Sean STENSON, Plaintiff, v. Keith EDMONDS, and Cargill Meat Logistics Solutions, Inc., Defendants Civil Action No. 18-cv-01968-JLK United States District Court, D. Colorado Signed June 25, 2020 Counsel Marc Philip Harden, Britt Austin Holtz, Yerin E. Cho, Zaner Harden Law, LLP, Denver, CO, Anne Thomas Sulton, Sulton Law Offices, Milwaukee, WI, for Plaintiff. Christopher J. Casolaro, Isaac T. Smith, Faegre Drinker Biddle & Reath LLP, Denver, CO, urence W. DeMuth, III, Faegre Drinker Biddle & Reath LLP, Boulder, CO, for Defendants. Kane, John L., Senior United States District Judge ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR ATTORNEY FEES AND SANCTIONS (ECF NO. 42), DENYING AS MOOT MOTIONS FOR PROTECTIVE ORDERS (ECF NOS. 63, 65), AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY (ECF NO. 48) *1 Before me are the Motion for Attorney Fees and Sanctions (ECF No. 42) filed by Defendants Keith Edmonds and Cargill Meat Logistics Solutions, Inc. and Plaintiff Sean Stenson's Motion for Summary Judgment on the Issue of Liability (ECF No. 48). At the Motion Hearing held March 2, 2020, I heard argument and testimony on Defendants’ Motion for Attorney Fees and Sanctions. I did not rule on either motion at that time and continued proceedings to allow Defendants to subpoena Plaintiff's former counsel for information regarding Plaintiff's misconduct. Defendants issued subpoenas to Plaintiff's former counsel in this case from Zaner Harden Law, LLP, as well as attorneys from the Law Offices of Daniel R. Rosen P.C., which represented Stenson before this litigation commenced. Each law firm has moved for a protective order to limit or moot the subpoena. See Rosen Mot. for Protective Order, ECF No. 63; Zaner Harden Mot. for Protective Order & Clarification, ECF No. 65. The additional filings have provided information I did not have before, and I am satisfied that I can rule on the Motion for Attorney Fees and Sanctions based on the record before me. Thus, I find the subpoenas issued to Stenson's former counsel are mooted and counsel are under no obligation to provide additional responses to the subpoenas. The requests for protective orders are, therefore, DENIED AS MOOT as further inquiry into the appropriate scope of those subpoenas is unnecessary. Accordingly, for the reasons that follow, Defendants’ Motion for Attorney Fees and Sanctions (ECF No. 42) is GRANTED IN PART as specified below, and Plaintiff's Motion for Summary Judgment on the Issue of Liability (ECF No. 48) is DENIED WITHOUT PREJUDICE. BACKGROUND Stenson filed this lawsuit in August 2018 and was originally represented in this litigation by attorneys at Zaner Harden Law, LLP. Stenson asserts claims of negligence, negligence per se, and vicarious liability arising out of a traffic incident that occurred on August 1, 2016. See Compl., ECF No. 1; Am. Compl., ECF No. 35. According to Stenson, Defendant Edmonds’ negligent operation of the semi he was driving caused a motor vehicle collision that injured Stenson and damaged Stenson's vehicle. See Am. Compl. ¶¶ 15-18. Stenson further alleges that the semi was owned by Defendant Cargill and that Edmonds was acting in his capacity as an agent and/or employee at the time of the collision. See id. ¶¶ 13-14. On June 11, 2019, I granted Defendants’ Motion to Compel Discovery Responses and Order Release of Medical Records. See Order Granting Mot. to Compel, ECF No. 26. I stated that Stenson “has repeatedly failed to provide complete records, and he appears unwilling to request and produce all relevant pre-collision medical information himself.” Id. at 3. I also found Stenson's financial information relevant to his non-economic claims. See id. at 4. Stenson failed to comply with my order and continued to provide false assertions of complete production of financial records. Through their efforts to identify Stenson's financial accounts, Defendants discovered that he had produced falsified “paychecks” from an A2Z Radon LLC FirstBank account. The “paychecks” were never processed by FirstBank and were written from an account belonging to Stenson that was closed before they were supposedly dated. See Mot. Hr'g Tr. at 27:16-28:8, ECF No. 61;[1] see also Mot. for Att'y Fees & Sanctions at 5-6. *2 On November 22, 2019, Defendants filed their Motion for Attorney Fees and Sanctions. Also on November 22, 2019, Stenson's counsel at Zaner Harden moved to withdraw. I granted the Motion for Leave