Aldmyr Systems, Inc. v. Friedman et al
Filing
39
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 3/18/2016. (kns, Deputy Clerk)
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~FILEO
LOO'EO. __
ENTE_REO
FECEIVEO
MAR 2.1 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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"TGRi:.i:.NIIIt:I,.. •.
c;l.ERK u. •• [)IOTRICT COURT
0\ll11lICT OF MARYtANo
O£PulY
BY
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ALDMYR SYSTEMS, INC., et al.
Plaintiffs
v.
STEPHEN A. FRIEDMAN,
et al.
Defendants
MEMORANDUM
Civil No. PJM 15-864
OPINION
This case, ostensibly seeking damages for copyright infringement under federal
law and misappropriation of trade secrets under state law, is in reality an effort to wage a
state-based domestic relations battle in federal court.
The decision to dismiss the case,
given that the case should never have been pursued outside the domestic litigation in state
court, is easily made.
The more challenging question is the extent to which the filing of this suit in
federal court should trigger sanctions under Federal Rule of Civil Procedure II against
the corporate
Plaintiffs,
Plaintiffs'
de facto controlling
shareholder
and CEO, and
Plaintiffs' counsel.
I.
The background facts are these:
A.
Donald Bailey, Sr. ("Mr. Bailey") and Geraldine Bailey ("Mrs. Bailey") married
in October 1999. Compl. ~ 16, ECF No.1.
-1-
By 2014, the Baileys were involved in a
divorce proceeding in the Circuit Court for Anne Arundel County, Maryland. According
to the docket sheet in the state case, Geraldine M Bailey v. Donald M Bailey Sr., Circuit
Court for Anne Arundel County, Case No. 02-C-14-l86729,
Mrs. Bailey sued Mr. Bailey
for divorce on April 7, 2014. See State Ct. Docket, ECF No. 3D-I.' The Complaint in the
present federal case states that Mr. Bailey left the marital home "by agreement and not
wishing to displace his family.,,2 Compl. ~ 21. Mrs. Bailey retained as her counsel in the
divorce proceeding Stephen A. Friedman, Esquire, of the Greenbelt, Maryland law firm
Joseph, Greenwald
& Laake, P.A. ("JGL").
Mr. Friedman and his firm are both
Defendants in the present proceeding.
In the state court proceeding, on September 16, 2014, Mrs. Bailey, through Mr.
Friedman, served Mr. Bailey with a First Request for Production of Documents and a
First Set of Interrogatories.
See State Ct. Docket, ECF No. 3D-I; PI.'s Opp'n Def.'s Mot.
Protective Order & Quash Subpoena C"PI.'s Opp'n Mot. Protect. Order"), Ex. A, B, C,
ECF No. 17-6. Since Mrs. Bailey's prayer for relief in the proceeding sought, among
other things, a share of marital assets, her discovery request sought basic financial
information pertaining to Mr. Bailey's business affairs, including his ownership and
controlling interest in the corporate Plaintiffs in the present suit, Aldmyr Systems, Inc.
I A court may take judicial notice of docket entries, pleadings, and papers in other cases without
converting a motion to dismiss into a motion for summary judgment. See Papasan v. Allain, 478
U.S. 265, 268 n.l, 106 S. Ct. 2932, 92 L.Ed.2d 209 (1986); Hall v. Virginia, 385 F.3d 421, 424
n.3 (4th Cir. 2004); Bey v. Shapiro Brown & All, LLP, 997 F. Supp. 2d 310, 316 n.4 (D. Md.
2014) affd, 584 F. App'x 135 (4th Cir. 2014) (taking judicial notice of state court docket entries).
For ease of reference, the ECF numbers of the docket in this case are used to refer to documents
filed in Geraldine M. Bailey v. Donald M Bailey Sr. in the Circuit Court for Anne Arundel
County.
2 Plaintiffs' later filings state that Mr. Bailey was "forced to leave home by [aJ court order
enforced by police." Pis.' Resp. Opp'n Mot. Sanctions at 7, ECF No. 31; see Pis.' Resp. Opp'n
Suppl. Mot. Sanctions at 6, ECF No. 35.
-2-
("Aldmyr") and legato
Solutions, Inc. ("legato,
Inc.").
See PI.'s Opp'n Mot. Protect.
Order, Ex. A, B, C, ECF No. 17-6.
Discovery in the state divorce case and proceedings in the present federal suit
establishes that Mr. Bailey indeed had an intimate relationship with Aldmyr and legato,
Inc.
He incorporated Aldmyr in 1989. Compl. ~ 17. Although Aldmyr purportedly
authored a computer program entitled "Per Diemmazing Travel Management System,"
according to the Complaint in the present action, it appears that Mr. Bailey actually
authored the program because he registered a copyright for it in his own name in 1995.
Com pI., Ex. 2, ECF No. 1-2.
Aldmyr also purportedly authored an improved and
renamed version of Per Diemmazing Travel Management
System, Compl. ~ 19, but
again, on September 30, 1999, Mr. Bailey claimed and registered a copyright for this
version in his own name, this time for a computer program titled either "legato"
or
"legato Travel Management System.': Compl., Ex. 3 at 1, ECF No. 1-3.
According to pleadings Mr. Bailey filed in the divorce proceeding and attached to
Plaintiffs' surreply in the present federal case3 (discussed further below), Mr. Bailey
owned a 90% interest in Aldmyr, one of the Plaintiffs in this action. See Def.'s Opp'n
PI.'s Mot. Adjudicate Def. Contempt of Court at 4, ECF No. 11-31. In 2000, legato,
Inc., the second Plaintiff in this action, was incorporated.
state divorce proceeding,
ownership
Mr. Bailey represented
interest in legato,
Inc.4
See Def.'s
Compl. ~ 20. Again, in the
in pleadings that he had a 50%
Opp'n
Pl.'s Mot. Adjudicate
Del:
As the Court will explain, although styled as a brief in support of Plaintiffs' Motion for
Summary Judgment, ECF No. II, this pleading was in effect an unauthorized surreply to
Defendants' Motion to Dismiss.
4 The record is not clear as to the other 50% ownership interest in Plaintiff Zegato, Inc. But Mr.
Bailey also represented in sworn testimony in the divorce proceeding that he had a 100% interest
in Zegato, Inc. See State Ct. Hr'g Tr. 142:23-144:25, Dec. 18,2014, ECF No. 13-1. While
J
-3-
Contempt
of Court at 4.
proceeding,
Later on, Mr. Bailey slated in the same filing in the divorce
that, after Zegato Travel Solutions,
he held a 100% ownership
state divorce proceeding,
LLC ("Zegato
interest in this entity.s
under questioning
LLC") was incorporated,
Jd. But then, in sworn testimony in the
from his own attorney,
he was the CEO and held a 100% ownership
Mr. Bailey stated that
interest in all three of the corporate
entities.
See State CI. Hr'g Tr. 140:16-25, 142:23-144:25, Dec. 18,2014, ECF No. 13_1.6
According
to two documents
attached
to Plaintiffs'
on July 5, 2005, Mr. Bailey assigned the right to reproduce
the copyrighted
Ex. Aldmyr
license
"Zegato
Copyright
the copyrighted
Automated
Assignment,
"Zegato
Travel System"
ECF No.
Automated
Mol. Summ. J., Ex. Zegato, Inc. Copyright
surreply
in the present
and make derivative
to Aldmyr,
works of
see Pis.' Mol. Summ. J.,
11-24, and the right to distribute
Travel
Assignment,
System"
case,
to Zegato,
Inc.
and
See Pis.'
ECF No. 11-25.7
Plaintiffs in the present suit have asserted that Mr. Bailey's brother, Lamont Bailey, owns a 10%
interest in Aldmyr, see Pis.' Resp. Opp'n Mot Sanctions, Ex. 2, Lamont Bailey Aff. ~~ 1-2, ECF
No. 24-3, they have not attempted to show what entity or individual owns the remaining 50% of
Zegato, Inc. It may well be that Donald Bailey, through another corporate entity, owns the other
50%.
, Mr. Bailey also has ownership interests in two other related companies. According to pleadings
in the divorce proceedings he holds a 100% ownership interest in Zegato Financial Solutions LLC
("Zegato Financial"), and a 10% interest in The Succor Group, LLC ("Succor Group"), which is
"a Zegato Solutions sub-contractor." Def.'s Opp'n PI.'s Mot. Adjudicate Def. Contempt of Court
at 4, ECF No. 11-3 I. However, Mr. Bailey testified in the divorce proceedings that he currently
owns 100% of the Succor Group, "indirectly" on behalf of his minor children. State Ct. Hr'g Tr.
141:1-24, Dec. 18,2014, ECF No. 13-1. Mr. Bailey also testified that he "controls" the Succor
Group and is the president or CEO of that entity. Jd.
6 At oral argument in the case at hand, James P. Chandler, Esquire, counsel for Plaintiffs Aldmyr
and Zegato, Inc., argued that Mr. Bailey had actually misstated the extent of his ownership
interests in the state court testimony. Mr. Chandler conceded, however, that Mr. Bailey in fact did
exert 100% cOlI/rol over all three entities, and that based on his 100% control, Mr. Bailey had in
fact authorized the filing of the instant federal lawsuit. See Mot. Dismiss Hr'g Tr. 7:14-25, Aug.
3,2015, ECF No. 20.
7 The documents contain a signature line for Donald Bailey and a signature line for the company.
Both signature lines are signed by what appears to be an identical signature, and each signature
appears to be that of Donald Bailey. Neither document contains the signature of a witness or
notary.
-4-
Although the Complaint in the present case contains few facts as to the precise
nature of the legato
software program, the Complaint describes it as "an elite travel
system for the federal government," Compl. 'If 20, that is "used in Fed Traveler," id. 'If 12,
presumably a different software system used by the federal government. According to a
putative 2006 Software License Agreement that Plaintiffs attached to their Response in
Opposition to the Motion to Dismiss, legato,
Inc. licensed the legato
Travel System
source code to Electronic Data Systems which, in tum, had a contract with the General
Services Administration
of the federal government to deliver software for its eTravel
program. Pis.' Resp. Opp'n Mot. Dismiss, Ex. I, ECF No. 8- I. Finally, the Complaint in
the present
case alleges
that Plaintiffs'
software
programs
"processed
the travel
information of the U.S. Marshal Service and other secret federal agencies on a classified
basis ....
,,8
Compl. 'If 33.
According to Mr. Bailey's testimony in the divorce
proceedings, the companies' contract with the federal government, which accounted for
about 85 to 90% of their revenue, officially ended on December 15, 20 I4. See State Ct.
Hr'g Tr. 114:5-115:23, Dec. 18,2014, ECF No. 13-1.
Unquestionably, Mrs. Bailey and her counsel, Mr. Friedman, were entitled to fully
explore Mr. Bailey's relationship with Aldmyr and legato,
proceedings.
[nco in the state divorce
The state court record is clear, however, that Mr. Bailey, through his
counsel in the divorce proceedings, Greg Nugent, Esquire, stonewalled any production.
On October 27,2015,
for example, Mr. Bailey through Mr. Nugent filed Objections and
Responses to Mrs. Bailey's first discovery requests, in which he refused to answer many
of Mrs. Bailey's interrogatories or produce documents on the grounds that disclosure
'The Complaint does not specify whether the Zegato program or some other program performs
this function.
-5-
could threaten trade secrets and national security.
See PL's Opp'n Mot. Protect. Order,
Ex. E, Def. 's Answers to PI.'s Interrogs. Nos. 4-5, 7-9, ECF No. 17-6; Ex. 0, Def. 's
Resp. PL's Request Produc. Docs. Nos. 1-8, 13-15, 17,20,28,43--44,46--47,58,60,64,
ECF No. 17-6.
This refusal included a refusal to produce documents pertaining to
business entities in which Mr. Bailey held an interest, namely, Aldmyr, legato, Inc., and
legato LLC, or to supply basic financial information with respect to any business entity
in which Mr. Bailey held an interest. See PL's Opp'n Mot. Protect. Order, Ex. 0, Def.'s
Resp. PL's Request Produc. Docs. Nos. 1-8, 13-15, 17,20,28,43--44,46--47,58,60,
ECF No. 17-6. The refusal, it may be noted, even extended to requests for documents
pertaining to real property in which Mr. Bailey held an interest, as well as other requests.
See id.
