Hall v. Aero Accessories, Inc. et al

Filing 157

ORDER that the Reply Brief does not state new positions that warrant a further response from plaintiffs. Therefore, Plaintiffs 144 Motion for Leave to File Sur-Reply is DENIED. Plaintiffs counsel engaged in unreasonable and vexatious conduct that m ultiplied the proceedings. Therefore, Defendant Aero Accessories 132 Motion for Sanctions is hereby GRANTED. Defendant Aero Accessories 137 Motion for Attorney Fees is GRANTED, and Defendant Aero Accessories is awarded $18,300.00 against Pla intiffs counsel, Patrick J Gallagher, and his firm, Katzman, Lampert & McClune, P.C.. The award of fees and costs herein are for fees and costs in both the present case and in Gennett Hall, et al. v. Aero Accessories, Inc., et al., No. 2:14-CV-206-RWS. The Clerk shall enter a single JUDGMENT jointly in the cases in favor of Plaintiffs and against Patrick J. Gallagher and Katzman, Lampert & McClune, P.C. in the total sum of $18,300.00. Signed by Judge Richard W. Story on 04/29/16. (rsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
GENNET HALL, as Administratix
of the Estate of DON H. HALL,
deceased, and as Surviving
Spouse, Next Friend, Mother and
Natural Guardian of ABIGAIL G.
HALL and ALLISON HALL,
Minor Children, and TYLER S.
GARMON, as Survivor of DON H.
HALL, deceased,

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CIVIL ACTION NO.
2:14-CV-206-RWS

Plaintiffs,
v.
AERO ACCESSORIES, INC.,
a North Carolina Corporation for
Profit, et al.,
Defendants.
ORDER
This case is before the Court for consideration of Defendant Aero
Accessories, Inc.’s (“Aero Accessories”) Motion for Sanctions [132];
Defendant Aero Accessories’ Motion for Attorney Fees [137]; and Plaintiffs’
Motion for Leave to File Sur-Reply [144]. After reviewing the record, the
Court enters the following Order.

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BACKGROUND
This case arises out of a plane crash that occurred in Georgia on
September 13, 2012. (Compl., Dkt. [1] ¶ 1.) Both of the plane’s occupants, Don
Hall and David Schorr, died in the crash. (Id.) Plaintiff Gennet Hall is Don
Hall’s surviving spouse, and she sues both individually and as a representative
of Don Hall’s estate. The nine Defendants originally named in the Complaint1
are companies that allegedly played roles in the design, manufacture,
construction, or distribution of the plane or its components. (Id. ¶¶ 5-15.)
Plaintiffs allege that the crash occurred when the plane lost power due to a
defective fuel flow system, ignition system, or a combination of the two. (Id. ¶
19.)
From the outset of the case, Aero Accessories’ position has been that this
Court lacked personal jurisdiction over Aero Accessories due to the absence of
any nexus between Aero Accessories, the State of Georgia, and the allegedly
defective part that it manufactured. (Decl. of Donald R. Andersen (“Andersen
Dec.”), Dkt. [132-1] ¶ 3.) Defendant’s counsel requested that Plaintiffs’
counsel voluntarily dismiss the case. (Id.) When Plaintiffs’ counsel did not
1

Five of the original Defendants have been voluntarily dismissed by Plaintiffs.
[49, 50, 66, 154, & 156]
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voluntarily dismiss the case, Aero Accessories filed a Motion to Dismiss for
Lack of Personal Jurisdiction [67] on January 12, 2015. After the motion was
filed, counsel for Plaintiffs and Defendant revisited the issue of voluntary
dismissal, but Defendant’s counsel’s efforts to secure a voluntary dismissal
were unsuccessful. (Decl. of Catherine M. Banich (“Banich Dec.”), Dkt. [1322] ¶¶ 3-5.)
Following several consent extensions of time, Plaintiffs filed a Brief in
Opposition [112] to Aero Accessories’ motion on July 20, 2015. Plaintiffs
asserted that personal jurisdiction over Aero Accessories was based on several
grounds. First, Plaintiffs asserted that this Court had jurisdiction under
Georgia’s long arm statute based on the commission or omission of a tortious
act occurring outside the state of Georgia that caused an injury in the state of
Georgia by a tortfeasor who “regularly does or solicits business, or engages in
any other persistent course of conduct or derives substantial revenue from
goods used or consumed or services rendered in this state.” O.C.G.A. § 9-1091(3). (Pls.’ Resp. in Opp’n to Def.’s Mot. to Dismiss (“Pls.’ MTD Resp. Br.”),
Dkt. [112] at 6-10.)
Plaintiffs also asserted that personal jurisdiction exists over Aero

