Month: August 2018

Lawyers Sue Client For Legal Fees And Seek Rule 37 Sanctions


Center for Individual Rights v. Chevaldina (S.D. Florida)

The Plaintiff is a law firm that represented Chevaldina in a copyright case. Plaintiff sued Chevaldina for legal fees after the copyright case was settled by another law firm. Plaintiff claimed that Chevaldina did not prosecute its claim for a legal fee award from the court. The law firm was suing for the failure of the plaintiff to pursue a claim for legal fees.

The law firm sought discovery from Chevaldina, but she did not produce documents. The law firm then filed a motion for a default judgment under Rule 37, which allows the court to enter a default judgment against a party that fails to participate in discovery.

Because Chevaldina was pro se, the court declined to award sanctions. It reasoned that Chevaldina did not fully understand her obligations to produce documents and denied the default judgment.

In conclusion, the court gave a pro se litigant a break in this case.

Defamation Claim Dismissed – But Plaintiff’s Lawyers Escape Sanctions


This is a fairly typical situation in litigation. The plaintiff, Redmonds Enterprise, Inc. sued CSX Transportation, Inc. for defamation and other related tort claims. The case grew out of a vandalism incident at a CSX rail yard. Redmonds alleged that a CSX employee sent an email that defamed Redmonds by blaming Redmonds for the vandalism.  During discovery, it became apparent that the author of the email, Rick Omer, was not a CSX employee and there was apparently no evidence that he existed at all.  Furthermore, there was no evidence that anyone at CSX sent a defamatory email to anyone about Redmonds. The court granted summary judgment in favor of CSX and dismissed the case.

CSX moved for sanctions pursuant to Rule 11 and Section 1927. The district judge denied the sanctions motion. This is the key paragraph of the opinion:

While it is a close question, it is not clear that sanctions are warranted under either Rule 11 or § 1927, although the dilatory conduct of Redmonds’ non-local counsel, Mr. Jenkins, was irresponsible, to say the least. CSX argues that sanctions should be imposed because Redmonds refused to dismiss the case after the Orner email was not uncovered during discovery. But, there is no evidence to suggest Redmonds did not have a colorable basis for filing its complaint initially. Redmonds had experienced a decline in business, and had been told this decline was attributable to a defamatory email from a CSX employee. Refusal to dismiss the complaint after discovery is not a basis for Rule 11 sanctions. See Brubaker, 943 F.2d at 1381; Simpson, 900 F.2d at 36-37. After conducting discovery, Redmonds moved to amend its complaint to reflect new evidence uncovered during discovery. Although untimely and ultimately unsuccessful, filing this motion was not entirely baseless, nor an unreasonable multiplication of this proceeding under § 1927. The conduct of Redmonds’ counsel was not as “unreasonable[] and vexatious[]” as the attorney in Salvin, who continued proceedings after his own client’s deposition revealed that there was no basis to her claims, and indeed supported his opposition to the motion for summary judgment with an affidavit in which his client contradicted her own deposition testimony. See Salvin v. American Nat. Ins. Co.,281 Fed.Appx. 222, 225-26 (4th Cir. 2016).[5] The delay in seeking leave to amend after it became clear the Orner email could not be found was irresponsible and, as explained above, was sufficient reason to deny the motion to amend. But the court cannot say it amounted to the bad faith that is required to support sanctions under § 1927. The motion for sanctions will be denied.

This is a very typical situation in a plaintiff’s case. The plaintiff believes he or she was wronged but the lawyer is unable to prove the allegations. The lawyer had a good faith basis for filing the case but the case was ultimately dismissed for a lack of proof.

Redmonds Enterprise, Inc. v. CSX Transportation D. Maryland

Defend Trade Secrets Act – Wikipedia


The Defend Trade Secrets Act, 18 USC § 1836, was enacted in 2016. It is important because it provides federal jurisdiction for disputes over trade secrets. This allows the plaintiff (usually a company claiming that its trade secrets were stolen by the defendant) to bring its claims in federal court.

The elements for a successful claim under the DTSA are:  (1) the existence of a trade secret that relates to a product or service used in, or intended for use in, interstate or foreign commerce; (2) the acquisition of the trade secret, or the use or disclosure of the trade secret without consent; and (3) the person acquiring, using, or disclosing the trade secret knew or had reason to know that the trade secret was acquired by improper means.” Arctic Energy Servs., LLC v. Neal, No. 18-cv-00108-PAB-KLM, 2018 WL 1010939, at *2 (D. Colo. Feb. 22, 2018) (citing 18 U.S.C. §1836(b)(1); 18 U.S.C. § 1839. The DTSA defines “trade secret” broadly to include “all forms and types of financial, business, scientific, technical, economic, or engineering information” so long as “the owner thereof has taken reasonable measures to keep such information secret” and “the information derives independent economic value, actual or potential, from not being generally known to,” or ascertainable by, another person. 18 U.S.C. § 1839(3). See Lowenbro Inspection v. Sommerfield, 18 CV 01943 (D. Colo. August 2018).

via Defend Trade Secrets Act – Wikipedia

Failure to Observe 21-day Safe Harbor Dooms Sanctions Motion to Defeat


A defendant who obtained dismissal of the claims against her on the ground that the diversity amount was not met. The plaintiff sued the Defendant for failing to return his dog to him. (The dog eventually ended up in a shelter in Canada).

Because the defendant did not serve her Rule 11 Sanctions motion and give the plaintiff 21 days to drop her from the case, the sanctions motion was denied.

via Barringer v. Whitworth, Dist. Court, ED Michigan 2018 – Google Scholar