NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HARRY DUNLEAVY,

Plaintiff,

v. 

EDWARD GANNON, ALAN

HANDLER, JOHN TONELLI,

CANDACE MOODY, LT. JAMES

MCINNESS, JOHN PALM, ROBERT

STOBER, CHARLES CENTINARO,

BARRY FRANK, JOHN BRESLIN,

GARY LIGHTMAN, JOHN

BARBARULA, LAURIE VEIGHT,

TIMOTHY MATTESON, PETER

ROMAINE, NEW JERSEY STATE

POLICE, NEW JERSEY BAR

ASSOCIATION, OFFICE OF

ATTORNEY ETHICS, LAKELAND

BANK,

 Defendants. 

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Hon. Dennis M. Cavanaugh

OPINION

Civil Action 2:11-cv-0361(DMC)(MF)

DENNIS M. CAVANAUGH, U.S.D.J.:

This matter comes before this Court on three motions by Defendants Frank, Breslin and

Gary Lightman for attorneys’ fees and costs owed. On June 12, 2012, William D. Sanders,

counsel from the McGivney & Klugler, PC firm representing Defendant Breslin, wrote to inform

the Court that their motion should be withdrawn, the parties having settled the matter (ECF No.

116). This Court terminated the motion on the same day. The only motions remaining in this

matter are motions for fees filed by Defendants Frank and Lightman (ECF Nos. 90 and 92). 

Pursuant to FED. R. CIV. P. 78, granting this Court the authority to resolve the motion on the

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papers, no oral argument was heard. Based on the following, this Court hereby grants in part

and denies in part Defendants’ motions for attorney’s fees.

I. BACKGROUND

Plaintiff Harry Dunleavy (“Plaintiff”) filed several lawsuits arising out of the same facts. 

Almost a dozen cases involving similar claims were filed in this Court and Plaintiff made several

unsuccessful trips to the Third Circuit on appeal. (Breslin’s Br. Supp. Sanctions 2, July 11, 2011,

ECF No. 47). The first of these suits was filed in this Court in 2005. Id. at 25. Plaintiff then

filed in the Superior Court of New Jersey, Sussex County in 2007 against the same Defendants as

those named in the 2005 action. Plaintiff thereafter filed grievances against attorneys who had

represented Defendants in the Superior Court action. Finally, Plaintiff filed suit in this Court.

Plaintiff’s claims stem from the allegation that he lost personal funds that were being

wrongfully handled by the Defendants as an investment. Plaintiff alleged that Charles W. Cart

fraudulently persuaded him to invest $25,000 in what Plaintiff believed to be a “health insurance

claims company” named Skylands Administrators. (Pl.’s Compl. ¶ 1, Jan. 20, 2011, ECF No. 1). 

Plaintiff alleged that the same funds were then “fraudulently and clandestinely funneled to pay

debts for a strip club in Florida called the ‘Wild Coyote.’” Id. 

Plaintiff’s pattern of filing alone is egregious, let alone the frivolous nature of his claims. 

Defendants filed six motions to dismiss in the instant action, which this Court granted with

prejudice in the Order and Opinion filed November 1 (hereinafter, the “November 1 Opinion”) st st

(ECF Nos. 83). Dunleavy v. Gannon, No. 11-cv-361, 2011 WL 5321004 (D.N.J. Nov. 1, 2011). 

The November 1 Opinion granted the motions to dismiss with prejudice (ECF Nos. 26, 28, 29, st

35, 41 and 12).

Defendants Barry Frank (ECF No. 38), Gary Lightman (ECF No. 43), Laurie Veith (ECF

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No. 44), John Breslin (ECF No. 47) filed four motions for sanctions pursuant to FED. R. CIV. P.

11. On January 26, 2012, this Court granted those motions in the form of reasonable costs and

attorneys’ fees and enjoined Plaintiff from filing further without Court approval. (ECF No. 88). 

This Court now reviews fee amounts declared by Defendants in the moving papers filed by

Defendants Frank and Lightman, these motions represent the only two remaining in this action

(ECF Nos. 90 and 92). 

