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ROWE ENTERTAINMENT, INC. v. WILLIAM MORRIS AGENCY

August 1, 2005.

ROWE ENTERTAINMENT, INC., et al., Plaintiffs,
v.
THE WILLIAM MORRIS AGENCY, INC., et al., Defendants.



The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge

OPINION AND ORDER

Currently pending before this Court are three motions for attorneys' fees and costs. Defendants William Morris Agency, Inc. ("WMA"), Creative Artists Agency, LLC ("CAA"), and Renaissance Entertainment, Inc. ("Renaissance") (collectively, the "Booking Agency Defendants") move for an adjudication of Plaintiffs' liability for attorneys' fees, expenses and costs, pursuant to 42 U.S.C. § 1988 and Rule 54(d)(2)(B) and (C) of the Federal Rules of Civil Procedure, and for an adjudication of liability, pursuant to 28 U.S.C. § 1927 and the inherent powers of the court, of Plaintiffs' current and former attorneys of record: Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, P.L. (the "Gary firm"); Ivie McNeill & Wyatt; Robert E. Donnelly, Esq.; RubinBaum LLP (the "RubinBaum firm"); and Sonnenschein Nath & Rosenthal LLP. Defendant Beaver Productions, Inc. ("Beaver") moves for attorneys' fees and costs against Plaintiffs and their counsel, the Gary firm, pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1927, the inherent powers of the court, and Rule 11 of the Federal Rules of Civil Procedure. Defendant Jam Productions, Ltd. ("Jam") moves for attorneys' fees and costs against Plaintiffs and their counsel, the Gary firm, pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1927, and the inherent powers of the court.

For the reasons that follow, the motions for attorneys' fees and costs filed by the Booking Agency Defendants, Beaver and Jam are denied.

  BACKGROUND

  The instant motions arise from a civil action, filed on November 19, 1998, by four*fn1 African-American owned concert promoter companies and their owners: Rowe Entertainment, Inc. and Leonard Rowe; Sun Song Productions, Inc. and Jesse Boseman; Summitt Management Corporation and Fred Jones, Jr.; and Lee King Productions, Inc. and Lee King. The original Complaint charged eight talent and booking agencies, including WMA, CAA and Renaissance, and twenty-six concert promoters, including Beaver and Jam, with violations of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, and violations of 42 U.S.C. §§ 1981, 1985(3) and 1986. By Opinion and Order dated May 26, 1999, this Court dismissed the antitrust claims against the Booking Agency Defendants, Beaver, Jam and other former defendants, and dismissed the discrimination claims against Beaver, Jam and other former defendants, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rowe v. William Morris Agency, Inc. ("Rowe I"), No. 98 Civ. 8272, 1999 WL 335139, at *9 (S.D.N.Y. May 26, 1999).

  On August 9, 1999, Plaintiffs filed an Amended Complaint alleging an antitrust conspiracy and claims of discrimination against all the original Defendants. Defendants again moved, pursuant to Rule 12(b)(6), to dismiss the Amended Complaint. By Opinion and Order dated July 6, 2000, this Court denied the motions to dismiss the Amended Complaint, except the Court dismissed the antitrust claim against Jam and certain other former defendant concert promoters with prejudice.*fn2 Rowe v. William Morris Agency, Inc. ("Rowe II"), No. 98 Civ. 8272, 2000 WL 896929, at *15 (S.D.N.Y. July 6, 2000).

  Nearly three years of discovery followed, during which Plaintiffs were afforded virtually unlimited access to the concert files, computerized e-mail communications and electronic concert databases of Defendants WMA and CAA. (See Affidavit of Helen Gavaris, dated Feb. 22, 2005, ¶ 16; Declaration of Jeffrey S. Klein, dated Feb. 22, 2005, ¶ 10.) More than sixty witnesses were deposed, including the five Plaintiffs whose depositions took twenty days to complete. (Booking Agency Defs.' Br. ("BA Defs.' Br.") at 6.)