At the same time, Mr. Bailey, who as noted, had departed the marital home either
voluntarily or forcibly,9 CompL ~ 21, stated that he could not produce many of the
documents Mrs. Bailey requested because they were located in the marital home where
Mrs. Bailey was then residing.
See PL's Opp'n Def.'s Mot. Protective Order, Ex. 0,
Def.'s Resp. Pl.'s Request Produc. Docs. Nos. 2-8, 10, 13-14, 16, 18,25,28,43--44,4647,51-52,54,56,58,63-64,
ECF No. 17-6.
Thereafter, the plot began to thicken.
According to the Complaint in the present case, the marital home, located in Gambrills,
Maryland, is property owned by a corporation (2349 Patuxent River Road, Inc.) created by
Donald Bailey and Aldmyr. Compl. ~ 18. In a confusing passage from one of Mr. Bailey's
filings in the divorce proceeding, he states that he holds a 100% ownership interest in the
Patuxent River Road corporation, and that Aldmyr also "owns" the Patuxent River Road
corporation. Yet in the same passage, Mr. Bailey states that he has a 90% ownership interest in
Aldmyr. See Def.'s Opp'n PI.'s Mot. Adjudicate Def. Contempt of Court at 3--4, ECF No. 11-3!.
Accordingly, it appears that either Mr. Bailey or one of his closely held corporations, or both,
own the corporation that purportedly owns the marital home.
9
-6-
According to the Complaint in the present case, on October 30, 2014, three days
after Mr. Bailey and Mr. Nugent had refused to produce the documents, Mr. Friedman
and JGL ("the JGL Defendants") came into possession of some 813 pages of Aldmyr's
business records and "related documents containing protected copyright information and
a number
of protected
trade
Aldmyr/Zegato
technology,
Aldmyr/Zegato
customers,
secrets,"
valuations
Compl.
of
[and] the selling
fI
12, including
Aldmyr/Zegato
price
"valuations
companies,
or pricing
a
list
of
of
of Aldmyr/Zegato
technology .... " ld. ~ 21. Although the Complaint in the present federal case as opposed
to First Federal Case, discussed infra, fails to allege exactly how Mr. Friedman and JGL
acquired the documents, it is clear from Plaintiffs' filings that they contend that Mrs.
Bailey found the documents in Mr. Bailey's office within the marital home, then turned
them over to her lawyers, the JGL Defendants. See id. ~~ 21-22.
According to the Complaint, the JGL Defendants then "translat[ed]
Plaintiffs' copyrighted computer program and other intellectual property ...
...
the
to machine
readable code, machine language, then cop[ied] by uploading the program to [the JGL
Defendants'] computer and to [the JGL Defendants']
computer server."
10
ld. ~ 13. In
other words, Plaintiffs allege that Mr. Friedman scanned the paper documents Mrs.
Bailey had collected to a JGL computer connected to their server.
Mr. Friedman then
allegedly made another copy of the copyrighted computer program and other intellectual
property "by transferring the IP to his computer hard drive ...
electronic copy ...
[and] by downloading the
onto an electronic magnetic disk or disks ....
" ld.
The JGL
Defendants then allegedly "disclosed this IP and all trade secret information to others by
'0 In their Opposition to the Motion to Dismiss, Plaintiffs state that "defendants copied about 50
pages or more offorbidden computer code." Pis.' Resp. Opp'n Defs.' Mot. Dismiss at 5, ECF No.
8.
.7.
delivering the ... copies of the IP disks ... to others both inside and outside defendants'
firm including members of the firm." /d. Specifically, according to Plaintiffs, the JGL
Defendants
disseminated
property
to their staff, their third party
technology
experts, even to Mr. Nugent--counsel
for Mr. Bailey in the divorce
proceedings-and
the intellectual
"perhaps others." /d. ~ 22.
Further, according to the Complaint, the JGL Defendants copied and disseminated
the copyrighted
computer program and other intellectual property "for their use in
domestic litigation in an effort to force the Plain[t]iffs, owners of the copyrighted works,
to pay a large sum of money, 1.5 million dollars, for release and return of the IP
information in settlement of the litigation with one of plaintiffs stock holders ... .'. /d.
'fI
13. More specifically, Plaintiffs allege that "Stephen Friedman and defendants have used
his possession of Plaintiff's IP and other proprietary information, including trade secrets
and copyrighted computer technology, as a bargaining chip in the negotiations with
Donald Bailey's marriage counsel ....
[H]e and his firm [have] threatened to transfer the
IP including these copyrighted works and trade secrets to persons outside his firm's
possession, for example, to other individuals who contract with his firm and permanently
retain the IP, copyrighted technology and trade secrets for future use ... ." /d. 'fI23.
In the present case, the JGL Defendants have filed as an exhibit the October 31,
2014 letter Mr. Friedman sent to Mr. Nugent, Mr. Bailey's counsel, that accompanied the
compact disc containing the documents Mrs. Bailey had apparently collected in the
marital home.
See Defs.' Suppl. Mot. Sanctions, Ex. 2 at 1, ECF No. 34-2.
Mr.
Friedman's letter explained that, in response to Mr. Bailey's discovery responses that he
could not produce certain documents in the marital home, "Ms. Bailey has provided me
-8-
with a copy of all of the documents that she located within the marital home and that she
believes are Mr. Bailey's
personal and business documentation.
A copy of these
documents are contained on the attached CD and marked with Bates No. I to 823." Id.l]
The Complaint further alleges that Mr. Chandler, counsel to Aldmyr/Zegato, Inc.,
Plaintiffs in the present action, advised Mr. Nugent, Mr. Bailey's counsel in the divorce
proceedings, to seek a court order to "protect the intellectual property from disclosure."
Com pI. ~ 23.
And in fact, according to the docket in the divorce action, on October 30,2014,
Mr. Bailey, acting through Mr. Nugent, filed in that proceeding a Motion for a Protective
Order and to Quash Subpoena Duces Tecum to Protect Trade Secrets.
See State Ct.
Docket, ECF No. 30-1. The Motion pertained primarily to a subpoena that Mr. Friedman
had issued to the Custodian of Records for Harbor Bank of Maryland, in which he sought
to obtain records and depose the Custodian about Mr. Bailey's personal and business
accounts at the institution. In moving to quash the subpoena in state court, Mr. Bailey
once again represented that the requested records contained trade secrets and sensitive
information the disclosure of which could endanger national security.
See Def.'s Mot.
Protect. Order & Quash Subpoena ,;~ 2-3, ECF No. 17-5. To the extent that production
became necessary, Mr. Bailey proposed that a Protective Order applicable to trade
secrets, proprietary and privileged information, and financial information be issued. See
id ,; 5.
Mrs. Bailey, acting through Mr. Friedman and JGL, vigorously opposed Mr.
Bailey's Motion for a Protective Order and to Quash Subpoena. With respect to the
11 JGL Defendants do not dispute that Mrs. Bailey took the documents from the marital home and
turned them over to her attorneys.
-9-
subpoena, she argued, Mr. Bailey to that point had flatly refused to provide even the most
basic financial information about his assets in response to her attorney's
discovery
requests, citing as his grounds that disclosure could threaten trade secrets and national
security.
See Pl.'s Opp'n Def.'s Mot. Protect. Order at 2, ECF No. 17-6. Mrs. Bailey
also pointed out that Mr. Bailey had provided social security statements showing that his
income was $0.00 in 2012 and $2,616 in 2013, whereas he had elsewhere reported net
family expenses of $95,000 per year and had, to that point, paid $22,000 in fees to his
divorce counsel.
Jd. at 2-3. Mrs. Bailey sought to subpoena Mr. Bailey's records from
his bank so that she might obtain evidence of his true income and true assets for purposes
of the divorce proceedings.
12
[d. at 4-5. Mrs. Bailey further represented that, through the
JGL Defendants, she had offered to execute a reasonable confidentiality order with Mr.
Nugent and Mr. Bailey in order to protect purported trade secrets and other supposedly
confidential
information,
and suggested that Mr. Bailey's
proposed protective order
might still form the basis for a negotiated order in the future. Jd. at 5-6.
On November 21, 2014, Anne Arundel County Circuit Court Judge Alison Asti
issued an order stating that upon "consideration
of Defendant's
Motion for Protective
Order and to Quash Subpoena Duces Tecum ... Defendant's Motion to Quash Subpoena
Duces Tecum is DENIED."
State Ct. Order Denying Def.'s Mot., ECF No. 17-7. The
order did not set forth its rationale.
Id. For the first time, several months later at oral
In the course of the divorce proceedings, it became apparent that Mr. Bailey's corporations had
not prepared or filed State or Federal tax returns for some time, and, at a minimum, had failed to
do so from 2009 to 2014. Mr. Bailey's Opposition to Mrs. Bailey's Second Motion to Compel
Discovery stated that Mr. Bailey had engaged a certified public accountant for the "laborious task
of reviewing corporate and personal records to create State and Federal tax returns," but that
"filed tax returns that do not yet exist must be created" before they can be produced. Def.'s
Supp!. Resp. PI.'s Reg. Produc. Docs., NO.2, ECF No. 34-13; Def.'s Opp'n PI.'s 2d Mol. Compel
Disc. ~~3-4, ECF No. 34-14.
12
-10-
argument in the present case, Mr. Chandler, counsel for Plaintiffs, took the position that
Judge Asti's order had only denied Mr. Bailey's Motion to Quash the Subpoena; it had
not adjudicated the Motion for Protective Order. See Mot. Dismiss Hr'g Tr. 13:8-14:18,
Aug. 3, 20 IS, ECF No. 20.
Whether or not that was or is a tenable position, it is
undisputed that at no time did Mr. Bailey, Mr. Nugent, or Mr. Chandler ever go back to
Judge Asti to seek clarification of her order. The JGL Defendants, it may be noted, have
taken the position that Judge Asti denied Mr. Bailey's Motion in its entirety, including his
request for a protective order. See Mot. Sanctions Hr'g Tr. 23:6-18, Jan. 5,2016, ECF
No. 38.
While Mr. Bailey, through Mr. Nugent, did not file for another protective order in
the divorce proceedings,
see State Ct. Docket, ECF No. 30-1, the record in the divorce
proceeding indicates that the parties continued to negotiate a potential protective order on
and off for the next several months.13
Although somewhat out of sequence chronologically speaking, it bears noting that
on November
II, 2014, Mrs. Bailey, through Mr. Friedman, had filed a Motion to
Compel Discovery, in which she sought a court order compelling Mr. Bailey to supply
IJ The JGL Defendants have filed an exchange of letters between Mr. Friedman and Mr. Nugent
as an exhibit to their Supplemental to Motion for Sanctions. See Defs.' Suppl. Mot. Sanctions,
Ex. 19,20,21, ECF Nos. 34-19, 34-20, 34-21. According to an email Mr. Friedman sent to Mr.
Nugent on November 14,2014, Mr. Friedman sent a revised copy ofa proposed protective order
that Mrs. Bailey was willing to sign. Defs.' Suppl. Mot. Sanctions, Ex. 21 at 2 ("Nov. 2014
Emails••
).ECFNo.34-21.Mr.
Nugent responded on November 17,2014, stating, "I have passed
along a copy to Aldmyr-Zegato's counsel to see if this suffices for them." Id. On November 23,
2014, Mr. Nugent sent an emailing stating, "I am not dragging my feet on this. The company's
counsel lost one of his adult children suddenly about 10 days ago." Id. at 1. A second set of
letters dated March 20, 2015 and March 22, 2015 also discusses counterproposals for a protective
order. See Defs.' Suppl. Mot. Sanctions, Ex. 22, 23, ECF Nos. 34-22, 34-23. While the Court
does not consider the letters for purposes of the Motion to Dismiss, they are clearly relevant for
the purpose of Defendants' Motion for Sanctions, especially insofar as they evidence Attorney
Chandler's knowledge of and behind the scenes participation in the state divorce proceedings.
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the requested infonnation which he was declining to produce.
See PI.'s Mot. Compel
Disc., ECF No. 34-3; State Ct. Docket, ECF No. 30-1.
On December I, 2014, Mr. Bailey, through his counsel Mr. Nugent, filed an
opposition to the Motion to Compel, yet again asserting that the materials were protected
trade secrets and that they affected national security interests. See Def.'s Resp. PI.'s Mot.
Compel, ECF No. 34-4. Among other arguments, Mr. Bailey's opposition stated that as
an alternative solution to an Order to Compel, "[a] protective order that satisfies Zegato
Solutions and their counsel represents a start. From there, Defendant can produce
business-related documents without fear of compromising his security clearance and that
of the company."