Each attorney’s claim for fees presents distinct arguments. This Court now reviews the

evidence supporting each Defendant’s declared fee amount for reasonableness. Defendant Gary

Lightman appeared pro se. Invoices from the firm reflect that Mr. Lightman spent 68.75 hours

on this matter, at a rate of $325.00 per hour. Lightman Decl. Ex. A, at ¶ 14, Feb 23, 2012, ECF

No. 92-2. In total, Mr. Lightman claims that he and his partner spent 77.45 hours on this matter

which amounted to $26,890.00 in fees, and that disbursements totaled $1,112.45. Id. at ¶ 13-4. 

Defendant Lightman seeks fees totaling $28,002.45. Id. at ¶ 15. Mr. Lightman reviewed

Plaintiff’s complaint; communicated with counsel on several occasions; reviewed filings of other

Defendants; researched the causes of action asserted by Plaintiff in his complaint; researched and

prepared a motion to dismiss and an amended motion to dismiss; prepared a Rule 11 notice and

motion; researched and prepared a motion for sanctions and a brief in support; researched and

filed a motion for attorney’s fees; researched and filed a Rule 1:4-8 motion; reviewed Plaintiff’s

criminal complaint in the Superior Court and reviewed Plaintiff’s filings in this action. Id.

Defendant Barry Frank was represented by Bruce Ettman. As a long-standing client of

the Wolff & Samson, PC firm, Mr. Frank’s bill represents the customary fee reduced by 20%. 

Frank Decl. Ex. A, at ¶ 7, Feb. 21, 2012, ECF No. 90. Invoices from the firm reflect that Mr.

Ettman spent a total of 169.1 hours on this matter. Id. at ¶ 14. Mr. Ettman’s hourly rate was

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$350.00 per hour until July 2011, and $375.00 thereafter. Id. at ¶ 13(C). Mr. Ettman’s total

amount charged is $48,688.00, as stated, considering the 20% discount. Id. at ¶ 14. Two

partners and five paralegals at the firm also rendered services in connection with this matter, their

hours totaling 19.5. Id. Fees charged in the matter as a whole, amount to $54,916.40. Id. Total

disbursements billed are $1,224.36. Id. Mr. Frank seeks a total sum of $56,140.76 in fees. Id. 1

at ¶ 17; see also, Frank Decl. ¶ 20. Mr. Ettman’s firm was responsible for all aspects of Mr.

Frank’s defense including the legal research and analysis; drafting, editing and revising of all

submissions to this Court; drafting, editing and revising all correspondence and preparing for and

engaging in all oral communications with the Court and all counsel. Id. at ¶ 3.

II. STANDARD OF REVIEW

The bottom line purpose of a sanction under Rule 11 is deterrence. The Court must be

mindful of the proportionality of the sanction, in that it is limited to what suffices to “deter

repetition of the conduct or comparable conduct by others similarly situated.” FED. R. CIV. P.

11(c)(4) (2007). Courts have uniformly sanctioned litigants who attempt to relitigate issues

already decided, including those brought under the guise of constitutional and 42 U.S.C. § 1983

civil rights claims. E.g., Napier v. Thirty or More Unidentified Fed. Agents, Employees or

Officers, 855 F.2d 1080, 1090 (3d Cir. 1988) (upholding sanctions where claims were identical

to other claims already adjudicated and therefore legally frivolous); see also, Balthazar v. Atl.

City Med. Ctr., 279 F. Supp. 2d 574, 594 (D.N.J. 2003) (imposing Rule 11 sanctions where the

Court concluded the litigant was merely attempting to relitigate unsuccessful state court claims). 

Rule 11 furnishes this Court with the authority to direct payment to the movant, of part or

all of the reasonable attorney’s fees and other expenses directly resulting from the violation. 

By February 21, 2012, Mr. Frank had paid a total of $27,861.13. Id. at ¶ 16. 1

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FED. R. CIV. P. 11. Courts have found that sworn affidavits constitute competent evidence of

claimed attorney’s fees and expenses. Mackler Prods. Inc. v. Cohen, 225 F.3d 136, 146 (2d Cir.

