Commercial Litigation and Arbitration

§ 1927 Sanctions Imposed in Action 1 for Filing Action 2 Based on Same Occurrences, Despite the Fact that Action 2 Was Never Served and the Court Lacked Personal Jurisdiction over Certain of the Action 2 Defendants

Thurmond v. Wayne Cnty’s Sheriff Dep’t, 2014 U.S. App. LEXIS 8190 (6th Cir. April 28, 2014);

On remand, the district court re-imposed the sanction of attorney's  [*27] fees in the amount of $4,080 on Thurmond's counsel. The court based the sanction on its finding, under 28 U.S.C. § 1927, that Thurmond's counsel had engaged in contumacious conduct when he unreasonably and vexatiously multiplied proceedings. The offensive conduct consisted of counsel's January 22, 2008 filing of an "unviable and duplicate" complaint in a new action, Thurmond v. Wayne County, et al., E.D. Mich. No. 2:08-cv-10309, based on the same occurrences that are the subject of the instant action. R. 144, Order at 11-12, Page ID # 2960-61. This filing was deemed to have caused counsel for Wayne County, one of the named parties common to both actions, to incur unnecessary expenses in defending against the new action by filing a motion to dismiss and a motion for sanctions, before Thurmond's counsel finally stipulated to dismiss the complaint in December 2008. We review for abuse of discretion. Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 644 (6th Cir. 2006).

Thurmond's counsel does not contend there was any legitimate purpose for filing the new action. Rather, he contends the court lacked jurisdiction to impose the sanction and that the County's expenses  [*28] were not reasonably incurred, because the new complaint was never served on any of the defendants. Irrespective of the court's personal jurisdiction over the named defendants in the new action, the court clearly had jurisdiction, as a collateral matter, to impose a sanction under 28 U.S.C. § 1927 on an attorney appearing before it who abused the judicial process. See Red Carpet Studios, 465 F.3d at 644-45. We flatly reject the jurisdictional challenge.

Nor do we find any abuse of discretion in the imposition of the sanction. Thurmond's counsel had ignored opposing counsel's reasonable requests to voluntarily withdraw the complaint, necessitating the filing of a motion to dismiss and motion for sanctions. Thurmond's counsel had also failed, without excuse, to timely comply with the court's order to file written responses to the two motions. E.D. Mich. No. 2:08-cv-10309, R. 4, Order to Respond, Page ID # 275. He finally agreed to voluntarily dismiss the complaint only after being confronted by the district court in a hearing on December 9, 2008, eleven months after the complaint was filed. E.D. Mich. No. 2:08-cv-10309, R. 18, Hearing Tr., Page ID # 343. We find no error in the district  [*29] court's ruling that Thurmond's counsel needlessly and unreasonably multiplied proceedings. The sanction imposed is measured and not unreasonable.


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