Kovaco v. Rockbestos-Surprenant Cable Corp

Filing 123

RULING granting in part and denying in part 98 Motion for Rule 11 Sanctions. Signed by Judge Holly B. Fitzsimmons on 4/17/2014. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSIF KOVACO
v.
ROCKBESTOS-SURPRENANT
CABLE CORP.

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CIV. NO. 3:11CV377 (WWE)

RULING ON DEFENDANT‟S MOTION FOR RULE 11 SANCTIONS [Doc. #98]
Plaintiff Joseph Kovaco brings this action against
defendant Rockbestos-Surprenant Cable Corp. alleging, inter
alia, discrimination and retaliation in violation of the
Americans with Disabilities Act (“ADA”) 42 U.S.C. §12101, the
Age Discrimination in Employment Act (“ADEA”) 29 U.S.C. §621634, Title VII of the Civil Rights Act of 1964 (“Title VII”) 42
U.S.C. §200e et seq., the Family Medical Leave Act (“FMLA”) 29
U.S.C. §2601 et seq., Connecticut General Statutes §46a-60(1)(1)
and (a)(4), and Connecticut common law. [Amend. Compl., Doc.
#10].

Plaintiff alleges discrimination on the basis of

disability, age, national origin, and use of medical leave.1
Pending before the Court is defendant‟s motion for Rule 11
sanctions against plaintiff‟s counsel, Cicchiello & Cicchiello,
LLP, in connection with the filing of plaintiff‟s motion for
clarification/modification. [Doc. #98].2

Plaintiff opposes

defendant‟s motion. [Doc. #113]. After careful consideration,

1

On September 25, 2013, Judge Eginton granted defendant‟s motion for summary
judgment on plaintiff‟s FMLA retaliation and intentional infliction of
emotional distress claims. [Doc. #106].
2

Defendant represents, and plaintiff does not challenge, that it served
plaintiff with the motion for sanctions on May 23, 2013, in accordance with
Rule 11‟s safe harbor provision. See Rule 11(c)(2) (providing twenty one
(21) day safe harbor period).
1

the Court GRANTS IN PART AND DENIES IN PART defendant‟s motion
for Rule 11 sanctions, for the reasons articulated below.
I.

Background
The claims raised in defendant‟s motion for sanctions

warrant a brief overview of the applicable procedural history.
On March 27, 2012, plaintiff served on defendant the expert
disclosure and report of John McNamara.

On May 10, 2012,

defendant filed a motion in limine to preclude Mr. McNamara from
testifying in accordance with his initial expert report. [Doc.
#49].

The day before the deadline for plaintiff‟s response to

the motion in limine, plaintiff served defendant with Mr.
McNamara‟s revised expert report. On October 31, 2012, defendant
filed a motion to strike the revised expert report [Doc. #49],
which the Court denied on the condition that plaintiff reimburse
defendant for the cost of preparing and filing the motion in
limine (“April 15 Order”). [Doc. #83].

One month later, on May

15, 2013, plaintiff filed a “Motion for
Clarification/Modification Re: Order #49.” [Doc. #84].
In his motion for clarification, plaintiff requested that
the Court clarify its April 15, 2013 Order, denying defendant‟s
motion to strike plaintiff‟s untimely revised expert report, but
ordering plaintiff to pay defendant the cost of preparing the
motion in limine directed at the first expert report. [Doc.
#83].

In the alternative, plaintiff requested that the Court

review the reasonableness of the fees incurred for preparing the
motion in limine. The Court construed the motion for
clarification as a motion for reconsideration and denied it as
untimely. [Id. at 2].

The Court also conducted a reasonableness
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analysis of defense counsel‟s fees, and reduced the fees sought
from $11,372.00 to $8,610.00.
II.

Rule 11 Standard
“Rule 11 is aimed at curbing abuse of the judicial system,

and „provides a vehicle for sanctioning an attorney, a client or
both.‟” Stone v. BBS Auto. Group, Inc., No. Civ. 304CV985HBF,
2006 WL 141631, at *2 (D. Conn. Jan. 18, 2008) (quoting United
States v. Int‟l Bhd. of Teamsters, 948 F.2d 1338, 1343 (2d Cir.
1991)). Rule 11(b) provides, in pertinent part, that,
By presenting to the court a pleading, written motion or
other paper[…] an attorney[…] certifies that to the best
of the person‟s knowledge, information and belief, formed
after an inquiry reasonable under the circumstances:
(1)

it is not being presented for any improper
purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of
litigation;

(2)

the claims, defenses, and other legal
contentions are warranted by existing law[…];

(3)

the factual contentions have evidentiary
support[…].

Fed. R. Civ. P. 11(b)(1)-(3).

“An attorney‟s subjective good

faith will not suffice to protect a meritless or frivolous claim
from Rule 11 censure.” Stone, 2006 WL 141631, at *2 (citations
omitted).