Id. ~ 7.
From all this, there could be no mistaking that everyone-most
Bailey, Mr. Nugent, and Mr. Chandler-understood
pointedly Mr.
that the proper venue to hash out
access to and use of Mr. Bailey's supposedly secret data was in the state court, and that
that should be done before the same Judge Asti who had handled Mr. Bailey's earlier
request for a protective order.
B.
But then began a series of actions by Mr. Bailey and Mr. Chandler that were
intended to work to the extreme prejudice of Mrs. Bailey and the JGL Defendants.
On December 10,2014,
ten days after Mr. Nugent suggested to the state judge
that a satisfactory protective order with respect to the purportedly secretive materials
might be worked out, Zegato LLC, acting through its counsel, Mr. Chandler, with the
authorization and approval ofMr. Bailey, filed a Complaint in Federal Court against Mrs.
Bailey and the JGL Defendants, see Compl., Zegalo Travel Solutions. LLC v. Geraldine
-12-
M Bailey et aI., Civ. No. 14-3808 (D. Md. 2014) (the "First Federal Case"). This case,
as it turned out, was so obviously deficient that the Judge assigned to the case, the
Honorable Theodore Chuang, dismissed it out of hand, without permitting it to be served
on Defendants.
The Complaint in the First Federal Case largely tracks the factual allegations in
the Complaint in this, the Second Federal Case, but notably adds more: it specifically
alleges that Mrs. Bailey, who was named as a Defendant in the First Federal Case,
"raided [Donald Bailey's] home office" and "stole 813 pages of confidential material and
stole Donald[ Bailey's] private possessions ... and delivered them to her attorney, Steve
Friedman Esq."
First Federal Case, Compl. at 5, ECF No. 1.14 The Complaint in the
First Federal Case went on to allege that the defendants' conduct violated 18 U.S.C.
1832, which criminalizes the misappropriation
9
of trade secrets, as well as Section 11-
1201 of the Maryland Uniform Trade Secrets Act. Id. at 6-7. Zegato LLC also moved
for an ex parte temporary restraining order and a preliminary injunction.
First Federal
Case, PI.'s Mot. T.R.G., ECF NO.2.
Judge Chuang did not wait for the defendants to answer this First Federal Case,
but instead immediately issued a sua sponte order to Zegato LLC to show cause why the
action should not be dismissed for lack of subject matter jurisdiction.
First Federal Case,
14 The Complaint in the First Federal Case also alleges that "People knew Zegato better than
Aldmyr, therefore later Zegato was incorporated and eventually became ZEGATO TRAVEL
SOLUTIONS, LLC. HOLDER OF ALL INTELLECTUAL PROPERTY BY ASSIGNMENT
FROM ALL ENTITIES." First Federal Case, CompI. at 4 (capitalization in original). This oddly
structured and fonnalled sentence, read in context, appears to allege that Zegato LLC holds the
intellectual property rights, presumably including copyrights, for the Zegato Travel System
computer code. Such an allegation contradicts the allegations in the instant case that Aldmyr and
Zegato, Inc. are the owners of the copyrights for the Zegato Travel System computer code. It also
raises questions about the adequacy of Mr. Chandler's pre-filing investigation in both the First
and Second Federal Cases.
-13-
Show Cause Order, ECF NO.4.
The next week, legato
LLC responded by filing an
Amended Complaint. First Federal Case, Amend. Compl., ECF NO.6. But on December
22, Judge Chuang issued a Memorandum Order dismissing the First Federal Case for lack
First Federal Case, Memo. Order, ECF NO.8.
of subject matter jurisdiction.
In his Memorandum Order of Dismissal, Judge Chuang pointed out that legato
LLC had alleged federal question jurisdiction by asserting a claim under 18 U.S.C.
S
1832. Title 18 is the Crimes and Criminal Procedure Title of the United States Code, but,
as he pointed out, the statute does not create a right for private citizens to institute a
criminal prosecution or enforce criminal statutes. See id at 3. Accordingly, any claim
made pursuant to 18 U.S.C.
S
1832 was not a proper cause of action and could not be the
basis for federal jurisdiction. As for diversity jurisdiction, Judge Chuang observed that
legato LLC's Amended Complaint had also pleaded that diversity of jurisdiction existed
because legato LLC was incorporated in the District of Columbia, whereas Mrs. Bailey
and the JGL Defendants were citizens of Maryland. But Judge Chuang pointed out that
legato LLC was a limited liability company, not a corporation, and that for purposes of
diversity jurisdiction, the citizenship of a limited liability company is determined by the
citizenship of all its members.
See id. at 2. Since the Amended Complaint in the First
Federal Case stated that "[aJII the interests of legato are owned by Donald Bailey ....
a
citizen of the state of Maryland," First Federal Case, Amend. Compl. ~ I, Judge Chuang
held that legato LLC was a citizen of Maryland, so that the parties were not diverse, and
that the court also lacked subject matter jurisdiction over the misappropriation claim on
that basis.
See First Federal Case, Memo. Order at 2-3.
Judge Chuang also took the
occasion to note that while Zegato LLC, in its initial Complaint, had pleaded that its
.14.
principal place of business was an address in Lanham, Maryland, in the Amended
Complaint, without the least explanation, legato LLC suddenly altered this fact, alleging
instead that its principal place of business was in Washington, D.C. See id. at 3 n.!. Yet,
as Judge Chuang further noted, contrary to this attempted change of address in the body
of the pleadings, the caption of legato
LLC's Amended Complaint and legato
own motion continued to indicate that legato
LLC's
LLC was headquartered at the Lanham,
Maryland address. See id. So much for the quality of the pleading in the First Federal
Case.
On April 3, 2015, approximately four months after dismissal of the First Federal
Case, Mr. Chandler, on behalf of Aldmyr and legato,
Inc., filed the Complaint in the
present case. Compl., ECF NO.1, ("Second Federal Case" or "present case").
During the period between the two Federal cases, and after the present case was
filed, the parties to the divorce proceedings continued the discovery dispute, still unable
I-
to reach agreement as to a protective order. '
Back in state court, on May 4 and 5, 2015, a show cause hearing was held before
Judge Asti regarding Mr. Bailey's failure to comply with the court's February 5, 2015
pendente lite order that he pay Mrs. Bailey alimony and legal fees_ See State Ct. Hr'g Tr.
3:18-5:16, May 5, 2015, ECF No. 34-8. As it happens, the parties were able to reach an
According to an exchange of letters between Mr. Friedman and Mr. Nugent, filed by the JGL
Defendants as an exhibit to their Supplemental to Motion for Sanctions, in late March 2015, Mr.
Nugent and Mr. Friedman resumed the negotiations over a protective order. Defs.' Suppl. Mot.
Sanctions, Ex. 22, 23, ECF Nos. 34-22, 34-23. On March 20, 2015, Mr. Nugent emailed Mr.
Friedman a new draft of the protective order stating, "[w]ith all this said, [ cannot speak for the
company and will not weigh in on the company's objections. If you are not able to accept this
version, I have to direct you to The Chandler Law Finn for further discussions." Defs.' Suppl.
Mot. Sanctions, Ex. 23 at 3, ("March 2015 Emails••
).ECFNo.34-23.Mr.Friedman
's letter
response explained his objections to Mr. Nugent's draft, noting that "[i]t took 4 months to get a
response to my proposed Protective Order[.]" Id. at I.
15
-15-
agreement as to implementation of the pendente lite order. But Judge Asti also granted
Mrs. Bailey's
Motion to Compel, ordering Mr. Bailey to cure deficiencies
in his
responses to Plaintiff's First Set of Interrogatories and produce the documents Mr. Bailey
and Mr. Nugent were attempting to withhold. See State Ct. Disc. Order, ECF No. 34-9.
At the May 5, 2015 state court hearing, the parties continued to debate the terms
of a possible protective order.
Mr. Nugent explained that while there were attempts to
work out a protective order to at least get the parties through discovery, Mr. Friedman's
counterproposals were not acceptable to Mr. Bailey's companies.
See State Ct. Hr'g Tr.
35:16-36:13, May 5, 2015. At that point, according to Mr. Nugent, he was "trying to get
the company and counsel for Mrs. Bailey to talk about coming up with a protective
order," id. 39:21-22, and that he was ':iust serving as a referee role." Id. 39:23.
At the state court hearing, the parties also disputed whether the temporary seal
should be lifted on the transcript to a December 18, 2014 hearing, at which Mr. Bailey
had testified to his ownership and control over the corporate Plaintiffs. See State Ct. Hr' g
Tr. 140:16-25, 142:23-144:25, Dec. 18,2014, ECF No. 13-1. Mr. Nugent asserted that
the companies'
counsel
16
would need to address need for a permanent seal to protect
trade secrets and national security concerns. See id. 39:23-40:20.
Judge Asti continued
the hearing until May 11, 2015, id. 42:5-15, but inexplicably neither Mr. Chandler nor
any other counsel for the corporate Plaintiffs appeared at the hearing to speak in
opposition.
See Defs.' Suppl. Mot. Sanctions at 6, ECF No. 34; Mot. Dismiss Hr'g Tr.
16:20-17:9, Aug. 3, 2015, ECF No. 20; Mot. Sanctions Hr'g Tr. 73:5-20, Jan. 5, 2016,
ECF No. 38.
16
Judge Asti thereupon granted Mrs. Bailey's
Motion to Unseal the
There can be no mistaking that Mr. Nugent was referring to Mr. Chandler.
-16-
transcripts from the December 18, 2014 hearing.
Civil Hr' g Sheet, May II, 20 IS, ECF
No. 34-11.
The parties' discovery dispute in the state court continued throughout June 2015.
However, on June 30, 2015-given
that they had been sued in the present Federal Case
by Mr. Chandler, on behalf of Aldmyr, Zegato, Inc., and (as the Court will discuss infra)
Mr. Bailey-the
JGL Defendants filed a Motion to Withdraw Appearance from the state
court proceeding, which the state court granted on July 20, 20 IS. See State Ct. Docket,
ECF No. 30- I.
According to the docket in that case, no other counsel entered an
appearance on behalf of Mrs. Bailey, and, on November 6, 20 IS, Mrs. Bailey, still listed
as acting pro se, moved to dismiss the state court case. See id.
II.
Judge Chuang's Memorandum Order of Dismissal of the First Federal case issued
on December 22, 2014. Approximately four months later, on April 3, 20 IS, the instant
action was filed but was assigned to this member of the Court rather than Judge
Chuang.
17
And in the present case-the
mysteriously disappeared as a defendant.
forward.
Second Federal Case-Mrs.
Bailey has
Only the JGL Defendants have been carried
Plaintiffs in the instant action-Aldmyr
and Zegato, InC.-are
supposedly
distinct entities from Zegato LLC, the plaintiff in the First Federal Case. IS Mr. Chandler,
however, is the same attorney who represented Zegato LLC in the First Federal Case, and
For some reason, although the Complaint in the present case was filed on April 2, 2015, Mr.
Chandler indicated that service was made on February 23, 2015. Compl. at 15.
18 The Court notes that legato LLC is not one of the two Plaintiffs in the present case, which are
Aldmyr and legato, Inc. Geraldine Bailey's presence in the First Federal Case and her absence
from the current suit strongly suggest that a conscious decision was made to try to distance the
current litigation from the state divorce proceedings.
17
-17-
is also the one who filed the present suit, appearing as counsel for the two corporate
Plaintiffs.
19
The present Complaint posited two claims for relief against the JGL Defendants:
(I)
copyright
infringement,
in violation
of 17 U.S.c.
S
101 el seq., and (2)
misappropriation of trade secrets, in violation of Md. Code Ann., Com. Law
S
11-1201.
Plaintiffs asked for injunctive relief, statutory damages, attorneys' fees, and costs.
The JGL Defendants filed a Motion to Dismiss the Complaint, ECF No.5,
Plaintiffs responded, ECF NO.8, and the JGL Defendants replied, ECF No. 10. Then
about a month after the JGL Defendants filed their reply, Plaintiffs filed what they styled
as a "Motion for Partial Summary Judgment."
ECF No. II. The latter pleading by
Plaintiffs, however, is nothing more than an unauthorized surreply. But even viewed as
an independent Motion, the Motion, while reciting the standards for determining
motion for summary judgment,
a
does not begin to explain why no genuine issue of
material fact might exist as to Plaintiffs' copyright claim, such that Plaintiffs should be
entitled to summary judgment.
