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15 June 1998
Source: Hardcopy from William H. Payne
See related documents: http://jya.com/whpfiles.htm
|
U.S. Department of Justice | |
| United States Attorney District of New Mexico |
||
| _________________________________________________________________ | ||
| Post Office Box 607 | 505-766-3341 |
|
| Albuquerque, New Mexico 87105 | FTS 8-505-766-3342 |
|
June 12, 1998 |
||
William H. Payne
13015 Calle de Sandias
Albuquerque, New Mexico 87111
Re: William H. Payne et al v. Lt. Gen. Minihan, USAF
Civ. No. 97-0266 SC/DJS
Dear Mr. Payne,
Attached are copies of Defendant's Motion and Memorandum to Tax Fees and
Costs, and Bill of Costs, filed with U. S. District Court Clerk.
You are requested to immediately remit a bank money order or cashier's check in
the amount of $625.00 made payable to the U. S. Department of Justice and forwarded to the
United States Attorney, Financial Litigation Unit, P. O. Box 607, Albuquerque, New Mexico
87103, to arrive on or before June 26, 19998. Failure to comply with this demand for payment of
the Defendant's counsel's attorney fees by date established will result in enforced collection
action without further contact, which will include costs of collection. We trust this will not be
necessary and urge you to respond immediately.
Sincerely,
JOHN J. KELLY
United States Attorney
[Signature]
ANITA BARDTRIEF, CLA
Supervisory Pralegal Specialist, FLU
Enclosures: as
cc: Civil File 97Z0181/001
[Full completed form not transcribed; excerpted data]:
Bill of Costs United States District Court, District New Mexico. William H. Payne and Arthur R. Morales, v. Lt. Gen. Kenneth A. Minihan, USAF, Director, National Security Agency Docket No. Civil 97-0266 SC/DJS. Judgment having been entered in the above entitled action on January 28, 1998 against William H. Payne and Arthur R. Morales, jointly the clerk is requested to tax the following as costs and severally, Bill of Costs: Attorneys' Fees -- $625.00 (See Exhibit "A" and Exhibit "B" and Exhibit "C" attached hereto. Declaration signed by Jan Elizabeth Mitchell, United States of America, Department of Justice, 06-12-98. |
IN THE UNITED STATES DISTRICT COURT |
||
| WILLIAM H. PAYNE, ARTHUR R. MORALES, |
) ) |
|
Plaintiffs, |
) | |
| vs. | ) | No. Civ. 97-0266SC/DJS |
| Lt. Gen. KENNETH A. MINIHAN, USAF Director, National Security Agency, |
) ) |
|
Defendant. |
) | |
DEFENDANT'S MOTION AND MEMORANDUM
TO TAX FEES
On January 28, 1998, the Court entered an Order granting sanctions to Defendant, United States of America, against the Plaintiffs, William H. Payne and Arthur R. Morales, jointly and severally. The court directed Defendant's counsel to submit an affidavit outlining her costs and fees within ten days of entry of the Court's Order. The Court provided Plaintiffs with the opportunity to respond within ten days of service of Defendant's counsel's affidavit. On February 19, 1998, Plaintiffs filed a multi-point response wherein the Court's Order of january 29, 1998, was addressed, howver, Plaintiffs did not address Defendant's award of attorneys' fees, nor have the Plaintiffs paid Defendant's attorneys' fees.
COSTS:
To the extent the below-listed fees are deemed to be costs, the United States requests payment for those amounts.
| FEES:* | ||
| A. | Telephone conversation with Sandia National Laboratories counsel. | .1 hr |
| B. | Telephone conversations with paralegal, Office of General Counsel, National Security Counsel concerning Plaintiffs' discovery sent to NSA employees | .2 hrs |
| C. | Review facsimiles of Plaintiffs' First Set of Requests for Admission to Retired Sandia Employee Gustavus J. Simmons, and Plaintiffs' First Set of Requests for Admissions to Sandia employee D. Jerry Allen, Plaintiffs' First Set of Requests for Admissions to NSA Employees: Scott Judy, Edward Donohue, and Paul Bridge, Plaintiffs's First Set of Requests for Admission to NSA Director Kenneth Minihan | .2 hrs |
| D. | Preparation of Motion and Memorandum to Strike Any and All of Plaintiffs' First Set of Requests for Admissions to Various Employees of the National Security AGency and Various Employees of Sandia National Laboratories | 2.0 hrs |
| E. | Review of facsimile and attachments from Sandia National Laboratories' legal iorganization | .1 hr |
| F. | Review facsimile from Office of General Counsel National Security AGency | .2 hrs |
| G. | Review Plaintiffs' First Set of Request for Admission to NSA Employee Brian Snow, Plaintiffs' First Set of Reqeusts for Admission to NSA Employee Rick Proto, Plaintiffs' First Set of Request for Admission to NSA Manager Bruce Bottomly, Plaintiffs' First Set of Request for Admission to NSA Employee Donald Simard | .2 hrs |
| H. | Review Plaintiffs' Response to Motion and Memorandum to Strike Any and All of Plaintiffs' First Set of Request for Admissions to VArious Employees of The National Security Agency and To Various Employees of Sandia National Laboratories | .5 hrs |
| I. | Review of Plaintiffs' Motion for Summary Judgment Based on Evidence From Admissions, and preparation of Defendant's Response to Plaintiffs' Motion for Summary Judgment Based on Evidence From Admissions | 1.5 hrs |
Total time: |
5.0 hrs | |
5.0 hours at $125.00/hours |
$625.00 | |
| * Requested attorneys' fees are based on a flat hourly rate of $125.00/hour | ||
Defendant affidavit in support of this Motion is attached hereto as EXHIBIT
"A". Counsel's Affidavit filed with the Court on February 9, 1998, in support
of her costs and fees is attached hereto as EXHIBIT "B". The Court's Order
of January 28, 1998, is atached hereto as EXHIBIT "C". Due to the nature
of this Motion, concurrence of Plaintiffs' pro se was not sought.
