Yokozeki v. Carr-Locke

Filing 109

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Motion for Partial Reconsideration of Order Granting Motion for Rule 11 Sanctions (Docket Entry # 103 ). The motion for partial reconsideration (Docket Entry # 103 ) is ALLOWED to the extent sanctions are awarded against defendant's counsel in the amount of $2,150. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SHIMAKO YOKOZEKI,
Plaintiff,
v.

CIVIL ACTION NO.
13-12587-MBB

ALAN H.L. CARR-LOCKE,
Defendant.
MEMORANDUM AND ORDER RE:
MOTION FOR PARTIAL RECONSIDERATION OF ORDER
GRANTING MOTION FOR RULE 11 SANCTIONS
(DOCKET ENTRY # 103)
June 29, 2017
BOWLER, U.S.M.J.
Pending before this court is a motion to reconsider one
aspect of a March 28, 2017 Memorandum and Order (Docket Entry #
102, p. 1, n.1; pp. 13-17), namely, the imposition of sanctions
awarded against defendant Alan H. L. Carr-Locke (“defendant”) as
opposed to defendant’s former counsel (“defendant’s counsel”).
After conducting a hearing on June 19, 2017, this court took the
motion (Docket Entry # 103) under advisement.
BACKGROUND
Plaintiff Shimako Yokozeki (“plaintiff”) points out,
correctly, that the underlying motion requested sanctions against
defendant’s counsel.

(Docket Entry # 103).

The caption of the

underlying motion for sanctions requested “Rule 11 Sanctions
Against Defendant’s Counsel.”

(Docket Entry # 94).

The first

and last sentences of the motion asked for sanctions against

defendant’s counsel.

The body of the motion depicted the actions

of defendant but only in connection with the filing by
defendant’s counsel of a motion to dismiss supplementary process
proceedings because plaintiff had not served defendant with a
summons as required under Massachusetts General Laws chapter 224,
section 14 (“section 14”).

Section 14 provides that, “Upon the

filing of” an application for supplementary process, “a summons
may issue, requiring the judgment debtor to appear . . ..”
Gen. Laws ch. 224, § 14 (emphasis added).

Mass.

Plaintiff recites the

relevant passages (Docket Entry # 103, ¶ 4) that, together with
the first and last sentences and the caption, establish that the
failure to impose the sanctions against defendant’s counsel was
both obviously incorrect and unreasonable.
DISCUSSION
To succeed on a reconsideration motion, “‘the movant must
demonstrate either that newly discovered evidence (not previously
available) has come to light or that the rendering court
committed a manifest error of law.’”

Mulero-Abreu v. Puerto Rico

Police Dept., 675 F.3d 88, 95 (1st Cir. 2012); accord Ellis v.
U.S., 313 F.3d 636, 648 (1st Cir. 2002).

The existence of a

manifest injustice also provides a basis for reconsideration.
U.S. v. Moran, 393 F.3d 1, 8 (1st Cir. 2004); Ellis, 313 F.3d at
648; see Christianson v. Colt Industries Operating Corp., 486
U.S. 800, 817 (1988) (“courts should be loathe to” reconsider

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absent “extraordinary circumstances such as where the initial
decision was clearly erroneous and would work a manifest
injustice”); Antony v. Duty Free Americas, Inc., 705 F.Supp. 2d
112, 114 (D. Mass. 2010).

The manifest injustice exception

“requires a definite and firm conviction that a prior ruling on a
material matter is unreasonable or obviously wrong.”
F.3d at 648.

Ellis, 313

Exercising this court’s discretion, it is the

definite and firm conviction of this court that the failure to
award the sanctions against defendant’s counsel was unreasonable
and obviously incorrect.

Indeed, it works a manifest injustice.

It is therefore necessary to determine the amount of an
award.

The motion for sanctions under Fed.R.Civ.P. 11 (“Rule

11”) seeks an “award of reasonable expenses of opposing the
Motion to Dismiss and presenting” the motion for sanctions
against defendant’s counsel.

(Docket Entry # 94).

Plaintiff’s

affidavit sets out the actual time spent by three attorneys to
draft, revise, and finalize the motion as well as for two
attorneys to attend the hearing.

At the rates charged by each

attorney, the 22.90 hours results in a total of $10,416.
Rule 11(c)(4) limits an attorney’s fee sanction to “the
reasonable attorney’s fees and other expenses directly resulting
from the violation.”

Fed.R.Civ.P. 11(c)(4) (emphasis added).

Further, the sanction “must be limited to what suffices to deter
repetition of the conduct or comparable conduct by others

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similarly situated.”

Fed.R.Civ.P. 11(c)(4).

Here, the amount of attorney’s fees actually incurred
exceeds the amount of reasonable attorney’s fees “warranted for
effective deterrence.”

Fed.R.Civ.P. 11(c)(4).

As aptly reasoned

by defendant’s counsel (Docket Entry # 105, pp. 4-5), the motion
entailed a recitation of the procedural history, a straight
forward legal argument based on the plain meaning of “may” in
section 14, and a preparation of the billing hours (Docket Entry
## 104, 104-1).

The difficulty and the nature of the work does

not require the use of partners with the expertise and exemplary
abilities of Attorneys Stephen and Todd Gordon for 10.2 hours.
Rather, a reasonable fee entails only a brief amount of time
reviewing an associate’s preparation of the motion.

Moreover,

the hearing reasonably required only one attorney in attendance
for plaintiff.

Factoring in the deterrence calculus yields a

reasonable attorney’s fee that is warranted for effective
deterrence of 6.0 hours at a $295 rate ($1,770) and .8 hours at a
$475 rate ($380) for a total award of $2,150.
Separately, the Memorandum and Order (Docket Entry # 102)
explained the basis for the sanction as required by Rule
11(c)(6).

In addition, the arguments made by defendant counsel’s

(Docket Entry # 105) do not meet the standard to justify a
reconsideration of the March 28, 2017 decision to impose
sanctions.

They also do not warrant a denial of plaintiff’s

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request to impose the sanctions against defendant’s counsel as
opposed to defendant.
CONCLUSION
The motion for partial reconsideration (Docket Entry # 103)
is ALLOWED to the extent sanctions are awarded against
defendant’s counsel in the amount of $2,150.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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