L. Francis as a result of the sanctionable conduct of Robert S. Mirin.
175. Sheryl J. Cohen is a 1988 graduate of the University of Pennsylvania School of Law. She was employed for 5-1/2 years by the Los Angeles, California firm of Paul, Hastings, Janofsky & Walker, and joined Dechert Price & Rhoads in April, 1994.
176. Sheryl J. Cohen's billing rate is $ 185 per hour.
177. Sheryl J. Cohen's billing rate is comparable to the rates of other attorneys in Philadelphia with similar skill and experience.
178. Sheryl J. Cohen's hourly rate of $ 185 is fair and reasonable.
179. In October, 1994, Sheryl J. Cohen expended 4.00 hours doing legal research in preparation for an anticipated motion by Robert S. Mirin to disqualify the trial judge in this hearing.
180. Although no such motion was made, Robert S. Mirin did clearly indicate in open court an intention to file such a motion.
181. Research by counsel for the media defendants in preparation of an answer to plaintiffs' counsel's anticipated motion is both necessary and proper.
182. The four hours spent by Sheryl J. Cohen was reasonably and necessarily incurred as a result representations made by Robert S. Mirin during the course of the hearing on the Motion for Sanctions.
183. The fees reasonably incurred by counsel for the media defendants are as follows:
May 17, 1994 - September 30, 1994 $ 19,011.25
October, 1994 (Ex. D40) 29,965.75
December 9, 1994 hearing 1,395.00
184. The lodestar amount of fees is $ 50,372.00.
185. Expenses incurred in connection with presentation of the first hearing on the motion for sanctions were $ 2,449.90 (Ex. D40, page 6).
186. Expenses incurred in connection with the December 9, 1995 hearing on the Motion for Sanctions were $ 158.57.
187. The total expenses of $ 2,608.47 were reasonably incurred in connection with the Motion for Sanctions.
188. The expenses incurred were fair and reasonable.
189. The expenses incurred represent excess expenses caused by the sanctionable conduct of Robert S. Mirin.
190. The total fees and expenses incurred were $ 52,980.47.
191. The excess costs, expenses and attorneys' fees reasonably incurred by the media defendants because of Robert S. Mirin's willful bad faith and unreasonable conduct are $ 52,980.47.
Pursuant to 28 U.S.C. § 1927, a court may impose sanctions on counsel for engaging in conduct that "multiplies the proceedings in any case unreasonably and vexatiously." 28 U.S.C. § 1927 (1980). Under § 1927, a court may require that counsel personally satisfy "the excess costs, expenses, and attorney's fees reasonably incurred because of such conduct." Id. Sanctions under § 1927 are directed at the offending attorney and may not be imposed upon his clients. Williams vs. Giant Eagle Markets, Inc., 883 F.2d 1184, 1190 (3d Cir. 1989).
A requisite element to impose sanctions under § 1927 is a finding of willful "bad faith." Williams, 883 F.2d at 1190-91; Ford vs. Temple Hosp., 790 F.2d 342, 347 (3d Cir. 1986). A district court may impose sanctions if it finds the "'plaintiff's actions was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.'" Ford, 790 F.2d at 350, quoting Christiansburg Garment Co. vs. EEOC, 434 U.S. 412, 421-22, 98 S. Ct. 694, 54 L. Ed. 2d 648. The Court of Appeals for the Third Circuit has stated that the "intentional advancement of a baseless contention that is made for an ulterior purpose, e.g., harassment or delay" may be indicative of bad faith. 790 F.2d at 347. Similarly, sanctions are appropriate under § 1927 where a party continues to pursue claims after having been formally or informally notified that these claims were barred by the statute of limitations. See Fred A. Smith Lumber Co. vs. Edidin, 845 F.2d 750 (7th Cir. 1988); Matthews vs. Freedman, 128 EF.R.D.F 194, 207 (E.D. Pa. 1989) (Gawthrop, J.). A finding of "bad faith" is a factual determination to be made by the court.
Under § 1927, even if a lawsuit was initially filed in good faith, sanctions may be imposed on an attorney for all costs and fees incurred after the continuation of the suit which is deemed to be in bad faith. Id. See Ford, 790 F.2d at 350.
Furthermore, "once a finding of bad faith had been made, the appropriateness of sanctions is a matter entrusted to the discretion of the district court." Quiroga vs. Hasbro, Inc., 934 F.2d 497, 505 (3d Cir. 1991), citing Hackman vs. Valley Fair, 932 F.2d 239, 242 (3d Cir. 1991), cert. denied, 502 U.S. 940, 112 S. Ct. 376, 116 L. Ed. 2d 327 (1991).