Respectfully submittedJOHN H. KELLY
United States Attorney[Signature]
JAN ELIZABETH MITCHELL
Assistant U.S. Attorney
P.O. Box 607
Albuquerque, NM 87103
(505) 224-1472
I HEREBY CERTIFY that a true copy
of the foregoing Motion and Memorandum
to Tax Costs and Fees was mailed to
Plaintiffs pro se this 12th day of June, 1998.
[Signature]
JAN ELIZABETH MITCHELL
Assistant U.S. Attorney
AFFIDAVIT
| STATE OF NEW MEXICO | ) | |
| ) | ss | |
| COUNTY OF BERNALILLO | ) |
I, JAN ELIZABETH MITCHELL, Assistant U.S. Attorney, being first duly sworn, state that the costs and fees itemized and set forth in Defendant's Motion to Tax Costs and Fees are allowable by law and awarded to Defendant by the Court on March 10, 1998.
[Signature]
JAN ELIZABETH MITCHELL
Assistant U.S. Attorney
SUBSCRIBED AND SWORN to before me on this 12th day of June, 1998, by Jan Elizabeth Mitchell, Assistant U.S. Attorney
[Signature: Anita Bardtrief, CLA]
Notary PubolicMy Commission Expires:
June 16, 1999
[Stamped ] EXHIBIT A
98 FEB-9 PM 3:35
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM H. PAYNE )
ARTHUR R. MORALES )
)
PlaintiffS, )
)
vs. ) CIVIL NO. 97 0266 SC/DJS
)
)
LT GEN KENNETH A MINIHAN )
USAF dIRECTOR, National Security )
Agency, )
)
Defendant )
AFFIDAVIT OF ATTORNEY FEES IN ACCORDANCE WITH COURT ORDER
JAN ELIZABETH MITCHELL, being first duly sworn on
oath states:
1. I am an Assistant United States Attorney for the
District of New Mexico. I have been licensed to practice law in
the State of new Mexico since 1977. This Court has previously
recognized that attorenys fees in the approximate amount of
$125/hour are reasonable fees.
2. Pursuant to the Order entered January 28, 1998, the
following consititue the attorneys fees incurred to consider and
prepare Defendant's Motion and Memorandum to Strike Any and All of
Plaintiffs' First Set of Requests for Admissions to Various
Employees of the National Security Agency and to Various Employees
of Sandia National Laboratory filed October 23, 1997, and the
subsequent pleadings resulting from Plaintiffs's First Set of
Requests for Admissions.
A. On or about October 21, 1997, telephone
conversation with Ellen F. Gallegos, Attorney for Sandia National
[Stamped] EXHIBIT B
Laboratories concerning Requests for Admission received by Sandia
employees. . . . . . . . . . . . . . . . . . . . . . . .1 hour
B. On or about October 21, 22, and 23, 1997,
telephone conversations with paralegal, Office of General Counsel,
National Security Counsel re discovery requests from Plaintiffs' sent
to NSA employees . . . . . . . . . . . . . . . . . . . . .2 hours
C. Review of facsimiles of Plaintiffs' First Set Of
Requests for Admission to Retired Sandia Employee Gustavus J.
