Category: Section 1927 Sanctions

Plaintiff Receives Stern Warning But Sanctions Are Denied


The case of Cody v. Charter Communications, LLC, No. 17-cv-7118-KMK (S.D. NY July 6, 2020) presents a common occurrence where a plaintiff brings a lawsuit (here a Title VII lawsuit against her former employer) but fails to disclose the lawsuit to her bankruptcy trustee or to the district court. (I have seen this happen several times in my career. Most people don’t understand that a lawsuit is an asset of a bankruptcy. These concepts, which are clear to lawyers, are not clear to the average person.)

Here, defendants sought sanctions pursuant to 28 U.S.C. Section 1927 and the dismissal of the action. The court allowed the plaintiff to substitute the bankruptcy trustee as plaintiff and denied the requests for sanctions with a stern warning to the plaintiff. The court was reluctant to dismiss the action because that would have harmed the bankruptcy creditors of the plaintiff.

The reasoning:

Defendant contends that Plaintiff and her counsel have effectively lied under oath because of her misrepresentations in her Bankruptcy Action, because her statements in her deposition and in her Affidavit contradict each other, and because Plaintiff and her counsel demonstrate a continued failure to correct the misrepresentations by failing to amend her Bankruptcy Petition and/or address the tension between her Affidavit and her deposition testimony. (See Def.’s Mem. in Supp. of Mot. for Sanctions 9-16.) Defendant seeks dismissal of this Action and payment of attorneys’ fees in the first instance, but otherwise, wishes the Court to preclude Plaintiff from personally recovering from this Action. (See id. at 16-17.)

Notably, the Second Circuit has clarified that Federal Rule of Civil Procedure 11 sanctions “may be imposed on both counsel and client, while § 1927 applies only to counsel. . . . Rule 11 requires only a showing of objective unreasonableness on the part of the attorney or client signing the papers, but § 1927 requires more: subjective bad faith by counsel.” United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 948 F.2d 1338, 1346 (2d Cir. 1991). Other than referring to Federal Rule 11 in one footnote in its briefing, Defendant does not appear to actually move under this Rule or proffer any arguments pursuant to it. (See Def.’s Mem. in Supp. of Mot. for Sanctions 12 n.4; Not. of Mot for Sanctions.) Accordingly, the Court must look for “a clear demonstration of bad faith in order to justify sanctions,” Int’l Bhd. of Teamsters, 948 F.2d at 1347 (citation omitted), and even if sanctions are required, they should be imposed to deter counsel’s purported misconduct, not necessarily the client’s, see id.

To begin, as discussed above, the Court sees no reason to dismiss this entire Action, even as a sanction for purported misconduct by Plaintiff’s counsel. Dismissal of the Action hurts Plaintiff’s creditors more than anyone else. It is true that in August 2019, Plaintiff testified at her deposition that she was under the impression that she would personally recover any damages obtained from this Action, (Chapman Aff. in Supp. of Mot. for Judgment on the Pleadings Ex. 1 (“Pl.’s Dep. Tr.”) 303 (Dkt. No. 62-1)), that she reviewed all her bankruptcy paperwork with her bankruptcy counsel and ensured that everything was true and accurate, (see id. at 26), and that she signed her Bankruptcy Petition after doing so, (id. at 317-18). It is also true that, in the course of the instant Motion practice, Plaintiff, through her counsel, has submitted an Affidavit, dated January 4, 2020, stating that her bankruptcy counsel had advised her that she did not need to review a “bunch of” “minor” “legal stuff” in her Bankruptcy Petition, and that, as a result, she “inadvertently overlooked the question regarding `pending law[]suits’.” (Pl.’s Aff. in Opp’n to Mot. for Judgment on the Pleadings ¶ 4.) Plaintiff further affirms that, at her appearance in bankruptcy court in June 2019, she was informed by her bankruptcy counsel that she only needed to disclose the existence of this Action if she was “asked the question,” which Plaintiff claims Trustee never did. (Id. ¶¶ 5-7.) Plaintiff claims that her omission of this Action from her Bankruptcy Petition was inadvertent and she simply relied on “inaccurate information” from her bankruptcy counsel because she did not “have a lot of experience in or understand the legal system,” or, at least, not enough to realize that she should have voluntarily provided this information at her appearance in bankruptcy court. (Id. ¶ 10.)

