SOMPO JAPAN INSURANCE COMPANY OF AMERICA, Plaintiff, v. ACTION EXPRESS, LLC, Defendant.

 

Case No. CV 13-02046 DDP (JCGx)

 

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

 

2014 U.S. Dist. LEXIS 66487

 

 

May 14, 2014, Decided

May 14, 2014, Filed

 

 

COUNSEL:  [*1] GREGG S. GARFINKEL (156632), STEVE R. SEGURA (156834), NEMECEK & COLE, A Professional Corporation, Sherman Oaks, California, Attorneys for Defendant ACTION EXPRESS, LLC.

 

JUDGES: DEAN D. PREGERSON, United States District Judge.

 

OPINION BY: DEAN D. PREGERSON

 

OPINION

 

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

[Dkt. No. 20]

Before the court is Defendant Action Express, LLC (“Action Express”)’s Motion for Summary Judgement, or in the Alternative, for Partial Summary Judgement. (Dkt. No. 20.) The motion is fully briefed and suitable for decision without oral argument. Having considered the parties’ submissions, the court adopts the following order.

 

I. Background

The instant suit is a subrogation action by an insurer, Sompo Japan Insurance Company of America (“Sompo”), against a motor carrier, Action Express, arising from a stolen shipment of electronics that Sompo insured.

In January 2008, Kenwood U.S.A. (“Kenwood”) hired Daylight Transportation (“Daylight”) to transport electronics from Long Beach, California to Doral, Florida. (Defendant’s Statement of Uncontroverted Facts (“SUF”), Dkt. No. 22, ¶ 1.) Daylight, in turn, contracted with Action Express to complete the transportation of the cargo. (See SUF ¶ 4.)  [*2] While Action Express was transporting the electronics to Doral, Florida, the tractor trailer containing the cargo was stolen from a truck stop in Wildwood, Florida. (Id. ¶ 5.)

Kenwood claims the cargo that was lost during the theft was valued at $103,094.80. (Id. ¶ 6.) Kenwood filed a claim against Daylight for the loss. (Id. ¶ 7.) Daylight settled with Kenwood by paying Kenwood $30,700. (Id. ¶ 8.) This amount corresponds to the maximum amount recoverable under a limitation of liability provision in the Kenwood-Daylight contract, which limited liability to $25.00 per pound per package subject to a maximum of $100,000 per shipment. (Id. ¶ 3, 8.) Action Express reimbursed to Daylight the $30,700 settlement paid to Kenwood. (Id. ¶ 9.)

Kenwood was insured against the loss of the cargo by Plaintiff Sompo. Pursuant to this insurance policy, Sompo paid Kenwood $82,704.28 to settle the loss claim. (Id. ¶ 10.) This amount apparently corresponds to 110% of the alleged value of the stolen Cargo (Sompo’s maximum liability under the insurance policy) less $30,700 (the amount of Kenwood’s settlement with Daylight).

In the instant suit, Sompo brings a subrogration action against Action Express under  [*3] 49 U.S.C. § 14706, the Carmack Amendment, to recover the $82,704.28 it paid Kenwood under the policy, plus prejudgment interest and costs. (See First Amended Complaint at 3.)

Defendant Action Express moves for summary judgment, or in the alternative, partial summary judgment, inter alia on the grounds that (1) Sompo is precluded under the doctrine of superior equities from pursuing a subrogation claim against Action Express, and (2) Kenwood, and therefore Sompo as subrogee, is contractually prohibited from recovering more than $30,700 and Daylight has already paid Kenwood this maximum recoverable sum. (See Motion at 8.)

 

II. Legal Standard

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).  [*4] All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). If the moving party does not bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate that “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 323.

Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. Summary judgment is warranted if a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. A genuine issue exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and material facts are those “that might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. There is no genuine issue of fact “[w]here the record taken as a whole could not lead a rational trier of fact to find for  [*5] the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

It is not the court’s task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir.1996). Counsel has an obligation to lay out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001). The court “need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found.” Id.

