United States v. Nieves ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1239
ANGIODYNAMICS, INC.,
Plaintiff, Appellee,
v.
BIOLITEC AG; WOLFGANG NEUBERGER;
BIOMED TECHNOLOGY HOLDINGS, LTD.,
Defendants, Appellants,
BIOLITEC, INC.,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Stahl, and Barron,
Circuit Judges.
William E. Reynolds, with whom Nixon Peabody LLP was on brief,
for appellee.
Edward Griffith, with whom The Griffith Firm, Jesse Belcher-
Tinme, and Doherty, Wallace, Pillsubry & Murphy, P.C. were on
brief, for appellants.
January 23, 2018
PER CURIAM. Plaintiff AngioDynamics has moved for
sanctions against counsel for Defendants. After careful
consideration, we reluctantly will not impose sanctions against
defense counsel.
Under Rule 38 of the Federal Rules of Appellate
Procedure, this court, upon a motion from appellee and after
determining that an appeal is frivolous, may "award just damages
and single or double costs to the appellee." "An appeal is
frivolous if the result is obvious or the arguments are 'wholly
without merit.'" Cronin v. Town of Amesbury, 81 F.3d 257, 261
(1st Cir. 1996) (quoting Westcott Constr. Corp. v. Firemen's Fund
of N.J., 996 F.2d 14, 17 (1st Cir. 1993)).
Both an appellant and its counsel may face sanctions for
bringing a frivolous appeal. "An attorney's duty to represent a
client zealously is not a license to harass." Id. at 262. When
counsel "crosse[s] the line from zealous advocacy to vexatious
advocacy, needlessly multiplying the proceedings . . . , it is
appropriate to sanction the attorney personally for the excess
costs, expenses and attorneys' fees reasonably incurred." Id.
This appeal presents several of the hallmarks of
frivolity. Defendants largely rely on an argument we found waived
in their previous appeal, AngioDynamics, Inc. v. Biolitec AG, 823
F.3d 1 (1st Cir. 2016) (Biolitec IV). See Roger Edwards, LLC v.
Fiddes & Son Ltd., 437 F.3d 140, 145 (1st Cir. 2006) (imposing
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sanctions against an appellant for "rehashing its meritless claims
yet again" in its third appeal). Defendants' briefing in this
appeal recycles portions of the briefing from their previous
appeal. See In re Simply Media, Inc., 583 F.3d 55, 56-57 (1st
Cir. 2009) (imposing sanctions against appellant that had "taken
verbatim" large sections of an earlier brief in a related case).
Finally, as we noted in Biolitec IV, throughout this case,
Defendants "have repeatedly thumbed their nose at the district
court," 823 F.3d at 10, and have employed tactics in this court
that "reek[ed] of an attempt at re-litigation," id. at 5.
After oral argument, counsel for Defendants submitted a
Rule 28(j) letter, in which they claimed, for the first time, that
they had misinterpreted our decision in Biolitec IV. According to
counsel, had they understood that we found all variations of their
expired injunction argument waived in Biolitec IV, they "would not
have moved for Rule 60 relief based on the Preliminary Injunction's
expiration." They nonetheless contend their misreading of
Biolitec IV was reasonable, making their motions in the district
court and their appeal to this court not frivolous.
We are decidedly skeptical of Defendants' newfound
position, raised improperly for the first time in a Rule 28(j)
letter. See Rosa-Rivera v. Dorado Health, Inc., 787 F.3d 614, 617
(1st Cir. 2015). However, we will, in these circumstances, give
defense counsel the benefit of the doubt and not impose sanctions
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against them. We view this as a very close case for sanctions and
emphasize that "[o]ur denial of sanctions should not be taken as
an endorsement of [Defendants'] decision to appeal." Candelario-
Del-Moral v. UBS Fin. Servs. Inc. of P.R. (In re Efron), 746 F.3d
30, 38 (1st Cir. 2014).
We make one final note. We have just disposed of the
fifth appeal in this case. This case is at an end, and we will
not be as charitable, and will not expect the district court to be
charitable, to any additional attempts at prolonging it.
Defendants and their counsel should be on notice that we would
view any further arguments based on the alleged expiration of the
preliminary injunction, either in this court or the district court,
as wholly baseless.
For the foregoing reasons, we deny AngioDynamics' motion
for sanctions. Single costs will be awarded to appellee.
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