Filing The Same Case Twice Nets Lawyer Section 1927 Sanctions

Lewis v. Smith, Court of Appeals, 3rd Circuit 2012 – Google Scholar.

The Third Circuit affirmed a grant of sanctions pursuant to 28 U.S.C. Section 1927 for the filing of a lawsuit in bad faith.

The lawyer, Don Bailey, filed a civil rights case on behalf of his client against the defendants. That case was dismissed by the district court, after plaintiff had been given opportunities to amend the complaint.

Instead of filing an appeal, the lawyer refiled the same case in the district court. The district court concluded that the filing of a duplicative lawsuit “multiplied the proceedings” and awarded sanctions to defendants.

Mr. Bailey’s appeal fared no better. The court’s opinion concludes as follows:

“We note that Bailey’s filings in this case spin broad conspiracy theories and make unfounded allegations of fraud and judicial misconduct stretching back to the filing of Lewis I and beyond. Such spurious allegations only serve to emphasize the impropriety of this action. The sanctions imposed by the District Court are appropriate. We will affirm.”

This is not a published opinion.

Comment: Had the lawyer appealed the dismissal of the first case, he would have lost his appeal, but he would not have been sanctioned. This is a failure by the lawyer to comprehend basic elements of the Federal Rules of Civil Procedure.

Bailey did raise an interesting appellate issue: can a Section 1927 sanctions motion be filed after judgment? Here the court said “Yes” as long as the motion is filed within a “reasonable time.” This issue deserves further consideration. The “reasonable time” standard seems a poor rule on which to base awards of sanctions.

Edward X. Clinton, Jr.

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