UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA File No. 14-CV-1597 (MJD/FLN) Plaintiffs,

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1 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 1 of 39 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA File No. 14-CV-1597 (MJD/FLN) Sheldon Peters Wolfchild, Ernie Peters Longwalker, Scott Adolphson, Morris Pendleton, Barbara Buttes and Thomas Smith, on behalf of themselves and all others similarly situated, vs. Plaintiffs, Redwood County, Paxton Township, Sherman Township, Honner Township, Renville County, Birch Cooley Township, Sibley County, Moltke Township, John Goelz III, Gerald H. Hosek, Allen J. and Jacalyn S. Kokesch, Paul W. and Karen J. Schroeder, Chad M. and Amy M. Lund, Rockford L. and Janie K. Crooks, UT School District, Episcopal Diocese of Minnesota, Michael R. Rasmussen, Lee H. Guggisberg Trust UWT, Patrick T. and Nancy S. Hansen, Kelly M. Lipinski, Cynthia Johnson, Mitchell H. Unruh, William and Norma Schmidt, Prouty Properties LLC, Robert D. and Lori A. Rebstock, Allan D. Eller, Elmer C. and Barbara L. Dahms, Marlene A. Platt RT, Eugene A. Engstrom, Enid Guggisberg, Melvin W. and Kerry D. Maddock, Thomas J. Heiling, Keefe Family Farm LLC, Larry Lussenhop, Jon Lussenhop, TJ & CC Properties LLC, Dennis A. and Michelle D. Auslam, Dale R. and Nancy Hanna, Harold Guggisberg, Sandra Clarken, Julie Anna Guggisberg, Steven R. and Dawn R. Helmer, George J. Schottenbauer, John and Alice and Francis Goelz, Edward J. Gaasch, Simmons Valley Trust, John C. and Mary J. Simmons, John (L.) Hogan, Timothy H. and Theresa J. Kerkhoff, Sherman Acres LLC, PLAINTIFFS AND ERICK G. KAARDAL, MOHRMAN, KAARDAL & ERICKSON S RESPONSE AND OBJECTIONS TO DEFENDANTS ATTORNEY FEE SUBMISSIONS PURSUANT TO THE COURT S JUNE 9, 2015 ORDER 1

2 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 2 of 39 Kenneth Larsen, Henry G. and Judith A. O Neil, Charles D. Neitzel, Scott A. and Kimberly A. Olafson, Kim M. Cunningham, John H. and Jeanne A. Reynolds, Douglas and Brenda Scherer, Willard and Eugenie Scherer, Bruce Robert Black, Lila L. Black, Neil and Donna Berger Family, Charles Case, Lyle Black Living Trust, Lower Sioux Indian Community, Defendant Doe Nos , Defendants. INTRODUCTION As set forth below, Plaintiffs, Erick G. Kaardal, and Mohrman, Kaardal & Erickson, P.A. object to the attorney fee submissions filed by the Defendants and their counsel pursuant to the Court s sanctions order. In their submissions, Defendants seek more than $350,000 in attorney fees for simply filing a motion to dismiss on issues this Court found were obvious. Plaintiffs, Mr. Kaardal, and Mohrman, Kaardal & Erickson, P.A. object to the Defendants attorney fee submissions on the following grounds: i. The Court Cannot Award Defendants Attorney Fees Under Rule 11: Under unequivocal case law under Rule 11, the imposition of monetary sanctions under Rule 11 is intended to deter sanctionable conduct and not to compensate a party for attorney fees. Therefore, Defendants request for all of their attorney fees is improper under Rule 11. 2

3 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 3 of 39 ii. iii. iv. The Court Should Not Award Significant Sanctions Against Mr. Kaardal Because He Has Not Been Sanctioned in Over 22 Years of Federal Practice: Therefore, a significant monetary sanction is not necessary to deter future conduct. The Court Should Not Award Significant Sanctions Against Mr. Kaardal Because He Does Not Have the Ability to Pay Significant Sanctions: Mr. Kaardal is married and the father of eight children. As a result, Mr. Kaardal does not have the ability to pay a significant sanctions award. The Court Should Significantly Reduce Any Sanctions Award Based on Defendants Failure to Exercise Any Billing Judgment in the Submissions of their Fee Statements to the Court: None of the Defendants attorneys exercised any billing judgment in conjunction with their fee submissions. The materials filed do not include any declarations that the senior attorney in charge of the file reviewed the time submissions reflected in the statements, that each of the time entries was contemporaneously recorded, that each of the time entries do not reflect either unnecessary, excessive or duplicative time and does not reduce the amount of any of the time submissions based on the exercise of billing judgment. On this basis, the fee application should be denied. v. The Court Cannot Award Sanctions Under 28 U.S.C Because (a) no Defendant Brought a Motion for Such Sanctions and (b) the Court Never Entered An Order to Show Cause Prior to its Determination That Mr. Kaardal Violated 1927: As more fully set forth in the Plaintiffs Motion for a Stay of the Sanctions Order, none of the Defendants moved for sanctions under 1927 and this Court never entered an Order to Show Cause delineating the conduct subject to sanctions under either 1927 or its inherent authority. As a result, no monetary sanctions should be imposed in this regard. vi. The Court Should Not Award Sanctions Under 28 U.S.C When There is No Evidence Mr. Kaardal Multiplied These Proceedings Unreasonably or Vexatiously: Mr. Kaardal did nothing in this case other than file a complaint, an amended complaint and respond to a motion to dismiss. As numerous cases have held, 1927 is directed at conduct by the attorney which unnecessarily multiplies the proceedings by engaging in tactics to increase the costs of the case. Consistent with this, numerous cases hold that an attorney s mere filing of a frivolous complaint (which this complaint is not) is not subject to sanction under Mr. Kaardal did nothing in this case to violate

