Commercial Litigation and Arbitration

§ 1927 Sanctions Imposable for Flippant, Condescending, Unproofread Briefs That Mischaracterize Evidence and Contain Baseless Arguments and Allegations

Greer v. Richardson Independent School Dist., 2012 U.S. App. LEXIS 11990 (5th Cir. June 13, 2012):

On November 24, 2010, RISD moved for attorneys' fees pursuant to Federal Rule of Civil Procedure 54 and 28 U.S.C. § 1927, and it filed an Amended Motion for Attorney Fees on February 17, 2011. RISD sought the recovery of fees incurred as a result of the alleged vexatious and unreasonable conduct by Plaintiff's counsel in its Third Motion for Summary Judgment, Response to Defendant's Motion for Summary Judgment, Motion to Strike Undue Burden Defense and for Sanctions, Request for Findings of Fact on Undue Burden Defense, and Motion to Deny Costs. RISD also sought recovery of attorneys' fees incurred in preparing and filing its Motion for Attorney Fees. The magistrate judge recommended that the district court grant RISD's motion and award attorneys' fees under 28 U.S.C. § 1927 in the amount of $34,958, and paralegal fees in the amount of $5,572.50, payable jointly and severally by Greer's counsel, Palmer D. Bailey and Kenneth D. Carden. On August 11, 2011, the district court awarded RISD $25,723 in attorneys' fees and $2,162.50 in paralegal fees, accepting the findings and conclusions of the magistrate judge in part, but declining to award fees related to Greer's Request for Findings of Fact on Undue Burden Defense and RISD's Motion for Attorney Fees. Greer timely appealed. ***

Greer's attorneys contend that there was never a finding of bad faith, improper motive, or reckless disregard of the duty owed to the court. Her counsel asserts that it "was, in effect, sanctioned for the manner in which it argued its summary judgment briefs and the language and arguments it made." Greer's attorneys stress that, in recommending that the district court award attorneys' fees to RISD, the magistrate judge highlighted statements the district court made regarding the "paucity of citations" in Greer's lengthy summary judgment briefing, the "use of informal language that seesaws between flippancy and condescension," and the court's observation that the brief was "obviously not proofread."

Footnote 3. In full, the district court stated:

The Court observes the paucity of citations to the law in the fifty pages of Plaintiff's summary judgment brief, and further notes with disapproval the use of informal language that seesaws between flippancy and condescension. Sentences such as "Did you see that?" and "Think about it" are neither an acceptable nor appropriate way to address the Court. See Plaintiff's Brief in Support of Motion for Summary Judgment at 9, 14. It is also highly inappropriate for Plaintiff's counsel, Mr. Bailey and Mr. Carden, to have filed a brief that was obviously not proofread and thus contains internal notations to counsel such as "Cite case here." Id. at 48.

According to Greer's counsel, such statements cannot be the basis for imposing sanctions under § 1927 because "sanctions may not be imposed for mere negligence on the part of counsel." 4 Baulch v. Johns, 70 F.3d 813, 817 (5th Cir. 1995). However, the magistrate judge in this case found that the manner in which Greer's counsel asserted its arguments reflected a reckless disregard for its duty to the court. Further, "[w]e have in the past upheld awards based in part on 'the irresponsible manner in which the litigation was conducted [which] further multiplied the[] . . . proceedings.'" Browning, 931 F.2d at 345 (first alteration in original) (quoting Lewis v. Brown & Root, Inc., 711 F.2d 1287, 1292 (5th Cir. 1983)).

