                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                     2009-5067


                      MULTISERVICE JOINT VENTURE, LLC,

                                                        Plaintiff,

                                        and

                                  JANICE DAVIS,

                                                        Sanctioned Party-Appellant,
                                         v.

                                 UNITED STATES,

                                                        Defendant-Appellee.


      Janice Davis, Davis & Steele, of Washington, DC, pro se.

       Matthew H. Solomson, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E.
Davidson, Director, and Martin F. Hockey, Jr., Assistant Director.

Appealed from: United States Court of Federal Claims

Judge Thomas C. Wheeler
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2009-5067

                       MULTISERVICE JOINT VENTURE, LLC,

                                                Plaintiff,

                                          and

                                   JANICE DAVIS,

                                                Sanctioned Party-Appellant,

                                           v.

                                  UNITED STATES,

                                                Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 06-CV-312, Judge Thomas C.
Wheeler.

                           __________________________

                              DECIDED: May 6, 2010
                           __________________________


Before RADER, GAJARSA, and PROST, Circuit Judges.

PER CURIAM.

      The United States Court of Federal Claims awarded attorney fees and costs as a

monetary sanction against Plaintiff Multiservice Joint Venture, LLC’s (“MJV’s”) counsel,

Janice Davis, for intentional spoliation of evidence.          Ms. Davis moved for

reconsideration because the court did not consider her inability to pay the imposed

sanction. The court determined that because she failed to raise the argument in her

opposition to the government’s application for attorney fees and costs, she waived it.
Ms. Davis appeals the award of sanctions and the denial of her motion for

reconsideration. Because the court did not abuse its discretion in imposing reasonable

attorney fees and costs or in finding Ms. Davis waived her inability to pay argument, we

affirm.

                                            I

          The case arises from a contract dispute in connection with MJV providing

janitorial services for the United States Naval Academy. MJV sued the United States

for breach of contract under the Contract Disputes Act of 1978 (“CDA”), 41 U.S.C. § 601

et seq., in the Court of Federal Claims.        The United States filed an answer and

counterclaims, alleging MJV filed fraudulent claims in violation of the False Claims Act,

31 U.S.C. § 3729 et seq.; the Forfeiture of Claims Statute, 28 U.S.C. § 2514; and the

fraud provisions of the CDA, 28 U.S.C. § 604.

          The government, through its counsel Matthew Solomson, deposed George W.

Tolson, Jr., a general manager of MJV. At the deposition, Mr. Tolson was accompanied

by Ms. Davis and several Plaintiff’s representatives.    The government provided Mr.

Tolson a clean, stapled copy of an exhibit marked “GWT 4,” which was Defendant’s

Amended Answer and Counterclaim, and two stapled courtesy copies of the exhibit to

Plaintiff’s counsel. Mr. Solomson saw Mr. Tolson write, inter alia, “agree” and “no info”

on the exhibit next to some of the government’s factual allegations with a blue ink pen.

After a break during which Ms. Davis carried a folder to the restroom, Mr. Solomson

discovered that the staple was missing from Mr. Tolson’s exhibit and two pages that

originally appeared to be annotated, including the page(s) marked with the words “no

info,” had been replaced with clean, unmarked pages. All of Plaintiff’s representatives




2009-5067                                  2
denied removing the staple, and Ms. Davis refused to show Mr. Solomson the two intact

courtesy copies of the exhibit.

       After providing Plaintiff and Plaintiff’s counsel several opportunities to produce

the missing pages, the government filed a motion for sanctions based on spoliation of

evidence. The court held an evidentiary hearing in which it heard testimony from the

deposition participants, and determined that the court reporter’s and a Department of

Justice secretary’s testimony was more credible than that of Plaintiff’s witnesses. Mr.

Tolson admittedly wrote “no info” when he annotated the exhibit, but he could not

explain why those markings were no longer present. The court found Plaintiff’s failure

to offer any explanation for the alteration of Exhibit GWT 4 particularly problematic when

the alteration could have only been done by Plaintiff’s representatives or counsel and

thus determined Plaintiff’s affront to the court was punishable.

       Based on the its inherent authority to enter sanctions under Rule 37 of the Rules

of the United States Court of Federal Claims (“RCFC”) and 28 U.S.C. § 1927, the Court

of Federal Claims granted the government’s motion for sanctions. The court imposed

(1) an evidentiary sanction against MJV by precluding Mr. Tolson from testifying as a

witness on its behalf, and (2) a monetary sanction against Plaintiff’s counsel for the

government’s reasonable attorney fees and costs in connection with the motion and

deposition. The court afforded the government the opportunity to apply for its attorney

fees and costs and for Ms. Davis to respond if “Plaintiff wishes to challenge any portion

of Defendant’s application, or if there are any mitigating factors that Plaintiff would like

the Court to consider.” Multiservice Joint Venture, LLC v. United States, 85 Fed. Cl.

