Perrotti v. Lockheed Martin Corporation

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JENNIFER PERROTTI,

Plaintiff,

v. Case No. 6:22-cv-1338-RBD-DCI

LOCKHEED MARTIN

CORPORATION,

Defendant.

____________________________________

ORDER

Before the Court are Defendant Lockheed Martin Corporation’s motion for

a determination of the amount of fees due as sanctions against Plaintiff’s counsel

Morgan & Morgan, P.A., Timothy Michael Morgan, Esq., and Rene F. Rocha, Esq.

(collectively, “Morgan & Morgan”) (Doc. 88 (“Motion”)), U.S. Magistrate Judge

Daniel C. Irick’s Report and Recommendation on the Motion (Doc. 127 (“R&R”)),

and Plaintiff’s objection to the R&R (Doc. 145 (“Objection”)).

This is one of a set of long-running, complex toxic tort cases arising out of

emissions from Lockheed’s weapons manufacturing facility. When Morgan &

Morgan missed their client’s expert deadline, this Court entered summary

judgment in Lockheed’s favor. (Doc. 76.) Morgan & Morgan sought relief from the

judgment, urging the Court that “the most extreme sanction” of striking Plaintiff’s

untimely expert and entering judgment against her was unwarranted and the

Court could alternatively order fees instead. (Doc. 78, p. 16.) The Court took

Morgan & Morgan up on its offer, reopening the case to avoid penalizing Plaintiff

but ordering fees to sanction her counsel for putting her “within a hair’s breadth

of costing her the claim of her deceased husband.” (Doc. 81, p. 3.) Morgan &

Morgan fought Lockheed on the amount of fees, resulting in Lockheed filing the

instant Motion. (Doc. 88.) In response, Morgan & Morgan claimed the Court

violated due process by awarding fees rather than closing the case—in other

words, doing the very thing they urged the Court to do—insisting they should

owe no fees at all. (Doc. 89, pp. 6–10.) Judge Irick sidestepped the improperly

raised due process issue, closely examined Lockheed’s requested fees, and

carefully cut them in half. (Doc. 127.) Morgan & Morgan objected, again raising

due process and asserting various other errors. (Doc. 127.) Lockheed cut its losses,

responding in support of the R&R despite the reduction. (Doc. 155.) This matter is

ripe.

When a party objects to a magistrate judge’s findings, the district judge must

“make a de novo determination of those portions of the report . . . to which

objection is made.” 28 U.S.C. § 636(b)(1). The district judge “may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the

magistrate judge.” Id. The district judge must consider the record independent of

the magistrate judge’s report. See Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ.,

896 F.2d 507, 513 (11th Cir. 1990).

After an independent de novo review of the record, including the Objection,

the Court agrees entirely with Judge Irick’s well-reasoned and thorough R&R.

Morgan & Morgan identifies several areas of objection, none of which is well-

taken.

First is Morgan & Morgan’s due process argument. (Doc. 145, pp. 3–5.) To

begin, Judge Irick properly refused to consider it. (Doc. 127, pp. 2–3 n.1.) Not only

was it outside his remit, which was limited to the amount of sanctions, but a

request buried in an opposition is not properly presented. See Ajjahnon v. Amerilife

of N.C., LLC, No. 6:22-cv-329, 2024 WL 2784843, at *2 (M.D. Fla. May 30, 2024). As

Judge Irick noted, the appropriate vehicle for the due process argument would be

a motion for reconsideration, but Morgan & Morgan has not sought relief from the

Order reopening the case and issuing sanctions—presumably because they got

what they wanted. See Link v. Wabash R.R. Co., 370 U.S. 626, 632 (1962) (party’s failure

to avail itself of the “escape hatch” provided by motion for relief from sanctions

order renders lack of notice of sanctions “of less consequence”).

A district judge need not consider an argument that was not first properly

presented to the magistrate judge. See Williams v. McNeil, 557 F.3d 1287, 1292

(11th Cir. 2009). All the same, the Court will address the due process issue here

because it is meritless. Due process requires only “fair notice” that a party’s

“conduct may warrant sanctions and the reasons why.” In re Sunshine Jr. Stores,

Inc., 456 F.3d 1291, 1307 (11th Cir. 2006) (cleaned up). The party subject to sanctions

must get the chance to justify its actions. Id. The adequacy of notice turns on the

party’s knowledge of the “consequences of [its] own conduct.” Link, 370 U.S.

at 632. And when circumstances show the party is well-aware of those

consequences, specific advance notice and a hearing are unnecessary. See id.

Assessing fees is “one of the lesser sanctions” and presents lesser due process

concerns. Devaney v. Cont’l Am. Ins. Co., 989 F.2d 1154, 1159 (11th Cir. 1993).

Here, Morgan & Morgan was well-aware that their conduct could subject

them to sanctions and why. Time and time again, this Court has excused Morgan

& Morgan’s missteps for the sake of not harming their clients and warned1 them2

consequences would follow. And when Morgan & Morgan whiffed so badly that

they lost this client’s claim, they urged the Court to sanction them rather than

1 Henderson v. Lockheed Martin Corp., No. 6:21-cv-1363 (M.D. Fla. 2021), Doc. 70, pp. 49:14–

50:2 (“[W]hat I need for the plaintiffs to hear from me is you better get on it. . . . [I]t just doesn’t

seem to me that there’s been much effort . . . . [I]t doesn’t even seem to me like you’ve got to first

base.”).

