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Alston v. Town of Brookline

United States District Court, D. Massachusetts

January 7, 2019

GERALD ALSTON, Plaintiff,
v.
TOWN OF BROOKLINE, MASSACHUSETTS, BROOKLINE BOARD OF SELECTMEN, BETSY DEWITT, KENNETH GOLDSTEIN, NANCY DALY, JESSE MERMELL, NEIL WISHINSKY, BERNARD GREENE, BEN FRANCO, NANCY HELLER, SANDRA DEBOW, JOSLIN MURPHY, each of them in his or her individual and official capacity, and LOCAL 950, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Defendants.

          OPINION AND ORDER

          GEORGE A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE

         The magistrate judge to whom this case was referred issued a report and recommendation (dkt. no. 204) (“R&R”) concerning defendant Stanley Spiegel's Amended Motion for Attorney Fees (dkt. no. 159). The R&R recommends ordering the plaintiff's attorney to pay $20, 396.61 of defendant Spiegel's fees and costs as a sanction for violating Rule 11 of the Federal Rules of Civil Procedure. Defendant Spiegel has filed timely objections to the R&R. No. objection or response was filed by the plaintiff.

         It is important to emphasize that Spiegel does not present a claim based in substantive law for money damages. Rather, his argument is that Ames should be sanctioned-i.e., punished-for litigation misconduct under the authority of Federal Rule of Civil Procedure 11. The purpose of the sanction is to deter similar misconduct in the future. It is not to make Spiegel whole for litigation expenses incurred. The failure of the ordered sanction to make him whole is therefore not a reason to disagree with the Magistrate Judge's analysis.

         After review of the motion papers, affidavits, and billing entries, I OVERRULE defendant Spiegel's objections and ADOPT the R&R in full. I agree that an award of attorney fees in the amount of $43, 560 is greater than necessary to serve as an effective deterrent in this case. The recommended sanction of $20, 396.61, which is itself sizable, appropriately balances Rule 11 deterrence against the very real financial cost to Spiegel.

         It is SO ORDERED.

         REPORT AND RECOMMENDATION ON DEFENDANT STANLEY SPIEGEL'S AMENDED FEE PETITION (#159).

         I. Introduction.

         After a hearing on June 8, 2017, I concluded that defendant Stanley Spiegel's renewed motion for sanctions pursuant to Fed.R.Civ.P. 11 (#91) as to plaintiff's attorney, Brooks Ames, should be allowed (#130), and I issued a Report and Recommendation to that effect on June 9, 2017, which is incorporated here by reference. (#132.)[1] Specifically, I recommended “that under Rule 11(c)(4), the District Court order Attorney Ames to pay attorneys' fees and other expenses incurred by Spiegel after the District Court dismissed the first amended complaint against him and allowed [plaintiff Gerald] Alston to replead.” (#132 at 12.) Attorney Ames objected to the Report and Recommendation. (#138.) Spiegel also filed an objection, arguing that the award of fees should be calculated from an earlier date. (#139.) The district court, O'Toole, J., adopted the Report and Recommendation to the extent that it recommended imposing sanctions, but ordered that the award of fees and expenses should run from the date on which counsel for Spiegel served plaintiff's counsel with a Rule 11 “safe harbor” notice, March 8, 2016. (#153.)

         II. Rule 11.

         Federal Rule of Civil Procedure 11(b) provides, in relevant part:

By presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it-an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
***** (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

See, e.g., Eldridge v. Gordon Bros. Grp., L.L.C., 863 F.3d 66, 87-88 (1st Cir. 2017); Caffeinate Labs, Inc. v. Vante Inc., No. CV 16-12480-GAO, 2017 WL 2889031, at *1 (D. Mass. July 6, 2017) (citations omitted) (“Rule 11 is designed to deter parties from pursuing unwarranted or frivolous claims or defenses.”); Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228, 247 (1st Cir. 2010) (“Rule 11 . . . finds its justification exclusively in deterrence.”).[2]

         Having determined that Attorney Ames violated Rule 11(b) by repeatedly filing essentially frivolous complaints against Spiegel, Rule 11(c)(1) authorizes the imposition of sanctions. See, e.g., Thomas Tierney v. Town of Framingham, No. CV 17-11657-FDS, 2018 WL 850078, at *7 (D. Mass. Feb. 13, 2018). Rule 11 mandates that “[a] sanction imposed under this rule must be limited to what suffices to deter repetition of conduct.” Fed.R.Civ.P. 11(c)(4). When the imposition of attorneys' fees is warranted, the court may issue “an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.” Fed.R.Civ.P. 11(c)(4); see, e.g., Yokozeki v. Carr-Locke, No. CV 13-12587-MBB, 2017 WL 1160569, at *5 (D. Mass. Mar. 28, 2017), on reconsideration in part, No. CV 13-12587-MBB, 2017 WL 2818981 (D. Mass. June 29, 2017). With this framework in mind, the court will first calculate reasonable attorneys' fees and then decide what portion of them should be assessed against Attorney Ames for purposes of deterrence.

