In Virginia Johnson v. Medigap Life, LLC 2023 WL 5619305 (S.D. Fl. Aug. 31, 2023) Defendant sought sanctions against Virginia Johnson and her counsel for purportedly bringing a meritless TCPA case.

Specifically, Medigap Life claimed Johnson had provided consent MULTIPLE times on websites and that those consent records were provided to Plaintiff’s counsel before the case was ever filed. Nonetheless, the suit was brought.

Medigap Life then advised Plaintiff’s counsel it intended to move to compel arbitration. Apparently Plaintiff’s counsel did not meaningfully respond to the meet and confer effort on the motion so Medigap had to spend the money to bring the motion.

After the motion was granted though Plaintiff’s counsel simply did not respond to it and advised the court it had no opposition. So the case was sent to arbitration and the $55k Medigap apparently spent defending itself in the case was entirely wasted.

Frustrated, Medigap Life sought sanctions against Plaintiff and her counsel to recover the $55k in fees. And while they had a decent argument it appears the Defendant overreached by challenging that the case was improperly filed, to begin with based on the consents at issue instead of just focusing on the arbitration issue.

Specifically, the Court found “the conduct of Plaintiff’s counsel was disappointing and frustrating to the Court” and “the uncooperative conduct of Plaintiff’s counsel may have contributed to additional briefing in this case, there is simply
insufficient evidence to establish that Plaintiff’s counsel acted with objective bad faith such that an award of fees.”

This is true because: “Plaintiff’s counsel explained his purported investigative process in this case, which
the Court finds marginally sufficient under the facts of this case.”

Get it?

Even though the court was annoyed  with Plaintiff’s counsel’s behavior, because Defendant focused on the bringing of the case instead of the misconduct in connection with the arbitration motion the Court denied sanctions.

Indeed, the court really belabors the point here:

The Court is concerned that Plaintiff’s counsel’s actions in this case (including his failure to fully, properly and timely confer with opposing counsel) tied to the Motion to Compel Arbitration and to Dismiss or Stay Proceedings Pending Arbitration and the Motion to Stay Non-Arbitration Discovery Pending Ruling on Motion to Compel Arbitration [DE 35] are questionable, frustrating, and not up to the high standards this district expects from counsel. The Court had to issue more than one order to get a straight answer from Plaintiff’s counsel. See DEs 39; 43. The actions of Plaintiff’s counsel in relation to DE 34 and DE 35 exhibit his unwillingness to engage in proper, good faith conferral, and likely resulted in additional fees incurred by Defendant. For this reason, this Court has closely considered imposing sanctions…

You can see from this blurb that the Court really was ticked off about the whole arbitration issue, but was simply not at all concerned with the investigative efforts leading up to the filing of the case to begin with. So if Defendant had focused its fire on that issue it may have actually won.

But it gets worse for the Defendant.

The Court goes on to say that “Plaintiff’s counsel’s dilatory practice in opposing the motions and then later not opposing them could certainly justify reasonable expenses, including reasonable attorneys’ fees….” however  “Defendant’s counsel, [won’t name] was dilatory [i.e. too slow] in filing the motion for sanctions. Therefore, the Court found “any request for reasonable expenses, including reasonable attorneys’ fees, is untimely.”

This is so because the case was dismissed in January, 2023 but the sanctions weren’t sought until June, 2023.

Eesh.

So the Court determines that the five month delay in bringing the motion for sanctions was sufficient to deny sanctions altogether and even calls out the defense lawyer by name for being “dilatory.”

That is rough treatment at the hands of the Court and undoubtedly a reflection of the frustration the court felt with both counsel here.

In the the court gives everybody one final admonition on behaving themselves in court:

The attorneys involved in this case have many prior and current cases together and obviously dislike each other greatly. Such acrimony only serves to increase the complexity, duration, costs and expenses of the litigation. It is certainly not in the interest of judicial or attorney economy. [Plaintiff’s Counsel] is cautioned that future failures to confer fully and in good faith in other cases in this district may subject him to sanctions. The Court frankly cannot fathom how a simple TCPA case like this can engender such animosity between the parties’ counsel. It is not how the practice of law is supposed to be….

The Czar could not agree more.

While it is extremely frustrating for a TCPA defendant to be facing a lawsuit–especially one where a Plaintiff might have set up the claim–you have to be SMART and keep a cool head. You NEVER want to throw good money after bad. That’s why I RARELY suggest bringing a motion for sanctions–especially in a case where a Plaintiff is represented by competent counsel.

It might feel good to lob that motion for sanctions at the court, but they almost never win. And it doesn’t make you seem like a tough guy either, just a dumb guy. Unless you have something REALLY compelling–keep your money in your pocket.

And if you are going to seek sanctions– DO NOT OVERREACH. Keep the motion straightforward and simple. Focus on the specific local rules that were violated. Have clear evidence of those violations. And demonstrate PRECISELY what harm flowed from them. Important stuff.

Further, federal courts appreciate–and require–civility between combatants. You do NOT need to get huffy and name call to win. There is a reason Plaintiffs lawyers both RESPECT and FEAR the Czar. Gentleman lawyer. At least, I sincerely try to be.