                                                                              FILED
                                                                  United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                  Tenth Circuit

                                 FOR THE TENTH CIRCUIT                  March 28, 2017
                             _________________________________
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
RONALD MUKASA MAITEKI,

       Plaintiff - Appellant,

v.                                                           No. 16-1298
                                                (D.C. No. 1:12-CV-02021-WJM-CBS)
MARTEN TRANSPORT, LTD.,                                       (D. Colo.)

       Defendant - Appellee,

and

VOYAGER EXPRESS,

     Defendant.
–––––––––––––––––––––––––––––––––––

RONALD MUKASA MAITEKI,

       Plaintiff - Appellant,

v.                                                           No. 16-1320
                                                (D.C. No. 1:12-CV-02021-WJM-CBS)
MARTEN TRANSPORT, LTD.,                                       (D. Colo.)

       Defendant - Appellee,

and

VOYAGER EXPRESS,

       Defendant.
------------------------------

ANDREW NYOMBI; IKECHUKWU
EMEJURU,

       Attorneys - Appellants.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before BRISCOE, LUCERO, and HARTZ, Circuit Judges.
                   _________________________________

      Marten Transport, Ltd. (“Marten”) obtained summary judgment on Ronald

Maiteki’s claims relating to negative information Marten provided to a consumer

reporting agency about Maiteki’s driving record. See Maiteki v. Marten Transp. Ltd.,

828 F.3d 1272 (10th Cir. 2016) (affirming grant of summary judgment). Marten then

sought an award of costs from Maiteki under Fed. R. Civ. P. 54(d) and 28 U.S.C.

§ 1920, and sanctions against Maiteki’s counsel, Andrew Nyombi and Ikechukwu

Emejuru, under 28 U.S.C. § 1927. The district court granted both requests in part,

awarding Marten $6,840.37 in costs and ordering counsel to pay Marten $29,066.05

in attorneys’ fees. Maiteki appeals the cost award (No. 16-1298) and counsel appeal

the fee award (No. 16-1320). Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm both awards.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          2
                                            I

      We review an award under § 1927 for abuse of discretion. Hamilton v. Boise

Cascade Express, 519 F.3d 1197, 1202 (10th Cir. 2008). That statute provides for

sanctions against an attorney who “multiplies the proceedings in any case

unreasonably and vexatiously” for the “attorneys’ fees reasonably incurred because

of such conduct.” § 1927. “[A]ny conduct that, viewed objectively, manifests either

intentional or reckless disregard of the attorney’s duties to the court, is sanctionable.”

Hamilton, 519 F.3d at 1202 (quotation omitted). “[W]e have found sanctions

appropriate . . . when counsel repeatedly refers to facts in the record that simply are

not there.” Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1153 (10th Cir. 2007)

(citing Herzfeld & Stern v. Blair, 769 F.2d 645, 647 (10th Cir. 1985)). In Herzfeld

we explained that “[t]he many instances in which counsel’s references to the record

are contrary to what is found indicate that he has been either cavalier in regard to his

approach to this case or bent upon misleading the court,” and in either event “added

grievously to the frivolous nature of [the case],” rendering a sanction under § 1927

“not only proper . . . [but] necessary.” 769 F.2d at 647.

      Taking guidance from Herzfeld, the district court sanctioned Maiteki’s counsel

based on their response to Marten’s motion for summary judgment, which it

characterized as blatantly misstating the evidence as to nearly every potentially

material fact. The district court found that these misstatements required Marten’s

counsel to expend significant time correcting the record and addressing frivolous

claims and theories. It ordered counsel to compensate Marten for fees incurred in

                                            3
preparing the summary judgment reply brief. Because Maiteki’s counsel challenged

only Marten’s entitlement to fees, and not the reasonableness of the claimed hours or

rates, the district court granted the amount requested, $29,066.50, which it considered

reasonable on its face.

      Nothing counsel argues on appeal demonstrates reversible error in the district

court’s exercise of its discretion over the fee award. Having reviewed their efforts to

justify, explain, or excuse their dubious record citations as reasonably accurate, we

are convinced that the district court’s unfavorable assessment does not reflect a

“clear error of judgment,” a decision “exceeding the bounds of permissible choice,”

or “an arbitrary, capricious, whimsical, or manifestly unreasonable judgement.” Sun

River Energy, Inc. v. Nelson, 800 F.3d 1219, 1228 (10th Cir. 2015) (quotation and

alteration omitted). We also reject counsel’s objection that the rationale articulated

by the district court for imposing the sanction was inadequate.1

      Counsel contend that Herzfeld does not support the sanction imposed here

because that case involved misconduct in addition to misrepresentation of the record.

