Rakip v. Paradise Awnings Corporation et al
Filing
352
ORDER denying 333 Defendants' Motion for Sanctions. Signed by Magistrate Judge Jonathan Goodman on 2/18/2014. (oim)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 10‐20004‐CIV‐COOKE/GOODMAN
WILLIAM RAKIP,
Plaintiff/Counter‐Defendant,
and
CESAR JERONIMO,
Plaintiff,
vs.
PARADISE AWNINGS
CORPORATION, et al.,
Defendants/Counter‐Plaintiffs.
_______________________________________/
ORDER ON DEFENDANTS/COUNTER‐PLAINTIFFS’ MOTION FOR SANCTIONS
This Cause is before the Undersigned on Defendants/Counter‐Plaintiffs Paradise
Awnings Corporation (“Paradise Awnings”), Manual Alcibar, and Juan Carlos
Chaviano’s (collectively “Defendants”) Motion for Sanctions and Attorney’s Fees
against Plaintiff/Counter‐Defendant William Rakip (“Rakip”), Plaintiff Cesar Jeronimo
(“Jeronimo”) (collectively “Plaintiffs”), and Plaintiffs’ counsel. [ECF No. 333]. The
District Court referred Defendants’ motion to the Undersigned. [ECF No. 334].1 The
Undersigned has reviewed Defendants’ motion, Plaintiffs’ response in opposition [ECF
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This matter was referred to the Undersigned following the Order of Recusal and
Reassignment of this matter from Magistrate Judge William C. Turnoff. [ECF No. 340].
No. 337], Defendants’ reply [ECF No. 344], and the other relevant portions of the record.
For the reasons set out below, the Undersigned denies Defendants’ motion.2
I.
BACKGROUND
This case has a long and tortured history. The Undersigned will endeavor here to
provide a general background of this case and Defendants’ motion. Additional relevant
facts will be discussed in the Analysis portion of this Order.
A. General Factual Overview
Plaintiffs filed this action alleging unpaid overtime and minimum wage
violations under the Fair Labor Standards Act (“FLSA”). [ECF No. 32]. Defendants
answered and filed a counterclaim against Rakip for civil theft. [ECF No. 36].
The District Court initially denied Defendants’ summary judgment motion on
Rakip’s FLSA claims. [ECF No. 188]. During trial, however, the District Court
reconsidered its prior ruling and granted Defendants summary judgment on Rakip’s
FLSA claims. [ECF No. 250, pp. 113‐15]. Near the end of the trial, the District Court
allowed Defendants to conform their pleadings to the evidence and convert their civil
theft counterclaim to a breach of contract counterclaim. [ECF No. 254, pp. 199‐200].
The jury returned a verdict in Defendants’ favor on both Jeronimo’s remaining
FLSA claim and Defendants’ breach of contract counterclaim against Rakip. The jury
A United States Magistrate Judge has the authority to enter an order denying
sanctions (as opposed to a report and recommendations). QBE Ins. Corp. v. Jorda
Enterprises, Inc., 277 F.R.D. 676, 683 n.2 (S.D. Fla. 2012) (internal citations omitted).
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awarded Defendants $1,320.00 on their counterclaim. [ECF No. 233]. On December 10,
2010, the District Court entered Final Judgment for Defendants on all claims, including
their breach of contract counterclaim against Rakip. [ECF No. 236].
That same day (December 10, 2010), Plaintiffs moved to correct the Final
Judgment because they contended they prevailed on Defendants’ civil theft
counterclaim against Rakip because it was conformed to a breach of contract claim.
[ECF No. 237]. Defendants opposed the requested relief. [ECF No. 238]. On December
21, 2010, the District Court entered an Amended Final Judgment. [ECF No. 240]. The
Amended Final Judgment reflects that, while Defendants prevailed on all claims,
including the breach of contract counterclaim, Rakip received judgment as a matter of
law on Defendants’ civil theft counterclaim. [Id.].
Defendants and Plaintiffs then filed motions to amend the Amended Final
Judgment. [ECF Nos. 241; 242]. On November 30, 2011, the District Court granted in
part and denied in part the respective motions to amend the Amended Final Judgment.
[ECF No. 287]. Shortly thereafter, the District Court entered a Second Amended Final
Judgment. [ECF No. 300]. Rakip and Defendants then appealed, among other things,
the District Court’s order amending the Amended Final Judgment. [ECF Nos. 294; 302].
