Category: Section 1927 Sanctions

Court Awards 9,000,000 for filing and refusing to drop hundreds of frivolous lawsuits


This is a decision awarding in excess of $9,000,000 in sanctions against two law firms that filed 1250 frivolous “Engle Progeny” product liability actions. Engle Progeny cases are injury lawsuits against tobacco companies. The sanctions were awarded pursuant to Rule 11 and 28 U.S.C. Section 1927.

The first award was of Rule 11 sanctions for 588 complaints filed for litigants who were deceased. The explanation:

The complaints filed in the 588 Actions were objectively frivolous. As the Eleventh Circuit observed, “any lawyer worth his salt knows [that] a dead person cannot maintain a personal injury claim.” In re Engle Cases, 767 F.3d at 1086-87. The complaints listing the 588 Pre-Deceased Plaintiffs alleged only a personal injury action— using the present or future tense in referring to the “Smoking Plaintiffs,” and asserting that they “have and will suffer” as a result of their disease. (E.g., Edwin Moody et al. v. R.J. Reynolds Tobacco Co., Case No. 3:08-cv-155-J-32HTS, Doc. 2, Complaint at ¶ 1.10). Nowhere did the complaints suggest that the smoker had died, and nowhere did they assert an alternative wrongful death or survival action. To the contrary, the concluding allegation in each complaint stated that each plaintiff’s injuries “are permanent and continuing and as such will be suffered into the future.” (E.g., id. at ¶ 11.1). These allegations were demonstrably false.

The complaints in the 588 Actions were also frivolous because Counsel lacked authorization to file or maintain them. “Perhaps the most basic factual contentions implicit in a complaint are that the plaintiff consents to the filing of suit and prays for the relief requested.” In re Deep Vein Thrombosis, No. MDL-04-1606 VRW, 2008 WL 2568269, at *1 (N.D. Cal. Jun. 24, 2008). The dead plaintiffs obviously could not have authorized Counsel to bring lawsuits on their behalf. Nor did Counsel have authorization from the Pre-Deceased Plaintiffs’ estates or their survivors because Counsel pled the complaints as personal injury actions on behalf of the Pre-Deceased Plaintiffs themselves. Therefore, “the most basic factual contention implicit” in the 588 personal injury complaints, i.e., that the plaintiff authorized and prayed for the relief requested, was untrue.

The court also awarded Section 1927 Sanctions for claims from nonsmokers and plaintiffs who did not live in Florida.

In the cases discussed below, the Court determines that Counsel multiplied the proceedings unreasonably and vexatiously by maintaining frivolous complaints in bad faith. Between 2011 and 2013, the Court learned that Counsel had filed dozens of Frivolous Actions (in addition to the 588 Actions). Counsel brought these Frivolous Actions without authorization or on behalf of non-smokers, people who never lived in Florida, and plaintiffs with previously adjudicated claims. The fatal defects in these actions surfaced not through voluntary disclosures from Counsel, but through alerts from Defendants, the hard work of the Temporary Special Master, and from the returned Court Questionnaires. Before the Court Questionnaire process, Counsel vigorously opposed any suggestion that someone should interview or question the plaintiffs. Counsel’s intransigence forced the Court to order Wilner to mail the Court Questionnaires to 2,661 plaintiffs and to have the Temporary Special Master review the results. The questionnaire process was time-consuming but necessary. It accomplished what Counsel would not: the identification of hundreds of frivolous cases, and the segregation of viable from non-viable claims.

In some of these cases, Counsel knew or must have known that a fundamental defect existed. As to others, Counsel acted with reckless indifference. Counsel insisted on maintaining cases without having bothered to obtain the plaintiff’s authorization, without having any basis for asserting that the plaintiff was even a smoker, and without knowing whether the alleged smoker ever lived in Florida (as required by Engle III). Moreover, Counsel’s resistance to the questionnaires and false assurances appeared calculated to prevent the discovery of such frivolous cases. At the very least, counsel’s behavior “grossly deviate[d] from reasonable conduct.” Amlong, 500 F.3d at 1240.