Indeed, the Motion simply responds one more time to
arguments raised by the JGL Defendants in their Motion to Dismiss and in their reply to
Plaintiffs' Opposition to that Motion. Since the Court construes Plaintiffs' Motion for
Partial Summary Judgment for what it really is, an unauthorized repetitive surreply to the
JGL Defendants' Motion to Dismiss, the Court will strike the Plaintiffs' Motion.2°
19 The Court observes that under the signature line of the Complaint, Mr. Chandler describes
himself as the "Agent of Aldmyr Systems, Inc., legato and legato Travel Solutions, Inc."
Compl. at 15. It is unclear what "legato's" interest may be in the present suit, or why Mr.
Chandler would be acting as its agent by filing a lawsuit on behalf of two other separate legal
entities.
20 Plaintiffs filed two other unauthorized surreplies, both styled as a Response in Opposition to
Motion for Sanctions, and both of which will also be stricken. See Pis.' Resp. Opp'n Mot.
Sanctions. ECF No. 31; Pis.' Resp. Opp'n Mot. Sanctions, ECF No. 37.
• 18-
On August 3, 2015, the Court held oral argument on the JGL Defendants' Motion
to Dismiss, at the conclusion of which the Court held that the present suit did not belong
in federal court, because it was essentially a ploy intended to end-run the pending state
court divorce proceedings and to gain an unfair advantage there. See Mot. Dismiss Hr' g
Tr. 21 :6-19, Aug. 3, 2015, ECF No. 20. In particular, the Court noted its concern that the
suit clearly implicated the strong possibility of sanctions under Federal Rule of Procedure
II.
Id. 21 :20-24. But while the Court indicated that it would be disposed to entertain a
Motion for Sanctions by JGL Defendants, if they so chose, given that Defendants might
prefer to conserve further time and expense in the matter, the Court indicated it would
leave it up to Defendants to decide whether to file such a Motion. See id. 29:7-32: 14.
On August 13,2015, the JGL Defendants did in fact move for Rule II sanctions
against Plaintiffs and Attorney Chandler. Attached as exhibits to their Motion were letters
exchanged between counsel in June 2015. In one letter, Shirlie Lake, Esquire, counsel
for the JGL Defendants, served Mr. Chandler with a copy of a proposed Motion for
Sanctions, in which she indicated that she intended to file if the Complaint was not
withdrawn in 21 days. Defs.' Mot. Sanctions, Ex. I, ECF No. 17-1; see Fed. R. Civ. Pro.
II (c)(2).
Mr. Chandler responded with a letter rejecting any suggestion that his suit
violated Rule 11. See Defs.' Mot. Sanctions, Ex. 2, ECF No. 17-2.
In view of what the Court took to be an intimate nexus between the current
litigation and the divorce proceedings, on August 14, 2015, the Court sua sponte issued a
Memorandum
Order directing Mr. Bailey to Show Cause why, along with corporate
Plaintiffs and Mr. Chandler, he too should not be held liable for any sanctions imposed
-19-
against the Plaintiffs inasmuch as he, at all relevant times, may have been functioning as
the alter ego of the two corporate Plaintiffs. Show Cause Order, ECF No. 18.
On January 5, 2016, the Court held a hearing on the Motion for Sanctions and the
Show Cause Order, at which Mr. Chandler appeared, but Mr. Bailey did not. See Mot.
Sanctions Hr'g Tr. 2:12-20, Jan. 5,2016, ECF No. 38.
When the Court inquired of Mr. Chandler why Mr. Bailey had not appeared, Mr.
Chandler responded that he did not represent Mr. Bailey; that Mr. Bailey was traveling;
and that the Court could have subpoenaed Mr. Bailey ifit had wanted to. ld. 2:12-3:10,
36:9-20.
Apparently lost on Mr. Chandler was the fact that Mr. Bailey, as the possible
100% owner and unquestionably the controlling shareholder of the corporate Plaintiffs,
might well be held liable for sanctions in the present case as the alter ego of the
corporations
and that the show cause hearing was scheduled to give Mr. Bailey an
opportunity to indicate why he should not be held liable. Mr. Bailey could choose to be
present or not-the
Court did not need to subpoena him-but
proceed without him if he chose to not appear.
the Court was prepared to
Mr. Bailey had his opportunity to be
heard on the issue of his alter ego status, did not show cause, and the time has now passed
for him to be heard.21
III.
The Court deems the present action for alleged copyright infringement and theft
of trade secrets as nothing more than a thinly veiled, too-clever-by-half effort to gain an
unfair advantage in a state divorce proceeding.
The entire issue of the actions of
Geraldine Bailey, Mr. Friedman, and JGL vis-a-vis Mr. Bailey's documents could have
Mr. Chandler's surprising curtness with the Court at the hearing is a separate matter that cannot
pass unremarked.
21
-20.
been, should have been, and indeed, essentially had been, decided by Judge Asti in the
state divorce proceedings.
Were there any doubt as to the scope of her ruling-whether
she meant to leave the Motion for Protective Order unresolved while denying the Motion
to Quash Subpoena (this Court believes she did not intend to do so)-Judge
Asti was the
proper decider. The present suit, totally without justification, bypassed that single, direct
route, and as a result, Mrs. Bailey was deprived of her counsel, inordinate delay resulted,
Mr. Friedman and JGL lost an employment opportunity, and what is more important,
suffered considerable expense and harassment, quite possibly as well injury to their
professional reputations.
Domestic relations cases are traditionally matters within the exclusive purview of
state, not federal, courts. What is known as the domestic relations exception "divests the
federal courts of power
to issue divorce,
alimony,
Ankenbrandt v. Richards, 504 U.S. 689, 703,112
and child custody
decrees."
S. Cl. 2206, 2215, 119 L. Ed. 2d 468
(1992); Mansell v. Mansell, 490 U.S. 581, 587,109 S. Cl. 2023, 2028,104 L. Ed. 2d 675
(1989) ("[D]omestic relations are preeminently matters of state law ....
"); accord Cole
v. Cole, 633 F.2d 1083, 1087 (4th Cir. 1980); see also McNeil v. Maryland, No. DKC 112495,2012 WL 3643899, at *7 (D. Md. Aug. 22, 2012), aff'd, 505 F. App'x 279 (4th Cir.
2013) (dismissing under Rooker-Feldman doctrine claims seeking review of adverse state
court domestic relations decisions, or matters "inexplicably
intertwined"
with such
decisions); AI-Mansour v. Shraim, No. CCB-11-2939, 2012 WL 983785, at *4 (D. Md.
Mar. 21, 2012) (abstaining
under Younger doctrine from plaintiff's
-21-
request for a
declaratory
judgment
that she was not obligated
to pay child support obligations,
in light
of ongoing state court child support suit).22
The rationale
of the
states
characterize
of the rule is clear.
because
domestic
intimate
relations
personal
relations
domestic
relations proceedings
claims,
relations
issues,
proceedings,
rather than federal courts to resolve.
domestic
Domestic
often
highly
emotional
Accordingly,
efforts to litigate what are essentially
have occasioned
interference
dismissed.
federal copyright
with the pending
Even in cases in which
or intellectual
property
state case.
See, e.g.,
Moss v. Moss Tubes, Inc., No. 96 CV 1407, 1997 WL 727611, at *3 (N.D.N.Y.
1997) ("[A]
stay is appropriate
of patent law, the state court's
in this instance ....
disposition
in nature,
which are far belter suited for local courts
cases in federal court are routinely
federal courts have avoided
cases are within the purview
Regardless
of this Court's
Aug. 21,
application
of marital assets at issue will have a profound
There are a few exceptions to the general rule. The Fourth Circuit has noted that "not all family
feuds ... fall directly into the specialized category of true domestic relations cases (primarily
divorce, alimony, child custody and support). A district court may not simply avoid all diversity
cases having intrafamily aspects. Rather it must consider the exact nature of the rights asserted or
of the breaches alleged." Cole, 633 F.2d at 1088. The Fourth Circuit has also held that the
jurisdictional exception is applied only as a judicially implied limitation on diversity jurisdiction;
it has no generally recognized application as a limitation on federal question jurisdiction. See
United States v. Johnson, 114 F.3d 476, 481 (4th Cir. 1997). In marked contrast, Courts of
Appeal outside the Fourth Circuit are divided as to whether the doctrine is limited to diversity
claims. See, e.g., Mandel v. Town of Orleans, 326 F.3d 267, 271 (1st Cif. 2003) (noting that
courts are divided but declining to decide the issue); Thompson v. Thompson, 798 F.2d 1547,
1558 (9th Cif. 1986), affd, 484 U.S. 174, 108 S. Ct. 513, 98 L. Ed. 2d 512 (1988); see also Jones
v. Brennan, 465 F.3d 304, 307 (7th Cir. 2006) (Posner, J.) ("There is no good reason to strain to
give a different meaning to the identical language in the diversity and federal-question statutes.
The best contemporary reasons for keeping federal courts out of the business of ... granting
divorces and annulments, administering decedents' estates, [and] approving child adoptions ...
are as persuasive when a suit is filed in federal court on the basis of federal law as when it is
based on state law."). In any case, the Fourth Circuit's language does not preclude rejection of a
state-based domestic relations-related case that seeks to assert a federal question claim in federal
court "where a wholly frivolous federal claim serves as a pretext to allow a state-law issue, the
real focus of the claim, to be litigated in the federal system." Lovern v. Edwards, 190 F.3d 648,
655 (4th Cif. 1999).
12
-22-
impact here."); Stein v. Sayer, No. 97 CIV. 1317(MBM),
1997 WL 104967, at *1
(S.D.N.Y. Mar. 10, 1997).
It cannot be doubted that discovery related to the existence and nature of marital
assets in a divorce proceeding is four-square a matter of state rather than federal court
concern.
In the course of virtually every divorce proceeding, in Maryland or elsewhere, an
assessment of the value of marital assets is necessary for purposes of determining the
equitable distribution of property as between the spouses, and indeed for purposes of
determining the amounts, if any, of alimony and child support to be paid. See Md. Code
Ann., Fam. Law
SS
8-203, 8-204; see, e.g., Innerbichler v. Innerbichler, 132 Md. App.
207, 752 A.2d 291 (Md. Ct. Spec. App. 2000) (reviewing corporate assets for equitable
distribution); Long v. Long, 129 Md. App. 554, 568-73, 743 A.2d 281, 289-91 (Md. Ct.
Spec. App. 2000) (conducting valuation of husband's companies). There is no question
that, should one spouse attempt to shield or conceal his or her assets, any state divorce
court would without question order appropriate
responses to interrogatories
production of relevant business documents for evaluation purposes, with-to
or the
be sure-
appropriate confidentiality protections. In the context of divorce proceedings, state courts
routinely consider trademarked, patented, and copyrighted material for the purposes of
determining marital property. See, e.g., In re Marriage a/Worth,
195 Cal. App. 3d 768,
241 Cal. Rptr. 135 (Cal. Ct. App. 1987) (affirming that copyrights on husband's books
were community property).
Merely reciting the facts of the present case exposes its sham nature.
After Mr.
Bailey and his state court counsel refused to provide them, Mrs. Bailey found documents
-23-
or materials purportedly containing a copyrighted source code and alleged trade secrets
related to Mr. Bailey's business that he had left in the marital home. Mrs. Bailey then
turned the materials over to her attorney, who copied them, and then made them available
to an expert for valuation purposes in the divorce proceedings.
As he pled in the First
Federal Case, Mr. Chandler (who claims that the present suit is independent of the state
court proceedings and that "[Mr. Bailey is] not my client," Mot. Sanctions Hr'g Tr. 2:20)
alleged that Mrs. Bailey had stolen the materials, then gave them to her confederates who
themselves went on to use them in an improper way. See Lejeune v. Coin Acceptors.
Inc., 381 Md. 288, 313,849 A.2d 451, 466 (Md. 2004) ("[A] trade secret is acquired by
'improper means' when it has been acquired by 'theft, bribery, misrepresentation,
breach
or inducement of a breach of duty to maintain secrecy, or espionage through electronic or
other means.''') (quoting Md. Code Ann. Com. Law
S
11-1201(b)).
