Free Motion for Attorney Fees - District Court of Arizona - Arizona

l argue that Plaintiff has not shown good cause to amend the scheduling order because
2 Plaintiff has not been diligent in seeking the amendment, Plaintiff will not be prejudiced
3 from the denial of the amendment, Defendants Sonoran Gate, Mike O’Connor, and Donald
4 and Barbara Kannnerzell will be unfairly prejudiced if Plaintiff is permitted to allege new
` 5 causes of actions against them, and the filing of an amended complaint at this stage of the
6 litigation would adversely affect the efficient conduct of the case. Id
l 7 _ The Court agrees with Defendants. Plaintiffs eleventh and twelfth causes of
_ 8 actions have not been brought against all Defendants. In its motion for leave to file a first
9 supplemental complaint, Plaintiff sought leave to file the eleventh cause of action "against
l 10 Defendant K-Zell[.]" Doc. #33 at 2. The language of the second supplemental complaint
i ' ll also makes clear that both the eleventh and twelfth causes of action are brought solely
i 12 against Defendant K-Zell. Doc. #70 at 29—42. Moreover, K-Zell was the only Defendant
13 to file a response to Plaintiffs motion for partial summary judgment on the eleventh cause
14 of action, and Plaintiff did not argue in support of its motion or in response to Defendants’
15 motions for summary judgment that the eleventh and twelfth causes of action were brought
16 against Defendants other than K-Zell. Docs. ##97, 99-100. 4
- 17 Plaintiff seeks to amend the complaint for a third time more than three years after
= 18 it commenced this action, more than eighteen months after the deadline for amending
19 pleadings, and less than six weeks before the final pretrial conference. Plaintiff has not
20 been diligent in seeking this amendment. See Johnson, 975 F.2d at 609 (holding that the
21 plaintiff "failed to demonstrate good cause for his belated motion to arnend" and stating
i 22 that "Ru`le 16(b)’s ‘good cause’ standard primarily considers the diligence of the party
23 seeking the amendment"); FedQ R. Civ. P. 16 Advisory Comm.’s Notes (1983 Am.) (stating
24 that good cause exists when a deadline "cannot reasonably be met despite the diligence
l 25 of the party seeking the extension"). The Court will deny the motion because Plaintiff has
- 26 not shown good cause to amend the scheduling order. See Fed. R. Civ. P. l6(b)
27 ("A schedule shall not be modified except upon a showing of good cause[.]"); Johnson,
I 28 975 F.2d at 611 (denying the plaintiffs motion to amend his complaint for failure to show
- 5 -
Case 2:02-cv-01109-DGC Document 223-16 Filed O1/17/2006 Page 1 of 4

1 good cause and stating: "As the torrent of civil and criminal cases Lmleashed in recent
2 years has threatened to inundate the federal courts, deliverance has been sought in the use
3 of calendar management techniques. Rule 16 is an important component of those
4 techniques.”); Wong v. Regents ofthe Univ. of Cal, 410 F.3d 1052, 1062 (9th Cir. 2005)
5 ("Courts set [pretrial] schedules to permit the court and the parties to deal with cases in a
- 6 thorough and orderly manner, and they must be allowed to enforce them, unless there are
. 7 good reasons not to.”).
8 ]]]_ Plaintiffs Motion for Sanctions. l
9 Plaintiff states that John Titus, an attomey with The Cavanagh Law Firm, improperly
10 tiled Plaintiffs confidential mediation brief and a document covered by the Court’s
11 protective order with the Patent and Trademark Office (“PTO") in connection with K-Zell’s n
12 ‘201 Patent reissue application. Doc. #132 at 2-3.4 Plaintiff ftuther states that the filings
13 were made in bad faith and have had a damaging impact on potential settlement in this case
‘ 14 and the use of altemative dispute resolution procedures by other litigants. Id at 12.
15 Plaintiff moves for the disqualification of The Cavanagh Law Firm and monetary sanctions
l 16 in the amount of $11,288.20, to reimburse Plaintiff for its mediation costs and fees. Id at E
17 14. Plaintiff moves for such sanctions under the Cou1·t’s inherent power to sanction
U 18 attorneys and parties who have acted in bad faith, including bad faith conduct that occurs
19 outside the courtroom. Id at 4 (citing Chambers v. NASCO, Inc., 501 U.S. 32 (1990)).
20 Although admitting that the documents were disclosed to the PTO in "technical"
21 violation of the confidentiality order and the mediator’s direction, Defendants K-Zell and
U 22 Donald and Barbara Kammerzell state that the documents were not disclosed in bad faith.
23 Doc. #137 at 5-7. Defendants assert that the documents were filed with the PTO as part of
l 24 a‘ good faith effort to provide full disclosure to the PTO with respect to the ‘20l Patent
25 ... .. ..; t
26 '*Mr. Titus is K-Zell’s patent counsel, but is not counsel of record in this case. K-
27 Zell is rep resented in this case by James Broening, Robert Sullivan, and Peter Donovan of
the law finn Broening Oberg Woods & Wilson. Sonoran Gate is represented in this case
28 by Robert Ehmann, an attorney with The Cavanagh Law Firm. _
- 6 -
Case 2:02-cv-01109-DGC Document 223-16 Filed O1/17/2006 Page 2 of 4