4 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 4 of 39 Plaintiffs, Mr. Kaardal, and Mohrman, Kaardal & Erickson, P.A. request that the Court deny the Defendants request for attorney fees. A. The Court Cannot Award All Attorney Fees Incurred by Defendants as a Sanction Under Fed. R. Civ. P. 11 Because Rule 11 Sanctions Must Be Tailored to Deter Future Similar Conduct in the Eighth Circuit. A sanction under Fed. R. Civ. P. 11 must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. Fed. R. Civ. P. 11(c)(4). Rule 11 may not be used as a fee-shifting device. [T]he primary purpose of Rule 11 sanctions is to deter attorney and litigant misconduct, not to compensate the opposing party for all of its costs in defending. Kirk Capital Corp. v. Bailey, 16 F.3d 1485, 1490 (8th Cir. 1994). Rule 11 provides for sanctions, not fee shifting. It is aimed at deterring and, if necessary, punishing improper conduct rather than merely compensating the prevailing party. The key to invoking Rule 11, therefore, is the nature of the conduct of counsel and the parties, not the outcome. Anschutz Petroleum Mktg. Corp. v. E.W. Saybolt & Co., 112 F.R.D. 355, 357 (S.D.N.Y. 1986). Thus, a court must make a determination of whether the fees claimed are excessive to serve the deterrent purpose of Rule 11 sanctions, even though the court accepted above that the attorneys' claimed hourly rates were reasonable and even though the court opined, further, that the court had no doubt that all of the hours claimed had been reasonably expended on litigation of this case. Ideal Instruments, Inc. v. Rivard Instruments, Inc., 245 F.R.D. 381, 391 (N.D. Iowa 2007). In other words, the measure of the appropriate fee award here is not the hours expended, but the total amount of the claimed fee that is required to have the desired 4

5 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 5 of 39 deterrent effect. Ideal Instruments, Inc. v. Rivard Instruments, Inc., 245 F.R.D. 381, 391 (N.D. Iowa 2007). The Court should consider the least severe sanction that will adequately deter the undesirable conduct. Pope v. Fed. Exp. Corp., 974 F.2d 982, 985 (8th Cir. 1992). In a case heard before this Court only three years ago, an attorney who had been repeatedly sanctioned for making the same frivolous lawsuits and arguments before district courts was only sanctioned $50, out of approximately $115, claimed. Murphy v. Aurora Loan Servs., LLC, 859 F. Supp. 2d 1016, 1025 (D. Minn. 2012) aff'd and remanded, 518 F. App'x 511 (8th Cir. 2013). The Court found that that payment of $50,000, which is a portion of the Bank Defendants' reasonable attorney's fees, is warranted and appropriate, and should deter Mr. Butler from filing more frivolous lawsuits and arguments with the Court. Murphy, 859 F. Supp. 2d at Thus, under Rule 11, the Court may not award Defendants all of their attorney fees as a sanction. Any sanctions award at all against an attorney who has never been sanctioned in 22 years of federal practice (see Declaration of Erick G. Kaardal, August 10, 2015, 9) is sufficient to deter similar conduct in the future. A sanction in excess of $25, for an attorney who has never been sanctioned is simply unreasonable under almost any circumstances, particularly when he is part of a law firm with only six attorneys. B. The Court Should Not Use Sanctions as a Strict Deterrent Against Erick Kaardal Because He Has Never Been Sanctioned in Twenty-Two Years of Federal Practice and Has Never Engaged in Sanctionable Behavior. Mr. Kaardal is not a serial offender of the rules of the Minnesota state and federal courts and has not been warned repeatedly by the judiciary to cease from participating in 5

6 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 6 of 39 unethical or problematic behavior. Kaardal Dec. 9. He has never been sanctioned by this Court or any other federal court, despite significant practice experience. Id. & Exhibit. In addition, Mr. Kaardal has, essentially, not received anything from his representation of the Plaintiffs in this case and in the earlier case in the U.S. Court of Federal Claims other than his law firm s costs in over ten years of litigation. Kaardal Dec. 10. Absent a reversal from the Eighth Circuit, Mr. Kaardal and the undersigned law firm will receive nothing from these Plaintiffs, in this case, or the separate case in the U.S. Court of Federal Claims for over ten years of litigation work. Id. That fact, in and of itself, will likely deter any further litigation regarding the land claims in this case, since Mr. Kaardal relies exclusively on his law practice to support his eight children. Id. Also showing that no deterrent is necessary is the fact that prior to this Court s Order sanctioning Mr. Kaardal, the only time Mr. Kaardal was nearly sanctioned previously was by the use of an Order to Show Cause issued by this Court in Wersal, et al. v. Lundberg, et al, Case No MJD ordering Mr. Kaardal to show cause why he should not be sanctioned because he did not have a good faith argument for asserting on behalf of his client that certain provisions of Minn. R. Jud. C. Canon 5 violated the First Amendment. After Mr. Kaardal filed his Response to the Order to Show Cause, this Court cancelled the hearing set on the Order to Show Cause after the Eighth Circuit denied emergency relief in the case on a 2-1 vote (given that Judge Arlen Beam of the Eighth Circuit would have granted Mr. Kaardal s client relief, this Court could no longer legally and logically find that Mr. Kaardal had no good faith basis for making his arguments). Ultimately, the arguments Mr. Kaardal was making in that case are now the 6

