Case: 15-30484      Document: 00513331898   Page: 1   Date Filed: 01/06/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 15-30484                   United States Court of Appeals
                               Summary Calendar                          Fifth Circuit

                                                                       FILED
                                                                 January 6, 2016
JOHN PAUL COX,                                                    Lyle W. Cayce
                                                                       Clerk
             Plaintiff

v.

COLUMBIA CASUALTY COMPANY, ET AL,

            Defendants

KEARNEY S. LOUGHLIN,

             Appellant

v.

KENNETH TODD,

             Appellee




                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:12-CV-306


Before DAVIS, JONES, and GRAVES, Circuit Judges.
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                                      No. 15-30484
PER CURIAM:*
         On May 12, 2015, the United States District Court for the Middle District
of Louisiana entered a judgment ordering Plaintiff’s counsel, Kearney
Loughlin, to pay to Kenneth Todd, M.D., J.D. a sanction in the amount of
$1,500.00. The court further ordered that the sanction be paid by counsel and
not billed as an expense to the Plaintiff. Mr. Loughlin appeals the sanction
order.
                                   BACKGROUND
         Dr. Todd received a subpoena to appear in court and, accordingly,
cancelled and rescheduled patients for that day in order to appear in court to
testify. Additionally, he spent time reviewing his records in order to be
prepared for his appearance.
         The underlying matter was settled eight calendar days before it was
scheduled for trial. Additionally, the parties filed a notice of the settlement
with the court one week before trial. Mr. Loughlin, however, failed to properly
advise Dr. Todd that the underlying matter was not going to trial. He alleged
that he left a voicemail with Dr. Todd the day before trial. Dr. Todd testified
that his answering machine specifically instructs callers not to leave messages.
Dr. Todd testified that by taking a day off work he lost out on approximately
$2,000.00 worth of revenue.
         The district court determined that it was unreasonable for Mr. Loughlin
to wait until the day before trial to attempt to inform Dr. Todd of the trial’s
cancellation. The district court specifically noted that Mr. Loughlin only had




         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
         *

be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

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                                        No. 15-30484
three witnesses under subpoena and that it was not difficult for him to call the
witnesses in a timely fashion.
                               STANDARD OF REVIEW
       We review the imposition of sanctions for abuse of discretion. Ratliff v.
Stewart, 

, 229 (5th Cir. 2007); see also Tiberi v. CIGNA Ins. Co.,

, 112 (5th Cir. 1994) (reviewing imposition of sanctions pursuant
to Rule 45 for abuse of discretion). “[A]n abuse of discretion only occurs where
no reasonable person could take the view adopted by the trial court.” Friends
for Am. Free Enter. Ass’n v. Wal-Mart Stores, Inc., 

, 578 (5th Cir.
2002) (citations omitted). “We review the facts underlying the district court’s
decision to sanction for clear error.” FDIC v. Maxxam, Inc., 

, 576-
577 (5th Cir. 2008).
                                      DISCUSSION
       Mr. Loughlin contends that Dr. Todd already received compensation for
his appearance in the form of a $40 check as a federal witness fee. 1 Dr. Todd,
however, testified that he believed he should be compensated more for his time.
The district court agreed.
       While it is true that fact witnesses are to be compensated at the rate of
$40 per day pursuant to 28 U.S.C. § 1821(b), the district court judge chose to
compensate Dr. Todd as a sanction against Mr. Loughlin for his failure to



       1   Compensation of fact witnesses is governed by 28 U.S.C. § 1821 which provides:

       A witness shall be paid an attendance fee of $40 per day for each day’s
       attendance. A witness shall also be paid the attendance fee for the time
       necessarily occupied in going to and returning from the place of attendance at
       the beginning and end of such attendance or at any time during such
       attendance.

28 U.S.C. § 1821(b).
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                                 No. 15-30484
inform Dr. Todd of the settlement in a timely fashion. Federal Rule of Civil
Procedure 45(d)(1) provides:
      Avoiding Undue Burden or Expense; Sanctions. A party or
      attorney responsible for issuing and serving a subpoena must take
      reasonable steps to avoid imposing undue burden or expense on a
      person subject to the subpoena. The court for the district where
      compliance is required must enforce this duty and impose an
      appropriate sanction--which may include lost earnings and
      reasonable attorney's fees--on a party or attorney who fails to
      comply.

Additionally, Local Rule 45.2 for the Middle District of Louisiana provides that
“[i]t is the duty of counsel who has provoked the issuance of a subpoena to
notify the person subpoenaed if his or her attendance will not be required in
time to prevent the witness from making a needless trip. Counsel failing to
comply with this rule may be subject to appropriate sanctions.”
      Accordingly, the district court had discretion pursuant to Federal Rule
of Civil Procedure 45(d)(1) and Local Rule 45.2 to sanction Mr. Loughlin. Given
Mr. Loughlin’s failure to even attempt to inform Dr. Todd of the parties’
settlement until the day before trial, it cannot be held that the district court
abused its discretion. Accordingly, we AFFIRM.




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