Fidrych et al v. Marriott International Inc

Filing 53

ORDER granting in part 48 Motion for Sanctions: The Court grants in part Plaintiff's motion for sanctions and awards Plaintiffs a total of $76,715.80, which consists of $63,355.80 in attorneys fees and $13,360.00 in costs. Signed by Honorable Bruce Howe Hendricks on 6/17/2020.(vdru, ) (Main Document 53 replaced on 6/17/2020) (vdru, ). Modified to replace with correct document on 6/17/2020 (vdru, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Anthony M. Fidrych and
Patricia Anne Fidrych,

)
)
)
Plaintiffs,
)
)
v.
)
)
Marriott International, Inc.,
)
)
Defendant.
)
________________________________)

Civil No. 2:17-cv-2195-BHH
ORDER

On March 2, 2020, the Fourth Circuit Court of Appeals issued a published
opinion in this case, affirming this Court s dismissal of this action for lack of personal
jurisdiction but remanding this Court s denial of Plaintiffs motion for sanctions.
See Fidrych, et al. v. Marriott International, Inc., 952 F. 3d 124 (4th Cir. 2020).
Following remand, Plaintiffs Anthony M. Fidrych and Patricia Anne Fidrych ( Plaintiffs )
filed a renewed motion for sanctions accompanied by additional declarations and time
records of counsel as well as the declaration of Senator Richard Harpootlian.

(ECF No.

48.)
DISCUSSION
The evidence of record indicates that Marriott informally received the summons
and complaint in this action on August 22, 2017, and that Marriott tendered the defense
to the Italian hotel ( Boscolo ) where the underlying incident occurred.

Marriott

instructed Boscolo that time was of the essence and indicated that Boscolo had seven
days to respond or otherwise Marriott may take over the defense and bill Boscolo for

1

legal fees and costs.

(ECF No. 13-3.)

Marriott did not receive a response from

Boscolo.
Marriott was properly served on August 28, 2017, and it again tendered the
defense to Boscolo. Once again, Marriott did not receive a response from Boscolo.
The time for responding to Plaintiffs complaint expired without Defendant appearing or
otherwise responding to Plaintiffs complaint, and Plaintiffs filed a request for entry of
default on September 21, 2017.
day.

(ECF No. 6.)

The Clerk entered default the following

(ECF No. 7.)
On October 10, 2017, Plaintiffs filed a motion for default judgment.

Before the

time for responding to the motion expired, Judge Duffy entered an order granting the
motion, and he scheduled a hearing for December 12, 2017, to determine damages.
(ECF No. 9.)
Marriott received a copy of the Court s default judgment on October 16, 2017,
and immediately engaged counsel, who filed an appearance the same day.

On

October 17, 2017, Marriott filed a motion to set aside the default judgment, and Judge
Duffy granted the motion in an order filed on November 29, 2017. (ECF No. 16.)

In

his order, Judge Duffy relied on the existence of less drastic sanctions as one factor that
weighed in favor of finding good cause to set aside the default, and he invited Plaintiffs
to seek such an alternative remedy.
Plaintiffs subsequently filed a motion for sanctions, requesting a total of
$86,754.62, consisting of $68,556.25 in attorneys fees and $18,198.37 in out-of-pocket
expenses.

(ECF No. 23.) Plaintiffs also filed a motion for discovery incident to their

motion for sanctions.

(ECF No. 32.)

This Court denied both motions, ultimately
2

finding with respect to Plaintiffs motion for sanctions that the requested fees and costs
were excessive and that Plaintiffs failed to show an adequate causal link between the
default judgment and the total requested fees.

(ECF No. 39 at 8.)

On appeal,

however, the Fourth Circuit determined that this Court failed to adequately explain why
it declined to award fees in a lesser, non-excessive amount, or why it did not require the
Plaintiffs to submit an amended motion that better supported the requested award.
952 F. 3d at 144.
In the instant motion for sanctions, Plaintiffs now request $97,113.26, consisting
of $79,194.75 in attorneys fees and $17,918.51 for out-of-pocket expenses.

Plaintiffs

do not explain why the amounts they now request exceed the amounts they previously
requested.
As the Fourth Circuit noted on appeal, case law recognizes an award of
attorney s fees as a less drastic alternative to default judgment.

See Colleton Prep.

Acad. Inc. v. Hoover Univ., Inc., 616 F.3d 413, 418 (4th Cir. 2010); Augusta Fiberglass
Coatings, Inc. v. Fodor Contracting Corp., 848 F.2d 808, 811 (4th Cir. 1988).

Indeed,

as previously mentioned, Judge Duffy specifically relied on the existence of less drastic
alternatives to default judgment as a factor supporting Defendant s motion to set aside
the default, and he specifically invited the parties to suggest appropriate alternative
sanctions to default judgment, providing the example of attorney s fees for illustrative
purposes.

(ECF No. 16 at 6.)