7 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 7 of 39 law of the land based on the landmark Republican Party of Minnesota, et al. v. White Supreme Court decision and the Eighth Circuit s subsequent en banc decision in the same case. Furthermore, the White case is not the only case this Court has decided involving Mr. Kaardal which has been reversed by the 8th Circuit. The cases of Stark v. Indep. Sch. Dist., No. 640, 123 F.3d 1068 (8th Cir. 1997) and Forest Park II v. Hadley, 336 F.3d 724 (8th Cir. 2003), were also decisions issued by this Court which were reversed by the 8th Circuit. No one knows what will happen after 8th Circuit review of this Court s decision in this case. Like in many other cases, reversal on the merits is perfectly conceivable, but especially in a case like this, which is complicated and involves statutory interpretation much like the other decisions referenced above. For example, in Plaintiffs memorandum in support of the Motion to Stay the pending sanctions proceeding, Plaintiffs brought to the Court s attention numerous problems with the underlying dismissal order (e.g. the fact that the Complaint was against the Corporation, not the Community; the fact that all of the Sherrill cases involved Indian predecessors in interest who sold their land rather than Indians who had their land it seized by threats of violence, etc.). Each of these examples provides a potential avenue for reversal of this Court s underlying dismissal order. Significant sanctions in this district in excess of $25, have generally been against attorneys who have engaged in a pattern of willful, improper behavior, for which only a large sanction order will prove an effective deterrent, and even these sanctions are dwarfed by the potential size of the contemplated current sanction award. To award such 7

8 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 8 of 39 a practice-harming sanction against an attorney who has a significant and clean record (see Kaardal Decl. Exhibit) is unreasonable, and does not serve the purpose intended for Rule 11: to deter, rather than to compensate. C. Monetary Sanctions, If Any, Must Be Disallowed or Reduced Based on Erick Kaardal s Inability to Pay the Massive Amounts Set Forth in Defendants Attorney Fee Affidavits. This Court should take the sanctioned party's resources into account when setting the amount of a Rule 11 sanction. Shales v. Gen. Chauffeurs, Sales Drivers & Helpers Local Union No. 330, 557 F.3d 746, 749 (7th Cir. 2009) (citing Johnson v. A.W. Chesterton Co., 18 F.3d 1362, 1366 (7th Cir.1994)). Simply put, [t]he poorer the lawyer, the lower the sanction can be and still deter repetition by the lawyer or anyone similarly situated. Id. at As shown by Mr. Kaardal s declaration, Mr. Kaardal is unable to pay the attorney fees sought by the Defendants in their affidavits because he does not have the assets necessary to pay such egregiously over-burdensome sanctions. The Court should accordingly disallow or significantly reduce the amount of sanctions, if any, assessed against Mr. Kaardal. 1 This principle applies under 1927 as well. Haynes v. City and County of San Francisco, 688 F.3d 984, 987 (9th Cir. 2012) ( in imposing sanctions pursuant to 1927, it lies well within the district court s discretion to temper the amount to be awarded against an offending attorney by a balancing consideration of his ability to pay. Oliveri v. Thompson, 803 F.2d 1265, 1281 (2d Cir.1986) ). 8

9 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 9 of 39 D. Monetary Sanctions, If Any, Must Be Disallowed or Reduced Because Mohrman, Kaardal & Erickson, P.A. Is a Small Law Firm of Six Attorneys and Only Three Partners. Moreover, any sanctions levied by this Court not just against Mr. Kaardal, but against the law firm of Mohrman, Kaardal & Erickson, P.A. ( MKE ), should be disallowed or reduced because of the small size of the MKE firm. This Court should consider the size of the law firm it is considering sanctioning in determining the size, if any, of a sanction. In re Smith, 111 B.R. 81, (Bankr. E.D. Pa. 1990) (denying motion for sanctions in part because the attorney works from a small firm ); Instant Tax Serv , LLC v. TCA Fin., LLC, No. CIVIL PJM , 2009 WL , at *4 (D. Md. Aug. 17, 2009) ( the Court notes that both attorneys are members of small, not large nationwide law firms, which obviously bears on their ability to pay a sanctions award ). Moreover, as set forth in Rule 11, law firms are not to be held jointly responsible for a Rule 11 monetary sanction if exceptional circumstances exist. As set forth above, MKE is a small firm. Mr. Kaardal handed this entire litigation. His partners, William F. Mohrman and Gregory M. Erickson, were not involved in the case other than to have informal hallway discussions regarding the case. Neither Mr. Mohrman nor Mr. Erickson signed any papers in this case. Courts have found such exceptional circumstances in cases involving small law firms in which basically one or two attorneys handled the case with no or limited involvement from the other members of the firm. Rentz v. Dynasty Apparel, Idus., 556 F.3d 389, (6 th Cir. 2009). Neither is MKE able to pay a sanctions award in the amount sought by Defendants without causing significant financial 9

10 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 10 of 39 harm to its business and employees. The Court should consider that factor in disallowing or reducing the sanctions imposed upon MKE. Kaardal Decl. 7. E. Sanctions Should Be Disallowed or Reduced Because Defendants Attorneys Failed to Exercise Billing Judgment, Excessively and Redundantly Billed, Attempted to Recover Non-Attorney Fee Costs in Violation of This Court s Sanctions Order, Failed to Present Evidence That Their Bills Were Reasonable. Attorney fee applications under 28 U.S.C are reviewed under the lodestar method. Sony Elecs., Inc. v. Soundview Techs., Inc., 389 F.Supp.2d 443, 447 n. 4 (D.Conn.2005) ( The lodestar method is applicable in assessing awards for attorneys fees under 28 U.S.C as it is when awarding fees under fee-shifting statutes such as 42 U.S.C ); Ricks v. Xerox Corp., No JWL, 1995 WL , at * 1 (D.Kan. Sept. 29, 1995). Under the lodestar method, [i]t is axiomatic that a fee applicant bears the burden of establishing entitlement to an award [of fees] and documenting the appropriate hours expended and hourly rates. H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th Cir.1991) (quoting Hensley, 461 U.S. at 437). Bores v. Domino s Pizza LLC, No , 2008 WL , at *5 n.8 (D. Minn. Oct. 27, 2008). Further, The applicant should exercise billing judgment with respect to hours worked, * * * and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims. Where the documentation of hours is inadequate, the district court may reduce the award accordingly. Counsel... should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. Hours that are not properly billed to one s client also are not properly billed to one s adversary pursuant to statutory authority. Transclean Corp v. Bridgewood Services, Inc., 134 F. Supp. 2d 1049, 1052 (D. Minn. 10