         III. Reasonable Attorneys' Fees and Costs.

         Spiegel has filed an amended fee petition in which he seeks $95, 260.00 in attorneys' fees and $1, 424.27 in costs.[3] (#166 ¶ I.) The proposed hourly rate for Attorney Martin Rosenthal and Attorney David Duncan is $500.00 per hour, while the proposed rate for Attorney Naomi Shatz is $300.00 per hour.

         The First Circuit has explained how a court is to calculate reasonable attorneys' fees:

The lodestar approach is the method of choice for calculating fee awards. Under this lodestar approach, a district court first calculate[s] the number of hours reasonably expended by the attorneys for the prevailing party, excluding those hours that are excessive, redundant, or otherwise unnecessary. The court then determines a reasonable hourly rate or rates-a determination that is often benchmarked to the prevailing rates in the community for lawyers of like qualifications, experience, and competence. Multiplying the results of these two inquiries yields the lodestar amount. The court may then adjust the potential award based on factors not captured in the lodestar calculation.

Matalon v. Hynnes, 806 F.3d 627, 638 (1st Cir. 2015) (internal quotation marks and citations omitted); Gross v. Sun Life Assurance Co. of Canada, 880 F.3d 1, 22 (1st Cir. 2018); Hefter Impact Techs., LLC v. Sport Maska, Inc., No. CV 15-13290-FDS, 2017 WL 5798642, at *2 (D. Mass. Nov. 28, 2017); Anderson v. Brennan, 267 F.Supp.3d 270, 274 (D. Mass. 2017). “The party seeking fees must submit evidence in support of the hours worked and rates claimed; if the documentation is inadequate, the award may be reduced.” Marshall v. Rio Grande River Ltd. Partnership, 162 F.Supp.3d 54, 58 (D. Mass. 2016) (citation omitted).

         A. Reasonable Hours Expended.

         This case was overlitigated by Spiegel's lawyers. The allegations against Spiegel in the amended complaint were limited to five paragraphs;[4] the changes from the first to the second amended complaint were cosmetic, and certainly not substantive. Yet Spiegel's bill essentially doubled when the time spent litigating the first motion to dismiss was added to the fee, see n.3, supra. The hours spent on the motion to dismiss the second amended complaint should not have been approximately equal to the time spent on the initial motion to dismiss. Much of the time responding to the second amended complaint was spent repackaging earlier filings. With regard to the second amended complaint, Spiegel filed a motion to dismiss (#80) together with an eight-page memorandum contending that the second amended complaint “does not allege anything substantially new or different about Spiegel's actions.” (#81 at 2.) Plaintiff submitted a nine-page opposition in which he incorporated his opposition to Spiegel's first motion to dismiss and his objection to the Report and Recommendation. (#84.) Spiegel filed a renewed motion for Rule 11 sanctions (#91) and a ten-page reply brief. (#95.)

         On February 1, 2017, I issued a Report and Recommendation (#98) recommending Spiegel's motion to dismiss be granted, with prejudice. Specifically, I noted that

the changes made from the first to the second amended complaint with respect to defendant Spiegel are minimal. Comparison of the two documents reveals that many of the facts and allegations were simply copied and repled in a different paragraph structure. The only arguable substantive changes in the new complaint are as follows: (1) labeling Spiegel an ‘unofficial surrogate' of the Board; (2) the addition of two sentences describing Spiegel's conduct when he confronted the Alston supporter; and (3) additional information about the letter Spiegel circulated to Town Meeting members and a comment Spiegel made at that time.

(#98 at 7.) (internal citations omitted). Plaintiff objected to this Report and Recommendation in a nine-page pleading. (#99.) Spiegel responded with an eight-page response, in which he relied on “reasons that have been repeatedly set out” in his prior filings. (#101 at 8.) In a subsequent pleading, Spiegel again acknowledged that “[g]iven the opportunity to amend his complaint, [Attorney Ames] effectively re-filed the same complaint, adding a handful of immaterial additional allegations.” (#151-2 at 7-8.)

         While Spiegel's counsel views this course of events as underscoring the frivolous nature of Attorney Ames' pleadings, that observation cuts both ways. Since plaintiff's pleadings were repetitious, it was unwarranted for Spiegel's counsel repeatedly to file lengthy responses incorporating versions of the ...


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