 

III. Discussion

Action Express contends that Sompo is precluded from bringing its subrogation claim against it under the doctrine of superior equities. The court agrees.

“Subrogation is defined as the substitution of another person in place of the creditor or claimant to whose rights he or she succeeds in relation to the debt or claim.” Fireman’s Fund Ins. Co. v. Maryland Casualty Co, 65 Cal.App.4th 1279, 1291, 77 Cal. Rptr. 2d 296 (1998). “In the insurance context, subrogation takes the form of an insurer’s right to be put in the position of the insured for a loss that the insurer has both insured and paid. When an  [*6] insurance company pays out a claim on a property insurance policy, the insurance company is subrogated to the rights of its insured against any wrongdoer who is liable to the insured for the insured’s damages.” State Farm Gen. Ins. Co. v. Wells Fargo Bank, N.A., 143 Cal.App.4th 1098, 1106, 49 Cal. Rptr. 3d 785 (2006) (quotation marks and citations omitted). An insurer, in its role as subrogee, has no greater rights than those possessed by its insured, and its claims are subject to the same defenses. See Liberty Mut. Ins. Co. v. Fales, 8 Cal.3d 712, 717, 106 Cal. Rptr. 21, 505 P.2d 213 (1973)

“While the insurer by subrogation steps into the shoes of the insured, that substitute position is qualified by a number of equitable principles. . . . The most restrictive principle is the doctrine of superior equities, which prevents an insurer from recovering against a party whose equities are equal or superior to those of the insurer.” State Farm, 143 Cal.App.4th at 1106-07 (citing inter alia Meyers v. Bank of America Nat. Trust & Savings Ass’n, 11 Cal.2d 92, 102-103, 77 P.2d 1084 (1938). The requirement that an insurer demonstrate superior equities to those of any third party from whom it seeks recovery in a subrogation action derives in part from the fact that  [*7] the insurer has been paid a premium to assume the risk of loss. See id. at 1110. In California, the doctrine of superior equities applies in all cases of equitable or conventional subrogation, regardless of the source of the insurer’s claim. See id. at 1109 (citing inter alia Meyers, 11 Cal.2d at 101-103; Jones v. Aetna Casualty & Surety Co., 26 Cal.App.4th 1717, 1724, 33 Cal. Rptr. 2d 291 (1994)).

In general, an insurer may seek recovery from the “direct cause of the loss (e.g., a dishonest employee, burglar, or fire starter) or the direct cause of the loss (e.g., a bank, alarm company, or contractual indemnitor)”. Id at 1113. In the case of a claim against the direct cause of a loss, “an innocent insurer will always have superior equities.” Id. The analysis may be more complicated when weighing the equities of third parties who did not directly cause the loss but whose conduct contributed to or permitted the loss, as the third party’s degree of responsibility for the loss varies from case to case. See id. However, in order for the insurer to pursue a valid subrogation action, the third party against whom such an action is brought must always be “guilty of some wrongful conduct which makes his equity inferior”  [*8] to that of the insurer. Golden Eagle Ins. Co. v. First Nationwide Fin. Corp., 26 Cal.App.4th 160, 171, 31 Cal. Rptr. 2d 815 (1994).

Action Express contends that Sompo has failed to create a triable issue of material fact as to any wrongful conduct by Action Express relative to the loss. (See Mot. at 13; Reply at 5.) Sompo asserts that the theft of its cargo was caused by Action Express’s negligence in failing to take adequate protections to safeguard the cargo. (See Opposition at 10.)

