Plaintiff brought a discrimination case against his employer after he failed a drug test and was terminated. Plaintiff brought claims under 42 USC 1981 and the New Jersey Law Against Discrimination. Defendant obtained summary judgment and then sought legal fees pursuant to 42 USC 1988 and 28 USC 1927. The court denied the fee-shifting request, even though plaintiff’s case was “thin.” The court complained that the defendant did not seek sanctions before summary judgment was granted:
Even though defendant complained to plaintiff’s counsel and to the magistrate judge about its perceived shortcomings of plaintiff’s case and counsel’s involvement, it does not appear that defendant filed any formal motions for sanctions before the magistrate judge or this Court. Federal Civil Procedure Rules 11 and 37 exist to rectify all of defendant’s concerns — at the time the concerning actions are occurring — that defendant has raised in its after-the-fact motion.
The Court acknowledges that plaintiff’s case was thin, and that plaintiff’s counsel would not have disserved his client if he advised plaintiff to voluntarily relinquish his claims prior to summary judgment. The Court also acknowledges the time and expense suffered by defendant as a result of plaintiff’s ultimately unmeritorious claims against it. But the Court cannot find that the circumstances of plaintiff’s claims and counsel’s actions rise to the level that warrants the imposition of sanctions against plaintiff or his counsel.
Source: Acevedo v. FLUOR ENTERPRISES, INC., Dist. Court, D. New Jersey 2016 – Google Scholar