to Withdraw on November 25, 2019. I then stayed discovery in this case pending resolution of Defendants’ Motion for Attorney Fees and Sanctions and ordered Stenson to respond to that Motion. On January 12, 2020, Anne Sulton entered her appearance on behalf of Stenson. That same day, Ms. Sulton filed Plaintiff's Motion for Summary Judgment on the Issue of Liability. After both Plaintiff's and Defendants’ motions were fully briefed, I allowed Defendants to supplement their Motion for Attorney Fees and Sanctions with additional information. See Mot. to Supplement, ECF No. 57; Order Granting Mot. to Supplement, ECF No. 58. At the March 2, 2020 Motion Hearing, I expressed concern that Stenson's conduct could implicate the crime-fraud exception to attorney-client privilege and continued proceedings to allow Defendants to subpoena Stenson's former counsel for information regarding his misconduct. Defendants issued subpoenas to both Zaner Harden and the Law Offices of Daniel R. Rosen. Each law firm moved for a protective order to limit, moot, or clarify its obligations to comply with the subpoena. See Rosen Mot. for Protective Order at 3-5; Zaner Harden Mot. for Protective Order & Clarification at 15-17, 21. DISCUSSION I. Defendants’ Motion for Attorney Fees and Sanctions After considering the evidence presented on Defendants’ Motion for Attorney Fees and Sanctions, I find that Defendants are entitled to attorney fees and costs resulting from Stenson's misconduct and that dismissal of Stenson's non-economic claims is an appropriate sanction. Attorney Fees Federal Rule of Civil Procedure 37(a)(5)(A) provides that if a motion to compel discovery is granted, “the court must, 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.” The only exceptions to an award of attorney fees are if “(1) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (2) the opposing party's nondisclosure, response, or objection was substantially justified; or (3) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii). “The burden of persuasion is on the losing party to avoid the assessment of expenses and fees by showing that one of the Rule's three enumerated exceptions applies.” DCD Partners, LLC v. Albracht, No. 17-mc-00007-CMA-KLM, 2018 WL 6061295, at *4 (D. Colo. Nov. 20, 2018). None of the exceptions to Rule 37(a)(5) apply in this case. Defendants attempted to resolve discovery disputes before seeking action from the Court, and the Motion to Compel was necessitated by Stenson's unwillingness to provide a proper medical release and failure to produce complete records. Stenson's actions repeatedly frustrated discovery and were not substantially justified. Therefore, Defendants are entitled to the reasonable fees incurred by having to file the Motion to Compel. Defendants attest that they incurred $16,803 in out-of-pocket expenses on that motion and support the reasonableness of the fees charged with an affidavit. See Casolaro Aff., ECF No. 42-10. After review of that evidence, I find a fee award of $16,803 reasonable based on the “number of hours reasonably expended ... multiplied by a reasonable hourly rate.” Balkind v. Telluride Mountain Title Co., 8 P.3d 581, 587-88 (Colo. App. 2000). Defendants are also entitled to recover the expenses incurred in making and defending the Motion for Attorney Fees and Sanctions. See Chung v. Lamb, No. 14-cv-03244-WYD-KLM, 2018 WL 7141325, at *2 (D. Colo. June 7, 2018) (“Attorney[ ] fees can be awarded under Rule 37(a)(5)(A) for the time spent preparing fee statements and defending awards of attorney[ ] fees.”). Defendants shall submit an accounting of the expenses associated with their efforts to recover attorney fees, along with a supporting affidavit, to the Court for approval. Sanctions *3 In their original Motion for Attorney Fees and Sanctions, Defendants requested a sanction dismissing at least Stenson's non-economic claims for his interference with the judicial process pursuant to the Court's inherent powers or, in the alternative, for his failure to obey my Order granting the Motion to Compel. See Mot. for Att'y Fees & Sanctions at 2. Defendants supplemented that Motion to seek dismissal of the entire action with prejudice and to recover all costs and fees associated with the case. See Mot. to Supplement at 10-12. I have considered Defendants’ supplemental filings and find that, at this juncture, a sanction narrower than dismissal of the entire action is