Bucci et al v. Kent

Filing 66

MEMORANDUM OPINION AND ORDER The 61 MOTION by Brian Dooley Kent for Attorney Fees is GRANTED as to an award of attorneys' fees caused by responding to Plaintiffs' 39 and 48 Motions; the motion is otherwise DENIED; the amount to be awarded is HELD IN ABEYANCE; Defendant is directed to provide copies of the attorneys' bills within ten days from the date of this Order. Signed by Judge Joseph R. Goodwin on 2/5/2024. (cc: counsel of record; any unrepresented party) (kew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
GUY RICHARD BUCCI, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:22-cv-00604

BRIAN DOOLEY KENT,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Brian Dooley Kent’s Motion for
Attorneys’ Fees. [ECF No. 61]. Plaintiffs Guy Richard Bucci and Ashley Nicole
Lynch responded in opposition, [ECF No. 64], and Defendant replied, [ECF No. 65].
For the reasons stated herein, Defendant’s motion is GRANTED IN PART and
DENIED IN PART.
I.

Background
On December 30, 2022, Plaintiffs Mr. Bucci and Ms. Lynch filed a Complaint

against Defendant Mr. Kent, [ECF No. 1], which was later amended on March 10,
2023, [ECF No. 5]. The parties are attorneys who previously worked together to
represent former students harmed at Miracle Meadows School (“MMS”) in West
Virginia. Id. ¶ 3. Specifically, the parties represented clients in 29 cases, which
resulted in a successful settlement agreement. Id. ¶¶ 25–30.

Plaintiffs alleged that they entered into a Joint Venture Agreement with
Defendant related to the MMS litigation but were thereafter “silently terminated
and excluded from th[e] Joint Venture, unilaterally and illegally” by Defendant. Id.
¶ 57. Specifically, Plaintiffs asserted that Defendant continued to file lawsuits and
represent new clients for MMS matters while relying on the work Plaintiffs
completed in the first 29 cases, but without Plaintiffs’ participation as co-counsel in
the cases. Id. Plaintiffs claimed that Defendant breached his fiduciary duty by
“secretly concealing all additional cases filed after the settlement of the first 29
cases from the Plaintiffs, and denying them all access to the cases, participation in
the cases, and recovery of their rightful fee from the Joint Venture’s success and
expected continued success.” Id. ¶ 69. Alternatively, Plaintiffs alleged unjust
enrichment based on this conduct and requested accounting of all settlements,
recoveries, and fees from any civil action for former MMS student clients after
January 1, 2021. Id. at 34–36. Plaintiffs further sought compensatory and punitive
damages, demanding thirty percent of the total fees arising out of the joint venture,
including fees for those cases where Plaintiffs were not involved as attorneys. Id. ¶
79. Plaintiffs stated that the settlement value for all of the MMS cases—which
includes the original 29 cases as well as the cases Defendant brought later without
Plaintiffs—equaled approximately $100,000,000. [ECF No. 64, at 14].
Plaintiffs originally filed this case under seal, prompting Defendant to file a
motion to release the documents to the attorneys of record. [ECF No. 18]. After I
unsealed the case, see [ECF No. 22], Plaintiffs filed two motions to disqualify

2

Defendant’s law firm, Bailey & Glasser (“BG”), from representing Mr. Kent. See
[ECF Nos. 23, 39]. Plaintiffs filed two other motions to seal, see [ECF Nos. 45, 48].
Defendant also filed a motion to dismiss the amended complaint, [ECF No. 26],
arguing, inter alia, that “Plaintiffs’ allegations are so implausible that they simply
cannot be credited.” [ECF No. 27, at 2]. Before the Court ruled on the pending
motions, Plaintiffs voluntarily dismissed all claims against Defendant without
prejudice. 1 [ECF No. 59].
Defendant subsequently requested attorneys’ fees for expenses incurred in
defending this lawsuit pursuant to 28 U.S.C. § 1927, which allows the court to
award attorneys’ fees, expenses, and costs if an attorney unreasonably and
vexatiously multiplies the litigation proceedings. See [ECF No. 61]. Defendant
argues that “Plaintiffs knew from the inception of this case that their claims were
meritless,” id. at 1, and the voluntary dismissal came after “six months of litigation
on meritless claims, two unsupported motions to disqualify Mr. Kent’s counsel,
three failed attempts to seal in contravention of the local rules, several discovery
failures by Plaintiffs, and one deposition where Plaintiff Ashley Lynch conceded
that she did not even know the terms of the alleged joint venture that formed the
basis of Plaintiffs’ claims,” [ECF No. 63, at 1]. Defendant further contends that,
after the first batch of MMS cases settled, Plaintiffs did not object to being
personally “excluded from the fee split and made no efforts to ensure that they
received a portion of the fees.” [ECF No. 63, at 4 (citing [ECF No. 61-4])]. Defendant
The voluntary dismissal came five days after Defendant took the deposition of Plaintiff Ashley
Lynch. See [ECF No. 49].

