Kaplan v. First Hartford Corp., CIVIL No. 05-144-B-H

• Decision Date: 09 February 2012
• Docket Number: CIVIL No. 05-144-B-H
• Parties: RICHARD E. KAPLAN, PLAINTIFF v. FIRST HARTFORD CORPORATION AND NEIL ELLIS, DEFENDANTS
• Court: U.S. District Court — District of Maine

RICHARD E. KAPLAN, PLAINTIFF

v.FIRST HARTFORD CORPORATION AND NEIL ELLIS, DEFENDANTS

CIVIL No. 05-144-B-H

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

Dated: February 9, 2012

ORDER ON PLAINTIFF'S RENEWED REQUEST FOR SANCTIONS

AGAINST DEFENDANTS OF REASONABLE ATTORNEY'S FEES

The plaintiff Richard E. Kaplan's Renewed Request for Sanction Against Defendants of Reasonable Attorney's Fees is GRANTED IN PART AND DENIED IN PART as follows.

The American Rule generally assigns responsibility for attorney fees to the party incurring them. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 257 (1974); Vance v. Speakman, 409 A.2d 1307, 1311 (Me. 1979). The basis for Kaplan's fee request here is the exception for cases of vexatious or oppressive litigating conduct. Alyeska Pipeline Service Co., 421 U.S. at 258-59; Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 421 (1978); Sprague v. Heckler, 619 F. Supp. 1289, 1295 (D. Me. 1985) (noting "bad faith," "common fund" and "commonbenefit" doctrine as exceptions to the American rule).¹ Kaplan says that the defendants behaved vexatiously and oppressively in arguing to the Special Master after my Decision and Order on the Report of the Special Master dated November 23, 2009 (Docket Item 232), that only Kaplan's individual stock was included in the court-ordered buyout, rather than all shares where Kaplan had or shared dispositive power. Pl. Richard E. Kaplan's Renewed Request for Sanction Against Defs.' of Reasonable Att'y's Fees at 4 (Docket Item 284). Kaplan made the initial request for sanctions at oral argument May 4, 2010, on his motion to modify the third report and interim order of the special master and on the defendant First Hartford's request for reconsideration. When I ruled on those motions on June 1, 2010, I reserved ruling on the request for sanctions. I also expressed interest in what the Special Master would do concerning recommended allocation of his own fees.² Now all is complete in the case, including affirmance by the First Circuit. Kaplan v. First Hartford Corp., 425 Fed. Appx. 4 (1st Cir. 2011). Hence the renewal of the motion. See Local Rule 54.2.

The June 2010 Order makes clear that the defendants' arguments to the Special Master on this subject were vexatious and oppressive in light of my previous rulings and the manner in which the parties had presented the case to me up to that point. (That June 1, 2010 Order and this Order are my findings of fact and conclusions of law. See Fed. R. Civ. P. 54 (d)(2)(C).) Somesanction, therefore, is appropriate. However, the defendants could legitimately have moved for reconsideration of my previous rulings, and that alone would not have been vexatious or oppressive. Thus, I decline to award Kaplan all the attorney fees he incurred. Moreover, Kaplan knew by December 2009 what position the defendants were taking, see Second Report of Special Master (Docket Item 233), but agreed in a joint motion, Joint Mot. to Adopt With Qualifications the Second Report and Order of the Special Master (Docket Item 234), to delay consideration until the Third Report. It was only in March 2010 that Kaplan brought the issue to the court's attention by his motion to modify the Special Master's Third Report. An earlier request for my involvement could have reduced the fees. Finally, I have only the ipse dixit of the amount of fees (three law firms) by affidavit of Kaplan's Portland lawyer, with no documentation, and no explanation why three sets of lawyers were required on this issue.

Thus, I am not in a position to assess attorney fees. I am hesitant even to make this ruling, given the history of this case and the parties' (not the lawyers') inability to agree on anything. The last thing ...