Counsel’s actions demonstrated a pattern of obfuscation and deception, which frustrated the Court’s efforts to rid the Engle Docket of frivolous cases and to promptly and fairly resolve the cases that had merit. Counsel’s maintenance of frivolous suits forced the Court to expend valuable resources—in terms of time, money, and manpower—to cope with the swollen Engle Docket. It also delayed the resolution of meritorious claims. As a result, sanctions are appropriate for the “excess costs” and “expenses . . . incurred because of [counsel’s] conduct.” 28 U.S.C. § 1927.

The court awarded a total of $9,164,404.12 against the two law firms that maintained the frivolous lawsuits.

Source: IN RE ENGLE CASES, Dist. Court, MD Florida 2017 – Google Scholar

Losing Your Case Is Not Enough To Be Sanctioned Under Section 1927


This case illustrates an obvious principle – winning is not enough to obtain Section 1927 sanctions. Even getting a complaint dismissed is not enough to get Section 1927 sanctions.

The plaintiff brought a consumer fraud claim and lost. As the court put it, that was not enough to merit sanctions:

Here, the Court disagrees with defendant’s assessment that plaintiffs’ conduct in this litigation amounted to bad faith or that plaintiffs pursued vexatious and frivolous claims. The Court in this instance disagreed with plaintiffs on whether plaintiffs stated viable claims under the ICFA and the MMP. Simply bringing a losing case does not warrant a fee award to the prevailing defendant. Despite the unsuccessfulness of plaintiffs’ lawsuit, the Court cannot find that it was brought in bad faith or that plaintiffs pursued vexatious or frivolous claims. Thus, the Court finds that an award of attorney’s fees is not warranted under the circumstances of this case.

Source: Haywood v. MASSAGE ENVY FRANCHISING, LLC, Dist. Court, SD Illinois 2017 – Google Scholar

 

Plaintiff Fails To Recognize Complaint Is Time-Barred – Section 1927 Sanctions Awarded


Source: Carter v. HICKORY HEALTHCARE INC., Dist. Court, ND Ohio 2017 – Google Scholar

The plaintiff filed a case under the Americans With Disabilities Act, 42 USC Section 12101. The case was time-barred because the complaint was filed more than 90 days after the right to sue letter was received. The court awarded Section 1927 sanctions because Plaintiff’s counsel persisted long after it was clear that the case was time-barred.

This is a second decision of the court that explains the rationale for the sanctions.

Defendant Denies Involvement In Death of Joan Romain – But Sanctions Are Denied


This lawsuit relates to a suspicious death in Michigan – the death of Joan Matouk Romain. Did she commit suicide or was she murdered? There are two versions of the events.

Ms. Romain’s estate sued a number of individuals who were allegedly involved in her wrongful death, including Timothy Matouk. Matouk moved for sanctions on the ground that his cell phone records and work records show that he was elsewhere when Ms. Romain disappeared. He argued that the plaintiffs had sufficient information that should have led them to remove him from the case because he had no involvement in the wrongful death.

The District Court denied the motion because a witness in the lawsuit has testified that he saw Matouk near the crime scene. Therefore, sanctions under Rule 11 and Section 1927 were denied. The court found an issue of fact and explained it in this fashion:

Matouk and two other individuals may have testified that Matouk was working on a multi-jurisdiction task force in Warren the evening Romain disappeared. Nevertheless, Matouk has not pointed this Court to specific testimony representing that he was elsewhere when Hawk claims to have seen him in Grosse Pointe Farms or accounting for his whereabouts at any specific time. In any event, whether to believe Hawk versus another individual who may testify that Matouk was elsewhere raises a credibly question for a jury. It is not a question for this Court to resolve here and the fact that a question exists suggests that there is no basis for sanctions.