1

3

cites an email communication sent to the parties in November of 2020, which
contained a chart of the fee breakdown among firms after the first 29 MMS cases
settled. [ECF No. 61-4]. The chart illustrates that no settlement proceeds were
distributed to Plaintiffs personally, but instead to the law firm where Plaintiffs
were employed at the time. 2 Id.
Defendant alleges that, after filing this lawsuit, “Plaintiffs spent more time
attacking Mr. Kent and his counsel than litigating their case,” as evidenced by their
failure to serve a single set of discovery requests, take or notice a single deposition,
or subpoena any third parties. [ECF No. 63, at 4–5]. During discovery, Defendant
contends that Plaintiffs “fielded baseless objections, withheld documents, and failed
to conduct meaningful searches” and “[s]everal of the withheld documents were not
produced until less than twenty-four hours before the deposition of [Plaintiff]
Ashley Lynch.” Id. at 5–6. As both Plaintiffs are attorneys, Defendant believes
Plaintiffs impermissibly hid behind the veil of attorney-client privilege to justify
refusing to produce discoverable data or respond to questions asked in the
deposition. Id. at 7. Defendant highlights how “Ms. Lynch could not testify when her
attorney-client

relationship

with

co-plaintiff

began,

the

terms

of

that

representation, the scope of that relationship, or any writing evidencing that

2 The fees paid to Plaintiffs’ firm, Hendrickson & Long (“H&L”) did not amount to 30% of the total
fee award either. Plaintiffs were, however, paid a bonus from the law firm for their work on the
MMS cases, as admitted by Plaintiff Lynch in her deposition. See [ECF No. 61-3, at 54–57]. Ms.
Lynch further admitted that she knew “[t]he fees would be going to Hendrickson & Long,” and she
expected that H&L would then compensate her for the work completed. Id. at 16. Plaintiffs, in their
response in opposition to the motion for attorneys’ fees, state that their former law firm, H&L, was
never part of the joint venture but rather the joint venture was between Plaintiffs and Defendant
personally. [ECF No. 64, at 9].

4

relationship.” Id. at 7 (citing [ECF No. 61-3]). 3
Much of the evidence Defendant offers in support of his motion for attorneys’
fees comes from this deposition, which Defendant contends confirms that Plaintiffs
knew their claims were baseless. Id. at 8–9. In all, Defendant argues that Plaintiffs
“never had a claim” because “no one—including Plaintiffs—contemplated that the
alleged joint venture existed” prior to the filing of this lawsuit. Id. at 11 (emphasis
in original). Instead, the alleged joint venture, according to Defendant, is “an afterthe-fact fiction to recover fees for cases on which Plaintiffs performed no work.” Id.
As such, Defendant requests attorneys’ fees in this case because “Plaintiffs
unreasonably and vexatiously brought and sustained this lawsuit, engaged in
studied disregard for the orderly process of justice, and caused Mr. Kent to incur
substantial legal fees on frivolous, bullying litigation.” Id. at 12.
In opposition, Plaintiffs respond that “not a single docket entry in any
pleading, motion, discovery, motion to compel or any other entry” was vexatious or
done in bad faith. [ECF No. 64, at 2]. Explaining how they voluntarily dismissed the
case without prejudice, Plaintiffs also highlight the court’s dismissal order, which
provided that each party bear its own costs and expenses. Id. at 4. Plaintiffs argue
that the lawsuit was not meritless because joint ventures can be expressed or
implied and for a single purpose. Id. at 8. While Plaintiffs admit that Plaintiff
Lynch had limited knowledge of the joint venture because she was not part of the
alleged financial discussions between the parties, they assert that Plaintiff Bucci
The deposition transcript shows that Ms. Lynch repeatedly answered that she did not recall the
terms of the attorney-client relationship with Mr. Bucci despite the fact that each represented the
other. [ECF No. 61-3, at 3–7].