But to argue that a divorcing wife who gains access to her husband's business
materials in order to have her attorney attempt to value them in a divorce proceeding is a
,.thief' and that her attorney is a "thief," subjecting them to criminal or civil liability as
such, makes a mockery of what divorce proceedings are all about. Furtive access to an
adversary spouse's "private" information left in the marital home happens all the time
and has surely occurred from time out of mind, particularly with regard to the need to
discover concealed marital assets.
The fact that a wife may come across a husband's
business (even allegedly "private") papers and materials in the marital home and either
take possession of or copy them is hardly a basis for a claim of theft of trade secrets or
copyright infringement.
If that were so, every spouse--even
in divorce proceedings-who
those not actively engaged
merely peeked at the other spouse's "private" papers might
-24-
end up being hauled into court for invasion of privacy or, if she went so far as to or copy
the papers, might find herself defending a criminal as well as civil action. The fact that a
wife might tum the materials she finds over to her attorney in the divorce proceeding, and
that the attorney might send them to an asset valuation expert, is equally commonplace.
The wife is entitled to know her husband's true worth, especially where she has good
reason to believe he may be underreporting, concealing, or stonewalling the production of
financial information.
Every attorney who might look at or analyze information supplied
by a wife who came into possession of any materials from her husband that the husband
did not expressly authorize her to possess-purportedly
top secret or not-would
then be
forced to fight a costly rear guard battle, just as the JGL Defendants have been required
to do here, that has nothing at all to do with the merits of the divorce case, and, because
of the conflict of interest the attorney would be placed in, would be forced to withdraw
from the state court proceeding.
But there is more:
Had there been anything
possession
of the documents
improper about the way Mrs. Bailey came into
and materials
from the marital home that she had
unsuccessfully requested Mr. Bailey to produce in discovery, or had there been anything
improper about the way in which the JGL Defendants electronically stored or transferred
these documents, Mr. Bailey had every opportunity to request a protective order from the
state judge.
What clinches the sham nature of the present suit is that the state court actually
did consider Mr. Bailey's assertions of the need for protection of his alleged trade secrets
and national security materials. When Mrs. Bailey and Mr. Friedman sought similar
.25-
materials in connection with the deposition of a bank official with respect to Mr. Bailey's
corporate accounts, Mr. Bailey sought protection of trade secrets and national security
concerns in his "Motion for Protective Order and to Quash Subpoena Duces Tecum to
Protect Trade Secrets, Confidential Information and Proprietary Information."
See Def.'s
Mot. Protect. Order & Quash Subpoena, ECF No. 17-5. That Motion sought a broad
protective
order
covering
all
trade
information, and financial information.
secrets,
proprietary
information,
privileged
See id. It should be remembered that, up to that
point, Mr. Bailey had not only stonewalled information about his income, he had also
refused to answer interrogatories
or produce documents related to the companies he
owned an interest in, including the corporate Plaintiffs here. Judge Asti denied Mr.
Bailey's Motion for Protective Order and to Quash Subpoena23 and eventually granted
Mrs. Bailey's motion to compel Mr. Bailey to answer the interrogatories and produce
documents, although-yet
again-Mr.
protection from the state judge.
Bailey and his attorney sought no further order of
See State Ct. Docket, ECF No. 30-1; State Ct. Disc.
Order, ECF No. 34-9.
Equally important, Mrs. Bailey's divorce counsel, Mr. Friedman, had offered to
execute a reasonable confidentiality order to protect trade secrets. While the parties went
back and forth over the precise
details
of the protective
order,
Mr. Friedman
The Court finds Mr. Chandler's argument that Judge Asti ruled only on the Motion to Quash,
but not the Motion for Protective Order, is not only disingenuous but ultimately irrelevant. Mr.
Bailey and his state court counsel, Mr. Nugent, could have and should have gone back to Judge
Asti for clarification, and Mr. Chandler knew this full well. In addition, Mr. Chandler appeared
to admit at the hearing at the Motion to Dismiss in this case that Mrs. Bailey and her counsel were
entitled to the documents, stating "[t]here has never been an issue as to whether or not Mr.
Friedman or Mrs. Bailey would have access to the material. The issue is copying ... ." Mot.
Dismiss Hr'g Tr. 33: 15-17, ECF No. 20. This late-conceived statement clearly flies in the face of
the extreme allegations Mr. Chandler pursued in the First Federal Case that Mrs. Bailey had
"stolen" the materials and misappropriated trade secrets.
23
-26-
communicated to Mr. Bailey's counsel, Mr. Nugent, that the proposed order might serve
as a basis for a future negotiated order. See Defs.' Supp!. Mot. Sanctions, Ex. 19, 20, 21,
ECF Nos. 34-19, 34-20, 34-21.
But at the very same time the protective order was being discussed in the state
proceedings, the highly-flawed First Federal Case was filed in this Court. Mr. Nugent's
statements in the divorce proceedings further confirm that he had referred the issues of
the protective order to Mr. Chandler, counsel for the corporate Plaintiffs in the present
suit, who objected to Mr. Friedman's counterproposals even after the First Federal Case
was dismissed. State Ct. Hr'g Tr. 35:16-36:13, 39:21-23, May 5, 2015, ECF No. 34-8.
The inescapable fact is that the copyright and trade secret claims in this suit were
nothing more than a crafty attempt to pursue in parallel litigation in federal court an issue
that was either already decided by the state court or which could have been or should
have been for the state court to decide, namely access to and the use of purportedly
sensitive
materials
relevant
to the determination
of marital assets in the divorce
proceeding. In sum, despite the superficial federal question nature of this suit, the real
purpose is plainly a domestic relations issue that belongs to the Maryland state court. It
does not belong in federal court. See Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir.
1999) ("(FJederal courts must guard against the litigant who frames a pretextual federal
issue solely for the purpose of having a state-law claim adjudicated in the federal system .
. . ."); Firestone v. Cleveland Trust Co., 654 F.2d 1212, 1215 (6th Cir. 1981) ("Even
when brought under the guise of a federal question action, a suit whose substance is
domestic relations generally will not be entertained in a federal court."); see also McNeil
v. Maryland, No. DKC 11-2495,2012
WL 3643899, at *7 (D. Md. Aug. 22, 2012) aff'd,
-27-
505 F. App'x 279 (4th Cir. 2013) (dismissing
under Rooker-Feldman
state claims seeking review of adverse state court domestic
"inexplicably
2939,2012
with such decisions);
relations
AI-Mansour
decisions,
v. Shraim,
or matters
No. CCB-Il-
WL 983785, at *4 (D. Md. Mar. 21,2012).
For
Plaintiffs'
intertwined"
doctrine federal and
the
foregoing
reasons,
claims for federal copyright
under Maryland
law.
the
Court
infringement
DISMISSES
WITH
and misappropriation
PREJUDICE
of trade secrets
24
IV.
The Court turns to the JGL Defendants'
Motion for Sanctions.
A.
Rule
pleading,
11(b) of the Federal
written motion,
Rules of Civil Procedure
provides
or other paper is either signed by or advocated
that whenever
a
by an attorney,
24 In the alternative, the Court would conclude that the suit must be dismissed for failure to state a
claim. To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff
must plead facts sufficient to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L..Ed.2d 929 (2007). This standard
requires "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009). Although a court will accept
factual allegations as true, "[tJhreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice." Id.
To recover on their copyright claim, Plaintiffs would have to show that they owned a valid
copyright and that the JGL Defendants encroached upon one of the exclusive rights it conferred,
such as the control of reproduction, distribution, and perforrnance or display of the original, as
well as the production of derivative works. See 17 U.S.c. ~ 501(a); Avtec Sys .. Inc. v. Peiffer, 21
F.3d 568, 571 (4th Cir. 1994)(citing 17 U.S.C. ~ 106).
The JGL Defendants contend that, even assuming arguendo Plaintiffs have plausibly alleged
that they own a valid copyright, and that the JGL Defendants have infringed upon the exclusive
control of reproduction and distribution of said copyright, the Complaint must be dismissed
because a valid fair use defense, i.e. its use in litigation, appears on the face of the Complaint.
The Court agrees. See 17 U.S.C. ~ 107; Bond v. Blum, 317 F.3d 385, 394 (4th Cir. 2003) (finding
the defendants' use of plaintiff's entire copyrighted work for its evidentiary value in a childcustody proceeding fell within the scope of fair use under 17 U.S.C. ~ 107); Denison v. Larkin, 64
F. Supp. 3d 1127, 1133 (N.D. Ill. 2014) ("The House Committee on the Judiciary explicitly listed
'reproduction of a work in legislative or judicial proceedings or reports' as an example of a fair
use.") (quoting H.R. Rep. No. 94-1476, 65 (1976»; Stern v. Does, 978 F. Supp. 2d 1031, 104748 (C.D. Cal. 2011) ("Reproduction of copyrighted material in litigation or potential litigation is
generally fair use .... ") (citing cases).
-28-
the attorney certifies that, to the best of his knowledge, information and belief, formed
after an inquiry reasonable under the circumstances, the factual and legal contentions are
warranted, and that "it is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost oflitigation.,,25
Fed. R. Civ. Pro.
II (b).
The reasonable inquiry requirement under Rule 11(b) mandates that, prior to
filing the pleading, an attorney must conduct a reasonable investigation to determine
three things: (I) whether the complaint was filed for an improper purpose, (2) the factual
basis for the claims, and (3) the legal basis for the claims. See In re Kunts/er, 914 F.2d
505, 513 (4th CiT. 1990).
To determine whether the attorney signatory had an "improper purpose"
bringing the suit, the court applies an objective standard of reasonableness
in
to the
signatory's conduct. See In re Weiss, III F.3d 1159, 1171 (4th CiT. 1997) (citing In Re
Kunst/er, 914 F.2d 505, 518) (4th CiT. 1990). The court considers objective evidence of
the attorney's motive, including circumstantial facts related to the filing of the document,
in assessing whether the purpose is improper. See id.
The Court finds that the JGL Defendants have complied with Rule I I(c)(2) in that counsel for
Defendants, Ms. Lake, sent counsel for Plaintiffs, Mr. Chandler, a lener on June 19,2015 with a
proposed Motion for Sanctions enclosed. See Defs.' Mot. Sanctions, Ex. I, ECF No. 17-1. Mr.
Chandler responded on July 11,2015 with a letter rejecting Ms. Lake's request that Plaintiffs
voluntary dismiss the Complaint. See Defs.' Mot. Sanctions, Ex. 2, ECF No. 17-2. Mr.
Chandler's letter cc'd Mr. Bailey and Mr. Nugent. ld. Plaintiffs argue that the JGL Defendants
failed to serve them with the "exact copy" of the Motion for Sanctions they filed on August 13,
2015. Pis.' Resp. Opp'n Mot. Sanctions at 10-11, ECF No. 23-1. However, the redline version
of the Motion as filed on August 13,2015 compared to the one sent on June 19,2015 reveals only
minor stylistic edits and one new sentence noting that Plaintiffs filed a Motion for Partial
Summary Judgment. Defs.' Reply Mot. Sanctions, Ex. 2, ECF No. 25-2. Accordingly, the JGL
Defendants served Plaintiffs with the Motion for Sanctions at least 2 I days prior to filing it, as
required by Rule 11(c)(2).
25
-29-
An "improper purpose" under Rule II includes factors "such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation."
Fed. R. Civ. Pro.
II (b)(1). This list is not exhaustive. Courts have cited other factors such as the "filing of
suit as leverage in separate proceedings,
to obtain discovery for use in those other
proceedings, and to embarrass, intimidate, or harass." Myers v. Sessoms & Rogers, P.A.,
781 F. Supp. 2d 264, 268 (E.D.N.C. 2011) (citing In Re Kunstler, 914 F.2d at 519).
Circumstantial
facts indicating an improper purpose include "[r]epeated
filings, the
outrageous nature of the claims made, or a signer's experience in a particular area of law,
under which baseless claims have been made ... " as well as "the timing of the filing of
the complaint. ... " In re Kunstler, 914 F.2d at 519.
The Court's analysis of the purpose of the present suit begins with the observation
that the immediate effect of the suit was to force the withdrawal of Mr. Friedman and his
firm JGL as counsel for Mrs. Bailey in the domestic relations proceedings.
The suit,
which challenged the right of the JGL Defendants to possess and copy documents
obtained during those proceedings, put them in an impossible conflict of interest, as a
direct result of which they were obligated to withdraw as Mrs. Bailey's counsel.