Obvious tension exists between Plaintiff’s sworn testimony that she carefully reviewed every aspect of her Bankruptcy Petition for accuracy before filing it, (see Pl.’s Dep. Tr. 26, 317-18), and that Plaintiff simply cursorily reviewed her paperwork at the advice of her bankruptcy counsel, (see Pl.’s Aff. in Opp’n to Mot. for Judgment on the Pleadings ¶ 4). But inconsistency does not necessarily prove that Plaintiff’s counsel has submitted an Affidavit that he “kn[ows] to be false.” (Def.’s Mem. in Supp. of Mot. for Sanctions 12.) Nor does it constitute an “action[]. . . so completely without merit as to require the conclusion that [it] must have been undertaken for some improper purpose such as delay.” In re Khan, 488 B.R. 515, 529 (Bankr. E.D.N.Y. 2013) (citations and quotation marks omitted), aff’d sub nom. Dahiya v. Kramer, 2014 WL 1278131 (E.D.N.Y. Mar. 27, 2014), aff’d sub nom. In re Khan, 593 F. App’x 83 (2d Cir. 2015). It is, of course, possible that Plaintiff gave the answer she thought she was obligated to give in a deposition and, following motion practice on the instant issues, it became necessary for Plaintiff and her counsel to reveal to the Court that Plaintiff actually did not review her bankruptcy materials as diligently as she should have. Although this may constitute a serious error that Plaintiff’s counsel should avoid in the future, the Court is not convinced that Defendant has presented a “clear showing” that Plaintiff’s counsel acted in bad faith or “completely without merit.” Id. at 529 (citations and quotation marks omitted). Defendant’s cited cases are largely inapplicable because they refer to different sanctioning mechanisms and standards and/or describe far more egregiously deceitful or dilatory behavior. See, e.g., Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1067-68 (2d Cir. 1979) (imposing sanctions under Federal Rule 37 where the plaintiff’s counsel simply refused to engage in discovery requests and had “frozen [the] litigation in the discovery phase for nearly four years”); Joint Stock Co. Channel One Russ. Worldwide v. Infomir LLC, No. 16-CV-1318, 2017 WL 3671036, at *2, *31-32 (S.D.N.Y. July 18, 2017) (concluding that Rule 11 sanctions were warranted where counsel argued that his client did not have “sufficient contact with the United States or the State of New York” to come within the jurisdiction of the court but, inter alia, failed to reveal that the client’s website listed a New York address as an “authorized dealer” and that his own attorney’s fees were paid by check from a New York representative of his client), adopted by 2017 WL 4712639 (S.D.N.Y. Sept. 28, 2017); Jimenez v. City of New York, 166 F. Supp. 3d 426, 431 (S.D.N.Y. 2016) (upholding decision to sanction the plaintiff’s counsel under Federal Rule 56(h) where counsel had “attempted to suppress[]various medical records,” and had submitted an affidavit that was “more than just objectively unreasonable, [but also] absolutely fanciful”), aff’d in relevant part by 666 F. App’x 39 (2d Cir. 2016). Therefore, the Court sees no need to further sanction Plaintiff’s counsel under § 1927 at this point in the litigation.

The Court warns Plaintiff that when she provides statements under penalty of perjury, whether through testimony, forms, affidavits, or any other judicial filing, she will be held liable for those words. Even though laypeople may feel intimidated by legal proceedings, they must still diligently review the accuracy of all their judicial submissions. But, to the extent Defendant seeks sanctions beyond barring Plaintiff from prosecuting and benefiting from this Action, the Court denies Defendant’s Motion for Sanctions without prejudice. Defendant may of course seek to file a motion for sanctions again if any misconduct continues. However, given that Trustee is now prosecuting this Action and Plaintiff has been warned about the importance of being fully transparent and forthcoming in all her legal proceedings, the Court anticipates that this will not be the case.

Should you have a question about federal procedure or your rights, do not hesitate to contact us. We can often be of help.

http://www.clintonlaw.net

An Unusual Decision – Misstatements In A Rule 37 Sanctions Motion Not Subject to Sanctions


The case is Lee v. Horton, 2-17-cv-2766 (Western District of Tennessee December 4, 2018). What makes this opinion unusual and worth reading is that the court concluded that certain misstatements in a motion for sanctions were not themselves subject to sanctions. Lee was injured in an accident. She sued Horton, a truck driver, and Kroger. Lee filed a motion to sanctions under Rule 37 in which she alleged that Kroger had destroyed the electronic logs of the Kroger truck. Lee’s motion for Rule 37 sanctions was denied. Lee’s counsel apparently clarified the factual allegations in a court hearing and admitted that some of them were, in fact, inaccurate.

