Commercial Litigation and Arbitration

Filing Notice of Substantively Frivolous Appeal Sanctionable under 28 U.S.C. § 1927

From Gruppo v. FedEx Freight Sys., Inc., 2008 U.S. App. LEXIS 22203 (10th Cir. Oct. 15, 2008) (unpublished):

Defendants have requested sanctions against Mr. Gruppo's counsel under 28 U.S.C. § 1927 on the grounds that this appeal is groundless and frivolous. Despite having the opportunity to respond to this request in a reply brief, counsel has not done so.... "At the appellate level the bringing of the appeal itself may be a sanctionable multiplication of proceedings," and, indeed, "[t]his appeal appears to have been frivolously and vexatiously undertaken ab initio." Braley v. Campbell, 832 F.2d 1504, 1513 (10th Cir. 1987) (en banc). Counsel's conduct of this appeal "manifests either intentional or reckless disregard of the attorney's duties to the court."... In this case, as in Herzfeld & Stern v. Blair, 769 F.2d 645, 647 (10th Cir. 1985), "[t]he many instances in which counsel's references to the record are contrary to what is found indicate that [she] has been either cavalier in regard to [her] approach to this case or bent upon misleading the court. . . . These acts have added grievously to the frivolous nature of this appeal," and we believe sanctions are not only proper but necessary. We emphasize that these sanctions are assessed solely against counsel for the appellant, "who is responsible for this case and its presentation." ... Mr. Gruppo bears no responsibility in this regard.

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