3

5

had a “broad and detailed knowledge of the same.” Id. at 16. They state that
attorneys’ fees should not be awarded because the court never “adversely
adjudicat[ed] against Plaintiffs,” 4 and there was “not a single motion to compel,
motion for sanctions, or other basis to question the bona fides of the claim or the
conduct of Plaintiffs individually or counsel.” Id. at 13.
II.

Legal Standard
An attorney “who so multiplies the proceedings in any case unreasonably and

vexatiously may be required by the court to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such conduct.” 18
U.S.C. § 1927. Inherent in Section 1927 is an element of bad faith. Harvey v. Cable

News Network, 48 F.4th 257, 276 (4th Cir. 2022) (finding that the circumstances
did not “demonstrate a level of egregiousness, a pattern of misconduct, or result in
protracted litigation to the extent that this Court and others have found bad faith
that warranted sanctions”). To justify sanctions under § 1927, there must be “badfaith conduct that wrongfully multiplies proceedings.” Six v. Generations Fed.

Credit Union, 891 F.3d 508, 520 (4th Cir. 2018) (finding attorneys acted in bad faith
“by hiding a relevant and potentially dispositive document from the Court”). An
award under this statute is compensatory—rather than punitive—in nature. Id.
The court must find “a causal link between wrongful conduct and an unreasonable
and vexatious multiplication of proceedings, then [] connect the costs wrongfully
incurred as a result of the sanctioned attorney’s conduct to the amount awarded to
Plaintiffs do admit that the court did issue “corrective procedure Orders.” [ECF No. 64, at 13]. This
is in reference to two of Plaintiffs’ motions to file under seal, which I denied. See [ECF Nos. 3, 22, 45,
47].
4

6

the moving party.” Id. (citing Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101
(2017) (“[S]uch an order is limited to the fees the innocent party incurred solely

because of the misconduct.”) (emphasis added)).
This statute “does not distinguish between winners and losers, or between
plaintiffs and defendants,” and is instead “concerned only with limiting the abuse of
court processes.” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 762 (1980). 5 In other
words, 28 U.S.C. § 1927 “focuses on the conduct of the litigation and not its merits.”

Salvin v. Am. Nat’l Ins. Co., 281 F. App’x 222, 226 (4th Cir. 2008) (unpublished)
(quoting DeBauche v. Trani, 191 F.3d, 499, 511 (4th Cir. 1999)) (finding an attorney
multiplied the proceedings unreasonably and vexatiously by refusing to voluntarily
dismiss a case “once its lack of merit became evident”). For example, “an attorney
who files a meritless claim may not be sanctioned under § 1927 if he does not
engage in” an unreasonable and vexatious multiplying of the proceedings.

DeBauche, 191 F.3d at 511. And “the filing of a single complaint cannot be held to
have multiplied the proceedings unreasonably and vexatiously.” Id. at 511–12.
“[A]ttorneys can only be assessed fees to the extent that those fees were
caused by their conduct.” NEXUS Srvs., Inc. v. Moran, No. 5:16-CV-00035, 2018 WL
1461750, at *10 (W.D. Va. Mar. 23, 2018) (citing Fox v. Vice, 563 U.S. 826, 836
(2011)) (finding that counsel’s conduct throughout the litigation demonstrated bad
faith), aff’d, 750 F. App’x 241 (4th Cir. 2019). Conduct that supports an award under
This is of particular importance here because Plaintiffs spend considerable time in their brief
arguing that there is no prevailing party as they voluntarily dismissed the case. See generally [ECF
No. 64]. However, 28 U.S.C. § 1927 does not require there to be any “winners and losers” but instead
allows attorneys’ fees to be levied against any party who unreasonably and vexatiously multiplies
the proceedings.
5