On appeal, the appellate court affirmed in part and reversed in part the District
Court. [ECF No. 321]. In short, the appellate court ruled against Rakip and in favor of
Defendants and reinstated the original Final Judgment. [Id.]. Following this appellate
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ruling, the District Court then entered a Third Amended Final Judgment on May 21,
2013. [ECF No. 325]. The Third Amended Final Judgment vacated the Amended Final
Judgment and the Second Amended Final Judgment and reinstated the Final Judgment.
[Id.]. Rakip then filed a suggestion of bankruptcy. [ECF No. 345].
B. The Instant Motion
Defendants are seeking sanctions under 28 U.S.C. § 1927 against Plaintiffs’
counsel and sanctions against Plaintiffs under the court’s inherent power. [ECF No.
333]. In particular, Defendants assert the following conduct warrants sanctions: (1)
Rakip and his counsel knew that Rakip’s FLSA claims had been settled in a prior
worker’s compensation suit with Paradise Awnings, but continued aggressively
litigating Rakip’s claims anyway [Id. at pp. 2‐5, 7]; (2) Plaintiffs’ counsel and Jeronimo
refused to settle Jeronimo’s FLSA claim at the same time Jeronimo settled his worker’s
compensation claim [Id. at pp. 5‐7]; and (3) the argument, urged by Plaintiffs’ counsel
and Rakip, that Defendants had released their breach of contract counterclaim by virtue
of the settlement agreement with Paradise Awnings. [Id. at pp. 6‐7].
In response, Plaintiffs and their counsel dispute all of Defendants’ assertions and
assert that they had a good‐faith basis to take the legal and factual positions they did.
[ECF No. 337]. They also assert that Defendants’ motion for sanctions is untimely.
Defendants submitted a ten‐page, one‐paragraph reply. [ECF No. 344]. In it, they
reassert the same grounds in their motion and also argue that their motion was timely.
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II. APPLICABLE LEGAL PRINCIPLES
A. Sanctions Under 28 U.S.C. § 1927
28 U.S.C. § 1927 “is not a ‘catch‐all’ provision for sanctioning objectionable
conduct by counsel.” Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997).
Rather, to impose sanctions under § 1927, a court must find the following: (1) the
attorney engaged in unreasonable and vexatious conduct; (2) that conduct multiplied
the proceedings; and (3) the dollar amount of the sanction bears a financial nexus to the
excess proceedings, i.e., the sanctions may not exceed the expenses and fees reasonably
incurred because of the conduct. Hudson v. Intʹl Computer Negotiations, Inc., 499 F.3d
1252, 1262 (11th Cir. 2007) (internal citation omitted). “[T]he provisions of § 1927, being
penal in nature, must be strictly construed.” Peterson, 124 F.3d at 1395 (internal citations
omitted).
Bad faith is the touchstone for the imposition of sanctions under § 1927 and it is
measured by the attorney’s objective conduct. Amlong & Amlong v. Dennyʹs, Inc., 500
F.3d 1230, 1239‐40 (11th Cir. 2007). An attorney litigates in bad faith when he knowingly
or recklessly pursues a frivolous claim, delaying its dismissal by unreasonably and
vexatiously multiplying the proceedings. Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225
(11th Cir. 2003). The claim must be more than merely lacking in merit; it must be
without a plausible legal or factual basis and lacking in justification. Id.; Robinson v.
Alutiq‐Mele, LLC, 643 F. Supp. 2d 1342, 1348 (S.D. Fla. 2009). Claims are frivolous where
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they are: (1) groundless and baseless and predicated upon untruthful, outrageous,
scandalous, and slanderous allegations; (2) based upon false and unsupported
allegations; or (3) unsupported by any evidence at all or having no reasonable basis in
fact. Robinson, 643 F. Supp. 2d at 1348 (internal citations omitted).
Finally, § 1927 sanctions can only be imposed against attorneys or persons
admitted to conduct cases in a court of law, not non‐attorney parties. See Avirgan v.
Hull, 932 F.2d 1572, 1582 (11th Cir. 1991).
B. Sanctions Under the Court’s Inherent Power
A court may impose sanctions for litigation misconduct under its inherent
power. Chambers v. NASCO, Inc., 501 U.S. 32, 43‐44 (1991). A court’s inherent power
derives from its need “to manage [its] own affairs so as to achieve the orderly and
expeditious disposition of cases.” Id. at 43 (internal citations and quotations omitted).
This inherent power to impose sanctions, however, “must be exercised with restraint
and discretion.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).