2000). Further, presentation of such evidence gives the violator an adequate opportunity to

challenge the accuracy of any such submissions. Id.

In recognition of the broad discretion granted to the trial court to fashion sanctions under

Rule 11, the Third Circuit enunciated an “abuse of discretion” standard for reviewing the initial

decision to impose sanctions as well as the specifics of fee awards. Doering v. Union Cnty. Bd.

of Chosen Freeholders, 857 F.2d 191, 195 (3d Cir. 1988) (citation omitted). While Circuit

Courts have envisioned the trial courts imposing rigid guidelines in this “circumstance-specific

area of the law, the judge should take pains neither to use an elephant gun to slay a mouse nor to

wield a cardboard sword if a dragon looms.” Anderson v. Beatrice Foods Co., 900 F.2d 388, 395

(1st Cir. 1990).

III. DISCUSSION

A. Deterrent purpose of Rule 11

The balance of inquiries under Rule 11 weighs the interest in curbing abusive litigation

tactics and misuse of process, against the interest in preserving the opportunity for unhindered,

zealous advocacy. The objective test adopted determines, after “reasonable inquiry,” whether the

pleading, motion or other paper is “well grounded in fact and is warranted by existing law or a

good faith argument for the extension, modification, or reversal of existing law.” Gaiardo v.

Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987). A finding of baseless pleading so extreme it

constitutes abuse, may be deterred with an appropriate sanction that is either nonmonetary or

monetary depending on what suffices “to deter repetition of the conduct or comparable conduct

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by others similarly situated.” FED. R. CIV. P. 11(c)(4). It is well established that the Court must

work within this structure, imposing a sanction at “the minimum that will serve to adequately

deter the undesirable behavior” that precipitated the sanction. Doering v. Union Cnty. Bd. of

Chosen Freeholders, 857 F.2d 191, 194 (3d Cir. 1988). 

Awarding attorney’s fees discourages Plaintiff from bringing baseless actions or making

frivolous motions, but it is not a compensation device. The Rule’s primary purpose is not

“wholesale fee shifting but [rather] correction of litigation abuse.” Doering, 857 F.2d at 194

(citing Gaiardo v. Ethyl Corp., 835 F.2d 479, 483 (3d Cir. 1987)). As such, this Court must

review Plaintiff’s conduct and the reasonableness of attorneys’ stated fee amounts. This Court

already concluded that monetary sanctions were appropriate and necessary to effect a deterrent

purpose. That conclusion was reasoned upon Plaintiff’s continued filing, despite warnings and

adverse holdings describing Plaintiff’s failure to state a claim for relief. See Op. 5, Jan. 26,

2012, ECF No. 88. Under Rule 11 generally, the Court is empowered to award “reasonable

expenses, including attorney’s fees, incurred for the [filing of the Rule 11] motion.” FED. R. CIV.

P. 11(c)(2). The amount of the sanction must be limited according to the deterrent purpose of

Rule 11. 

B. Plaintiff’s Conduct

Plaintiff has filed a multitude of lawsuits arising out of the same facts and claims. 

Plaintiff inundated this Court with numerous frivolous filings. Plaintiff made no effort to

identify meritorious claims, as his allegations were unsubstantiated by law or fact. For example,

Plaintiff brought a claim under the Age Discrimination in Employment Act (“ADEA”), but failed

to provide any legal or factual support related to discrimination based on his age. Additionally,

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Plaintiff mentioned 42 U.S.C. § 1983 in his complaint against only private actors. 

This Court granted Plaintiff great leniency as a pro se, however, the special circumstances

of a pro se are analyzed considering a sliding scale based on the litigant’s level of sophistication. 

See 27A Fed. Proc., L. Ed. § 62:771 (2012). Though physically Plaintiff’s submissions to the

Court appeared professional and well organized, a closer look into the materials showed that

Plaintiff’s lengthy arguments were neither grounded in law, nor frankly comprehensible. 