Source: ESTATE OF ROMAIN v. City of Grosse Pointe Farms, Dist. Court, ED Michigan 2017 – Google Scholar

Ninth Circuit Awards Fees Under Appellate Rule 38 and Section 1927


Rule 38 allows a court to award sanctions for a frivolous appeal. In this case, the Ninth Circuit ordered the plaintiff and his attorney to pay the legal fees the defendants incurred in defending what it found to be a frivolous appeal. The court held that Rule 38 allows the court to award “just damages” for a frivolous appeal. Rule 38 does not allow a court to award the fees incurred in preparing the motion for sanctions or in preparing the attorney affidavits required to obtain sanctions.

The explanation:

The award of fees and costs under Rule 38 thus must be limited to appellees’ direct fees and costs for defending against the frivolous appeal, and may not include the fees and costs incurred regarding the imposition of sanctions. See Cooter & Gell, 496 U.S. at 406-07; Sunbelt, 608 F.3d at 466-67 & n.4; Lyddon, 996 F.2d at 214; Lockary, 974 F.2d at 1178; see also Haeger, 813 F.3d at 1242, 1254(affirming award of attorneys’ fees and costs incurred after a misleading discovery response as a sanction under court’s inherent power to compensate party for losses sustained as a result of misconduct).

However, the Ninth Circuit also awarded fees against the attorney under 28 USC Section 1927, under which the court may sanction an attorney who vexatiously multiplies the proceedings. Under 1927 the Ninth Circuit awarded the legal fees for preparing the sanctions motions and attorney bills that it could not award under Rule 38.

In sum, this case is unusual because it awarded fees and sanctions under Rule 38 and 28 USC § 1927. The ruling allowed the defendants to recover almost all of their costs in defending the appeal and in seeking sanctions and proving up attorney fees.

Source: BLIXSETH v. YELLOWSTONE MOUNTAIN CLUB, LLC, Court of Appeals, 9th Circuit 2017 – Google Scholar

Federal Judge Awards Further Sanctions For Wrongful Conduct in Defending the Sanctions Motions


This is a case arising under 28 USC § 1927, which allows a federal court to award legal fees against an attorney who “multiplies the proceedings.” In this ill-founded RICO lawsuit against BMO Harris Bank, the court awarded sanctions against three law firms. What makes the case interesting is that the court awarded further sanctions for their conduct in defending against the sanctions motion itself. The underlying wrongful conduct was the failure of the lawyers to disclose an arbitration agreement that apparently barred them from proceeding in federal court and required them to file in arbitration.

The court explains:

After providing Nguyen the Rule 11 “safe harbor” period, Wells Fargo filed the Sanctions Motion [Doc. # 9]. Wells Fargo argues that Nguyen violated Rule 11 by filing the Fourth Lawsuit, in which she assisted Khan to assert claims Nguyen knew previously had been dismissed with prejudice in the First and Third Lawsuits. Nguyen responds that she did not violate “the Federal Rules of Civil Procedure” because: Khan’s complaint filed in the First Lawsuit was not groundless; Khan’s attorney in the First Lawsuit did not explain the significance of a non-suit with prejudice to Khan; Khan was unaware that her attorney had filed a non-suit with prejudice; and counsel for Wells Fargo bullied Khan’s attorneys, including Nguyen.[10]

Nguyen’s arguments are meritless. In filing the Fourth Lawsuit, Nguyen ignored two prior dismissals with prejudice of the very claims asserted in this case. The doctrine of res judicata precludes multiple lawsuits on the same causes of action. See United States v. Davenport, 484 F.3d 321, 325-26 (5th Cir. 2007). Under the doctrine, “a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Id. at 326 (quoting Montana v. United States, 440 U.S. 147, 153 (1979)). The Fifth Circuit determines whether two suits involve the same claim or cause of action by applying the transactional test of the Restatement (Second) of Judgments, § 24, which turns on “whether the two cases under consideration are based on `the same nucleus of operative facts.” Id. at 326 (quoting In re Southmark Corp., 163 F.3d 925, 934 (5th Cir. 1999)). Independent of any argument Nguyen may assert regarding the effect of the non-suit with prejudice of the First Lawsuit, it is undisputed that Nguyen was counsel in the Third Lawsuit, which was dismissed with prejudice on April 2, 2015, just months before Nguyen filed the Fourth Lawsuit, and which created a final judgment with respect to the claims presented in the Fourth Lawsuit. Moreover, the Petition in the Third Lawsuit alleged that the First Lawsuit had also been dismissed with prejudice. Nguyen, who filed both the Third and Fourth Lawsuits, knew or should have known the basic legal tenets of res judicata. Nevertheless, she ignored the dismissal of the Third Lawsuit.

