AND IF YOU ARE GOING TO SEEK SANCTIONS — DO NOT OVERREACH .
improperly filed to begin with based on the consents at issue instead of just focusing on the arbitration issue .
Specifically the Court found “ the conduct of Plaintiff ’ s counsel was disappointing and frustrating to the Court [,]” and while “ the uncooperative conduct of Plaintiff ’ s counsel may have contributed to additional briefing in this case , there is simply insufficient evidence to establish that Plaintiff ’ s counsel acted with objective bad faith such that an award of fees ” is required . This is true because “ Plaintiff ’ s counsel explained his purported investigative process in this case , which the Court finds marginally sufficient under the facts of this case .”
Get it ?
Even though the court was annoyed with Plaintiff ’ s counsel ’ s behavior , because the Defendant focused on the bringing of the case instead of the misconduct in connection with the arbitration motion , the Court denied sanctions .
Indeed , the court really belabors the point here :
The Court is concerned that Plaintiff ’ s counsel ’ s actions in this case ( including his failure to fully , properly and timely confer with opposing counsel ) tied to the Motion to Compel Arbitration and to Dismiss or Stay Proceedings Pending Arbitration and the Motion to Stay Non-Arbitration Discovery Pending Ruling on Motion to Compel Arbitration [ DE 35 ] are questionable , frustrating , and not up to the high standards this district expects from counsel . The Court had to issue more than one order to get a straight answer from Plaintiff ’ s counsel . See DEs 39 ; 43 . The actions of Plaintiff ’ s counsel in relation to DE 34 and DE 35 exhibit his unwillingness to engage in proper , good faith conferral , and likely resulted in additional fees incurred by Defendant . For this reason , this Court has closely considered imposing sanctions . . .
You can see from this blurb that the Court really was ticked off about the whole arbitration issue , but it was simply not at all concerned with the investigative efforts leading up to the filing of the case to begin with . So if Defendant had focused its fire on that issue , it may have actually won .
But it gets worse for the Defendant .
The Court goes on to say that “ Plaintiff ’ s counsel ’ s dilatory practice in opposing the motions and then later not opposing them could certainly justify reasonable expenses , including reasonable attorneys ’ fees . . ..” However , “ Defendant ’ s counsel , [ won ’ t name ] was dilatory [ i . e . too slow ] in filing the motion for sanctions .” Therefore , the Court found “ any request for reasonable expenses , including reasonable attorneys ’ fees , is untimely .”
This is so because the case was dismissed in January of 2023 but the sanctions weren ’ t sought until June of 2023 .
Eesh .
So the Court determined that the fivemonth delay in bringing the motion for sanctions was sufficient to deny sanctions altogether and even calls out the defense lawyer by name for being “ dilatory .”
That is rough treatment at the hands of the Court and undoubtedly a reflection of the frustration the court felt with both counsel here .
The court gives everybody one final admonition on behaving themselves in court :
The attorneys involved in this case have many prior and current cases together and obviously dislike each other greatly . Such acrimony only serves to increase the complexity , duration , costs and expenses of the litigation . It is certainly not in the interest of judicial or attorney economy . [ Plaintiff ’ s Counsel ] is cautioned that future failures to confer fully and in good faith in other cases in this district may subject him to sanctions . The Court frankly cannot fathom how a simple TCPA case like this can engender such animosity between the parties ’ counsel . It is not how the practice of law is supposed to be . . .
The Czar could not agree more .
While it is extremely frustrating for a TCPA defendant to be facing a lawsuit — especially one where a Plaintiff might have set up the claim — you have to be smart and keep a cool head . You never want to throw good money after bad . That ’ s why I rarely suggest bringing a motion for sanctions — especially in a case where a Plaintiff is represented by competent counsel .
It might feel good to lob that motion for sanctions at the court , but it almost never wins . And it doesn ’ t make you seem like a tough guy either , just a dumb guy . Unless you have something really compelling — keep your money in your pocket .
AND IF YOU ARE GOING TO SEEK SANCTIONS — DO NOT OVERREACH .
Keep the motion straightforward and simple . Focus on the specific local rules that were violated . Have clear evidence of those violations . And demonstrate precisely what harm flowed from them . Important stuff .
Further , federal courts appreciate — and require — civility between combatants . You do not need to get huffy and name call to win . There is a reason Plaintiffs lawyers both respect and fear the Czar . Gentleman lawyer . At least , I sincerely try to be .
And that ’ s why the Plaintiff ’ s lawyers come on my podcast and give me all their secrets . Ha ! ( For an example , visit youtube . com / watch ? v = wrg5AGOp1VU .)
TROUTMANAMIN . COM • 23