United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter is before the Court on Crocs, Inc.'s Motion to
Strike and for Sanctions Under 28 U.S.C. § 1927, Rule
37, or the Court's Inherent Powers [Docket No.
410]. The Court has jurisdiction pursuant to 28
U.S.C. § 1331.
October 6, 2016, Magistrate Judge Kathleen M. Tafoya held a
hearing in this case to resolve discovery disputes between
the parties. Docket No. 302. Crocs, Inc.
(“Crocs”) alleges that, at the hearing, counsel
for Dawgs displayed a shoe to the Court,
specifically, a particular version of the Calzuro clog, and
stated that the shoe provided evidence that Crocs knew its
patents were invalid. Docket No. 410 at 1. The shoe displayed
to the Court as prior art was not manufactured until 2012,
id. at 2, six years after Dawgs filed this lawsuit
alleging infringement of its patents. See Docket No. 1.
claims that the same shoe that Dawgs presented to the
magistrate judge is also discussed and depicted throughout
Dawgs' non-infringement and invalidity contentions
(“invalidity contentions”), which Dawgs served on
August 30, 2016. Docket No. 410-2. In its invalidity
contentions, Dawgs asserts that the claims of the '858
and '789 Patents are anticipated by or rendered obvious
by a shoe manufactured and designed by BIHOS S.R.L.
(“BIHOS”), the Calzuro molded clog. See
Docket No. 410-2 at 26-85. Dawgs also claims that Crocs'
patents are invalid for omitting Ettore Battiston as one of
the inventors of the patents. Docket No. 410 at 2; see
also Docket No. 410-2 at 23, 62-63.
January 13, 2017, Crocs filed its motion for sanctions under
§ 1927, Rule 37 and the Court's inherent powers.
Docket No. 410. Crocs claims that sanctions are appropriate
because Dawgs has knowingly offered a shoe made in 2012 as
invalidating prior art. Docket No. 410 at 2. In addition,
Crocs requests sanctions based on Dawgs' claim related to
Battiston's inventorship. Id.
Failure to Confer
argues that Crocs' motion should be denied for failure to
comply with D.C.COLO.LCivR 7.1(a). Docket No. 436 at 3. The
Local Rule states that “[b]efore filing a motion,
counsel for the moving party . . . shall confer or make
reasonable good faith efforts to confer with opposing counsel
. . . to resolve the disputed matter.” D.C.COLO.LCivR
7.1(a). The conferral requirement is not met by “making
a demand for compliance, ” but instead requires
communication and an effort to “compare views and
attempt to reach an agreement, including by compromise if
appropriate.” Hoelzel v. First Select Corp.,
214 F.R.D. 634, 636 (D. Colo. 2003).
admits that it did not confer with Dawgs regarding the
instant motion, but argues that it “alerted Dawgs to
its concerns about the shoe.” Docket No. 480 at 2. The
“alert” referenced by Crocs is inadequate and
frustrates the central purpose of the Local Rule, which is to
attempt to resolve disputes between the parties without
judicial intervention. Thus, the motion will be denied for
failure to comply with D.C.COLO.LCivR 7.1(a). However, in the
interest of judicial economy, the Court also considers the
merits of the arguments put forward by Crocs.
28 U.S.C. § 1927
argues that sanctions are appropriate under 28 U.S.C. §
1927. Docket No. 410 at 3. An attorney “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.” 28
U.S.C. § 1927. “An attorney's actions are
considered vexatious and unreasonable under § 1927 if
the attorney acted in bad faith, ” Dreiling v.
Peugeot Motors of America, Inc., 768 F.2d 1159, 1165
(10th Cir. 1985), or if the attorney's conduct
constitutes a “reckless disregard of the duty owed by
counsel to the court.” Braley v. Campbell, 832
F.2d 1504, 1511-12 (10th Cir. 1987). Sanctions under §
1927 are also appropriate when “an attorney is cavalier
or bent on misleading the court; intentionally acts without a
plausible basis; [or] when the entire course of proceedings
was unwarranted.” Miera v. Dairyland Ins. Co.,
143 F.3d 1337, 1342 (10th Cir. 1998) (internal quotations and
district court has “wide discretion in matters of
sanctions” under § 1927. Hamilton v. Boise
Cascade Exp., 519 F.3d 1197, 1207 (10th Cir. 2008).
However, § 1927 should not be enforced so as to
“dampen the legitimate zeal of an attorney in
representing” a client. Braley, 832 F.2d at
1512. Accordingly, fees should only be awarded against
attorneys whose conduct evinces a “serious and studied
disregard for the orderly processes of justice.”
Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163,
1167 (7th Cir. 1968); see also Raylon, LLC v. Complus
Data Innovations, Inc., 700 F.3d 1361, 1370 n.6 (Fed.
Cir. 2012) (“Establishing attorney misconduct under
§ 1927 implicates a higher level of culpability than
Rule 11.”). Before awarding sanctions pursuant to
§ 1927, a court must make “specific
findings” identifying “the extent of the
multiplicity resulting from the attorney's behavior and
the costs arising therefrom, ” as well as describing
the “objectionable conduct” in sufficient detail
to permit a meaningful response and facilitate appellate
review. Braley, 832 F.2d at 1513.