Virginia Lawyers Weekly VA Lawyers Weekly
A federal judge sanctioned a Virginia business and its attorneys March 23, citing “frivolous claims” and a lack of candor with the court.
The sanctions were issued in response to a lawsuit filed on behalf of Nexus Services Inc. in 2016 against Augusta County Sheriff’s Office and several others. The suit was eventually dropped by the plaintiffs after a judge ruled that many of the claims were unfounded.
U.S. District Judge Elizabeth K. Dillon later ruled that the plaintiffs and their attorneys must pay a large portion of the defense’s attorney fees: $31,289 out of a requested $50,576.
Four attorneys litigating the case for the plaintiffs are now responsible for paying $12,034 of the total.
Dillon explained the sanctions in her opinion.
“It is plain that more of the claims against the Sheriff defendants were frivolous than not,” she said. “Not only did they assert frivolous claims and steadfastly cling to them, but they also unnecessarily complicated and extended this litigation through their conduct.”
Nexus’ suit
In the summer of 2016 Nexus Services Inc. CEO Michael Donovan and his partner Richard Moore filed suit claiming the Augusta County Sheriff’s Office, a bail bondsman, the county commissioner of revenue and an employee had conspired to harass them and deny their First and Fourth Amendment rights.
Nexus is described in court documents as a “charitable criminal bonding program” that posts bond for incarcerated people in Harrisonburg, Augusta and Rockingham counties.
The lawsuit largely originates from a Freedom of Information Act response that the court said was “overly broad.” In the response sent by the Augusta County Attorney, the plaintiffs found emails sent by David Bourne, a local bail bondsman, to and from sheriff’s deputies expressing concern about the legality of Nexus’ bonding business and the impact it might have on his own business.
As a result of this correspondence, Donovan and Moore claim they were harassed by the sheriff’s office and that it was also in retaliation for Donovan and Moore speaking out publicly against the sheriff’s office. They also claimed that they were held against their will during an incident in May 2016 when deputies drove up to their house and “made rapid approach … in tactical formation and blocked the ingress and egress to their residence.”
Legal trouble
After the suit was filed, defendants filed motions to dismiss the case and the court scheduled a hearing for October 2016. In September of that year, the plaintiffs’ attorneys filed a motion to amend. The October hearing was then rescheduled for January. Three days before the January hearing, the plaintiffs’ attorneys filed another motion to amend.
At the January hearing, the court asked the plaintiffs to support factual allegations for a number of claims and to explain the relevance of others.
They also asked the plaintiffs to explain the connection of Augusta County Commissioner of Revenue Wanda Shrewsbury and Gene Ergenbright to the other defendants, to which the plaintiffs’ attorneys “repeatedly assured the court that there were additional allegations that had not yet been included in their pleading.”
As a result, the court granted the plaintiffs permission to withdraw prior motions to amend and refile a motion for leave to amend which the court granted, requiring plaintiffs to file the third amended complaint by Jan. 30, 2017.
When the attorneys filed the third amended complaint, they dropped Shrewsberry and Ergenbright from the complaint entirely, raising the ire of Dillon.
“While the court believes that the voluntary dismissal of the claims against Shrewsberry and Ergenbright was appropriate, it is concerned that counsel was not candid with the court about why it was seeking leave to amend,” Dillon said in her opinion.
The third motion to amend was argued before the court at a hearing on March 2, 2017. Before the court issued a ruling, plaintiffs’ attorneys filed a notice of voluntary dismissal of all remaining claims.
In Dillon’s opinion, she said that their dismissal “operates as a dismissal with prejudice of the plaintiffs’ claims.”
Further evaluation of evidence
In her opinion, Dillon described actions on behalf of the attorneys that she said “lacked factual and legal merit.”
Regarding the May incident in which the plaintiffs’ claimed a Fourth Amendment violation, video evidence later showed two deputies pulling into the cul-de-sac in front of the plaintiffs’ home, stopping briefly and then driving away without getting out. In all, the deputies blocked the driveway for 32 seconds, Dillon said in her opinion.
Yet, Dillon said, the plaintiffs’ attorneys continued pursuing the claim, despite evidence suggesting it was “in bad faith.”
The judge also described an action in which plaintiffs’ attorneys added “The Office of the Sheriff” as a party to the suit in the third amended complaint, despite it being known in Virginia that such office is not a legal entity, and therefore not subject to suit.
When questioned, counsel said they would withdraw the references if the court had concerns.
“The court was concerned less about the inclusion of the Office of the Sheriff … and more about counsel’s failure to ensure that a claim had a reasonable basis in law before filing it … and counsel’s apparent lack of candor to the court about the purpose of the proposed additions,” Dillon said.
Court fees
Ultimately, the court decided that the plaintiffs’ complaints misrepresented documents and made unsupported conclusions that sometimes contradicted one another. As a result, the court decided that the defendants were entitled to fees.
While the court said the defense charged a more than reasonable amount, Dillon said that the causation standard was not satisfied to require the plaintiffs to pay back all $50,576 that the defense requested.
However, they did determine that collectively, clients and attorneys must pay more than half of the amount charged. The total amount owed was $31,289.
The four attorneys who represented Nexus Services Inc. must pay $12,034 of that money, or just more than $3,000 per attorney.
The four are Amy C.M. Burns, Mary Donne Peters and Michael J. Gorby from Gorby, Peters & Associates, based out of Atlanta; and Andre Hakes from Tucker Griffin Barnes in Charlottesville.
Nexus Services Inc. is required to pay the remaining $19,255.
Appeal
In an email, Nexus said that while they are disappointed with the judge’s decision, they plan to file an appeal.
“Nexus plans to vigorously appeal any adverse ruling in a case we stand behind today as strongly as we did when we filed it,” the statement said. “And we stand behind and in support of the attorneys who worked tirelessly to advocate for the company’s rights and the civil rights of our employees.”
Gorby, Peters & Associates and Hakes did not respond to requests for comment.
The defendants in the case were represented by Carlene Booth Johnson from Perry Law Firm, Thomas Bert Weidner IV, who practices under his own name, Rosalie Pemberton Fessier from Timberlake Smith Thomas & Moses, Brian James Brydges and Lori J. Bentley from Johnson, Ayers & Matthews.
Johnson also did not respond to requests for comment.