appropriate. The Court has the discretion to “levy sanctions in response to abusive litigation practices,” Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993), and may “fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 (1991). A district court may exercise its “inherent equitable powers to impose the sanction of dismissal with prejudice because of abusive litigation practices during discovery” upon evaluation of five factors: (1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for non-compliance; and (5) the efficacy of lesser sanctions.” Garcia v. Berkshire Life Ins. Co. of Am., 569 F.3d 1174, 1179 (10th Cir. 2009). Stenson's misrepresentations and misconduct interfered with these proceedings and prejudiced Defendants with undue delay and expense throughout discovery. The excuses he provided at the Motion Hearing are insufficient to negate his culpability.[2] However, he was not specifically warned in advance about the possibility of dismissal of the entire action with prejudice. And I must also consider whether lesser sanctions could efficaciously cure the harm to Defendants. Defendants urge me to make a dispositive determination regarding the merits of the case, arguing that Stenson “concocted a fraudulent claim regarding the cause, nature, and extent of his spinal injuries, and then used the Court to attempt a fraud in excess of $2 million.” Mot. to Supplement at 11. They contend that “newly-discovered evidence makes clear he had serious, chronic back injuries for which he was treated for years before the traffic incident.” Id. This evidence could ultimately be fatal to Stenson's case. However, it is not proper for me to make findings as to the cause, nature, and extent of his spinal injuries at this stage, especially when discovery was stayed and issues of material fact regarding his injuries could still be disputed. If additional sanctions later prove necessary, I will not hesitate to impose them.[3] But for now, I find that an appropriate sanction for Stenson's dishonest conduct is to preclude him from pursuing damages claims that rest on his own representations and statements. *4 Although Stenson has withdrawn his lost wages claim, he still seeks “past and future economic expenses, losses, and damages,” Am. Compl. ¶ 24, and “past and future non-economic damages including, but not limited to, pain and suffering, loss of enjoyment of life, inconvenience, and impairment of quality of life.” Pl.’s Initial Fed. R. Civ. P. 26(a)(1) Disclosures at 4, ECF No. 20-1; see also Am. Compl. ¶ 25.[4] His failure to produce complete records and his lack of veracity during discovery has prejudiced Defendants’ ability to investigate and defend against his non-economic damages claims. Such claims hinge on the veracity of Stenson's representations, which have repeatedly proven unreliable. Furthermore, his purported non-economic damages cannot be corroborated as easily as his asserted economic damages for medical and rehabilitation expenses. See Pl.’s Initial Fed. R. Civ. P. 26(a)(1) Disclosures at 4. Therefore, Stenson's non-economic damages claims are dismissed, and his potential damages are limited to those that can be verified or corroborated by other evidence—i.e., economic damages for medical and rehabilitation expenses. II. Plaintiff's Motion for Summary Judgment The day before responding to Defendants’ Motion for Attorney Fees and Sanctions, and after I stayed discovery pending resolution of Defendants’ Motion, Stenson moved for summary judgment on the issue of liability on all three of his claims: negligence, negligence per se, and vicarious liability. Summary judgment is only appropriate if the “movant can show that there is no genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it could influence the determination of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Adler v. Wal-Mart Stores, Inc., 144 F.3d 665, 670 (10th Cir. 1998). A dispute is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In reviewing a motion for summary judgment, I must view all evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler, 144 F.3d at 670. To establish a claim of negligence, a plaintiff must prove four elements: “a duty owed by the defendant to the plaintiff, a breach of that duty, injury to the plaintiff, and a proximate cause relationship between the breach and the injury.” Bedee v. Am. Medical Response of Colo., 361 P.3d 1083, 1087 (Colo. App. 2015) (citing Casebolt v. Cowan, 