Like § 1927, the “key to unlocking a court’s inherent power [to impose sanctions]
is a finding of bad faith.” Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (citing In
re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995)). When considering sanctions under “the
court’s inherent power, the threshold of bad faith conduct is at least as high as the
threshold of bad faith conduct for sanctions under 28 U.S.C. § 1927.” Peer v. Lewis, 606
F.3d 1306, 1316 (11th Cir. 2010) (internal citations and quotations omitted) (emphasis
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added). Unlike § 1927 sanctions, however, sanctions under the court’s inherent power
may be imposed against a party and/or its counsel. In re Mroz, 65 F.3d at 1576.
III. ANALYSIS
Defendants are seeking sanctions against Plaintiffs’ counsel under § 1927 and
against Rakip and Jeronimo under the court’s inherent power.
A. Was Defendants’ Motion Timely Filed?
Plaintiffs assert that as to Rakip’s release of his FLSA claims, Defendants’ motion
is untimely under Local Rule 7.3(a) because it was not filed within 60 days of the
District Court’s ruling on the issue at trial. [ECF No. 337, p. 6]. Defendants contend that
they timely filed the motion after the entry of the Third Amended Final Judgment. [ECF
No. 344, p. 6]. The Undersigned need not decide this issue because, regardless of
whether the motion was timely filed, the Undersigned is denying it on the merits.
B. Sanctions for Rakip’s FLSA Claims
1. Relevant Background
At around the same time that Rakip filed this FLSA lawsuit in January 2010, he
was also pursuing a worker’s compensation claim against Paradise Awnings. In
February 2010, Rakip, with the advice of counsel, executed a settlement agreement with
Paradise Awnings to settle his worker’s compensation claim (the “Settlement
Agreement”). [ECF Nos. 55‐4; 55‐6; 188, p. 3]. In August 2010, Defendants moved for
summary judgment, arguing Rakip released his FLSA and worker’s compensation
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claims under the Settlement Agreement in exchange for $7,000. [ECF No. 55, p. 2]. In the
alternative, Defendants moved to approve the Settlement Agreement as to Rakip’s
FLSA claims. [Id.]. The District Court denied the motion because Defendants contended
that Rakip received $7,000, but the language of the Settlement Agreement stated that
Rakip received $100. [ECF Nos. 55‐6; 188].
On the first day of trial, however, the District Court conducted an evidentiary
hearing regarding whether Rakip released his FLSA claims under the Settlement
Agreement. [ECF No. 250]. The District Court approved the settlement after finding that
Rakip had settled his FLSA claims in the Settlement Agreement. Consequently, the
District Court reconsidered its prior ruling and granted Defendants summary judgment
on Rakip’s FLSA claims. [ECF No. 250, pp. 113‐15].
Defendants now contend that Rakip and his counsel should be sanctioned
because they knew all along that Rakip had settled his FLSA claims in February 2010,
but nevertheless kept on pursuing his FLSA claims. [ECF No. 333, p. 3]. Rakip and his
counsel argue that their reading of the Settlement Agreement was that the $7,000 was
for medical expenses relating to Rakip’s worker’s compensation claim, not for his FLSA
claims. [ECF No. 337, p. 4]. They also argue that the Settlement Agreement was by itself
insufficient to release Rakip’s FLSA claims because it had not been approved by the
District Court, as required.
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2. Discussion
The underlying basis of Defendants’ sanctions argument is that the Settlement
Agreement was clear that Rakip had released his FLSA claims and that Rakip and his
counsel knew that he had done so but continued to litigate Rakip’s FLSA claims
anyway. The record, however, does not support Defendants’ argument.
First, the Settlement Agreement is not as clear as Defendants portray it to be. As
the District Court made clear in denying Defendants summary judgment motion, on its
face the Settlement Agreement [ECF No. 55‐6] is ambiguous as to whether Rakip
released his FLSA claims. [ECF No. 188, p. 3]. Indeed, it was only after the District Court
received extensive testimony that it was able to determine that the Settlement
Agreement released Rakip’s FLSA claims and was able to approve the settlement. [ECF
No. 250, pp. 113‐15]. And even then, the District Court lamented the fact that it required
an evidentiary hearing to determine such a basic issue. [Id. at pp. 114:24‐115:5].
Second, Defendants complain much about the fees and expenses incurred in
litigating this purportedly clear issue. But the record reveals that they are in part to
blame for this. For instance, despite Defendants’ contentions that the Settlement
Agreement (executed in February 2010) was clear that Rakip had released his FLSA
claims, Defendants did not move for summary judgment on this issue or for approval of
the Settlement Agreement until August 2010 ‐‐ six months later. [ECF Nos. 55; 55‐6]. In
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those six months, Defendants and Plaintiffs aggressively litigated this case with
numerous discovery motions. [See ECF Nos. 38; 39; 40; 43; 46].
