United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
van Meerveld United States Magistrate Judge.
August 4, 2017, the District Judge ordered that plaintiff
Ivan Eubanks pay the reasonable expenses incurred by
defendant Saskia O. Eubanks as a result of Mr. Eubanks'
failure to comply with the Court's orders and referred
the matter to the undersigned for a calculation of the amount
owed. (Rec. Doc. 128).
Eubanks filed this lawsuit on February 10, 2017, pursuant to
the Hague Convention of the Civil Aspects of International
Child Abduction (the “Convention”) claiming that
his wife, Ms. Eubanks, wrongfully removed their minor
children E.E. and P.E. from the Cayman Islands and was
wrongfully retaining them in the United States in violation
of the Convention. He sought to have the children returned to
the Cayman Islands. As a threshold to pursue his claims
pursuant to the Convention, Mr. Eubanks was required to prove
that the children were habitually resident in the Cayman
Islands. The District Court issued a scheduling order
requiring that all written discovery be propounded by March
3, 2017, and all responses to that discovery be provided by
March 10, 2017. The matter was tried before the District
Judge without a jury on May 11 and May 12, 2017. The Court
found that Mr. Eubanks had failed to prove that the children
were habitually resident in the Cayman Islands at the time
they were removed by Ms. Eubanks. Having failed to prove the
threshold issue, the Court denied his Verified Complaint for
Return of Children to the Cayman Islands.
factor considered by the Court was that although Mr. Eubanks
testified that he did not actively seek other employment
while living in the Cayman Islands, this statement was proven
false by certain untimely produced emails. Instead, the
emails revealed countless communications between Mr. Eubanks
and potential employers in 2016 including the United States
Department of State, corroborating Ms. Eubanks' testimony
that Mr. Eubanks was very actively pursuing a position with
the State Department while in the Cayman Islands.
to this production, for many months, Mr. Eubanks had denied
that he had engaged in such discussions or that such
communications existed in writing, despite being asked
repeatedly and specifically. On March 3, 2017, Ms. Eubanks
had requested that Mr. Eubanks produce any and all
correspondence between himself and any prospective employer
from January 1, 2015, through the present. She also served
Interrogatories asking Mr. Eubanks to identify each
individual or entity that he had contacted for the purposes
of obtaining employment since January 1, 2015. Pursuant to
the Court's February 24, 2017, Scheduling Order, Mr.
Eubanks was required to produce the requested correspondence
by March 10, 2017. But his response did not include the names
of any individuals or entities that he corresponded with
during 2016 or 2017, nor did it include any correspondence
for this time period although the time period was clearly
within the scope of the request.
trial on May 11, 2017, Mr. Eubanks first testified under oath
that he did not apply for any jobs in 2016, but on cross
examination, he admitted he had applied for a job with the
State Department in 2016. The Court ordered that he perform
another search for emails responsive to Ms. Eubanks'
request. The next morning he produced three documents and
offered no explanation for his earlier failure to produce
them. The Court questioned Mr. Eubanks' counsel regarding
the method used to identify responsive correspondence and
when it became clear that Mr. Eubanks had performed the
search himself without the assistance of his counsel or a
professional third-party vendor, the Court ordered Mr.
Eubanks to retain a third-party vendor to perform a complete
search of his emails.
13, 2017, pursuant to the Court's order, Mr. Eubanks
produced over 1, 800 responsive emails, including countless
communications between Mr. Eubanks and potential employers
Attorney's Fees Award
District Court ordered that Mr. Eubanks pay Ms. Eubanks'
reasonable attorneys' fees incurred as a result as his
failure to comply with the Court's orders as a sanction
pursuant to Federal Rule of Civil Procedure 37(b)(2). The
Court found that Mr. Eubanks had violated both the
Court's written scheduling order of February 24, 2017, as
well as the Court's oral order on May l1, 2017, by
failing to timely produce the correspondence Ms. Eubanks had
rule 37(b)(2), “[i]f a party . . . fails to obey an
order to provide or permit discovery . . . the court must
order the disobedient party . . . to pay the reasonable
expenses, including attorney's fees, caused
by the failure.” Id. (emphasis added).
“[T]he assessment of attorney's fees is penal in
nature; it is designed to penalize those who engage in the
charged conduct and to deter others who might be tempted to
follow in similar conduct.” Batson v. Neal Spelce
Assocs., Inc., 765 F.2d 511, 516 (5th Cir. 1985). The
United States Court of Appeals for the Fifth Circuit has
explained that this discovery sanction “provides that
only those expenses, including fees, caused by the failure to
comply may be assessed against the noncomplying party.”
Id. Thus, in Batson, the Fifth Circuit
reversed the district court's award of a lump sum of $30,
000 in attorney's fees and remanded for reconsideration
because the original award included attorney's fees
“for discovery matters that were not related to
[plaintiff's] failure to comply with the court's
here, the assessment of fees owed pursuant to the discovery
sanction ordered by the District Judge can only encompass
those fees incurred by Ms. Eubanks which are related to Mr.
Eubanks' failure to comply with the Court's orders.
Ms. Eubanks argues that all fees and costs incurred by her
after February 1, 2017, “would have been substantially
curtailed” had Mr. Eubanks complied with the
Court's discovery orders and that, therefore, these fees
and costs should be awarded to her in their ...