Professional Documents
Culture Documents
Comen,
William
R.
Moore, Michael
C.
Fee
and
________________
__________________ ________________
Hinckley, Allen & Snyder on Motion in Opposition to Motion for
_________________________
Costs and Attorneys' Fees, for appellant.
Robert F. Sylvia, Steven J. Comen, Michael C. Fee, William
________________
_______________ _______________ _______
R. Moore and Hinckley, Allen & Snyder on Further Opposition to
_________
_________________________
Motion for Costs and Attorneys' Fees, for appellant.
R. Mark McCareins, W. Gordon Dobie, John M. Bowler, Winston
__________________ _______________ ______________ _______
& Strawn, Gary R. Greenberg, Goldstein & Manello, P.C., and
_________ ___________________ ___________________________
Steven B. Gold on Motion for Costs and Attorneys' Fees and
_______________
Memorandum in Support, for appellee.
__________________
__________________
Per Curiam.
__________
to
recover
against
double
both
Vero
Tropicana Products,
costs,
Beach
39
frivolous
and
28 U.S.C.
appeal.
We
expenses,
Groves,
and
attorneys'
counsel,
Rules 38
deny the
for
and
bringing an
motion
Background
__________
allegedly
for double
fees
its
1927
Inc.
Inc. is seeking
costs,
U.S.C.
and
permanent injunctive
relief,
claiming
of
the district
court
and section
juice
with
Vero
of the
43(a)
Beach's
Tropicana's pasteurized
non-pasteurized,
fresh-
to a
orange juice
accompanying text
juice
carton of Vero
chilling
before they
package it.
'pasteurized' on their
Beach's Honestly
on a
block
of ice.
. . Tropicana
So
when you
Fresh
The
cooks their
see the
word
That's
-2-
After
hearing,
the
district
court
granted
the picture
of its
orange juice
over an
together
open flame,
After a
further hearing,
the
court on
July 23
At
contempt
and a
permanent
injunction
had already
been
August 6,
injunction.
Its
initial brief
was due
the preliminary
September 24,
extension
requested
results
of time
the
in
extension
which
because
of settlement discussions
to
file
sought
the brief.
it wished
to
but
await
It
the
days
after the
CAMP hearing
settlement, Hinckley,
the
district court
paid it
filed
motion
failed to
had
requesting
the
as counsel in
Vero Beach
had begun.
district
produce a
court
had not
It also
to
stay
-3-
On October
motion
to withdraw
corporations could
and
informed
not litigate
pro se
Vero Beach
in this
that
circuit so
counsel.
The district
court
also
denied
Vero
In
district
court,
Vero Beach
stated that
it would
accept a
financial condition
se.
On November
permanently enjoining
advertising
it
from any
or any comparative
Beach,
false or
deceptive
advertising relating
to any
Tropicana product.
On
under
Fed.
assented in
Vero
November
R.
App. Pro.
a telephone
Beach's appeal
grounds for
30, Hinckley,
from
the motion,
Rule
Allen
42(b),
to which
firm cited
filed a
court to
motion
Tropicana
dismiss
injunction.
As
its withdrawal
as
Beach in
that
the default
This
court ordered
judgment below
the
and the
rendered the
appeal dismissed.
fact
appeal moot.
Tropicana
then
-4-
against both
-5-
II. Discussion
__________
Tropicana's request for costs is clearly justified.
Rule 39 states that, "[e]xcept as otherwise provided by
if an appeal is
voluntarily dismissed
its
. . . ."
appeal
As
law,
against the
noted, Vero
under Rule
42(b),
may be dismissed on
motion
by the
court."1
voluntary
of Rule
pay the
Presumably, a
of appeal dismissed
See
___
634 (5th
by appellant as
moot
to
____________________
1. Rule 42(b) also provides that "[i]f the parties to an
appeal . . . shall sign and file with the clerk of the court
of appeals an agreement that the proceeding be dismissed,
specifying the terms as to payment of costs, and shall pay
whatever fees are due, the clerk shall enter the case
dismissed, . . . ."
Since Vero Beach's motion to dismiss,
though assented to
by Tropicana,
contained no
terms
specifying who would pay the costs and fees and dismissal was
effected through an order of this court, the appeal was
actually dismissed under the portion of the rule quoted above
in the text of our opinion. See Clarendon Ltd. v. Nu-West
___________________
_______
Industries, Inc., 936 F.2d 127, 128 (3d Cir. 1991).
