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Chiacchiarini v. Lowndes County

United States District Court, M.D. Georgia, Valdosta Division

August 15, 2017




         Before 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.

         I. BACKGROUND

         This case has been rife with delay and flagrant neglect by Mr. King from its inception. On January 4, 2017, [1] 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).

         Even 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.

         Once 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 Allen. (Id.).

         Fourteen 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).

         Despite 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).

         As a 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 recover.


         Defendant 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,

[1] 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]
[2] 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” [1] whether the legal claims or factual contentions are objectively frivolous, and . . . [2] 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 ...

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