United States District Court, D. Massachusetts
OPINION AND ORDER
A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE
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.
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.
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.
AND RECOMMENDATION ON DEFENDANT STANLEY SPIEGEL'S AMENDED
FEE PETITION (#159).
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.) 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.)
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
***** (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
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
Reasonable Attorneys' Fees and Costs.
has filed an amended fee petition in which he seeks $95,
260.00 in attorneys' fees and $1, 424.27 in
costs. (#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.
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)
Reasonable Hours Expended.
case was overlitigated by Spiegel's lawyers. The
allegations against Spiegel in the amended complaint were
limited to five paragraphs; 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.)
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.)
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 ...