Mrs. Bailey thereby lost the benefit of the experience
represented her from the beginning of her divorce proceedings,
of counsel who had
and was apparently
forced to proceed pro se (the docket in the state case does not show the appearance by
successive counsel).
See State Ct. Docket, ECF No. 3D-I.
At the same time, Mr.
Friedman, an accomplished domestic relations attorney, was not only forced to withdraw
as Mrs. Bailey's attorney, he was caused to incur fees in defense of this suit, and may
well have suffered a stain on his reputation by reason of the allegation in this suit that he
-30.
violated federal law. His finn has suffered an equivalent
potential tarnish.
economic prejudice and
Mr. Friedman and JGL have had to refer this suit to their malpractice
insurance carrier, which is providing their defense in the suit, and, as their malpractice
counsel has advised the court, will henceforth always be required to report Plaintiffs'
baseless claims on all manner of applications.
See Mot. Sanctions Hr'g Tr. 28:18-30:3,
Jan. 5 2016, ECF No. 38.
Who is responsible for these consequences?
To begin, it was Donald Bailey and Donald Bailey alone who was the sole
beneficiary of Mr. Friedman's and JGL's withdrawal as Mrs. Bailey's counsel, leaving
her unrepresented,
and it was that fact that enabled Mr. Bailey, who undeniably
controlled and de facto authorized the Second and the First Federal Cases, to gain
significant "leverage in separate proceedings,"
under Rule II(b).
another indicium of improper purpose
See Myers, 781 F. Supp. 2d at 268 (citing In Re Kunstler, 914 F.2d at
519).
Mr. Chandler, counsel for the corporate Plaintiffs here, was actively aware of and
indeed involved to a considerate extent in the state divorce proceedings,26 and thus had
ample reason to know that his actions in the First and Second Federal Cases would create
leverage for Mr. Bailey in the divorce proceedings.
and Mr. Friedman got his comeuppance.
Mr. Bailey's wife lost her attorney,
But that is only the beginning of the sorry facts
of this litigation.
According to Mr. Chandler, the Board of Directors of the Plaintiff corporations provided Mr.
Bailey with "Ioans" for legal fees in the divorce proceedings, including $60,000 in expenses paid
to the JGL Defendants for the purposes of an expert evaluation of corporate assets. Mot.
Sanctions Hr'g Tr. 48:22-49:2, 57:5-61:6, Jan. 5, 2016, ECF No. 38; see Pl.'s Opp'n Mot.
Protect. Order at 2-3, ECF No. 17.6.
26
.31.
Other relevant factors bearing on whether this suit was initiated in bad faith
require the Court to revisit facts already considered at length.
Mr. Bailey's behavior
showed gross inconsistency insofar as his asserted desire to protect trade secrets was
concerned. When the Motion to Quash access to corporate bank records was denied by
Judge Asti in the state court proceeding, Mr. Bailey did not follow up on Judge Asti's
ruling to seek clarification as to whether the Judge had also denied the protective order,
nor did he move for reconsideration, nor did he file for a separate protective order with
Judge Asti. Nor indeed did Mr. Bailey or his divorce counsel, Mr. Nugent, respond to
Mr. Friedman's proposed edits to a proposed protective order in November 2014, see
Defs.' Supp!. Mot. Sanctions, Ex. 21, ("Nov. 2014 Emails"), ECF No. 34-21, waiting
several months to do so, during which time the First Federal Case was filed and the
Second Federal Case was on the verge of being filed, even though Mr. Nugent stated in
an email toMr.Friedman
that he "passed along a copy to Aldmyr-Zegato's
counsel [i.e.
Mr. Chandler] to see if this suffices for them." Id. at 2; see Defs.' Supp!. Mot. Sanctions,
Ex. 23, ("March 2015 Emails"), ECF No. 34-23.
Instead, a mere two weeks alter Judge Asti denied Mr. Bailey's Motion for a
Protective Order and to Quash Subpoena, Mr. Bailey's company Zegato LLC (not a
Plaintiff here), filed the First Federal Case against Mrs. Bailey, Mr. Friedman, and his
finn.
See In re Kunst/er, 914 F.2d at 519 (noting that the timing of filing a complaint
may be an indicator of improper purpose). Then, within four months of dismissal of the
essentially botched First Federal Case, the present suit was filed. The proximity in time
between the at least apparent denial of protective relief by the state court judge and the
-32-
filing of the First Federal Case further suggests that the present federal litigation was
meant to retaliate for the unsuccessful result in state court.
In the interim, after the First Federal Case was dismissed, Mr. Bailey never
returned to state court to seek a protective order. See State Ct. Docket, ECF No. 30-1.
Letters between Mr. Nugent and Mr. Friedman show that Mr. Nugent responded on
March 20, 20 IS-four
November 2014-with
months after Mr. Friedman
a counterproposal
proposed an alternate draft in
for the protective order with what he said
"Zegato et al. find minimally acceptable."
See March 2015 Emails, ECF No. 34-23.
Although Mr. Nugent told Mr. Friedman in the email, "[i]f you are not able to accept this
version, I have to direct you to The Chandler Law Firm," id. at 3, within two weeks of
this exchange, Mr. Chandler, on behalf of the corporate Plaintiffs, filed the present
federal suit.
Incredibly, the corporate Plaintiffs, supposedly concerned about the "national
security" aspects of trade secrets and copyrighted material, have never filed a Motion to
Seal in the present case.27
Prior to the filing of this suit and the First Federal Case, only
the parties to the divorce proceedings, Mr. Chandler, the corporate Plaintiffs here, and
Mr. Bailey, were aware that the JGL Defendants were in possession of supposedly
sensitive corporate materials.
If Plaintiffs'
alleged trade secrets were, in fact, so
vulnerable to hackers as Plaintiffs' has counsel contended, their own actions in filing the
Federal suits may only have increased that risk. Not only is this laxness inconsistent with
the legitimate objective of protecting trade secrets, it is another reason leading the Court
In the body of their Opposition to Motion for Sanctions, well at the end of this case, Plaintiffs
for the first time requested that specific exhibits be sealed, but they have never filed a separate
motion to that effect. See Pis.' Resp. Opp'n Defs.' Mot. Sanctions at 1, ECF No. 23.
27
-33-
to conclude that the primary purpose of both this case and the First Federal case was to
gain leverage in the divorce proceedings.
The harassing nature of the suit is further evidenced by the frivolous nature of the
claims. See In Re Kunst/er, 914 F.2d at 519 (stating a court may infer an improper
purpose from the willful filing of baseless claims).
The idea that a spouse, by taking
papers pertaining to her husband's business that are in her home and by sharing them
with her attorney, risks violating federal copyright law or Maryland trade secret law-as
the Court earlier stated-is
nothing short of ridiculous.
In the context of domestic
relations proceedings, it is an entirely common practice for spouses-who
have unique access to each other's otherwise private information-to
invariably
search for asset
information and share that information with their attorneys, especially where the other
spouse may have tried to conceal or shield that information.28
The state court system is
perfectly well-equipped to manage the discovery and evaluation of all potential marital
property-including
copyright, trademarks, and the like-and
they are perfectly well-
equipped to enter appropriate protective orders.
The harassing nature of this suit is further exemplified by Plaintiffs' continuous
allegations that the JGL Defendants engaged in criminal activity. The First Federal Case
attempted to bring civil claims against Mrs. Bailey and the JGL Defendants under 18
u .S.c. S
1832, which, in fact, criminalizes
the misappropriation
of trade secrets.
Although Judge Chuang, in dismissing the case, aptly pointed out the inapplicable and
frivolous nature of such claims, the scattered filings in the present case, for some
Mr. Bailey, along the way, has asserted he was forced to leave the marital home by police, and
thus did not abandon the documents in his home office. See Pis.' Resp. Opp'n Mot. Sanctions at
7, EeF No. 27. It is irrelevant how or why he left the home; his assets remained relevant and
discoverable in the state divorce proceedings and were always protectable by an appropriately
solicited protective order in state court.
28
-34-
inexplicable reason, continue to cite 18 U.S.C.
statutes, as legal justifications
S
1832, as well as other federal criminal
for Plaintiffs' civil claims.
See, e.g., Compl. ~ 32; Pis.'
Resp. Opp'n Mot. Sanctions at 10, ECF No. 23-1; PIs.' Resp. Opp'n Mot. Sanctions at 9,
ECF No. 27; PIs.' Resp. Opp'n Suppl. Mot. Sanctions at 7, ECF No. 35. Why are there
such references in the present case? The Court can only conclude that the present Federal
Case as well as the First Federal Case were intended to carry forward Mr. Bailey's statebased skirmishes with Mrs. Bailey, Mr. Friedman, and JGL to the new battlefield of
federal court. Mr. Chandler's ineptitude in pleading the criminal statute as a civil claim
against Mrs. Bailey, then continuing to allude to it in the Second Federal Case, not only
suggests harassment, it clearly reflects the shallowness of his legal investigation in both
the state and federal litigation.
While the Court's primary concern under Rule 11(b) has been with the improper
purpose of this suit, its analysis also supports a finding that Plaintiffs'
counsel, Mr.
Chandler, failed to conduct a reasonable inquiry into the factual and legal background of
the state divorce proceedings or, what is more likely the case and what is worse, that he
knew full well what was going on in the state proceedings
(e.g. he was actively
commenting on the proposed protective orders being discussed and simply chose to
disregard what he knew). See Fed. R. Civ. Pro. 11(b) ("[A]n attorney ... certifies that ..
. the claims, defenses, and other legal contentions are warranted by existing law ... [and]
the factual contentions have evidentiary support ...
."); see, e.g., Morris v. Wachovia
Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006). A court may sanction an attorney for taking
a baseless legal position when, "applying a standard of objective reasonableness, it can be
said that a reasonable attorney in like circumstances could not have believed his actions
-35-
to be legally justified."
Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 153 (4th Cir.
2002) (quoting In re Sargent, 136 F.3d 349, 352 (4th Cir. 1998)) (quotation marks
omitted).
Mr. Chandler apparently concedes that he understood that the state court had
denied Donald Bailey's Motion to Quash, but argues that the state court did not rule on
the Motion for a Protective Order. Mot. Dismiss Hr'g Tr. 13:8-14:18, Aug. 3, 2015, ECF
No. 20. The Court emphatically does not agree. It may fairly be concluded that Judge
Asti ruled on the entire motion, including the Motion for Protective Order. In fact, by
implication, denial of the Motion to Quash by itself meant that Mrs. Bailey and her
counsel were being granted access to any and all material the bank might possess,
including the supposedly sensitive material, even without any protective order in place.
Not surprisingly, at the hearings on Defendants' Motion to Dismiss and on Defendants'
Motion for Sanctions, Mr. Chandler clearly ducked the Court's questions as to why he
did not go back to the state court to obtain the desired protection.29 The scope of
The following is taken from the Motion to Dismiss hearing:
The Court: Did you seek a protective order?
Mr. Chandler: Yes
The Court: In state court?
Mr. Chandler: Yes. It was left open. No decision because Mr. Friedman and Mr. Nugent
was to negotiate.
The Court: Why didn't you go back to the state court judge?
Mr. Chandler: No. Mr. Friedman said that I have to have-he has to have the right to
decideThe Court: Why didn't you go back to the state court judge?
Mr. Chandler: I wasn't involved in that.
Mot. Dismiss Hr'g Tr. 34: 13-24, Aug. 3, 2015, ECF No. 20.
29
The following is taken from the Motion for Sanctions hearing:
The Court: Did you not know that [Mr. Nugent] sought protection of misappropriation __
he sought protection against the appropriation of trade secrets in this proposed order? ...
Mr. Chandler: No. What I understand, I did send Mr. Nugent a sample of a trade secret
agreement which he could follow and decided what he wanted to do and whatever he did,
-36-
discovery in the state court proceedings had been already fairly identified. For Mr.
Chandler-who
was, by the way, one of the three directors on Plaintiff Aldmyr's Board
of Directors (the other two being Mr. Bailey and his brother, Lamont Bailey, who
purportedly owns a 10% interest)-to
follow up two weeks later with a suit in federal
court based on the JGL Defendants'
possession and copying of the same documents,
demonstrates
an unjustifiable
lack of investigation,
if not outright malice, on Mr.
