By the time Edelman Combs presented its motion to reassign the D'Agostino case as
related to the Josello case, the D'Agostino case had been dismissed and was no longer pending.!
Further, Lexington’s counsel repeatedly asked Edelman Combs to withdraw the motion to
reassign after D'Agostino was dismissed, but Edelman Combs refused. Therefore, a reasonable
attorney aware of the requirements of the local rule would have withdrawn the motion for
reassignment prior to the September 7, 2004 presentment date. Edelman Combs’ continuing to
pursue this motion once it knew of the dismissal of the case was a choice that a reasonably
careful attorney would have known was unsound, The Court therefore finds that Edelman
Combs acted unreasonably and vexatiously in presenting the motion for reassignment. Edelman
Combs’ baseless motion wasted the Court’s time and resulted in Lexington’s research and
defense costs in preparing a Tesponse to the motion, as well as time and money on the part of

defense counsel in attempting to persuade Edelman Combs to withdraw the motion.

Once the Court has found violations under section 1927, the Court has discretion to
award attorneys’ fees. Moline, 222 F.R.D. at 349, However, whether or not the party moving
for sanctions has mitigated its own legal costs will influence the amount of the award. Jd. Also,
the Court must impose the least severe sanction that will serve the goals of section 1927. Id.
Here, defense counsel sought $15,950.81 for defending plaintiff's motion to reassign and for
preparing the section 1927 motion and reply brief. This amount includes attorneys’ fees in the

amount of $12,813.75 for the 38.25 hours of time spent preparing a defense to the motion to

‘Edelman Combs’ reliance on Judge Castillo’s comments that this Court should be
afforded the opportunity to address the relatedness motion is misplaced. Although Judge
Castillo stated that this Court could reassign any D'Agostino individual claims, he clearly and
unequivocally dismissed the D ‘Agostino case in total.

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modification, reversal or extension of existing law. Jd. Whether sanctions under 28 ULS.C. §
1927 are appropriate is based on an objective test and focuses on whether an attorney “has acted
in an objectively unreasonable manner by engaging in a serious and studied disregard for the
orderly process of justice” or pursued a “claim without a plausible legal or factual basis and
lacking in justification.” Walter v. Fiorenzo, 840 F.2d 427, 433 (7th Cir. 1988) (internal
quotations omitted). “If a lawyer pursues a path that a reasonably careful attorney would have
known, after appropriate inquiry, to be unsound, the conduct is objectively unreasonable and
vexatious.” Id, at 434.

Lexington contends that Edelman Comb’s moving for reassignment of an already
dismissed case was unreasonable and vexatious, and the Court agrees. In the Northern District
of Illinois, Local Rule 40.4 governs motions for reassignment of cases as related and requires
that each of the following conditions be satisfied:

(1) both cases are pending in this Court;

(2) the handling of both cases by the same judge is likely to result in a substantial saving
of judicial time and effort;

(3) the earlier case has not progressed to the point where designating a later filed case as
related would be likely to delay the proceedings in the earlier case substantially; and

(4) the cases are susceptible of disposition in a single proceeding.
N.D. ILL. LR 40.4(b) (emphasis added). Thus, Local Rule 40.4(b) requires that both cases must
be pending to allow for reassignment. Donahue v. Elgin Riverboat Resort, No. 04 C 816, 2004
WL 2495642, at *2 (N.D. IIL. Sept. 28, 2004); Hollinger Int'l, Inc. v. Hollinger, Inc.,No.04C
0698, 2004 WL 1102327, at *2 (N.D. Ill. May 05, 2004). The primary purpose of reassignment

of a case based on relatedness is to save judicial time and effort. See N.D. ILL. LR 40.4(b)(2).

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reassign, as well as $1,351.31 in costs, including travel expenses for defense counsel to travel
from Utah to Chicago to appear for the presentment hearing. In counsel’s log of time sheet
entries, however, only six hours of the lead attorney’s time were spent preparing defendant’s
opposition to the motion to reassign and appearing for that motion, at a rate of $335.00 per hour.
Magistrate Judge Mason recommended an award of six hours of attorneys’ fees at $335.00 per
hour, stating that local counsel alone could have appeared for Lexington and reduced
Lexington’s defense costs. Because the Court holds that defense counsel failed to mitigate
adequately a large amount of the legal costs sought, the Court also independently finds that the
award of $2,010.00 in attorneys’ fees and costs is appropriate and will serve the purpose of
deterring Edelman Combs from engaging in similar conduct in the future.

Lastly, Lexington argues that the Court should not only affirm the Magistrate Judge’s
Report and Recommendation but also should also award attorneys’ fees and costs related to its
response to plaintiff's objection to the Report and Recommendation. The Court declines to
award additional attorneys’ fees and costs because the sanction of $2,010.00 serves as a

sufficient deterrent for frivolous motions, the main purpose of 28 U.S.C. § 1927.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CHRISTOPHER IOSELLO, )
)
Plaintiff, )
) Judge Ronald A. Guzman
v. y
) 03 C987
VICTOR LAWRENCE, doing business as )
LEXINGTON LAW FIRM, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Magistrate Judge Michael T. Mason has recommended that Victor Lawrence’s (doing
business as Lexington Law Firm) motion for attorneys’ fees and costs pursuant to 28 U.S.C. §
1927 be granted in part and denied in part. Before the Court is plaintiff Christopher Tosello’s
objection to the Magistrate Judge’s Report and Recommendation. For the reasons provided in

this Memorandum Opinion and Order, the Court adopts the Report and Recommendation in full.

