Pirri v. Cheek

Case: 20-1959 Document: 45 Page: 1 Filed: 03/22/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALFRED PIRRI, JR.,
Plaintiff-Appellant
v.
LORI CHEEK, CHEEK'D, INC.,
Defendants-Appellees
CHARLIE KICKHAM, LOCKE RAPER,
Defendants
______________________
2020-1959
______________________
Appeal from the United States District Court for the
Southern District of New York in No. 1:19-cv-00180-PAE,
Judge Paul A. Engelmayer.
______________________
Decided: March 22, 2021
______________________
STEVEN ROYAL FAIRCHILD, Fairchild Law, LLC, Brook-
lyn, NY, for plaintiff-appellant.
LAWRENCE B. GOODWIN, Lawrence B. Goodwin, PLLC,
New York, NY, for defendants-appellees.
______________________
Case: 20-1959 Document: 45 Page: 2 Filed: 03/22/2021
2 PIRRI v. CHEEK
Before DYK, LINN, and MOORE, Circuit Judges.
PER CURIAM.
Alfred Pirri, Jr., appeals a decision of the United States
District Court for the Southern District of New York
awarding Defendants Lori Cheek and Cheek’d, Inc., (collec-
tively, Defendants) attorneys’ fees under 35 U.S.C. § 285and holding Mr. Pirri’s counsel, Steven R. Fairchild, liable
for those fees. Pirri v. Cheek, No. 1:19-cv-180, 2020 WL
2520593 (S.D.N.Y. May 18, 2020) (District Court Op.). De-
fendants move for appellate attorneys’ fees and double
costs under Federal Rule of Appellate Procedure 38. For
the following reasons, we affirm and grant Defendants’ mo-
tion.
BACKGROUND
Mr. Pirri sued Defendants and Joanne Richards,
Mr. Pirri’s therapist, for various claims related to U.S. Pa-
tent No. 8,543,465. 1 The ’465 patent is directed to a
method for initiating an online relationship with a personal
offline introduction, i.e., online dating in reverse. Under 35
U.S.C. § 256, Mr. Pirri sought to be named as an inventor
of that patent. He claimed that he had conceived of the
invention and shared it with Ms. Richards, who then
shared it with Ms. Cheek. It was only after seeing
Ms. Cheek on a rerun of the television series Shark Tank,
Mr. Pirri contends, that he discovered Ms. Richards had
betrayed his confidence. Mr. Pirri also brought breach of
fiduciary duty and fraud claims against Ms. Richards and
conversion and unjust enrichment claims against Defend-
ants. He also sought an accounting under 35 U.S.C. § 262.
1 Ms. Cheek is one of three named inventors of the
’465 patent. Mr. Pirri also sued, but did not serve, the two
other inventors: Charlie Kickham and Locke Raper.
Case: 20-1959 Document: 45 Page: 3 Filed: 03/22/2021
PIRRI v. CHEEK 3
Early in the case, the district court dismissed several
of Mr. Pirri’s claims. At the initial pretrial conference,
Mr. Pirri voluntarily dismissed some of the state-law
claims and his joint inventorship claim against Ms. Rich-
ards. Then, the district court dismissed the remaining
state-law claims, finding they were “obviously time-
barred.” J.A. 3. Thus, only Mr. Pirri’s joint inventorship
claim against Defendants remained. Based on the district
court’s dismissal, Defendants sought Rule 11 sanctions.
They argued that no competent attorney could have rea-
sonably believed the state-law claims were not time-
barred. The district court declined to impose sanctions be-
cause, at that time, Mr. Pirri had not clearly abused the
judicial system.
A month later, Mr. Pirri sought leave to amend his
complaint. His Proposed Amended Complaint (PAC) added
several new defendants and a litany of new claims. He al-
leged Ms. Cheek’s colleague should be listed as a co-inven-
tor based on interviews Ms. Cheek had given. In those
interviews, Ms. Cheek recounted how she saw her col-
league write a pick-up line on a napkin and give it to a
woman, thereby getting a date and giving Ms. Cheek a
business idea. Mr. Pirri also claimed that, by Defendants
own admission, the ’465 patent was the product of a
twenty-person brainstorm. So in Mr. Pirri’s view,
Ms. Cheek committed fraud when she signed the inventor
oath swearing the information in her patent application,
including inventorship, was accurate. Mr. Pirri also
claimed Ms. Cheek had defamed him based on his sexual
orientation and mental health. In one count, for example,
Mr. Pirri alleged Ms. Cheek had sent a letter to Congress-
man Jerrold Nadler stating Mr. Pirri thought of the dating
app idea in a mental facility (the Nadler Letter). In addi-
tion to these civil wrongs, Mr. Pirri claimed Ms. Cheek vi-
olated 18 U.S.C. § 1001, which criminalizes lying in any
matter within the jurisdiction of the federal government.
