Commercial Litigation and Arbitration

Sanctions — Standards for Award on Appeal under Fed.R.App.P. 38 and 28 U.S.C. § 1912

Bridgeport Music, Inc. v. Smith, 2013 U.S. App. LEXIS 8869 (6th Cir. May 1, 2013):

Also before this court is Plaintiffs' motion for damages and costs pursuant to Fed. R. App. P. 38 and 28 U.S.C. § 1912. Section 1912 provides that, "[w]here a judgment is affirmed by the Supreme Court or a court of appeals, the court in its discretion may adjudge to the prevailing party just damages for his delay, and single or double costs." 28 U.S.C. § 1912. Rule 38 states that "[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee." We also have discretion, pursuant to 28 U.S.C. § 1927, "to assess excess costs, expenses, and attorney fees directly against an attorney 'who so multiplies the proceedings in any case unreasonably and vexatiously.'" Waeschle v. Dragovic, 687 F.3d 292, 296 (6th Cir. 2012) (per curiam) (quoting 28 U.S.C. § 1927).

"An appeal is frivolous 'if it is obviously without merit and is prosecuted for delay, harassment, or other improper purposes.'" Vic Wertz Distrib. Co. v. Teamsters Local 1038, 898 F.2d 1136, 1143 (6th Cir.1990) (quoting Dallo v. INS, 765 F.2d 581, 589 (6th Cir.1985)). As our analysis regarding Plaintiffs' defenses attests, the appeal in this case is all of the above. The conduct of Tilmon-Jones and her counsel was objectively and patently meritless and a waste of judicial resources. Tilmon-Jones maintains that her appeal is not frivolous because the question of whether a nonparty has standing under Fed. R. Civ. P. 60(b) was not obviously without merit. This may be true, but it does not obviate the fact that her appeal was utterly without merit because it was untimely and barred by a release. We find that this appeal is frivolous and that sanctions are appropriate. See generally Allinder v. Inter-City Prods. Corp. (USA), 152 F.3d 544, 552 (6th Cir. 1998).

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