But, as noted above, Herzfeld stated that the misrepresentations “added grievously”

to the grounds for sanction, which it characterized as “not only proper . . . [but]

necessary.” 769 F.2d at 647. The district court aptly looked to Herzfeld for guidance

      1
        Counsel summarily assert that the sanction award violated their due process
rights because it was imposed without notice. Given that sanctions were awarded on
Marten’s motion (which specified the amounts sought for, among other things,
responding to Maiteki’s opposition to summary judgment, and cited attached exhibits
supporting the amount claimed) and after briefing by both sides, this contention is
inexplicable. See Sun River Energy Inc., 800 F.3d at 1230 (opportunity to brief
sanction issue satisfies due process).
                                            4
in imposing a sanction based on repeated mischaracterization of the record—conduct

we have indicated, citing Herzfeld, is a sufficient ground for finding sanctions

appropriate, see Lewis, 500 F.3d at 1153. We affirm the district court’s decision in

this regard.

                                            II

       We also review the district court’s cost award for abuse of discretion. See

In re Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009).

After the entry of final judgment entitling Marten to an award of costs under Rule

54(d), the parties could not agree on the items to be allowed under § 1920. A

telephonic hearing was set before the court clerk, but at the scheduled time Maiteki’s

counsel did not answer the clerk’s call. Maiteki later challenged various items by

motion, however, and the district court considered those challenges notwithstanding

counsel’s failure to appear for the hearing.2

       Maiteki challenges four specific aspects of the cost order, all relating to

depositions. The first concerns his own deposition, conducted by multiple defendants

over two days. Maiteki contends Marten should not recover the full cost of the

transcript but only a pro rata amount to cover the part reflecting its own questions

during the examination. The district court rejected this contention because the


       2
        To the extent Maiteki’s repeated references to the cost hearing being
“ex parte” are intended as a procedural objection to the award, the objection is
meritless. His counsel’s absence was the result of their own failure to appear and, in
any event, the district court decided the matter—denying some of the costs sought—
after considering the parties’ briefing.

                                            5
questions of co-defendants’ attorneys contributed to each others’ cases, and because

Marten justifiably ordered a full transcript given that court reporting firms generally

do not offer partial transcripts at a discount. Maiteki does not address these reasons

on appeal and has thus failed to demonstrate a reversible abuse of discretion. See

Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first

task of an appellant is to explain to us why the district court’s decision was wrong.”).

       Second, Maiteki objects to paying for deposition transcripts with respect to an

expert he had designated for damages issues. He complains that the award was unfair

because, as a trade-off agreed to by Maiteki for withdrawing the expert, Marten had

not been required to pay the expert’s witness fee for appearing at the deposition. But

Marten being relieved of its obligation to pay an expert witness fee is unrelated to the

issue at hand: whether Marten obtained the expert’s deposition transcript for use in

the case. And the fact that Maiteki eventually withdrew the expert does not

undermine Marten’s obvious reasons for previously obtaining the transcript in

preparation for the expert’s testimony on damages at trial.3

      Maiteki’s third objection concerns deposition transcripts for two witnesses of

one of Marten’s co-defendants. He asserts that Marten did not refer to the transcripts


      3
        Maiteki may also be objecting that the expert’s testimony was not used in
connection with Marten’s (already pending) summary judgment motion. But
deposition transcripts are properly obtained for trial as well as for summary
judgment, and their cost is still properly recoverable even if the grant of summary
judgment ultimately obviates the need for trial. See Mitchell v. City of Moore,
218 F.3d 1190, 1204-05 (10th Cir. 2000).


                                           6
in its summary judgment briefing and obtained them solely for discovery purposes.

Marten explains, however, that these witnesses could have provided evidence

regarding the reasons Voyager did not hire Maiteki, which was relevant to Maiteki’s

claim for damages against Marten had the case gone to trial. We agree with the

district court’s assessment that ordering the transcript was reasonable.

       Finally, Maiteki contends he should not have had to cover the cost of

videotaping the deposition of his damages expert. The district court explained that

because deposition transcripts and deposition videos serve different purposes, the

better practice is to allow the costs of both videotaped and stenographic depositions,

absent some good reason not to do so. See Meredith v. Schreiner Transp., Inc.,

814 F. Supp. 1004, 1006 (D. Kan. 1993), cited with approval in Tilton v. Capital

Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir. 1997) (holding cost of videotaped

deposition is recoverable under § 1920). Maiteki objects that the deposition—

videotaped or transcribed—was simply not necessary. We have already rejected that

broad objection in concluding above that the district court properly found that the

deposition was necessarily obtained for use in the case. Maiteki also insists that the

videotaping cost should not have been allowed simply because he had opposed the

use of a videographer at the time. He cites no authority for this facially dubious

proposition.




                                           7
                                        III

      The judgment of the district court awarding costs against Maiteki and

imposing sanctions on Maiteki’s counsel is affirmed. Marten’s motion for appellate

sanctions is denied.


                                          Entered for the Court


                                          Carlos F. Lucero
                                          Circuit Judge




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