Attorneys – Fees – Sanctions – Discovery

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Where a plaintiff, having obtained a jury verdict in its favor, moved for an assessment of fees, costs and expenses against counsel for the defendant, the motion must be denied because defense counsel’s conduct did not rise to the level necessary for 28 U.S.C. section1927 to apply.

“Under section1927, ‘[a]ny attorney or other person admitted to conduct cases in any court of the United States … 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.’ While the First Circuit does not require a finding of bad faith to justify attorneys’ fees under section1927, it has said that sanctionable conduct must be ‘more severe than mere negligence, inadvertence, or incompetence.’ … An attorney’s behavior must ”evince a studied disregard of the need for an orderly judicial process, or add up to a reckless breach of the lawyer’s obligations as an officer of the court.” … [Plaintiff] Ascion has identified several instances of conduct that it characterizes as unreasonable and vexatious within the meaning of section1927. However, for reasons briefly set forth below, I conclude that counsel’s activities do not rise to the level necessary to warrant an award of attorneys’ fees and costs under that statute.

“First, Ascion alleges that counsel engaged in forum shopping by filing a duplicative claim in the Central District of California after the plaintiff had already commenced an action in this Court. Jockeying for a favorable forum is, for good or ill, not uncommon in patent litigation, and what occurred in this instance may have been more than the usual maneuvering. I am not persuaded that it reached section1927’s sanctionable standard. Similarly, although Ascion alleges that [John] van Loben Sels and [Wang, Hartmann, Gibbs & Cauley (WHGC)] engaged in meritless motion practice, again it does not appear clear enough for the imposition of sanctions that counsel’s actions meet the section1927 threshold. …

“As to Ascion’s allegation that counsel instructed the defendants to evade service of process, the evidence is not persuasive enough to convince me that either van Loben Sels or WHGC affirmatively encouraged such behavior by their clients.

“What I find more troubling is counsel’s deposition activities. Ascion alleges that counsel sought to have a party representative attend a deposition in contravention of a court-approved protective order and cancelled depositions with little notice. Rule 37 of the Federal Rules of Civil Procedure provides for contemporaneous sanctions where a party fails to satisfy discovery obligations or attend depositions. I think that in the circumstances, Rule 37 is a more proper vehicle for relief from sanctionable discovery behavior than section1927.”

Ascion, LLC v. Ruoey Lung Enterprise Corp. (Lawyers Weekly No. 02-124-15) (3 pages) (O’Toole, J.) (USDC) (Civil Action Nos. 09-11550-GAO and 09-10293-GAO) (March 13, 2015).

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