________________
-6-
appellee
whenever
an
appeal
is
dismissed,
except
for
jurisdictional reasons).
Rule
38 provides
costs to the
appeal
was "frivolous."
that an
is
frivolous
"overwhelming
if
weight
award "just
appellee" if
Just
it
damages
appeal
court may
or double
that the
the
of
precedent
was
1989).
obvious,"
An
the
militate[d]
against
ground"
bad faith or
Wells
_____
1990).
with malice.
"[I]t is
enough
that the appellants and their attorney should have been aware
______
that the appeal had no chance of
success."
Id. (emphasis in
___
original).
Under 28 U.S.C.
multiplies
vexatiously
personally
the
may
the
proceedings
be
in any
required
excess costs,
by
case
the
expenses
unreasonably
court
and
to
and
satisfy
attorneys fees
such conduct."
An attorney's
-7-
sanctions.
Cruz v. Savage,
____
______
1990).
Rather,
conduct
in
harassing
that an
sanctions are
multiplying
attorney acts
'serious
justified "if
proceedings
in disregard
harassment
and studied
justice.'"
Id.
___
or
is
disregard for
an attorney's
unreasonable
thus
and
"It is enough
of whether
vexation,
(citation omitted).
incompetence . . . ."
and
constitutes
must be
his conduct
displaying
the orderly
process of
However,
the conduct
negligence, inadvertence, or
Bringing
a "frivolous, dilatory
against
Id. at 635.
___
attorneys' fees
Allen turns
showed
essentially on
was frivolous,
bad
for the
the appeal
unreasonable
or
double
and Hinckley,
although Tropicana
faith,
to obtain
vexatious
conduct
orderly process
if it
of justice."
in
studied
Tropicana
and
no attempt to explain to us
frivolous
--
its
brief
devoid
of
any
-8-
reference
court
to the
legal
issues considered
by the
district
addressed the issue, and this appeal was dismissed before the
parties submitted
their briefs,
we do not
consider whether
that the
decision to
appeal the
preliminary
injunction
was
its argument
ill-considered,
caused undue
appears to
wasteful
expense for
be one based
of
Tropicana.
essentially on
and
multiplied
for the
orderly process
a disregard
the appeal
prosecuting
it
Tropicana makes
have known to
before the full
file a motion
worse,
vexatiously
in
the first
appropriately.
place
To
proceedings
and then
support
of justice
its
in
and
in
not
argument,
merits, yet
expedited hearing.2
file a timely
In
not
matters
fact, as it
turned out,
Vero
____________________
2. Tropicana also states that Vero Beach's appeal was
interlocutory and "not certified for immediate or expedited
appeal," but does not elaborate on this point.
We do not
understand why the appeal should have been certified since 28
U.S.C.
1292(a) clearly gives this court jurisdiction over
appeals from "[i]nterlocutory orders of the district courts
of the United States . . . granting . . . injunctions . . .
."
-9-
Beach
never
filed any
Allen
failed
to move
brief at
promptly
as counsel
Beach did
it
was
decision to
all.
to
dismiss
the appeal
not stipulate
defaulted
accept the
Moreover, Hinckley,
in
in the
to dismiss
the
district
or
it moved to
district court.
the appeal
until
court, and
its
than retain
agreed
to
copy of
a desire "to
award double costs and attorneys' fees against Vero Beach and
Hinckley, Allen.
Tropicana
before the
decision by
true
asserts,
Although it
was
that the
appeal
that Hinckley,
Allen
not a
would
"certainty",
not be
it is probably true
file
It
a motion
as
decided
that a
is also
for
an
-10-
the appeal
was ill-considered.
Hinckley,
the district
noticed
its appeal,
months before
granted,
the date
the
motion was
of the trial.
filed
Had the
almost two
motion been
Beach's
brief were
the parties
motions to
made for
extend
good cause.
were unable
to schedule
the
The
the
due because
the judge who was to preside over the hearing was unavailable
before that time.
to request
Had
case,
an extension
of time under
those circumstances.