Additionally, this Court has the inherent power to impose sanctions, including attorney's fees, on counsel for bad faith conduct. Chambers vs. Nasco, Inc., 501 U.S. 32, 111 S. Ct. 2123, 2134, 115 L. Ed. 2d 27 (1991). This Court's inherent power to impose sanctions for such conduct is not displaced by statute or by rule. 111 S. Ct. at 2134-35. Sanctions may be imposed "to promote judicial efficiency, and to deter abuse of judicial process." Quiroga, 934 F.2d at 505. Under this inherent power, a court may award attorney's fees and require that counsel pay them personally, if it is found that he acted in bad faith. Landon vs. Hunt, 938 F.2d 450, 454 (3d Cir. 1991).
A review of the Boykin I and Boykin II complaints makes clear that the Plaintiffs had no basis in fact or law for their defamation claims and their assertion of civil rights offenses against the media defendants was patently frivolous. Indeed, Mr. Mirin did not have in his possession any articles claimed to be false and defamatory at the time he filed the Boykin I and Boykin II complaints or at the time he refused to dismiss Boykin II.
Although Mr. Mirin's good faith in filing Boykin I is doubtful, it cannot be seriously questioned that the filing and pursuit of the claims in Boykin II were frivolous and outrageous. First, when the Boykin II complaint was filed, Eyerly was no longer a defendant in this matter and had been dismissed pursuant to a state court order. Second, at the time the Boykin II complaint was removed to federal court, the Plaintiffs' identical claims against the media defendants had already been dismissed on their merits. Third, after having been given written notice that Plaintiffs could not assert claims as to Defendant Eyerly, that Plaintiffs' state law claims were time-barred and that the media defendants intended to seek counsel fees, Mr. Mirin refused to withdraw these claims.
In fact, Mr. Mirin was put on notice two times by the media defendants and once by this Court that his state law claims as to the Press-Enterprise were time-barred. Mr. Mirin, however, continued to pursue these time-barred claims. Thus, Mr. Mirin unreasonably and unnecessarily forced the media defendants to file a second motion to dismiss and to participate in preparing the case management plan for this case.
Mr. Mirin's clients would in no way have been prejudiced by the dismissal of the Boykin II complaint as it presented issues identical to those raised in the Boykin I complaint.
By continuing to maintain this action, by continuing to cause the media defendants to incur significant legal fees and expense, and by continuing to burden this Court with the identical arguments already rejected, Mr. Mirin has violated his duty to proceed in good faith and in a manner designed to achieve justice. The media defendants should simply not be subjected to such outrageous conduct and be burdened with the cost and expense of repeatedly litigating the same claims.
We are of the view that sanctions should be imposed on Mr. Mirin because he has engaged in bad faith, harassing and vexatious litigation by pursuing these claims, which has so multiplied the proceedings in this case as to cause unnecessary burden and expense on the media defendants.
The standard utilized to calculate the proper award of attorney's fees under 28 U.S.C. § 1927 is the lodestar method. The lodestar fee is calculated by multiplying a reasonable hourly rate by the number of hours reasonably expended on the suit. Matthews vs. Freedman, 128 F.R.D. at 207. See also Hensley vs. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).
The sanctions hearing, which totalled seven days including the 6-day initial hearing and 1 day supplemental hearing, was inordinately delayed by the unreasonable conduct of Mr. Mirin and his grossly evasive and lengthy answers to questions while on the stand, as indicated by this Court's Findings of Fact No. 91 and 103. Mr. Mirin's constant and flagrant interruption of this Court, despite repeated warnings, further delayed the sanctions hearing. Moreover, Mr. Mirin's repeated attempts to offer evidence remote and irrelevant to the issues before the Court also unreasonably and unnecessarily delayed these proceedings, as indicated by this Court's Findings of Fact No. 141-44.
Under these circumstances, the total number of hours expended by counsel for the media defendants in connection with this matter was entirely necessary and reasonable and represents the excess attorney's time spent by them as a result of the bad faith and sanctionable conduct of Mr. Mirin, as indicated by this Court's Findings of Fact No. 148, 149, 163, 164, 172, 173, 174, and 182.
