Jackson et al v. McKay-Davis Funeral Home Inc et al

Filing 249

ORDER signed by Judge Rudolph T. Randa on 2/20/2013 GRANTING 243 Motion for Attorney Fees. McKay-Davis Funeral Home awarded $2,646.00 in attorneys' fees and $501.36 for costs and disbursements. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MARLENEA JACKSON and
ERICA JACKSON (a minor),
Plaintiffs,

-vs-

Case No. 07-C-1037

MCKAY-DAVIS FUNERAL HOME,
TRAVELERS INSURANCE COMPANY, et al.,
Defendants.

DECISION AND ORDER

On November 6, 2012, the Court issued an order denying the plaintiffs’ motion for Rule
11 sanctions and, in turn, awarding McKay-Davis Funeral Home its reasonable costs and
attorney fees that it incurred in response to the plaintiffs’ Rule 11 motion. The Rule 11 motion
related to McKay-Davis’s motion to reconsider Judge Gorence’s ruling on summary judgment.
The Court found that the plaintiffs’ Rule 11 motion was untimely and that McKay-Davis’s
motion to reconsider “did not run afoul of Rule 11 in any respect.” Jackson v. McKay-Davis
Funeral Home, 2012 WL 5423739, at *3 (E.D. Wis. Nov. 6, 2012). With regard to costs and
fees, the Court agreed with McKay-Davis that the plaintiffs’ motion for sanctions was
“sanctionable in and of itself. The argument that McKay-Davis somehow violated Rule 11 by
offering reasonable arguments in relation to Judge Gorence’s ruling on summary judgment is
simply frivolous, Rule 11(b)(2), and the fact that the plaintiffs waited until after Judge Gorence
issued her ruling suggests that it was brought for an improper purpose. Rule 11(b)(1).” Id. at

*4.
McKay-Davis requests an award of $2,646.00 in attorneys’ fees (19.6 hours of work at
the billable rate of $135.00/hour) and $501.36 for costs and disbursements (Westlaw research)
for a total of $3,147.36. Plaintiffs object to the total number of hours, noting that they spent
only three hours preparing their Rule 11 motion. Of course, McKay-Davis spent only three
hours responding to the threat of sanctions pursuant to the safe harbor provision set forth in
Rule 11(c)(2), and if the plaintiffs would have taken heed and not filed the motion, as they
should have, no more hours would have been wasted dealing with their frivolous motion. More
generally, the fact that the plaintiffs spent just three hours preparing their motion only
demonstrates their own carelessness. The plaintiffs cannot use their own lack of thought and
effort as a weapon to demonstrate that the time and effort spent in response to their motion was
excessive or unreasonable. A party that is publicly accused of filing frivolous papers for an
improper purpose has the right to take the allegation seriously and demonstrate that the opposite
is true. The costs and fees incurred in opposition to the plaintiffs’ Rule 11 motion were
reasonable.
McKay-Davis’s motion for costs and attorney fees [ECF No. 243] is GRANTED.
Dated at Milwaukee, Wisconsin, this 20th day of February, 2013.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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