7

28 U.S.C. § 1927 can include “misrepresentations of evidence causing unnecessary
litigation and the filing of unsupported motions.” Akira Techs. Inc. v. Conceptant,

Inc., 773 F. App’x 122, 125 (4th Cir. 2019) (finding activity to be neither
unreasonable nor vexatious when a party “filed only one amended complaint,
completed discovery within the discovery period, and promptly filed a motion to
amend to dismiss claims after discovery ended”). Many such cases of sanctionable
conduct “involve fraud, deceit, misrepresentation, harassment, and unethical
conduct.” Harvey, 48 F.4th at 281. For example, in Sweetland v. Bank of Am. Corp.,
241 F. App’x 92, 97 (4th Cir. 2007), the Fourth Circuit affirmed a district court’s
sanctions order because the party continued to pursue claims despite knowing “that
evidentiary support for the allegations would not be forthcoming.” The attorney in

Sweetland also “took affirmative steps to stall the discovery process through evasive
and nonresponsive answers” and made “intentional misrepresentations for the
purpose of obtaining a settlement from the defendants.” Id.
III.

Discussion
Defendant has presented some troublesome facts to the court, relying heavily

on the deposition of Plaintiff Lynch to prove that Plaintiffs acted vexatiously and
unreasonably by bringing this litigation. However, I must determine what, if any,
“bad-faith conduct [] wrongfully multiplie[d] proceedings.” See Six, 891 F.3d at 520.
As such, I will consider the existence of bad faith conduct on an individual filing
basis. See Akira Techs. Inc., 773 F. App’x at 125 (vexatious and unreasonable
multiplication of proceedings includes “the filing of unsupported motions”).

8

A. Bringing and Sustaining the Litigation
Defendant argues that Plaintiffs never had a claim, and as such, bringing
and sustaining this “meritless” lawsuit is sanctionable under § 1927. [ECF No. 63,
at 2]. See Jolly Group Ltd. V. Medline Indus., Inc., 435 F.3d 717, 720 (7th Cir. 2006)
(“[A] court has discretion to impose § 1927 sanctions when an attorney has . . .

pursued a claim that is without a plausible legal or factual basis and lacking in
justification.”) (emphasis added) (internal quotations omitted). Defendant argues
that the alleged bad faith conduct—pursuing this case—caused an unreasonable
and vexatious multiplication of proceedings because it required “performing initial
work on the case (such as formulating overall strategy and preparing for discovery),
writing and fully briefing a motion to dismiss,” and defending against other
motions. 6 [ECF No. 63, at 10].
An attorney who files a meritless claim may not be sanctioned under 28
U.S.C. § 1927 unless he acts unreasonably and vexatiously in multiplying the
litigation proceedings, DeBauche, 191 F.3d at 511. As the concern is with the

conduct of the litigation and not on its merits, the filing of a complaint alone is not
enough to impose sanctions under 28 U.S.C. § 1927. Id. at 511–12 (concluding “as a
matter of law that the filing of a single complaint cannot be held to have multiplied
the proceedings unreasonably and vexatiously”). Instead, the appropriate authority
for sanctions for the filing of a frivolous complaint comes from Rule 11 of the
Federal Rules of Civil Procedure. See id. at 512. Rule 11 and 28 U.S.C. § 1927 serve
different purposes. Unlike § 1927—which is not punitive and instead ensures the
6

These other motions will be discussed more fully below. See infra III.B, III.C.

9

parties act reasonably to advance the litigation forward on its merits—Rule 11
allows the court to impose sanctions when pleadings contain allegations that are
not warranted by existing law or include factual allegations that have neither
evidentiary support nor the likelihood of forthcoming evidentiary support. Id. See