2 (Doc. 41, pp. 40:5–16, 67:15–19 (“[T]he point that I take serious issue with is your

argument that you tried to land a jumbo jet on a short runway. You didn’t have a short runway.

You had more than an adequate runway . . . . [Y]ou overflew the runway without paying any

attention to it until you got to the last thousand feet. And then, suddenly, it became an emergency.

And now here we are dealing with the consequences of the emergency. I’m now looking at the

problem of whether or not I’m going to enforce my orders and . . . let the consequences be damned

. . . . I expect you all to meet your obligations . . . and I’m not going to be persuaded by equitable

arguments later on. If 20, 30, 40, or 60 of the plaintiffs go by the boards, so be it.”).)

penalizing the client, a frequent3 refrain4 of theirs. So when the Court did what

Morgan & Morgan explicitly5 acknowledged6 was a possibility—what they asked

for—their cry of “but due process!” rings hollow. Morgan & Morgan received

plenty of notice and all the process they were due.7 And opening their checkbook

is surely preferable to contacting their malpractice carrier.8

The Objection’s other arguments are similarly unavailing. Morgan &

Morgan quibbles with Lockheed not providing affidavits in support, but

Judge Irick properly calculated the reasonable rates using what Lockheed

provided, the Johnson factors, and his own expertise. (Doc. 145, pp. 5–6; see

Doc. 127, pp. 3–9 (citing Norman v. Housing Auth. of Montgomery, 836 F.2d 1292,

1303 (11th Cir. 1988) (court “may form an independent judgment [on fee rates]

either with or without the aid of witnesses as to value” (cleaned up))).) Morgan &

3 (Doc. 41, pp. 34:23–35:6 (“[A]t the end of the day, that’s our responsibility, right? . . . .

[W]e bear that burden. . . . But it shouldn’t be our clients. So if there is a sanction, . . . then we

should own that.”).)

4 See Henderson, Doc. 180, p. 3 (“[C]ounsel . . . is begging the Court for an extension to

ensure their clients’ claims are not summarily dismissed.”).

5 (Doc. 78, p. 16 (“Even if sanctions are warranted, Rule 37(c)(1) provides a range of

possible sanctions, and the most extreme sanction of exclusion is not justified. . . . [I]nstead of

exclusion the court [] may order payment of the reasonable expenses, including attorney’s fees

. . . .” (cleaned up)).)

6 (Doc. 78, p. 23 (Morgan & Morgan urging that Lockheed “even conceded that lesser

sanctions were within this Court’s discretion, acknowledging that courts sometimes impose

Rule 16(f) sanctions [including] fee awards” in lieu of dismissal (cleaned up)).)

7 (See also Doc. 31, p. 2 & n.4 (citing Link, 370 U.S. at 629–30) (“[T]he Court will diligently

enforce this CMSO, and . . . sanction parties and attorneys who violate the letter or spirit of the

Court’s Rules and Orders.”).)

8 (See Doc. 41, p. 35:8–11 (“THE COURT: Well, your clients are going to need, maybe, to

contact your insurer.” “MR. MORGAN: That’s true.”).)

Morgan also argues that the Court’s finding of no bad faith means the fees should

be reduced, but Rule 16(f) sanctions do not require a finding of bad faith. (Doc. 145,

pp. 6–7); see Giovanno v. Fabec, 804 F.3d 1361, 1366 n.5 (11th Cir. 2015). Next,

Morgan & Morgan objects that the fees should be reduced because, essentially,

Lockheed “lost” and the Court granted their motion to reopen. (Doc. 145, pp. 7–9.)

Nonsense. To the extent that Morgan & Morgan “won” that motion—one

necessitated by their own screwup—it was by the skin of their teeth, and

Lockheed’s opposition was well-founded. (Doc. 81, p. 2 (“[T]he Court is not

ignorant of the prejudice to Lockheed in making this decision.”).) But in any event,

contrary to Morgan & Morgan’s assertion, Judge Irick did carefully consider any

excessive or redundant fees and reduced them accordingly, nearly halving the fees

requested. (Doc. 127, pp. 10–13); see Norman, 836 F.2d at 1302 (reduction

appropriate for limited success and award must only be “not excessive”). So

Plaintiff’s Objection is meritless in its entirety.

Accordingly, it is ORDERED AND ADJUDGED:

1. Plaintiff’s Objection (Doc. 145) is OVERRULED.

2. The R&R (Doc. 127) is ADOPTED AND CONFIRMED and made a

part of this Order in its entirety.

3. Lockheed’s Motion (Doc. 88) is GRANTED to the extent that

Lockheed is AWARDED $51,010.00 in fees from Morgan & Morgan,

P.A., Timothy Michael Morgan, Esq., and Rene F. Rocha, Esq. The

Motion is DENIED in all other respects.

DONE AND ORDERED in Chambers in Orlando, Florida, on March 20,

2025.

ROY B. DALTON, KO

United States District Judge