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Thommen Medical Usa, LLC v. Tanner

United States District Court, D. Colorado

September 12, 2014

THOMMEN MEDICAL USA, LLC, Plaintiff,
v.
JOSHUA TANNER, Defendant.

ORDER CONCERNING RENEWED MOTION FOR SANCTIONS

ROBERT E. BLACKBURN, District Judge.

This matter is before me on the Defendant's Renewed Motion for Sanctions [#50][1] filed September 16, 2013. The plaintiff filed a response[#53], and the defendant filed a reply [#54]. I grant the motion in part and deny it in part.

I. JURISDICTION

I have jurisdiction over this matter under 28 U.S.C. § 1332 (diversity).

II. BACKGROUND

The background of the motion for sanctions is detailed in a previous order [#49] in which I addressed the factual basis for the imposition of sanctions against counsel for the plaintiff under 28 U.S.C. § 1927. To summarize briefly, in its complaint [#2], the plaintiff, Thommen Medical USA, LLC, asserted four claims against the defendant, Joshua Tanner, a quondam employee of Thommen. The claims included breach of covenants of confidentiality, breach of contract, tortious interference in business relationship, and a claim under Ohio law for misappropriation of trade secrets. The plaintiff asserted claims for damages and sought injunctive relief based on the terms of a confidentiality agreement between the parties.

In discovery, Thommen was asked to substantiate its claims for damages, asserted in counts two, three, and four of its complaint. By the time of the discovery cut off, October 1, 2012, Thommen had produced nothing in response to this discovery request. In its October 14, 2012, response [#22] to the motion for summary judgment [#21] of the defendant, Thommen said "(t)here is no claim for damages." Response [#22], p.1. At the January 16, 2013, pretrial conference, the court asked counsel for Thommen if it had any evidence that it had suffered any damages as a result of the actions of Mr. Tanner. Motion for sanctions [#33], Exhibit D, 31:23. Counsel responded that Thommen had not been pursuing that avenue of relief and that Thommen's "contention since day one in the state court has been that the case wasn't about damages...." Id., 32:1 - 32:5. The court noted that Thommen's complaint contains several allegations that Thommen suffered damages. Id., 32:6 - 33:2.

In it's October 14, 2012, response [#22] to the motion for summary judgment [#21] of the defendant, Thommen conceded that its claim for injunctive relief was moot and argued that this case should be dismissed as moot. Response [#22], p. 1. However, Thommen argued also that if the dispute were not moot "there are disputes over material facts and that defendant is not entitled to judgment as a matter of law." Response [#22], p. 2.

On January 20, 2013, Thommen filed a motion to dismiss this case voluntarily. On January 30, 2013, Mr. Tanner filed his initial motion [#33] for sanctions. On February 1, 2013, I entered an order [#34] denying the motion of Thommen to dismiss voluntarily and, instead, granting the motion for summary judgment of Mr. Tanner. Since February 1, 2013, only the issue of sanctions remains pending.

In my previous order [#49] addressing the propriety of sanctions under 28 U.S.C. § 1927, I concluded ultimately:

By May 11, 2012, Thommen's counsel was or reasonably should have been aware that there was no basis for Thommen's claims for damages or Thommen's claim for injunctive relief. Pursuit of these claims by Thommen's counsel after May 11, 2012, demonstrates indifferent or reckless disregard of the orderly process of justice and the facts and law on which Thommen's claims purportedly were based. This amounts to an unreasonable and vexatious multiplication of the proceedings in this case. On this basis, I conclude that the Thommen's counsel must be held accountable under § 1927 for "the costs of his own lack of care." Braley v. Campbell, 832 F.2d 1504, 1511 (10th Cir. 1987).

In the same order, I granted the defendant an opportunity to file documents demonstrating the amount of reasonable attorney fees he seeks as a sanction. Order [#49], p. 10.

The present renewed motion for sanctions [#50] is directed to the issue of reasonable attorney fees incurred by the defendant. The defendant includes with his motion an affidavit of counsel [#50-1] concerning fees incurred by the defendant since May 11, 2012, and an authenticated exhibit [#50-2] detailing the time entries and billing rates of defense counsel from May 14, 2012, forward. The defendant seeks an award of sanctions totaling 69, 204 dollars.

In response, Thommen contends Mr. Tanner failed to comply with D.C.COLO.LCivR 7.1(a) before filing the renewed motion for sanctions. Exhibit A to the reply of the defendants, which demonstrates an e-mail exchange between counsel, shows this contention to be baseless. Reply, Exhibit A [#54-1]. Given the nature and context of ...


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