RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0266p.06 

### UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

_________________

B & H M EDICAL , L.L.C., a Michigan limited liability company, Plaintiff-Appellant , S TEPHEN M. R YAN , P.L.L.C. and S TEPHEN M. R YAN , Attorneys-Appellants (06-1339),

v.

ABP A DMINISTRATION , I NC . and W RIGHT & F ILIPPIS , I NC ., Defendants-Appellees. X - - - - > , - - - - - - - - N Nos. 04-2438; 06-1338/1339

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 02-73615—Gerald E. Rosen, District Judge. Argued: March 14, 2008 Decided and Filed: July 25, 2008 Before: MOORE, GILMAN, and SUTTON, Circuit Judges.

_________________ COUNSEL
ARGUED: Stephen M. Ryan, STEPHEN M. RYAN, P.L.L.C., Bingham Farms, Michigan, for Appellants. John A. Cook, LAW OFFICE OF J OHN A. COOK, PLLC, Royal Oak, Michigan, for Appellees. ON BRIEF: Stephen M. Ryan, STEPHEN M. RYAN, P.L.L.C., Bingham Farms, Michigan, for Appellants. John A. Cook, LAW OFFICE OF JOHN A. COOK, PLLC, Royal Oak, Michigan, Gerard Mantese, Mark C. Rossm an, MANTESE & ROSSMAN, P.C., Troy, Michigan, for Appellees.

_________________ OPINION

_________________ PER CURIAM. In response to our opinion granting Defendants-Appellees’ motion for appellate sanctions pursuant to Rule 38 of the Fe deral Rules of Appellate Procedure, John A. Cook, counsel for Defendants-Appellees, filed an affida vit in support of a requested amount of sanctions totaling $152,846.11. B & H Medical, L.L.C., Plaintiff- Appellant (“B&H”), and Stephen M. Ryan, P.L.L.C., and Stephen M. Ryan, Attorneys-Appe llants (collectively, “Ryan”), filed a response

1Nos. 04-2438; 06-1338/1339 B & H Medical, L.L.C. v. ABP Admin. Inc., et al. Page 2

contending that the requested amount is excessive. For the reasons stated below, we agree and fix the amount at $10,000. Rule 38 of the Federal Rules of Appellate Pro cedure provides that “[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Fed R. App. P. 38. Our opinion conclude d that the manifestly frivolous nature of the appeal meant that “B&H and Ryan must jointly pay W&F the costs incurred in defending this appeal.” B&H Med., L.L.C. v. ABP Admin., Inc. , 526 F.3d 257, 271 (6th Cir. 2008). Before the district court, Defendants-Appe llees requested over $325,000 in sanctions after the district court granted their motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. J.A. at 131 (Order Awa rding Rule 11 Sanctions at 1). The district court noted that over $128,000 of that amount was due to attorney fees and that the request detailed nearly 650 hours of attorneys’ work. J.A. at 134-35 (Order Awarding Rule 11 Sanctions at 4-5). The district court imposed $42,760 in attorney fees as sanctions, findi ng that only one-third of the requested award was a reasonable expense. Id. The district court observed that because the “Plaintiff’s claims suffered from fundamental and rather glaring evid entiary defects . . . it should not have been an especially onerous or time-consuming task to prepare a summary judgment motion that pointed out these deficiencies in Plaintiff’s theories of recovery.” J.A. at 135 (Order Awarding Rule 11 Sanctions at 5). The affidavit and supporting exhibits filed in our court state that well over 500 hours were expended in this appeal at a total requested cost of $152,846.11. Our opinion highlighted the numerous deficiencies plaguing Plaintiff-Appella nt’s briefing, including that Plaintiff-Appellant failed to challenge a crucial basis of the dist rict court’s opinion, introduced new theories, and reiterated arguments that the district court had already deemed frivolous. We accept the district court’s finding that approximately $42,000 in attorney fees constituted a reasonable expense of moving for summary judgment in this case; defendi ng that judgment on appeal should have required far less. Although Plaintiff-Appellant did introdu ce on appeal a new theory of the case, much of Plaintiff-Appellant’s briefing merely repeated argum ents that the district court had already soundly rejected and sanctioned. After considering the parties’ submissions, we impose a sanction of $10,000. This sum is approximately one-fourth of the amount that the district court deemed a reasonable sanction for baselessly opposing summary judgment. We consider that sum to constitute a reasonable measure of the costs required to prevail in this case agai nst B&H and Ryan’s manife stly frivolous appeal. In arriving at that sum, we also conclude that $10,000 is a sanction sufficient to deter such frivolous litigation conduct. See Dubay v. Wells , 506 F.3d 422, 433 (6th Cir. 2007) (“[T]he sole purpose of awarding attorney fees under Rule 38 is to discour age litigants from wasting this Court’s time and the opposing party’s resources with frivolous appeals.”). Accordingly, we order that B&H and Ry an must jointly pay $10,000 to DefendantsAppellees.