Judge Ryskamp's 1927 Sanctions By Default Upheld by 11th Circuit!

After granting summary judgment on a discriminatory housing claim against the city of Jupiter, the city sought fees under both sections 1988 and 1927.  Judge Ryskamp allocated $82k in sanctions under section 1927 against both the plaintiff and its attorneys.

The 11th Circuit upheld in an unpublished decision, with visiting MD FL Judge Whittemore dissenting:

After receiving notice of what conduct was alleged to be vexatious, in bad faith, and multiplicitous, Plaintiff’s Counsel did not respond at all to this April 29 motion within the time limits prescribed by the Local Rule governing motions practice in the Southern District of Florida, thereby placing Counsel in default and providing the district court with a sufficient basis for granting the April 29 motion as to the entitlement issue. See S.D. Fla. L.R. 7.1(c) (stating that “[e]ach party opposing a motion shall serve an opposing memorandum of law no later than fourteen (14) days after service of the motion. Failure to do so may be deemed sufficient cause for granting the motion by default.”).

And Plaintiff’s Counsel, by their default, admitted the factual allegations of vexatious conduct, bad faith, and multiplicity of proceedings contained in the 18-page, April 29 motion for attorneys’ fees under § 1927 against Plaintiff and its counsel. .... By virtue of their default, Plaintiff’s Counsel admitted the allegations in the April 29 motion, which were that they pursued a baseless claim knowing no evidence supported it, that this was vexatious conduct that amounted to bad faith, and that as a direct result of their unwillingness to abandon the clearly baseless claim, the Defendants had to defend themselves in the second summary judgment proceedings and the Young II appeal. The April 29 motion clearly alleged that all of the post-remand proceedings amounted to a bad faith pursuit of a baseless claim against Defendants Lukasik and Lecky without any evidence. Since that factual basis of the § 1927 motion was admitted by default, there was no factual dispute for the district court to resolve as to entitlement.

Ouch!

But Judge Whittemore says you need more than that to impose sanctions against counsel:

The district court’s initial fee award was only against Plaintiff Young Apartments. Indeed, in its October 12, 2011 order, the district expressly declined to award fees against Tedards and Weeks. In response, Defendants sought clarification, seeking a joint and several award of a portion of the fees against both attorneys under § 1927. Notwithstanding that the time to respond to the motion had not expired, the district court essentially reversed itself, modified its order, and imposed the challenged sanction against the attorneys. Counsel’s timely response in opposition to the motion was therefore rendered moot. Their motion to amend/correct the order was denied by the district court on the basis of the “prior default.”

This sounds like a nightmare scenario.

Judge Whittemore concludes as follows:

I agree with the majority that Tedards and Weeks were on notice that they faced potential liability under § 1927. Defendants’ initial motion for attorney’s fees cited 28 U.S.C. § 1927 and expressly sought a joint and several award against the attorneys. The district  court, with which the majority agrees, essentially concluded that by failing to respond to the initial motion seeking attorney's fees, the attorneys defaulted on the issue of entitlement and waived the right to be heard. While the term “default” may accurately describe the posture Tedards and Weeks put themselves in initially, I do not believe that under the circumstances they waived the right to be heard on joint and several liability or, just as importantly, on the amount of the sanction.

En banc time?

11th Circuit Reverses Judge Ryskamp in 18th Century Historical Dispute!

It's rare, given the standard, for an appellate court to reverse the factual findings of a district judge made during a bench trial.

It's even rarer when the subject matter is an arcane dispute that dates back to Napoleon times.

First, get a load of the parties:

Plaintiff-Appellant Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta (Plaintiff Order) is a religious order of the Roman Catholic Church that undertakes charitable work internationally. Defendant-Appellee The Florida Priory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order (The Florida Priory) is also a charitable organization, having an expressly ecumenical, rather than Catholic, association.

Then there's the factual history, recounted like it came from a Dan Brown novel:

According to these witnesses, Plaintiff Order was founded in Jerusalem in the eleventh century. (D.E. 144, 37:11–12.) It relocated to the City of Acre and later to the island of Rhodes, where it was known as the Knights of Rhodes. (Id. at 37:12–16.) After spending about two hundred years on the island of Rhodes, the group located in Malta (becoming the Order of Malta), which had been ceded for the Order’s use by Emperor Charles V. (Id. at 37:16–18.).....Around 1797 or 1798, the Order of Malta was suffering financial hardship and sought monetary support from Czar Paul I of Russia. (Id. at 108:20–109:3.) Two knights went to Russia seeking to obtain the property of the former Polish priory, and out of this visit came an agreement to create a Catholic-affiliated Russian priory. (Id. at 110:25–111:9.)