In addition, the hourly rates claimed by each individual attorney assisting in the representation of the media defendants reflect the actual hourly rates paid by the media defendants and are reasonable based on the respective skills and experience of counsel for such defendants, as indicated by this Court's Findings of Fact.
The lodestar amount of fees is $ 50,372.00, as indicated by this Court's Finding of Fact No. 184. The total expenses incurred in connection with the presentation of both sanctions hearings is $ 2,608.47. These expenses were reasonably incurred and represent excess expenses caused by the sanctionable conduct of Mr. Mirin, as indicated by this Court's Findings of Fact No. 185-189. As a result, the lodestar of fees and expenses caused by the sanctionable conduct of Mr. Mirin and incurred by the media defendants is $ 52,980.47. We are of the view that there are no reasons to depart upwards or downwards from the lodestar.
We are aware that the amount of sanctions imposed may seem high. However, they reflect the regular hourly rates of counsel for the media defendants and to impose less would put additional costs on the media defendants. Were we to do otherwise, we may deter an aggrieved party from instituting an action for sanctions because a wrongdoer may so multiply the sanctions proceedings that the wronged party may be required to pay additional counsel fees in connection with the motion for sanctions, thus chilling its right to move for sanctions.
IV. Conclusions of Law.
1. Pursuant to 28 U.S.C. § 1927, this Court may impose sanctions on counsel for engaging in conduct which "multiplies the proceedings in any case unreasonably and vexatiously." 28 U.S.C. § 1927 (1980).
2. Under § 1927, counsel "may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927 (1980).
3. Robert S. Mirin acted in willful bad faith in this case as set forth in the findings of fact.
4. The legal theories enunciated by Mr. Mirin were pursued and maintained in bad faith.
5. Robert S. Mirin acted in this case in a manner which was unreasonable and the legal theories on which he relied relating to libel and invasion of privacy were without foundation.
6. In light of Robert S. Mirin's conduct in continuing to pursue claims of libel and invasion of privacy against the media defendants in bad faith after being notified that such claims were time-barred, sanctions should be imposed upon plaintiff's counsel.
7. Sanctions will be imposed upon Robert S. Mirin to deter abuse of the judicial process, to promote judicial efficiency and to penalize him for his bad faith conduct.
8. The standard utilized to calculate the proper award of attorney's fees under 28 U.S.C. § 1927 is the lodestar method.
9. The total number of hours expended by counsel for the media defendants in connection with this action is reasonable.
10. The hourly rates claimed by each individual attorney assisting in the representation of the media defendants are reasonable based on their respective skills and experience.
11. The lodestar amount of fees incurred by the media defendants is $ 50,372.00.
12. The lodestar amount of $ 50,372.00 is reasonable.
13. The lodestar of fees and expenses incurred by counsel for the media defendants as a result of Robert S. Mirin's willful bad faith and unreasonable conduct was $ 52,980.47.
14. The lodestar amount of fees represents the fair and reasonable value of the services rendered, taking into account the novelty and complexity of the issues presented in the case, the special skills and experience of counsel involved, the quality of the representation and the result achieved.
15. Robert S. Mirin unnecessarily and in bad faith protracted the proceedings regarding the Motion for Sanctions.
16. Robert S. Mirin's conduct before and during the hearing on the Motion for Sanctions caused undue burden and expense to the media defendants.
17. The media defendants should not be penalized in their request for an award of sanctions because of the unreasonable conduct of Robert S. Mirin in protracting the proceeding and thereby increasing the cost to defendants.
18. It would violate and frustrate the Congressional policy behind 28 U.S.C. § 1927 to permit an attorney to make the process of seeking sanctions against him for willful, bad faith conduct so prohibitively expensive so as to deter parties from seeking to recover sanctions.
19. Robert S. Mirin should bear full legal responsibility for the fees and costs reasonably incurred as a result of the unnecessarily protracted sanctions proceedings.
20. There is no reason to depart upwards or downwards from the lodestar.
21. Sanctions will be imposed on Robert S. Mirin in the amount of $ 52,980.47.
An appropriate order will be entered.
MUIR, U.S. District Judge
January 19, 1995
1. Judgment is entered against Robert S. Mirin, Esq., personally and in favor of Paul Eyerly, III, and Press Enterprise, Inc., in the amount of $ 52,980.47.
2. Robert S. Mirin shall pay to Paul Eyerly, III and Press Enterprise, Inc., within 120 days the sum of $ 52,980.47.
MUIR, U.S. District Judge
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