The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
W. H. Brady Co. ("Brady") brought this action against LEM
Products, Inc. ("LEM") for trademark violations and unfair
competition. LEM counterclaimed alleging violations of Sections
1 and 2 of the Sherman Act, 15 U.S.C. § 1 and 2, and unlawful
price discrimination under Section 2(a) of the Robinson-Patman
Act (the "Act"), 15 U.S.C. § 13(a).
In its December 19, 1980 memorandum opinion and order this
Court ruled on the parties' cross-motions for partial summary
judgment on LEM's claim under the Act. Both motions were
denied, but this Court entered an order limiting the issues
remaining for trial. It did so because LEM had presented
evidence supporting possible Robinson-Patman claims as to only
4 of the 47 companies allegedly involved.
LEM immediately moved for reconsideration of that order by
proffering a substantial amount of new evidence. In its May 11,
1981 memorandum opinion and order (the "Opinion") this Court
granted the motion to reconsider in principal part. However,
for the reasons stated in the Opinion it invoked 28 U.S.C. § 1927
("Section 1927") to require LEM's counsel to satisfy
personally the costs, expenses and attorney's fees and costs
incurred by Brady because of the motion to reconsider and two
related motions to strike. LEM has now moved to vacate that
imposition of sanctions. For the reasons stated in this
memorandum opinion and order that motion is denied.
On September 12, 1980 Section 1927 was amended to provide:
Any attorney or other person admitted to conduct cases in any
court of the United States or in any Territory thereof 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.
That provision permits this Court to impose attorneys' fee
liability (as well as the court costs and expenses previously
permitted) upon lawyers who intentionally abuse the judicial
process so as to cause their opposing counsel unnecessary
expense and delay. See, North American Foreign Trading Corp.
v. Zale Corp., 83 F.R.D. 293, 297 (S.D.N.Y. 1979).
It is a fundamental principle of procedure, of which LEM's
counsel must be considered to have been aware, that all
necessary evidence must be presented on a motion for summary
judgment. Southern Rambler Sales, Inc. v. American Motors
Corp., 375 F.2d 932, 937 (5th Cir. 1967). As the Advisory
Committee to the 1963 amendments to the Federal Rules of Civil
Procedure put it:
The very mission of a summary judgment procedure is to pierce
the pleadings and to assess the proof in order to see whether
there is a genuine need for trial.
That purpose can be served only if there is a full
presentation of all relevant evidence. By their noncompliance
with such a basic and long-established principle of summary
judgment procedure, LEM's counsel "multiplie[d] the proceedings
. . . unreasonably and vexatiously. . . ."
Brady's arguments in support of its motion for summary judgment
were not complex. There was no mystery as to the evidence
necessary to refute them.
For the majority of companies involved in LEM's Robinson-Patman
claim, Brady contended that LEM lacked standing because it
never actually sought to solicit sales from those companies.
Meeting that contention obviously called for evidence that
LEM's sales representatives did in fact attempt to solicit
Nonetheless LEM's initial briefing of the motions for summary
judgment presented evidence of its attempted solicitation of
sales from only 2 of 36 companies. Only after this Court had
ruled that LEM's Robinson-Patman claims would be limited to
charges of price discrimination involving just those two
companies did LEM seek (and obtain) ...