The defendants then filed their own Rule 11 motion alleging that Lee had made numerous false statements in the Motion for Rule 37 sanctions. That motion was denied by the Magistrate Judge. The Defendants then appealed to the District Judge who adopted the Magistrate’s findings. No sanctions were issued.

The District Court agreed that Rule 11 did not apply:

The Magistrate Judge found that Lee’s statements were made in a Rule 37(e) motion for spoliation sanctions and were therefore outside the scope of Rule 11. See Fed. R. Civ. Pro. 11(d). (Supplemental Report and Recommendation, ECF No. 104 at 1382-84.) Rule 11 “does not apply to . . . motions under Rules 26 through 37.” Fed. R. Civ. Pro. 11(d). Defendants have not objected to this finding, and the Court therefore reviews it for clear error. Fed. R. Civ. P. 72(b) advisory committee notes.

Defendants have argued that “Plaintiff’s original Motion for Sanctions is nothing more than a defamatory narrative seeking a summary judgment as to compensatory and punitive damages.” (ECF No. 49-1 at 573.) The Court does not agree. Lee’s Motion explicitly seeks relief for alleged spoliation. (P.’s Mot. Sanctions, ECF No. 34 at 282 (“Lee prays for the following: (a) Sanctions against Kroger and Horton, jointly and severally, for intentional destruction of material evidence.”).) While Lee also asked for “summary judgment” as a sanction, (P.’s Mot. Sanctions, ECF No. 34 at 282) Rule 37(e)(2)(c) establishes default judgment as a possible penalty for intentional spoliation. The Court concurs with the Magistrate Judge’s finding that Lee’s statements were contained in a motion for sanctions brought pursuant to Rule 37(e), rather than Rule 56. The Court finds that Lee’s Motion for Sanctions is therefore outside the scope of Rule 11. Fed. R. Civ. Pro. 11(d).

In their Reply in support of their Motion, Defendants have also argued that “the crux of Defendants’ Motion for Sanctions is targeting Plaintiff’s counsel’s misrepresentations and conduct unrelated to any underlying discovery dispute.” (ECF No. 49-1 at 573-74.) The Court notes that Defendants’ original Motion for Sanctions, by its plain text, does seek sanctions for conduct related to an underlying discovery dispute. “Plaintiff’s Motion for Sanctions makes numerous factual contentions that have zero evidentiary support.” (Id. at 495.) “Plaintiff’s Motion for Sanctions makes numerous legal contentions in direct contrast to the authority provided.” (Id. at 497.) “Plaintiff’s Motion for Sanctions is presented to harass, cause unnecessary delay, and to needlessly increase the cost of litigation.” (Id. at 498.) Almost all of the specific statements cited by Defendants as inaccuracies were made in the Motion for Sanctions. (See generally Id., see also P.’s Mot Sanctions ECF No. 34.) The Court concurs with the Magistrate Judge that Defendants’ Motion for Sanctions is outside the scope of Rule 11(b). (Supplemental Report and Recommendation, ECF No. 104 at 1384.)

Even if the Rule 11(d) exception for discovery-related “motions” does not include the factual and legal contentions contained within those motions, the Magistrate Judge concluded that Lee’s representations during an August 21, 2018 hearing clarified any previous inaccuracies. (Supp. Report and Recommendation, ECF No. 104 at 1384-85.) Defendants have not objected to the Magistrate Judge’s conclusion regarding the hearing. The Magistrate Judge determined that additional deterrence was unnecessary when viewing Lee’s conduct as a whole. (Supp. Report and Recommendation, ECF No. 104 at 1384-85.) The Court has broad powers to impose sanctions, so long as they are “limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.” Fed. R. Civ. Pro. 11(c)(4). The Court finds that it was not clearly erroneous for the Magistrate Judge to conclude based on subsequent clarifications that Lee’s conduct does not warrant sanctions.