11 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 11 of ) (quoting Hensley v. Eckerhart, 461 U.S. 424, (1983) (internal citations omitted). If, contrary to these directions, a fee applicant bills excessively, for redundant fees, and fails to exercise billing judgment, the Court may reduce an award accordingly. See, e.g., Bores, 2008 WL , at *6-8 (cutting fees significantly because of overbilling, lack of detail/vagueness, attempting to obtain fees for noncompensable acts, and an overall excessive number of hours billed); Maule v. Nicholson, No , 2006 WL , at * 2 (D. Minn. Dec. 20, 2006) (Davis, C.J.) (cutting fees because of duplicate billings, excessive billings (especially given the firm s expertise in an area of law), and vagueness); Freirichs v. Hartford Life and Accident Ins. Co., No , 2012 WL , at *5 (D. Minn. Aug. 28, 2012) (cutting fees because of vague and factually incorrect billing entries). Because the Defendants here have (1) submitted excessive, redundant, and vague time records to the Court, (2) attempted to recover non-attorney fee costs, and (3) failed to provide evidence as to the reasonableness of their submissions, the Court should disallow sanctions or heavily reduce the amount based on the unreasonableness of Defendants submissions. 1. Sanctions Should Be Disallowed Or Reduced Because Defendants Failed to Substantiate Their Fee Applications and Defendants Submitted Excessive Bills Including for Work at the Appellate Level. None of the Defendants provided any testimony in their declarations required to support a fee application. Rather, the Defendants simply submitted either invoices or computer printouts presumably from their law firm s billing software testifying that the 11

12 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 12 of 39 printouts contain their time entries. None of the declarations contains testimony (i) that the time entries were recovered from the law firm s billing software, (ii) the identity of the billing software, (iii) that the time entries were made contemporaneously with the work performed, (iv) that the senior attorney reviewed the work performed and interviewed the attorneys who performed the work to determine if any of the work performed was unnecessary, duplicative or not efficiently performed and (v) if the senior attorney finds such work, that the senior attorney exercise billing judgment and eliminate or adjust entries accordingly. a. Halloran Affidavit. The Affidavit of Joseph Halloran on behalf of the Lower Sioux Indian Community in Minnesota fails to provide any such testimony Halloran simply attaches a computer printout to his declaration. There is no evidence that Mr. Halloran engaged in any billing judgment. Declaration of Gregory M. Erickson, August 10, 2015; Declaration of Steven R. Kluz, August 10, The following is a table of entries that appear to be excessive and demonstrate a lack of billing judgment: Date Hours Amount Person Description of Excessive Item 2 5/22/ $ JFH Identify and coordinate contract with possible experts; draft letter to BIA 5/22// $ SVN Tele conf. with potential expert 5/23/ $ JFH Finalize letter to BIA re: lawsuit 5/23/ $ MBM Edit and revise letter to BIA 5/27/ $ JFH Review historic materials provided 2 The descriptions have been truncated from the full description in each entry for purposes of brevity to show the items which are clearly excessive given the scope and stage of the case. 12

13 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 13 of 39 5/29/ $ JFH Review historical material... contact MRO about mapping tracts and getting TSR s 5/29/ $70.00 SVN Tele. confs. and s with potential experts 5/30/ $ JFH Prepare briefing for BIA Central office 5/31/ $ MBM Edit and revise briefing materials for DOI meeting 6/1/ $ JFH Prepare, circulate, edit and finalize briefing to DOI on WCII litigation 6/2/ $ JFH Work on gathering tract history for LSIC property identification in WCII 6/4/ $ JFH Prep for and meeting with Assistant Secretary and Solicitor re: case 6/6/ $ JFH Work on locating tracts on historical map... follow up on experts 6/7/ $87.50 MBM Review deed from F. Munshower 6/9/ $ JFH Prep and forward letter to DOI 6/9/ $ SVN Tele. confs. with potential experts in Wolfchild II 6/11/ $ SVN Draft retainer agmts. for potential experts in Wolfchild II 6/23/ $ MBM Review historical material for relevance 6/25/ $ JFH Work on identification of un-represented individuals; work to develop historical maps 7/15/ $87.50 MAA Talk with BLM re: land records and GLO 7/16/ $ JFH Work on expert identification and work on possible mapping consultants 7/17/ $ JFH Correspondence with R. Duncan on maps and documents 7/28/ $ JFH Correspondence with Solicitor s office 7/31/ $ JFH Review maps provided by joint defendants; discuss maps for Tribe with BLM; call Gary Anderson historical expert 8/6/ $70.00 JFH Draft letter from LSIC to Cadastral Survey 8/7/ $ JFH Briefing to Assistant Secretary on case status, maps and schedule 8/11/ $ JFH Coordinate with Anderson on expert services 8/13/ $ JFH Work on Maps project for case; discuss with BLM and get work plan in place 13

14 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 14 of 39 8/14/ $ JFH Conference call with G. Anderson to discuss fees and work as expert and follow up on documents gathered and prioritized; correspondence with C. Ayling; review and respond to title work question for defense s case 8/14/ $ MBM Phone call with G. Anderson on scope of work and specific areas to research and report on 8/15/ $87.50 JFH Call with G. Anderson re: status of work on expert report; response to call from defense council [sic] on title work 8/18/ $ JFH Call with BLM re: maps project; draft request for assistance to BLM and BIA 8/20/ $ JFH Work with BLM on maps for Rule 12 motion 8/20/ $ JFH Draft and send contract to G. Anderson; e- mail BIA re: work progress 8/29/ $87.50 JFH Discuss Sibley Co. parcels with B. Biesel 8/29/ $ JFH Phone call with M. Christensen re: briefing status, title questions and expert work 9/4/ $ JFH Follow up on patents to land from BLM; work on maps 9/11/ $ JFH Work on MTD brief and maps 9/12/ $ JFH Work with BLM on maps; review preliminary expert report 9/19/ $ JFH Review and discuss maps with BLM 9/23/ $ JFH Discuss factual background documents with expert; maps with BLM 9/25/ $ JFH Work with BLM to get final map and send on to defense counsel 9/29/ $ JFH Draft status report to ASIA... outline topics for reply brief 10/2/ $ JFH Prepare update briefing for ASIA on mapping assistance 10/6/ $ JFH Prepare and send update memorandum to ASIA 10/17/ $70.00 JFH Prepare and send update to ASIA 11/7/ $ JFH Prepare and send briefing and reply brief to ASIA 12/5/ $ JFH WCII Follow up with USDOJ attorneys, solicitor and ASIA re: status of proceedings 14

