The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 21-11455
NELLIE SANINOCENCIO
v.
PIERCE AND MANDELL, PC; AVERY DOOLEY AND NOONE, LLP;
LITCHFIELD CAVO, LLP; RICHARD WELCH III; and THE
MASSACHUSETTS SUPREME JUDICIAL COURT
MEMORANDUM AND ORDER ON
MOTION FOR SANCTIONS
February 11, 2022
STEARNS, D.J.
Pursuant to Federal Rule of Civil Procedure 11, the court previously
ordered sanctions against plaintiff Nellie Saninocencio and her attorney
Gary Dolan after finding that the Complaint they had filed in this action was
frivolous and unfounded. See Mem. & Order (Dkt # 43) at 4-7. The court
reserved any determination as to the amount of the monetary sanction to be
imposed until after the Attorney Defendants submitted their billing records.
These records have now been filed.
DISCUSSION
“A sanction imposed under [Federal Rule of Civil Procedure 11] must
be limited to what suffices to deter repetition of the conduct or comparable
conduct by others similarly situated.” Fed. R. Civ. P. 11(c)(4). Rule 11 allows
for monetary sanctions comprised of “part or all of the reasonable attorney’s
fees and other expenses directly resulting from the violation.” Id. While the
purpose of sanctions is not strictly to compensate a wronged party for the
litigation expenses it incurs in defending against the wrong, see Alston v.
Town of Brookline, 2019 WL 117605, at *1 (D. Mass. Jan. 7, 2019), the
offender’s knowledge that he may be held to pay for the damages he causes
by acting heedlessly is a useful deterrent.
The Attorney Defendants suggest that $18,174.5o is the proper
monetary sanction to be imposed. They submit invoices and an affidavit
showing that they incurred that amount in attorneys’ fees defending this
case. Dolan contests certain of the charges as excessive or unnecessary. The
court agrees that under Rule 11, it should not award fees for billing entries
that have no proximate relation to the defense against the frivolous
Complaint. There are few such entries, however — just a handful of
ministerial items such as correspondence with the clerk of the court
regarding the timing of hearings. See Fee Submission Ex. A (Dkt # 44-2) at
7-8. After deducting the irrelevant time entries, the total amount of fees
directly related to Dolan’s sanctionable conduct is $17,730.50. Counsel for
2
the Attorney Defendants’ billing rates, and the time they spent litigating this
case, are in the court’s experience reasonable and thus do not warrant any
additional reductions.
Most relevant factors counsel in favor of ordering all of the associated
fees ($17,730.50) as sanctions, first among them, the egregiousness of
Dolan’s conduct. Dolan filed claims in this court that were facially invalid
under well-known legal doctrines. Moreover, he had previously pressed the
same claims in the Massachusetts state courts, which rejected them out of
hand. Dolan filed his claims in this court even after the Massachusetts
Supreme Judicial Court had ordered a Board of Bar Overseers investigation
into his conduct in the state court, suggesting that previous attempts to
dissuade him had failed. Compounding matters, Dolan’s opposition to the
Attorney Defendants’ fee submission recycles complaints about their actions
in the 2015 state court case in defiance of the court’s repeated admonition
that Dolan’s opposition should be “limited to contesting the amount of fees
and costs.” Dkt # 43; Dkt # 46. A meaningful monetary sanction is necessary
to deter Dolan from continuing to wage his campaign against the Attorney
Defendants.
3
One factor, however, weighs against ordering the full amount of fees as
a sanction. The monetary sanction is just one of the deterrence measures the
court has put in place. When it ordered sanctions, the court also enjoined
Saninocencio and Dolan from filing any additional claims in this court
arising from the 2015 Superior Court action without first obtaining leave of
the court. This will help ensure that the same frivolous conduct will not be
repeated, at least in this court.
ORDER
After considering the relevant factors, the court determines that
$17,730.50 in attorneys’ fees against Dolan personally (and not his client) is
the appropriate monetary sanction to be imposed. The court’s order
enjoining further actions related to the subject of the frivolous Complaint
absent prior permission is made permanent. Dolan shall reimburse the
Attorney Defendants in the amount of $17,730.50 within 45 days of the entry
of this Order.
SO ORDERED.
/s/ Richard G. Stearns____________
UNITED STATES DISTRICT JUDGE
4