As previously recognized by this Court,

Sanctions are only warranted where it is patently clear
that a claim has no chance of success under existing
precedents, or when a plaintiff persists with a claim
after it has become patently clear it has no basis in
fact or law. The court must resolve any and all doubts
in favor of the signing party. A court must beware of
the benefits of hindsight. The Rule only requires
reasonableness under the circumstances. As such, the
relevant inquiry becomes whether a specific filing was,
if not successful, at least well founded.

Id. (internal quotations and citations omitted); see also
Johnson v. Anderson, Civ. No. 3:06CV782(WWE)(HBF), 2007 WL

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735776, at *1 (D. Conn. Mar. 2, 2007) (citation omitted) (“The
standard for triggering the award of fees under Rule 11 is
objective unreasonableness.
III. Discussion
Defendant seeks sanctions in connection with plaintiff‟s
motion for clarification, alleging the motion failed to offer
any support for the position that defense counsel‟s fees were
unreasonable, and therefore the motion was not submitted in good
faith and “after an inquiry reasonable under the circumstances,”
as required by Rule 11(b); the motion for clarification sought
to harass defendant and its attorneys, unnecessarily delay the
fee payment ordered by the Court, and needlessly increase the
costs of litigation, all in violation of Rule 11(b)(1);
plaintiff deceptively labeled the motion as one for
clarification, in violation of Rule 11(b)(2); the motion failed
to take into account any relevant law regarding the filing of
motions for reconsideration and what constitutes reasonable
attorney‟s fees, in violation of Rule 11(b)(2); and finally, the
motion is rife with factual contentions that lack any
evidentiary support, in violation of Rule 11(b)(3).
A. Rule 11(b)(1) violations
The Court first considers whether the motion for
clarification violated Rule 11(b)(1).

In order for the motion

to violate Rule 11(b)(1), it must have been presented for an
improper purpose, “such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation.” Fed. R. Civ. P.
11(b)(1).

Defendant argues that plaintiff filed the motion for

clarification for the improper purposes of delaying payment of
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the motion in limine fees, to increase the costs of litigation,
and to harass defense counsel.
Although the timing of the motion is suspect, and contains
rather unsavory speculation regarding defense counsel‟s billing
practices, because the Court “must resolve any and all doubts in
favor of the signing party[,]” Stone, 2006 WL141631, at *2
(compiling cases), the Court is not convinced that plaintiff
filed the motion for the improper purposes suggested.

Indeed,

the motion partially sought a reasonableness determination for
the claimed fees.

This is a legitimate request when presented

with a substantial bill for fees, such as the one presented
here.

However, plaintiff likely could have avoided motion

practice had he endeavored to communicate with defense counsel
about the reasonableness of the fees sought.

In the future,

counsel are encouraged to meet and confer, either in person or
telephonically, to resolve issues without having to involve the
court.

Nevertheless, the Court declines to find a violation of

Rule 11(b)(1) on the current record.
B. Rule 11(b)(2) violations
The Court next considers whether the motion for
clarification violated Rule 11(b)(2).

In order for the motion

to violate Rule 11(b)(2), its legal contentions must be
unwarranted by existing law. See also Chien v. Skystar Bio
Pharm. Co., 256 F.R.D. 67, 72 (D. Conn. 2009) (citations and
internal quotations omitted) (“In order for a claim to violate
Rule 11(b)(2), a pleading must border on the frivolous.”).

“The

standard for triggering the award of fees under Rule 11(b)(2) is
„objective unreasonableness.‟”

Id. (compiling cases).
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Defendant argues that the motion for clarification violates
Rule 11(b) in two respects:

first, that plaintiff deceptively

labeled the motion as one for clarification; and, second, that
the motion fails to consider any relevant law regarding motions
for reconsideration and what constitutes reasonable attorney‟s
fees.

Plaintiff responds that his challenge to the sought

attorney‟s fees was objectively reasonable and that he did not
willfully attempt to seek reconsideration through other means.
The Court will consider each argument in turn.
1. Clarification/Reconsideration
Plaintiff argues that he and counsel “were confused by the
Court‟s order [denying the motion to strike] and requested that
the Court correct its order based [] upon their confusion[…]”
[Doc. #113, 8]. Specifically, plaintiff and his counsel claim
confusion that the April 15 Order required plaintiff to
reimburse defendant for the fees incurred in preparing the
motion in limine, and not the motion to strike. Although the
Court construed the motion for clarification as one for
reconsideration and found no ambiguity in the April 15 Order,
the Court will determine whether, under the circumstances, the
filing was at least well founded. Stone, 2006 WL 141631, at *2.
Even giving plaintiff‟s counsel the benefit of the doubt,
the Court finds that the request for “clarification” was not
well founded and “bordered on frivolous.”

