The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendant Chicago
Industrial Tire Company's motion for award of $1,392.50 in
excess costs from either or both of the attorneys representing
plaintiff, Overnite Transportation Company, pursuant to
28 U.S.C. § 1927. Defendant's motion is predicated on the theory
that plaintiff's filing of this lawsuit in federal court, its
opposition to defendant's motion to dismiss, and its appeal of
the district court's decision to the Seventh Circuit despite an
obvious absence of subject matter jurisdiction constituted an
unreasonable and vexatious multiplication of proceedings
entitling defendants to recovery of fees and expenses. Because
the Court agrees with this assessment, it will grant
defendant's motion for award of excess costs.
This lawsuit was initiated by plaintiff in the Circuit Court
of Cook County to recover $2,243.72 from the defendant as the
result of an alleged billing error in the shipment of forty
wheels from Hubs and Wheels, Inc. of Saltville, Virginia, to
the defendant. Plaintiff also initiated a similar action in
federal district court alleging that Chicago Industrial Tire
Company, as cosignee of the goods shipped, was unjustly
enriched by the billing error. Although plaintiff sought only
$2,210.00 in damages, it alleged jurisdiction "based on the
Interstate Commerce Act, 49 U.S.C. § 1, et seq." This
Court, dismissed the complaint for lack of subject matter
jurisdiction observing that the "subject of controversy in the
present case . . . is the contract price of the goods shipped,
a matter not in itself regulated by the Interstate Commerce
Act." Overnite Transportation Co. v. Chicago Industrial Tire(June 16, 1981).
Co., 81 C 0747
Plaintiff subsequently appealed the district court's
dismissal to the Seventh Circuit. The Court of Appeals
affirmed this Court's decision on the ground that even if the
Interstate Commerce Act did apply, which it did not, federal
jurisdiction would exist pursuant to 28 U.S.C. § 1337(a) (Supp.
1981) "only if the matter in controversy for each receipt or
bill of lading exceeds $10,000, exclusive of interest and
costs." Overnite Transportation Co. v. Chicago Industrial Tire
Co., 668 F.2d 274 at 275 (7th Cir. 1981). Plaintiff's claim of
$2,210 obviously falls well short of this statutory
requirement.
The vexatious character of plaintiff attorney's conduct in
initiating this lawsuit in federal court and appealing its
dismissal is manifest from the record. The statute from which
plaintiff originally asserted jurisdiction was clearly
inapplicable. Even if the Interstate Commerce Act did apply,
the express terms of 28 U.S.C. § 1337(a) would have prevented
this Court from exercising jurisdiction in any event over a
$2,210.00
claim. Plaintiff's purported reliance on Madler v. Artoe,
494 F.2d 323 (7th Cir. 1974), to support its jurisdictional theory
is equally unpersuasive. In contrast to the present case,
Madler was brought prior to the amendment establishing $10,000
as the jurisdictional amount under 28 U.S.C. § 1337(a). The
Madler plaintiff, unlike the plaintiff in this case, was the
assignee of a cause of action under an express provision of the
Interstate Commerce Act. After reviewing Madler for the second
time, this Court cannot discern any colorable argument upon
which jurisdiction could be asserted in this action.
There is a difference between advancing an unlikely claim
and repeatedly asserting a jurisdictional argument which has
no basis in law. Unfortunately, the conduct of plaintiff's
trial attorney and its attorney before the Seventh Circuit
fall into this latter category. Accordingly, this Court will
grant defendant's motion to award excess costs.
In an effort to apportion the costs of this litigation to
the attorney most responsible for its character, this Court
will direct plaintiff's trial attorney to pay 75 percent of
defendant's costs and its appellate attorney 25 percent of
such costs. Thus, Themis N. Anastos is directed to pay
defendants $1,044.38 and Paul E. Peldyak is directed to pay
defendants $348.12 pursuant to this motion. It is so ordered.
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