Chandler's part. This concerning behavior is emphasized by the fact that Mr. Nugent's
emails indicate that, while Mr. Friedman's proposed edits to the protective order were
passed on to Mr. Chandler for review in November 2014, see Nov. 2014 Emails, ECF
No. 34-21-a
point which Mr. Chandler appeared to confirm at the hearing on the
Motion for Sanctions-Mot.
Sanctions Hr'g Tr. 14:2-14, Jan. 5, 2016, ECF No. 38,30 Mr.
Chandler did not respond to that submission until after he had filed the First Federal Case
and just before filing the present suit. See March 2015 Emails, ECF No. 34-23.31
he did. But at the end of the day, he infonned me that Mr. Friedman refused to agree to
the protective order and he wanted me to do something. I've forgotten what the letter said.
The Court: Did he maybe say to you maybe we should go back to the court and see if we
can overrule Mr. Friedman?
Mr. Chandler: No, no, no.
The Court: He didn't say that?
Mr. Chandler: No, no.
The Court: Did you suggest to him why don't you go back to court and see whether you
can get the court to order it, even though Mr. Friedman opposes it? Did you tell him that?
Mr. Chandler: No.
The Court: Why is that?
Mr. Chandler: I chose this forum.
Mot. Sanctions, Hr'g Tr. 63:11-64:4, Jan. 5, 2016, ECF No. 38.
Mr. Chandler stated at the hearing on the Motion for Sanctions, "Mr. Nugent filed-sent me a
letter from Mr. Friedman which said get Mr. Chandler to agree to something and it related to
trade secrets. But by that time the hann had already been done:' Mot. Sanctions Hr' g Tr. 14:710,Jan. 5, 2016, ECF No. 38.
31 Mr. Nugent's March 20, 2015 email states that he attached a mark-up that is "what Zegato et al.
find minimally acceptable ... If you are not able to accept this version, I have to direct you to
The Chandler Law Finn for further discussions." March 2015 Emails at 3, ECFNo. 34-23. Mr.
30
-37-
Ultimately, the Court can only express astonishment at Mr. Chandler's profound
lack of appreciation of the significance of the domestic relations proceeding-which
would necessarily involve consideration of assets owned, directly or indirectly, by Mr.
Bailey, including assets related to copyright or trade secrets, or that the state court would
be the proper court to order production of those assets and, if appropriate, that it could do
so with a protective order. The facts of the Complaint drafted by Mr. Chandler were, as
stated multiple time already, nothing more than the veiled rehashing of a discovery
dispute that had taken and was still taking place within the context of the divorce
proceedings.
The smoking gun, if there is one, is that the Complaint in this case even
states that "counsel to Plaintiffs advised the marriage counsel to seek a protective order to
protect the intellectual property from disclosure ....
"
Compl. ~ 23.
That is, Mr.
Chandler told Mr. Nugent to obtain a protective order, yet he never suggested that Mr.
Nugent go back for clarification of the earlier order denying the Motion for Protective
Order and to Quash Subpoena or to seek further protection in state court before filing this
federal suit. See e.g., Mot. Sanctions Hr'g Tr. 17:24-18:25, Jan. 5, 2016, ECF No. 38.
So even if Mr. Chandler was truly ignorant about certain aspects of the state divorce
proceedings, his lack of diligence in investigating his claims and the interrelationship of
the state and federal proceedings was patently unreasonable.
Not only do all these reasons support the dismissal of this suit, they fully support
a finding that this suit was filed by Mr. Chandler and the two corporate Plaintiffs, in
violation of the Federal Rule of Civil Procedure 11(b).
Friedman's March 22, 2015 letter in response notes that "[i]t took 4 months to get a response to
my proposed Protective Order
.I understand that you are not the cause of the delay. This is
obviously your client's game plan
" Id. at I.
-38-
B.
Again, Rule II(b) provides that whenever a pleading is signed by or advocated by
an attorney, he certifies that, to the best of his knowledge, formed after a reasonable
inquiry, the factual and legal contentions are warranted, and that "it is not being presented
for any improper purpose, such as to harass, cause unnecessary delay, or needlessly
increase the cost oflitigation."
Fed. R. Civ. Pro. II(b).
Having found a violation of Rule II (b) by Mr. Chandler and the corporate
Plaintiffs, the Court considers what sanctions, if any, should be imposed upon them and
whether those sanctions should extend to Mr. Bailey.
If a court "determines that Rule
I I(b) has been violated, the court may impose an appropriate sanction on any attorney,
law firm, or party that violated the rule or is responsible for the violation.,,32 Fed. R. Civ.
P. II(c)(I).
Rule II, then, applies not only to counsel but also to parties, represented or
unrepresented.
Wassel v. Samuel, No. 93-2635, 1995 WL 5772, at *2 (4th Cir. 1995)
(citing Bus. Guides. Inc. v. Chromatic Commc'ns Enters .. Inc., 498 U.S. 533, 551, III S.
Ct. 922, 934-35,112
L. Ed. 2d 1140 (1991)); see also Cleveland Demolition Co. v. Azcon
Scrap Corp., 827 F.2d 984, 986 (4th Cir. 1987) (imposing sanctions against Plaintiff and
counsel).
The Court finds that sanctions as to Plainti ffs' counsel Mr. Chandler and the
corporate Plaintiffs are unquestionably appropriate.
See Byrd v. Hopson, 108 F. App'x
749, 756 (4th Cir. 2004) (sanctioning both attorney and client for suit brought with
improper purpose of harassment).
J2 Rule II(c)(I) further states that, "[a]bsent exceptional circumstances, a law firm must be held
jointly responsible for a violation committed by its partner, associate, or employee."
-39-
But who, really, are the corporate Plaintiffs?
Bailey.
They are none other than Donald
As CEO and controlling shareholder of the Plaintiff corporations-who
at
various times has characterized himself as the 100% owner of the corporate Plaintiffs,
and other times less than 100%, but at all times indisputably the controlling individual of
the corporations-he
must be held personally liable, jointly and severally, with his
corporations and Mr. Chandler.
It was Mr. Bailey and he alone who was the principal
beneficiary of this litigation.
In response to the Court's show cause order, Mr. Chandler contended that the
Court lacked jurisdiction over Mr. Bailey as an individual, so that imposing sanctions
upon him would violate his right to due process. Pis.' Resp. Opp'n Mot. Sanctions at 12, ECF No. 27.
Mr. Chandler argued to this effect even while Mr. Bailey chose not
appear at the Show Cause Hearing in person or through counsel of his own to vindicate
his rights.
(Mr. Chandler, interestingly,
someone he called "not my client.")
was quite vigorous in arguing the cause of
Mot. Sanctions Hr'g Tr. 2:12-3:10, Jan. 5,2016,
ECF No. 38; see Pis.' Resp. Opp'n Suppl. Mot. Sanctions at 2-3, ECF No. 35.
The Court finds that Mr. Bailey was given the full measure of due process, which
he declined to avail himself of, such that the Court is prepared to adjudicate the issue of
Rule I I sanctions against him.
Federal
jurisdiction
courts
have consistently
over an individual,
without
found
that they may exercIse
raising due process concerns,
personal
where the
individual is the alter ego of a corporation that is party to a suit. See Newport News
Holdings Corp. v. Virtual City Vision. Inc., 650 F.3d 423, 433 (4th Cir. 201 I) (citing
Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640, 653 n.18 (5th Cir. 2002)).
-40-
While the corporate form generally prevents liability from being imposed on an
individual, where a corporate entity controlled by an individual is involved in litigation, a
court may "pierce the corporate veil in 'extraordinary circumstances,'
such as when the
corporate form is being used for wrongful purposes," and may exercise jurisdiction over
the individual.
Flame S.A. v. Freight Bulk Pte. Ltd., 807 F.3d 572, 587 (4th Cir. 2015)
(citing Vital. S.A. v. Primerose Shipping Co., 708 F.3d 527, 543-44 (4th Cir. 2013).
While a district court must exercise caution in this regard, after a careful review of the
facts and circumstances of the particular case, "courts will not hesitate to take such action
when justice so requires." Keffer v. H.K. Porter Co., 872 F.2d 60, 64 (4th Cir. 1989).
To determine whether an entity is the alter ego of an individual, courts consider
such factors as "gross undercapitalization,
insolvency, siphoning of funds, failure to
observe corporate formalities and maintain proper corporate records, non-functioning of
officers, control by a dominant stockholder, and injustice or fundamental unfairness."
Ost-West-Handel
Bruno Bischoff GMBH v. Project Asia Line, Inc., 160 F.3d 170, 174
(4th Cir. 1998) (citing Keffer, 872 F.2d at 65; DeWitt Truck Brokers, Inc. v. W Ray
Flemming Fruit Co., 540 F.2d 681, 684-87 (4th Cir. 1976». These factors do not create
a "firm rule." Vital, 708 F.3d at 544. Instead, corporate veil piercing is used to achieve
an equitable result by focusing on "reality and not form, [on] how the corporation
operated and the individual defendant's relationship to that operation." Ost-West-Handel,
160 F.3d at 174 (quoting DeWitt, 540 F.2d at 685) (quotation marks omitted).33
The Court notes that "(tJhe Fourth Circuit applies federal standards to a veil-piercing claim
under other federal statutes because 'veil( piercing] determines who is liable' under the statute(.]"
Mayes v. Moore, 419 F. Supp. 2d 775, 782 n.5 (M.D.N.C. 2006) (quoting Thomas v. Peacock, 39
F.3d 493, 502-03 (4th CiT. 1994), rev'd on other grounds, 516 U.S. 349, 116 S. Ct. 862, 133
L.Ed.2d 817 (1996».
Nevertheless, Maryland law would yield the same outcome.
While
Maryland law applies the doctrine "only when necessary to prevent fraud or to enforce a
33
-41-
The reality of corporate Plaintiffs' operations here demonstrates that Plaintiffs
Aldmyr and Zegato, Inc. are no more than nominal parties in this suit. While they mayor
may not be the nominal owners of the copyright
in question,
which Mr. Bailey
copyrighted and assigned to them for unknown consideration, they were and are wholly
or substantially owned and, in any case, wholly controlled by Mr. Bailey.
According to Plaintiffs'
person Board of Directors-Mr.
counsel, Mr. Chandler-all
Response to the Show Cause Order, Aldmyr's
three-
Bailey, his brother Lamont Bailey, and Plaintiffs'
voted in favor of this suit, with Mr. Bailey purportedly
abstaining at first, then "chang[ingJ his vote after the vote was taken." Pis.' Resp. Opp'n
Mot. Sanctions at 7, ECF No. 27; see Pis.' Resp. Opp'n Mot. Sanctions, Ex. 1, Aldmyr
Board of Directors Minutes, ECF No. 27-1; PIs.' Resp. Opp'n Suppl. Mot. Sanctions at
6-7, ECF No. 35. Still, Mr. Bailey has not clearly addressed who authorized the suit on
behalf of Zegato Inc.
Since Mr. Bailey did not appear at the show cause hearing to
respond to these assertions under penalties of perjury, Mr. Chandler, as has been his way
throughout most of these proceedings, simply asserted this to be a fact in the course of his
arguments to the Court.
The record evidence, however, overwhelmingly supports the conclusion that Mr.
Bailey's de facto control over the Plaintiff corporations led to the filing of the Second and
the First Federal Cases.34
While it appears that Mr. Bailey may not currently hold a
paramount equity," Hildrefh v. Tidewafer Equip. Co., 378 Md. 724, 735, 838 A.2d 1204, 1210
(Md. 2003), the Court finds that "exceptional circumstances" requiring the enforcement of a
paramount equity are present in this case. See id. (citing 1 William Meade Fletcher, et aI.,
Fletcher Cyclopedia of fhe Law of Private Corporaliolls g 41.30, 583-86 (penn. ed., rev. vol.
1999)).
34 The Court does not find Lamont Bailey's
stated concerns about his corporate shares "comingling" with Geraldine Bailey's marital property in the least bit relevant. See Pis.' Resp.
Opp'n Mot. Sanctions, Ex. 3, Lamont Bailey Aff. ~ 6, ECF No. 24-3; Pis.' Resp. Opp'n Suppl.
-42.
100% ownership interest in Aldmyr and Zegato, Inc.,35 it is noteworthy that Mr. Bailey
has at various times changed his testimony about whether he had a 100% interest.
In
sworn testimony in the divorce proceeding, under questioning by his own attorney, Mr.