also Fed. R. Civ. P. 11(b).
Here, the facts contained in the Amended Complaint lack evidentiary
support, and Plaintiffs did not at any point attempt to uncover such evidence
throughout discovery. This is revealed by the record, which shows that Plaintiffs
neither filed any discovery requests nor attempted to take a single deposition
during the pendency of this action. And the claims in the lawsuit—a breach of
fiduciary duty in connection with a joint venture as well as unjust enrichment—are
inconsistent with the record as established in this case. For example, Defendant
produced documents showing the fees awarded in in connection with the settlement
of the first 29 MMS cases were distributed to Plaintiff’s law firm, Hendrickson &
Long (“H&L”) without objection from Plaintiffs. See [ECF No. 61-4]. Plaintiff Lynch
stated that she received a $50,000 bonus from H&L for her work on the MMS cases,
and Plaintiff Bucci received a $500,000 bonus. [ECF No. 61-3 at 54–57]. 7 Plaintiff
Lynch admitted that there is no physical writing containing the terms of the alleged
joint venture. Id. at 51. She further stated that she never told anyone that she and
Mr. Bucci were entitled to 30% of the fees pursuant to the alleged joint venture. See

id. at 47–48. Last, she indicated that she had planned on getting paid by her

7

Citations herein to deposition testimony refer to the CM/ECF page numbers.

10

current law firm and not from Defendant for her work in these cases. Id. at 16
(stating that “the fees would be going to [H&L]”).
These facts suggest that at the very least, Plaintiff Lynch knew or should
have known that there was no joint venture between the parties, and the claim
would be unsuccessful. However, the conduct of filing a single complaint, even if
such claim is meritless, cannot “have multiplied the proceedings unreasonably and
vexatiously.” DeBauche, 191 F.3d at 511–12. Defendant likewise did not file any
motion for sanctions under Rule 11 8 and did not assert that the claim was meritless
or sanctionable until after the conclusion of this case. Compare [ECF Nos. 26, 27
(Defendant’s Motion to Dismiss)] with [ECF Nos. 61, 63 (Defendant’s Motion for
Sanctions)]. Had Defendant believed Plaintiffs knew at the outset that their case
was completely meritless and filed for an improper purpose, Defendant could have
sought the appropriate remedy under Rule 11 during the proceedings. And after the
deposition—which made clear the allegations were without a proper basis—
Plaintiffs voluntarily dismissed this case. [ECF No. 59]. I am hesitant to sanction
attorneys who promptly dismiss a case after realizing the claim is meritless. I say
this somewhat reluctantly as Plaintiffs are both attorneys who should be well aware
of Rule 11 and sanctions concerning meritless litigation.
Although the filing of a meritless complaint is insufficient to warrant
sanctions under 28 U.S.C. § 1927, I will also consider the course of proceedings
following the filing of the Complaint. See Salvin, 281 F. App’x at 226. Plaintiffs did
Defendant later explained in response to a motion to disqualify that the motion was “so meritless
that it hardly warrants a response” except “perhaps, from one under Federal Rule of Civil Procedure
11(b).” [ECF No. 41 at 1].
8

11

nothing to help realize their claims as the record shows that Plaintiffs did not file
any discovery requests or attempt to take a single deposition. Instead, Plaintiffs
filed two motions to disqualify BG and other motions to file documents under seal.
Additionally, Defendant argues that there were “numerous discovery failures by
Plaintiffs.” [ECF No. 63, at 9]. I now turn to whether this conduct was done in bad
faith and whether it unreasonably and vexatiously multiplied the proceedings.
B. Motions to Disqualify Counsel
I will consider whether Plaintiff’s motions to disqualify counsel amounted to
wrongful, bad faith conduct that unreasonably multiplied the proceedings.
Plaintiff’s first motion to disqualify counsel was based on the allegations that BG’s
“representation of Bucci as a client spanned 18 years . . . [and] involv[ed] three
separate representations, countless discussions, correspondence and consultations
implicating attorney-client privilege.” [ECF No. 24, at 2]. Plaintiffs alleged that
those matters were “substantially similar” to this case and concerned “attorney
representation, with attorney fee agreements, joint venture, and co-counsel
agreements.” Id.
Prior to filing this lawsuit, Plaintiffs made BG aware of their concerns
regarding its representation of Mr. Bucci. See [ECF No. 23-1, at 3]. At that point, in
November of 2022—before this lawsuit was filed—BG replied and explained that it
had completed a conflict check and that the two previous matters did not present a
conflict. Id. at 35. Plaintiffs later filed their first motion to disqualify BG based on
West Virginia Rule of Professional Conduct 1.9(a), which states that attorneys who

