Counsel Concerns

Malpractice/Venue Transfer

The U.S. District for the Western District of Wisconsin granted an entertainment attorney's motion to transfer a malpractice action to the Eastern District of Wisconsin. McCraw v. Mensch, 06-C-0086-S.

Members of the rock band the BoDeans had sued the group's long-time manager Mark McCraw. The parties settled following a trial and an order for retrial in Milwaukee County Circuit Court. The BoDeans then sued Illinois attorney Linda Mensch and her malpractice insurer in the Milwaukee court based on her representation of the band and McCraw in their business affairs. (The defendants had that case removed to the federal Eastern District of Wisconsin and the band has filed a motion to remand.) In the McCraw case, the Western District reached its decision to transfer McCraw's complaint to the Eastern District by noting:

'[N]either the Western District of Wisconsin nor the Eastern District of Wisconsin is the home forum of any defendant and they do not argue that it would be less convenient for them to litigate this action in Madison [Wis.] rather than Milwaukee. The convenience of the parties factor weighs against transfer.'
'[But a]ccording to the amended complaint filed in the Milwaukee [malpractice] action [BoDeans member Kurt] Neumann resides in Austin, Texas while [BoDeans member Sam] Llanas resides in Glendale, Wisconsin. Neumann is not subject to compulsory process in either the Western or the Eastern Districts of Wisconsin. However, the Eastern District of Wisconsin is Llanas' home forum and while he is also subject to compulsory process in the Western District of Wisconsin it would be clearly more convenient for him to testify in his home forum. Accordingly, the convenience of non-party witnesses [in McCraw] is best served by transferring this action to the Eastern District of Wisconsin.'
'Related litigation involving the same defendants is currently pending before the United States District Court for the Eastern District of Wisconsin. Although the plaintiffs involved in the action pending before the Eastern District are different from the plaintiff involved in this action the underlying issues are essentially the same in each dispute. ' Accordingly, the efficient administration of the court system is best served by transferring this action to the Eastern District of Wisconsin, a district already familiar with the underlying dispute and the defendants involved.'
'Should the district court [in the BoDeans malpractice suit] grant plaintiffs' motion to remand this Court would continue to preside over the current dispute and affirms the trial schedule previously announced alleviating concerns that a transfer would delay the case and result in a later trial date.'

Rule 11 Sanctions

The U.S. District Court for the Eastern District of Michigan Southern Division, issued sanctions under Rule 11 of the Federal Rules of Civil Procedure against three lawyers who filed suit on behalf of clients against music artist Kid Rock, his record company and music publisher. Eb-Bran Productions Inc. v. Warner Elektra-Atlantic Corp., 03-75149.

The Eastern District noted that in Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005), the appeals court had held 'that several state law claims asserted by these plaintiffs [against Kid Rock alleging violation of early music contracts he signed] were completely preempted by the Copyright Act and thus barred by the three-year statute of limitations found in the Copyright Act. It further held that the non-preempted state-law claims were likewise time-barred under the applicable Michigan statutes of limitations.' The district court then noted in part that in suing Kid Rock again, the plaintiffs were pursing 'relief in connection with the same underlying transactions and occurrences that gave rise to its prior federal and state-court actions.'

The district court went on to decide: 'This Court rejects Plaintiff's counsel's argument that their continued pursuit of the claims and legal positions in this action was reasonable in light of their having consulted with another attorney, M. Wm. Krasilovsky, on whether they should continue this litigation. ' A review of Mr. Krasilovsky's letter shows that he was consulted on different matter; ie, whether Plaintiff should appeal the Sixth Circuit's decision in Ritchie to the United States Supreme Court. ' The claims, allegations and contentions advocated by Plaintiff in its original complaint, amended complaint, motion to remand, and opposition to Defendants' motion for summary judgment were not warranted by existing law or by nonfrivolous arguments for the extension, modification, or reversal of existing law or the establishment of new law. Fed. R. Civ. P. 11(b)(2). Accordingly, pursuant to Rule 11(c), sanctions in the amount of $40,616.00 will be imposed on Plaintiff's attorneys, Demetrius Jones, Gregory Reed, and Stephanie Hammonds, and their respective law firms, jointly and severally.'

Rule 11 Substantive Requirements

Rule 11(b) of the Federal Rule of Civil Procedure allows for sanctions against a party that has failed to meet the following substantive requirements:

• 'By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, ' it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
• the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
• the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
• the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.'

