Attorney Mark Barinholtz represented Ray Bovinett, a model and actor, based on the allegedly unauthorized use of photos of Bovinett. Initially, the complaint was dismmised for both lack of personal jurisdiction and failure to state a claim. The District Court Judge noted, among other things, that Hawthorne was a limited liability company with a single member who had no relevant ties to the State of Illinois. The District Court also dismissed 11 counts that lacked supporting factual allegations.
Barinholtz then filed an amended complaint on Bovinett’s behalf asserting that Hawthorne had ‘hatched a plot’ with HomeAdvisor to use Bovinett’s photos in televised commercials, alleging that they chose Chicago for the photo shoot; told Bovinett and his talent agent orally and in text messages that despite the release, the photos would not appear in televised ads; and traveled to Chicago to oversee the photo shoot. The complaint again contained 14 separate theories of relief and set out without meaningful change some of the counts that had been previously dismissed.
In light of the new assertions about Hawthorne, the District Court allowed the parties to take limited discovery on the personal jurisdiction issue. Hawthorne brought a Motion to Compel, which was granted, as Bovinett’s responses were vague and evasive. For example, Bovinett answered every Request for Admission by stating that he was “not in possession of sufficient knowledge or information to admit or deny”. Barinholtz supplemented the responses after the judge’s Order, but to add only that Bovinett lacked “direct, in person knowledge” of the subjects. The defendants then moved to dismiss the Amended Complaint, and the District Court granted their motion. First, the District Court dismissed all claims against Hawthorne for lack of personal jurisdiction based on evidence that Bovinett’s relevant allegations were untrue: Hawthorne’s personnel did not attend or plan the Chicago photo shoot and in fact did not start working on HomeAdvisor’s commercials until months after the photo shoot. (According to testimony from Bovinett and his talent agent, moreover, no one from Hawthorne ever communicated with them about the photo shoot, the intended use of his photos, or the release.) The judge also dismissed 11 counts for failing to state a claim. With the case pared down to three counts against HomeAdvisor, the defendants all moved for sanctions and costs under Rules 11 and 37 and 28 U.S.C. §1927. They argued that Barinholtz re-pleaded frivolous claims, made patently false allegations to establish personal jurisdiction, and disregarded the discovery order. The District Court continued these motions, stating that he would rule on sanctions at the close of the case. Subsequently, Barinholtz withdrew as counsel, and the parties settled. The District Court then granted the defendants’ Motions for Sanctions. Citing Rule 11(b), the judge highlighted that in addition to re-pleading baseless claims, Barinholtz persisted in suing Hawthorne after Hawthorne furnished evidence showing no relevant ties to Illinois. Worse, Barinholtz appeared to have made false assertions to establish personal jurisdiction. Even if he did not do so in bad faith, the judge reasoned, Barinholtz inexcusably failed to investigate the jurisdictional facts. The judge determined that sanctions were also warranted under Rule 37(b)(2)(C) because Barinholtz flouted the order to respond to discovery requests and ordered Barinholtz to pay about $17,000 (much less than the defendants’ request) to compensate the defendants for time spent on the Motions to Compel and for Sanctions. The judge also ordered Barinholtz to attend 40 hours of continuing legal education: half on federal civil procedure, including at least one course related to personal jurisdiction, and half on professional conduct, such as those offered in the Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys.
The U.S. Seventh Circuit affirmed.
“The judge reasonably ruled that Barinholtz lacked a good reason for vacating the sanctions. He did not cogently explain why his conduct was not sanctionable, he did not demonstrate any mistake of law or fact in the sanctions order, and he provided no excuse or explanation – or apology – for his actions. For example, he did not argue that he complied with the discovery order, that he had a strategic reason for repleading baseless claims (such as preserving them), or that it was reasonable to press claims against Hawthorne after it showed that it had no ties to Illinois generally and did not take part in any alleged offense that occurred there….
“Barinholtz also argues that the sanctions were unlawful because Rule 11(d) does not permit sanctions for discovery conduct and Rule 37(c)(2) permits sanctions against parties, not counsel. But the judge imposed Rule 11 sanctions for the assertion of baseless claims and allegations — not discovery violations. Nor did the judge invoke Rule 37(c)(2); the order cites Rule 37(b)(2), which permits sanctions against an attorney for failing to comply with a court order.
“The judge also did not err in rejecting Barinholtz’s argument that Bovinett ‘flipped’ to the defendants’ side and is now in cahoots with them to get Barinholtz to pay both sides’ costs. The parties’ settlement agreement states that they must bear their own costs and fees. The amount of the sanction is directly tied to the expenses that the defendants incurred in moving to compel discovery and moving for sanctions: motions necessitated by Barinholtz’s conduct. Bovinett is not relieved of any expense, nor does he receive anything, so it would make no sense for him to conspire with the defendants.
“Finally, Barinholtz contends that the judge should have imposed fewer than 40 hours of continuing legal education because he has decades of experience. But the requirement directly addresses the sanctionable conduct: Barinholtz raised baseless allegations about Hawthorne’s involvement, pursued frivolous claims, and dodged valid discovery requests; it is reasonable that he be ordered to refresh his knowledge in civil procedure and professionalism despite his proficiency in certain areas.”
Bovinett v. HomeAdvisor, No.20-3221, 2022 WL 1056086 (7th Cir. April 8, 2022).
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