12

have previously represented a client cannot represent another individual in a
“substantially related matter” against the former client. [ECF No. 23]. In response,
Defendant explained that the previous representations included (1) “one of BG’s
founding partners, Ben Bailey, provid[ing] Mr. Bucci with advice from 1995-1998”
regarding a dispute that arose before BG was formed; (2) “a legal malpractice case
[against Mr. Bucci] related to breast implant litigation two decades ago;” and (3) “a
referral fee dispute one decade ago” against Bucci, Bailey, & Javins, Mr. Bucci’s
former law firm. [ECF No. 31, at 1–2].
Plaintiffs also filed a second disqualification motion, arguing that personal
identifiable information had been inadvertently released to BG via a third-party
subpoena, and BG must be disqualified to maintain the integrity of the judicial
process. [ECF No. 39]. This confidential personal identifiable information included
social security numbers of Plaintiffs and some family members. 9 Id. ¶ 3. In their
motion, Plaintiffs relied on several cases addressing privileged information, but
they failed to cite any authority establishing that counsel must be disqualified
where, as here, a third-party responds to a subpoena with confidential—not
privileged—information.
Although the Court did not rule on the motions before the case was
dismissed, an adverse ruling against a party is not required for an award under 28
U.S.C. § 1927. If Plaintiffs had only filed their first motion to disqualify, I would not
In the subpoena, Defendant requested “[a]ll employment and severance documents in
possession relating to Guy Richard Bucci and Ashley Nicole Lynch, as well as any contracts
the parties relating to the disposition of the cases involving the Miracle Meadows School,
Day Adventists Church and Mountain View Conference.” [ECF No. 21-1]. Defendant
specifically request the disclosure of any social security information.

9

13

[H&L’s]
between
Seventh
did not

be concerned about their conduct in this case because the evidence shows that
Plaintiffs were concerned with BG’s representation of Mr. Kent before the lawsuit
was filed. See [ECF No. 23-1, at 3]. And although this first motion would have been
denied as the matters were not substantially related, the parties do not dispute that
BG did previously represent Mr. Bucci, which evidences that his concerns about
conflicts of interest may not have been wholly unfounded. The first motion to
disqualify BG did not contain any misrepresentations of those previous matters or
hide the scope of those matters from the Court, as evidenced by Plaintiffs’ attached
email exhibit containing BG’s explanations of the previous representations. See
[ECF No. 23-1, at 35–36].
However, Plaintiffs’ filing of a second motion to disqualify BG amounts to bad
faith conduct that unreasonably multiplied the proceedings in this case, and
Defendant Kent wrongfully incurred costs in defending the motion. In point of fact,
the Plaintiffs had notice of the third-party subpoena and an opportunity to object
well before the confidential information was released. See [ECF No. 41, at 2 (stating
that BG served the subpoena on Plaintiffs on May 4, 2023, and “Plaintiffs were
served the notice of the subpoena . . . again through CM/ECF” on May 10, 2023)].
Plaintiffs did not object in the one month between the subpoena request and the
production of documents, and Plaintiffs also knew that BG took steps to prevent the
disclosure of any confidential information that was released in response to the
subpoena. See [ECF No. 40 (stating that the response to the subpoena included a
non-disclosure agreement)]. And Plaintiffs in their motion notably failed to explain

14

how their own personal identifiable information may be used to prejudice them in
this litigation. Instead, Plaintiffs indicated that Defendant or his counsel could
potentially release the information to the public, causing Plaintiffs to become the
victims of identity theft. Id. at 5. Plaintiffs also accused H&L, their old firm, of
committing a tort based on its response to the subpoena, id. at 6, and in an email
prior to the filing of this motion, Plaintiffs threaten further legal action against BG,
Defendant, and H&L. See [ECF No. 41-1, at 2 (“We intend to fully pursue all
remedies against [stated individuals] . . . . Therefore, you should promptly provide
notice to your insurance carrier.”)].
In light of this evidence, I find that this second motion to disqualify is an
abuse of the court process and a tactic to harass Defendant and his counsel. The
third-party responded to a valid subpoena, in compliance with the Federal Rules of
Civil Procedure, without any objection from Plaintiffs until two weeks after the
information was produced. Moreover, this motion is wholly unsupported by law, and
Plaintiffs failed to cite any authority establishing that counsel must be disqualified
where a third-party responds to a subpoena with confidential, and not privileged,
information. See generally [ECF Nos. 39, 40]. The Fourth Circuit has stated that it
“can envision situations in which motions are filed which are so baseless in fact and
law as to be sanctionable under § 1927 as having been filed in bad faith, even
though they are purportedly grounded in novel theories of law.” Sweetland, 241 F.
App’x at 98–99. And even if this motion to disqualify were “grounded in [a] novel
theor[y] of law” that would require disqualification of attorneys in light of the

