United States District Court, M.D. Georgia, Valdosta Division
LAWSON, SENIOR JUDGE
the Court is Defendant Rascal's Bar & Grill,
Inc.'s (“RBGI”) Motion for Attorney's
Fees and Expenses (Doc. 44). Defendant moves the Court to
impose sanctions in the form of an award of attorney's
fees against Plaintiff and/or his attorney Chevene B. King
pursuant to Federal Rule of Civil Procedure 11 and 28 U.S.C.
§ 1927. Defendant asserts that Plaintiff and/or his
attorney are liable for Defendant's reasonable
attorney's fees and costs incurred in defending this
matter, which are the direct result of Plaintiff and/or his
attorney pursuing patently frivolous claims against Defendant
and causing unnecessary delay. As has become characteristic
in this case, Plaintiff has filed no response to
Defendant's motion. Upon consideration, the Court
GRANTS Defendant's motion.
case has been rife with delay and flagrant neglect by Mr.
King from its inception. On January 4, 2017,  Mr. King filed a
Complaint (Doc. 1) on behalf of Plaintiff Nicholas
Chiacchiarini, alleging that Defendants Lowndes County,
Georgia, Chris Prine, Mike Adams, Jack Priddy, Stryde Jones,
Andrea Watford, Brighton Lampert, and RGBI were liable to
Plaintiff under 42 U.S.C. §§ 1983, 1985, and 1986
for alleged violations of his First, Fourth, Fifth, Eighth,
and Fourteenth Amendments resulting from a serious of events
that occurred at RGBI on January 3, 2015. More than two
months passed before Plaintiff requested that the Clerk's
office issue summons for any of the named defendants. (Docs.
6-14). The Court entered an Order to Show Cause (Doc. 16) on
April 7, 2017, directing Plaintiff's counsel to show
cause why the case should not be dismissed for failure to
serve the defendants within the time frame required by
Federal Rule of Civil Procedure 4(m).
after the Court provided Mr. King the opportunity to explain
why he had failed timely to serve Defendant RGBI, Mr. King
neglected to do so. Instead, Mr. King presented proof of
serving four of the other defendants and suggested that
because those defendants had received service,
Plaintiff's claims against the remaining defendants
should not be dismissed. (Doc. 19). Mr. King made no effort
to provide the Court with any good cause basis to extend the
time for service. Nevertheless, the Court afforded Plaintiff
an additional 10 days in which to serve the remaining
defendants, including RGBI.
Plaintiff finally served RGBI with a copy of the Summons and
Complaint, counsel for RGBI immediately contacted Mr. King by
telephone to inform him that RGBI was not a proper party to
the lawsuit. (Doc. 28-3, p. 2; Doc. 44-1, p. 2). RGBI's
counsel faxed a letter to Mr. King stating the same.
(Id.). As evidence that RGBI was improperly named as
a defendant to this action, counsel for RGBI provided Mr.
King with a copy of the Bill of Sale for the restaurant,
which indicated that on February 1, 2012, three years before
the events relevant to this lawsuit, RBGI sold the
restaurant, its assets, and the “Rascal's”
name to Andrew Corrao. (Doc. 28-2, ¶ 5, p. 4-5; Doc.
44-1, p. 2). Since that time, the restaurant has been
operated by numerous owners. RGBI further informed Mr. King
that on the date in question the establishment was known as
Rascal's Lounge and Restaurant and was owned by Joshua
days following initial contact with Mr. King, RGBI's
counsel again contacted Mr. King and informed him that RGBI
sold the business years before the alleged incident and had
no connection to Plaintiff or the other defendants. (Doc.
44-1, p. 2). Mr. King assured RGBI that he would dismiss the
entity as a party. (Doc. 44-1, p. 2). RGBI's counsel
confirmed this interchange by email several days later. (Doc.
28-3, p. 1).
Mr. King's representation that he would file an
appropriate notice of dismissal with the Court, he did not.
Thus, RGBI was forced to file a motion to dismiss to preserve
its rights. (Doc. 28). Again, Mr. King did not file a
response to RGBI's motion. Even when the Court provided
Mr. King with additional time in which to respond, Mr. King
still refused to capitulate that RGBI was not a proper
defendant and left it to the Court to determine whether RGBI
was properly joined. (Doc. 39). The Court later granted
RGBI's motion. (Doc. 43).
result of Mr. King's failure to dismiss RGBI as a
defendant, even after being informed on numerous occasions
that RGBI no longer owned the premises in question, RGBI not
only had to file a motion to dismiss but also was required to
comply with the Court's Rule 16 and 26 Order. RGBI, along
with the other named defendants timely completed and filed
the discovery report without the input of Mr. King, who would
not respond to Defendants' requests to confer.
Consequently, RGBI incurred a total of $5, 666.67 in
attorney's fees and costs, which RGBI now seeks to
moves under Federal Rule of Civil Procedure 11 and under 28
U.S.C. § 1927 for the imposition of sanctions. Rule 11
provides in part that when an attorney presents a pleading or
motion to the Court, he certifies that, to the best of his
knowledge and after a reasonable inquiry,
 the claims, defenses, and other legal contentions were
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law; [and]
 the factual contentions have evidentiary support or, if
specifically so identified, will likely have support after a
reasonable opportunity for further investigation or
discovery. . . .
Fed.R.Civ.P. 11(b)(2)-(3). Whether an attorney has violated
these requirements rests on”  whether the legal
claims or factual contentions are objectively frivolous, and
. . .  whether a reasonably competent attorney should have
known they were frivolous.” Thompson v. Relation
Serve Media, Inc., 610 F.3d 628, 665 (11th Cir. 2010)
(citing Worldwide Primates, Inc. v. McGreal, 87 F.3d
1252, 1254 (11th Cir. 1996)). “If, after notice and a
reasonable opportunity to respond, the court determines that
Rule 11(b) has been violated, the court may impose an
appropriate sanction” on any attorney or party who
violated the rule or who is responsible for the violation.
Fed.R.Civ.P. 11(c)(1). Any sanction must be limited to that
which is sufficient to deter ...