United States District Court, D. Massachusetts
DAVID KAY ELDRIDGE, RAY ELDRIDGE, JR., D. CHRIS ELDRIGE, as trustee, not individually, of the C. ELDRIDGE 1994 GST TRUST, PATRICIA K. SAMMONS, as trustee, not individually, of the P.K. SAMMONS 1994 GST TRUST, C. ELDRIDGE 1994 GST TRUST, P.K. SAMMONS 1994 GST TRUST, and K’S MERCHANDISE MART, INC. Plaintiffs.
GORDON BROTHERS GROUP, LLC, WILLIAM WEINSTEIN, FRANK MORTON, Defendants.
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
Memorandum and Order issued on March 18, 2016, I granted a
motion for Rule 11 sanctions against the Plaintiffs in this
case. Eldridge v. Gordon Bros. Grp., LLC, No. CV
08-11254-DPW, 2016 WL 1089226, at *29 (D. Mass. Mar. 18,
2016). Plaintiffs had, after a direct reminder of the
strictures of Rule 11, filed a cross-motion for summary
judgment, on bases without warrant in the law applicable in
this case. I ordered the Plaintiffs to pay to
Defendants the reasonable costs and expenses Defendants
incurred in responding to Plaintiff’s motion.
Fed.R.Civ.P. 11(c). I directed that those costs were to
include Defendants’ cost of moving for sanctions, but,
“[g]iven the duplicative nature of much in the
cross-motions for summary judgment, ” only to include
those “fees and costs that would not have been incurred
but for Plaintiff’s improvident decision to file its
own motion for summary judgment.” Eldridge at
*29. Defendants have now submitted their application for fees
and costs and I must address whether the amount sought is
consistent with this prior order.
request $35, 000 in sanctions. This figure is not intended to
tally up and compensate for costs precisely, but rather to
provide a rough estimate in line with my March 18, 2016
instructions. In presenting this figure, Defendants report
that the four lawyers most heavily involved in this
litigation billed $106, 996 on relevant activities. The
invoices attached support Defendants’ contention that
only activity necessitated by Plaintiff’s motion for
summary judgment - such as drafting an opposition brief,
responding to Plaintiff’s Local Rule 56.1 statement of
uncontested facts, and preparing a motion for sanctions -
have been included. The $106, 996 sum excludes various
compensable costs, such as the attorneys’ fees of local
counsel and other lawyers involved in the matter, the costs
of paralegals and other support staff, and direct
expenditures other than attorneys’ billable time.
sure, the labor of Defendants’ counsel was not purely
cost without value to Defendants. Because the cross-motions
for summary judgment involved substantially overlapping
issues, Plaintiff’s motion for summary judgment
afforded Defendants additional opportunities to present the
same arguments (already well-developed for their own motion)
to the court a second time; this provided Defendants an
opportunity to double down argument of their contentions in
attempting to quantify the amount of duplication, Defendants
instead present the figure $35, 000 as the sanction they
seek. There is admittedly no detailed justification for the
exact sum. This is roughly a two-thirds reduction from the
fees charged by Defendants’ four primary attorneys.
such estimation to be appropriate here, given my admonition
to avoid duplicative costs. There is no precise way to
disentangle fully the work relating to one motion for summary
judgment or the other. False precision is illusory and
largely beside the point in this setting, particularly given
that Rule 11 is primarily meant to deter, not compensate.
CQ Int'l Co. v. Rochem Int'l, Inc.,
USA, 659 F.3d 53, 62 (1st Cir. 2011). My review is
necessarily qualitative, not quantitative, as a result.
determining exactly how duplicative Defendants’ work
was would require a difficult counterfactual. As Plaintiff
points out, many of the arguments raised in Plaintiff’s
summary judgment motion and then addressed in
Defendants’ opposition brief were also raised in
Plaintiff’s opposition brief. Defendants also filed a
reply brief regarding their own motion. Defendants were
required to do much of the same work to develop a reply brief
on their own motion as they did to develop their brief in
opposition to Plaintiffs’ motion. Even a side-by-side
comparison of the parties’ submissions, therefore,
cannot precisely identify what work was caused on a but-for
basis by Plaintiff’s improvident motion for summary
necessarily imprecise context, I find the $35, 000 sanctions
sought to be reasonable. Certain costs are owed as a matter
of course. First, my previous order specifically allowed for
the recovery of costs associated with moving for sanctions.
Those costs are less duplicative of Defendants’ own
motion for summary judgment, and a review of the invoices
submitted shows a significant amount of time spent on the
sanctions issue. Second, regardless of duplication, some
amount of compensation is owed for the labor involved in
responding separately to plaintiff’s summary judgment
motion. For example, while the chance to respond to
Plaintiff’s 56.1 statement of facts offered Defendants
meaningful litigation benefits, it was nevertheless
time-consuming, especially given the need to marshal
supporting evidence separately, as Defendants were required
to do. I find these two categories of fees and costs
approximate, on their own, one-third of the attorneys’
summary judgment motions also involved slightly different
substantive issues. Defendants identify three arguments made
in Plaintiff’s memorandum in support of summary
judgment that were not addressed in its own summary judgment
(1) a detailed break-out of how Plaintiff claimed that GBG
erred in calculating the amount of the liquidating
distribution to Plaintiff (see Pl.’s Br. at
(2) several different arguments - covering seven pages of the
brief - for precluding the expert report of Jeffrey Szafran,
GBG’s accounting expert (see Id. at 10-18);
(3) that Plaintiff had established as a matter of law, on the
basis of undisputed fact, that GBG had mismanaged the
furniture department of New K’s Merchandise LLC with
resulting damages in the amount of $1, 137, 789 (see
Id. at 18-22).
arguments required some new material in Defendants’
opposition briefing, although Defendants’ opposition
was not entirely novel even on these issues. For example, in
responding to Plaintiff’s claims concerning the
mismanagement of the furniture department, Defendants
identified facts concerning how the department was managed.
These facts were not addressed in Defendants’ own
summary judgment briefing, which emphasized questions of law.
But Defendant also restated its arguments that summary
judgment had already been granted on all implied covenant
claims, including the furniture mismanagement claims.
Defendants’ responses to the other two issues are
similar: Defendant’s opposition brief raised slightly
different, but overlapping, arguments as compared to its
briefing supporting summary judgment. Even so, it is clear
that significant effort, beyond restating Defendants’
own favored summary judgment arguments, was required to
respond to the newly reframed arguments raised in
Plaintiff’s summary judgment motion.
I find $35, 000 to be appropriate and in accordance with the
basis for sanctions I outlined in my March 18, 2016 order.
More fundamentally, this figure fairly furthers - and is
sufficient but no more than ...