15

production of confidential—and not privileged—information, the motion is so
baseless in fact as to amount to bad faith.
This bad faith conduct caused an unreasonable multiplication of the
proceedings. Particularly, it required Defendant and counsel to litigate against a
frivolous motion requesting that BG be disqualified based on confidential
information unrelated to the merits of this case. Courts disfavor motions to
disqualify as opposing parties may “misuse . . . disqualification motions for strategic
reasons.” Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 146 (4th Cir. 1992). As such,
Defendant incurred unnecessary costs in having to respond to and defend against
the Second Motion to Disqualify BG. [ECF No. 39]. Because I find a causal
connection between Plaintiffs’ conduct and the unreasonable and vexatious
multiplication of proceedings, which can be connected to costs wrongfully incurred
by the Defendant, see Six, 891 F.3d at 520, Defendant’s motion for attorneys’ fees is
GRANTED insofar the attorneys’ fees were incurred as a result of defending the
second motion to disqualify BG.
C. Motions to File Under Seal
Next, Plaintiff twice attempted to seal the record in whole or in part. At the
onset of this case, Plaintiffs filed a motion to file the case under seal. See [ECF No.
3]. The Clerk’s Office opened the case under seal, which means that any documents
filed in this case were not available electronically to the attorneys of record, the
parties, or the public. Thus, neither Defendant nor his counsel could access the
record in this case, and Defendant had to file a motion to release the documents.

16

See [ECF No. 18]. I found that Plaintiffs failed to allege a compelling reason to seal
the record or demonstrate that their request to seal is narrowly tailored to their
stated interest. [ECF No. 22, at 8].
Plaintiffs then filed another motion to file documents under seal related to
the Second Motion to Disqualify BG as counsel. [ECF No. 45]. However, Plaintiffs’
motion failed to comply with the requirements for filing a motion to seal, which I
reiterated in the first Memorandum Opinion and Order. See [ECF No. 47 (citing
[ECF No. 22])]. I denied this motion. Id.
Next, Plaintiffs filed an Omnibus Renewed Motion to file documents under
seal relating to the Second Motion to Disqualify BG. [ECF No. 48]. In it, Plaintiffs
additionally requested the “Court’s determination of [both] privilege and
confidentiality” in relation to these documents. Id. Again, Plaintiff did not attempt
to explain why the personal identifiable information or the documents produced via
subpoena were privileged. Instead, Plaintiffs stated that their counsel “contacted
opposing counsel regarding Plaintiffs’ claim of privilege and confidential
information . . . and were unsuccessful in their effort to meet and confer.” [ECF No.
48, at 2].
Defendant responded in opposition to this motion because “the Motion [was]
not what it purport[ed] to be” as it went well beyond sealing and instead asked for a
determination of privilege under Federal Rule of Civil Procedure 45(e)(2)(b). [ECF
No. 51, at 2]. Defendant also claimed that Plaintiffs’ motion “does not reflect what
happened in this case.” Id. at 3. Defendant stated that in the purported “meet and

