Chavis Van & Storage of Myrtle Beach, Inc. et al v. United Van Lines, LLC et al

Filing 142

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendants' motion for attorneys fees 129 is denied. IT IS FURTHER ORDERED that defendants' motion for bill of costs 128 is granted, and the Clerk of the Court shall tax costs in the amount sought by defendants.IT IS FURTHER ORDERED that plaintiffs motion for hearing 139 is denied as moot. Signed by District Judge Rodney W. Sippel on 4/9/14. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHAVIS VAN & STORAGE OF
MYRTLE BEACH, INC., et al.,
Plaintiffs,
vs.
UNITED VAN LINES, LLC, et al.,
Defendants.

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Case No. 4:11CV1299 RWS

MEMORANDUM AND ORDER
This matter is before me on defendants’ motion for attorneys’ fees under 28 U.S.C. §
1927. A court may require counsel to satisfy personally attorneys’ fees reasonably incurred by an
opposing party when counsel’s conduct “multiplies the proceedings in any case unreasonably and
vexatiously.” 28 U.S.C. § 1927; Clark v. United Parcel Service, Inc., 460 F.3d 1004, 1011 (8th
Cir. 2006). “Section 1927 warrants sanctions when an attorney’s conduct viewed objectively,
manifests either intentional or reckless disregard of the attorney’s duties to the court.” Tenkku v.
Normandy Bank, 348 F.3d 737, 743 (8th Cir. 2003) (internal quotation marks and citation
omitted). Whether to award sanctions rests with my discretion, id. at 744, and I must take care
that sanctions are not used to “dampen the legitimate zeal” of an attorney representing a client as
§ 1927 is penal in nature. Lee v. L.B. Sales, Inc., 177 F.3d 714, 718 (8th Cir. 1999).
The parties and the Court are overly familiar with the history of this case, so it will not be
restated at length. In brief, plaintiffs proceeded on a single breach of contract claim after their
other claims were dismissed as preempted. Thus began a flurry of motion practice, including
three motions to compel, a motion to reconsider a previous denial of a motion to compel,

motions to strike, and multiple motions to extend discovery deadlines (mostly jointly filed).
Some of these motions were filed by defendants; most by plaintiffs. Most of the motions to
compel were denied, but a few aspects were well-taken. Essentially, it appeared to the Court that
the parties (and perhaps their attorneys) were determined not to get along. This did not appear to
be largely the result of one party or attorney. The Court expressed frustration and annoyance at
both parties and all counsel for their inability to “play nice.”1 Yet the parties soldiered on, and
defendants eventually filed a motion for summary judgment. Plaintiffs responded on January 23,
2014.2
According to defendants, it is at this point in time when counsel’s conduct became
sanctionable by filing what the Court later determined to be a non-meritorious opposition to
summary judgment. Therefore, defendants seek an award of fees and costs from that point
through March 15, 2014 in the amount of $139,000.00. Yet the only document the defendants
were required to file (and did file) after January 23, 2014 was a reply brief in support of summary
judgment. The Court even significantly narrowed the issues that defendants would be required to
respond to in their reply brief by ordering plaintiffs to file a supplemental opposition to summary
judgment that clearly set out the contract terms allegedly in dispute. The Court also ruled in
favor of defendants on most of the arguments raised in summary judgment. That Memorandum
and Order was issued February 4, 2014, only a few days after plaintiffs’ opposition was publicly

1

Although defendants cite to the Court’s September 18, 2012 Memorandum and Order as
evidence of plaintiffs’ counsel’s sanctionable behavior, the Court also admonished defendants in
that same Order.
2

Because plaintiffs erroneously filed all their materials under seal, the Court required
plaintiffs to file an appropriately redacted version of their opposition, which was filed on January
27 and 28, 2014.
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filed. Therefore, when defendants were required to file their reply brief, they were required to do
so under the best of circumstances — with the issues narrowed and clarified, and most already
ruled in their favor.
While the Court ultimately determined that defendants were entitled to judgment as a
matter of law, I cannot conclude that counsel’s opposition to summary judgment amounted to
sanctionable conduct. Although I rejected plaintiffs’ arguments that the alleged carrier policies
afforded plaintiffs any relief or were even breached, I do not find that their advancement
constituted either intentional or reckless disregard of counsel’s duties to this Court. Nor do I find
that defendants are entitled to fees based on counsel’s conduct during the course of the case. As I
previously stated, this case was vigorously litigated by both parties (to the Court’s frustration at
all parties and counsel), but I cannot find that plaintiffs’ counsel’s conduct was any more
egregious than anyone else’s such that it vexatiously multiplied the proceedings before me.
Having lived with this case for three long years, and after full consideration of its progression
and the filings and proceedings before me, I find that defendants are not entitled to fees as a
sanction for counsel’s conduct under 28 U.S.C. § 1927. The motion will therefore be denied.3
3

Alternatively, I deny defendants any relief because the amount of fees sought -- $139,000
-- is grossly excessive for the filing of a reply brief under the facts and circumstances set out
above. The Seventh Circuit Court of Appeals has held that “[w]hen an award of fees is
permissive, denial is an appropriate sanction for requesting an award that is not merely excessive,
but so exorbitant as to constitute an abuse of the process of the court asked to make the award.”
Budget Rent-A-Car System, Inc. v. Consolidated Equity, LLC, 428 F.3d 717, 718 (7th Cir. 2005)
(Posner, J.). Although not binding on this Court, I find this rule sensible and appropriately
applied in this case. While plaintiffs may have continued to pursue a claim that ultimately did
not prevail, defendants have lost all sense of reason and perspective by asking the Court to award
such an overinflated amount for filing a 20-page reply brief in support of summary judgment.
They provide no supporting documentation demonstrating the number of hours billed or how
those hours were spent, but there is no scenario under which this amount of fees could be
considered reasonable for this effort. Yes, defendants ultimately obtained summary judgment,
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I will also deny defendants’ request for attorneys’ fees and travel costs associated with the
second deposition of Chavis’ expert. Although the Court required plaintiffs4 to bear the costs of
this deposition, attorney’s fees and travel expenses are not costs. Plaintiffs paid the court
reporter and videographer fees for the deposition. These were the only costs sought by
defendants. Defendants did not request plaintiffs reimburse them for their fees and travel
expenses at that time, nor did they ever ask the Court to clarify or reconsider its Memorandum
and Order to specifically include an award of attorney’s fees and travel expenses in addition to
costs. Defendants also provide no supporting documentation evidencing the amount or necessity
of these expenses. For these reasons, the request will be denied.
Finally, I will order the Clerk of the Court to tax costs in the amount sought by defendants
as plaintiffs have not objected to the bill of costs submitted by defendants, and their time for
doing so has now expired.

but they grossly overreach here with such a requested award. Here, defendants’ fee request is “so
exorbitant as to constitute an abuse of the process of the court” and must be denied. See id.
4

This Memorandum and Order required plaintiffs, not plaintiffs’ counsel, to bear these

costs.
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Accordingly,
IT IS HEREBY ORDERED that defendants’ motion for attorneys’ fees [#129] is
denied.
IT IS FURTHER ORDERED that defendants’ motion for bill of costs [#128] is
granted, and the Clerk of the Court shall tax costs in the amount sought by defendants.
IT IS FURTHER ORDERED that plaintiffs’ motion for hearing [#139] is denied as
moot.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 9th day of April, 2014.

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