Kathrein, Michael L. v. McGrath, Brigid

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 6, 2006*
Decided March 6, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-2294
MICHAEL L. KATHREIN, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division
v.
No. 04 C 7324
MICHAEL P. MONAR,
Defendant-Appellee. David H. Coar,
Judge.
ORDER
For a fourth time Michael Lee Kathrein asks us to get involved in matters
arising from the juvenile antics he has inflicted upon his ex-wife’s current husband,
Michael Monar. See Kathrein v. McGrath, 166 F.App’x 858 (7th Cir. 2006)
(unpublished order) (detailing Kathrein’s conduct and three prior appeals).
Kathrein now appeals from the district court’s post-judgment order granting Rule
*
This successive appeal has been submitted to the same panel that heard the
original appeal. See Operating Procedure 6(b). After examination of the briefs and
the record, we have concluded that oral argument is unnecessary. Thus the appeal
is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2).
No. 06-2294 Page 2
11 sanctions against him. Because the district court properly determined that
sanctions were appropriate but did not properly calculate the amount of the award,
we affirm the imposition of sanctions but vacate the award and remand to the
district court for recomputation.
The matter before us is a holdover from one of Kathrein’s prior appeals. In
2004 Kathrein filed a lawsuit under 42 U.S.C. § 1983, claiming that Monar, Monar’s
attorneys, and the Illinois judges assigned to Monar’s state-court action against
Kathrein conspired to deprive him of his right to a fair trial in the state-court
proceedings. Monar moved to dismiss the suit and also moved for sanctions. See
Fed. R. Civ. P. 11. In his Rule 11 motion, Monar claimed that: “the real reason for
[Kathrein’s] action is to harass Monar, unreasonably increase his litigation costs
and to avoid unfavorable decisions before the state court judge who was then
assigned to his case.” He pointed to Kathrein’s litigiousness—at that time Kathrein
had filed three lawsuits against him, including the § 1983 suit—and the fact that
Kathrein had filed the federal action three days prior to a hearing on Monar’s
motion for sanctions against Kathrein in the state-court proceeding. Monar said
that the timing of Kathrein’s filing was designed to delay the proceedings in state
court and avoid further ruling from Brigid McGrath, the first state-court judge that
Kathrein named as a defendant in the federal suit. Indeed, as a result of the
allegations, Judge McGrath recused herself. Monar’s state-court case was
reassigned to another judge, Paddy McNamara, who subsequently held Kathrein in
contempt of court and sanctioned him. In response, Kathrein promptly amended
his complaint in the federal action to add Judge McNamara as a defendant. The
district court denied Monar’s motion for sanctions without prejudice pending its
decision on the defendants’ motions to dismiss.
After the district court dismissed Kathrein’s § 1983 claim as to all defendants
but before we rendered our decision in Kathrein, 166 F.App’x 858, Monar renewed
his Rule 11 motion, requesting over $62,000 in attorney’s fees and costs. This time
the district court granted Monar’s motion. The court first noted that Kathrein’s
federal suit was “just another chapter in an ongoing saga” between Kathrein and
Monar. The court then found that Kathrein had admitted to Monar’s attorney that
the purpose of his federal suit was to run up Monar’s legal fees. The court also
determined that Kathrein had used the federal courts to harass his opponents as
evidenced by his repeated requests that Judge McNamara recuse herself after he
named her as a defendant in the federal suit. As a sanction, the district court
ordered Kathrein to pay Monar’s attorneys’ fees and costs of $56,858.15, explaining
that it had reduced the award to account for charges unrelated to the federal
litigation.
On appeal Kathrein challenges both the district court’s decision to impose
sanctions as well as the amount of the award. We review all aspects of the district
No. 06-2294 Page 3
court’s award of Rule 11 sanctions for abuse of discretion. Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405 (1990); Cuna Mut. Ins. Soc’y v. Office & Prof’l
Employees Int’l Union, Local 39, 443 F.3d 556, 560 (7th Cir. 2006).
Rule 11 permits a district court to impose sanctions on litigants who present
pleadings to the court “for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation.” Fed. R. Civ. P.