Plaintiff, for instance, extracted statements from opposing briefs and countered by rehashing

summaries of forlorn cases he unsuccessfully prosecuted in New Jersey’s State and Federal

Courts, on similar and unrelated claims. See Pl.’s Resp. Breslin Sanctions Mot. 15, July 11,

2011, ECF No. 55. Plaintiff dragged the parties through over twelve months of frivolous

litigation in this case. Defendants showed that they engaged with Plaintiffs’ claims for far too

long, through State Court proceedings as well as over a year’s worth of filings in this Court. 

Plaintiff continued to file on the same claims despite Superior Court dismissals and explicit

warnings of the frivolous nature of his filings. Plaintiff demonstrates a level of sophistication

high enough for this Court to assume that he understood, but purposefully failed to heed, the

repeated warnings he received regarding the frivolousness of his filings. The totality of this

evidence speaks to the conclusion of this Court that Plaintiff filed pretextually seeking merely to

harass Defendants. 

C. Reasonableness of fees

Most Courts are making an effort to determine actual fees and expenses. However,

thereafter those required to pay have no entitlement to a perfect match between an award and

Defendant’s legal fees. The final decision is left to the discretion of the Court based on Plaintiff’s

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conduct considering the exact amount of attorneys’ fees as a reference point, not a conclusive

element. Plaintiff misused this Court to harass and embarrass the Defendants. See, Op. on Rule

11 Mot. 13-14, Jan. 26, 2012, ECF No. 88. Although Plaintiff’s recognition and remorse are

appreciated, his apology for conduct after the fact will not, of itself, result in a downgrade of fee

award. See, Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987) (citation omitted)

(observing that Rule 11 does not permit use of the “pure heart and empty head” defense); and

Eastway Contr. Corp. v. City of New York, 762 F.2d 243, 253 (2d Cir. 1985) (finding that

subjective good faith no longer provides the safe harbor it once did)). Rather, this Court must first

check the declared fees for reasonableness and then impose a sanction amount directly based on

deterring the recorded conduct. 

Plaintiff Harry Dunleavy faces sanctions in excess of $84,000 between the fee amounts

from Mr. Frank and Mr. Lightman. The Third Circuit has been careful to note that “reasonable”

does not necessarily mean “actual” expenses. Goaiardo v. Ethyl Corp., 835 F.2d 479, 483 (3d Cir.

1987). This Court is guided by Rule 11’s primary objective: deterrence. DiPaolo v. Moran, 407

F.3d 140, 145 (3d Cir. 2005). Compensation is considered in tandem with the Rule’s deterrent

purpose, however, Rule 11 sanctions should not be viewed as a general fee shifting device. Id. at

483. This Court must be wary of the significant risk that the victim of a Rule 11 violation could

exploit the rule by maximizing costs in order to receive a massive sanctions award at the end of

the litigation. See, e.g., Gaiardo, 835 F.2d at 483 (holding the “duty of mitigation should

minimize any excessive burden on the sanctioned party and diminish the tactical value of

orchestrating motions to increase the cost of litigation for the other side”); see infra Part III.E.

The Court of Appeals made clear that the reasonableness inquiry involves consideration

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of “various mitigating factors in [District Courts’] calculation of the total monetary compensation

owed by [those] who have been found to have [engaged in litigation misconduct].” Doering v.

Union Cnty. Bd. of Freeholders, 857 F.2d 191, 194 (3d Cir. 1988); see also, Bartos v. Commw.

of Pa., Dep’t of Envtl. Prot., 2010 WL 2853643, at *7 (M.D.Pa. July 20, 2010). Those factors

include: (1) the violating party’s ability to pay; (2) the public’s interest in encouraging certain

types of lawsuits; (3) the sanctioned party’s history of filing frivolous actions; (4) the

Defendant’s need for compensation; (5) the degree of frivolousness of the action; (6) whether the

frivolousness indicated that a less sophisticated or expensive response by the Defendant was

required. Doering, 857 F.2d at 197 n. 6. These factors are relevant to determining

reasonableness. This Court is also mindful of the movant’s “clear duty to mitigate,” as cited

above, and additionally in the Advisory Committee’s note to the 1993 publication of Rule 11.

