Saenz v. Kohl’s Department Stores, Inc., No. 20-1517 (6th Cir. 11/2/2020) was a rather routine appeal from a grant of summary judgment. The plaintiff was injured when she slipped and fell on water on the floor of a Kohl’s store. The district court granted summary judgment because Kohl’s had no notice of the alleged hazard. The Sixth Circuit affirmed the grant of summary judgment and denied Kohl’s motion for Section 1927 sanctions. The court was “concerned” by the conduct of the lawyer for the plaintiff but did not impose sanctions. The issue raised in the sanctions motion was whether or not the lawyer had misrepresented the record on appeal. The Sixth Circuit concluded that he had done so, but the error was not sufficiently egregious to warrant sanctions. The court also noted that once the error was pointed out to the lawyer he had a duty to withdraw that argument from the appeal and did not do so.
The merits now behind us, we deny the motion by Kohl’s to strike Saenz’s brief as moot. See, e.g., Greenlee v. Sandy’s Towing & Recovery, Inc., No. 17-3080, 2018 WL 3655961, at *3 (6th Cir. Feb. 21, 2018). One matter, however, remains. Kohl’s has moved for sanctions, arguing that this appeal is frivolous because “Saenz’s entire appeal is premised on an interrogatory answer” that “is not part of the District Court’s record.”
As an initial matter, because Kohl’s “offers no evidence” that Saenz herself “harbored an improper motive” in bringing this appeal, “such as the intent to harass or cause delay,” we decline to impose sanctions against her under Federal Rule of Appellate Procedure 38 or 28 U.S.C. § 1912. Williams v. Shelby Cnty. Sch. Sys., 815 F. App’x 842, 845 (6th Cir. 2020).
As to her counsel, Brian Kutinsky, we find his conduct concerning. That said, we decline in the exercise of our discretion to impose sanctions against him personally. An attorney who “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.” 28 U.S.C. § 1927. Sanctions are appropriate under § 1927 “when an attorney has engaged in some sort of conduct that, from an objective standpoint, `falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party.'” Holmes v. City of Massillon, 78 F.3d 1041, 1049 (6th Cir. 1996) (quoting In re Ruben, 825 F.2d 977, 984 (6th Cir. 1987)); see also Mys v. Mich. Dep’t of State Police, 736 F. App’x 116, 117-18 (6th Cir. 2018).
Having represented Saenz from the filing of her complaint through this appeal, Kutinsky was (or should have been) “intimately familiar with the facts and procedural history” of this case. Mys, 736 F. App’x at 118. Indeed, during Beleski’s deposition, counsel for Kohl’s explicitly pointed out the discrepancy in the two versions of Interrogatory 9 and informed him that only the new version had been signed by a Kohl’s representative. Kutinsky then read that signed version— the one with no reference to “wet floor” signs—into the record. Yet despite this exchange, he quoted the unsigned, draft version in Saenz’s brief to the district court. He then perpetuated that error on appeal.
Given that the unsigned draft was nowhere else to be found in the record, appellate counsel for Kohl’s (who did not represent Kohl’s in the trial court) initially charged Saenz with fabricating evidence. Her attorney, for his part, now says that he “mistakenly believed that he was quoting from the signed answers to interrogatories.” And having learned of the events that transpired outside the record, Kohl’s has withdrawn its charge of falsification. Still, Kohl’s stresses that even after it brought this mistake to counsel’s attention a second time on appeal, he doubled down, insisting that we should now expand the record and reverse based on an unsigned interrogatory that the district court had no authority to consider. See Baugham, 211 F. App’x at 441 n.5; Fed. R. Civ. P. 33(b)(5).
We have previously sanctioned attorneys “for misrepresentations that were not accompanied by any `overt signs of bad faith’ but nonetheless amounted to a `misleadingly selective reading of the record.'” Mys, 736 F. App’x at 118 (alteration in original) (quoting Kempter v. Mich. Bell Tel. Co., 534 F. App’x 487, 493 (6th Cir. 2013)). What Saenz’s attorney has done here is arguably worse. His argument is based almost entirely on “evidence” that was not part of the record at all.
It is likewise inexcusable that Kutinsky now blames Kohl’s for failing to correct his error in the district court. It was his duty to exercise reasonable diligence before making a representation of fact. See Model Rules of Pro. Conduct r. 1.3 (Am. Bar Ass’n 2019). And it was his duty not to press his argument on appeal any further “unless there [was] a basis in . . . fact for doing so.” Model Rules of Pro. Conduct r. 3.1. But when this mistake was brought to his attention again on appeal, he nevertheless asked us to ignore the invalidity of the unsigned interrogatory, while trying to blame Kohl’s for being too slow to point out his own blunder. Understandably, neither Kohl’s nor the district court addressed this mistake below. It was mentioned once in passing in the facts section of Saenz’s brief, and the argument section never referenced the supposed floor signs. Kohl’s had no reason then to say anything. The floor signs became Saenz’s central argument only on appeal.
Nonetheless, although these actions might have been “unprofessional and serious enough to meet the standard for imposing sanctions,” we choose to “exercise our discretion not to sanction” counsel. Williams, 815 F. App’x at 846. No doubt, it was careless to quote the unsigned Interrogatory 9 and then appeal based on that error. But we appreciate that these are trying times; a Michigan stay-at-home order due to COVID-19 was in effect at the time Saenz filed this appeal, which may have limited her attorney’s access to the record. In these circumstances, we choose to give him the benefit of the doubt.
Even so, once the error was pointed out on appeal, Kutinsky “should have diligently withdrawn” his argument, rather than doubling down. Ridder v. City of Springfield, 109 F.3d 288, 299 (6th Cir. 1997). Such obstinance makes the case for sanctions close. But in his motion to expand, counsel did advance a legal argument that we could consider the unsigned interrogatory, insisting that because he quoted it within his brief to the district court, it became part of the “record on appeal.” See Fed. R. App. P. 10(a). This is of course incorrect: for even accepting counsel’s premise, his argument conflates the “record on appeal” with evidence in that record which may be considered for summary judgment purposes. See Byrne v. CSX Transp., Inc., 541 F. App’x 672, 675-76 (6th Cir. 2013). Yet absent bad faith, we decline to impose sanctions against this trial attorney whose legal argument on appellate procedure—though flawed—might conceivably be characterized as that of a reasonably zealous advocate. Cf. Mys, 736 F. App’x at 117-18 (“Section 1927’s purpose is to `deter dilatory litigation practices and to punish aggressive tactics that far exceed zealous advocacy.'”) (quoting Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006)). In our view, sanctions should generally be reserved only for “truly egregious cases of misconduct.” Williams, 815 F. App’x at 846 (quoting Ridder, 109 F.3d at 299).