Since
the CAMP
hearing,
Tropicana
response before
would
likely have
begun
preparing its
settled.
time for
-11-
It
needed some
representation.
announced
The
its
desire
to
withdraw
its
of November was not excessive -- not only did Vero Beach need
to locate new counsel, but its new counsel would have had
review
the lengthy
prepare
a brief.
the
record
At
below, evaluate
the issues
to
and
postpone
merits so that
further action on
the
appeal
was feasible.
Hinckley, Allen
Accordingly,
and Vero
these extensions,
in a way
unnecessary expenses
we conclude
calculated to save
and to
that
in seeking
both parties
of this
court as well.
We
see
no
improper
dilatoriness
in
Hinckley,
its motion
Beach
district
in
the
Tropicana at the
to withdraw as
court.
would apply
that
new
Beach's
counsel for
Hinckley,
hearing on November
from representation
Vero
2 that its
to the
counsel
appeal as
should
Allen
be
Vero
informed
withdrawal
well and
permitted
to
-12-
an indisputably valid
one.
in a
way
Beach's interests,
that would
and permitting
not
arguably had
from representation
adversely impact
Vero
an
Beach a
Vero
reasonable
appeal
should proceed
obligation.
Rule
Cf.
___
ABA Model
1.16(b) ("a
client if
adverse
lawyer
withdrawal
effect
on the
to
the extent
client's
interests,
employment of
be
consistent with
Rules of
from representing
accomplished without
interests of
such
as
other counsel .
practicable
. .
id. (d)
___
shall take
to protect
allowing
material
the client");
representation, a lawyer
reasonably
that
Professional Conduct,
may withdraw
can be
("[u]pon termination of
steps
would
time
a
for
ABA Model
the
client,
.").
the transcript
counsel,
of
but having
difficulty
the November
to continue
attempting to find
doing so.
-13-
Under the
its representation at
2 hearing
the appellate
out, the
decision to do so.
to try to
dismiss
make the
until November 30
untimely.
seriously
seem to us to
In Tropicana's presence,
have
Vero Beach
days later,
it
not
judgment
retain new
informed Tropicana
By letter sent
and the
on November 23.
and would
accept
proceed before
appeal, Tropicana
the district
knew
that it
court or
would win
a default
to
Vero Beach
prosecute its
in the
annoying
Moreover, our
was taken
or
Under
unreasonably
be regarded as a
dilatory
by either party
district
it
district
or by the
court in
action.
on the appeal
November, so
that the
failure to dismiss
in November
-14-
clearly caused no
undue expense
for Tropicana
or waste
of
judicial resources.3
Nor are we persuaded
not
brought
its
appeal
seriously.
As
a default judgment
The
financial
condition, which
Hinckley,
Allen's
impossible
to
bills and
find
unresolvable tangle,
had
if it did not
appear pro se
poor
unable to
had
counsel.
find
Vero Beach's
rendered it
apparently
replacement
record
the
pay
also made
Given
it
this
the default
suggests
that
Hinckley,
Allen
deliberately
filed its
appeal before
and fees to
assented-to
motion to
A careful
fees
In its
and costs,
the
statement of costs
reading of
dismiss
Tropicana's
Tropicana states
that it
informed William
____________________
3. We realize that Tropicana sent a letter to the clerk of
this court on November 3, to which the clerk responded, but
Tropicana's letter responded to the court's October 30th
order granting Vero Beach a second extension of time for
filing its brief.
-15-
Moore,
conversation
Hinckley,
Allen
on November 25
attorney,
that it would
in
telephone
agree to dismiss
fees.
consistent with
fees
As
phrased,
is
fully
petition for
The specific
that
Hinckley,
to file
comment
a separate
request
an intent
Tropicana's
Allen
send
it
draft
motion
separately in a letter
Although that
conversation took
and thus
who
preparing
appears to
the
Thanksgiving.
motion.
been
weekend.
the one
November
it on Monday, November
intervening
have
25
was
responsible
the day
for
before
after the
with this
court.
The present
record gives us no
reason to
-16-
explanation, although
we note
that it
is
forum for
fees.
brought in
allegation
in an attempt to
its arguments.
Absent
find a
a showing
attorneys'
generally
on Tropicana's
motivation
and
We have
no
an attempt
doubt that
to receive
appeals are
more favorable
Its
request
for
38 and for
costs under
-17-
39 is
sanctions under
denied.
Rule
28 U.S.C.
fees
1927 is