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4 PIRRI v. CHEEK
The district court denied Mr. Pirri’s motion to amend
as futile. For Mr. Pirri’s joint inventorship claims, the dis-
trict court reasoned that Mr. Pirri had failed to establish or
articulate a theory of standing relating to the supposed in-
ventorship of the twenty-plus joint inventors other than
Mr. Pirri. He had failed to explain how he had a personal
concrete stake in, or an ability to seek redress for, injuries
suffered by third parties, i.e., Ms. Cheek’s failure to name
twenty-plus joint inventors. With respect to the state-law
claims, the district court determined it lacked supple-
mental jurisdiction because those claims did not share a
common nucleus of operative fact with Mr. Pirri’s joint in-
ventorship claims. It noted “‘the facts underlying the def-
amation claims and the inventorship claims rely on
unrelated facts that occurred nearly a decade apart’ and
implicated distinct legal tests.” J.A. 6 (quoting J.A. 148).
It also “found that [Mr.] Pirri’s defamation claims ‘clearly
turn on different events occurring at vastly different time
periods’ and ‘are not properly resolved in the same law-
suit.’” J.A. 6–7 (quoting J.A. 148).
Despite the district court’s dismissal of Ms. Richards
from the case, Mr. Pirri continued to seek discovery from
her. He first subpoenaed Ms. Richards’ employment rec-
ords. When Ms. Richards’ counsel moved to quash,
Mr. Pirri withdrew the subpoena. Then, in requesting an
extension of time to complete discovery, Mr. Pirri repre-
sented that he intended to depose Ms. Richards and sub-
poena additional employment documents. The court
denied Mr. Pirri’s request, holding that discovery would
not be relevant to Mr. Pirri’s only remaining claim (joint
inventorship) against the only remaining defendants
(Ms. Cheek and Cheek’d).
Eight days before discovery closed, Mr. Pirri attempted
to voluntarily dismiss his complaint with prejudice and
without triggering attorneys’ fees under 35 U.S.C. § 285.
He claimed dismissal was necessary because he faced po-
tential danger from complete strangers. This danger,
Case: 20-1959 Document: 45 Page: 5 Filed: 03/22/2021
PIRRI v. CHEEK 5
Mr. Pirri claimed, flowed from Ms. Cheek’s defamatory and
slanderous conduct, the same conduct alleged in the PAC.
He also claimed dismissal would conserve judicial re-
sources because discovery had not completed and because
neither party had taken a deposition. Defendants opposed.
They contended that Mr. Pirri was seeking an advisory
opinion on attorneys’ fees, had unilaterally delayed discov-
ery, and had filed a separate state-court suit, which under-
cut his claim of fearing for his life. The district court denied
Mr. Pirri’s motion as premature.
Six days later, Mr. Pirri renewed his request to dismiss
his joint inventorship claim. Apart from rehashing previ-
ous arguments, he argued collateral estoppel precluded a
fee award because the district court had denied Defend-
ants’ motion for Rule 11 sanctions. He further argued De-
fendants had unclean hands, barring it from recovering
fees. For support, Mr. Pirri relied on the defamation alle-
gations in his PAC, supplemented by allegations that
Ms. Cheek violated the New York Hate Crimes statute.
Defendants opposed, arguing that dismissal before sum-
mary judgment would open the door for Mr. Pirri to argue
his case was not dismissed on the merits. The district court
agreed with Defendants and denied the motion.
Two months later, the district court held a pre-sum-
mary judgment conference. Before that conference, the
court ordered Mr. Pirri to file a letter indicating whether
and on what grounds he would oppose summary judgment.
