
court will award $8, 649.00 to Union Pacific for time spent
in motion practice on the issue of capacity to
IT IS ORDERED that for the reasons stated in the court's
prior order, (Filing No. 24), Union Pacific's motion,
(Filing No. 29), is granted, and
1) Union Pacific is awarded attorney fees totaling $8, 649.00
as sanctions for the conduct of Plaintiff (or Plaintiff's
counsel) in filing a lawsuit for a deceased person when
Plaintiff lacked the capacity to do so, falsely stating in
the complaint that the filing person was the decedent
plaintiff's personal representative, and then, without
any explanation, failing to timely correct the
plaintiff's filing status when ordered to do so.
2) The sanctions amount assessed herein shall be paid to
Union Pacific on or before November 7, 2019.