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Accessories under the “transacting business” prong of the Georgia long arm
statute. O.C.G.A. § 9-10-91(1). (Pls.’ MTD Resp. Br., Dkt. [112] at 10-21.) As
a part of the “transacting business” argument, Plaintiffs asserted that Federal
Aviation Regulation 14 C.F.R. § 21.50 required Aero Accessories to provide
Instructions for Continued Airworthiness (“ICA”) for the fuel pump installed
on the accident aircraft. (Pls.’ MTD Resp. Br., Dkt. [112] at 16.) After
receiving Plaintiffs’ Brief, Defendant Aero Accessories’ counsel conducted a
“meet and confer” telephone conference with Plaintiffs’ counsel in which Aero
Accessories’ counsel advised Plaintiffs’ counsel that § 21.50 is inapplicable to
the allegedly defective Aero Accessories fuel pump. (Andersen Dec., Dkt.
[132-1] ¶ 5.) On August 20, 2015, Plaintiffs’ counsel filed a Notice of Errata
[115] replacing the reference to § 21.50 with a reference to 14 C.F.R. § 21.3 as
follows:
“14 C.F.R. § 21.3 requires Aero Accessories, as a
PMA holder, to, “(a) . . . report any failure,
malfunction, or defect in any product or article
manufactured by it that it determines has resulted in
any of the occurrences listed in paragraph (c) of this
section.” Section 21.3(c) states, “[t]he following
occurrences must be reported as provided in
paragraphs (a) and (b) of this section: (10) an engine
problem.” Thus, if Aero Accessories knew or should
have known with [sic] an engine malfunction caused
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by a lack of fuel flow, then it had a duty to report it.
Moreover, a manufacturer such as Aero Accessories
has a duty to issue a service bulletin to owners and
operators of aircraft when it finds any defect or makes
an improvement to one of its existing products.
(Pls.’ Errata, Dkt. [115] at 2 (emphasis added).)
After five consent motions for extension of time were granted, Aero
Accessories filed its Reply Brief [126] on September 11, 2015. In the Reply,
Aero Accessories pointed out that the reference to § 21.3 by Plaintiffs
misquoted the section by using the term “engine problem” rather than “engine
failure.” On September 30, 2015, the Court issued an Order [131] granting
Aero Accessories’ Motion to Dismiss for Lack of Personal Jurisdiction. In the
Order, the Court addressed each of the grounds for personal jurisdiction
asserted by Plaintiffs and found each to be lacking. The Court also noted that
Plaintiffs had misquoted § 21.3. (Dkt. [131] at 23, n.5.)
On October 14, 2015, Aero Accessories filed the Motion for Sanctions
[132] that is presently before the Court for consideration. In the Motion, Aero
Accessories requests that the court impose monetary sanctions against
Plaintiffs’ counsel pursuant to 28 U.S.C. § 1927. (Def.’s Br. in Supp. of Mot.
for Sanctions (“Def.’s Sanctions Br.”), Dkt. [132] at 4.) Aero Accessories