In general, subrogation rights may be invoked against a third party that indirectly causes a loss by failing to adhere to certain proscribed procedures which could have avoided the loss. See In Barclay Kitchen, Inc. v. California Bank, 208 Cal.App.2d 347, 25 Cal. Rptr. 383 (1962) (allowing insurer’s subrogation claim against insured’s bank where the bank’s deviation from its standard procedures enabled insured’s employee to carry out embezzlement scheme); Hartford Fire Ins. Co. v. Riefolo Constr. Co., Inc., 81 N.J. 514, 410 A.2d 658 (1980) (allowing surety’s subrogation claim against third party bank where bank’s employees failed to verify the validity of a forged check); State Farm, 49 Cal. Rptr. 3d at 788, 801 (allowing insurer’s subrogation claim against  [*9] owner of apartment complex adjacent to insureds’ condominium where apartment owner’s failure to provide fire resistant trash container and safety instructions to tenants contributed to the spread of a fire started by ashes deposited by a tenant in trash container, damaging insureds’ property).

Here, however, unlike the circumstances in Barclay, Hartford, and State Farm, the insurer, Sompo, has failed to allege any facts or point to any evidence tending to demonstrate that Action Express failed to adhere to any proscribed safety procedures or was otherwise guilty of wrongful conduct that contributed to the loss. The only relevant allegations in Sompo’s First Amended Complaint are as follows:

 

8. En route to the final destination, on or about February 4, 2012, Defendants, and each of them, stopped at a truck stop located at 493 W SR, Wildwood, Florida. During this intermission of delivery, the subject cargo was, due to lack of safeguards by Defendants, stole.

9. Defendants, and each of them, failed to deliver the subject cargo as a result of a theft at 493 W SR 44, Wildwood, Florida.

 

 

(First Amended Complaint ¶ 8, 9.) Sompo does not describe, in the FAC or its Opposition to the present Motion,  [*10] what safeguards it believes Action Express failed to employ.

The only evidence Sompo cites in support of its contention that Action Express was negligent in failing to safeguard the cargo against theft is a police report concerning the theft. (See Plaintiff’s Statement of Genuine Issues in Support of its Opposition, ¶¶ 19, 20; Segura Decl. Ex. B at 36-39 (Police Report).) Sompo refers to the police report only generally, without identifying any aspect of the report supporting its contention that Action Express acted negligently. A review of the police report finds no basis for Sompo’s contention. The report states in relevant part only that the driver of the truck informed the investigating officer that he parked the truck at a truck stop, locked the vehicle, took the vehicle’s keys with him as he and another occupant went to purchase some items and take a shower, and returned 30 minutes later to find that the truck and trailer were missing.1 (Segura Decl. Ex. B at 37.) Nothing in the report appears to support a finding that Action Express acted negligently or failed to follow proscribed safeguards to prevent theft.

 

1   The relevant passage of the police report states as follows:

 

[The driver]  [*11] stated that he drove a white freightliner with a white 53′ trailer (registration number for the trailer KVY3617L) into the parking lot of the Pilot at approximately 11:30 hours, and backed ito a parking spot located behind the Pilot. He advised the truck was an owner operator but could not provide the owner’s information. He stated that the truck had the words Action Express in red letters on the doors, and had the number 305 on the front fenders. He stated that he entered the Pilot with Omar to purchase some items and take showers. He stated that he locked the doors and had the keys in his possession. He stated they were in the store approximately 30 minutes. [The driver] stated he then returned to the parking lot and truck and trailer was [sic] missing.

 

 

(Segura Decl. Ex. B at 37.)

The absence of evidence tending to show Action Express engaged in wrongful conduct is fatal to Sompo’s subrogation claim because, lacking such evidence, there is no basis on which to find that Sompo’s equities are superior to those of Action Express.

In light of this conclusion, the court does not reach Action Express’s additional arguments in support of its motion for summary judgment.

 

IV. Conclusion

For the  [*12] reasons stated herein, Action Express’s Motion for Summary Judgement is GRANTED.

IT IS SO ORDERED.

Dated: May 14, 2014

/s/ Dean D. Pregerson

DEAN D. PREGERSON

United States District Judge

 

JUDGMENT

The Motion for Summary Judgement, or in the Alternative, for Partial Summary Judgement, by Defendant ACTION EXPRESS, LLC (“Defendant”) having been fully considered, the issues having been duly heard and a decision having been duly rendered, IT IS ORDERED AND ADJUDGED that Plaintiff SOMPO JAPAN INSURANCE COMPANY OF AMERICA take nothing, that the action be dismissed on the merits and that Defendant recover its costs.