Bailey stated that he was the CEO and held a 100% ownership interest in all of these
entities. State Ct. Hr'g Tr. 140:16-144:18, Dec. 18,2014, ECF No. 13-1. In attempting
to correct this alleged "misstatement"
during oral argument
in August 20 IS, Mr.
Chandler, again giving his own opinion offering no evidence, explained that Mr. Bailey
"didn't know that it's more correct to say he has [one] hundred percent control rather
than [one] hundred percent interest."
ECF No. 20.
Mot. to Dismiss Hr'g Tr. 7:20-22, Aug. 3, 2015,
Mr. Chandler then explicitly conceded on the record, that with 100%
control, Mr. Bailey had authorized the instant lawsuit. [d. 7:23-25.
Among other factors the Court considers in deciding whether to pIerce the
corporate veil is whether Mr. Bailey's corporations have failed to observe corporate
formalities and keep corporate records. See Keffer, 872 F.2d at 65; DeWiII, 540 F.2d at
686-87.
As became apparent in the divorce proceedings, Plaintiffs Aldmyr and Zegato,
Inc., as well as Mr. Bailey's other corporations, did not prepare or file tax returns at a
minimum from 2009-2014.
See Def.'s Obj. & Suppl. Resp. Pl.'s 1st Req. Produc. Docs.,
Resp. No.2, ECF No. 34-13; Def.'s Opp'n Pl.'s 2d Mot. Compel Disc. ~~ 3--4, ECF No.
Mot. Sanctions at 7, ECF No. 35. Donald Bailey's divorce proceedings will have no impact on
his brother Lamont's alleged 10% ownership of shares in Aldmyr.
3' According
to pleadings Donald Bailey filed in the divorce proceeding and attached to
Plaintiffs' surreply, he has a 90% ownership interest in Aldmyr. Def.'s Opp'n PI.'s Mot.
Adjudicate Del'. Contempt of Court at 4, ECF No. 11-3 I. Mr. Bailey represented in the divorce
proceeding that he has a 50% ownership interest in Zegato, Inc. and a 100% ownership interest in
Zegato LLC (party in First Federal Case only). Id. At other points in the divorce proceeding, Mr.
Bailey represented that he had a 100% in Zegato, Inc. See State Ct. Hr'g Tr. 142:23-144:18,
Dec. 18, 2014, ECF No. 13-1. The most plausible explanation for this discrepancy regarding the
ownership of Zegato, Inc. is that Aldmyr or some combination of Mr. Bailey's companies own
the other 50% interest in Zegato, Inc.
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34-14. Mr. Bailey stated in his Opposition to Mrs. Bailey's Second Motion to Compel
Discovery that he hired a certified public accountant for the "laborious task of reviewing
corporate and personal records to create Federal and State tax returns." Def.'s Opp. PI.'s
2d Mot. Compel Disc. , 4. In addition, Mr. Bailey testified in the divorce proceedings
that the companies did not keep a general ledger, had not maintained a balance sheet "for
the last couple of years," and did not maintain profit and loss statements.
State Ct. Hr'g
Tr. 113:19-114:6, Dec. IS, 2014, ECF No. 13-1. All these facts, of course, testify to Mr.
Bailey's alter ego status with the corporate Plaintiffs.36
There is no question that, at all times, Mr. Bailey has known the status of his state
divorce proceedings and, in particular, that on behalf of himself and the corporate
Plaintiffs here, he sought-unsuccessfully
as it happens-to
obtain a protective order
with respect to his purported copyright and trade secrets in state court. Furthermore, Mr.
Bailey is the clear beneficiary of this suit, depriving as it necessarily did, his wife of
counsel in the divorce proceeding, and almost assuredly allowing him to get back at Mr.
Friedman and JGL by forcing them out of the state proceedings, causing them to incur
thousands of dollars in fees in defending this suit, and sullying their reputation into the
bargain.
The Court thus concludes that Donald Bailey was, at all relevant times, the alter
ego of the two corporate Plaintiffs here, and that he was the true party in interest
responsible for initiating this suit to benefit himself in the state divorce proceeding.
Since the "corporate form is being used for wrongful purposes," Flame S.A., S07 FJd at
Then, too, according to Mr. Chandler, the Plaintiff corporations provided Mr. Bailey with
"loans" for legal fees in the divorce proceedings, including $60,000 in expenses paid to the JGL
Defendants for the purposes of an expert evaluation of corporate assets. Mot. Sanctions Hr'g Tr.
48:22-49:2,57:5-61:6,
Jan. 5, 2016, ECF No. 38; see Pl.'s Opp'n Mot. Protect. Order at 2-3,
ECF No. 17-6.
36
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587, the Court pierces the corporate veil in this case in order to achieve an equitable
result.
The Court finds Donald Bailey, as an individual, jointly and severally liable for
sanctions, along with the corporate Plaintiffs and Mr. Chandler.
c.
Rule II provides that any sanction imposed "must be limited to what suffices to
deter repetition of the conduct or comparable conduct by others similarly situated."
Fed.
R. Civ. P. I I(c)(4); see also Hunter, 281 F.3d at 151 ("Under Rule II, the primary
purpose of sanctions against counsel is not to compensate the prevailing party, but to
deter future litigation abuse.") (citations omitted).
Rule II(c)(4)
contains a list of
potential sanctions, indicating that, if "warranted for effective deterrence," the court may
impose "an order directing payment to the movant of part or all of the reasonable
attorney's fees and other expenses directly resulting from the violation."
Fed. R. Civ. P.
I I (c)(4); see Williams v. Prince George's Cnty. Hosp. Or., 932 F. Supp. 687, 690-91 (D.
Md. 1996) (awarding attorney's fees).
In making a determination
considers:
"(I)
the reasonableness
of the amount of a monetary sanction, the court
of the opposing party's attorney's
fees; (2) the
minimum to deter; (3) the ability to pay; and (4) factors related to the severity of the Rule
II violation." In re Kunstler, 914 F.2d at 523 (citing White v. General Motors Corp., 908
F.2d 675 (10th Cir. 1990)).
The Court concludes that JGL Defendants' total costs and fees, $22,834.40, are
reasonable under the traditional lodestar method of calculation, see In re Kunstler, 914
F.2d at 523 (citing White, 908 F.2d at 684), defined as the "reasonable
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hourly rate
multiplied by hours reasonably expended."
Grissom v. Mills Corp., 549 F.3d 313, 320
(4th Cir. 2008). An hourly rate is reasonable if it is in line with "'prevailing market rates
in the relevant community' for the type of work for which [the attorney] seeks an award."
Spell v. McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987) (quoting Blum v. Stenson, 465
U.S. 886, 895-96 & n.ll
104 S. Ct. 1541, 1547 & n.ll,
79 L.Ed.2d 891 (1984».
Appendix B to this Court's Local Rules establishes rates that are deemed reasonable for
lodestar calculations.
See Poole ex rei. Ellioll v. Textron, Inc., 192 F.R.D. 494, 509 (D.
Md. 2000).
The JGL Defendants have requested costs and fees in the amount of $22,834.40
for 165.3 hours of work performed by counsel of record, Shirlie Lake, Esquire, of
Eccleston and Wolf, P.C. and two of her associates.37 See Defs.' Suppl. Mot. Sanctions
at 12, ECF No. 34; Defs.' Suppl. Mot. Sanctions, Ex. 25, Lake Aff. ~ 12, ECF No. 34-25.
Ms. Lake, a principal at her law firm, has almost 35 years of litigation experience
in Maryland.
Lake Aff. ~~ 3, 7, ECF No. 34-25. Per Appendix B to the Local Rules, a
reasonable rate for an attorney who has been admitted to the bar for 20 years or more is
$300-$475.
presumptively
Ms. Lake's hourly rate for this case at $150, id. ~ 6, is well below the
reasonable range in Maryland.
Likewise, the hourly rate of her two
associates, Daniel Hodges and Emily Patterson, is reasonable at $125. Id. Although their
experience is not specified, reasonable rates under Appendix B start at $150 for attorneys
admitted to the bar for less than five years.
For a court to assess whether hours were reasonably expended, the attorneys
seeking the award must provide sufficient evidence of how their time was spent. Counsel
37 The JGL Defendants initially requested fees for work performed by their own attorneys in
defending the case but eventually withdrew the request. See Defs.' Suppl. Mot. Sanctions at I,
ECF No. 34.
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are expected to provide all documentation necessary for the court to make a lodestar
determination
as to the hours reasonably
expended,
including
but not limited to
declarations establishing the hours expended by counsel, broken down for each task
performed. Saman v. LBDP. Inc., DKC-12-1083, 2013 WL 2949047, at *7 (D. Md. June
13, 2013); Local Rule 109.2; Appendix B to the Local Rules.
The JGL Defendants have submitted affidavits from Ms. Lake, as well as detailed
billing statements that break down hours worked by each attorney in one-tenth of an hour
units. See Defs.' Mot. Sanctions, Ex. II, Aff. Fees & Expenses, ECF No. 17-12; Defs.'
Supp!. Mot. Sanctions, Ex. I, Lake Aff., ECF No. 28-1; Defs.' Supp!. Mot. Sanctions,
Ex. 25, Lake Aff., ECF No. 34-25. Ms. Lake attests and the billing statements show that
Eccleston and Wolf attorneys worked a total of 165.3 hours, of which 110.9 were
expended prior to the Motion for Sanctions, amounting to $14,962.50 in fees and costs.
See Aff. Fees & Expenses, ECF No. 17-12; Lake Aff. ~ 10, ECF No. 34-25. In relation to
the Motion for Sanctions, Ms. Lake and her two associates expended an additional 54.4
hours, for a total of$7,677.90
in costs and fees. See id. Lake Aff. ~~ 10-11, ECF No. 34-
25.
The Court finds 165.3 hours to be a reasonable period of time for defense counsel
to have spent on this case, including reviewing the Complaint, drafting a Motion to
Dismiss, responding to Plaintiffs'
preparing
improper Motion for Partial Summary Judgment,
for hearings, and pursuing sanctions against Plaintiffs,
Supplemental
filings-particularly
including several
in light of the complexities of copyright and trade
secret law and potential jurisdictional
implications of the pending domestic relations
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proceedings. The Court has no difficulty approving the fees accrued by Ms. Lake and her
associates in the amount of$22,834.40.38
The Court further concludes that fees and costs of this magnitude are appropriate
as the minimum sanction necessary to deter the corporate Plaintiffs, Mr. Bailey, Mr.
Chandler, and others who might be inclined to follow their example from engaging in
similarly abusive tactics in the future.
Suits such as the present one could wreak absolute havoc on domestic relations
proceedings in Maryland--or,
for that matter, in any state court in the country. Spouses
in state divorce proceedings, as well as their attorneys, should not have to run the risk of
defending federal law suits as they gain access to a spouse's
financial information,
corporate documents, or other potential "trade secrets" while searching for marital assets.
A suit such as this would put a premium on one spouse hiding or concealing certain
documents, then refusing to make them available after routine discovery requests, then
losing requests for protective relief in state court, and then circumventing the decision of
the state court by filing a suit in federal court on a matter within the purview of the state
court. Suits such as the one initiated here would occasion delay, would needlessly raise
costs to parties, and would do great injustice to the party coming into the possession of
the documents, as well as that party's counsel.
Litigants and the attorneys who represent them in domestic relations proceedings
in Maryland or elsewhere need to know that tactics of the sort deployed here-where
the
While the total amount of costs and fees from Eccleston and Wolfs 165.3 expended hours
amounts to $22,640.40, the JGL defendants requested $22,834.40, which includes an additional
$194.00 in costs for a transcript from the August 3, 2015 hearing. Lake Aff. ~~ 15, 17, ECF No.
34-25.
38
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intent to harass, delay, and gam unfair advantage
is clear-will
be appropriately
sanctioned.
Donald Bailey, Attorney Chandler, and the Plaintiff shell corporations may have
believed they were gaining some sort of advantage against Mrs. Bailey and her counsel in
the Anne Arundel County divorce proceedings, but they must now be brought to book for
engaging in these unfair tactics.
The Court finds that the corporate Plaintiffs, Mr. Bailey as the alter ego of the
corporations, and Attorney Chandler have violated Rule II(b) of the Federal Rules of
Civil Procedure.
The Court will enter a judgment in favor of the JGL Defendants and against the
corporate Plaintiffs, Mr. Bailey, and Attorney Chandler, jointly and severally, in the
amount of $22,834.40.
A separate Order will ISSUE.
lsI
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
March 18,2016
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