United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.
cause came on for consideration without oral argument on the
MOTION: DEFENDANTS' SUPPLEMENTAL MOTION FOR
ATTORNEYS' FEES AND TAXABLE COSTS WITH INCORPORATED
MEMORANDUM OF LAW (Doc. No. 139)
FILED:May 1, 2019
THEREON it is RECOMMENDED
that the motion be DENIED.
February 5, 2019, Plaintiff filed an Amended Motion for
Sanctions (the “Motion”). Doc. No. 114. The
lengthy procedural history of this case is set forth in this
Court's Report and Recommendation on that Motion and is
incorporated by reference herein. Doc. No. 137. In its Report
and Recommendation on the Motion, this Court found that
Plaintiff's failure to file its Motion with the Court at
any point in time from its initial service on Defendants in
July 2018 through the conclusion of this case rendered the
Motion untimely. Doc No. 137. Alternatively, the Court found
Defendants' claims were not frivolous and were not
lacking a reasonable factual basis based on the denial of
Plaintiff's motion for summary judgment. Doc. Nos. 137,
79. The Court did not award Defendants attorney's fees as
the prevailing party, although Defendants requested
attorney's fees in their memorandum. Doc. Nos. 123, 137.
then filed the instant supplemental motion for attorney's
fees and taxable costs with incorporated memorandum of law
(“Supplemental Motion”). Doc. No. 139. In their
Supplemental Motion, Defendants seek attorney's fees
against Plaintiff based on the denial of its Rule 11 motion.
Doc. No. 139 at 1. Defendants argue that the Rule 11 motion
had no reasonable factual basis and was filed for an improper
purpose. Doc. No. 139 at 6. Defendants argue that the
untimely nature of the Rule 11 motion and the Plaintiff's
claim that there was no admissible evidence to support the
Counterclaim did not reasonably support the filing of a Rule
11 motion and necessitates an award of attorney's fees to
Defendants. Doc. No. 139 at 6.
has discretion to award reasonable expenses, including
attorney's fees, incurred by the prevailing party on a
Rule 11 motion. Fed.R.Civ.P. 11(c)(2); Smith v.
Psychiatric Solutions, Inc., 750 F.3d 1253, 1260 (11th
Cir. 2014) (awarding attorney's fees to a prevailing
party upon finding a motion for sanctions was filed to harass
opposing counsel and file what was effectively an
unauthorized reply to a motion for attorney's fees).
Where a motion for sanctions under Rule 11 is denied, it does
not necessarily follow that the motion was frivolous.
Bussey-Morice v. Kennedy, No. 6:11-cv-970, 2018 U.S.
Dist. LEXIS 145218, at *10-11 (M.D. Fla. Aug. 27, 2018);
Miller v. Relationserve, Inc., No. 05-61944-CIV,
2006 U.S. Dist. LEXIS 87139, at *24 (S.D. Fla. Dec. 1, 2006)
(“Although the Court rejected Plaintiffs argument and
denied his request for sanctions, this alone does not require
a finding of frivolousness”). In order for the court to
find a Rule 11 violation the court must determine if the
claims asserted in the motion for sanctions were objectively
frivolous, filed for an improper purpose, or not
well-grounded in fact or law. Denning v. Powers, No.
12-14103-CIV, 2012 U.S. Dist. LEXIS 192065, at *2 (S.D. Fla.
Nov. 26, 2012); Bussey-Morice, 2018 U.S. Dist. LEXIS
145218, at *8; Baker v. Alderman, 158 F.3d 516, 524
(11th Cir. 1998) (internal citations omitted).
the course of the proceedings as a whole, the Court cannot
find that the Motion was so unreasonable or objectively
frivolous that attorney's fees should be award against
Plaintiff or its counsel. Defendants have failed to satisfy
their burden in that respect. Defendants have also failed to
satisfy their burden to demonstrate Plaintiff acted with an
it is hereby RECOMMENDED that the
Supplemental Motion (Doc. No. 139) be
has fourteen days from this date to file written objections
to the Report and Recommendation's factual findings and
legal conclusions. Failure to file written objections waives
that party's right to challenge on appeal any
unobjected-to factual finding or legal conclusion ...