Mr. Pirri responded that he would oppose summary judg-
ment because of unresolved factual disputes exacerbated
by the truncated discovery period. He claimed that, since
no depositions had been taken, a “vast sea of unresolved
disputes” existed. J.A. 194. While it appears that deposi-
tions were scheduled for Mr. Pirri and Ms. Cheek, Mr. Pirri
had unilaterally postponed both depositions. Again, he re-
hashed many arguments contained in the PAC, which had
been rejected. During the pre-summary judgment confer-
ence, Mr. Pirri’s counsel was initially amenable to a
Case: 20-1959 Document: 45 Page: 6 Filed: 03/22/2021
6 PIRRI v. CHEEK
dismissal with prejudice, but balked at conceding Defend-
ants were entitled to summary judgment. Questioned
about the evidence in support of Mr. Pirri’s claims, counsel
provided none.
The district court then set a summary judgment brief-
ing schedule and provided Mr. Pirri’s counsel five days to
file a letter indicating whether his client would concede the
entry of summary judgment. Mr. Pirri’s counsel instead
filed a letter renewing his motion to voluntarily dismiss the
complaint. The letter also stated Mr. Pirri would continue
to oppose summary judgment if the motion was not
granted. Defendants opposed dismissal, pointing out how
it directly contravened the district court’s order. Mr. Pirri
responded that his letter requested dismissal with preju-
dice. The district court agreed that Mr. Pirri did not com-
ply with its order and directed Mr. Pirri to either consent
to summary judgment or oppose summary judgment on a
good-faith basis. Mr. Pirri consented to summary judg-
ment, which the district court granted in Defendants’ fa-
vor.
Defendants moved for attorneys’ fees under 35 U.S.C.
§ 285, 28 U.S.C. § 1927, and the district court’s inherent
authority. Rather than requesting fees for the entire suit,
Defendants only sought fees starting in October 2019,
when document discovery closed. The district court
granted Defendants’ motion after determining, in no uncer-
tain terms, the case was exceptional:
• Indeed, in the [district court]’s more than eight-
and-one-half years on the bench, Mr. Pirri’s fil-
ings stand apart from those of other failed civil
plaintiffs for the sheer lack of colorable factual
(or legal) support; for their tendentious, bizarre,
non-responsive and caustically accusatory ar-
guments; and for their disregard for, and selec-
tive presentation of, evidence.
Case: 20-1959 Document: 45 Page: 7 Filed: 03/22/2021
PIRRI v. CHEEK 7
District Court Op. at *11. It found Mr. Pirri’s arguments
were often objectively unreasonable, baseless, or frivolous.
As an example, the district court recounted Mr. Pirri’s
claim that Ms. Cheek intended to “out” him as a homosex-
ual man. Id. Those claims focused on a single social media
post in which Ms. Cheek sought to highlight Mr. Pirri and
his counsel’s conduct: “[f]rom this day forward, my mission
will be the following . . . [t]o ‘out’ this case, this man and
his law firm to the world.” J.A. 257. Mr. Pirri latched onto
one word in that post, “out,” to craft defamation and hate-
crime allegations. In fact, the district court noted Mr. Pirri
failed to provide any evidence showing Defendants knew of
his sexual orientation. District Court Op. at *11 n.4. The
district court went on to describe other examples of out-
landish allegations based on factual misrepresentations.
Id. at *11–12. In light of that conduct and based on its in-
timate familiarity with the parties and record, the district
court awarded fees under § 285. Id. at *12. Because Mr.
Fairchild, as Mr. Pirri’s counsel, prepared, signed, and
filed all the relevant submissions, the district court held
that it was appropriate for him to bear the liability for the
fees. Id. Mr. Pirri appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(1).
DISCUSSION
I
A “court in exceptional cases may award reasonable at-
torney fees to the prevailing party.” 35 U.S.C. § 285. “[A]n
‘exceptional’ case is simply one that stands out from others
with respect to the substantive strength of a party’s litigat-
ing position (considering both the governing law and the
facts of the case) or the unreasonable manner in which the
case was litigated.” Octane Fitness, LLC v. ICON Health
& Fitness, Inc., 572 U.S. 545, 554 (2014). A district court
“determine[s] whether a case is ‘exceptional’ in the case-by-
case exercise of [its] discretion, considering the totality of
the circumstances.” Highmark Inc. v. Allcare Health
Case: 20-1959 Document: 45 Page: 8 Filed: 03/22/2021
8 PIRRI v. CHEEK
Mgmt. Sys., Inc., 572 U.S. 559, 561 (2014). Accordingly, we
“review all aspects of a district court’s § 285 determination
for abuse of discretion.” Id.
