UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Ralph Holder

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

Opinion No. 2007 DNH 089

Laurie Axinn Gienapp, Esq.

O R D E R

Ralph Holder moved for sanctions against Laurie Axinn

Gienapp, arguing that her attorney improperly instructed her not

to answer questions during her deposition. The motion was denied 

because Holder had failed to move to compel before seeking

sanctions and because Gienapp demonstrated that her attorney did

not instruct her not to answer Holder's questions. Gienapp

requested, pursuant to Federal Rule of Civil Procedure

37(a)(4)(B), an award of her reasonable expenses incurred in

responding to Holder's motion for sanctions. Holder failed to

respond to Gienapp's request for an award of her reasonable

expenses.

The court previously held that Rule 37(a)(4)(B) mandated an

award of expenses unless Holder could show substantial

justification for filing his motion or could show that an award

would not be justified. Holder was ordered to show cause why an

award to Gienapp under Rule 37(a)(4)(B) should not be made. In

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response, Holder argued that he was not able to pay an award but

did not support his claim with evidence of his financial

condition. He did not make a showing that his motion was

substantially justified or that the fees award to Gienapp would

not be justified.

Gienapp has filed a memorandum with the billing records for

expenses incurred in her response to Holder's motion for

sanctions. She seeks $2,054.50 in attorneys' fees. In response

to Gienapp's memorandum, Holder submitted an affidavit and copies

of other documents to support his defense that he is unable to

pay an award. He does not contest the reasonableness of the fees

Gienapp seeks.

An award of attorneys' fees is generally calculated under

the lodestar method by multiplying the hours reasonably spent on

the litigation by the hourly rate prevailing in the community. 

Bogan v. City of Boston, --- F.3d ---, 2007 WL 1675870 at *6 (1st

Cir. June 12, 2007). The party seeking fees bears the burden of

showing that the amount requested is reasonable. Cerqueira v.

Am. Airlines, Inc., 484 F. Supp. 2d 241, 250 (D. Mass. 2007).

Gienapp claims a total of fourteen hours expended by her

attorneys, Ralph Suozzo and Robert J. Consavage. Suozzo's time

is billed at an hourly rate of $180 and Consavage's time is

billed at $145 per hour.

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Although Gienapp failed to provide evidence to show that the

hourly rates charged by her counsel were within the prevailing

market rates in this community for similar work, the court is

sufficiently familiar with fee awards here to rely on its own

understanding that the rates claimed are within the range of

hourly rates charged in this district. See, e.g., Access Group,

Inc. v. Daniel C. Federico, 06-cv-275-JD, 2006 DNH 131 (D.N.H.

November 21, 2006); Hawkins v. Comm'r N.H. Dep't of Health &

Human Serv., 99-cv-143-JD, 2005 DNH 085 (D.N.H. May 25, 2005);

Mr. & Mrs. S. v. Timberlane Regional Sch. Dist., 03-cv-260-JD,

2004 DNH 046 (D.N.H. March 15, 2004). The time used to respond

to Holder's motion for sanctions, given the effort necessary to

review the deposition transcript, does not appear to be

excessive, redundant, or otherwise unnecessary. See Gay Officers

Action League v. Puerto Rico, 247 F.3d 288, 299 (1st Cir. 2001). 

Therefore, the fee award requested appears to be reasonable.

Holder, however, asserts that he is financially unable to

pay the requested award and has filed two affidavits in support

of that position. Generally, a court takes the sanctioned

party's financial condition into consideration in making a fee

award. See, e.g., Sweetland v. Bank of Am. Corp., 2007 WL

1482018, at *6 (4th Cir. May 22, 2007); Whallon v. Lynn, 356 F.3d

138, 140 (1st Cir. 2004); Martin v. Automobili Lamborghini

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Exclusive, Inc., 307 F.3d 1332, 1337 (11th Cir. 2002). The

inability to pay an otherwise appropriate sanction is an

affirmative defense, putting the burden on the sanctioned party

to prove his financial status. Silva v. Witschen, 19 F.3d 725,

733 n.15 (1st Cir. 1994). 

In his financial affidavit, Holder represents that his gross

monthly income is $5,430 and that his total monthly expenses are

$5,687.30. He also represents that his total assets are valued

at $54,936.91 while his current debt is $203,814.12. He states

in his affidavit that he is responsible for caring for his tenyear-old son and that he will be assuming, in the future, the

responsibility for his disabled adult daughter's child. He

further states that he cannot access the $46,000 in his Thrift

Saving Plan because he has a loan of $3,522.66 from the Plan. 

Holder has filed five cases in this court and two appeals

and did not move to proceed in forma pauperis in those cases. 

Instead, he paid the filing fee in each case, totaling $2460. 

Although Holder states that he pays $1003.81 each month on his

mortgage and pays $445.31 for property taxes, he failed to

include the value of the mortgaged property in his list of

assets. Given the difference between the amount in his Thrift

Saving's Plan and the amount of his loan, Holder has not

demonstrated that the Plan is inaccessible to him, as he claims. 

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Although Holder provided some documentation about his own medical

condition and that of his daughter and a statement from "Service

Experts" showing a balance due of $8,805, he has not otherwise

provided documentary support for his financial status.

Despite the omissions in Holder's proof, it appears that his

financial situation is strained. The court, therefore, reduces

the amount of the award of fees by fifty percent to $1,027.25.

Conclusion

For the foregoing reasons and pursuant to Rule 37(a)(4)(B),

the plaintiff shall pay the defendant $1,027.25 for her

attorneys' fees incurred in responding to the plaintiff's

unjustified motion for sanctions against the defendant. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

July 24, 2007

cc: Robert J. Consavage, Esquire

Ralph Suozzo, Esquire

Ralph Holder, pro se

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