CHIACCHIARINI v. LOWNDES COUNTY GEORGIA, ET AL.
ORDER granting 44 Motion for Attorney Fees. Ordered by US DISTRICT JUDGE HUGH LAWSON on 8/15/2017. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
Civil Action No. 7:17-CV-2 (HL)
LOWNDES COUNTY, GEORGIA, et al.,
Before the Court is Defendant Rascal’s Bar & Grill, Inc.’s (“RBGI”) Motion
for Attorney’s Fees and Expenses (Doc. 44). Defendant moves the Court to
impose sanctions in the form of an award of attorney’s fees against Plaintiff
and/or his attorney Chevene B. King pursuant to Federal Rule of Civil Procedure
11 and 28 U.S.C. § 1927. Defendant asserts that Plaintiff and/or his attorney are
liable for Defendant’s reasonable attorney’s fees and costs incurred in defending
this matter, which are the direct result of Plaintiff and/or his attorney pursuing
patently frivolous claims against Defendant and causing unnecessary delay. As
has become characteristic in this case, Plaintiff has filed no response to
Defendant’s motion. Upon consideration, the Court GRANTS Defendant’s
This case has been rife with delay and flagrant neglect by Mr. King from its
inception. On January 4, 2017,1 Mr. King filed a Complaint (Doc. 1) on behalf of
Plaintiff Nicholas Chiacchiarini, alleging that Defendants Lowndes County,
Georgia, Chris Prine, Mike Adams, Jack Priddy, Stryde Jones, Andrea Watford,
Brighton Lampert, and RGBI were liable to Plaintiff under 42 U.S.C. §§ 1983,
1985, and 1986 for alleged violations of his First, Fourth, Fifth, Eighth, and
Fourteenth Amendments resulting from a serious of events that occurred at RGBI
on January 3, 2015. More than two months passed before Plaintiff requested that
the Clerk’s office issue summons for any of the named defendants. (Docs. 6-14).
The Court entered an Order to Show Cause (Doc. 16) on April 7, 2017, directing
Plaintiff’s counsel to show cause why the case should not be dismissed for failure
to serve the defendants within the time frame required by Federal Rule of Civil
Even after the Court provided Mr. King the opportunity to explain why he
had failed timely to serve Defendant RGBI, Mr. King neglected to do so. Instead,
Notably, Mr. King filed this lawsuit one day outside of the applicable statute of
limitations. Mr. King attempted to salvage his client’s case by invoking the Court’s
administrative procedures for technical difficulties. The Court later concluded that
Mr. King’s reliance on these provisions was misplaced and determined that no
exception existed to excuse the late filing of this case. (Doc. 45, pp. 6, 8-9). The
Court ultimately dismissed Plaintiff’s claims against Defendants Lowndes County,
Georgia, Chris Prine, Mike Adams, Jack Priddy, Stryde Jones, Andrea Watford,
and Brighton Lampert for failure to file the lawsuit within the statute of limitations.
(Doc. 45, 48).
Mr. King presented proof of serving four of the other defendants and suggested
that because those defendants had received service, Plaintiff’s claims against the
remaining defendants should not be dismissed. (Doc. 19). Mr. King made no
effort to provide the Court with any good cause basis to extend the time for
service. Nevertheless, the Court afforded Plaintiff an additional 10 days in which
to serve the remaining defendants, including RGBI.
Once Plaintiff finally served RGBI with a copy of the Summons and
Complaint, counsel for RGBI immediately contacted Mr. King by telephone to
inform him that RGBI was not a proper party to the lawsuit. (Doc. 28-3, p. 2; Doc.
44-1, p. 2). RGBI’s counsel faxed a letter to Mr. King stating the same. (Id.). As
evidence that RGBI was improperly named as a defendant to this action, counsel
for RGBI provided Mr. King with a copy of the Bill of Sale for the restaurant,
which indicated that on February 1, 2012, three years before the events relevant
to this lawsuit, RBGI sold the restaurant, its assets, and the “Rascal’s” name to
Andrew Corrao. (Doc. 28-2, ¶ 5, p. 4-5; Doc. 44-1, p. 2). Since that time, the
restaurant has been operated by numerous owners. RGBI further informed Mr.
King that on the date in question the establishment was known as Rascal’s
Lounge and Restaurant and was owned by Joshua Allen. (Id.).
Fourteen days following initial contact with Mr. King, RGBI’s counsel again
contacted Mr. King and informed him that RGBI sold the business years before
the alleged incident and had no connection to Plaintiff or the other defendants.
(Doc. 44-1, p. 2). Mr. King assured RGBI that he would dismiss the entity as a
party. (Doc. 44-1, p. 2). RGBI’s counsel confirmed this interchange by email
several days later. (Doc. 28-3, p. 1).