The fact that Rakip ultimately did not prevail on his argument that he had not
released his FLSA claims does not automatically mean that he and his counsel should
be sanctioned. As the Eleventh Circuit has pointed out, “[s]omething more than a lack
of merit is required for § 1927 sanctions or they would be due in every case.” McMahan
v. Toto, 256 F.3d 1120, 1129 (11th Cir. 2001), amended on rehʹg, 311 F.3d 1077 (11th Cir.
2002). Here, it took a multi‐hour evidentiary hearing to determine that the Settlement
Agreement released Rakip’s FLSA claims. As such, the Undersigned does not find that
Rakip or his counsel vexatiously multiplied the proceedings by continuing to litigate
Rakip’s FLSA claims where it was ambiguous as to whether he had released his FLSA
claims. Consequently, the Undersigned denies Defendants’ request for sanctions against
Rakip or his counsel on this basis.
C. Sanctions for Jeronimo’s Claims
1. Relevant Background
Jeronimo originally had two FLSA claims, overtime wages and minimum wage.
[ECF No. 32]. On August 17, 2010, Jeronimo moved to dismiss his minimum wage
claim. [ECF No. 67]. Defendants objected to the dismissal. [ECF No. 94]. Defendants
first argued that the District Court should condition the dismissal with an award of
attorney’s fees against Jeronimo and his counsel. [Id. at pp. 2‐3]. But the bulk of
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Defendants’ response was for the imposition of sanctions under § 1927 against
Jeronimo’s counsel for pursuing the minimum wage claim. [Id. at pp. 4‐10]. The District
Court denied Defendants’ request to condition Jeronimo’s dismissal on the payment of
attorney’s fees and also denied the § 1927 sanctions request. [ECF No. 177, pp. 2‐3].
Defendants now argue that Jeronimo and his counsel should be sanctioned
because they did not release his FLSA claims when Jeronimo settled his worker’s
compensation claim and because they pursued a frivolous claim. [ECF No. 333, pp. 5‐7].
Jeronimo and his counsel contend that they offered to settle for $1,000 in August
2010 and to have the Court determine attorney’s fees and costs, but Defendants refused.
[ECF No. 337, p. 6]. They also contend that the non‐frivolous nature of Jeronimo’s claim
is evidenced by the District Court’s denial of both Defendants’ summary judgment
motion and Rule 50 motion at trial. [Id.].
In their reply, Defendants argue that Jeronimo’s offer to settle for $1,000 was too
late because by then Jeronimo’s counsel had churned the file, thereby creating an
unreasonable amount of attorney’s fees costs. [ECF No. 344, pp. 2, 7].
2. Discussion
As a threshold matter, the Undersigned finds that Defendants are, in part,
attempting to take another bite at the apple in seeking sanctions against Jeronimo’s
counsel. As noted above, when Jeronimo moved to dismiss his minimum wage claim,
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Defendants sought sanctions against Jeronimo’s counsel for purportedly churning the
litigation file. [ECF No. 94, pp. 4‐10]. The District Court denied that request and stated:
I do not find that the Plaintiff’s attorney unreasonably and vexatiously
multiplied the proceedings with respect to the Mr. Jeronimo’s minimum
wage claim. To the contrary, once the discovery revealing that the Mr.
Jeronimo’s minimum wage claim was unsupportable, his attorney
promptly sought to dismiss the claim. From the record, it seems as if the
only thing that has extended the resolution of this issue is the Defendants
unwillingness to agree to dismissal of this claim absent an order of
sanctions under 28 U.S.C. § 1927.
[ECF No. 177, p. 2]. Defendants never appealed the District Court’s ruling or sought
reconsideration.
Defendants are now moving for sanctions against Jeronimo’s counsel’s conduct
for, again, purportedly churning the file. This time, however, Defendants attempt to
seek sanctions for counsel’s churning the file relating to the overtime wage claim. Inherent
in Defendants’ argument is that somehow Jeronimo’s counsel’s churning of the file on
Jeronimo’s minimum wage claim is separate and distinct from the churning related to
the overtime wage claim. The Undersigned is not persuaded by that proposition.
For instance, much of the conduct Defendants complain about occurred before
Jeronimo moved to dismiss his minimum wage claim in August 2010. Therefore, it is
difficult to logically separate counsel’s work relating to the minimum wage claim as
separate and distinct from counsel’s work regarding the overtime claim. And
Defendants have not even attempted to make such a showing. Likewise, it is difficult to
tell if Jeronimo, in stating the amount of his claim at his deposition, was referring only
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to the overtime claim or both the minimum wage and overtime claim. [ECF No. 55‐5, p.
