UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Ralph E. Holder

v. Civil No. 06-cv-221-JD

Laurie Axinn Gienapp

O R D E R

Laurie Axinn Gienapp asked for an award of attorneys' fees

and costs that she incurred in responding to Ralph E. Holder's

unsuccessful motion for sanctions against her. The court

directed Holder to show cause why fees and costs should not be

assessed against him. Holder has filed his response.

Federal Rule of Civil Procedure 37(a)(4)(B) requires a party

who unsuccessfully moves to compel discovery to pay the opposing

party "the reasonable expenses incurred in opposing the motion,

including attorney's fees, unless the court finds that the making

of the motion was substantially justified or that other

circumstances make an award of expenses unjust." Substantially

justified in this context means "only 'justified in substance or

in the main--that is, justified to a degree that could satisfy a

reasonable person.'" Sheppard v. River Valley Fitness One, L.P.,

428 F.3d 1, 12 (1st Cir. 2005) (quoting Pierce v. Underwood, 487

U.S. 552, 565 (1988)). Other circumstances that might avoid an

assessment may include properly substantiated financial hardship. 

Case 1:06-cv-00221-JD Document 31 Filed 06/13/07 Page 1 of 4
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See Sheehy v. Wehlage, 2007 WL 607093, at *7 (W.D.N.Y. Feb. 20,

2007); Richner v. United States, 1996 WL 63517, at *1 (D. Kan.

Feb. 12, 1996). Pro se status does not absolve a litigant from

sanctions under Rule 37(a)(4). Dew v. 39th Street Realty, 2001

WL 388053, at *3 (S.D.N.Y. Apr. 16, 2001).

Holder's motion for sanctions against Gienapp was not

substantially justified. As is more fully explained in the

court's order denying the motion, Holder failed to first move to

compel discovery and failed to support his claim of improper

actions during the disputed deposition with citations to the

record. In contrast, Gienapp established that her counsel did

not act improperly during the deposition. Holder's arguments

that his allegations in the complaint were substantially

justified miss the point.

Holder also contends that an assessment of fees and costs

against him would be a hardship because he is not financially

able to pay. Although Holder makes that statement in the context

of an affidavit, in which he describes his responsibilities for

his disabled daughter, his son, and his grandchild, he did not

provide any evidence of his financial situation to support his

general statements. Further, his affidavit is signed based on

his belief and knowledge, which, to the extent his statements are

merely based on his belief, undermines its reliability. 

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In addition, Holder has had sufficient financial resources

to pay the not insignificant filing fees for five cases in this

court, along with other cases filed in state court. Despite the

consistent lack of success in his extensive litigation, all

arising from his dissatisfaction with his divorce proceedings and

custody dispute, Holder has continued to bring and pursue

litigation against those who were involved in those proceedings. 

His motion for sanctions in this case was filed after the case

was dismissed on summary judgment, and his emails to Gienapp's

counsel, which are quoted in footnote 2 of the court's order

denying his motion, demonstrate that Holder filed the motion to

prolong his dispute with Gienapp without grounds for doing so. 

Therefore, an award of reasonable expenses incurred by Gienapp in

opposing Holder's motion for sanctions is required under Rule

37(a)(4)(B). 

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Conclusion

 Gienapp shall file, on or before June 22, 2007, a

memorandum supported by appropriately detailed billing records

for the reasonable expenses incurred. Holder shall file his

response within 10 days after Gienapp's memorandum is filed. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

June 13, 2007

cc: Robert J. Consavage, Esquire

Ralph Suozzo, Esquire

Ralph Holder, pro se

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