106, 114 (2008).      After considering the parties’ submissions, the court awarded




2009-5067                                    3
$13,112.00 in attorney fees and costs for the government’s preparation of the motion for

sanctions and for its taking and ordering Mr. Tolson’s deposition against Ms. Davis to be

paid on March 5, 2009.

        After failing to make any payments to the government on April 3, 2009, Ms. Davis

moved for reconsideration of the monetary sanction solely based on her inability to pay

in light of our court’s March 24, 2009 decision in Clearvalue, Inc. v. Pearl River

Polymers, Inc., 560 F.3d 1291 (Fed. Cir. 2009). The court denied her motion, finding

her argument had been waived. Ms. Davis appeals. We have jurisdiction under 28

U.S.C. § 1295(3).

                                            II

        On appeal, Ms. Davis challenges the imposition of the attorney fees and costs

sanction as well as the quantity of the amount awarded. We address each challenge in

turn.

        We review a trial court’s imposition of sanctions for abuse of discretion. See,

e.g., Clearvalue, 560 F.3d at 1304 (reviewing sanctions under Fed. R. Civ. P. 37); 1-10

Indust. Assocs. v. United States, 528 F.3d 859, 867 (Fed. Cir. 2008) (reviewing

sanctions under Rule 11 of the RCFC). When reviewing factual findings, we give great

deference to the trial court’s decision regarding witness credibility. See Medichem, S.A.

v. Rolabo, S.L., 437 F.3d 1157, 1171 (Fed. Cir. 2006).

        With regard to her challenge to the imposition of sanctions, Ms. Davis asserts

that the trial court abused its discretion in granting the government’s spoliation motion

because (1) it failed to consider that the two courtesy copies remained intact and

therefore she had no means of altering the original exhibit and (2) the government failed




2009-5067                                   4
to allege and prove that the purportedly tampered deposition copy had any possible

relevance to a defense or counterclaim. We disagree.

       First, Ms. Davis argues that her submission of the two intact courtesy copies for

in camera review undermines the government’s assertion that Plaintiff or Plaintiff’s

counsel altered the deposition exhibit.     Whether the two courtesy copies remained

intact, however, is not relevant to the fact that the Exhibit GWT 4 was altered. Rather,

that they were intact at the time of the evidentiary hearing does not prove or disprove

anything with respect to the exhibit Mr. Tolson annotated. It certainly is not sufficient to

undermine the court’s unchallenged specific factual findings that the while the document

was in Plaintiff’s possession during the deposition, the document had become

unstapled, and two pages upon which Mr. Tolson made markings had been removed

and replaced with clean copies of the initial document.

       Moreover, even if, as Ms. Davis argues, the courtesy copies were intact at the

time of the evidentiary hearing, it does not explain what happened to the page(s) Mr.

Tolson admittedly marked with the words “no info.” Further, Ms. Davis does not dispute

that upon Mr. Solomson’s demand, she failed to produce the courtesy copies provided

to Plaintiff during the deposition, or that copies of the exhibit or its individual pages

could have been easily produced by printing a new one from the electronic filing system

known as PACER.         Therefore, we conclude that Ms. Davis fails to show the court

abused its discretion when it did not consider Plaintiff’s intact courtesy copies submitted

for in camera review.

       Second, Ms. Davis argues, relying on Eaton Corp. v. Appliance Valves Corp.,

290 F.2d 874 (Fed. Cir. 1986), that the court abused its discretion in awarding sanctions




2009-5067                                    5
because the government failed to show that the purportedly tampered deposition copy

had any possible relevance to a defense or counterclaim. In Eaton, we explained that

the test for an adverse inference sanction—a finding of evidence destruction and bad

faith by the destructive party—was inapplicable where the destruction of evidence was

harmless because it had already been produced. 290 F.2d at 878. Unlike Eaton, the

missing evidence here—Mr. Tolson’s complete annotated exhibit copy—has never been

produced by Plaintiff or Plaintiff’s counsel. Despite numerous opportunities, Ms. Davis

failed to explain what had happened, or to produce the missing pages of the tampered

deposition copy, which involved the general manager’s knowledge surrounding the

government’s allegations in its counterclaims and thus was directly related to the

development of the government’s case. Moreover, the court here found that MJV and

Ms. Davis’s conduct was in keeping with an intentional cover up rather than a good faith

effort to correct and explain a misunderstanding. Multiservice Joint Venture, 85 Fed. Cl.

at 113. We therefore agree with the government that Ms. Davis’s reliance on Eaton is

misplaced. The court heard the parties’ arguments at length and carefully weighed the

evidence before deciding to award sanctions pursuant to its inherent authority under

Rule 37 of the RCFC and 28 U.S.C. § 1927. Ms. Davis does not challenge the court’s

factual findings in this regard.   Accordingly, Ms. Davis fails to show that the court

abused its discretion in awarding monetary sanctions against her.

