Update (September 2, 2015): “Plaintiff’s carousel of attorneys does not excuse it from complying with the Court’s orders and with the Federal Rules of Civil Procedure….”
On the other hand, forcing lawyers to go around in circles for months apparently does not justify an award of $39,759.57 in legal fees and costs to the defendant… (One more example of the familiar “Minnesota Haircut.” On the other hand, check out footnote 1: nearly 60 hours of attorney time does seem like a lot.)
Update (May 21, 2015) (under the headline When Can Businesses Predict Protracted Costly “Siege” Litigation?): Almost a year ago to the day, I predicted that Graffiti Entertainment v. Navarre was going to be a long hard slog (see below) and it may very well be. It is clearly on-going but how much longer can this warfare go on? Desertion seems to be a problem in Plaintiff’s army. In one of the stranger sanctions memos I have seen in some time, Defendant Navarre notes that Plaintiff cannot seem to hire a lawyer to prosecute its lawsuit. Plaintiff appears to have identified a convicted felon in Illinois as its lawyer except that the convicted felon is not a member of the Minnesota bar, is not admitted to the United States District Court, and he denies that he intends to appear in the lawsuit. “Defendants now respectfully move this Court to stop this nonsense.”
Original post (May 23, 2014): Too often, particularly early in litigation, lawyers paint their clients a rosy picture of shock and awe swift resolution. I have found in my nearly twenty years of practice of civil litigation in Minnesota that I have been quite good at predicting how most cases resolve (dismissal, summary judgment, settlement, trial) and, roughly, for how much money (with an exception here or there, obviously). But I have been far less successful in predicting lawsuits’ durations.
Generally, most cases that I have followed have gone on far longer than necessary. Some cases, however, give every indication from the get-go that they will be grueling and protracted battles. I get that sense from the fairly recently filed lawsuit of Graffiti Entertainment, Inc. v. Navarre Distributions Services, Inc. and Speed Commerce, Inc.
Graffiti Entertainment, in its thirty-three page complaint, appears to take the position that Defendants caused Graffiti to be “essentially bankrupt” (Complaint, p.1).
Putting aside the fact that being “essentially bankrupt” sounds a little like being “essentially pregnant,” I do not think it is much of a leap to suggest that Defendants will be highly unlikely to concede this essential point.
So this case has the earmarks of a “bet-the-company” kind of case where the plaintiff brings the corporate equivalent of a wrongful death action. That being the case, the potential risk would appear to be substantial and this, in turn, would appear to justify a substantial investment in defense of the action.
Furthermore, the allegations in the case appear somewhat sprawling, implicating several third parties (a factoring company, Universal Funding, for example, and GameStop, a video-game retailer (in fact, the world’s largest)), involving claims against several related corporate entities, and, apparently the potential for the award of attorneys’ fees for “the prevailing party” under the parties’ contract.
The questions are whether defendants can figure out a way to cut the lawsuit short through summary adjudication of one kind or another and whether Graffiti Entertainment and its counsel have the stamina to go 15 rounds against a much larger business and legal team.