Given this Court’s decision granting the motions for sanctions, the issues considered by

these factors have been amply discussed in this matter. Plaintiff submitted a complaint gravely

lacking merit and support and presenting issues already adjudicated. Further, Plaintiff’s violation

was egregious in its groundless quest for a result detrimentally effecting Defendants’ personal

and professional reputations. Therefore, based on the review of Plaintiff’s conduct contained in

Section B supra and the reasoning contained in this Court’s two prior opinions, this Court

concludes without further analysis that factors two, three, five and six weigh in favor of

Defendants. This Court finds factor four neutral. Factor one is discussed more fully in the

following section.

D. Plaintiff’s ability to pay

Fees are not merely a compensation device, rather fees should be imposed for a deterrent

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purpose. Therefore, the actual amount of fees is persuasive, but not authoritative, as to a sanction

amount. Recent case law demonstrates that most courts are trying to insure that the sanctions are

fair, reasonable, and bear some relation to the party or attorney’s ability to pay and responsibility

for the offending litigation. A sanction should enforce the deterrent purpose of the statute,

without subjecting the losing party to financial ruin. In the Doering case, the Third Circuit found

that the violating party’s ability to pay was a particularly important consideration. Doering v.

Union Cnty. Bd. of Freeholders, 857 F.2d 191, 195 (3d Cir. 1988). This Court is mindful of the

related tenet of Rule 11 that sanctions should constitute no more than “the minimum that will

serve to adequately deter the undesirable behavior.” Zuk v. E. Pa. Psychiatric Inst. Of the Med.

Coll. Of Pa., 103 F.3d 294, 301 (3d Cir. 1996). The Court married these concepts by noting that

the deterrent effect of an award of attorney’s fees depends upon the extent of the sanctioned

party’s resources. See, e.g., Napier v. Thirty or More Unidentified Fed. Agents, Emps. or

Officers, 855 F.2d 1080, 1094 n. 12 (3d Cir.1988). 

Defendant Frank contends that Plaintiff provided this Court with “no evidence of his

finances to enable it to conclude that he cannot pay the fees requested.” (Def. Frank’s Reply 18,

June 13, 2012, ECF No. 117). Mr. Frank further characterizes Plaintiffs statements as vague

where he writes that he and his wife “live on a fixed income which is derived from . . . social

security benefits and investment income.” Id. at 18-19. Defendant proffers evidence that

Plaintiff’s home is valued at $200,000, he pays $10,000 in real estate taxes, his income is less

than $46,000, and Defendant thereafter points speculatively towards Plaintiff’s home equity loan

with a said value of $132,000. Mr. Frank concludes that Plaintiff’s claim that he cannot afford to

pay sanctions is wholly unsupported by any objective, documentary evidence and is otherwise

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not believable.

This Court finds Defendant’s arguments conclusory. It would be patently unfair to

impose a sanction amount greater than Plaintiff’s annual fixed income. Further, this Court is not

persuaded that the evidence put forth by Plaintiff’s counsel, supported by a sworn affidavit, is

unrealiable. Imposing the sanction Defendants seek, in the full amount, would subject Plaintiff

to financial ruin. Such goes way beyond the intent of Rule 11, which is to impose a sanction

limited to that which would deter similar future conduct. Given the requirement that this Court

consider Plaintiff’s ability to pay, this Court must temper the sanction amount by considering

Plaintiff’s financial state.

F. Cut-off date

Plaintiff urges that sanctions should be cut-off as of January 26, 2012, the date of the

Court’s order imposing sanctions. (Pl.’s Supp. Resp. 10, June 6, 2012, ECF No. 113). Plaintiff

urges that the substance of the matter was decided on that date, and states he made no frivolous

filings since that date. Id. at 6. This Court agrees that imposing a cut-off would serve the public

policy function of encouraging settlement as opposed to incurring additional fees and expenses. 

Id. 

Mr. Ettman provided an invoice that identifies hours billed through January 2011. The

amount for that period totals $56,140.76. Ettman Decl. ¶ 3, June 13, 2012, ECF No. 117-1. A

second invoice, dated March 21, 2012 includes an additional $3,695.00 for fees and

disbursements. Id. at ¶ 4. The invoice clearly states that $3,369.22 was billed after January 26,

2012, the date of the Court’s order imposing sanctions. Ettman Decl. Ex. A, at 2. Therefore, the

total amount of fees awarded should not exceed $56,466.54, the total fees charged before the

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cutoff date.