The district court did not abuse its discretion in award-
ing fees. It found that Mr. Pirri’s arguments below were
neither grounded in fact nor supported by law. In reaching
that finding, the district court noted how Mr. Pirri regu-
larly removed statements from their context and twisted
them to support outlandish accusations, e.g., his baseless
“outing” allegation. The district court also noted how
Mr. Pirri continued to push frivolous arguments after the
district court had definitively rejected them. Despite the
district court’s denial of his motion to amend his complaint,
Mr. Pirri relied on defamation allegations in that com-
plaint to excuse his own inability to complete discovery.
The district court described how Mr. Pirri continued that
conduct through the very end of the litigation. Having
dealt with Mr. Pirri at every stage, the district court was
in the best position to evaluate whether fees were war-
ranted. And we see no reason to set aside the district
court’s exercise of its discretion on that point. We thus af-
firm the district court’s grant of fees.
II
As noted, Defendants request their appellate attorneys’
fees and double costs. Docket No. 26. They argue
Mr. Pirri’s appeal is frivolous as filed and as argued. Id.
Mr. Pirri opposes, contending that “Counsel for Ms. Cheek
(‘Counselor Goodwin’) files frivolous sanctions motions as
regularly as other people drink coffee.” Docket No. 30 at 1.
In addition to opposing Defendants’ request for appellate
fees, Mr. Pirri “requests that Ms. Cheek and Counselor
Goodwin pay reasonable costs, including attorneys’ fees, for
the entire appeal for bringing this frivolous motion after
cheating before the [l]ower [c]ourt.” Id. Having considered
all the parties’ filings, we hold Mr. Pirri’s appeal has been
frivolously argued. We, therefore, grant Defendants’
Case: 20-1959 Document: 45 Page: 9 Filed: 03/22/2021
PIRRI v. CHEEK 9
request for fees and double costs. We also hold Mr. Pirri’s
counsel, Mr. Fairchild, jointly and severally liable for those
fees.
“If a court of appeals determines that an appeal is friv-
olous, it may, after a separately filed motion or notice from
the court and reasonable opportunity to respond, award
just damages and single or double costs to the appellee.”
Fed. R. App. P. 38. Early in our history, we adopted a pol-
icy of vigorously enforcing Rule 38. See Practice Note to
Fed. R. App. P. 38 in Fed. Cir. Rules (citing Asberry v.
United States, 692 F.2d 1378 (Fed. Cir. 1982)). “Frivolous
appeals waste both the public resources supplied to this
court and the resources of prevailing litigants that must
defend such frivolous actions.” Walker v. Health Int’l Corp.,
845 F.3d 1148, 1156 (Fed. Cir. 2017).
An appeal may be frivolous as filed or as argued. Id. at
1154. “[A]n appeal is frivolous as filed when the judgment
by the tribunal below was so plainly correct and the legal
authority contrary to appellant’s position so clear that
there really is no appealable issue.” Id. “[A]n appeal is
frivolous as argued when the appellant’s misconduct in ar-
guing the appeal justifies such a holding.” Id. (internal
quotation omitted). “Such misconduct can include manu-
facturing arguments by distorting the record, by disregard-
ing or mischaracterizing the clear authority against its
position, and by attempting to draw illogical deductions
from the facts and the law.” Id. (internal quotation omit-
ted). When an appeal is frivolous as argued, we may hold
a party’s counsel jointly and severally liable. Id. at 1157.
A
Mr. Pirri’s appeal is frivolous as argued. Through his
counsel, Mr. Pirri distorts the factual and legal bases for
the district court’s fee award. He characterizes the district
court as ruling on issues never raised or addressed below.
And he leverages inapposite legal doctrines to make argu-
ments that can only be described as baffling. Put simply,
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10 PIRRI v. CHEEK
Mr. Pirri’s merits briefing far exceeds the bounds of proper
decorum. We only recount a few examples of misconduct
here.
First, Mr. Pirri argues “the [l]ower [c]ourt misapplied
the Federal Rules of Civil Procedure.” Appellant Reply Br.
at 1. He claims the district court should not have consid-
ered the Nadler Letter in awarding fees because Ms. Cheek
“withheld” that letter in an act of “classic gamesmanship.”
Id. at 1; see also Appellant Br. at 27–29. He therefore ar-
gues the Letter should have been excluded under Federal
Rules of Civil Procedure 26 and 37.
