§ 1927 Sanctions Imposable Only on Lawyers, Not Law Firms — Failure to Identify Lawyer in Motion Fatal — Sixth Circuit 1927 Standards — Delay in Filing Motion Partially to Blame for Prolonging Case
Meathe v. Ret, 2013 U.S. Dist. LEXIS 166999 (E.D. Mich. Nov. 25, 2013):
As to the substantive question of whether sanctions should be imposed under §1927, the Court must consider whether a lawyer knows or reasonably should have known that the claim being pursued is frivolous. The statute requires "a showing of something less than subjective bad faith, but something more than negligence or incompetence." Hall v. Liberty Life Assurance Co. of Boston, 595 F.3d 270, 274 (6th Cir. 2010). As the Sixth Circuit has explained, "[s]imple inadvertence or negligence that frustrates the trial judge will not support a sanction under §1927." Riddle v. Egensperger, 266 F.3d 542, 553 (6th Cir. 2001) (citation omitted). Indeed:
"There must be some conduct on the part of the subject attorney that trial judges, applying the collective wisdom of their experience on the bench, could agree falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party." "A sanction is generally improper where a successful motion could have avoided any additional legal expenses by defendants.
Id. (internal citations omitted).
The Court, in denying defendants' request for a bond from plaintiffs on their appeal, observed that the defendants have not shown bad faith or vexatious conduct on the part of plaintiffs. The Court's skepticism of plaintiffs' case, while evidencing the trial judge's frustration, does not rise to the level of sanctionable conduct under § 1927. Plaintiffs' lawyers zealously advocated for plaintiffs' cause. Ultimately, plaintiffs failed to establish a genuine issue of material fact that Meathe was harmed individually rather than as a shareholder of Metro Cars, Inc. and, therefore, the claims were dismissed. However, there was no mention or argument that the very filing of plaintiffs' action was sanctionable under § 1927 until after plaintiffs filed a motion to amend. Defendants did not make any mention of sanctions in the motion for summary judgment. Thus, to the extent that plaintiffs' lawyers multiplied the proceedings, which the Court disagrees that they did, some blame must be passed on to defendants' lawyers for prolonging the proceedings before bringing the sanctions issue to the Court's attention.
Be all that as it may, defendants' request for sanctions is fatally flawed; a request for sanctions must be directed to a particular lawyer's conduct, and not directed to a party or a law firm. Here, as explained above, defendants' claim for sanctions was directed to conduct of the plaintiffs. For example, in Part V of their brief (Doc. 65, p. 13), defendants say:
Plaintiffs' vexatiously multiplicative litigation tactics began with the filing of this case. Even then, plaintiffs knew or should have known. . .[etc]
and go on in a like vein referring to conduct of plaintiffs. Defendants failed to request sanctions against any one of plaintiffs' particular lawyers.
Joseph, Sanctions: The Federal Law of Litigation Abuse, §20 (History and Purpose of §1927) says:
Section 1927 is a penal statute that was enacted to deter unnecessary delay in litigation by requiring attorneys to satisfy personally excess costs attributable to their misconduct.
It follows, then, that in order for sanctions to be awarded under § 1927, an individual lawyer must be identified as having unreasonably and vexatiously multiplied the proceedings.
This makes sense because, as the Sixth Circuit has recognized, due process requires that prior to sanctioning a lawyer, the lawyer "must be given notice and an opportunity to be heard." Cook v. Am. S.S. Co., 134 F.3d 771, 774 (6th Cir. 1998) (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980)). Defendants' failure to personally identify a lawyer that should be sanctioned in this case does not put any one of plaintiffs' lawyers on notice and is fatal to defendants' request for sanctions.
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