UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CIVIL ACTION NO.

3:10-CV-00386 DONNA TATE, Plaintiff, v. SALLIE MAE, INC. and SLM FINANCIAL CORPORATION, Defendants. DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS FEES AND COSTS PURSUANT TO 28 U.S.C. 1927

Defendants Sallie Mae, Inc. and SLM Financial Corporation (together, Defendants) submit this memorandum of law in support of their Motion for Award of Attorneys Fees and Costs Pursuant to 28 U.S.C. 1927. Defendants should be awarded their reasonable attorneys fees and costs associated with its Motion to Compel Enforcement of Settlement Agreement (Motion), which this Court granted on May 30, 2012. STATEMENT OF RELEVANT FACTS AND PROCEDURE Plaintiff agreed to settle her case against Defendants when she was represented by James Ferguson and Lareena Phillips of the law firm Ferguson, Stein, Chambers, and Gresham (Withdrawn Counsel). Plaintiff, through her Withdrawn Counsel, discussed settlement following her deposition in October 2011, and by the end of November 2011, reached an agreement to resolve this action. Defendants and the Withdrawn Counsel memorialized the settlement in written form (Settlement Agreement), which Plaintiff later refused to sign. Defendants moved to enforce the settlement agreement by filing the Motion. This Court held a hearing on May 30, 2012, at which the undersigned counsel for Defendants presented the facts and relevant law and engaged in a question-and-answer colloquy with the Court about the

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enforcement of the settlement. The Withdrawn Counsel did not disagree with the argument of Defendants, and Plaintiffs objection centered on her issues with the Withdrawn Counsel. After granting the Motion, this Court entertained Defendants request for attorneys fees and costs pursuant to 28 U.S.C. 1927, and requested a proper motion with an opportunity for Plaintiff to respond. ARGUMENT PLAINTIFFS CONDUCT HAS UNREASONABLY AND VEXATIOUSLY MULTIPLIED THE PROCEEDINGS, AND DEFENDANTS SHOULD BE AWARDED THE EXCESS COSTS, EXPENSES, AND ATTORNEYS FEES INCURRED BECAUSE OF SUCH CONDUCT. Pursuant to 28 U.S.C. 1927, Any attorney or other person admitted to conduct cases in any court of the United States . . . 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. Section 1927 focuses on the conduct of the litigation and not the merits. Debauche v. Trani, 191 F.3d 499, 511 (4th Cir. 1999). Moreover, section 1927 does not distinguish between winners and losers, or between plaintiffs and defendants. The statute is indifferent to the equities of a dispute and to the values advanced by the substantive law. Id. (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 762 (1980)). Bad faith is not a prerequisite before imposing 1927 sanctions. See Sanford v.

Commonwealth, 689 F. Supp. 2d 802, 806 (E.D. Va. 2010). The conduct of Plaintiff and/or Withdrawn Counsel has unreasonably and vexatiously multiplied the proceedings in this civil action. Plaintiff agreed to a settlement, and Defendants considered the case closed pending execution of the settlement documents. Then, after

previously receiving only assurances that a signed settlement agreement would be forthcoming, Defendant received a communication from the Withdrawn Counsel that Plaintiff would not sign 2 Case 3:10-cv-00386-GCM Document 53 Filed 06/12/12 Page 2 of 5

the settlement documents. As a result, Defendants counsel had to file the Motion and argue it before the Court. Regardless of Plaintiff or the Withdrawn Counsels motives or lack of bad faith, their conduct in this case multiplied the proceedings and forced Defendants to incur additional costs. This is not the type of routine motion practice that this Court has previously indicated did not rise to the unreasonable and vexatious standard. See e.g., Villines v. Bank of Am. Corp., No. 3:02-CV-511, 2005 WL 2296774 (W.D.N.C.). As evidence of its reasonable costs, expenses, and attorneys fees, counsel for Defendants submits his affidavit, attached as Exhibit A to the Motion for Award of Attorneys Fees and Costs Pursuant to 28 U.S.C. 1927. Defendants incurred a total of $1,542.50 for attorneys fees and costs associated with preparing the Motion and supporting memorandum, preparing for the hearing, traveling to and from Charlotte to argue the Motion, and arguing the Motion. This represents 9.5 hours of work, at the undersigneds adjusted rate of $153.00 per hour, as well as costs incurred in this matter. Both the amount of time spent on this Motion, as well as the rate (which represents a $47.00 discount from the undersigneds standard rate) are reasonable in this market. CONCLUSION For the above reasons, this Court should enter an order directing Plaintiff and/or the Withdrawn Counsel to pay to Defendants the total amount of $1,542.50. This the 12th day of June, 2012.

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/s/ R. Scott Adams Jeffrey D. Patton (N.C. State Bar No. 21246) R. Scott Adams (N.C. State Bar No. 36581) Spilman Thomas & Battle, PLLC 110 Oakwood Drive, Suite 500 Winston-Salem, NC 27103 sadams@spilmanlaw.com Telephone: (336) 725-4710 Facsimile: (336) 725-4476

Counsel for Sallie Mae, Inc. and SLM Financial Corporation

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CIVIL ACTION NO. 3:10-CV-00386 DONNA TATE, Plaintiff, v. SALLIE MAE, INC. and SLM FINANCIAL CORPORATION, Defendants. I hereby certify that I have this day electronically filed the foregoing Defendants Memorandum in Support of Motion For Award Of Attorneys Fees and Costs Pursuant to 28 U.S.C 1927 with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following, James E. Ferguson II, Esquire Lareena J. Phillips, Esquire Ferguson Stein Chambers Gresham & Sumter PO Box 36486 Charlotte, NC 28236 Telephone (704) 375-8461 Facsimile (704) 334-5654 fergietwo@aol.com lphillips@fergusonstein.com and by depositing a copy of the same in the United States Mail in Winston-Salem, North Carolina, First-Class, postage prepaid to, Ms. Donna Tate 511 South Marietta Street Gastonia, NC 28052 This the 12th day of June, 2012. /s/ R. Scott Adams R. Scott Adams N.C. State Bar No. 36581 CERTIFICATE OF SERVICE

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