Eldridge et al v. Gordon Brother Group, L.L.C. et al

Filing 106

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered directing that Plaintiffs pay Defendants $35,000 as a sanction for the filing and maintenance of their belatedly announced, retaliatory, futile and vexatious cross-motion for summary judgment. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DAVID KAY ELDRIDGE, RAY ELDRIDGE,
JR.,D. CHRIS ELDRIGE, as trustee,
not individually, of the C.
ELDRIDGE 1994 GST TRUST, PATRICIA
K. SAMMONS, as trustee, not
individually, of the P.K. SAMMONS
1994 GST TRUST, C. ELDRIDGE 1994
GST TRUST, P.K. SAMMONS 1994 GST
TRUST, and K’S MERCHANDISE MART,
INC.
Plaintiffs.
v.
GORDON BROTHERS GROUP, LLC,
WILLIAM WEINSTEIN, FRANK MORTON,
Defendants.

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CIVIL ACTION NO.
08-11254-DPW

MEMORANDUM AND ORDER
May 25, 2016

In a Memorandum and Order issued on March 18, 2016, I
granted a motion for Rule 11 sanctions against the Plaintiffs in
this case.

Eldridge v. Gordon Bros. Grp., LLC, No. CV 08-11254-

DPW, 2016 WL 1089226, at *29 (D. Mass. Mar. 18, 2016).
Plaintiffs had, after a direct reminder of the strictures of
Rule 11, filed a cross-motion for summary judgment, on bases
without warrant in the law applicable in this case.1

I ordered

1

By Memorandum and Order dated August 4, 2011, Eldridge v.
Gordon Bros., 2011 WL 3439180 (D. Mass. Aug. 4, 2011), I granted
partial summary judgment to the defendants and invited the
parties to propose a method to bring the case to final judgment.
The Defendants “then expressed a desire to file a motion for

the Plaintiffs to pay to Defendants the reasonable costs and
expenses Defendants incurred in responding to Plaintiff’s
motion.

Fed. R. Civ. P. 11(c).

I directed that those costs

were to include Defendants’ cost of moving for sanctions, but,
“[g]iven the duplicative nature of much in the cross-motions for
summary judgment,” only to include those “fees and costs that
would not have been incurred but for Plaintiff’s improvident
decision to file its own motion for summary judgment.”
at *29.

Eldridge

Defendants have now submitted their application for

fees and costs and I must address whether the amount sought is
consistent with this prior order.
Defendants request $35,000 in sanctions.

This figure is

not intended to tally up and compensate for costs precisely, but
rather to provide a rough estimate in line with my March 18,
2016 instructions.

In presenting this figure, Defendants report

summary judgment on the remaining claims and I set a schedule
for the motion.” Eldridge v. Gordon Bros., 2016 WL 1089226, at
*9 (D. Mass. March 18, 2016). When plaintiffs belatedly moved
for leave to file a cross-motion for summary judgment, I allowed
the motion but cautioned that plaintiffs’ counsel “is advised to
consider the application of Fed. R. Civ. P. 11 to any such
motion if the motion has no conceivable likelihood of success.”
Id. Despite this warning, plaintiffs’ counsel filed a crossmotion for summary judgment. In my extensive Memorandum and
Order dated March 18, 2016 disposing of the cross motions for
summary judgment, I concluded that plaintiff’s tit-for-tat
motion for summary judgment pursued claims that had no
conceivable likelihood of success because they “were not
‘warranted by existing law or by a non-frivolous argument for
extending, modifying, or reversing existing law, or for
establishing new law.’ Fed. R. Civ. P. 11(b).” Id. at *29.
2

that the four lawyers most heavily involved in this litigation
billed $106,996 on relevant activities.

The invoices attached

support Defendants’ contention that only activity necessitated
by Plaintiff’s motion for summary judgment – such as drafting an
opposition brief, responding to Plaintiff’s Local Rule 56.1
statement of uncontested facts, and preparing a motion for
sanctions – have been included.

The $106,996 sum excludes

various compensable costs, such as the attorneys’ fees of local
counsel and other lawyers involved in the matter, the costs of
paralegals and other support staff, and direct expenditures
other than attorneys’ billable time.
To be sure, the labor of Defendants’ counsel was not purely
cost without value to Defendants.

