Westmount Finan. v. 1155 Elm St.

• Court: District Court, D. New Hampshire
• Decided: June 24, 1998
• Docket: CV-98-125-SD
• Status: Published

Opinion

Westmount Finan. v. 1155 Elm St. CV-98-125-SD 6/2&/9S UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Westmount Financial Services, Inc.

v. Civil No. 98-125-SD

1155 Elm Street, L.L.C. c/o The Cathartes Group, Ltd.

O R D E R

Arising from a now-settled case is the issue of entitlement,

if any, of either party to an award of attorney fees. For

reasons that follow, the court denies any award of attorney fees

to either party.

1. Background

Plaintiff Westmount Financial Services, Inc. (Westmount)

claimed that the defendant 1155 Elm Street, L.L.C. (1155 Elm

Street) breached a purchase & sale agreement concerning certain

real estate located in Manchester, New Hampshire. 1155 Elm

Street denied Westmount's claims and in its counterclaim sought

injunctive relief. Westmount sought expedited discovery. Following referral,1 the magistrate judge ruled that

plaintiff's claims bordered on the frivolous. Order of March 19,

1998, document 10. Subsequently, the parties filed in this court

their "Stipulation of Dismissal and Stipulated Consent Order."

Document 12.

Thereafter, counsel engaged in a series of acrimonious

letters and faxes, the subject of which was when and where 1155

Elm Street would furnish Westmount with a fully executed and

complete copy of the release underlying the settlement.2 Unhappy

with the progress of these exchanges, Westmount filed a motion to

enforce settlement, including therein a request for attorney

fees. Document 13. Westmount followed that pleading with a

partial withdrawal of the motion, which left pending only the

issue of attorney fees. Document 14.

1155 Elm Street filed its opposition to these pleadings and

sought its own award of fees. Document 15. By leave of court,

Westmount filed a reply thereto. Document 21. The requested

release has since been furnished to Westmount by 1155 Elm Street.

1Referral to the magistrate judge was made pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B).

2It appears that 1155 Elm Street furnished separate fax copies of the signatures of its principals, but Westmount insisted, as was its right, on a fully executed copy. There is some indication that the delay was caused by the dissolution of 1155 Elm Street. 2 2. Discussion

Absent statutorily or judicially crafted exceptions thereto,

it is the "American rule" that parties engaged in litigation

generally bear the burden of their own attorney fees and costs.

Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 247

(1975). For reasons unclear, the parties herein have been

reluctant to share with the court the authority upon which they

rely in respectively seeking an award of attorney fees.

As no scheduling or pretrial order is involved, the

strictures of Rule 16(f), Fed. R. Civ. P., are inapplicable.3

And as discovery is not an issue. Rule 37, Fed. R. Civ. P., does

not come into play.4 The remaining possibilities appear to be

contained in the provisions of Rule 11, Fed. R. Civ. P.,5 and 18

U.S.C. § 1927.6

3Rule 16(f), Fed. R. Civ. P., provides for the imposition of sanctions, including attorney fees, where a party fails to comply with a scheduling or pretrial order.

4Rule 37, Fed. R. Civ. P., governs the sanctions, including attorney fees, to be imposed upon failure to comply with the rules of discovery.

5Rule 11, Fed. R. Civ. P., describes the sanctions available, including attorney fees, where pleadings, motions, or other papers certified by signature of counsel or unrepresented party prove to be improper and/or unsupportable.

628 U.S.C. § 1927 provides:

Any attorney or other person admitted to conduct cases in any court of the United States or any 3 Following unhappy experience with the mandatory sanction

provisions of Rule 11, Lancellotti v. Fay, 909 F.2d 15, 19 (1st

Cir. 1990), its provisions were amended December 1, 1993, to

render them discretionary, carrying out the purpose of deterrence

rather than compensation. Silva v. Witsch, 19 F.3d 725, 729 &

n.5 (1st Cir. 1994). Indeed, absent "unusual circumstances,"

Rule 11 sanctions should "be paid into court as a penalty rather

than to a party litigant." Id.

"Aimed at curbing abuses of the judicial system," Cooter &

Gell v. Hartmarx Corp., 496 U.S. 384, 397 (1990), Rule 11,

however, does not appear applicable to the circumstances of this

case. There is no claim made, nor would the record support, any

violation of the certification requirements of that rule. See,

e.g.. Business Guides, Inc. v. Chromatic Communications

Enterprises, Inc., 498 U.S. 533 (1991).

Nor does 28 U.S.C. § 1927 furnish support for an award of

attorney fees in this case. Thereunder, if an attorney's conduct

in multiplying proceedings is unreasonable and harassing or

annoying, sanctions may be imposed. Cruz v . Savage, 896 F.2d

Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct. 4 626, 632 (1st Cir. 1990). But the statute's requirement that the

multiplication of the proceedings be "vexatious" mandates that,

objectively viewed, there exist conduct more severe than mere

negligence, inadvertence, or incompetence. Id. The

circumstances of this case do not warrant such a finding.

3. Conclusion

From what has been hereinabove set forth, the court finds

that, frustrating as the delay may have been concerning

furnishing of a full copy of the release, it does not fall within

the parameters of any statutory or judicial exception sufficient

to warrant an award of attorney fees. Accordingly, the motion of

Westmount is denied, as is the request of 1155 Elm Street for an

award of such fees.

As this case has now been settled, the clerk is directed to

expeditiously close same.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

June 24, 1998

cc: Richard M. Husband, Esq. Jamie N. Hage, Esq. Kevin M. Brill, Esq.