15 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 15 of 39 3/5/ & 0.40 $ & $70.00 JFH & MBM Review Court order and send to client // Review District Court order for dismissal; s relating (redundant) 3/17/ $ JFH Review notice of appeal and send to client 3/18/ $ MLM Review attorney Kaardals public statement re: suit 3/20/ $ JFH Conference call with Defense Counsel re: post order motion practice division of labor on appeal and amicus 3/20/ $87.50 JFH Review corporate disclosure statement and notice of appearance for filing 4/1/ $ SVN Prepare and file notice of intent re. separate appendix in Wolfchild appeal 4/6/ $37.50 MLM Research whether Community must affirmatively object to Statement of Issues not raised in district court before Appellate Brief is filed Total: $16, (note, on the double entry, the lesser amount of $70.00 was input into this total, and the greater amount was not). These entries contain references to several issues that were either unrelated to the defense of this case or immaterial to the defense. For example, Mr. Halloran included numerous conferences with potential experts, actual experts, drafting of expert retainer agreements, a bevy of discussions of a maps project with experts, the BLM, the BIA, ASIA (whatever that is), and others, appellate work, meetings with the Department of the Interior, title work, and so on. Lower Sioux won its motion to dismiss on sovereign immunity grounds consequently, none of the work reflected above was necessary to support the motion to dismiss specifically or to defend this case generally at the motion to dismiss stage. Therefore, Mr. Halloran s affidavit shows no exercise of billing judgment. Erickson Decl.; Kluz Decl. In addition, many of these entries were lumped in, blockstyle, with other entries that were at least facially plausible. Thus, it is nearly impossible 15

16 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 16 of 39 to tell how much of the time from each entry was devoted to these non-essential issues. These entries alone add up to over $16,000 in excessive fees sought by the Lower Sioux Indian Community in Minnesota, and should be struck. In addition, the Halloran affidavit contains numerous entries that are vague, meaning that the reasonableness of those entries are impossible to determine: Date Hours Amount Person Description of Vague Item 6/4/ $ MBM and phone call with F. Munshower 6/4/ $ MBM Phone call with L. Rassmussen; forward materials 12/5/ $52.50 MBM Wolfchild details 12/8/ $37.50 MLM Consult with J. Halloran re. WCII These entries amount to an additional $ in vague entries and should be struck or reduced because it is impossible to determine their reasonableness. b. Benner Affidavit. Likewise, the Affidavit of Robert Benner contains numerous entries that are excessive and therefore unreasonable. Erickson Decl.; Kluz Decl. The following is a table of entries that appear to be excessive and demonstrate a lack of billing judgment: Date Hours Amount Person Description of Excessive Item 3 7/28/ $14.00 MJI Correspondence to attorney Schwie re property records request 7/28/ $28.00 JMP Correspondence to counsel re property records 8/11/ $14.50 RGB Review of correspondence from Joseph Halloran regarding disc containing documents from the Bureau of I and [sic] Management 3 The descriptions have been truncated from the full description in each entry for purposes of brevity to show the items which are clearly excessive given the scope and stage of the case. 16

17 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 17 of 39 10/06/ $ RGB Draft initial report 10/06/ $43.50 RGB communication with client regarding initial report 12/11/ $ RGB Appear at Hearing on Motion to Dismiss Plaintiff s Complaint 03/05/ $72.50 RGB Review of Court Order dismissing Plaintiffs Claims 03/17/ $43.50 RGB Review Notice of appeal and to Farm Bureau and Ken Larsen informing of filing and plan for response 03/17/ $28.00 JMP Reviewed correspondence re application for easement 03/23/ $ JMH Preparation of Notice of Appearance; Preparation of Corporate Disclosure Form; e-file documents with Court; Preparation of correspondence to Eller & Counsel re: service of documents 03/24/ $49.00 JMB E-file Notice of Appearance of Jennifer Peterson with Court; Preparation of correspondence to Eller & Counsel re: service of appearance 03/24/ $28.00 JMH Telephone conference with Eighth Circuit; Preparation of Notice of Appearance for JMP re: Appearance form 04/01/ $98.00 JMH Preparation of Notice of Intent to Proceed with Separate Appendix; docket court deadline re: briefing; e-file Notice of Intent; review court filing of opposing counsel re: Notice of Intent and Designation of Record 04/02/ $ JMH Review and documentation of parties filings re: corporate disclosure statements and notice and intent of appendix 05/18/ $ JMP Drafted, reviewed and revised motion to expedite appeal 06/15/ $56.00 JMH Review and documentation of parties filings re: briefs, motions for expedited appeal 06/17/ $28.00 JMH Review and documentation of parties filings re: brief and motion to dismiss 06/19/ $29.00 RGB Review of correspondence from Richard Duncan regarding serving Brief of Appellee Landowners 17

