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 MEDICAL, L.L.C., a Michigan limited liability

company,

Plaintiff-Appellant,

STEPHEN M. RYAN, P.L.L.C. and STEPHEN M. RYAN,

Attorneys-Appellants (06-1339),

v.

ABP ADMINISTRATION, INC. and WRIGHT &

FILIPPIS, INC.,

Defendants-Appellees.

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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 JOHN 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. Rossman, 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 Federal Rules of Appellate Procedure, John A. Cook,

counsel for Defendants-Appellees, filed an affidavit 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-Appellants (collectively, “Ryan”), filed a response

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Nos. 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 Procedure 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 concluded 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-Appellees 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 Awarding 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, finding 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 evidentiary 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-Appellant’s briefing, including that Plaintiff-Appellant

failed to challenge a crucial basis of the district 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; defending that judgment on appeal should have required

far less. Although Plaintiff-Appellant did introduce on appeal a new theory of the case, much of

Plaintiff-Appellant’s briefing merely repeated arguments 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 against B&H and Ryan’s manifestly 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 discourage litigants from wasting this Court’s time and

the opposing party’s resources with frivolous appeals.”).

Accordingly, we order that B&H and Ryan must jointly pay $10,000 to DefendantsAppellees.