After a careful

review of the record, it is abundantly clear that the harm
defendant alleged to have suffered as a result of the filing of
the revised expert report was the costs incurred for preparing
the motion in limine.

This is plainly set forth in defendant‟s
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motion to strike3, and reiterated in defendant‟s reply brief in
support of the motion to strike4.

Defendant further echoed this

position during oral argument:
In terms of harm, we made the decision in May to file the
motion in limine. As you might suspect and as you can see
from the fairly comprehensive briefing we did[…] that was a
pretty significant expenditure on the part of our client[…]
So in our view this was by no means harmless because our
client incurred substantial, many thousands of dollars in
legal fees for us to do that work based on the initial
report[…] and we contend that having filed the motion in
limine directed to the initial report, it was anything but
harmless.

[Doc. #103, Feb. 7, 2013 Hrg. Tr., 10:4-11:4].

Thereafter, the

Court confirmed that the harm suffered was “primarily the cost
of having moved to strike the first [expert report…]” [Id. at
17:7-24].
Quite frankly, the Court does not believe that under the
circumstances presented, and in light of the above record, an
objectively reasonable attorney would have been “confused” by
the Court‟s order on the motion to strike, thereby necessitating
a request for clarification. To the extent plaintiff claims that
his counsel “misunderstood the Court‟s order and, based upon
that misunderstanding, mistakenly thought that clarification was
possible,”[Doc. #113, 8], “[a]n attorney‟s subjective good faith
will not suffice to protect a meritless or frivolous claim from

3

“Far from being harmless, allowance of the late submission would mean
defendant went to the considerable trouble and expense of preparing and
filing a comprehensive, thoroughly researched motion in limine to preclude
Mr. McNamara‟s expert testimony, as summarized in his initial report, for
nothing.” [Doc. #50, 6].
4

“[A]s defendant also pointed out in its opening brief, defendant expended
substantial resources in preparing its motion in limine based on the contents
of Mr. McNamara‟s initial report. Those resources would be wasted were the
Court to allow plaintiff to simply have his expert write a completely new
report in the face of defendant‟s motion; a waste of resources is by no means
harmless[…]” [Doc. #53, 4].
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Rule 11 censure.” Stone, 2006 WL 141631, at *2; see also Chien,
256 F.R.D. at 72 (citations omitted) (“There is no „empty head
pure-heart‟ justification for patently frivolous arguments under
Rule 11. The subjective intent of the filer is irrelevant.”).
As to plaintiff‟s counsel‟s representation that the motion
for clarification was not a “willful attempt to attain
reconsideration through other means,” [Doc. #113, 7], the plain
language of the motion suggests otherwise. For example,
plaintiff requests that the Court “modify” its prior order and
that the order “requires revision” despite conceding that “the
order obviously says it is ordering the Plaintiff to pay for the
cost of the Motion in Limine.” [Doc. #84, 4]. Indeed, in
opposing defendant‟s motion for sanctions, plaintiff admits he
requested the Court to “correct its [order]” and “conced[es]
that the requested relief was more appropriate for a Motion for
Reconsideration.” [Doc. #113, 7-8].

Given that plaintiff filed

the motion for clarification/reconsideration well after the
deadline prescribed by Local Rule 7(c), it was patently clear
that if construed as a request for reconsideration, such request
had absolutely no chance of success. Healey v. Chelsea Resources
Ltd., 947 F.2d 611, 626 (2d Cir. 1991) (“Rule 11 targets
situations where it is patently clear that a claim has
absolutely no chance of success.”). Therefore, the Court finds a
violation of Rule 11(b)(2) for that portion of the motion that
sought the clarification/reconsideration of the Court‟s April 15
Order.

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2. Attorney’s Fees
Plaintiff also submits that he had a sound legal basis for
challenging defense counsel‟s bill.

Plaintiff‟s challenge to

defense counsel‟s legal bill was not objectively unreasonable.
For example, plaintiff argued that the fees sought ($11,372.00)
were excessive in light of the short length of the motion (12
pages) and the relatively straightforward arguments presented.
[Doc. #84, 7].

The motion also takes issue with the supporting

billing entries, which plaintiff characterizes as “extremely
general in nature, thus making it impossible to determine what
work exactly Defendant‟s counsel performed.” [Id. at 8].5
Therefore, the Court declines to find a violation of Rule
11(b)(2) for the portion of the motion that seeks a
reasonableness determination for defense counsel‟s legal fees.6
C. Rule 11(b)(3) violations
Finally, the Court considers whether the motion for
clarification violated Rule 11(b)(3).