  On February 28, 2003, the only remaining Defendants, the Booking Agency Defendants, Beaver and Jam, moved for summary judgment. On January 4, 2005, this Court filed a 174-page Opinion granting summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, to the Booking Agency Defendants, Beaver and Jam for the failure to present evidence supporting essential elements of each cause of action asserted in the Amended Complaint. Rowe SJ, 2005 WL 22833.

  DISCUSSION

  I. Legal Standards

  A. 42 U.S.C. § 1988

  As a general rule in the United States, litigants must pay their own attorneys' fees in the absence of legislation providing otherwise. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). Congress has provided a limited exception to this rule in 42 U.S.C. § 1988, which allows a district court, in its discretion, to grant reasonable attorney's fees to a prevailing party in an action to enforce a provision of 42 U.S.C. §§ 1981, 1985 and 1986.*fn3 42 U.S.C. § 1988. Under § 1988, a prevailing plaintiff is "to be awarded attorney's fees in all but special circumstances." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417 (1978).*fn4 A prevailing defendant, however, is to be awarded attorney's fees only if a district court finds that the plaintiff's "claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Id. at 422. This distinction between prevailing plaintiffs and defendants "advances the congressional purpose to encourage suits by victims of discrimination while deterring frivolous litigation." Roadway Express, Inc. v. Piper, 447 U.S. 752, 762 (1980).

  Despite the "prevailing party" language in 42 U.S.C. § 1988, the Supreme Court has identified "two strong equitable considerations" for awarding attorney's fees to a prevailing plaintiff, which are "wholly absent" where the defendant prevails. Christiansburg, 434 U.S. at 418. First, "the plaintiff is the chosen instrument to vindicate `a policy that Congress considered of the highest priority.'" Id. (quoting Newman v. Piggie Park Enters., 390 U.S. 400, 402 (1968)). Second, when a prevailing plaintiff is awarded attorney's fees, these fees are assessed "against a violator of federal law." Id. at 419.

  "The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees" in favor of the defendant. Hughes, 449 U.S. at 14. Furthermore, when deciding whether to award attorney's fees to a prevailing defendant, a district court should not "engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation." Christiansburg, 434 U.S. at 421-22. Additionally, this admonition is "particularly pertinent to cases involving allegations of conspiracies" because "[c]onspiracies are by their very nature secretive operations that can hardly ever be proven by direct evidence. Thus, unsuccessful conspiracy claims are not unreasonable merely because they were based principally, or even entirely, on circumstantial evidence." LeBlanc-Sternberg v. Fletcher, 143 F.3d 765, 770 (2d Cir. 1998) (internal quotation marks and citations omitted).

  B. 28 U.S.C. § 1927

  Another exception to the "American rule" that litigants must pay their own attorneys' fees is 28 U.S.C. § 1927, which provides:
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof 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.
Section 1927 differs from § 1988 in that it imposes liability for misconduct on an attorney or person acting as an attorney. Also, "it applies a uniform standard for the imposition of sanctions, whether the person against whom fees are assessed represented the plaintiff or the defendant." Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986). Section 1927 does not "distinguish between winner and losers." Roadway Express, 447 U.S. at 762. Thus, § 1927 does not concern the equities of a dispute, but rather is "concerned only with limiting the abuse of the court processes" by an attorney or person acting as an attorney. Id. However, as with § 1988 determinations, the decision whether to impose § 1927 sanctions is within the discretion of the district court. See McMahon v. Shearson/American Express, Inc., 896 F.2d 17, 23 (2d Cir. 1990); Apex Oil Co. v. Belcher Co., 855 F.2d 1009, 1020 (2d Cir. 1988). To impose sanctions under § 1927, a court must find "clear evidence that (1) the offending party's claims were entirely meritless and (2) the party acted for improper purposes." Agee v. Paramount Communications, Inc., 114 F.3d ...

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