38]. Thus, to a large extent, Defendants are seeking to revisit the same conduct by
Jeronimo’s counsel that the District Court already found did not warrant sanctions. The
Undersigned will not issue a ruling based on a reconsideration of the District Court’s
factual findings and finds that Defendants’ motion can be denied on this basis alone.
Nevertheless, in an abundance of caution, the Undersigned will examine the merits of
Defendants’ sanctions motion against Jeronimo and his counsel.
Defendants’ request for sanctions against Jeronimo and his counsel can be
separated into two parts. First, Defendants assert that Jeronimo and his counsel were
pursuing a frivolous claim. Second, Defendants contend that Jeronimo’s counsel’s
advice to Jeronimo to not settle his FLSA claim when he was settling his worker’s
compensation claim is sanctionable.
Concerning the merits of this lawsuit, the crux of Defendants’ argument on
Jeronimo’s FLSA overtime claim was that he was exempt under the FLSA’s executive
exemption. But it is difficult to see how Jeronimo and his counsel’s pursuit of this
overtime claim was frivolous when the District Court denied Defendants’ summary
judgment motion on this issue and also later denied their Rule 50 motion at trial. [ECF
Nos. 188, pp. 6‐7; 254, p. 26]. In both cases, the District Court noted that there were
genuine issues of material fact concerning the claimed exemption. [Id.].
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To be sure, surviving a summary judgment motion or a Rule 50 motion is not
necessarily dispositive of whether a party or its counsel should be sanctioned for
pursuing a meritless claim. Nevertheless, the Undersigned finds that neither Jeronimo
nor his counsel should be sanctioned here for pursuing a claim which survived
summary judgment and a Rule 50 motion. See E.E.O.C. v. Tandem Computers Inc., 158
F.R.D. 224, 229 (D. Mass. 1994) (denying motion to sanction EEOC on claim it ultimately
lost on where EEOC’s claim survived summary judgment and two Rule 50 motions).
Likewise, the Undersigned does not find that Jeronimo or his counsel should be
sanctioned for refusing to settle his FLSA claims when he settled his worker’s
compensation claim. Defendants have cited to no authority that a refusal to settle a
claim is per se sanctionable. More importantly, Defendants omit the fact that Jeronimo
and his counsel did offer to settle his FLSA claims for $1,000, exclusive of attorney’s fees
and costs, in August 2010. Defendants contend that this settlement offer was
meaningless because Jeronimo’s counsel had incurred a large amount of attorney’s fees
by this point. But as the District Court found, that was in large part due to Defendants’
litigation tactics. [ECF Nos. 177, p. 2; 250, p. 100]. Defendants cannot “litigate
tenaciously and then be heard to complain about the time necessarily spent by the
plaintiff in response.” Copeland v. Marshall, 641 F.2d 880, 904 (D.C. Cir. 1980).
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D. Sanctions for Rakip’s Release of Defendants’ Counterclaims
Defendants contend that Rakip and his counsel’s argument that the release in the
Settlement Agreement released Defendants’ counterclaim against him was frivolous
and they both should therefore be sanctioned. [ECF No. 333, pp. 6‐7].
While Rakip’s argument was ultimately unsuccessful, the Undersigned finds that
it does not warrant the imposition of sanctions. The Undersigned is persuaded by the
fact that on appeal the Eleventh Circuit did not find that Rakip’s argument was
frivolous. Rather, the appellate court simply noted that Rakip had waived this
argument because he had not asserted release as an affirmative defense. [ECF No. 321,
pp. 8‐9]. The Undersigned also notes that the issue of Defendants’ civil theft/breach of
contract counterclaim was the subject of much confusion during trial and post‐trial and
resulted in the entry of ultimately four judgments. See supra pp. 3‐4. While Rakip’s
argument was ultimately found to lack merit, “[s]omething more than a lack of merit is
required for § 1927 sanctions or they would be due in every case.” McMahan, 256 F.3d at
1129.
In light of the appellate court’s opinion on this issue and the overall confusion
regarding Defendants’ counterclaim, the Undersigned finds that this “[s]omething
more” is not present here. Accordingly, the Undersigned denies Defendants’ request for
sanctions against Rakip and his counsel on this basis.
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IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Sanctions is denied.
DONE AND ORDERED, in Chambers, in Miami, Florida, February 18, 2014.
Copies furnished to:
The Honorable Marcia G. Cooke
All Counsel of Record
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