Despite Mr. King’s representation that he would file an appropriate notice
of dismissal with the Court, he did not. Thus, RGBI was forced to file a motion to
dismiss to preserve its rights. (Doc. 28). Again, Mr. King did not file a response to
RGBI’s motion. Even when the Court provided Mr. King with additional time in
which to respond, Mr. King still refused to capitulate that RGBI was not a proper
defendant and left it to the Court to determine whether RGBI was properly joined.
(Doc. 39). The Court later granted RGBI’s motion. (Doc. 43).
As a result of Mr. King’s failure to dismiss RGBI as a defendant, even after
being informed on numerous occasions that RGBI no longer owned the premises
in question, RGBI not only had to file a motion to dismiss but also was required to
comply with the Court’s Rule 16 and 26 Order. RGBI, along with the other named
defendants timely completed and filed the discovery report without the input of
Mr. King, who would not respond to Defendants’ requests to confer.
Consequently, RGBI incurred a total of $5,666.67 in attorney’s fees and costs,
which RGBI now seeks to recover.
Defendant moves under Federal Rule of Civil Procedure 11 and under 28
U.S.C. § 1927 for the imposition of sanctions. Rule 11 provides in part that when
an attorney presents a pleading or motion to the Court, he certifies that, to the
best of his knowledge and after a reasonable inquiry,
 the claims, defenses, and other legal contentions were warranted
by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law; [and]
 the factual contentions have evidentiary support or, if specifically
so identified, will likely have support after a reasonable opportunity
for further investigation or discovery. . . .
Fed.R.Civ.P. 11(b)(2)-(3). Whether an attorney has violated these requirements
rests on”  whether the legal claims or factual contentions are objectively
frivolous, and . . .  whether a reasonably competent attorney should have
known they were frivolous.” Thompson v. RelationServe Media, Inc., 610 F.3d
628, 665 (11th Cir. 2010) (citing Worldwide Primates, Inc. v. McGreal, 87 F.3d
1252, 1254 (11th Cir. 1996)). “If, after notice and a reasonable opportunity to
respond, the court determines that Rule 11(b) has been violated, the court may
impose an appropriate sanction” on any attorney or party who violated the rule or
who is responsible for the violation. Fed.R.Civ.P. 11(c)(1). Any sanction must be
limited to that which is sufficient to deter repetition of the conduct and may
include an order directing the payment of reasonable attorney’s fees and
sanctions to the moving party resulting from the violation. Fed.R.Civ.P. 11(c)(4).
Rule 11 contains a safe harbor provision, which requires a moving party to
serve the offending party with a copy of the motion at least 21 days prior to filing
the motion with the Court. Fed.R.Civ.P. 11(c)(2). The moving party cannot file the
motion if, within those 21 days, the offending party either withdraws or corrects
the offensive conduct. Id. Here, there is no evidence that Defendant served a
copy of its motion seeking sanctions prior to filing the motion with the Court.
Accordingly, the Court declines to impose sanctions under Rule 11.
Alternatively, Defendant requests an award of attorney’s fees and costs
pursuant to 28 U.S.C. § 1927. Under § 1927, a court may require any attorney
“who so multiplies the proceedings in any case unreasonably or vexaciously . . .
to satisfy personally the excess costs, expenses and attorney’s fees reasonably
incurred because of such conduct.” Any attorney does so “only when the
attorney’s conduct is so egregious that is it ‘tantamount to bad faith.’” Amlong &
Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1239 (11th Cir. 2007). When
assessing bad faith, the court should look to the attorney’s objective conduct. Id.
at 1239-40 (“The term ‘unreasonably’ necessarily connotes that the district court
must compare the attorney’s conduct against the conduct of a ‘reasonable’
attorney and make a judgment about whether the conduct was acceptable
according to some objective standard. The terms ‘vexatiously’ similarly requires
an evaluation of the attorney’s objective conduct.”). The multiplication-ofproceedings element requires evidence that the attorney engaged in conduct that
leads to proceedings that would not otherwise have been conducted. Peterson v.
BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997).
After a thorough review of the history of this case, the Court concludes
that Mr. King’s conduct amounts to bad faith. Mr. King was advised on numerous
occasions that RGBI was not a proper party to this case, a fact proven to be true
and which Mr. King could have confirmed easily and swiftly, yet he refused to
take the proper steps to dismiss RGBI. He needlessly dragged out the litigation,
wasting both RGBI’s time and the Court’s. Accordingly, the Court grants RGBI’s
motion and awards RGBI $5,666.67, to be paid by Mr. King. This figure is based
on 18.5 hours of legal work at a rate of $300 per hour, which the Court finds
reasonable, plus expenses of $116.67.
For the foregoing reasons, the Court GRANTS RGBI’s Motion for
Attorney’s Fees and Expenses (Doc. 44). Mr. King is to submit a check made
payable to Robert A. Plumb, Jr. by not later than September 15, 2017. Failure to
timely remit payment may result in the imposition of additional sanctions.
SO ORDERED this 15th day of August, 2017.
s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE
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