In order for the motion

to violate Rule 11(b)(3), its factual contentions must lack
evidentiary support. See also Safe-Strap Co., Inc. v. Koala
Copr., 270 F. Supp. 2d 407, 412 (S.D.N.Y. 2003) (quoting O‟Brien
v. Alexander, 101 F.3d 1479, 1489 (2d Cir. 1996)) (“Under Rule
11(b)(3), „sanctions may not be obtained unless a particular
allegation is utterly lacking in support.‟”).
5

However, the Court does not condone the route by which plaintiff‟s counsel
challenged the reasonableness of defense counsel‟s fees. As discussed
further below, rather than support his arguments with case law or affidavits,
plaintiff‟s counsel instead chose to discredit the fees sought by making
potentially damaging speculations about defense counsel and his billing
practices.
6

Likewise, on the current record, the Court declines to find that the motion
was not submitted in good faith and “after an inquiry reasonable under the
circumstances” as required by Rule 11(b).
9

Defendant understandably takes issue with plaintiff‟s
“unsupported allegations about defense counsel‟s ethical mores
and billing practices[…]” [Doc. #99, at 7]. Specifically such
statements that defense counsel‟s bill “is astounding and
unbelievable on its face,” and that “[s]uch astronomical billing
may perhaps even implicate the reasonable fee requirements of
Rule 1.5 of the Connecticut Rules of Professional Conduct.”
[Doc. #99, at 11 (citing Doc. #84, 7-8)]. Adding further fuel to
the proverbial fire, plaintiff also alleges that, “Defendant may
have submitted a grossly overinflated bill with the design
Plaintiff would not be able to pay the bill, thereby resulting
in the exclusion of the [expert] report.” [Doc. #84, 8].
Moreover, plaintiff‟s counsel states that defense counsel
“claims” to have expended certain time in connection with the
motion in limine, and that defense counsel‟s bill “contains a
number of entries which appear to represent an almost impossible
amount of time working on the memorandum.” [Doc. #86, 4-6].
When imposing Rule 11(b)(3) sanctions, “Courts generally
look for „direct falsehood‟ in a filing.”

Sichel v. UNUM

Provident Corp., 230 F. Supp. 2d 325, 332 (S.D.N.Y. 2002).
Plaintiff‟s counsel comes very close to this line with the
above-referenced statements.

However, in light of the words

preceding the ill-advised allegations, such as “may” and
“appear”, the Court reluctantly finds that plaintiff‟s counsel
has skirted a Rule 11(b)(3) violation.

However, despite this

finding, the Court strongly cautions plaintiff‟s counsel to
refrain from making such inflammatory and potentially careerdamaging speculations in the future.
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Indeed, such speculative

editorials only serve to detract from counsel‟s advocacy.

Here

especially, the use of such speculation to discount defense
counsel‟s fees is not nearly as compelling as argument based on
precedent and supporting evidence, such as an affidavit from a
local attorney attesting to the unreasonableness of the fees
sought.

Therefore, and with some reluctance, because the Court

must resolve any and all doubts in favor of the signing party,
the Court declines to find a violation of Rule 11(b)(3).
D. Sanctions
“The decision whether to impose a sanction for a Rule 11(b)
violation is [] committed to the district court‟s discretion.”
Perez v. Posse Comitatus, 373 F.3d 321, 326 (2d Cir. 2004)
(compiling cases); see also Fed. R. Civ. P. 11(c) (“If[…] the
court determines that subdivision (b) has been violated, the
court may […] impose an appropriate sanction[…]”).
Here, the Court is faced with the unenviable task of
determining an appropriate sanction, if any, for plaintiff‟s
counsel‟s violation of Rule 11(b)(2). Although “[r]ule 11
sanctions should be imposed with caution, even where the
violation is clear,” Sichel, 230 F. Supp. 2d at 333, here, the
Court finds that a monetary sanction for plaintiff‟s counsel‟s
violation of Rule 11(b)(2) is appropriate.

The Court declines

to impose the monetary sanctions sought by defendant, but will
award defendant one half of its reasonable costs and fees for
preparing the motion for sanctions. The Court will not award
full costs and fees in light of the findings that only a portion
of the motion for reconsideration/clarification violated Rule
11.

Therefore, within thirty (30) days of this ruling, counsel
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for plaintiff Cicchiello & Cicchiello, LLP shall reimburse
defendant one half of its reasonable costs and fees for
preparing and filing the motion for sanctions.

Should any

dispute arise as to the reasonableness of the fees sought, the
parties shall contact chambers for a telephone conference.
IV.

Conclusion
For the reasons stated, defendant‟s motion for sanctions

[Doc. #98] is GRANTED IN PART AND DENIED IN PART.
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C. §
636(b)(1)(A); Fed.R.Civ.P. 72(a); and D. Conn. L. Civ. R. 72.2.
As such, it is an order of the Court unless reversed or modified
by the district judge upon motion timely made.
ENTERED at Bridgeport, this 17th day of April 2014.

_______/s/___________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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