United States District Court, N.D. Illinois
December 1, 2004.
Lexington Law Firm.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
Before the Court is defendant Lexington Law Firm's motion for
attorneys' fees and costs pursuant to 28 U.S.C. § 1927. Defendant
seeks an award of $15,950.81 for defending plaintiff's motion to
reassign a related case (the D'Agostino case) and for preparing
the § 1927 motion and reply brief. We recommend that the District
Court grant in part and deny in part the § 1927 motion. Under §
1927, an attorney 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.
28 U.S.C. § 1927. Section 1927 explicitly requires that counsel act
unreasonably and vexatiously before sanctions are warranted.
Id.; Kotsilieris v. Chalmers, 966 F.2d 1181, 1184 (7th Cir.
Here, defendant contends that plaintiff's counsel acted
unreasonably and vexatiously in refusing to withdraw its motion
to reassign the D'Agostino case after Judge Castillo granted
defendant's motion to dismiss that case. Edelman, Combs,
Latturner & Goodwin, LLC ("ECGL") argues that it did not withdraw
the motion to reassign based on certain comments that Judge
Castillo made after dismissing the D'Agostino case. ECGL
apparently believed that Judge Castillo wanted Judge Guzman to be
given the opportunity to rule on the motion to reassign. After
reviewing Judge Castillo's comments, we disagree. Furthermore,
Judge Guzman found that because the D'Agostino case had been
dismissed, there was no basis whatsoever to grant the motion to
reassign or the motion to declare D'Agostino a related case.
Defense counsel repeatedly asked ECGL to withdraw the motion
after D'Agostino was dismissed but ECGL refused. Accordingly,
the Court finds that ECGL acted unreasonably and vexatiously in
continuing to pursue the motion to reassign after the
D'Agostino case was dismissed.
The purpose of sanctions awarded pursuant to § 1927 is to
"deter frivolous litigation." Moline v. Trans. Union, LLC,
222 F.R.D. 346, 349 (N.D. Ill. 2004). After the court has found a
violation of § 1927, the court has discretion to award attorneys'
fees. Id. However, a fee award should not compensate for
excessive time spent on a matter and the court also must consider
whether the petitioning party adequately mitigated its own legal
costs. Id. at 350. Here, we find that defense counsel spent
excessive time on both matters related to the motion to reassign
and the § 1927 motion. Additionally, if the motion to reassign
was as baseless as defense counsel contends, local counsel should
have been able to handle the motion. Defense counsel admits that
local counsel was available and the use of local counsel would
have mitigated a large amount of the legal costs sought here.
Because we find that defense counsel failed to adequately
mitigate defendant's legal costs, we recommend that the District
Court deny defense counsel's request for fees and costs incurred
in traveling to Chicago to appear for the motion to reassign.
The Seventh Circuit requires that this Court impose the least
severe sanction that is adequate to serve the purpose of the
rule. Id. at 351. We find that an award of $2010.00 (6 hours at
$335/hour for preparing defendant's opposition to the motion to
reassign and appearing for that motion) is adequate to deter ECGL
from acting unreasonably and vexatiously in the future.
Therefore, we recommend that the District Court order ECGL to pay
defense counsel $2010.00. We recommend that the District Court
deny defense counsel's request for fees incurred in preparing the
§ 1927 motion and reply brief. Specific written objections to
this report and recommendation may be served and filed within 10
business days from the date that this order is served.
Fed.R.Civ.P. 72. Failure to file objections with the District Court
within the specified time will result in a waiver of the right to
appeal all findings, factual and legal, made by this Court in the
report and recommendation. Lorentzen v. Anderson Pest Control,
64 F.3d 327, 330 (7th Cir. 1995).
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