After further review, the Court finds that Defendant Marriott International, Inc. s
( Marriott ) neglect in responding to the complaint warrants an award of reasonable
attorneys fees and costs as an appropriate alternative to default judgment.
3

In other

words, Marriott has not offered a sufficient explanation for its failure to act to prevent an
entry of default or a default judgment after it never received responses from Boscolo,
and Marriott s failure to act in compliance with the Federal Rules of Civil Procedure
justifies an award of reasonable attorneys fees and costs as a less drastic sanction to
default judgment.

Although referred to as a sanction, this award of attorney s fees is

better understood as being based on fairness because it aims to compensate Plaintiffs
for the reasonable expenses they suffered as a direct result of Defendant s neglect and
dilatory conduct, and it also allows Defendant to proceed without suffering the extreme
consequences of a default judgment.
In determining what amount constitutes an award of reasonable attorney s fees
and costs, the Court has carefully considered the parties filings, the record as a whole,
and the applicable law.

As an initial matter, Defendant does not specifically object to

the hourly rates requested by Plaintiffs counsel, and the Court finds no reason to
disturb those rates. Moreover, the Court finds it reasonable to award Plaintiffs all of
the fees they request for work performed prior to November 29, 2017, when Judge
Duffy set aside the entry of default and default judgment and canceled the damages
hearing.

The Court also finds it reasonable to award Plaintiffs the fees they request

that pertain directly to the preparation of their initial motion for sanctions.

However, the

Court again finds that Plaintiffs have failed to show an adequate causal link supporting
an award for some of their requested fees. In other words, the Court finds that to
award Plaintiffs for all of the fees they seek would go beyond the purpose the Court
seeks to serve in awarding attorneys fees and costs as a reasonable and fair
alternative to the default judgment at issue, and would be disproportionate to the actual
4

conduct warranting an award of attorney s fees in the first place, i.e., Defendant s initial
failure to timely respond to Plaintiffs complaint.

For example, Plaintiffs chose to file a

motion to reconsider Judge Duffy s order setting aside the default, and this Court denied
Plaintiffs motion.

It would be unfair and unreasonable to effectively punish Defendant

for Plaintiffs choice to continue unsuccessfully pursuing the issue.

In addition,

Plaintiffs chose to complicate the issue of sanctions by filing an unsuccessful motion for
discovery incident to the motion.

Again, it would be unfair for Defendants to bear all

responsibility for all of Plaintiffs choices in this regard.

Thus, to account for the

requested fees that the Court finds too far removed from Defendant s initial neglect, the
Court will reduce by 20% the total fees Plaintiffs request by in their renewed motion.
The Court has thoroughly reviewed the attorneys declarations and detailed time sheets
and believes that a 20% reduction is appropriate and adequate to ensure that the total
amount of attorneys fees awarded is fair and reasonable and does not improperly
punish Defendant.

Reducing the requested fees of $79,194.75 by 20% results in a

total award of $63,355.80 in attorneys fees.
In their motion for sanctions, Plaintiffs also request $17,918.51 in out-of-pocket
expenses, as outlined below:
Expenses incurred by Mark Tanenbaum
Hand surgeon Lance Tavana, M.D.
$400.00
Vocation Expert Deborah Caskey $3,885.00
Life Care Planner Sarah Lustig
$9,075.00
Economist Oliver G. Wood
$4,558.51
...
Expenses incurred by Crystal & Giannoni-Crystal, LLC
5

Translation of email from Italian counsel re measurement of damages
under Italian law for December damage hearing
$18.75
Research re measurement of damages under Italian law for December
damage hearing
$91.30
Further research re measure of damages under Italian law for December
damage hearing
$90.48
(ECF No. 48-1 at 11.)
First, the expenses allegedly incurred by Crystal & Giannoni-Crystal, LLC are not
detailed in those attorneys declarations or the other exhibits attached to Plaintiffs
motion.

As a result, the Court declines to award this $200.53 in requested expenses.

With respect to the expenses claimed by Mark Tanenbaum, however, hand surgeon
Lance Tavana s bill for $400.00 (ECF No. 48-4 at 4); vocational expert Deborah
Caskey s invoice for $3,885.00 (id. at 5); and life care planner Sara Lustig s invoice for
$9,075.00 all appear reasonably related to Plaintiffs initial preparation for the damages
hearing that Judge Duffy scheduled.

Thus, the Court grants these costs.

On the

other hand, however, the vast majority of Dr. Oliver Wood s work appears to post-date
Judge Duffy s cancellation of the damages hearing by more than a month, and the
Court finds that it would be unreasonable under the circumstances to award Plaintiffs
the $4,558.51 in expenses they request related to Dr. Wood s expert opinion.

In all,

the Court finds it reasonable to award Plaintiffs a total of $13,360.00 in costs.
CONCLUSION
Based on the foregoing, the Court grants in part Plaintiffs motion for sanctions
(ECF No. 48), and the Court awards Plaintiffs a total of $76,715.80, which consists of
$63,355.80 in attorneys fees and $13,360.00 in costs, as a reasonable, less drastic
alternative to default judgment.
6

IT IS SO ORDERED.
s/ Bruce H. Hendricks

The Honorable Bruce Howe Hendricks
United States District Judge
June 17, 2020
Charleston, South Carolina

7