Malpractice/Venue Transfer

The U.S. District for the Western District of Wisconsin granted an entertainment attorney's motion to transfer a malpractice action to the Eastern District of Wisconsin. McCraw v. Mensch, 06-C-0086-S.

Members of the rock band the BoDeans had sued the group's long-time manager Mark McCraw. The parties settled following a trial and an order for retrial in Milwaukee County Circuit Court. The BoDeans then sued Illinois attorney Linda Mensch and her malpractice insurer in the Milwaukee court based on her representation of the band and McCraw in their business affairs. (The defendants had that case removed to the federal Eastern District of Wisconsin and the band has filed a motion to remand.) In the McCraw case, the Western District reached its decision to transfer McCraw's complaint to the Eastern District by noting:

'[N]either the Western District of Wisconsin nor the Eastern District of Wisconsin is the home forum of any defendant and they do not argue that it would be less convenient for them to litigate this action in Madison [Wis.] rather than Milwaukee. The convenience of the parties factor weighs against transfer.'
'[But a]ccording to the amended complaint filed in the Milwaukee [malpractice] action [BoDeans member Kurt] Neumann resides in Austin, Texas while [BoDeans member Sam] Llanas resides in Glendale, Wisconsin. Neumann is not subject to compulsory process in either the Western or the Eastern Districts of Wisconsin. However, the Eastern District of Wisconsin is Llanas' home forum and while he is also subject to compulsory process in the Western District of Wisconsin it would be clearly more convenient for him to testify in his home forum. Accordingly, the convenience of non-party witnesses [in McCraw] is best served by transferring this action to the Eastern District of Wisconsin.'
'Related litigation involving the same defendants is currently pending before the United States District Court for the Eastern District of Wisconsin. Although the plaintiffs involved in the action pending before the Eastern District are different from the plaintiff involved in this action the underlying issues are essentially the same in each dispute. ' Accordingly, the efficient administration of the court system is best served by transferring this action to the Eastern District of Wisconsin, a district already familiar with the underlying dispute and the defendants involved.'
'Should the district court [in the BoDeans malpractice suit] grant plaintiffs' motion to remand this Court would continue to preside over the current dispute and affirms the trial schedule previously announced alleviating concerns that a transfer would delay the case and result in a later trial date.'

Rule 11 Sanctions

The U.S. District Court for the Eastern District of Michigan Southern Division, issued sanctions under Rule 11 of the Federal Rules of Civil Procedure against three lawyers who filed suit on behalf of clients against music artist Kid Rock, his record company and music publisher. Eb-Bran Productions Inc. v. Warner Elektra-Atlantic Corp., 03-75149.

The Eastern District noted that in Ritchie v. Williams , 395 F.3d 283 (6th Cir. 2005), the appeals court had held 'that several state law claims asserted by these plaintiffs [against Kid Rock alleging violation of early music contracts he signed] were completely preempted by the Copyright Act and thus barred by the three-year statute of limitations found in the Copyright Act. It further held that the non-preempted state-law claims were likewise time-barred under the applicable Michigan statutes of limitations.' The district court then noted in part that in suing Kid Rock again, the plaintiffs were pursing 'relief in connection with the same underlying transactions and occurrences that gave rise to its prior federal and state-court actions.'

The district court went on to decide: 'This Court rejects Plaintiff's counsel's argument that their continued pursuit of the claims and legal positions in this action was reasonable in light of their having consulted with another attorney, M. Wm. Krasilovsky, on whether they should continue this litigation. ' A review of Mr. Krasilovsky's letter shows that he was consulted on different matter; ie, whether Plaintiff should appeal the Sixth Circuit's decision in Ritchie to the United States Supreme Court. ' The claims, allegations and contentions advocated by Plaintiff in its original complaint, amended complaint, motion to remand, and opposition to Defendants' motion for summary judgment were not warranted by existing law or by nonfrivolous arguments for the extension, modification, or reversal of existing law or the establishment of new law. Fed. R. Civ. P. 11(b)(2). Accordingly, pursuant to Rule 11(c), sanctions in the amount of $40,616.00 will be imposed on Plaintiff's attorneys, Demetrius Jones, Gregory Reed, and Stephanie Hammonds, and their respective law firms, jointly and severally.'

Rule 11 Substantive Requirements

Rule 11(b) of the Federal Rule of Civil Procedure allows for sanctions against a party that has failed to meet the following substantive requirements:

• 'By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, ' it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
• the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
• the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
• the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.'