1 reissue application and that the documents contained information that was not in fact
2 confidential. Ia? Defendants argue that the requested sanctions are harsh and
3 inappropriate because Mr. Titus complied with the spirit of the protective and
4 confidentiality orders and his conduct is not tantamount to bad faith. Ici°
5 The Court’s inherent power to sanction parties and attorneys must be exercised
1 6 "‘with restraint and discretion."’ B.KB. v. Maui Police Dep ’t, 276 F .3d 1091, 1108 (9th Cir.
7 2002) (quoting Chambers, 501 U.S. at 44). The Court may impose sanctions only if it
8 "‘specifically fmds badifaith or conduct tantamount to bad faith." l Id (quoting Fink v.
9 Gomez, 239 F.3d 989, 994 (9th Cir. 2001)). Sanctions may be imposed "‘for a variety of
10 types of willful actions, including recklessness when combined with an additional factor
ll such as frivolousness, harassment, or an improper purpose."’ Id Sanctions must be
12 appropriately tailored to the specific conduct that abused the judicial process. Id (citing
13 Chambers, 501 U.S. at 44-45).
~ 14 The Court cannot conclude that Mr. Titus or his clients acted in bad faith. The
15 affidavit submitted by Mr. Titus, who was not a participant in the mediation, suggests that
16 he relied on the title of Plaintiffs mediation memorandum — “Non-Confidential Mediation
17 Memorandum"— in concluding that thc memorandum could be submitted to the PTO, and
18 that he relied on the third-party status of Mr. Williamson in concluding that his declaration
19 and its contents could also be disclosed. Plaintiff asserts various arguments as to why Mr.
20 Titus’ thinking was flawed and what alternative courses he could have taken, but the Court
21 fmds his explanation plausible and largely unrebutted by Plaintiff s argtunents.
22 Nor can the Court conclude that Mr. Titus’ response to Plaintiff’s concems about
23 the PTO disclosures amounted to bad faith. Plaintiffs counsel wrote to him on
24
25 YH- —j
’Defendants note that Plaintiff’s mediation brief was entitled "Non-Confidential
26 Mediation Memorandum?
27 °Defendant Sonoran Gate has joined the response filed by Defendants K—Zell and
28 Donald and Barbara Kammerzell. Doc. #138.
. 7 -
Case 2:02-cv-01109-DGC Document 223-16 Filed O1/17/2006 Page 3 of 4

_ 1 February 8, 2005, exp ressed their concerns about the disclosures, made various requests,
2 and stated that Plaintiff “genuinely welcomes your discourse? Mr. Titus responded the
3 next day, explained why he did not consider the disclosures to be confidential, and invited
4 a response. Plaintiff did not resp ond, but instead filed this motion for sanctions.
5‘ The Court does not condone Mr. Titus’s failure to comply fully with the Court’s
6 protective order and the mediator’s confidentiality order. Nor does the Court approve of
7 Mr. Titus’s failure to promptly and affirmatively take measures to correct the improper
8 filing. See Docs. ##132 at 12, 142 at 5-6. But the Court does not fmd that Mr. Titus’s
i 9 conduct was tantamount to bad faith or that Plaintiff has been damaged by the improper
10 filings, which occurred alter mediation had failed. The Court accordingly will deny
i ll Plaintiffs request for monetary sanctions and disqualification of The Cavanagh Law Firm.
I 12 The Court will also deny Def`endants’ request for attorneys’ fees. _
I 13 IT IS ORDERED:
'_ 14 1. Plaintiff" s motion for sanctions (Doc. #132) is denied.
U 15 = 2. P1aintif`f’s motions opposing requests for entry of judgments (Docs. ##153-
16 56) are granted.
17 3. Plaintiffs motion to amend scheduling order to permit entry of third amended
. 18 complaint (Doc. #165) is denied. I I
19 DATED this 22“" day of August, 2005.
‘ 20
J 21 - I
22 maya 6;...,.42:1
` 23 -_Tm Ilavid G. ffamplzell ' "
United Stains District Judge
24 s
25 I
26
27 l
28
- 8 - U
Case 2:02-cv-01109-DGC Document 223-16 Filed O1/17/2006 Page 4 of 4

Case 2:02-cv-01109-DGC

Document 223-16

Filed 01/17/2006

Page 1 of 4

Case 2:02-cv-01109-DGC

Document 223-16

Filed 01/17/2006

Page 2 of 4

Case 2:02-cv-01109-DGC

Document 223-16

Filed 01/17/2006

Page 3 of 4

Case 2:02-cv-01109-DGC

Document 223-16

Filed 01/17/2006

Page 4 of 4