18 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 18 of 39 06/19/ $29.00 RGB Review of Brief of Appellee Episcopal Diocese of Minnesota and Affidavit of Service 06/19/ $29.00 RGB Review of Brief of the Lower Sioux Indian Community and Affidavit of Service 06/30/ $56.00 JMH Review and documentation of parties filings re: appeal 06/30/ $42.00 JMH Review Appeal Scheduling Order and Calculation of court imposed deadlines 07/01/ $ JMH Review and documentation of parties filings; Preparation of Notice of Appearance; efile documents Total: $2, Here, numerous entries are vague, excessive, and unreasonable, demonstrating a lack of billing judgment. Erickson Decl.; Kluz Decl. First, there are numerous fees included in the Benner affidavit related to the appeal of this matter ($1,145.50), which are per se improper and must be struck. Second, there are excessive time entries related to attendance at the motion to dismiss hearing (6.5 hours), review of the motion to dismiss order, and correspondence with attorneys Schwie and Halloran regarding property records and documents from the Bureau of Land Management. Third, there are vague entries regarding a report of some sort that Mr. Benner sent to his client, without any indication of the subject matter of the report. All of these items are excessive and should be struck or significantly reduced. c. Larsen Affidavit. The Larsen affidavit simply claims, in blanket fashion, that Mr. Larsen incurred $1, in fees to Beisel & Dunlevy, P.A. in defense of this action. There is no invoice or affidavit from Beisel & Dunlevy, P.A. or any other attorney showing what the fees 18

19 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 19 of 39 were for, whether they were reasonable, or whether that figure represents the use of billing judgment. Consequently, there is no way to analyze the reasonableness of these fees and, more importantly, zero documentary proof that Beisel & Dunlevy, P.A. even invoiced these fees. Erickson Decl.; Kluz Decl. They must be struck. d. Schueler Affidavit. The Schueler affidavit sets forth as an exhibit several invoices and also, in paragraph form, requests non-invoiced fees allegedly incurred by Schueler s clients to another law firm. The Schueler affidavit s exhibit is rife with excessive and vague entries that show a complete lack of billing judgment. Erickson Decl.; Kluz Decl. The unreasonable entries are set forth below in the order they appear in the exhibit (not chronological because of the manner in which the exhibit was submitted): Date Hours Amount Person Description of Excessive or Vague Item 4 6/8/ $ JMP Reviewed and revised Appellees brief 6/8/ $ KDS Correspondence with counsel for Lower Sioux; Analysis of appellate brief 6/9/ $ JMP Reviewed and revised motion for expedited appeal 6/9/ $ JMP Participated in conference call with defense counsel regarding court of appeal issues 6/9/ $ KDS Conference with all counsel 6/10/ $ JMP Drafted Motion to Dismiss Appeal 6/10/ $ KDS Multiple communications with counsel re: strategy going forward and appellate briefing and motions 6/11/ $ JMP Reviewed and revised motion to dismiss appeal; drafted and responded to 4 The descriptions have been truncated from the full description in each entry for purposes of brevity to show the items which are clearly excessive given the scope and stage of the case. 19

20 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 20 of 39 correspondence from defense group regarding the same 6/11/ $ KDS Telephone conference with counsel for Lower Sioux; Correspondence with counsel re: briefing schedule 6/12/ $ KDS Review of appellate brief and related communications with co-counsel 6/15/ $80.00 JMH Review and documentation of parties filings re: briefs, motions for expedited appeal 6/15/ $80.00 KDS Review of appellate briefing 6/17/ $40.00 JMH Review and documentation of parties briefings re: brief and motion to dismiss 6/19/ $16.00 KDS Review of correspondence from Richard Duncan regarding serving Brief of Appellee Landowners 6/19/ $16.00 KDS Review of Brief of the Lower Sioux Indian Community and Affidavit of Service 6/19/ $16.00 KDS Review of Brief of Appellee Episcopal Diocese of Minnesota and Affidavit of Service 6/22/ $16.00 KDS [other appellate correspondence] 6/22/ $16.00 KDS Review of check copies from Julie Guggisberg 6/26/ $80.00 KDS Review of appeal documents from plaintiffs 6/29/ $ JMP Participated in phone conferences with cocounsel regarding various motions and appeal filed by Plaintiffs 6/29/ $ JMP Reviewed various motions and notice of appeal filed by Plaintiffs 6/29/ $ KDS Telephone conference with J. Halloran; Analysis of appeal options 6/29/ $48.00 KDS Review of memorandum not opposing word count 6/30/ $80.00 JMH Review and documentation of parties e- filings re: appeal 6/30/ $60.00 JMH Review Appeal Scheduling Order and Calculation of court imposed deadlines 6/30/ $64.00 KDS Review of 8th Circuit order expediting appeal; Correspondence with counsel 6/30/ $ KDS Review of additional appellate briefing 20

21 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 21 of 39 7/1/ $ JMH Review and documentation of parties filings; Preparation of Notice of Appearance; efile documents 7/1/ $ KDS Review of multiple appeal and district court filings 7/2/ $ KDS Review of multiple communications 7/8/ $80.00 KDS Review of appeal filings 4/1/ $ JMH Preparation of Notice of Intent to Proceed with Separate Appendix; docket court deadline re: briefing; e-file Notice of Intent; review court filing of opposing counsel re: Notice of Intent and Designation of Record 4/2/ $ JMH Review and documentation of parties filings re: corporate disclosure statements and notice and intent of appendix 4/2/ $32.00 JMP Legal research re appendix issue 4/2/ $ KDS Correspondence with counsel re: appeal strategy meeting; Multiple communications re: appeal pleadings 4/6/ $ KDS Telephone conference with counsel re: plans for appeal; Correspondence with other counsel re: post-trial motions 4/8/ $ KDS Correspondence with news reporter 4/16/ $96.00 KDS Review of correspondence from Plaintiff lawyer requesting amendment of the record; review of correspondence from Sioux attorney; Correspondence with counsel re: no agreement to modifying the record 4/16/ $64.00 KDS Multiple communications with counsel re: record on appeal 4/19/ $ KDS Review of correspondence relating to improper efforts to modify record on appeal 4/22/ $48.00 KDS Review of tribe memo re: supplementation of the record 4/23/ $48.00 KDS Review of township and county opposition to motion to expand record on appeal 4/27/ $48.00 KDS Correspondence with clients 5/8/ $16.00 KDS Review of correspondence from Erick Kaardal to U.S. Court of Appeals Eighth 21