DATED: May 14, 2014

/s/ Dean D. Pregerson

United States District Judge

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

 

2014 U.S. Dist. LEXIS 67541

 

 

May 16, 2014, Decided

May 16, 2014, Filed

 

 

COUNSEL:  [*1] For Custom Shutters LLC, Plaintiff: Bruce C O’Neill, LEAD ATTORNEY, Fox O’Neill & Shannon SC, Milwaukee, WI.

 

For Saia Motor Freight Line LLC, Defendant: C Fredric Marcinak , III, Robert D Moseley , Jr, LEAD ATTORNEYS, Smith Moore Leatherwood, Greenville, SC; John J Laffey, LEAD ATTORNEY, Thomas Gonzalez, Whyte Hirschboeck Dudek SC, Milwaukee, WI.

 

JUDGES: J.P. Stadtmueller, U.S. District Judge.

 

OPINION BY: J.P. Stadtmueller

 

OPINION

 

ORDER

This matter, originally filed by plaintiff Custom Shutters, LLC (“CS”) in the Waukesha County Circuit Court, was randomly assigned to this branch of the court following defendant Saia Motor Freight Line, LLC’s (“Saia”) removal of the action. (Docket #1). On November 21, 2013, this court denied Saia’s motion for partial summary judgment. (Docket #31). The matter was set for trial, but the parties notified the court that they had resolved their dispute, save the legal question of entitlement to fees and costs. On December 6, 2013, this court issued an order establishing a briefing schedule for a motion on the subject. (Docket #33). The motion is now fully briefed and ready for adjudication.

First, a brief review of relevant facts as recounted in this court’s summary judgment order. CS  [*2] is a Wisconsin limited liability company that manufactures and sells custom shutters. Saia is a Louisiana limited liability company, and an interstate motor carrier. In August of 2012, Tracy Woznicki (“Woznicki”), CS’s Vice President and part-owner, arranged with Saia to ship a 5,500 pound package of shutters to a Lowe’s store in Naples, Florida; the parties agreed to a fee of $1,341.00. Woznicki was not given options or choices of limited liability, and the Saia representatives made no reference to limited liability. A Saia driver picked up the shipment, and when the shipment arrived in Florida, the shutters had been damaged in transit.

Along with its motion for fees, CS filed copies of the parties’ communications from the months leading up to the lawsuit. Those communications show that CS initially filed a claim with Saia seeking compensation in the amount of Lowe’s purchase price: $33,259.20. (Docket #36-1). Saia declined the claim, citing limited liability provisions found in Saia’s tariff, and instructing CS to refile its claim for a much lower amount of $1.00 per pound of freight, or $5,500.00. (Docket #36-2). CS retained counsel, and sent a letter dated August 24, 2012, denying  [*3] that Saia’s tariff limiting liability applies, citing legal authority supporting this position, and demanding the full payment. (Docket #36-3). On September 11, 2012, CS sent a follow-up letter seeking Saia’s response. (Docket #36-4). By letter dated October 2, 2012, counsel for Saia responded that it believed liability to be limited, and citing its own legal authority for this position. (Docket #35-5). CS filed suit in Waukesha County Circuit Court, seeking to recover Lowe’s purchase price: $33,259.20. (Docket #35-7). Saia removed the case to federal court and asserted that its liability is limited to $5,500.00. (Docket #1). Saia also immediately filed a motion to dismiss invoking federal law, which yielded an amended complaint, and Saia’s subsequent answer. (Dockets #3, #6, #9). This case thus sought to determine liability for a very small amount of money as compared to most federal cases. Indeed, had this case been removed on the basis of diversity jurisdiction instead of a federal question, it would not have satisfied the required amount in controversy to justify a federal forum. Be that as it may, due to the invocation of federal law, the case was properly brought to a federal  [*4] court, even though the parties disputed only $27,759.20. The parties engaged in discovery, and on August 30, 2013, Saia filed a motion for partial summary judgment. (Docket #21). The motion was fully briefed, and on November 21, 2013, the court issued an order denying Saia’s motion. (Docket #31).