In 1798, Napoleon expelled the Order of Malta and its knights from the island of Malta, and the organization relocated to present-day Italy. (D.E. 144, 37:17–19; D.E. 145, 111:13–25.)2 The Order of Malta’s Grand Master at the time, Ferdinand von Hompesch zu Bolheim, wrote to Czar Paul I for support after this expulsion. (D.E. 145, 111:12–18.) Czar Paul I, in response to the request for assistance and “for reasons best known to himself,” created a non-Catholic order for the non-Catholic members of his court. (Id. at 112:6–10.) What happened next forms the crux of both parties’ historical arguments.

Ok, I've had enough.

Listen, nobody loves history more than I do, but if tune into the History Channel it's because I'm interested in ancient sex or Bigfoot.

(Actually, it's just a matter of time before those two concepts converge).

Judge Ryskamp Dismisses With Prejudice Groundwater Contamination Case!

It turns out that a few years ago a bunch of poor minority residents living in the Acreage area of western Palm Beach County learned that they had unusually high rates of cancer -- a "cancer cluster" -- not exactly great for property values (let alone health).

These residents then sued aeronautics giant Pratt & Whitney for contaminating their groundwater, claiming that the contamination emanated from a plant located several miles away.

On a second amended complaint, Judge Ryskamp dismissed the action with prejudice, relying on Iqbal and a lack of specificity in the allegations.

Here's an example:

The closest Plaintiffs come to making a specific allegation that something traveled from Pratt & Whitney to the Acreage is in Paragraphs 236 and 238, but those fall short of the mark. Plaintiffs allege that Pratt & Whitney and The Acreage “are underlain by” the same aquifer, and that “groundwater is drawn” from the Corbett Wildlife Management Area and Pratt & Whitney to the Acreage. Complaint, ¶236. Plaintiffs then allege that their experts:

confirm that the types of CCOCs . . . known to have been spilled . . . at the P&W site and by Pratt & Whitney in the Corbett National Wildlife Refuge [sic] have traveled to and physically invaded The Acreage, and are present in the groundwater of The Acreage Neighborhood and have contaminated the groundwater that the Plaintiffs’ and class members’ properties share with [THMs].

Sec. Am. Compl., ¶238. This allegation superficially appears specific, but is yet another generalized allegation that the “types of CCOCs” found at Pratt & Whitney traveled to somewhere under “The Acreage”—as opposed to under each Plaintiff’s property—and that these types of CCOCs “are present” in “the groundwater of The Acreage Neighborhood.” The mere allegation that chemicals at Pratt & Whitney “are present” in the groundwater of “the Acreage” does not mean that the chemical traveled from Pratt & Whitney to the Acreage, as any chemical in the Acreage could have come from a different source than Pratt & Whitney.

YUM -- time to bottle and sell that delicious vaguely contaminated Acreage water!

(Maybe they can sell some to that nearby Pratt & Whitney plant?)

BTW, plaintiffs' lawyer Craig Zobel said he had plenty of evidence:

“We respectfully disagree,” he said. Contrary to Ryskamp’s ruling, Zobel said, he submitted thousands of pages of records linking Pratt & Whitney to the cancer cluster. He hired an appraiser, who reviewed all 17,000 pieces of land and methodically showed how property values plunged. He hired hydrologists to track how toxins moved through underground water supplies. He hired urologists and toxicologists who linked Magaly Pinares’ kidney cancer to the toxins found in her well.

“We had a wealth of data,” he said.

But how much of it was in the second amended complaint?

Once More Unto the Settlement Offer Breach, My Friends!

Did you know settlement offer law in Florida is hopelessly screwed up and has been for a long time?

Then you haven't been paying attention!

Today's installment is an effort by the mighty 11th to clarify a common defense tactic -- picking off a statutory claim by offering one dollar more than the maximum statutory damages, hah hah you don't have standing anymore because we offered to make you whole.

Anyway, it was before Judge Ryskamp, involves FDCPA, and here is how it was framed:

Appellants Anthony W. Zinni, Blanche Dellapietro, and Naomi Desty appeal the district court’s dismissal of their complaints for lack of subject matter jurisdiction. In each case, an Appellee2 sent an e-mail offering to settle an Appellant’s FDCPA case for $1,001—an amount exceeding by $1 the maximum statutory damages available for an individual plaintiff under the FDCPA.3  Appellees also offered attorneys’ fees and costs in each case, but did not specify the amount of fees and costs to be paid. Appellants did not accept the settlement offers. The district court subsequently granted Appellees’ motions to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), holding that the offers left Appellants with “no remaining stake” in the litigation. The district court then dismissed Appellants’ complaints with prejudice. We conclude the settlement offers did not divest the district court of subject matter jurisdiction.