IV. ANALYSIS

A. Gary Lightman

Plaintiff avers that Mr. Lightman is not entitled to fees because he appeared pro se in this

matter. (Pl.’s Opp’n Br. 19, June 6, 2012, ECF No. 113). Plaintiff cites the DiPaolo case, in

which the District Court in the Eastern District of Pennsylvania interprets the language of both

Rule 11 and 28 U.S.C.A. § 1927, and finds that the relationship and accumulation of fees

contemplated are absent when an attorney represents himself. DiPaolo v. Moran, 277 F.Supp.2d

528, 534 (E.D. Pa. 2003), aff’d, 407 F.3d 140 (3d Cir. 2005). The Court prohibited fees during

the time the attorney spent representing himself, and considered fees for only the time he spent

defending his law firm. Id. Further, the Court noted that of the three Circuit Courts of Appeals

that have addressed whether pro se attorney litigants may receive fees as a result of the

sanctionable conduct, two have held that pro se attorney litigants are barred from receiving fees

for self-representation. Id. at 535 (citing cases from the Eleventh Circuit and Federal Circuit for

support and noting the contrary opinion from the Ninth Circuit). 

This Court finds no basis upon which it would be appropriate to disagree with the

Circuits’ findings. Mr. Lightman filed no response to Plaintiff’s opposition arguments. His

attempt at distinguishing his own representation from the one addressed in DiPaolo is

unsuccessful. Although it is clear that Mr. Lightman is an individual, separate and distinct from

his firm, he has not proven that the representation in this matter was in defense of his law firm. 

Rather Mr. Lightman, as an individual and an attorney, defended himself. This Court concludes

that Mr. Lightman’s fees will not be considered in the ordered sanction amount, despite any

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compensatory purpose.

B. Bruce Ettman

Plaintiff argues that Mr. Ettman’s claimed hours should be significantly pared down. 

Finding that the Doering mitigation factors weigh in favor of Defendants, this Court now

considers the weight of evidence presented by Mr. Ettman in support of his claimed fee amount,

and his duty to mitigate. This Court is also mindful to consider Plaintiff’s “ability to pay” and

the need to limit the award to what suffices to ensure violative conduct is deterred.

Mr. Ettman contends that Plaintiff filed more motions, applications, sur-replies and other

submissions against Mr. Frank than against the Lakeland Bank Defendants. (Def. Frank’s Reply

8, June 13, 2012, ECF No. 117). In the month of July 2011, Plaintiff filed fourteen pleadings of

various forms. Plaintiff explains that it would be unreasonable for a “capable attorney of almost

28 years’ experience . . . affiliated with one of New Jersey’s premier law firms” to “research and

analyze” Rule 11 on thirteen days within the same month. (Pl.’s Opp’n Br. 17, June 6, 2012,

ECF No. 113). Regardless of Mr. Ettman’s experience or the quality of his firm, the frequency

with which Plaintiff filed created a substantial workload. Mr. Ettman mentions that complex

issues were involved, including application of the Rooker-Feldman doctrine, issue and claim

preclusion mechanisms and principles of federal abstention, as well as substantial time to

familiarize himself with the substantive law involved in an infrequently filed Rule 11 motion. 

Finally, Mr. Ettman argues that this case presents a grave level of utter baselessness, but uniquely

required sound and methodical rebuffing because of the potentially devastating personal and

professional consequences of Plaintiff’s accusations. Def. Frank’s Reply 9.

Mr. Ettman supports the amount billed with a sworn affidavit, however, Plaintiff attempts

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to show that the evidence is less than competent. Plaintiff avers that Mr. Ettman’s use of “block

billing” to indicate time billed by is inconsistent with Local Civil Rule 54.2(a). Further, Plaintiff

contends that billings are vague, ambiguous, duplicative and suspect. The rule requires a

showing of the time spent in rendering each service. Mr. Ettman provided itemized invoices

documenting each project-hour billed. See Def. Frank’s Mot. for Fees Ex. A, Feb. 21, 2012,

ECF No. 90-2. Mr. Ettman explains that the first invoice dated April 26, 2011 covers the first

month and a half of work and the “substantial time for research [and drafting] of the substantive

and procedural issues necessary to make the successful Rule 12 and Rule 11 motions.” (Def.

