§ 1927 Sanctions Not Precluded but Generally Inappropriate for Discovery Abuse Subject to Rule 37

From New England Surfaces v. E. I. DuPont de Nemours & Co., , 2008 U.S. Dist. LEXIS 43530 (D. Me. June 3, 2008):

Unlike the inherent power, the Supreme Court and the First Circuit have not instructed that § 1927 can only be used when the Rules do not cover the conduct. Thus, the failure to invoke the Rules when they are available does not wholly preclude consideration of § 1927 sanctions. See Northwest Bypass Group v. U.S. Army Corps of Engineers, F. Supp. 2d , 2008 U.S. Dist. LEXIS 33202, 2008 WL 1843889, at *5 (D.N.H. Apr. 22, 2008) (Woodcock, J.). But given the specificity of the Rules along with their embedded policy concerns (of which fairness and notice are two), such a failure surely must inform exercise of the court's discretion 11 under § 1927.

Citing, inter alia, Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse § 23(B)(3)(a) (4th ed. 2008) ("Section 1927 is generally considered an inappropriate tool for remedying discovery abuse that is subject to sanction under Rule 26(g) or Rule 37.").

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