But Mr. Pirri distorts the district court’s treatment of
the Nadler Letter. First, he never asked the court to ex-
clude the letter. Second, the Nadler Letter was not with-
held in an act of gamesmanship, but because it was not
relevant to the inventorship claim, the only issue that re-
mained in the case.. Third, Mr. Pirri never sought to com-
pel production of the Nadler Letter pursuant to Rule 37, so
how can it be that the court somehow erred in its treatment
of the letter under Rule 37? Finally, it was actually Mr.
Pirri, not Ms. Cheek, who first attempted to rely upon the
letter. Mr. Pirri and his counsel cited the Nadler Letter to
support his fees opposition. J.A. 225–26; see also, e.g., J.A.
225 (Mr. Pirri’s Opposition to § 285 Fees Motion), 261
(State-Court Complaint). In fact, Mr. Pirri purported to
quote from the letter in his filings to the court. See, e.g.,
J.A. 225 (“For instance, Defendant sent a letter to Con-
gressman Nadler where she stated that Plaintiff Pirri
thought of ‘her idea while in a mental facility.’”); J.A. 261
(“The tweet recounts how Defendant Cheek sent a letter to
Congressman Jerry Nadler in which it states that Plaintiff
Pirri thought of ‘her idea while in a mental facility.’”). 2 Mr.
2 he Nadler Letter makes clear that Mr. Pirri’s
claims about the content of the letter were completely in-
accurate. J.A. 287. Ms. Cheek was expressing concerns
Case: 20-1959 Document: 45 Page: 11 Filed: 03/22/2021
PIRRI v. CHEEK 11
Pirri and his counsel made these representations about the
Nadler Letter to the court despite having never seen it. It
is unsurprising that Ms. Cheek would submit it in rebuttal
to refute the entirely unsubstantiated and false assertions
about its content.
Mr. Pirri’s claims that the district court erred in grant-
ing attorneys’ fees because it misapplied Rues 26 and 37
are completely frivolous. Nothing about the order on ap-
peal, which awarded attorneys’ fees to Defendants, relates
to Rules 26 or 37.
Mr. Pirri next argues the district court misapplied ju-
dicial estoppel and collateral estoppel. Appellant Reply Br.
at 1–2. With respect to his judicial estoppel claims, he con-
tends that Defendants took inconsistent positions by first
arguing against Mr. Pirri’s motion for leave to amend and
then “litigat[ing] the state claims in the abbreviated brief-
ing of a motion under 35 USC [sic] § 285.” Appellant Reply
Br. at 2. With respect to the collateral estoppel claims,
Mr. Pirri argues the district court “first held that the tort
claims needed their own discovery and a full lawsuit. Yet,
it radically changed course and dismissed them all without
allowing for any discovery.” Id. Both of these arguments
relate to a broader theme in Mr. Pirri’s briefing: that the
district court somehow “effectively dismissed an entirely
separate lawsuit which it had denied jurisdiction over.” Ap-
pellant Br. at 10. He claims that he “was never given any
notice that the allegations of [his] state court complaint
might be dismissed by the same court that previously de-
nied jurisdiction over them.” Id. at 12 (emphasis added).
Again, Mr. Pirri distorts the district court’s actions.
That court could not have “misapplied judicial estoppel”
when it did not, and was never asked to, apply that
about large companies using her invention without permis-
sion. i.e., “efficient infringement.” Id.
Case: 20-1959 Document: 45 Page: 12 Filed: 03/22/2021
12 PIRRI v. CHEEK
doctrine. Likewise, the district court could not have “mis-
applied collateral estoppel.” While Mr. Pirri raised collat-
eral estoppel below, he did so in a very different context.
He claimed the district court was estopped from awarding
fees under § 285 because it had previously denied Defend-
ants’ motion for Rule 11 sanctions. No similar argument is
raised on appeal. Instead, Mr. Pirri claims the district
court was estopped from awarding fees because it dis-
missed his state law claims for want of jurisdiction. Those
arguments are fundamentally different. Finally, the dis-
trict court did not, and could not, dismiss Mr. Pirri’s co-
pending state court action. It denied Mr. Pirri leave to
amend his complaint to add those allegations, but it en-
couraged him to file in state court: “Mr. Pirri, of course, is
at liberty to pursue [the PAC] claims in a separate action,
in a court of competent jurisdiction.” J.A. 143. It did, of
course, rely on misrepresentations of fact contained in
Mr. Pirri’s PAC to support its award of fees. But recogniz-
ing misrepresentations of fact does not amount to a dismis-
sal under any relevant rule of civil procedure. Mr. Pirri’s
claims on appeal related to judicial and collateral estoppel
are completely frivolous and consistently misrepresent the
record and holdings below.