      With respect to the amount of the sanctions awarded, Ms. Davis asserts that the

court abused its discretion in awarding the government commercial market rates, as

opposed to expenses actually incurred, for attorney fees and costs. We have, however,

distinguished between statutes that provide the reimbursement of fees and costs




2009-5067                                  6
“actually incurred” with those “incurred.” Raney v. Fed. Bureau of Prisons, 222 F.3d

927, 934 (Fed. Cir. 2000). RCFC 37(b)(2)(C) and 28 U.S.C. § 1927, the provisions

under which Ms. Davis was sanctioned, explain that the sanctioned party must pay the

reasonable expenses, including attorney fees, “incurred.” The language implicated here

has been uniformly interpreted to require the payment of “market-rate” fees, which are

“those prevailing in the community for similar services by lawyers of reasonably

comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 896 n.11

(1984); Raney, 222 F.3d at 932-33; Pac. Gas & Elec. Co. v. United States, 82 Fed. Cl.

474, 487-88 (2008).

       In addition, Ms. Davis argues that the court abused its discretion when including

an award of fees and costs associated with preparing for the deposition at issue and the

deposition transcript. We disagree. Nothing in the rules at issue limits sanctions to fees

and costs exclusively tied to the pursuit the motion for sanctions. We conclude that the

court did not abuse its discretion in awarding attorney fees and costs associated with

preparing for and ordering a deposition marred by spoliation. Indeed, the government

wasted its time and money deposing a witness now barred from testifying on Plaintiff’s

behalf and ordering the deposition transcript, which was the subject of the government’s

underlying motion. Accordingly, Ms. Davis fails to demonstrate that the court abused its

discretion in awarding commercial market rates in connection with preparing for the

deposition, the deposition transcript, or the motion itself.

                                              III

       On appeal, Ms. Davis separately challenges the court’s denial of her motion for

reconsideration. We review the court’s denial of Ms. Davis’s motion for reconsideration




2009-5067                                     7
pursuant to RCFC 59(a)(1) for an abuse of discretion. Parsons ex rel. Linmar Prop.

Mgmt. Trust v. United States, 174 F. App’x 561, 562 (Fed. Cir. 2006); Yuba Natural

Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990). The burden on the

moving party is high and a motion for reconsideration is not intended merely to give an

unhappy litigant an additional opportunity to persuade the court to accept its arguments.

See Citizens Fed. Bank, FSB v. United States, 53 Fed. Cl. 793, 794 (2002). “Rule 59 of

the United States Court of Federal Claims permits reconsideration for one of three

reasons: (1) that an intervening change in the controlling law has occurred; (2) that

previously unavailable evidence is now available; or (3) that the motion is necessary to

prevent manifest injustice.”   Parsons, 174 F. App’x at 563.         Ms. Davis fails to

demonstrate that any of these limited grounds for reconsideration apply in this case.

      Ms. Davis asserts that the court erred in failing to reconsider the monetary

sanction award solely on the grounds it should have considered her inability to pay in

light of our decision in Clearvalue, which she argues serves as an intervening change in

the controlling law. The court found that she waived this argument when she failed to

raise it as a mitigating factor in response to the government’s application for attorney

fees and costs. We agree.

      After the court determined that a monetary sanction against Ms. Davis was

appropriate, the court provided Ms. Davis with the opportunity to challenge the

government’s application for attorney fees and costs and present any mitigating factors.

Ms. Davis did not raise her “inability to pay” defense at that time. Rather, two months

after the court issued its monetary sanctions award and nearly one month after the

court’s deadline to pay the sanctions, she raised this argument by way of a motion for




2009-5067                                   8
reconsideration. She based her motion on our recent decision in Clearvalue, where we

found that the district court abused its discretion in failing to consider counsel’s inability

to pay when holding him jointly and severally liable with his client for attorney fees under

RCFC 37 in the amount of $121,107.38, an amount four times counsel’s reported net

income for the previous fiscal year. 560 F.3d at 1305-06. Ms. Davis can only succeed

on this ground if Clearvalue was an intervening change in the controlling law in our

circuit.

           Ms. Davis, however, concedes that the principle of a party’s ability to pay was

one of first impression in Clearvalue and it was not a decision contrary to the law of this

circuit. Further, this argument was not novel. As the Court of Federal Claims and our

decision in Clearvalue explained, many circuit courts considered and recognized an

inability to pay a monetary sanction prior to Clearvalue’s issuance. Accordingly, Ms.

Davis fails to establish that Clearvalue introduced an intervening change in the

controlling law or that the court abused its discretion in denying her motion for

reconsideration on the grounds that she waived her inability to pay argument.

                                              IV

           Because the court did not abuse its discretion in awarding reasonable attorney

fees and costs as a monetary sanction against Ms. Davis or denying her motion for

reconsideration, we affirm.




2009-5067                                     9
