United States Court of Appeals For the First Circuit

No. 17-1239

ANGIODYNAMICS, INC.,

Plaintiff, Appellee,

v.

BIOLITEC AG; WOLFGANG NEUBERGER; BIOMED TECHNOLOGY HOLDINGS, LTD.,

Defendants, Appellants,

BIOLITEC, INC.,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lynch, Stahl, and Barron, Circuit Judges.

William E. Reynolds, with whom Nixon Peabody LLP was on brief, for appellee. Edward Griffith, with whom The Griffith Firm, Jesse Belcher- Tinme, and Doherty, Wallace, Pillsubry & Murphy, P.C. were on brief, for appellants. January 23, 2018 PER CURIAM. Plaintiff AngioDynamics has moved for

sanctions against counsel for Defendants. After careful

consideration, we reluctantly will not impose sanctions against

defense counsel.

Under Rule 38 of the Federal Rules of Appellate

Procedure, this court, upon a motion from appellee and after

determining that an appeal is frivolous, may "award just damages

and single or double costs to the appellee." "An appeal is

frivolous if the result is obvious or the arguments are 'wholly

without merit.'" Cronin v. Town of Amesbury,

(1st Cir. 1996) (quoting Westcott Constr. Corp. v. Firemen's Fund

of N.J.,

(1st Cir. 1993)).

Both an appellant and its counsel may face sanctions for

bringing a frivolous appeal. "An attorney's duty to represent a

client zealously is not a license to harass." Id. at 262. When

counsel "crosse[s] the line from zealous advocacy to vexatious

advocacy, needlessly multiplying the proceedings . . . , it is

appropriate to sanction the attorney personally for the excess

costs, expenses and attorneys' fees reasonably incurred." Id.

This appeal presents several of the hallmarks of

frivolity. Defendants largely rely on an argument we found waived

in their previous appeal, AngioDynamics, Inc. v. Biolitec AG,

(1st Cir. 2016) (Biolitec IV). See Roger Edwards, LLC v.

Fiddes & Son Ltd.,

(1st Cir. 2006) (imposing

- 3 - sanctions against an appellant for "rehashing its meritless claims

yet again" in its third appeal). Defendants' briefing in this

appeal recycles portions of the briefing from their previous

appeal. See In re Simply Media, Inc.,

(1st

Cir. 2009) (imposing sanctions against appellant that had "taken

verbatim" large sections of an earlier brief in a related case).

Finally, as we noted in Biolitec IV, throughout this case,

Defendants "have repeatedly thumbed their nose at the district

court,"

, and have employed tactics in this court

that "reek[ed] of an attempt at re-litigation,"

.

After oral argument, counsel for Defendants submitted a

Rule 28(j) letter, in which they claimed, for the first time, that

they had misinterpreted our decision in Biolitec IV. According to

counsel, had they understood that we found all variations of their

expired injunction argument waived in Biolitec IV, they "would not

have moved for Rule 60 relief based on the Preliminary Injunction's

expiration." They nonetheless contend their misreading of

Biolitec IV was reasonable, making their motions in the district

court and their appeal to this court not frivolous.

We are decidedly skeptical of Defendants' newfound

position, raised improperly for the first time in a Rule 28(j)

letter. See Rosa-Rivera v. Dorado Health, Inc.,

(1st Cir. 2015). However, we will, in these circumstances, give

defense counsel the benefit of the doubt and not impose sanctions

- 4 - against them. We view this as a very close case for sanctions and

emphasize that "[o]ur denial of sanctions should not be taken as

an endorsement of [Defendants'] decision to appeal." Candelario-

Del-Moral v. UBS Fin. Servs. Inc. of P.R. (In re Efron),

(1st Cir. 2014).

We make one final note. We have just disposed of the

fifth appeal in this case. This case is at an end, and we will

not be as charitable, and will not expect the district court to be

charitable, to any additional attempts at prolonging it.

Defendants and their counsel should be on notice that we would

view any further arguments based on the alleged expiration of the

preliminary injunction, either in this court or the district court,

as wholly baseless.

For the foregoing reasons, we deny AngioDynamics' motion

for sanctions. Single costs will be awarded to appellee.

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