“A Losing Argument Is Not the Same as a Frivolous One,” Except When It Is

Depends how you make it

Because my report on the “Eliminate Useless Reports Act of 2024” is taking longer than expected (but will be useful when finished), I wish to grace you instead with the order below recently issued by Judge Gregory Presnell in the Middle District of Florida.

Long-time readers may remember the 2006 decision in which a fed-up Judge Presnell ordered lawyers having a particularly childish dispute to meet on the courthouse steps and resolve said dispute by engaging in “one (1) game of ‘rock, paper, scissors.'” See Rock, Paper, Scissors Match to Resolve Discovery Dispute” (June 7, 2006). I’m pretty sure I’ve mentioned other orders by Judge Presnell before, but if so I’m having trouble finding those posts. He is plainly, though, not a judge whose time anyone should be wasting. See also, e.g., Jones v. Ramos, 2023 WL 3225057 (M.D. Fla. May 3, 2023) (“These objections are infected with the same nonsense and frivolity noted in the [report] and are patently without merit.”); Bell v. Florida, 2017 WL 1386828 (M.D. Fla. Apr. 18, 2017) (“It is time for this nonsense to stop.”).

That is one of many lessons that hasn’t been learned by Spencer Sheehan, a New York plaintiffs’ lawyer whose cases I have mentioned several times, and not because I thought those cases were compelling. See, e.g., “Lawsuit Claims Mac & Cheese May Take Seconds Longer to Make Than Promised” (Nov. 21, 2022); “Plaintiff Claims Pop-Tarts Less Healthy Than She Expected” (Nov. 3, 2021); “Plaintiff Alleges ‘Heart of the Himalayas’ Is in India, Not Pakistan (It’s in Nepal)” (Oct. 22, 2021); “‘Hint of Lime’ Case: It’s Not Crunch Berries, But It’s Close” (June 16, 2021).

I should disclose, as I’ve done before, that some of my regular legal work involves defending against consumer-class-action lawsuits of this general kind (including a couple filed by this lawyer). I don’t write about those particular lawsuits, but I do tend to notice, for multiple reasons, examples of the genre that are highly questionable. As the links above suggest, Sheehan has filed lots of questionable cases, to the point that judges in several jurisdictions have expressly called him out for what they say is a pattern of bringing weak and sometimes frivolous lawsuits. So, it was a very bad idea for this lawyer to be involved in such a lawsuit that might come before this judge.

Durant v. Big Lots is by no means the dumbest case this lawyer has filed. In this one, the complaint alleged that Ms. Durant was dismayed to find that although a coffee label said the container might yield “up to 210 suggested strength 6 fl oz servings,” try as she might she could not reach that number. Not even the experts she said she had retained to conduct an “independent laboratory analysis” of this conundrum were able to do so. But as the defendant pointed out, Durant was apparently brewing only single servings, ignoring other instructions for large batches (big lots?) that yield more servings. More to the point, and as Judge Presnell pointed out, a reasonable consumer would understand that “up to 210” does not mean “at least 210.” In fact, it implies you might get less than 210. Some courts might let these allegations get past a motion to dismiss. Judge Presnell did not.

But that was in his March 2024 order. In the order below, he granted Big Lots’ motion for fees and sanctions against Sheehan and his co-counsel, partly just because Big Lots prevailed but also because he found the lawyers had acted in bad faith. For one thing, it turned out they had filed a virtually identical case in New York, which the court promptly dismissed for similar reasons. Getting a new plaintiff and filing the identical case elsewhere was not going to endear these lawyers to Judge Presnell.

Nor was their inability to back up the claim that “independent laboratory analysis” by unidentified experts in the science of coffee-making supported the allegations. The court points to a New York decision six months ago holding Sheehan in contempt partly because he filed a complaint citing an “independent laboratory analysis” that hadn’t actually been done.

Among other bad arguments, the lawyers contended that even if their case was weak, that didn’t make it frivolous. As they put it, “[a] losing argument is not the same as a frivolous one.” Not necessarily the same, the judge pointed out, but that didn’t help them here. Because this complaint “had no reasonable factual basis,” he said, it demonstrates that “a losing argument can be the same as a frivolous one.”

Well, that’s enough piling on by me. If you want more, there’s plenty in the order (below).