United States District Court, S.D. Ohio, Eastern Division
Kiraberly A. Jolson Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Romulus Holdings
LLC's ("Defendant Romulus") Motion to Dismiss
(ECF No. 8). Plaintiff has responded (ECF No. 9) and
Defendant Romulus has replied (ECF No. 12). Thus, the matter
is ripe for review. For the reasons stated below, the Court
GRANTS in part and DENIES in part Defendant
Romulus' Motion to Dismiss (ECF No. 8), thereby
DISMISSING the Complaint as against
Shakura Slaughter ("Plaintiff') was employed as a
server at IHOP in Hillard, Ohio from December of 2018 to July
of 2018. (Am. Compl. ¶ 10., ECF No. 10.) She was also
employed as a server at IHOP in Reynoldsburg, Ohio from
December of 2018 to March of 2019. (Id.) On
September 3, 2019, Plaintiff filed a complaint against
Defendant Romulus and Defendant RMLS Hop Ohio, LLC
("Defendant RMLS") alleging violations of Fair
Labor Standards Act ("FLSA"), and the Ohio
Constitution on behalf of herself, on behalf of those similar
situated as an FLSA collective action, and on behalf of other
members of a class of persons who assert claims under the
laws of Ohio, as a class action. (Id. at
¶¶ 55, 61, 70, 77.)
September 22, 2019, counsel for Defendant Romulus sent
counsel for Plaintiff a letter. (Def.'s Mot. Dismiss, Ex.
A, ECF No. 8.) The letter stated that Defendant Romulus
"is not a property party to the litigation. It does not
own or operate any restaurants, and does not employ servers,
nor does it have any subsidiaries who do so, either directly
or by any subsidiary entities. Consequently, the claims
against Romulus Holdings LLC should be dismissed
voluntarily." (Id.) The letter also contained
information regarding Defendant RMLS which is relevant to
Plaintiffs minimum wage claims. (Id.)
to the September 22 letter, the parties' counsel
exchanged several emails. (See Def.'s Reply at
Exs. 1, 2, ECF No. 12.) Plaintiffs counsel asked Defendant
Romulus' counsel for Plaintiffs pay records as well as
further information on Plaintiffs time spent working
non-tipped duties. (See Id. at Ex. 1.) Defendant
Romulus' counsel provided the requested documents and
information. (Id.) Defendant Romulus' counsel
also asked Plaintiffs counsel to stipulate to an extension of
time to answer in order to give Plaintiff more time to review
the information and consider dismissing the case.
(Id.) Plaintiff never responded to this request.
October 28, 2019, Defendant Romulus filed a Motion to Dismiss
for lack of personal jurisdiction, improper venue, and
failure to state a claim upon which relief can be granted.
(Def.'s Mot. Dismiss at 1-2.) The motion also included a
request for attorney's fees under 28 U.S.C. § 1927.
(Id. at 11-13.) OnNovember 12, 2019, Plaintiff
simultaneously filed a response agreeing to dismiss her
claims against Defendant Romulus and an amended complaint no
longer including Defendant Romulus and instead including
Defendant Jane Doe Company No. 1. (PL's Resp. at 1, ECF
No. 9; Am. Compl. ¶ 7.) Plaintiff, however, opposed the
request for attorney's fees. (Id.)
Motion to Dismiss Defendant Romulus is unopposed. The Court
grants this motion as to the dismissal of Defendant Romulus.
The remaining issue is whether Defendant Romulus' counsel
is entitled to attorney's fees.
§ 1927 provides:
Any attorney or other person admitted to conduct cases in any
court of the United States or any Territory thereof who so
multiplies the proceedings in any case unreasonably and
vexatiously may be required by the Court to satisfy
personally the excess costs, expenses, and attorneys'
fees reasonably incurred because of such conduct.
Sixth Circuit, "Section 1927 sanctions are warranted
when an attorney objectively falls short of the obligations
owed by a member of the bar to the court and which, as a
result, causes additional expense to the opposing
party." Red Carpet Studios Div. v. Source Advantage
Ltd., 465 F.3d 642, 646 (6th Cir. 2006). The conduct
must exceed simple or inadvertent negligence. Swan v.
Ruben,485 U.S. 934, 984 (1988); Hogan v.
Jacobsen,823 F.3d 872, 876 (6th Cir. 2016) (noting that
"sanctions may be imposed without a finding that the
lawyer subjectively knew that the conduct was inappropriate,
but the conduct must exceed inadvertence or negligence that
frustrated the trial judge"). Importantly, "the
mere finding that an attorney failed to undertake a
reasonable inquiry into ...