United States District Court, D. Maryland
DR. STUART T. ZALLER, LLC et al. Plaintiffs
WESTFAX, INC., et al. Defendants.
MEMORANDUM AND ORDER RE: MOTION FOR FEE
J. GARBIS, District Judge.
Court has before it Defendants' Motion for Award of
Attorney Fees [ECF No. 205] and the materials submitted
relating thereto. The Court finds that a hearing is
Dr. Stuart T. Zaller, LLC, Phillip P. Weiner, and Richard J.
Silverstein, filed this lawsuit, asserting baseless claims
against Defendants Westfax, Inc. and Barry Clark
the filing of the instant case on August 15, 2012 until March
24, 2014, Plaintiffs were represented by Michael Worsham, a
now disbarred attorney, whose behavior was well below any
acceptable level of competence. After the disbarment of
Worsham, Plaintiffs Weiner and Silverstein proceeded pro se
and, as of May 2, 2014, Plaintiff Zaller, LLC
("Zaller") was represented by Alan Silverberg,
Order Dismissing Certain Claims [ECF No. 194], the Court
dismissed all claims asserted by Weiner and Silverstein.
However, Zaller - represented by counsel - continued to
assert claims. But, due to its failure to meet discovery
obligations and comply with Orders, the Court issued the
Order Re: Dismissal of all Claims [ECF No. 201] dismissing
all claims asserted by Zaller against Defendants.
is no doubt that, to defend against baseless claims,
Defendants have expended a substantial amount in legal fees,
including fees incurred as a result of Plaintiffs'
noncompliance with this Court's Orders. While,
perhaps, Plaintiffs could quibble with the total amount,
there is no doubt whatsoever, that the total is substantial.
Defendants' counsel has submitted statements documenting
the claim that $47, 700 of fees were incurred in defense of
the claims through the end of 2014, which included at least
$5, 000 incurred related to Plaintiffs' discovery
violations. ECF Nos. 205-2, 205-3.
Rule of Civil Procedure 37(b) authorizes the Court to hold a
party and counsel liable for any expenses, including
attorneys' fees, caused by the party's failure to
comply with discovery orders. Fed.R.Civ.P. 37(b)(2)(C). Rule
37 sanctions "must be applied diligently to penalize
those whose conduct may be deemed to warrant such an action,
[and] to deter those who might be tempted to such conduct in
the absence of such a deterrent.'" Roadway Exp.,
Inc. v. Piper, 447 U.S. 752, 763-64 (1980) (quoting
Nat'l Hockey League v. Metro. Hockey Club, 427
U.S. 639, 643 (1976) (alteration in original)).
current context, no purpose would be served by detailing
Plaintiffs failures to meet discovery obligations. The Court
recognizes that the bulk - but not all - of Plaintiffs'
discovery failures occurred during the time that Worsham was
their counsel. Nevertheless, the Court recognizes that
Plaintiffs entered into their relationship with Worsham
intending to profit and, except as to Silverstein, did obtain
the circumstances, the Court shall impose sanctions on the
Plaintiffs pursuant to Rule 37(b) of the Federal Rules of
Civil Procedure but shall limit the awards in light of the
Plaintiff's respective recoveries in the lawsuit.
has filed the affidavit of its attorney stating that it
received a total of $2, 250 as part of settlement payments in
the case. ECF No. 213. Weiner has filed an affidavit stating
that he received $375 from Worsham as part of a settlement
payment. ECF No. 215. Silverstein has filed an affidavit
stating that he received no money in connection with the
instant case, however he did note that Worsham had advanced
costs on his behalf to cover certain fees. ECF No. 214.
the circumstances, the Court shall impose discovery sanctions
to be promptly paid - Weiner and Zaller limited to the
amounts that they obtained and, on Silverstein, in the
nominal amount of $100.
1. Defendants' Motion for Award of Attorney Fees [ECF No.
205] is ...