17

confer on this matter,” Plaintiffs failed to propose redactions, did not identify
specific documents to return, and never proposed a protective order. Id. Defendant
stated that he “would not object to the entry of a protective order or the marking of
certain subpoenaed documents as confidential,” but Plaintiffs never suggested this
course of action and instead “resorted to time-wasting, unnecessary motions
practice” before the Court. Id. As such, Defendant stated that the Court would
“waste resources conducting a confidentiality review when Plaintiffs have not
meaningfully attempted to resolve that issue with Defendant.” Id.
First, Plaintiffs’ motion was filed in contradiction to Local Rule of Civil
Procedure 5.2.1, which provides that redaction would be the appropriate remedy in
filing confidential information such as social security numbers. Moreover, Plaintiffs’
misrepresentation of the meet and confer is concerning to the Court. 10 Plaintiffs
alleged that “the attempt to meet and confer on this matter was unsuccessful,”
[ECF NO. 48-1, at 9], but Plaintiffs’ letter failed to propose any protective measures
and instead demanded that Defendants “immediately cease and desist from any
further use of and/or publication of any of this information until fully addressed by
Judge Goodwin and any other court in our soon to be filed motions we believe may
have jurisdiction to address these issues.” [ECF No. 41-1, at 2]. Plaintiffs also stated
that they “intend to fully pursue all remedies against” the parties involved and that

It should be noted that Defendant—and not Plaintiffs—attached the email exhibits to the court
regarding the disclosures made in response to the subpoena. See [ECF No. 41 (“Response by Brian
Dooley Kent in opposition to . . . SECOND MOTION . . . for an Order Disqualifying Bailey & Glasser,
LLP”)].
10

18

Defendant and BG “should promptly provide notice to [their] insurance carrier.” Id.
at 3.
In short, Plaintiffs requested a determination of privilege in the Omnibus
Renewed Motion to Seal without providing any evidence or caselaw to suggest that
such information disclosed via subpoena was, in fact, privileged. Further, Plaintiffs
apparently mischaracterized their discussions with BG in its motion by stating that
the attempt to meet and confer was “unsuccessful.” [ECF No. 48, at 2]. This
required Defendant to file a response correcting the record, wherein he explained
that Plaintiffs only threatened further litigation but failed to propose redactions,
failed to suggest a protective order, and failed to identify what specific documents
should be returned. As such, I find that this Omnibus Renewed Motion to Seal—
which requested the Court’s determination of privilege without any basis in law or
fact for why the documents were privileged—was brought in bad faith, and it
multiplied the proceedings because it caused unnecessary litigation before the court
that could have been avoided. This motion required Defendant to respond and
correct the record, which caused Defendant to wrongfully incur attorneys’ fees.
Therefore, Defendant’s motion is GRANTED insofar as it relates to fees incurred in
responding to this motion.
D. Alleged Discovery Failures
Finally, Defendant alleges that there were numerous discovery failures
throughout the litigation. In addition to Plaintiffs’ failure to serve a single discovery
request, Defendant also argues that Plaintiffs “fielded baseless objections, withheld

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documents, and failed to conduct meaningful searches of their own data” in
responding to Defendant’s discovery requests. [ECF No. 63, at 5]. However, I need
not determine whether this conduct was done in bad faith because I do not find that
these discovery failures unreasonably and vexatiously multiplied the proceedings.
Even if Plaintiffs attempted “to stall the discovery process,” see Sweetland, 241 F.
App’x at 97, Defendant did not file any motions to compel documents and, therefore,
did not engage in litigation before the Court based on the discovery disputes. As
such, there was no unreasonable and vexatious multiplication of proceedings nor
costs wrongfully incurred due to Plaintiffs’ alleged discovery misconduct. See Six,
891 F.3d at 520.
IV.

Conclusion
For the foregoing reasons, Defendant’s Motion for Attorneys’ Fees under 28

U.S.C. § 1927 is DENIED with the exception of an award of attorneys’ fees caused
by responding to Plaintiffs’ Second Motion to Disqualify Bailey & Glasser, [ECF No.
39], and the Omnibus Renewed Motion to File Documents Under Seal, [ECF No.
48]. As to those two matters, the motion is GRANTED. The reasonable amount to be
awarded to Defendant is HELD IN ABEYANCE until the Court can review the
detailed breakdown of the attorneys’ bills. I ORDER Defendant to provide copies of
the attorneys’ bills for the Court’s review within ten days from the date of this
Order. The court DIRECTS the Clerk to send a copy of this Order to counsel of
record and any unrepresented party.
ENTER:

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February 5, 2024