## Facts

- William Mok brought a wage-and-hour action against 21 Mott St. Restaurant Corp. and related restaurant-employer defendants.
- Brandon D. Sherr represented Mok.
- Mok died on September 22, 2016, before he was examined under oath in a deposition or otherwise, leaving no preserved testimony that could readily be used at trial.
- Mok’s death materially affected the case’s value and trial posture because proving liability and damages would be far more difficult without the sole plaintiff’s testimony.
- Sherr stated he learned of Mok’s death about four months later (around January 2017), but he did not disclose the death to defense counsel or the court for roughly eight months after the death.
- During the period of non-disclosure, Sherr sought adjournments and represented that he was negotiating settlement on behalf of his client, which delayed pretrial deadlines, including work toward a joint pretrial order that would have revealed Mok could not appear as a trial witness.
- Sherr disclosed Mok’s death only after announcing an agreement in principle to settle the case.
- Even then, Sherr did not disclose the date of death until the court ordered him to provide it.
- The court issued an order to show cause directing Sherr to explain why sanctions should not be imposed under the court’s own sanction authority and 28 U.S.C. § 1927.
- Defendants sought recovery of attorneys’ fees incurred after the point at which Sherr should have disclosed the death.

## Issues

1. Whether plaintiff’s counsel’s non-disclosure of the sole plaintiff’s death, while seeking adjournments and continuing litigation activity, warranted sanctions under the court’s own sanction authority for bad-faith conduct.
2. Whether counsel’s conduct unreasonably and vexatiously multiplied proceedings, justifying monetary sanctions under 28 U.S.C. § 1927.
3. What monetary sanctions and fee award were appropriate, including what time period and causal limits should apply to any fee shifting.

## Decision

- The court imposed sanctions on plaintiff’s counsel.
- Under the court’s own sanction authority, the court imposed a $3,000 monetary sanction payable into the Registry of the Court.
- Under 28 U.S.C. § 1927, the court ordered fee shifting of defendants’ reasonable attorneys’ fees causally related to the sanctionable conduct, limited to fees incurred from January 25, 2017 forward (the date the court selected, viewing disputed facts in the light most favorable to Sherr).
- The court rejected a broader, purely post-death fee period and required defendants to resubmit a revised fee application consistent with the January 25, 2017 start date and the causal-connection requirement, with a schedule for Sherr’s response.

## Legal Principles

- A federal court may sanction an attorney for bad-faith litigation conduct using the court’s own authority to manage proceedings and protect the judicial process.
- Bad faith may be found where counsel withholds highly material information and uses court processes (such as adjournment requests) in a misleading way that disrupts orderly case management.
- Under 28 U.S.C. § 1927, an attorney may be required to personally satisfy excess costs and reasonable attorneys’ fees when the attorney unreasonably and vexatiously multiplies proceedings.
- Any fee award under § 1927 must be tied to a causal connection between the misconduct and the fees sought; timing alone is not enough.
- Courts may impose both a fixed monetary sanction (to deter and penalize misconduct) and fee shifting (to compensate the opposing party for costs caused by the misconduct), so long as the amounts and scope are properly limited.

## Conclusion

In this wage-and-hour case, the court sanctioned plaintiff’s counsel after he failed for months to disclose that the sole plaintiff had died, while he sought adjournments and proceeded as though settlement talks were being conducted on a living client’s behalf. Finding bad-faith conduct and unreasonable multiplication of proceedings, the court imposed a $3,000 penalty payable to the court and ordered § 1927 fee shifting for defendants’ reasonable fees caused by the misconduct from January 25, 2017 forward, directing defendants to submit a revised fee request consistent with those limits.


Mok v. 21 Mott St. Restaurant Corp., 2017 WL 3981308 (2017)