United States District Court, D. Columbia
August 22, 2005.
PANNONIA FARMS, INC., Plaintiff,
RE/MAX INTERNATIONAL, INC., et al., Defendants.
The opinion of the court was delivered by: RICHARD LEON, District Judge
MEMORANDUM OPINION (August 15th, 2005) [# 37, # 40]
Before the Court are defendants' motions for attorney's fees
and costs. Defendant Jon Lellenberg seeks fees and costs pursuant
to 17 U.S.C. § 505. Both Lellenberg and defendant RE/MAX
International, Inc. ("RE/MAX") seek sanctions against Pannonia
Farms and its attorney, Bernard Dietz, for violating
28 U.S.C. § 1927 by continuing to pursue this suit after a New York federal
court ruled that the plaintiff did not have standing to bring
suit for violations of intellectual property rights. For the
following reasons, the Court GRANTS IN PART AND DENIES IN PART
Lellenberg's motion and DENIES RE/MAX's motion. ANALYSIS
I. Lellenberg's Request For Attorney's Fees
The Federal Rules of Civil Procedure state that "unless
otherwise provided by statute or order of the court, the motion
[for attorneys' fees] must be filed no later than 14 days after
entry of judgment." Fed.R.Civ.P. 54(d)(2)(B). Lellenberg met
the filing requirement of this rule because he filed his motion
for fees on April 4, 2005, which was 14 days after judgment was
entered in his favor. For the reasons set forth in the Court's
March 21, 2005, Memorandum Opinion, the Court hereby awards
attorney's fees to Lellenberg for his preparation and litigation
of the Supplemental Motion to Dismiss Based on Collateral
II. Lellenberg's Request For Costs
As the prevailing party in this action, Lellenberg is entitled
to seek costs under 17 U.S.C. § 505, which provides "that the
court in its discretion may allow the recovery of full costs by
or against any party other than the United States or an officer
thereof." However, absent an award of attorney's fees in the
judgment, a party must file a bill of costs within 20 days after
entry of judgment terminating the case. LCvR 54.1. On March 21,
2005, the Court entered judgment in favor of Lellenberg, but did
not award attorney's fees at the time. Pannonia Farms, Inc. v.
RE/MAX Int'l, Inc., No. 01-1697, 2005 WL 670193, *4 (D.D.C.
March 21, 2005). Lellenberg subsequently requested attorney's
fees on April 4, 2005. That motion, however, did not address
costs, and Lellenberg failed to file a bill of costs within the
20-day window allowed by the local rules. To date, no request for
an extension has been either requested or granted. Accordingly,
Lellenberg's request for costs is too late and he is not entitled
to recover costs.
III. Request For Sanctions Under § 1927
Section 1927 permits the Court to sanction counsel for excess
costs derived from the vexatious multiplication of proceedings:
Any attorney or other person admitted to conduct
cases in any court of the United States or 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.
28 U.S.C. § 1927. To recover costs under § 1927, this Circuit
requires that the conduct be either reckless or in bad faith.
LaPrade v. Kidder Peabody & Co., Inc., 146 F.3d 899
, 906 (D.C.
Cir. 1998). This Court already found that it was "objectively
unreasonable for Pannonia Farms to continue to pursue any of the
intellectual property claims after the New York federal court
found that it did not have ownership interests." Pannonia, 2005
WL 670193, at *3. Accordingly, the issue before this Court is
whether Pannonia Farms' refusal to voluntarily dismiss its suit
after the New York decision amounted to vexatious and reckless
conduct. It does not.
While it was unreasonable for Mr. Dietz to assume that this
Court would not collaterally estop his claim, he did seek to stay
this action until the Second Circuit ruled on his appeal. Mr.
Dietz's refusal to voluntarily dismiss his suit thus does not
amount to vexatious or reckless behavior sanctionable under §
1927. See, e.g., LaPrade v. Kidder Peabody & Co., Inc.,
146 F.3d 899, 905 (D.C. Cir 1998) (holding that the imposition of sanctions was warranted because
the plaintiff's attempt to evade the jurisdiction of a D.C.
district court by requesting an order from a New York state court
amounted to unreasonable and vexatious behavior); Reliance Ins.
Co. v. Sweeney Corp. 792 F.2d 1137, 1139 (D.C. Cir. 1986)
(holding that sanctions were warranted because defendant's appeal
was brought only to harass and delay, evidenced by defendant's
failure to explain, in writing or at oral argument, any facts
that supported its case); Healey v. Labgold,
231 F. Supp. 2d 64, 67 (D.D.C. 2002) (holding that the plaintiff violated § 1927
by filing a complaint that contained counts that another district
court had already determined the plaintiff had no standing to
bring). Accordingly, the Court finds that Mr. Dietz's conduct is
not sanctionable under § 1927 and denies defendants' request for
costs, fees, and expenses pursuant to § 1927.
For the foregoing reasons, the Court grants Lellenberg's motion
for attorney's fees, denies Lellenberg's motion for costs, and
denies defendants' motion to sanction Mr. Dietz under § 1927. An
order consistent with this ruling accompanies this Memorandum
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