Simmons, Plaintiffs' First Set Of Request for Admissions to Sandia
Employee D. Jerry Allen, Plaintiffs' First Set Of Request For
Admission to NSA Employee Scott Judy, Plaintiffs's First Set Of
Request for Admission to NSA Employee Edward Donohue, Plaintiffs'
First Set of Request for Admission to NSA Employee Paul Bridge,
Plaintiffs' First Set Of Request For Admission to NSA Director
Kenneth Minihan . . . . . . . . . . . . . . . . . . . . .2 hours
D. October 22 and 23, 1997 preparation of Motion and
Memorandum To Strike Any And All of Plaintiffs' First Set Of
Requests for Admissions to Various Employees of the National
Security AGency and Various Employees of Sandia National Laboratory
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.0 hours
E. On October 27, 1997 review of facsimile and
attachments from Sandia National Laboratories legal Organization
ll0l0 . . . . . . . . . . . . . . . . . . . . . . . . . . .1 hour
F. On October 27, 1997, review of facsimile from
Office of General Counsel National Security AGency . . . .2 hours
2
G. On or about November 12, 1997, review of
Plaintiffs' First Set of Request for Admission to NSA Employee
Brian Snow, Plaintiffs' First Set of Reqeusts for Admission to NSA
Employee Rick Proto, Plaintiffs' First Set of Request for Admission
to NSA Manager Bruce Bottomly, Plaintiffs' First Set of Request for
Admission to NSA Employee Donald Simard . . . . . . . . . .2 hours
H. On or about November 12, 1997, review of
Plaintiffs' Response to Motion and Memorandum to Strike Any and All
of Plaintiffs' First Set of Request for Admissions to Various
Employees of The National Security Agency and To Various Employees
of Sandia National Laboratories . . . . . . . . . . . . . .5 hours
I. On or about January 4, 5, 1998, review of
Plaintiffs' Motion for Summary Judgment Based on Evidence From
Admissions and preparation of Defendant's Response to Plaintiffs'
Motion for Summary Judgment Based on Evidence From Admissions . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 hours
Total time: . . . . . . . . . . . . . . . . . . . 5 hours
5 hours at $125/hour . . . . . . . . . . . . . . $625.00
Further, affiant sayeth not.
[Signature]
JAN ELIZABETH MITCHELL
SUBSCIRBED AND SWORN TO before me on this 9th day of
February, 1998.
[Signature: Theresa P. Nilson]
NOTARY PUBLIC
my Commission Expires: October 3, 2001
I HEREBY CERTIFY that a true copy
of the foregoing pleading was mailed
to opposing counsel of record this
9th day of February 1998
[Signature: Jan E. Mitchell]
Assistant U. S. Attorney
3
[The following document is also at: http://jya.com/whp012898.htm]
FILED
UNITED STATES DISTRICT COURT
ALBUQUERQUE, NEW MEXICO
January 28, 1998
Robert M. Marsh
CLERK
US District Court
|
| Case: | 97cv00266 |
| Title: | Payne v. Minihan |
| Document Type: | Order |
| Document Number: | 37 |
| Description: | ORDER by Magistrate Judge Don J. Svet striking Plaintiff's First Set of Request for Admissions |
| Total Pages: | 2 |
| Exhibits/Attachment: | 0 |
| Court Signature: | 1b 38 6f 51 09 89 7c 36 56 f5 dc 31 ea f0 f2 f1 df a7 56 23 24 07 37 a5 5d 89 f9 62 34 bd 35 0b e7 7d 90 47 36 0e 50 f4 68 61 a1 2c 6a b3 9d a6 87 b2 eb 33 a9 aa 2d 1d 00 92 75 a4 34 98 c3 f1 |
| This document constitutes an official stamp of the Court and, if attached
to the document identified above, serves as an endorsed copy of the pleading. It may be used in lieu of the Court's mechanical file stamp for the named document only, and misuse will be treated the same as misuse of the Court's official mechanical file stamp. The Court's digital signature is a verifiable mathematical computation unique to the filed document and the Court's private encryption key. This signature assures that any change can be detected. |
[Stamped] EXHIBIT C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM H. PAYNE et al.,
Plaintiffs,
v. CIV. NO. 97-266 SC/DJS
LT. GEN. KENNETH A. MINIHAN,
USAF Director, National Security
Agency,
Defendant.
ORDER
THIS MATTER comes before the Court on Defendant's Motion and
Memorandum to Strike any and all of Plaintiffs' First Set of
Requests for Admissions to Various Employees of the National
Security Agency and to Various Employees of Sandia National
Laboratory filed October 23, 1997. Plaintiffs responded on
November 5, 1997. Defendant's Motion is well taken and shall be
granted.
Plaintiffs' attempt at discovery violates this Court's Order
entered June 11, 1997. On June 11, 1997 this Court ordered that
any proposed discovery must be approved by the Court. The
Plaintiffs did not submit this proposed discovery to the Court.
Further, Plaintiffs did not seek to take discovery prior to the
discovery deadline. Finally, Plaintiffs, failed to serve counsel
for the Defendant and instead served General Minihan. This
violates Fed.R.Civ. 5.
The fact that Plaintiffs are pro se does not relieve them from
the burden of complying with court orders and rules of civil
procedure. Ogden v. San Juan County, 32 F.3d 452, 255 (10th Cir.
1994). Further, Plaintiffs flagrant disregard of this Court's
order warrants the imposition of sanctions pursuant to Fed.R.Civ.P.
37.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant's
Motion to Strike [any] and all of Plaintiff's First Set of Requests for
Admissions to Various Employees of the National Security Agency and
to Various Employees of Sandia National Laboratory is granted.
IT IS FURTHER ORDERED THAT sanctions will be granted and
counsel for Defendant shall submit an affidavit outlining her costs
and fees in bringing this Motion within ten days of entry of this
Order. Plaintiffs may respond within ten days of service of
Defendant's affidavit.
FINALLY, IT IS ORDERED that Plaintiffs are not to communicate
with the opposing party who is represented by counsel.
[Signature]
DON J. SVET
UNITED STATES MAGISTRATE JUDGE
[End]
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