Swinford v. 360 Booth Inc. et al

Filing 85

ORDER denying without prejudice 60 Motion for Sanctions. Signed by Magistrate Judge Julie S. Sneed on November 21, 2022. (DD)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
STEPHEN M. SWINFORD,
Plaintiff,
v.

Case No: 8:21-cv-2993-MSS-JSS

360 BOOTH INC. and JAY G.
SMITHWECK,
Defendants.
___________________________________/
ORDER
Defendants move for an order imposing sanctions against Plaintiff’s counsel
pursuant to 28 U.S.C. § 1927. (Motion, Dkt. 60). Plaintiff opposes the Motion. (Dkt.
62.) The court held a hearing on the Motion, along with other pending motions, on
November 16, 2022. (Dkt. 81.) Upon consideration and for the reasons stated during
the hearing, Defendants’ Motion for Sanctions (Dkt. 60) is denied without prejudice.
BACKGROUND
Plaintiff sued Defendants for patent infringement on December 27, 2021. (Dkt.
1.) On February 16, 2022, Plaintiff filed a motion for preliminary injunction against
Defendants’ making, using, selling, offering for sale or importing of Defendants’
360Booth product. (Dkt. 12.) Plaintiff’s Motion for a Preliminary Injunction asserted
that Defendants’ product infringed four of Plaintiff’s patents and literally infringed
(and infringed under the doctrine of equivalents) Plaintiff’s patents at United States

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Patent Nos. 8,830,320 (the 320 Patent) and 9,438,864 (the 864 Patent). (Id. at 1.)
Plaintiff submitted an affidavit and two claims charts in support of the motion. (Dkts.
12-1, 12-2, 12-3.) Defendants opposed Plaintiff’s Motion for a Preliminary Injunction
and submitted their own evidence in opposition. See (Dkt. 26.) The court scheduled
an evidentiary hearing on the Motion for a Preliminary Injunction and Defendant’s
Motion to Dismiss Plaintiff’s Amended Complaint (Dkt. 23) for July 6, 2022. (Dkt.
34.)
On June 23, 2022, Plaintiff moved for leave to file a reply in further support of
the Motion for a Preliminary Injunction, which sought leave to respond to arguments
asserted in Defendants’ opposition and to proffer sworn evidence to counter
Defendants’ evidence. (Dkt. 38.) Defendants opposed Plaintiff’s request for leave to
file a reply because Plaintiff had not shown good cause or diligence for the request and
that Plaintiff’s attempt to introduce new evidence in support of the Motion for a
Preliminary Injunction was improper. (Dkt. 39.) The court denied Plaintiff’s motion
for leave to file a reply brief. (Dkt. 40.) The parties then filed their exhibit and witness
lists for the upcoming evidentiary hearing. (Dkts. 41, 42, 43, 45.)
On July 1, 2022, Defendants filed a motion in limine requesting the court to
strike Plaintiff’s Exhibit List (Dkt. 43), which they argued contained newly disclosed
evidence, and to prevent Plaintiff from introducing any new evidence or legal theories
that were not part of his original Motion for a Preliminary Injunction. (Dkt. 46.)
Defendants argued, in part, that according to Middle District of Florida Local Rules
6.01 and 6.02, Plaintiff was required to have submitted all the evidence upon which
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his motion relied with the original Motion for a Preliminary Injunction. (Id. at 3–6.)
On July 2, 2022, Plaintiff requested that the court withdraw his Motion for a
Preliminary Injunction and cancel the upcoming evidentiary hearing (Dkt. 47), which
the court subsequently did (Dkts. 48, 49, 50). On July 6, 2022, the court conducted
the hearing on Defendants’ Motion to Dismiss the Amended Complaint, at which
Plaintiff agreed to dismiss certain of his claims regarding literal infringement. See (Dkt.
56.)
Defendants now move for sanctions against Plaintiff’s counsel pursuant to 28
U.S.C. § 1927. (Dkt. 60.) Defendants argue that Plaintiff’s Motion for a Preliminary
Injunction was legally and factually deficient and that Plaintiff’s counsel unreasonably
and vexatiously multiplied proceedings by waiting until four days before the scheduled
hearing to withdraw the motion. (Id.) With the instant Motion, Defendants seek to
recover their attorneys’ fees, costs, and expenses associated with defending the
withdrawn Motion for a Preliminary Injunction and preparing for the canceled
evidentiary hearing. (Id. at 17; Dkt. 60-4.)
APPLICABLE STANDARDS
Vexatious multiplication of proceedings is prohibited. See 28 U.S.C. § 1927.
Section 1927 provides, in relevant part, that “[a]ny attorney . . . who so multiplies the
proceedings in any case unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred
because of such conduct.” Nevertheless, “an attorney’s conduct must be particularly
egregious to warrant the imposition of sanctions—the attorney must knowingly or
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recklessly pursue a frivolous claim or needlessly obstruct the litigation of a non-frivolous
claim.” Amlong & Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1242 (11th Cir. 2007)
(emphasis in original). Section 1927 is designed to “sanction attorneys who ‘willfully
abuse the judicial process by conduct tantamount to bad faith.’” Schwartz v. Millon Air,
Inc., 341 F.3d 1220, 1225 (11th Cir. 2003) (quoting Malautea v. Suzuki Motor Co.,
Ltd., 987 F.2d 1536, 1544 (11th Cir. 1993)). “Bad faith’ is the touchstone.” Schwartz,
341 F.3d at 1225; Amlong & Amlong, P.A., 500 F.3d at 1239 (“We have consistently
held that an attorney multiplies proceedings ‘unreasonably and vexatiously’ within the
meaning of the statute only when the attorney’s conduct is so egregious that it is
tantamount to bad faith.’”) (quoting Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir.
1991)).
ANALYSIS
Upon consideration and for the reasons stated at the hearing, the court finds
that the imposition of sanctions is not warranted at this time. The issues raised with
respect to Plaintiff’s Motion for a Preliminary Injunction, including Plaintiff’s attempt
to file a reply in further support of that motion (Dkt. 38) and Plaintiff’s subsequent
withdrawal of that motion (Dkt. 47), appear to the court to be largely due to the lack
of clarity surrounding Plaintiff’s allegations in the Amended Complaint (Dkt. 20),
rather than due to bad faith or egregiously reckless conduct on the part of Plaintiff’s
counsel.
Nevertheless, as stated during the hearing, the court remains concerned about
whether all parties are working towards “the just, speedy, and inexpensive” resolution
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of this matter. Fed. R. Civ. P. 1. The parties are reminded of their obligations under
the Federal Rules of Civil Procedure and otherwise, and to the extent that future
conduct in this litigation warrants the court’s consideration of sanctions against either
party, the parties’ may bring those issues to the court’s attention.
Accordingly, Defendants’ Motion for Sanctions (Dkt. 60) is DENIED without
prejudice.
ORDERED in Tampa, Florida, on November 21, 2022.

Copies furnished to:
Counsel of Record

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