Mr. Pirri also claims “the [l]ower [c]ourt violated Sec-
ond Circuit case law on sanctions against attorneys.” Ap-
pellant Reply Br. at 1. Specifically, he claims “the [l]ower
[c]ourt never provided any notice that it would sanction
Mr. Pirri’s attorney for arguing that Ms. Cheeks’ behavior
had crossed the line.” Appellant Br. at 30. But Defendants’
motion for fees makes clear that it sought fees from
Mr. Fairchild personally:
• Defendants Cheek and Cheek’d Inc. . . . seek to
recover attorney’s fees incurred by them after
document discovery . . . against plaintiff
and/or his counsel under 35 U.S.C. 285, 28
U.S.C. 1927, and the [c]ourt’s inherent power.”
...
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PIRRI v. CHEEK 13
J.A. 220 (emphasis added). Any reasonable, competent at-
torney would be on notice of the potential for personal fee
liability. The district court was not required to explain
such a clear request to Mr. Pirri or his counsel before
awarding fees and holding Mr. Fairchild liable.
As these examples show, Mr. Pirri mischaracterizes
the district court’s actions in an effort to make frivolous ar-
guments for reversal. Mr. Fairchild signed off on each of
these arguments. We have sanctioned parties for far less.
See, e.g., In re Violation of Rule 38, 647 F.3d 1370, 1373
(Fed. Cir. 2011) (sanctioning party for raising eight frivo-
lous issues on appeal); Finch v. Hughes Aircraft Co., 926
F.2d 1574, 1583 (Fed. Cir. 1991) (awarding double costs be-
cause the appellant’s “decision to file this appeal c[ould
have] only be[en] seen as a frivolous waste of the resources
of this court and of the time and money of his hapless op-
ponent” where there were multiple grounds to affirm the
underlying opinion, each of which “would be sufficient to
require affirmance”). Thus, Mr. Pirri’s merits briefing
alone justify sanction.
B
But Mr. Pirri and Mr. Fairchild’s conduct gets worse.
In opposing Defendants’ motion for appellate fees,
Mr. Pirri abandoned any remaining semblance of decorum.
He, again, raises arguments that were not briefed or ruled
upon below. See, e.g., Docket No. 30 at 8–10 (seeking dis-
covery sanctions, which were not sought below). But he
goes further, devolving into unfounded personal attacks
against Defendants and their counsel. Such accusations
have no place in our judicial system.
Mr. Pirri’s opposition brief repeatedly takes aim at De-
fendants and their counsel on a personal level:
• “Counsel for Ms. Cheek (‘Counselor Goodwin’)
files frivolous sanctions motions as regularly as
other people drink coffee.” Docket No. 30 at 1.
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14 PIRRI v. CHEEK
• “[Mr. Goodwin] finally won [a fees motion be-
low] by cheating.” Id. (bolded and underlined
in original).
• “Appellant requests that Ms. Cheek and Coun-
selor Goodwin pay reasonable costs, including
attorneys’ fees, for the entire appeal for bring-
ing this frivolous motion after cheating before
the Lower Court.” Id.• “In the Appellee’s Responsive Brief, Counselor
Goodwin claims that he included the Nadler
Letter ‘to rebut, and only to rebut, the false al-
legations made by [Mr.] Pirri in his opposition
to his motion.’ This is an outright lie.” Id. at
5 (internal citation omitted; bolded and under-
lined in original).
• “Put simply, Counsellor [sic] Goodwin cheated
to win.” Id. at 6.
• “Appellee’s motion is beyond frivolous. Appellee
and her counsel ‘double down’ on their cheating
before the Lower Court and the lackluster, ane-
mic arguments conveyed in the Appellee’s
Brief.” Id. at 9.
• “Counselor Goodwin cheated to win.” Id. at 9.
• “Counselor Goodwin’s gamesmanship is excep-
tional.” Id. at 10.
• Sanctioning Defendants “is a [sic] reasonable in
light of the fact that they cheated to win.” Id.
• “Counselor Goodwin routinely files frivolous
sanctions motions and this is no different.” Id.
at 11.
