Withdrawing Counsel Still Accountable Under Rule 11

Bovinett v. HomeAdvisor, Inc., 2020 WL 1330407 (N.D. Ill. Mar. 23, 2020)

Author(s): Barry Irwin and Chris Eggert
Edited by: 
Barry Irwin
April 6, 2020

Plaintiff Bovinett brought suit against Defendant HomeAdvisor and other companies in August 2017 generally alleging improper use of Plaintiff’s image in HomeAdvisor advertising.[1]  During the course of the litigation, HomeAdvisor filed several motions for sanctions, including requests for sanctions against Plaintiff’s Attorney.  During the course of the litigation, Plaintiff’s Attorney moved to withdraw.  Thereafter, Plaintiff and HomeAdvisor settled for a fraction of the initial demand, but HomeAdvisor insisted that its motions for sanction proceed as to Plaintiff’s Attorney.  The court rewarded HomeAdvisor for its refusal to succumb to frivolous litigation activity, assessing Plaintiff’s Attorney for HomeAdvisor attorney fees.

In reaching its decision, the court relied upon Plaintiff originally asserting claims against two entities that were dismissed for lack of personal jurisdiction, and the dismissal of 11 of 14 claims for failure to state a claim.  The court also relied upon Plaintiff filing an amended complaint (after the court had dismissed two defendants and eleven claims) that continued to assert claims against the previously dismissed parties, adding new counts that were all also subsequently dismissed for failure to state a claim and reasserting previously dismissed counts.  Finally, the court relied upon the Plaintiff’s evasive discovery responses.  The court stated that “[t]his kind of unjustified pursuit is precisely the kind of behavior Rule 11 seeks to deter,” 2020 WL 1330407 at *6, and concluded that “[Plaintiff’s Attorney] violated Rule 11 by certifying, filing, and advocating an Amended Complaint with no legal or factual basis to assert personal jurisdiction over [one Defendant] or to support several key allegations against the Former Defendants.”  Id.

            This decision represents a rarity in our court system.  All too often lawsuits and claims of suspect merit are asserted.  It is often more economical to settle than to fight such frivolous cases.  And, even though parties occasionally seek sanctions, sanctions are rarely awarded and even more rarely awarded against attorneys.  This decision demonstrates that pursuing such frivolous cases can have consequences if a defendant is willing to fight for what is right, despite the costs.  Unfortunately, this decision still took three years to secure.  But, this decision provides a good example of how the system should work—where bringing frivolous lawsuits and abusive discovery conduct does not go unpunished.

[1] Disclosure: Irwin IP represents Defendants in the above referenced action as local counsel.

Contact the Author

Name: Barry Irwin Phone: (312) 667-6081 Email: [email protected]