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contends that counsel unreasonably and vexatiously expanded litigation by
proceeding against it without any legitimate basis for personal jurisdiction. (Id.
at 2-3.) Aero Accessories points to the improper invocation of Federal Aviation
Regulations by Plaintiff’s counsel, both the initial reference to 14 C.F.R. §
21.50 and the misquoting of § 21.3 in the Errata, as the linchpin in Plaintiff’s
jurisdictional argument and as evidence of Plaintiffs’ counsel’s intentional
efforts to mislead the Court. (Id. at 20.) Aero Accessories’ counsel explains
that Aero Accessories is not proceeding under Federal Rule of Civil Procedure
11 in the present motion because the timing of the filing of the Errata did not
afford him 21 days within which to serve a Rule 11 motion. (Id. at 14.)
In his response, counsel for Plaintiffs states that the improper reference
to 14 C.F.R. § 21.50 and misquote of § 21.3 were inadvertent mistakes made by
him without any intent to mislead the court. (Pls.’ Br. in Opp’n to Def.’s Mot.
for Sanctions (“Pls.’ Sanctions Opp’n Br.”), Dkt. [135] at 9.) In support of this
contention, counsel points out that he was advised by opposing counsel of his
error in citing § 21.50 on August 19, 2015. (Aff. of Patrick J. Gallagher, Dkt.
[135-2] ¶ 5.) He immediately filed the Errata [115] on the next day. Counsel
urges the court to consider his prompt response as evidence that he was not

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intentionally seeking to mislead the Court. Counsel also cites this conduct in
support of his argument that had counsel for Aero Accessories advised him of
the misquote, he would have voluntarily corrected the same. (Pls.’ Sanctions
Opp’n Br., Dkt. [135] at 17.) Counsel also states that he had a good faith basis
for asserting that § 21.3 applied as to Aero Accessories’ alleged omissions. (Id.
at 12-16.) Finally, counsel asserts that his conduct did not multiply the
proceedings and that Aero Accessories has failed to show that the attorney fees
and costs it seeks are reasonably connected to the excess proceedings. (Id. at
16-18.)
In its Reply Brief [140], Aero Accessories suggests that, based upon the
experience and expertise of Plaintiffs’ counsel, counsel’s position that his
actions with regard to the Federal Aviation Regulations were inadvertent
should not be accepted. (Def.’s Reply Br. in Supp. of Mot. for Sanctions
(“Def.’s Sanctions Reply Br.”), Dkt. [140] at 4.) Aero Accessories also asserts
that the position taken by plaintiffs that an engine failure is at issue and that §
21.3 may be applicable has, again, extended the litigation. (Id. at 10-12.) Aero
Accessories submitted additional expert declarations in response to this
position. (See Dkt. [140-1 & 141].)

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On November 13, 2015, Aero Accessories filed a declaration and
supporting documents for attorneys’ fees [137], which is docketed as a Motion
for Attorney Fees. This Motion is filed pursuant to Local Rule 54.2(A)(2).
DISCUSSION
I.

Plaintiffs’ Motion for Leave to File Sur-Reply [144]
Plaintiffs seek leave of court to file a surreply brief to Aero Accessories’

Reply Brief for its Motion for Sanctions. “Neither the Federal Rules of Civil
Procedure nor this Court’s Local Rules authorize the filing of surreplies.”
Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1197 (N.D. Ga.
2005). “A district court’s decision to permit the filing of a surreply is purely
discretionary,” but a surreply “should generally only be allowed when ‘a valid
reason for such an additional briefing exists, such as where the movant raises
new arguments in its reply brief.” First Specialty Ins. Corp. v. 633 Partners,
Ltd., 300 F. App’x 777, 788 (11th Cir. 2008) (quoting Fedrick, 366 F. Supp. 2d
at 1197). The Court finds that the Reply Brief does not state new positions that
warrant a further response from plaintiffs. Therefore, Plaintiffs’ Motion for
Leave to File Sur-Reply [144] is DENIED.
II.

Defendant Aero Accessories’ Motion for Sanctions [132]

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The Court is authorized to require any attorney “who so multiplies the
proceedings in any case unreasonably and vexatiously . . . to satisfy personally
the excess costs, expenses, and attorneys’ fees reasonably incurred because of
such conduct.” 28 U.S.C. § 1927. To justify an award of sanctions under §
1927, “an attorney must engage in unreasonable and vexatious conduct; this
conduct must multiply the proceedings; and the amount of the sanction cannot
exceed the costs occasioned by the objectionable conduct.” Peer v. Lewis, 606
F.3d 1306, 1314 (11th Cir. 2010) (quotations omitted). Something more than a
lack of merit or negligent conduct is needed to support the imposition of
sanctions under § 1927. Amlong & Amlong, P.A. v. Denny’s Inc., 500 F.3d
1230, 1242 (11th Cir. 2006).
The Court finds that the only conduct arguably subject to sanctions
concerns Plaintiffs’ counsel’s representations regarding § 21.3. Counsel is not
subject to sanctions for declining to voluntarily dismiss the case in response to
Aero Accessories’ counsel’s request that he do so. Plaintiffs asserted arguable
grounds for jurisdiction that were not solely dependent upon § 21.3. The fact
that those grounds may have ultimately lacked merit does not equate to their
being vexatious or unreasonable. Based on counsel’s immediate retraction of