22 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 22 of 39 Circuit regarding Appellants Appendix and Affidavit of Service. 5/13/ $ JMP Legal research re motion to expedite appeal; drafted legal memorandum re the same 5/13/ $ KDS Telephone conference with all defense counsel; Correspondence with carrier; Correspondence with clients 5/14/ $16.00 RGB Review of Appellants Appendix Volumes I & II; and Affidavit of Service 5/14/ $ JMP Drafted Motion to Expedite Appeal 5/15/ $40.00 JMH Review and documentation of parties filings re: Plaintiff s Brief 5/21/ $16.00 RGB Review of Appellants Brief; and Affidavit of Service 5/26/ $16.00 RGB Review of correspondence from Erick Kaardal to US Court of Appeals Eighth Circuit regarding filing Appellants Addendum; and Affidavit of Service 3/17/ $16.00 KDS Review of correspondence from John and Mary Simmons regarding thoughts on lawsuit 3/23/ $ JMH Preparation of Notice of Appearance; Preparation of Corporate Disclosure Form; e-file documents with Court; Preparation of correspondence to Eller & Counsel re: service of documents 3/24/ $40.00 JMH Telephone conference with Eighth Circuit; Preparation of Notice of Appearance for JMP re: Appearance form 3/25/ $ KDS Correspondence with news reporter; Review of Lower Sioux Rule 11 motion; Correspondence with counsel for Lower Sioux 3/26/ $16.00 RGB Review of executed signature page of Affidavit of Kenneth Larsen 12/11/ $1, KDS Preparation for and Appearance at Rule 12 motion hearing in federal court Minneapolis 7/8/ $80.00 JMH Telephone conferences with AT&T operator; s from various counsel re: changes to conference call. 22

23 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 23 of 39 7/9/ $80.00 JMH Telephone conference with Richard Swanson; Telephone conference with AT&T re: additions to conference 7/21/ $40.00 JMH Schedule telephone conference for defense counsel; to counsel re: confirmation of AT&T conference call 7/22/ $40.00 JMH Telephone conference with AT&T; to counsel re: changes to conference call 7/25/ $80.00 JMP Drafted request for property records 7/28/ $20.00 MJI Correspondence to attorney Schwie re property records request 7/31/ $80.00 JMP Reviewed property records and other correspondence received from Jessica Schwie 8/1/ $ JMH Telephone conference with AT&T operator re: changes to 8/4/14 conference call 8/1/ $48.00 KDS Telephone conference with J. Guggisberg 8/11/ $16.00 JMP Review of correspondence from Joseph Halloran regarding disc with documents from the Bureau of Land Management 8/11/ $16.00 KDS Review of correspondence from Joseph Halloran regarding disc containing documents from Bureau of Land Management 8/14/ $32.00 JMP Reviewed correspondence from defense counsel group regarding property record request 8/15/ $32.00 JMP Drafted correspondence to defense counsel group regarding request for title work 8/22/ $80.00 JMH Preparation of Notice of Appearance of Scott and Kimberly Olafson; e-file with Court. 8/22/ $80.00 KDS Review of new suit 8/25/ $20.00 JMH Schedule AT&T Conference call for /29/ $40.00 JMH Schedule AT&T Conference call; to defense counsel re: conference call on /8/ $40.00 JMH Schedule AT&T Conference call; to counsel re: briefing group 23

24 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 24 of 39 9/25/ $ JMH Preparation of correspondence to Judge Davis; Preparation of correspondence to Gasch and Eller; e-file Amended Motion to Dismiss 9/26/ $ JMH Review and document parties filings re: motion for dismissal and answers 9/30/ $ JMH Preparation of correspondence to Judge Davis; e-file with Court; review and document parties filings re: withdrawal of motions 6/16/ $ KDS Telephone conference with clients Hanna; Correspondence with clients and other client; Telephone conference with other client 6/23/ $ KDS Telephone conference with AmFam counsel; Analysis of defense issues 6/27/ $ JMH Telephone conferences with Sally at Grinnell re: confirmation of representation of defendants; revise signature page to Defense Agreement; to and from counsel re: executed signature page; Preparation of correspondence to clients re: representation; Preparation of correspondence to clients re: answer of Lower Sioux Indian Community; Telephone conference with Mary Simmons and Karen Lussenhop re: scheduling phone conference 7/1/ $60.00 JMH Telephone conference with Mary at Erick Kaardal s office; from Mary re: cleaner exhibits to Complaint; Telephone conference with AT&T operator re: scheduling conference call with clients 7/1/ $60.00 JMH Preparation of Notice of Appearance; e- file with Court 7/2/ $60.00 JMH to counsel; Telephone conference with Bob Hanna; Telephone conferences with AT&T to schedule conference call Total: $11,

