Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Eubanks v. Eubanks

United States District Court, E.D. Louisiana

October 17, 2017

IVAN EUBANKS
v.
SASKIA O. EUBANKS

         SECTION: “E” (1)

          SUSIE MORGAN JUDGE

          REPORT AND RECOMMENDATION

          Janis van Meerveld United States Magistrate Judge.

         On 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).

         Background

         Mr. 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.

         A key 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.

         Prior 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.

         At 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.

         On June 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 during 2016.

         Law and Analysis

         1. Attorney's Fees Award

         The 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 requested.

         Under 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 order.” Id.

         Similarly 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.