Commercial Litigation and Arbitration

Inherent Power Sanctions — No Bad Faith in Deciding to Dismiss Case, After Bad Result, for Purposes of Appellate “Panel Shopping” for Future Disputes (Good Quote)

Tex. Med. Providers Performing Abortion Servs. v. Lakey, 2013 U.S. App. LEXIS 3971 (5th Cir. Feb. 26, 2013):

Pursuant to this panel's order that all subsequent appeals in this litigation be referred to us, the State of Texas here challenges the district court's denial of its motion to recover about $60,000 in attorneys' fees from the appellee abortion providers. This panel has already upheld against the appellees the critical features of the State's new regulatory efforts concerning abortion clinics. Tex. Med. Prov. Performing Abortion Servs. v. Lakey, 667 F.3d 570, 572 (5th Cir. 2012). Finding no abuse of discretion, we affirm. ****

As we read the State's briefs, the bulk of the attorneys' fee request (about $58,000) is sought principally pursuant to the courts' inherent power to sanction willful abuses of the judicial process. See Roadway Exp., Inc. v. Piper, 447 U.S. 752, 766-67, 100 S. Ct. 2455, 2464 (1980). The abuse here alleged consists of counsel's statements that they dismissed several remaining challenges to the Texas regulations following the decision by this court precisely because of the identity of the panel that would hear future appeals. Thus, appellees could allegedly refile a case to raise the same claims and engage in "panel shopping." Yet the State accuses counsel of no bad faith, and the district court found their strategy realistic and in good faith. The short answer to this charge is that if courts treated as a willful abuse of process every self-serving statement of counsel at the expense of a judge or judges, there would be no end to sanctions motions. The voluntary dismissal of appellees' additional weak claims was allowed by the Federal Rules and was not appealed by the State in an effort to seek conditions. See Fed R. Civ. P. 41(a)(2). The State cites no similar precedent to justify the relief it seeks.

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