829 P.2d 352, 356 (Colo. 1992)). “A party may recover under a claim of negligence per se if it is established that the defendant violated the statutory standard and the violation was the proximate cause of the injuries sustained.” Dickinson v. Lincoln Building Corp., 378 P.3d 797, 807-08 (Colo. App. 2015). Additionally, an employer may be vicariously liable for the negligent acts of its employee, but that claim hinges on the underlying negligence of the employee. See Arnold By & Through Valle v. Colo. State Hosp., Dep't of Institutions, 910 P.2d 104, 107 (Colo. App. 1995) (“[A]n employer cannot be liable under the doctrine of respondeat superior unless the employee is liable ....”). Stenson asserts that there is no genuine dispute about breach of duty and causation. However, “the question of whether a person was negligent—that is, whether she breached her duty of care by acting unreasonably under the circumstances—is ordinarily a question of fact for the jury.” Hesse v. McClintic, 176 P.3d 759, 764 (Colo. 2008). Summary judgment would be especially inappropriate at this stage because Defendants have not yet been able to depose Stenson and maintain that their investigation into the nature of the collision is ongoing. See Defs.’ Resp. to Mot. for Summ. J. at 4, ECF No. 53.[5] And, far from being undisputed, the statements and evidence upon which Stenson relies are hotly contested. See, e.g., id. at 10 (arguing that Edmonds’ deposition testimony presents a genuine issue as to whether turning his truck was reasonable under the circumstances and whether Stenson drove negligently). Indeed, some of the facts Stenson claims are “undisputed” appear to be contradicted by the record. For example, Stenson claims that “Edmonds did not contest the traffic ticket,” Pl.’s Mot. for Summ. J. at 4, ¶ 22, but other evidence indicates that the ticket was dismissed after Edmonds successfully contested it through written correspondence. See Edmonds Decl. ¶¶ 6-7, ECF No. 53-3; Lakewood Municipal Court Records, CR# 16-031437, ECF No. 53-4. *5 Stenson's request for summary judgment is, at best, premature. Furthermore, he has failed to show that his theories of negligence are supported by undisputed facts in the record. Accordingly, his Motion for Summary Judgment on the Issue of Liability is denied without prejudice to allow him to again move for summary judgment if, once discovery closes, the evidence establishes the elements of his claims and the record reveals no genuine disputes of material fact. CONCLUSION For the reasons above, it is ORDERED that: (1) Defendants’ Motion for Attorney Fees and Sanctions (ECF No. 42) is GRANTED IN PART. Defendants are awarded $16,803 in expenses they incurred by having to make the Motion to Compel. Defendants are also awarded the reasonable expenses incurred in making and defending the Motion for Attorney Fees and Sanctions and shall submit an accounting of these expenses to the Court for approval. As a sanction for his misconduct, Plaintiff's non-economic damages claims are DISMISSED; (2) The discovery stay is lifted, and the parties shall confer and submit a revised Proposed Scheduling and Discovery Order with new deadlines for discovery and dispositive motions on or before July 16, 2020; (3) The subpoenas issued to Plaintiff's former counsel are mooted, and consequently, the Rosen Motion for Protective Order (ECF No. 63) and the Zaner Harden Motion for Protective Order and Clarification (ECF No. 65) are DENIED AS MOOT; and (4) Plaintiff's Motion for Summary Judgment on the Issue of Liability (ECF No. 48) is DENIED WITHOUT PREJUDICE. Footnotes [1] At the hearing, Stenson admitted that he wrote the fictitious checks to himself and stated that “they were a fraud.” Mot. Hr'g Tr. at 28:1-8. [2] Stenson claimed that he was sick, on opioids, and in a “drug stupor.” Mot. Hr'g Tr. at 28:1-21. [3] Lest there be any doubt, Stenson is officially on notice that I may dismiss this action in its entirety and require him to reimburse Defendants for all legal fees and costs if I find that the case itself was a fraud filed in bad faith. [4] Although Stenson has withdrawn his lost wages claim, see Pl.’s Resp. to Mot. to Compel at 8, ECF No. 21, his fabrication of paychecks also precludes him from pursuing economic damages for past or future wage loss. [5] Stenson also ignores that his own misconduct impeded and delayed discovery and necessitated Defendants’ Motion and the stay.