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Blame the Lawyer: In Exceptional Case, Plaintiff’s Attorney Liable for Court and Appellate Fees

The US Court of Appeals for the Federal Circuit affirmed an award of attorneys’ fees against a plaintiff and his counsel, and further granted defendants’ motion for appellate attorneys’ fees and double costs where plaintiff had brought baseless claims, engaged in litigation misconduct and brought a frivolous appeal. Pirri v. Cheek, Case No. 20-1959 (Fed. Cir. Mar. 22, 2021) (non-precedential) (per curiam).

When Plaintiff saw Defendant present her patented idea for “online dating in reverse” on the television show “Shark Tank,” he knew that she had gotten the idea from his therapist, Richards, who had betrayed his confidence. Through his counsel, Plaintiff sued Richards as well as Defendant, her company and her co-inventors (whom he never served) (collectively, Cheek) for joint inventorship of the patent (Richards was not a named inventor), and several state law claims, including breach of fiduciary duty, fraud, conversion and unjust enrichment. At the initial pretrial conference, Plaintiff voluntarily dismissed some of the state law claims and the joint inventorship claim against Richards. The district court dismissed the remaining state law claims as “obviously time-barred,” leaving only the joint inventorship claim against Cheek. Defendant moved for Rule 11 sanctions, which the district court denied.

Plaintiff sought leave to amend the complaint to add several new defendants and claims, but the district court denied the motion as futile. Notwithstanding the dismissal of Richards from the suit, Plaintiff subpoenaed Richards’s employment records, but withdrew the subpoena when Richards moved to quash. Plaintiff requested a discovery extension, which the Court denied as relating to irrelevant material. Just before the close of discovery, Plaintiff moved for voluntary dismissal with prejudice. Defendant opposed the dismissal motion in order to seek fees, and the district court denied the motion. Six days later, Plaintiff renewed the motion for dismissal, arguing that the previous denial of Rule 11 sanctions collaterally estopped a fees award. Again, Defendant opposed, and the Court denied the motion.

Two months later, the district court held a pre-summary-judgment conference, before which it ordered Plaintiff to file a letter indicating whether and why he would oppose summary judgment. After declining on several occasions to concede summary judgment or identify any evidence supporting his claims, Plaintiff finally consented to summary judgment for Defendants, which the district court granted.

The district court later granted Defendant’s motion for fees, finding that the case was exceptional. Because Plaintiffs’ counsel had prepared, signed and filed all the relevant submissions, the district court held counsel jointly and severally liable for the award.

Plaintiff appealed, and Defendant moved for appellate fees and double costs.

The Federal Circuit affirmed the fee award, finding no abuse of discretion, and further found that the appeal was frivolous as argued in part because Plaintiff’s counsel distorted the factual and legal bases for the fees award and “leveraged inapposite legal doctrines to make arguments that can only be described as baffling.” The Court concluded that “[w]hen an appeal is frivolous as argued, we may hold a party’s counsel jointly and severally liable.”

© 2022 McDermott Will & EmeryNational Law Review, Volume XI, Number 91
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About this Author

Associate

David Mlaver* is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C. office.  He focuses his practice on intellectual property litigation matters.

David received his J.D., cum laude, from the Georgetown University Law Center, where he was a senior editor of The Tax Lawyer.  He earned his A.B. in chemistry and B.S. in biology, with high distinction, from Duke University. David is admitted to practice in Maryland.

*Not admitted to practice in the District of Columbia...

+1 202 756 8822
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