Frank’s Reply 8). The second invoice dated August 31, 2011 covers time expended in July 2011,

which is the month in which Plaintiff filed most often. 

Courts in this Circuit do not require a declaration of “the exact number of minutes spent

nor the precise activity to which each hour was devoted nor the specific attainments of each

attorney,” but rather, “some fairly definite information as to the hours devoted to various general

activities, e.g., pretrial discovery, settlement negotiations, and the hours spent by various classes

of attorneys, e.g., senior partners, junior partners, associates.” Rode v. Dellarciprete, 892 F.2d

1177, 1190 (3d Cir. 1990) (citing Lindy Bros. Builders, Inc. of Phila. v. Am. Radiator &

Standard Sanitory Corp., 487 F.2d 161, 167 (3d Cir. 1973)). This Court is not convinced that

Mr. Ettman failed to substantiate or verify the tasks performed during the hours billed to a

sufficiently specific level.

 Plaintiff references the Thomas Application as a point of comparison to Mr. Ettman’s

time billed. Walter E. Thomas, Jr. filed an application for fees for representing Defendants

Laurie Veight, Timothy Matteson and Peter Romaine (“Lakeland Bank Defendants”) in this

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matter (“Thomas Application” or “Application”) (ECF No. 95). The Application was withdrawn

on April 11, 2012 (ECF No. 99). In the Application, Mr. Thomas asserts that he rendered 30.7

hours of services for his three clients. 

Plaintiff points out that Mr. Ettman and his firm billed 188.6 hours, over six times the

amount billed by Mr. Thomas, for only one client Defendant Barry Frank. Mr. Ettman and his

partner billed a total of fifty-eight hours in the first month despite the fact that only a proposed

order extending the time to answer had been filed. (Pl.’s Supp. Resp. 11, June 6, 2012, ECF No.

113). Mr. Ettman filed the motion to dismiss and supporting papers on April 21, 2011, at which

point he and his partner had billed another twenty-six hours. Id. Plaintiff points out that a total

of 84.4 hours were billed to file the motion to dismiss, and to perhaps prepare the Rule 11 papers. 

Id. Plaintiff also points out that Mr. Ettman billed thirty hours over fifteen days for the research

and writing of a reply brief to Mr. Dunleavy’s opposition to the motion to dismiss and for

sanctions. Id. at 11-12. Plaintiff urges that unless Mr. Ettman can justify the number of hours

billed, the Court reduce his fee application by 83.3% (a five-sixths reduction). 

Weighing the competent evidence presented by Mr. Ettman against Plaintiff’s counsel’s

well supported arguments, this Court finds that the amount of attorney’s fees awarded should be

pared down, granting considerable weight to Plaintiff’s ability to pay. Again, this Court notes

that the nature of Rule 11 is non-compensatory. Other Courts have exemplified the practice of

using a claimed fee amount as a reference point, rather than a conclusive amount. Given

Plaintiff’s financial state, this Court finds that the sanction sought by Defendant Frank should be

limited to $28,233.27, or half of the total amount claimed for 188.6 hours billed, after discount

and considering that no charges should be incurred after the January 26, 2012 cut-off date. Such

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an amount represents a sanction that does not reach beyond its deterrent purpose.

V. CONCLUSION

It does not appear that a lesser or non-monetary sanction than the following would

adequately serve the deterrent purpose of Rule 11. Based on the foregoing, for the reasons

expressed herein, Defendant Lightman’s motion for fees is denied. Defendant Frank’s motion

for fees is granted in the amount of $28,233.27. An appropriate order, filed on this day,

follows this opinion.

S/ Dennis M. Cavanaugh 

Dennis M. Cavanaugh, U.S.D.J.

Date: August 13 , 2012 

Orig.: Clerk

cc: All Counsel of Record

Mark Falk, U.S.M.J.

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