25 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 25 of 39 What is easily ascertainable from Schueler s affidavit is that Schueler has attempted to recover a significant amount of attorney fees related only to the appeal of this matter in this district court proceeding. Erickson Decl.; Kluz Decl. Troublingly, because Mr. Schueler and Mr. Benner work at the same firm, their paralegal, JMH, is double-billed for the exact same entry description on the same date in multiple places, albeit at different rates. Compare Dkt (entries for 4/1/15, 6/30/15, 7/2/15) with Dkt (same day entries related to same initials). In fact, with respect to JMH, Mr. Schueler requested fees at $100 per hour for performing a bevy of secretarial and scrivener s tasks, and JMH s hours billed are consistently excessive relative to the task performed, including, for example, numerous phone calls to AT&T about teleconference issues and a billing of $ for a few phone calls (one about having another phone call) and edits to a signature page. E.g., Dkt (July and August 2014 entries; 6/27/14 entry). Also troubling is that Mr. Schueler submitted time reported by Mr. Benner in his affidavit even though Mr. Benner submitted a separate affidavit. E.g., Dkt (entries for RGB on 3/14/15, 5/14/15, 5/21/15, 5/26/15). Clearly, Mr. Schueler used absolutely no billing judgment when submitting his affidavit to the Court. Erickson Decl.; Kluz Decl. Schueler also requests attorney fees for Julie Guggisberg and John Simmons in the amounts of $2, and $1,000.00, respectively, which were billed by another firm. These requests are not supported by an invoice, but apparently just hearsay from those individuals. Like with Mr. Larsen, if Ms. Guggisberg and Mr. Simmons wanted their counsel, Beisel & Dunlevy, to submit an affidavit on their behalf to recover their fees, they could have had their counsel submit such an affidavit. Erickson Decl.; Kluz Decl. 25

26 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 26 of 39 They did not, and would simply have this Court award them fees because they say they paid them. The law simply does not allow for a blanket fee request without support, and their requests should be rejected. e. Schwie Affidavit. Pursuant to the Court s sanctions order, Ms. Schwie submitted an affidavit with an exhibit detailing charges claimed in this case that is 161 pages long. Thus, Plaintiffs will not itemize each charge in the Schwie Affidavit, but will describe their unreasonableness more generally. First, the Schwie Affidavit is chock-full of redactions, supposedly to protect attorney-client privilege or work product. However, it is nearly impossible to determine the reasonableness of the entries that have been redacted, and therefore Ms. Schwie and the Government Defendants should be required to give descriptions related to the claims made in Ms. Schwie s affidavit, or the cost claims made related to redacted entries should be reduced or entirely struck. E.g., A.L. ex rel. P.L.B. v. Jackson Cnty. Sch. Bd., No. 5:12- CV-299-RS-EMT, 2014 WL , at *7 (N.D. Fla. May 22, 2014) (where time entries are redacted to such an extent that the nature of the work for which [attorneys] seek compensation unclear, attorney fees are reduced accordingly); Heritage Technologies, L.L.C. v. Phibro-Tech, Inc., No. 1:05CV1851-LJM-WTL, 2008 WL , at *2 (S.D. Ind. Feb. 15, 2008) (denying attorney fees because applicant submitted heavily redacted bills under claims of privilege and stating, [i]in short, the affidavits of Heritage's counsel amount to little more than take our word for it. ). The money billed related to redacted billing entries, either redacted in whole or in part, totals 26

27 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 27 of 39 a significant amount $55,059. These entries should be disallowed or reduced because it is impossible to tell whether they were reasonably incurred. Erickson Decl.; Kluz Decl. Second, like with the other affidavits submitted, Ms. Schwie submitted requests for time spent on appellate matters in fact, $21,571 of billings related thereto. The Court cannot award Ms. Schwie s fees based on appellate work. Erickson Decl.; Kluz Decl. Third, as the Court contemplated in its order by denying the motion for review of taxation of costs as moot, Ms. Schwie also attempted to obtain fees for attorney time spent perusing property records and the like. Ms. Schwie s previous submissions requested $37, in costs related to preparation of public records and property records. Dkt. No. 245, 274. None of these costs is recoverable because of the nature of the proceedings before the Court a motion to dismiss. Fourth, it also appears that Ms. Schwie requested $2,171 in what amount to administrative entries related to reporting to clients (such as case status). These entries should be struck. Erickson Decl.; Kluz Decl. Ms. Schwie s request for over $160,000 in fees is patently unreasonable and should be reduced accordingly. f. Jacobsen Affidavit. No fees or costs should be awarded to attorney Jacobsen related to this matter. Simply put, Mr. Jacobsen s affidavit does not include an invoice, but rather a bare assertion that he expended 30 hours related to this litigation at a rate of $85.00 per hour. There is no invoice and no explanation as to what Mr. Jacobsen did to incur those fees. 27

28 CASE 0:14-cv MJD-FLN Document 331 Filed 08/10/15 Page 28 of 39 Mr. Jacobsen has failed to carry his burden to show that his fees even exist, and they should be struck or reduced. F. Sanctions Should Be Disallowed or Reduced Because Defendants Attempted to Recover Non-Attorney Fee Costs in Contravention of This Court s Sanctions Order. 1. Halloran Affidavit. In addition to the over $16, sought by the Lower Sioux Indian Community in Minnesota for unnecessary and extraneous matters, the Community went so far as to try to obtain costs, including even non-taxable costs, as opposed to attorney fees, as set forth in the Court s sanctions order. Specifically, the Halloran affidavit includes the following charges: Date Amount Description of Non-Attorney Fee Cost 5/22/2014 $33.97 Redwood County Plat Book for Wolfchild II 5/31/2014 $4.70 Photocopying for May, /31/2014 $1, Westlaw Online Service for May, /10/2014 $ Mileage to/from Lower Sioux for Community meeting (J. Halloran and M. Murphy) 6/12/2014 $32.24 Renville County Platt book and map 6/30/2014 $1, Westlaw for June, /28/2014 $5.05 Express Mail 8/31/2014 $75.15 Federal Express for Aug., /31/2014 $ Photocopying for Aug., /31/2014 $1, Westlaw Online Services for Aug., /30/2014 $ Photocopying for Sept., /30/2014 $2, Westlaw Online Services for Sept., /31/2014 $8.16 Postage for October, /31/2014 $ Photocopying for October, /31/2014 $ Westlaw Online Usage for October, /25/2014 $5.05 Priority Mail 11/30/2014 $1, Westlaw Online charges for Nov., 2013 [sic] 12/31/2014 $10.82 Postage Dec., /31/2014 $96.40 Photocopying Dec., /31/2014 $59.44 Westlaw Online Service for Dec.,