Rocket Real Estate, LLC et al v. Maestres

Filing 379

ORDER denying 343 Renewed Verified Motion for Attorney Fees filed by Joseph E. Altschul, Esq.; denying 347 Renewed Verified Motion for Attorney Fees filed by Plaintiff Eric Romanow. Signed by Magistrate Judge Barry S. Seltzer on 12/23/2019. See attached document for full details. (pb00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-62488-CIV-COHN/SELTZER
ROCKET REAL ESTATE, LLC, and
ERIC ROMANOW,
Plaintiffs,
vs.
LOURDES E. MAESTRES,
Defendant.
________________________________/
ORDER
THIS CAUSE has come before the Court upon the Renewed Verified Motions for
Sanctions and Attorney’s Fees (DE [343] and [347]) filed by Plaintiff’s counsel, Joseph E.
Altschul, and by Plaintiff Eric Romanow, respectively. The parties have fully briefed the
issues and the motions are now ripe for review. The motions were referred to the
undersigned for appropriate disposition pursuant to 28 U.S.C. § 636 (DE [348]). 1

The

Motions seek sanctions against Defendant and her counsel for having filed an allegedly
frivolous Motion for Award of Attorney’s Fees (DE [248]).

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“A magistrate judge is authorized to enter a sanctions order, rather than a report
and recommendations, when confronted with a sanctions motion seeking only attorney’s
fees and costs after the district court judge already entered judgment or dismissed the
case.” Taverna Imports, Inc. v. A & M Wine & Spirits, Inc., 2018 WL 3611405, at *11
(S.D. Fla. July 27, 2018) (citing Maisonville v. F2 Am., Inc., 902 F.2d 746, 747 (9th Cir.
1990) (finding that Rule 11 sanctions are non-dispositive matters “properly ordered by the
magistrate and reviewed by the district court for clear error”)); see also Collar v. Abalux,
Inc., 2018 WL 3328682, at *14 (S.D. Fla. July 5, 2018) (magistrate judge has authority to
issue order on motion for Rule 11 sanctions).

By way of background, the Court granted summary judgment in favor of Defendant
on the ground that Plaintiff had failed to provide any evidence of damages under the
Stored Communications Act (DE [242]). The Court relied upon the Eleventh Circuit’s
opinion in Vista Mktg., LLC v. Burkett, 812 F.3d 954 (11th Cir. 2016), which held that
statutory damages were not recoverable under the Stored Communications Act “in the
absence of an award for actual damages or profits realized by the offender.” Id. at 971.
Significantly, neither Plaintiff nor Defendant raised or addressed the Vista case in their
summary judgment briefs.
Defendant filed her Verified Motion for Award of Attorney’s Fees (DE 249]) shortly
after the Court entered Final Judgment (DE [243]) in her favor. Defendant sought fees
pursuant to Rule 11, Federal Rules of Civil Procedure, and the Court’s inherent powers,
on the grounds that Plaintiff and his attorney (1) had neither a plausible theory nor
evidence of damages, but had nevertheless pled damages; (2) had no evidentiary
support for the claim that Defendant “accessed a facility” to intercept Plaintiff’s emails;
and (3) had offered allegedly perjured testimony from Plaintiff.
The Court denied Defendant’s sanctions motion 2 on the ground that Defendant
had not complied with the safe-harbor provisions of Rule 11(c). More specifically, the
Court found that the two pre-filing Rule 11 motions served on Plaintiffs listed “in shotgun
fashion” numerous reasons for imposing sanctions and did “not focus on the grounds
raised” in the motion which was ultimately filed with the Court (DE [301]). The Court also
addressed the merits of the motion and rejected Defendant’s argument that the Complaint

The undersigned entered a Report and Recommendation (DE [301]) that the District
Court adopted in its entirety (DE [313]).

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lacked factual support. Noting the disagreement among the courts as to the definition of
a “facility” under the Stored Communications Act, the Court rejected Defendant’s
contention that Plaintiff had no evidentiary support that Defendant “accessed a facility” to
intercept Plaintiff’s emails (DE [301]). Additionally, the Court concluded that because the
Vista case had not been decided at the time Plaintiffs filed their Complaint, Plaintiffs’
claims for statutory damages under the SCA were not in bad faith or without legal merit
(DE [301]). Thus, the Court denied Defendant’s request for sanctions. (DE [313]). 3 And
although Rule 11 authorizes the court to award fees to the prevailing party if warranted,
Fed. R. Civ. P. 11(c)(2), the Court did not include an award of fees in its Order (DE [313]).
Defendant appealed and the Eleventh Circuit affirmed (DE [342]), “for substantially
the reasons” provided by this Court. The Eleventh Circuit also denied Altschul’s Motion
for Attorney’s Fees Pursuant to Rule 38, FRAP 4 (DE [357-2]), for filing a frivolous appeal.
Plaintiffs and Altschul now ask this Court to award them attorney’s fees for the cost of
defending Defendant’s Verified Motion for Attorney’s Fees from the date of its filing
through the appeal.
“Rule 11 authorizes a court to sanction a party who submits a pleading for an
improper purpose. Fed. R. Civ. P. 11(b)(1). ‘[T]he filing of a motion for sanctions is itself

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Defendant did not prevail on her motion for attorney’s fees, yet her motion did not
completely lack merit. Although the Vista case had not been decided prior to Plaintiffs’
filing the Complaint, it had been decided prior to Plaintiffs’ filing a response to Defendant’s
motion for summary judgment. Plaintiffs, however, failed to address or acknowledge this
adverse, binding, and controlling precedent in their response to the summary judgment
motion, even though the issue of lack of damages had been raised (DE [235]).
Fed. R. App. P. 38 provides: “If a court of appeals determines that an appeal is frivolous,
it may, after a separately filed motion or notice from the court and reasonable opportunity
to respond, award just damages and single or double costs to the appellee.” Altschul’s
motion under Rule 38 addressed in large part the same matters addressed in this instant
motion.

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subject to the requirements of the rule and can lead to sanctions.’” Smith v. Psychiatric
Sols., Inc., 750 F.3d 1253, 1260 (11th Cir. 2014) (quoting Fed. R. Civ. P. 11 advisory
committee’s notes). The filing of a motion is not necessary, however, as Rule 11(c)(2)
grants the court power to award attorney’s fees if warranted to “a party that successfully
opposes a Rule 11 sanctions motion.” Id. at 1260.

Despite being fully aware of the

history of the litigation, the ongoing acrimony between the parties and the attorneys, and
the grounds (or lack thereof) for Defendant’s motion, the Court did not find an award of
fees to Plaintiffs and to Altschul warranted under Rule 11(c)(2) when it denied
Defendant’s motion. Similarly, the Court does not find adequate grounds to award
Plaintiff and attorney Altschul their fees at this juncture. Furthermore, as the Eleventh
Circuit so appropriately stated, “enough is enough.” (DE [342], p. 4). Accordingly, it is
hereby
ORDERED AND ADJUDGED that the Renewed Verified Motions for Sanctions
and Attorney’s Fees (DE [343] and [347]) filed by attorney Joseph Altschul and by Plaintiff
Eric Romanow are DENIED.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 23rd day of
December 2019.

Copies furnished counsel via CM/ECF

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