In the instant motion, CS seeks attorney’s fees and costs of suit, arguing that Saia’s litigation strategy was abusive and designed to make it so expensive for CS that CS would simply walk away from the recovery to which it was entitled. In support of its motion, CS cites two authorities. First, CS cites the court’s inherent authority to impose sanctions. A court may assess fees as a sanction when a party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991) (citations). Sanctions awarded under this authority serve two purposes: first, they allow the court to vindicate its interests to punish a party for disruption to the system of justice, and second, they shift costs stemming from one party’s obstinacy to the prevailing party. Id. As a second authority for awarding fees, CS cites 28 U.S.C. § 1927, which provides:

 

Any  [*5] attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

 

 

28 U.S.C. § 1927. The purpose of this statute is “to deter frivolous litigation and abusive practices by attorneys and to ensure that those who create unnecessary costs also bear them.” Kapco Manufacturing Co., Inc. v. C & O Enterprises, Inc., 886 F.2d 1485, 1491 (7th Cir. 1989) (internal citation omitted). “Sanctions against counsel under 28 U.S.C. § 1927 are appropriate when ‘counsel acted recklessly, counsel raised baseless claims despite notice of the frivolous nature of these claims, or counsel otherwise showed indifference to statutes, rules, or court orders.'” Grochocinski v. Mayer Brown Row & Maw, LLP, 719 F.3d 785, 799 (7th Cir. 2013) (quoting Kotsilieris v. Chalmers, 966 F.2d 1181, 1184-85 (7th Cir. 1992)).

CS raises several aspects of Saia’s litigation strategy that, in CS’s opinion, expose Saia to liability under one or both of these authorities. The  [*6] court will discuss some of CS’s points below, but first finds it appropriate to dismiss some of CS’s points with limited discussion. For example, CS argues that Saia maintained a “rigid insistence” on paying only $5,500.00 and would not negotiate. Brief in Support (Docket #35) at 16. However, Saia answers this allegation by arguing that it was CS who would not budge from its demand for $33,259.20. Brief in Opposition (Docket #37) at 6. The court is simply not going to expend any energy deciphering which party’s offers to negotiate were genuine, and which party’s were less so. Likewise, the court will not award fees based on certain litigation decisions Saia made, such as flying in out-of-state counsel for a deposition and filing a motion for partial judgment on the pleadings instead of “ignoring” the complaint’s statements regarding fees. These strike the court as reasonable decisions, for the myriad reasons Saia articulates in its brief. See Brief in Opposition at 6-7.

More troubling to the court, however, is Saia’s general litigation strategy, including its decision to file a motion for partial summary judgment. Saia’s business is interstate shipping of freight, and it certainly knows  [*7] that a carrier seeking to limit its liability under the Carmack Amendment must show, among other facts, that the shipper agreed to a choice of liability for the shipment. Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1415 (7th Cir. 1987). When presented with Saia’s motion for partial summary judgment, the court easily denied it, finding that the facts did not support Saia’s contention that CS had agreed to limit its liability for the shipment. The court need not reiterate the analysis from its order denying Saia’s motion; it is sufficient for purposes of the instant motion to simply note that Saia’s showing as to CS’s agreement to limit its liability–again, a fact essential to prevailing on its motion–was a non-starter.