None of those accusations have a basis in fact. No evidence
has been presented that Defendants made frivolous argu-
ments, cheated, or lied. Indeed, they patiently responded
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PIRRI v. CHEEK 15
to Mr. Pirri’s shifting-sands, unfounded accusations. We
have sanctioned counsel under Rule 38 in similar circum-
stances, when counsel lofted serious accusations against
opposing counsel without support:
• Particularly troubling are Walker’s baseless as-
sertions of misconduct against his opposing
counsel and continued misrepresentation of
clear, binding Supreme Court precedent even
after the distortion was pointed out by opposing
counsel. The continued misrepresentation
standing alone is a very serious matter that
could warrant sanctions.
Walker v. Health Int’l Corp., 845 F.3d 1148, 1157 (Fed. Cir.
2017) (awarding entire requested amount of sanctions,
$51,801.88 and holding counsel jointly and severally lia-
ble).
C
We also note that the fact that the appeal includes the
wisp of an argument that may be colorable is not a basis
for denying fees. Here, Mr. Pirri contends that a fee award
was inappropriate because “Ms. Cheek litigated in a ‘highly
unreasonable’ manner” by allegedly making inappropriate
out-of-court statements. Appellant’s Br. 5. Attorneys’ fees
under § 285 are judged by the “totality of the circum-
stances.” Octane Fitness, LLC v. ICON Health & Fitness,
Inc., 572 U.S. 545, 554 (2014). Mr. Pirri points out that a
party’s out-of-court conduct has been found to be relevant
in at least one district court case applying a different fees
provision. See Edwards v. Vemma Nutrition, No. 17-2133,
2019 WL 5684192, at *9 (D. Az. 2019) (“The Court finds
that [plaintiff’s] out-of-court conduct in personally leaving
hostile messages for [a defendant] weighs in favor of
awarding fees”). Mr. Pirri alleges that during litigation
Ms. Cheek described him as “a scammer, grifter and troll”
to a journalist and retweeted “a disturbing statement” stat-
ing that Mr. Pirri “thought of her idea while staying in a
Case: 20-1959 Document: 45 Page: 16 Filed: 03/22/2021
16 PIRRI v. CHEEK
Mental Facility.” Appellant’s Br. 18–19. However, Mr.
Pirri provided no admissible evidence that Ms. Cheek made
the alleged statement to the journalist or that she adopted
the statement by retweeting it. In any event, even if we
were to treat this one argument as colorable, it is well-es-
tablished that making multiple frivolous arguments can-
not be excused by the fact that the appeal included a single
non-frivolous argument. See S.R. Mercantile Corp. v. Malo-
ney, 909 F.2d 79, 83 (2d Cir. 1990) (awarding sanctions pur-
suant to Fed. R. App. P. 38 because, “[e]ven if we give
[appellant] the benefit of the doubt and find a hint of a valid
issue in his claim . . ., sanctions would still be appropriate
because the bulk of his claims are completely devoid of
merit”); Granado v. C.I.R., 792 F.2d 91, 94 (7th Cir. 1986)
(“We also find that sanctions by this court are appropriate.
Although appellant raised one nonfrivolous argument, 22
of the 24 pages of his opening brief are devoted to frivolous
arguments.”); see also Fox v. Vice, 563 U.S. 826, 834 (2011)
(addressing fees awarded under 42 U.S.C. § 1988 and ex-
plaining that “the presence of reasonable allegations in a
suit does not immunize the plaintiff against paying for the
fees that his frivolous claims imposed”).
D
For the foregoing reasons, we hold that Defendants are
entitled to appellate fees and double costs. We do not
award sanctions lightly, but Mr. Pirri’s conduct, effected
through his counsel, is egregious. And it justifies such ex-
ceptional sanctions. Because Mr. Pirri’s vexatious conduct
flowed through his counsel, we hold Mr. Pirri and Mr.
Fairchild jointly and severally liable.
CONCLUSION
Because the district court did not abuse its discretion,
we affirm. Because Mr. Pirri’s appeal is frivolous as ar-
gued, we grant Defendants’ motion for fees and double
costs. That sanction should be paid in the same way as
costs. See Fed. Cir. R. 39.
Case: 20-1959 Document: 45 Page: 17 Filed: 03/22/2021
PIRRI v. CHEEK 17
AFFIRMED
COSTS
Appellate fees and double costs to Defendants.