11(b)(1); Vollmer v. Selden, 350 F.3d 656, 659 (7th Cir. 2003). In exercising its
discretion under Rule 11, the district court focused on Kathrein’s statement to
Monar’s attorney that he initiated the federal suit to increase Monar’s legal fees.
Although Kathrein now denies making that statement, he did not do so in the
district court even though he filed over 30 pages of documents contesting Monar’s
Rule 11 motion. He therefore waived this point. See Williams v. REP Corp., 302
F.3d 660, 666 (7th Cir. 2002). Thus the district court did not abuse its discretion
when it granted sanctions in Monar’s favor. See Divane v. Krull Elec. Co., 319 F.3d
307, 314 (7th Cir. 2003) (explaining that district court generally abuses its
discretion only “when no reasonable person could have taken the same view it
adopted”).
The district court erred, however, in determining the amount of the award.
Rule 11 authorizes the district court to award reasonable attorneys’ fees as a
sanction. Fed. R. Civ. P. 11(c)(2); Divane, 319 F.3d at 320. We have instructed that
a court asked to award sanctions must consider not only the reasonableness of the
requested fee but the reasonableness of the time expended on the litigation by the
prevailing party. See Szopa v. United States, 460 F.3d 884, 886 (7th Cir. 2006);
Budget Rent-A-Car Sys., Inc. v. Consol. Equity LLC, 428 F.3d 717, 718 (7th Cir.
2005). So counsel must correlate “his response, in terms of hours and funds
expended, to the merit of the claims.” Dubisky v. Owens, 849 F.2d 1034, 1037 (7th
Cir. 1988).
The time expended by Monar’s attorneys, Schuyler, Roche & Zwirner (SRZ),
on this litigation was not reasonable. SRZ expended approximately 200 hours at
over $300 an hour on a case that was dismissed on the pleadings. For that effort,
they prepared seven filings: a motion for extension of time to answer or otherwise
plead, two nearly identical motions to dismiss, a response to Kathrein’s opposition
to the motions to dismiss, a motion for sanctions, a renewed motion for sanctions,
and a petition for fees and costs. According to SRZ, it took 74.7 hours, or $19,481,
to prepare the documents responsive to Kathrein’s complaint and 116.3 hours, or
$34,310, to prepare the motions for sanctions and fee petition. We have instructed
that 57.5 hours, or $8,000, to defend a frivolous suit (albeit on appeal) is
unreasonable, see Szopa, 460 F.3d at 887, and 13.7 hours, or $4,354, to prepare a
single filing is “too high,” see Budget Rent-A-Car Sys., Inc., 428 F.3d at 718. If 13.7
hours is too much for one filing then 191 hours is too much for seven.
No. 06-2294 Page 4
Although we have not articulated a clear rule for determining an award of
attorneys’ fees under Rule 11, it is clear that the fees claimed by SRZ are beyond
any amount that we have said is reasonable. See, e.g., Divane, 319 F.3d at 320(finding 64.25 hours at $150 an hour, or $9,637, reasonable for preparing fee
petition stemming from protracted litigation). Thus even though the district court
properly reduced SRZ’s fees to account for time not devoted to the federal action, see
Divane v. Krull Elec. Co., 200 F.3d 1020, 1030 (7th Cir. 1999) (explaining that
award of attorneys’ fees is limited to those fees that “directly result from a party or
attorney’s sanctionable conduct”), it still must fashion an award based upon an
appropriate amount of time to defend Monar against Kathrein’s federal suit.
Accordingly, we AFFIRM the decision of the district court to impose sanctions. But
because we find the amount of the sanction inappropriate, we VACATE the award
of attorneys’ fees and costs and REMAND to the district court to reconsider the
amount of the sanction.
Finally, we note that we have once before addressed the remaining issue
raised by Kathrein in this appeal, see Kathrein, 166 F.App’x at 863-64 (advising
that argument concerning entitlement to present criminal allegations to grand jury
is frivolous), and warn him that if he continues to pursue that issue before this
court he will face sanctions here as well.