CS’s motion asks the court to find that Saia ought be sanctioned for persisting in its position that Saia’s liability was, in fact and law, limited in this case. The court so finds, and without hesitation. It is appropriate for a court to impose sanctions when an attorney pursued a claim that is “without a plausible legal or factual basis and lacking in justification,” Pacific Dunlop Holdings, Inc. v. Barosh, 22 F.3d 113, 119 (7th Cir. 1994), or when counsel “pursue[d]  [*8] a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound,” Kapco, 886 F.2d at 1491. In this case, there was no basis in fact to support Saia’s argument that CS had agreed to limit its liability. After undertaking an “appropriate inquiry,” and then assessing Saia’s position given the actual facts of the case, no reasonable attorney would have persisted in arguing that CS agreed to limit its liability. The argument simply lacks “a plausible legal or factual basis.” Pacific Dunlop Holdings Inc., 22 F.3d at 119. The court can only conclude that Saia’s litigation strategy was intentional, and designed to employ the legal process to yield not justice, but unjustified capitulation. See Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 228 (7th Cir. 1984) (a court may infer intent from a “total lack of factual or legal basis for a suit.”). The result of Saia’s strategy was a draw on CS’s resources because it would have to combat the motion, and on the court’s limited resources to adjudicate the motion. The court will thus award sanctions to CS, pursuant to its inherent authority, in order to punish Saia for wrongly drawing on the court’s and CS’s  [*9] resources. Chambers v. NASCO, Inc., 501 U.S. at 45-46.

Saia maintains that an award of fees in this case would “disrupt the Carmack Amendment’s careful balance of rights and remedies between shippers and carriers.” Brief in Opposition at 10. The court disagrees. As even Saia admits, the Carmack Amendment “cannot insulate a party from the consequences of unethical or improper conduct.” Brief in Opposition at 10.

Having determined that sanctions are appropriate in this case, the court must now determine a suitable amount to award. A district court awarding sanctions must determine the reasonable number of hours expended, and the reasonable hourly rate for such work. Kotsilieris v. Chalmers, 966 F.2d 1181, 1187 (7th Cir. 1992). CS submitted billing sheets in support of its request for $24,057.29, a figure representing the fees and costs CS incurred in prosecuting this action, but not including the instant motion or the amended complaint. Saia does not contest the reasonableness of hours expended on any specific entry. The court has reviewed the billing sheets and likewise finds the number of hours expended to be reasonable. Additionally, while Saia quibbles about opposing counsel’s billing  [*10] rate in a footnote, Brief in Opposition at 7 n.2, Saia offers no real argument regarding the reasonableness of the rate. Due to this lack of argument to the contrary, and in combination with the court’s knowledge of area rates, the court finds CS’s billing rates to be reasonable. Having found the hours expended and the billing rate to be reasonable, the court will order fees and costs totaling $24,057.29 in this case.

The final question to be answered is whether these fees ought be charged to Saia’s counsel in his individual capacity, or to Saia itself. See Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986) (an award of attorney’s fees made under the court’s inherent power may be made against an attorney, a party, or both.) The court deems it proper to order Saia to pay the fees. As is evident from the materials submitted in opposition to CS’s motion, Saia instructed its counsel to defend the case based on the limitation of liability argument, and approved the filing of the motion for partial summary judgment on that basis. Pennison Aff. (Docket #40) at ¶ 7, ¶ 9. While every attorney has a duty to ensure that the filings bearing his or her name are appropriate, in this case it  [*11] appears that it was Saia that made the decision to pursue the strategy. Therefore, the court will order that Saia pay the attorney’s fees in this case.

The parties earlier notified the court that they settled the underlying dispute in this case. This order adjudicates the sole pending motion. Thus, it appears that this file should be closed. The parties are directed to file appropriate closing papers within thirty (30) days.

Accordingly,

IT IS ORDERED that Plaintiffs Motion for Attorney’s Fees and Costs (Docket #34) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that Saia shall, within thirty (30) days of the date of this order, pay Plaintiff’s attorney’s fees and costs totaling $24,057.29; and

IT IS FURTHER ORDERED that the parties shall, within thirty (30) days of the date of this order, file appropriate papers closing this case.

Dated at Milwaukee, Wisconsin, this 16th day of May, 2014.

BY THE COURT:

/s/ J.P. Stadtmueller

J.P. Stadtmueller

U.S. District Judge