FACTS

On May 27, 2004, while the instant case was pending before this Court, another plaintiff,
who was represented by the same law firm as the plaintiff in the instant case, Edelman, Combs,
Latturner & Goodwin, LLC (“Edelman Combs”), brought another suit against the instant
defendant, see D'Agostino v. Lexington Law Firm, No. 04 C 3660 (N.D. Ill. 2004). On August
27, 2004, Lexington moved to dismiss or stay the D'Agostino case pending resolution of class
certification status in Josello, the instant suit. On August 30, 2004, Edelman Combs on Iosello’s

behalf moved this Court to find that the D'Agostino case was related to the instant case and to


CONCLUSION
For the reasons set forth above, the Court adopts in full Magistrate Judge Michael T.
Mason’s Report and Recommendation regarding defendant’s motion for attorneys’ fees and
costs pursuant to 28 U.S.C. § 1927 [doc. no. 183-1}.

SO ORDERED. entereD: 9//6/2>

HON. RONALD A. GUZ
United States District Judge


have it transferred to this Court’s docket, and the motion was set for presentment on September
7, 2004. Id.

On August 31, 2004, after the relatedness motion was filed, but before it was presented to
the Court, Judge Ruben Castillo dismissed the D’Agostino class claims with prejudice and
individual claims without prejudice. (PI.’s Objection Magistrate’s Report & Recommendation
(“P1.’s Objection”) at 1; Def.’s Resp. Mem. Opp’n Pl.’s Objection at 1-2.) Despite that fact, on
September 7, 2004, before this Court, Edelman Combs argued losello’s motion to reassign the
class claims in the D’Agostino case and designate them as related to Josello. (Def.’s Resp. Mem.
Opp’n P1.’s Objection at 2.) Edelman Combs refused to withdraw the motion although
Lexington Law Firm made numerous requests for it to do so, and Edelman Combs argued that
Judge Castillo wanted this Court to have the opportunity to rule on the motion for relatedness
and on Lexington’s motion for sanctions in the D'Agostino case. (P1.’s Objection at 3.)

The Court denied Iosello’s motion for a finding of relatedness, stating that it had no basis
in law because the D’Agostino case had been dismissed and thus there was no case to reassign as
related and that the D ‘Agostino sanctions motion was not related to the Josello matter.

Lexington then moved for attorneys’ fees and costs under 28 U.S.C. § 1927 based on the
argument that it was forced to defend against a motion that had no basis in law. The Court
referred the motion to Magistrate Judge Mason for a Report and Recommendation.

Magistrate Judge Mason recommended granting in part and denying in part the motion.
Magistrate Judge Mason stated that because the D ‘Agostino case had been dismissed, no basis
existed for granting the motion to reassign or to declare D'Agostino as a related case. He also
stated that Edelman Combs acted unreasonably and vexatiously in continuing to pursue the

motion to reassign after the D'Agostino case was dismissed, and recommended that the law firm

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be sanctioned $2,010.00 in attorneys’ fees and costs for the preparation of a written opposition to
plaintiffs motion to reassign D'Agostino. Plaintiff objects to Magistrate Judge Mason’s Report
and Recommendation and argues that Edelman Combs did not act in bad faith or multiply the

proceedings by failing to withdraw the relatedness motion.

DISCUSSION

Under Federal Rule of Civil Procedure 72, the standard of review employed by the Court
to review matters determined by a magistrate judge depends on whether the matter is dispositive
or nondispositive. FED. R. Clv. P. 72. “[R]esolution of a sanctions request is a dispositive
matter capable of being referred to a magistrate judge only under [28 U.S.C.] § 636(b)(1)(B) or §
636(b)(3), where the district judge must review the magistrate judge’s report and
recommendations de novo.” Retired Chi. Police Ass'n v. Firemen’s Annuity & Benefit Fund of
Chi., 145 F.3d 929, 933 (7th Cir. 1998) (internal quotations omitted).

A motion for the award of attorneys’ fees is governed by 28 U.S.C. § 1927, which
provides that “[a]ny 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. The purpose of
sanctions awarded pursuant to section 1927 is to “deter frivolous litigation.” Moline v. Trans
Union, L.L.C., 222 F.R.D. 346, 349 (N.D. Ill. 2004); see Kapco Mfg. Co., Inc. v. C & O Enters.,
886 F.2d 1485, 1491 (7th Cir. 1989).

Repetitious assertion of a legal argument may be grounds for sanctions to be awarded if
“a competent attorney would find no basis for a legal argument.” In re TCI Ltd., 769 F.2d 441,
447 (7th Cir. 1985). Motions must be justified by existing law or a good faith argument for the

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