28 U.S.C. 1927 did not apply either.

The Magistrate Judge previously found that Lee’s allegation that Defendants falsified trip sheets lacked evidentiary support. (ECF No. 61 at 694; Def.’s Obj. Report and Recommendation, ECF No. 93 at 1070.) Defendants specifically object that advancing a contention for which there is no evidence should be sanctionable under 28 U.S.C. § 1927. (Def.’s Obj. Report and Recommendation, ECF No. 93 at 1070.) The Court notes that Lee’s allegation of falsification does not appear in her Motion for Sanctions or her Reply. (See ECF Nos. 34, 37.) Neither the Magistrate Judge nor Defendants provide a specific citation for where this allegation was made in any filing. (See ECF No. 61 at 694; Def.’s Obj. Report and Recommendation, ECF No. 93 at 1070.) The record instead suggests that this argument was made in oral argument before the Magistrate Judge on August 21, 2018. (See ECF No. 46.) To be clear, a lawyer should not make statements in Court that lack evidentiary support. On a review of the record, however, the Court considers this argument to be a last-ditch effort that was dismissed out of hand rather than a multiplication of proceedings. While certainly indicative of a lack of care or knowledge, the Court does not find that this rises to a sanctionable level under 28 U.S.C. § 1927, given its limited impact.

The Court next considers whether the legal arguments contained within Lee’s Motion for Sanctions are sanctionable under 28 U.S.C. § 1927. Having reviewed the cases and federal regulations at issue, the Court finds that, while Lee’s arguments were incorrect, such misreadings are attributable to incompetence or negligence. The Court also notes that Defendants’ claim that such misrepresentations are “continuous” appears to be incorrect. Defendants only cite one motion in support of this argument, (Defs.’ Mot. Sanctions, ECF No. 40 at 497-98) and do not object to the Magistrate Judge’s finding that Lee’s counsel made significant clarifications at a subsequent hearing. (Supplemental Report and Recommendation, ECF No. 104 at 1385.) Court concurs with the Magistrate Judge that Lee’s legal arguments were wrong, but not frivolous. (See generally id. (finding under Rule 11 that “Lee’s counsel’s misinterpretation of . . . various legal arguments, while ultimately rejected by the court, do not amount to conduct that would be sanctionable.”) Given that the Defendants have not objected to the Magistrate Judge’s finding that the legal arguments in question were not sanctionable under Rule 11, and the fact that Lee’s counsel clarified Lee’s position at a subsequent motion hearing, the Court finds that these legal arguments are also not sanctionable under 28 U.S.C. §1927.

Conclusion: Lee’s lawyer was lucky here because he made misstatements on the record in an effort to obtain Rule 37 sanctions. Those statements were not accurate and, in my opinion, Lee’s lawyer was fortunate to escape some form of sanctions for this behavior. Apparently, his decision to admit he was wrong at oral argument before the Magistrate Judge saved him from sanctions.

Ed Clinton, Jr.

The Clinton Law Firm

Defamation Claim Dismissed – But Plaintiff’s Lawyers Escape Sanctions


This is a fairly typical situation in litigation. The plaintiff, Redmonds Enterprise, Inc. sued CSX Transportation, Inc. for defamation and other related tort claims. The case grew out of a vandalism incident at a CSX rail yard. Redmonds alleged that a CSX employee sent an email that defamed Redmonds by blaming Redmonds for the vandalism.  During discovery, it became apparent that the author of the email, Rick Omer, was not a CSX employee and there was apparently no evidence that he existed at all.  Furthermore, there was no evidence that anyone at CSX sent a defamatory email to anyone about Redmonds. The court granted summary judgment in favor of CSX and dismissed the case.

CSX moved for sanctions pursuant to Rule 11 and Section 1927. The district judge denied the sanctions motion. This is the key paragraph of the opinion:

While it is a close question, it is not clear that sanctions are warranted under either Rule 11 or § 1927, although the dilatory conduct of Redmonds’ non-local counsel, Mr. Jenkins, was irresponsible, to say the least. CSX argues that sanctions should be imposed because Redmonds refused to dismiss the case after the Orner email was not uncovered during discovery. But, there is no evidence to suggest Redmonds did not have a colorable basis for filing its complaint initially. Redmonds had experienced a decline in business, and had been told this decline was attributable to a defamatory email from a CSX employee. Refusal to dismiss the complaint after discovery is not a basis for Rule 11 sanctions. See Brubaker, 943 F.2d at 1381Simpson, 900 F.2d at 36-37. After conducting discovery, Redmonds moved to amend its complaint to reflect new evidence uncovered during discovery. Although untimely and ultimately unsuccessful, filing this motion was not entirely baseless, nor an unreasonable multiplication of this proceeding under § 1927. The conduct of Redmonds’ counsel was not as “unreasonable[] and vexatious[]” as the attorney in Salvin, who continued proceedings after his own client’s deposition revealed that there was no basis to her claims, and indeed supported his opposition to the motion for summary judgment with an affidavit in which his client contradicted her own deposition testimony. See Salvin v. American Nat. Ins. Co.,281 Fed.Appx. 222, 225-26 (4th Cir. 2016).[5] The delay in seeking leave to amend after it became clear the Orner email could not be found was irresponsible and, as explained above, was sufficient reason to deny the motion to amend. But the court cannot say it amounted to the bad faith that is required to support sanctions under § 1927. The motion for sanctions will be denied.