Moreover, Greer's counsel fails to give weight to significant portions of the magistrate judge's findings and conclusions. The magistrate judge noted that the district court had "thoroughly documented a number of the problems with Plaintiff's counsel[']s[] conduct in this case" and set out in detail additional conduct that it found to be unreasonable and vexatious, including the mischaracterization of witness testimony, the failure to cite the record accurately, and the persistent assertion of baseless arguments. ***

With regard to Greer's Third Motion for Summary Judgment, the magistrate judge detailed Greer's counsel's mischaracterization of witness testimony, as well as the assertion of baseless arguments regarding the standard for accessibility and unsupportable accusations against RISD and its counsel. In particular, Greer's counsel repeatedly argued that RISD's expert witness, Michael Longanecker, testified that the Berkner B stadium was not accessible. However, the district court found that "[t]his characterization is misleading at worst; at best, it consistently confuses the different standards that apply to new/altered and existing facilities." The district court further noted that its review of Greer's Third Motion for Summary Judgment "as to the newly renovated portions [of the Berkner B stadium] was severely hampered by Greer's repeated failures to accurately cite the record." In recommending an award of attorneys' fees, the magistrate judge found that "Defendant was required to expend extensive attorney and paralegal time clarifying the record for the District Court."

The magistrate judge also concluded that the arguments Greer's counsel asserted and reiterated regarding accessibility standards were baseless. Under Title II of the ADA, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The accessibility requirements for existing facilities, such as the Berkner B stadium, are more relaxed under the ADA than those for new structures. *** "When considering ADA compliance for such existing structures, the touchstone is . . . not the facility's technical compliance with the ADAAG, but is instead 'program accessibility.'" *** In the case of existing facilities, a public entity must "operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities." *** Nonetheless, Greer "insist[ed] throughout the litigation to apply a strict, technical definition of 'accessible' as defined in the ADAAG to mean compliance with the ADAAG standards." Greer, 2012 WL 833367, at *5 n.5. However, as this court found, Greer improperly "conflate[d] . . . facility deviations from ADAAG standards, which are applicable to newly constructed or modified facilities, with RISD's obligation to provide program access at an existing facility" and, in effect, "attempt[ed] to completely nullify the 'program access' standard." Id. at *5. The magistrate judge in this case found that Greer's argument regarding the standard for accessibility was "[w]ithout legal or factual justification."

Not only did Greer's counsel misstate the applicable legal standards for accessibility, it accused RISD of fabricating a new standard for accessibility and misleading the court by using a definition of accessible that differed from that in the ADAAG. The district court, however, found that RISD had advanced the correct legal standard for assessing the accessibility of existing facilities, and in recommending sanctions against Greer's counsel, the magistrate judge characterized Greer's accusations as "attempt[s] to misdirect the Court." Moreover, Greer's counsel's arguments took a form that the magistrate judge characterized as "wrongful accusation[s]" and "attack[s]," including allegations that RISD's counsel had "misled th[e] court" and "wast[ed] literally hundreds and hundreds of hours of [Plaintiff's counsel's] legal time briefing this case in order to expose this complete fabrication about what [Defendant] means by 'accessible.'"***

After the district court explicitly found that RISD asserted its undue burden defense in good faith, Greer reiterated the argument that RISD was asserting the defense in bad faith in her Motion to Deny Costs. In denying Greer's motion, the district court noted its consistent rejection of Greer's arguments regarding RISD's undue burden defense and stated that "Plaintiff has not only failed to show good cause for the Court to deny costs . . . but she has also brought a frivolous motion . . . [and] unreasonably multiplied the proceedings."

In light of the magistrate judge's findings described above and adopted by the district court, as well as our review of the record and relevant pleadings, we conclude that the district court did not abuse its discretion in awarding attorneys' fees to RISD under § 1927. Greer's counsel challenges the amount of the fees awarded and contends that the district court did not properly limit the award to those fees caused by any vexatious and unreasonable conduct. The magistrate judge found that RISD had incurred a total of $206,004.25 in attorneys' fees and $29,355.00 in paralegal fees in defending against Greer's claims, amounts well in excess of those awarded. In addition, the magistrate judge expressly found that the fees sought by RISD were only the portion attributable the unreasonable and vexatious conduct of Greer's counsel. We conclude that the district court did not abuse its discretion by declining to segregate fees further.

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