Because the cross-motions for

summary judgment involved substantially overlapping issues,
Plaintiff’s motion for summary judgment afforded Defendants
additional opportunities to present the same arguments (already
well-developed for their own motion) to the court a second time;
this provided Defendants an opportunity to double down argument
of their contentions in the litigation.
Without attempting to quantify the amount of duplication,
Defendants instead present the figure $35,000 as the sanction
they seek.

There is admittedly no detailed justification for

the exact sum.

This is roughly a two-thirds reduction from the

fees charged by Defendants’ four primary attorneys.
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I find such estimation to be appropriate here, given my
admonition to avoid duplicative costs.

There is no precise way

to disentangle fully the work relating to one motion for summary
judgment or the other.

False precision is illusory and largely

beside the point in this setting, particularly given that Rule
11 is primarily meant to deter, not compensate.

CQ Int'l Co. v.

Rochem Int'l, Inc., USA, 659 F.3d 53, 62 (1st Cir. 2011).

My

review is necessarily qualitative, not quantitative, as a
result.
Moreover, determining exactly how duplicative Defendants’
work was would require a difficult counterfactual.

As Plaintiff

points out, many of the arguments raised in Plaintiff’s summary
judgment motion and then addressed in Defendants’ opposition
brief were also raised in Plaintiff’s opposition brief.
Defendants also filed a reply brief regarding their own motion.
Defendants were required to do much of the same work to develop
a reply brief on their own motion as they did to develop their
brief in opposition to Plaintiffs’ motion.

Even a side-by-side

comparison of the parties’ submissions, therefore, cannot
precisely identify what work was caused on a but-for basis by
Plaintiff’s improvident motion for summary judgment.
In this necessarily imprecise context, I find the $35,000
sanctions sought to be reasonable.
matter of course.

First, my previous order specifically allowed
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Certain costs are owed as a

for the recovery of costs associated with moving for sanctions.
Those costs are less duplicative of Defendants’ own motion for
summary judgment, and a review of the invoices submitted shows a
significant amount of time spent on the sanctions issue.
Second, regardless of duplication, some amount of compensation
is owed for the labor involved in responding separately to
plaintiff’s summary judgment motion.

For example, while the

chance to respond to Plaintiff’s 56.1 statement of facts offered
Defendants meaningful litigation benefits, it was nevertheless
time-consuming, especially given the need to marshal supporting
evidence separately, as Defendants were required to do.

I find

these two categories of fees and costs approximate, on their
own, one-third of the attorneys’ work.
The two summary judgment motions also involved slightly
different substantive issues.

Defendants identify three

arguments made in Plaintiff’s memorandum in support of summary
judgment that were not addressed in its own summary judgment
motion:
(1) a detailed break-out of how Plaintiff claimed that GBG
erred in calculating the amount of the liquidating
distribution to Plaintiff (see Pl.’s Br. at 3-7);
(2) several different arguments – covering seven pages of
the brief – for precluding the expert report of Jeffrey
Szafran, GBG’s accounting expert (see id. at 10-18); and
(3) that Plaintiff had established as a matter of law, on
the basis of undisputed fact, that GBG had mismanaged the
furniture department of New K’s Merchandise LLC with
resulting damages in the amount of $1,137,789 (see id. at
18-22).
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These arguments required some new material in Defendants’
opposition briefing, although Defendants’ opposition was not
entirely novel even on these issues.

For example, in responding

to Plaintiff’s claims concerning the mismanagement of the
furniture department, Defendants identified facts concerning how
the department was managed.

These facts were not addressed in

Defendants’ own summary judgment briefing, which emphasized
questions of law.

But Defendant also restated its arguments

that summary judgment had already been granted on all implied
covenant claims, including the furniture mismanagement claims.
Defendants’ responses to the other two issues are similar:
Defendant’s opposition brief raised slightly different, but
overlapping, arguments as compared to its briefing supporting
summary judgment.

Even so, it is clear that significant effort,

beyond restating Defendants’ own favored summary judgment
arguments, was required to respond to the newly reframed
arguments raised in Plaintiff’s summary judgment motion.
In sum, I find $35,000 to be appropriate and in accordance with
the basis for sanctions I outlined in my March 18, 2016 order.
More fundamentally, this figure fairly furthers — and is
sufficient but no more than necessary to advance — the purposes
of deterrence which animate Rule 11.

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Accordingly, I direct that Plaintiffs pay Defendants
$35,000 as a sanction for the filing and maintenance of their
belatedly announced, retaliatory, futile and vexatious crossmotion for summary judgment.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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