This is a very typical situation in a plaintiff’s case. The plaintiff believes he or she was wronged but the lawyer is unable to prove the allegations. The lawyer had a good faith basis for filing the case but the case was ultimately dismissed for a lack of proof.

Redmonds Enterprise, Inc. v. CSX Transportation D. Maryland

1927 Sanctions awarded for false allegations


The case is Phillips v. FirstBank Puerto Rico, 13-105. The plaintiff alleged that her signature was forged on a mortgage note in 2003 and that the forgery was concealed from her. She also alleged that the mortgage was refinanced in 2009. She claimed that she learned of the forged 2003 signature only in 2009.

The court concluded that the statute of limitations had run on the claims. Worse still, the plaintiff testified at her deposition that her signature was genuine. The court awarded Section 1927 sanctions to the Defendant in the amount of $10,000. The explanation:

Throughout this litigation, Plaintiff’s Counsel has sidestepped dispositive issues and backtracked on verifiable factual matters in an effort to prolong the Court’s review of time-barred claims. In the original Complaint, Annette alleged that her signature was forged on the mortgage refinancing documents. (Compl. ¶¶ 9-10 (“[Annette] had no knowledge of the refinancing although her name and signature appeared on the application documents. . . . [T]he name and signature were not hers and must have been forged.”).) Despite her own and Counsel’s earlier protestations (see, e.g., Compl. ¶¶ 7-12; Tr. 31:5-6, ECF Nos. 70, 102-1 (“May 2, 2017 Tr.”) (“[T]he mortgage 2003, that is the document that is fraudulent.”)), in her deposition, Annette clarified that her authentic signature did appear on the documents. (Annette R.J. Phillips Dep. 62:22-66:8.)[4]

Based on Annette’s own sworn admissions, it has become clear to the Court that Annette’s signatures were authentic and, thus, the basis for the Complaint, and the arguments presented to the Court on May 2, 2017 in an attempt to overcome judgment on the pleadings, were untruthful. The efforts of Plaintiff and Plaintiff’s Counsel to conceal critical facts from the Court sufficiently establish bad faith. Notably, the 2003 refinancing documents which the Court reviewed and relied on at summary judgment, though presented for the Court’s review by Defendants (seeDef.’s Exs. H-K, ECF Nos. 73-8-73-11), appeared in Plaintiffs’ initial Rule 26 disclosures filed in July 2014 (see, e.g., ECF No. 31 at 2-3). As far as the Court can discern, for years Plaintiff has possessed documents which she knew reflected her authentic signature and confirmed her presence at the 2003 mortgage closing. Yet Plaintiff’s Counsel represented to the Court that the signatures were forged (May 2, 2017 Tr. 31:5-6); or that Annette was ill and medicated and could not remember appearing at the closing or signing the documents;[5] or that Annette was duped into signing these documents; or that “her mother used a pretext to get her to the bank and she ended up signing a refinancing of the mortgage” (Pl.’s Opp’n to Def.’s Mot. Fees and Costs at 1). This revolving-door defense and after-the-fact reframing of Plaintiff’s Complaint is a disingenuous and vexatious cover for the fact that Plaintiff’s original contentions were false and made in bad faith.

This is an ugly tale of a lawyer who should have known better and told the truth immediately when he learned that the 2003 signature was genuine. The lawyer was only found out when the client refused to support the false allegations in the complaint. The link is to an article about a lawyer who fixed a mistake as quickly as he could.

Sanctions Denied Where Lawyer Takes Affirmative Steps To Amend a Nonviable Claim

Ed Clinton, Jr.

 

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