The reason?

Simple, kids -- you need to include an offer to have judgment entered against your client, too:

The district court erred in finding Appellees’ settlement offers rendered moot Appellants’ FDCPA claims because the settlement offers did not offer full relief. See id. Each of the Appellants requested that the district court enter judgment in his or her favor and against an Appellee as part of the prayer for relief in the complaint. Appellees’ settlement offers, however, did not offer to have judgment entered against them. Because the settlement offers were not for the full relief requested, a live controversy remained over the issue of a judgment, and the cases were not moot. See Friends of Everglades, 570 F.3d at 1216. 

A judgment is important to Appellants because the district court can enforce it. Instead, with no offer of judgment accompanying Appellees’ settlement offers, Appellants were left with a mere promise to pay. If Appellees did not pay, Appellants faced the prospect of filing a breach of contract suit in state court with its attendant filing fees–resulting in two lawsuits instead of just one.

BTW, the 11ith noted that the Appellants' argument -- successfully adopted by the 11th -- was dismissed by the district judge as "nonsensical."

Guess that's why they have appellate courts?

Judge Ryskamp Affirmed In Reducing FLSA Attorney's Fee Request

Boy oh boy, posts about two of my favorite subjects all in one day.

I know -- going to the well.

So you guys remember the time Judge Ryskamp slashed fees in a FLSA case by 60 percent because of excessive requests for extension of time to respond to discovery?

You're right, let me be more specific:

The Court is concerned, however, that the total number of hours claimed, 547.5, is unreasonable. Plaintiffs filed an extraordinary number of motions for extensions of time in this matter. Indeed, on August 16, 2007, the number of extensions requested from Plaintiffs became so excessive that the Court barred Plaintiffs from seeking any further extensions. The extensions were largely filed because Plaintiffs struggled with responding to discovery requests in a timely manner. Plaintiffs’ counsel billed for time spent requesting these extensions. Defendant cannot be expected to bear the financial burden for Plaintiffs’ counsel’s inability to comply with discovery deadlines. Plaintiffs' dilatory conduct reached the point Defendant was forced to file a Motion to Compel Discovery and Deem Facts Admitted. Plaintiffs' counsel also spent several hours drafting an opposition to Defendant’s motion for rehearing regarding the motion to amend the complaint. Defendant filed a motion for rehearing due to a clerical error on the part of the Court: the Court initially granted the motion to amend because it failed to note that Defendant had filed an opposition to same. It was plain from the docket that the order granting the motion to amend was premised on the administrative error, but Plaintiffs nonetheless opposed the motion for rehearing. Plaintiffs have also submitted fees in a relation to a summary judgment motion, but Plaintiffs never moved for summary judgment in this matter. The hours spent researching and preparing this motion are not compensable because they had no effect on the outcome of this matter.

This litigation was not complicated. Litigation of this matter consisted largely of responding to discovery requests, examining the applicability of potential defenses and negotiating settlements. Although this matter involved 11 Plaintiffs, FLSA cases frequently have multiple plaintiffs. The larger number of plaintiffs in this matter did not alter the legal complexity of this case: this case boiled down to a question of numbers – the amount of additional compensation to which Plaintiffs were entitled. The legal questions presented in this case were not difficult or novel. The motions practice was virtually nonexistent; there was no motion to dismiss, nor was there was there a motion for summary judgment. The Court therefore applies a 60% reduction to the number of hours each counselor or paralegal claimed in this matter, reducing the number of hours claimed from 547.5 to 219.

Ouch.

The Judge also denied any discovery into what defense counsel billed in defending the case and also any time spent trying to get at those figures. He even bounced as unsubstantiated a request for travel expenses to take two depos in Tampa, even though no one disputes the depos were taken. Maybe they used a teleporter to get there?

So plaintiffs' counsel -- the lovely and talented Melanie Damian and the not especially lovely but also talented Tim Schranck (I hope I spelled it right this time, Tim!) -- took it up, and in an order today the 11th affirmed, and included this cryptic statement:

Finally, we conclude appellants’ claim of bias is meritless.

First of all, sorry about the hit, fellas.

Second -- anyone know what that last line is about?