United States District Court, W.D. Kentucky, Louisville
ALAN LANI, on behalf of SCHILLER KESSLER & GOMEZ, PLLC, A Kentucky Professional Limited Liability Company PLAINTIFF
SCHILLER KESSLER & GOMEZ, PLC, A Florida Professional Limited Company, MARC SCHILLER; ANDREW KESSLER; MARCELO GOMEZ; SCHILLER KESSLER & GOMEZ, PLLC DEFENDANTS
Charles R. Simpson III, Senior Judge.
matter is before the Court on the motion of Defendants
Schiller Kessler & Gomez, PLC, Mark Schiller, Andrew
Kessler, Marcelo Gomez, and Schiller Kessler & Gomez,
PLLC (collectively, “Defendants”) for an award of
attorney fees and costs, ECF No. 19. Plaintiff Alan Lani
responded, ECF No. 21, and Defendants replied, ECF No. 22.
Lani then moved for leave to file a sur-reply, ECF No. 23,
and tendered a sur-reply, ECF No. 23-1. Defendants responded
to Lani's motion for leave to file a sur-reply, ECF No.
26, and Lani replied, ECF No. 28.
these motions involve the same facts and issues, the Court
will address them in a single memorandum opinion and order.
For the reasons discussed below, the Court will grant
Defendants' motion for attorney fees and costs. The Court
will deny Lani's motion for leave to file a sur-reply.
December 1, 2015, Lani filed a derivative action on behalf of
Schiller Kessler & Gomez, PLLC's membership interests
in the Jefferson County, Kentucky Circuit Court. Compl. 1,
ECF No. 1-1. Lani alleged that the individual
defendants-Schiller, Kessler, and Gomez- began improperly
sending fees earned by Schiller Kessler & Gomez, PLLC in
Kentucky to their Florida business, Schiller Kessler, &
Gomez, PLC, which caused the Kentucky company to suffer
financial losses. Id. ¶ 18-20.
after Lani filed the derivative action, Schiller Kessler
& Gomez, PLC, Schiller, Kessler, and Gomez removed the
suit to this Court under diversity jurisdiction. Not.
Removal, ECF No. 1. Lani moved to remand the case to the
Jefferson County Circuit Court, Mot. Remand, ECF No. 6, or in
the alternative to add a party defendant, Mot. Add Party, ECF
No. 7. The Court denied the motion to remand and denied as
moot the alternative motion to add a party defendant. Order
2, ECF No. 18.
Kessler & Gomez, PLLC then moved to intervene and realign
the parties so that it would be named as a nominal defendant.
Mot. Intervene, ECF No. 3. The Court granted the motion to
intervene and realign the parties. Order 1, ECF No. 18.
then moved to dismiss the suit with prejudice for lack of
subject matter jurisdiction, for failure to state a claim,
and for lack of personal jurisdiction. Mot. Dismiss, ECF No.
2. The Court found that Lani lacked standing to bring a
derivative action on behalf of Schiller Kessler & Gomez,
PLLC. Mem. Op. 14, ECF No. 17. The Court thus granted the
Defendants' motion to dismiss for lack of subject matter
jurisdiction and dismissed the complaint without
prejudice. Order 1, ECF No. 18. The Court declined to
award Defendants any attorney fees or costs at that time.
Mem. Op. 14, ECF No. 17.
now move for an award of attorney fees and costs under
Kentucky Revised Statute § 275.337(8)(a) against Lani.
Mot. Att'y Fees, ECF No. 19. Lani has also moved for
leave to file a sur-reply to Defendant's reply to their
motion for an award of fees and costs. Mot. Leave Sur-Reply,
ECF No. 23.
Motion for Award of Attorney Fees and Costs
Whether Fees and Costs Should be Granted
argue that attorney fees and costs should be awarded under
Kentucky Revised Statute § 275.337(8)(a) because (1)
Lani lacked standing to bring the lawsuit, (2) Lani failed to
fulfill the statutory requirements of a derivative action,
and (3) Lani improperly attempted to use the derivative
action to enrich himself. Mem. Supp. Mot. Att'y Fees
6-10, ECF No. 19-1. In response, Lani asserts that the
derivative action was brought with reasonable cause because
“the members of [Schiller Kessler, & Gomez, PLC]
were effectively stealing from [Schiller Kessler & Gomez,
PLLC] with their reduction of fees.” Resp. Opp. Mot.
Att'y Fees 3, ECF No. 21. He asserts that the action was
commenced for a proper purpose because he desired to
“compel [Schiller Kessler, & Gomez, PLC] to refund
[Schiller Kessler & Gomez, PLLC] what had been taken, so
that the fees generated for work performed for clients of
[Schiller Kessler & Gomez, ...