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his argument based on § 21.50, the Court gives counsel the benefit of the doubt
in concluding that that reference was inadvertent.
However, the Court finds counsel’s explanation for the § 21.3 error less
convincing. The use of “problem” rather than “failure” is significant. This was
not an insignificant term buried inside a lengthy quote. The significance is
further heightened when one considers the lack of evidence in the case that an
engine failure occurred.
The Court was somewhat troubled that counsel for Aero Accessories did
not call the misquote to Plaintiffs’ counsel’s attention or, at least, serve a Rule
11 notice. In light of the Court’s willingness to freely grant extensions to the
parties, Aero Accessories’ counsel’s explanation for not providing the Rule 11
notice is not very persuasive. In fact, counsel received five extensions of time
within which to file the Reply Brief. Thus, it seems counsel could have
expected to receive a continuance to allow time for a Rule 11 notice.
However, Plaintiffs’ counsel’s response to the Motion for Sanctions
causes the Court to have less concern about the lack of notice from Defendant
to Plaintiffs’ counsel. Rather than acknowledging his mistake as he did
regarding § 21.50, Plaintiffs’ counsel took the position that engine failure was

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an issue in the case and that § 21.3 is arguably applicable. This position is not
supported in the record. While the Court recognizes that the merits of the case
are not in issue in the consideration of this motion, counsel’s good faith is an
issue. In order to determine good faith, the court must look, at least to some
extent, at the merits of the positions taken by counsel.
Based on the foregoing, the Court finds that Plaintiffs’ counsel engaged
in unreasonable and vexatious conduct that multiplied the proceedings.
Therefore, Defendant Aero Accessories’ Motion for Sanctions [132] is hereby
GRANTED.
III.

Defendant Aero Accessories’ Motion for Attorney Fees [137]
“[T]he amount of the sanction cannot exceed the costs occasioned by the

objectionable conduct.” Peer, 606 F.3d at 1314. In its Motion, Aero
Accessories seeks all fees and costs associated with the Motion to Dismiss. As
noted above, the objectionable conduct is limited to Plaintiffs’ counsel’s
assertions based on § 21.3. Therefore, Aero Accessories is only entitled to an
award of fees and costs occasioned by that conduct. The Court has reviewed
the submissions and concludes that an award of $10,000.002 as attorney fees
2

The Court has taken into account that Aero Accessories is not entitled to
compensation for all work done on the Motion to Dismiss [67] because all of the
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and $8,300.003 as costs is appropriate. Accordingly, Defendant Aero
Accessories’ Motion for Attorney Fees [137] is GRANTED, and Defendant
Aero Accessories is awarded $18,300.00 against Plaintiffs’ counsel, Patrick J
Gallagher, and his firm, Katzman, Lampert & McClune, P.C.
The award of fees and costs herein are for fees and costs in both the
present case and in Bridgette J. Schorr, et al. v. Aero Accessories, Inc., et al.,
No. 2:14-CV-207-RWS. The Clerk shall enter a single JUDGMENT jointly in
the cases in favor of Plaintiffs and against Patrick J. Gallagher and Katzman,
Lampert & McClune, P.C. in the total sum of $18,300.00.
SO ORDERED, this 29th day of April, 2016.

________________________________
RICHARD W. STORY
United States District Judge

issues addressed in the Motion were not unreasonable or vexatious. The Court has
reduced the claim accordingly. The Court has also taken into account that the Motion
for Attorney Fees [137] did not include time for work done after the filing of the
Motion and has increased the claim accordingly.
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The Court reduced the expert fees for time attributable to the § 21.50 issue.
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