Madison Oslin Inc v. Interstate Resources, Inc. et al

Filing 151

MEMORANDUM AND ORDER denying 142 Plaintiffs Motion To Stay Consideration of Defendants Bill of Costs; granting in part 143 Defendants' Motion to Require Plaintiffs to Post a Security for Costs and Attorneys Fees. Signed by Judge Marvin J. Garbis on 7/2/2015. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MADISON OSLIN, INC.,
et al.,
Plaintiffs
vs.

*
*
*

INTERSTATE RESOURCES, INC.,
et al.,
Defendants

*

*

*

CIVIL ACTION NO. MJG-12-3041

*

*

*

*
*

*

*

*

MEMORANDUM AND ORDER RE: BOND
The Court has before it Defendants’ Motion to Require
Plaintiffs to Post A Security for Costs and Attorneys [sic] Fees
[Document 143],

Plaintiffs’ Motion To Stay Consideration Of

Defendants’ Bill Of Costs [Document 142] and the materials
submitted relating thereto.

The Court finds that a hearing is

unnecessary.
The following events pertinent to the instant motion have
occurred:
Date
3/251

ECF No. Event
136
Summary Judgment for Defendants

3/25

Judgment dismissing all claims with costs

4/6

138

Plaintiffs file Notice of Appeal

4/8

140

Defendants’ Bill of Costs – seeking $43,055.50

4/8
1

137

141

Defendants’ Motion for Attorney’s Fees

All dates herein are in the year 2015.

Date
4/22
5/1

ECF No. Event
142
Plaintiffs’ Motion to Stay Consideration of
Bill of Costs and objection to $34,670.55 of
the claim
143
Defendants’ Motion for Bond

In the instant motion, Defendants assert that Plaintiffs
have pursued baseless claims, are pursuing a baseless appeal,
have demonstrated a lack of financial responsibility, and that
Plaintiffs’ principals are proceeding to render Plaintiffs
essentially judgment proof.

Plaintiffs, in response, present

the conclusory statements that their appeal is brought in good
faith and that they “believe there is a reasonable basis for the
appellate court to reverse” this Court’s Judgment. Pls.’ Opp’n
3, ECF No. 149.

Plaintiffs do not present any response at all

to the contentions regarding the significant risk of non-payment
of any award of costs and fees.
The Court agrees with Defendants regarding the absence of
merit of Plaintiffs’ claims.

Moreover, the Court finds no

reason to doubt Defendants’ assertion that, absent a bond, there
is a substantial risk that they will be unable to collect any
award for costs and for any legal fee award.

I.

COSTS (EXCLUDING LEGAL FEES)
As matters presently stand, there is a Bill of Costs for

$43,055.50 and an objection to $34,670.55 of this amount.

2

Thus,

Plaintiffs agree that Defendants sustained at least $8,384.95 of
assessable costs.

The Court finds no valid reason to stay

consideration of Defendants Bill of Costs.

Moreover, in view of

the unrefuted allegations of Plaintiffs financial situation, the
Court finds it appropriate to act promptly.
As discussed by Judge Bredar in Mould v. NJG Food Service,
Inc., 2013 WL 6531778 (D. Md. 2013) this Court can order a
nonresident Plaintiff to post security for costs. Rule 103.4,
Rules of the United States District Court for the District of
Maryland

(“Local Rules”).

The factors identified in Mould

plainly warrant this action.

While, in context, the assessable

costs are de minimis in comparison to Defendants’ legal fees,
Plaintiffs’ posting of a bond will ensure at least some recovery
for prevailing Defendants.
Furthermore, the Court shall not allow Plaintiffs to defer
posting any bond at all until after the final determination of
the full amount of assessable costs.

Rather the Court shall

require the immediate posting of a bond in the amount of the
undisputed portion of Defendants’ Bill of Costs, even though
that amount is not large.

As appropriate, further amounts of

security shall be required.

3

II.

LEGAL FEES
Plaintiffs state:
Defendants filed their Motion for Attorneys’
Fees on April 8, 2015 and have not filed a
supporting memorandum pursuant to Local Rule
109 and should be found to have waived any
argument that the fees should be included in
the determination of a cost bond. While the
Defendants may, pursuant to Rule 109, wait
to file their supporting memorandum until
the issuance of the mandate from the Court
of Appeals, to do so leaves the amount of
any awarded fees speculative and
impossible of being included in a
calculation of costs for determining the
amount of a bond.

Pls.’ Opp’n 4, ECF No. 149.
The Court does not find that the absence of a Rule 109.2.b.
supporting memorandum constitutes a waiver of the argument that
fees may be included in a cost bond.

Of course, the absence of

such a memorandum affects the reliability of the estimate of the
total amount of any legal fee award.

However, in the instant

case, as a practical matter, Defendants would be protected
somewhat – even if inadequately – by the required posting of a
bond in an amount determined to be no greater than the minimum
obtainable legal fee award.2
Plaintiffs contend that legal fees awarded pursuant to the
Alabama Trade Secret Act are not recoverable as costs, citing a
2

The Court notes that Plaintiffs failed to respond to the
motion within the requisite time period, which could result in
the Court’s granting the unopposed motion.

4

case so holding in the context of a Rule 68, Federal Rules of
Civil Procedure, offer in judgment. Util. Automation 2000, Inc.
v. Choctawhatchee Elec. Co-op., Inc., 298 F.3d 1238, 1244-45
(11th Cir. 2002).

Defendants, however, state that they are also

seeking legal fees pursuant to the Alabama Litigation
Accountability Act, Ala Code § 12-19-272.
Under the circumstances, the Court will provide Plaintiffs
with the opportunity, and the obligation, promptly to respond to
Defendants’ Motion for Attorneys’ Fees [Document 141], including
Defendants’ contentions regarding the Alabama Litigation
Accountability Act.

III. CONCLUSION
For the foregoing reasons:
1.

Plaintiffs’ Motion To Stay Consideration Of
Defendants’ Bill Of Costs [Document 142] is
DENIED.

2.

The Clerk shall proceed expeditiously to process
Defendants’ Bill of Costs.

3.

Defendants’ Motion to Require Plaintiffs to Post
a Security for Costs and Attorneys [sic] Fees
[Document 143] is GRANTED IN PART.
a.

By separate Order, Plaintiffs shall be
required to post security in the amount of
$8,384.95 by July 10, 2015.

b.

By July 16, 2015, Plaintiffs shall file a
response to Defendants’ Motion for
Attorneys’ Fees [Document 141] that includes

5

a statement of the reasons why Defendants
would not be entitled to a fee award
pursuant to the Alabama Litigation
Accountability Act.

SO ORDERED, on Thursday, July 2, 2015.

/s/__________
Marvin J. Garbis
United States District Judge

6