Nguyen also has delayed resolution of the issues regarding foreclosure on the deed of trust on the Property by repeatedly filing bankruptcies on behalf of Khan without completing the reorganization or discharge process. Together with her disregard of res judicata, this course of conduct suggests an egregious pattern of harassment and purposeful unwarranted delay. See Hall v. Chase Home Fin., LLC, No. A-10-CA-206-SS, 2010 WL 2732404, at *1 (W.D. Tex. July 8, 2010) (imposing sanctions on plaintiff under Federal Rule of Civil Procedure 11 because filing of the case, which was barred by res judicata, “is clearly intended to harass the opposing parties and delay the inevitable foreclosure of property in question.”) There simply was no excuse for Nguyen’s pursuit of Khan’s duplicative and barred causes of action. Nguyen’s conduct violated Federal Rule of Civil Procedure 11 and merits the sanctions sought by Wells Fargo.

Finally, a significant financial sanction is appropriate to emphasize the seriousness of the misconduct and to deter future misconduct. See Doc. 264 at 58-59; Norelus, 628 F.3d at 1298-99. The attorney’s fees Generations incurred as a result of the renewed motion and first appeal are relatively small in context, and, as the Court has explained, the misconduct was outrageous, aspects of the defense were shocking, and sanctioned counsel show no understanding of why their actions were inappropriate. Sanctioned counsel have emphasized their nationwide experience in large class actions, e.g., Doc. 246-1 at ¶¶ 6, 8, and sanctioned counsel and their firms have appeared in courts across the country on behalf of putative class members.[4] Given the brazen nature of their original misconduct, their willingness to engage in cynical gamesmanship and deliberate obfuscation, and the risk of harm to vulnerable putative class members in cases across the country from such inappropriate litigation tactics, a small financial sanction will not be an adequate deterrent.

Source: Dillon v. BMO HARRIS BANK, NA, Dist. Court, MD North Carolina 2017 – Google Scholar

New Jersey Court Refuses To Shift Fees Even Though Plaintiff’s Case Was Thin


Plaintiff brought a discrimination case against his employer after he failed a drug test and was terminated. Plaintiff brought claims under 42 USC 1981 and the New Jersey Law Against Discrimination. Defendant obtained summary judgment and then sought legal fees pursuant to 42 USC 1988 and 28 USC 1927. The court denied the fee-shifting request, even though plaintiff’s case was “thin.” The court complained that the defendant did not seek sanctions before summary judgment was granted:

Even though defendant complained to plaintiff’s counsel and to the magistrate judge about its perceived shortcomings of plaintiff’s case and counsel’s involvement, it does not appear that defendant filed any formal motions for sanctions before the magistrate judge or this Court. Federal Civil Procedure Rules 11 and 37 exist to rectify all of defendant’s concerns — at the time the concerning actions are occurring — that defendant has raised in its after-the-fact motion.

The Court acknowledges that plaintiff’s case was thin, and that plaintiff’s counsel would not have disserved his client if he advised plaintiff to voluntarily relinquish his claims prior to summary judgment.[3] The Court also acknowledges the time and expense suffered by defendant as a result of plaintiff’s ultimately unmeritorious claims against it. But the Court cannot find that the circumstances of plaintiff’s claims and counsel’s actions rise to the level that warrants the imposition of sanctions against plaintiff or his counsel.

Source: Acevedo v. FLUOR ENTERPRISES, INC., Dist. Court, D. New Jersey 2016 – Google Scholar