Nearly four years after instituting this action plaintiffs-appellants' counsel, Esler, Stephens & Buckley, Esler & Schneider, and Jacobs, Burns, Sugarman & Orlove (collectively "plaintiffs' counsel" or "counsel") were unable to articulate a factual basis for plaintiffs' claim against defendant-appellee, Oscar Fiorenzo ("Fiorenzo"). During that four-year period, three other defendants, in virtually the same position as Fiorenzo, obtained summary judgments in their favor. The last defendant had requested, but was denied sanctions. Ultimately, Fiorenzo followed suit and sought summary judgment alleging he was not involved with the sale of the securities in question. Plaintiffs' counsel -- after a delay for additional discovery -- did not file any affidavits opposing Fiorenzo's summary judgment motion. The district court granted Fiorenzo's motion for summary judgment and awarded attorneys' fees to Fiorenzo for the cost of the entire case, chargeable to plaintiffs' counsel. Counsel then sought reconsideration of both the motion for summary judgment and the award of fees. In support of the motion to reconsider, plaintiffs' counsel introduced an affidavit purporting to tie Fiorenzo to the fraudulent security sales. Although not obligated to do so, the district court vacated summary judgment and reconsidered plaintiffs' complaint in light of the newly filed affidavit. The court did not, however, vacate its previous order imposing attorneys' fees. Upon reconsideration, the court ruled that the facts in the affidavit did not support plaintiffs' claims that Fiorenzo participated or was a substantial factor in the sale of the securities. However, rather than reinstating its order granting summary judgment in favor of Fiorenzo, the court dismissed the complaint without prejudice for failure to plead securities fraud with particularity. With respect to its previous award of fees, the court indicated that the disruption caused by the belated affidavit would, in any event, result in assessments against plaintiffs' counsel. However, the court gave counsel the opportunity to avoid all other sanctions previously imposed by either alleging sufficient facts to sustain a claim against Fiorenzo under the theories contained in the complaint or by explaining under what other theory Fiorenzo might have been held liable given the facts in the complaint. Plaintiffs' counsel neither refiled against Fiorenzo nor proffered any theory under which Fiorenzo could have been sued in the first place. Accordingly, the court's order, imposing sanctions against plaintiffs' counsel for the costs of the entire suit, remained in effect. This appeal followed.
