Commercial Litigation and Arbitration

Appeals: FRAP 38 Sanctions Apt If Appeal Is Wholly without Merit, There Is No Reasonable Expectation of Success — § 1927 Sanctions If Lawyer Reasonably Should Have Known Claim Is Frivolous

 T.V.S. v. Akron City Sch. Dist. Bd. of Educ., 2020 U.S. App. LEXIS 25457 (6th Cir. Aug. 11, 2020): ¶¶


Akron City School District Board of Education, Akron City School District, and its employees David W. James, Philomena Vincente, Ann Wild, Cheryl Arnold, Holly DeLisi, and Patricia Derita (collectively, "the School") appealed the district court's failure to rule on their motion for leave to file a motion for summary judgment on the basis of qualified immunity. After the district court indicated its intent to rule on the pending motion, we voluntarily dismissed the appeal on the School's motion. Plaintiffs T.V.S. and T.S. allege the School's appeal was frivolous and move to award attorney's fees. The School opposes the motion. [*2]  Plaintiffs reply.

We may award attorney's fees reasonably incurred because of any attorney who "unreasonably and vexatiously" multiplies the proceedings in a case. 28 U.S.C. § 1927. Additionally, "[i]f a court of appeals determines that an appeal is frivolous, it may . . . award just damages and single or double costs to the appellee." Fed. R. App. P. 38. Rule 38 sanctions are appropriate "when an appeal is 'wholly without merit' and when the appellant's 'arguments essentially had no reasonable expectation of altering the district court's judgment based on law or fact.'" B & H Med., L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 270 (6th Cir. 2008) (quoting Wilton Corp. v. Ashland Castings Corp., 188 F.3d 670, 677 (6th Cir. 1999)). Similarly, costs pursuant to § 1927 are appropriately assessed where "an attorney knows or reasonably should know that a claim pursued is frivolous." Jones v. Continental Corp., 789 F.2d 1225, 1230 (6th Cir. 1986).

We have jurisdiction to review all final decisions of the district courts. 28 U.S.C. § 1291. It is well settled that a denial of a claim on qualified immunity is a "final decision" within the meaning of § 1291 and thus, immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). Further, we have held, on numerous occasions, that a district court's failure to rule on a motion for summary judgment raising qualified immunity claims is immediately appealable. See Smith v. Leis, 407 F. App'x 918, 926 (6th Cir. 2011); Summers v. Leis, 368 F.3d 881, 886 (6th Cir. 2004); Skousen v. Brighton High Sch., 305 F.3d 520 (6th Cir. 2002).

The School timely sought leave to move for summary judgment, in accordance with the district court's [*3]  direction. The district court did not rule on the motion despite the approaching trial date. Because the School properly raised its qualified immunity defense, and we thus arguably had jurisdiction over the appeal, it was not wholly without merit or frivolous.

The motion for attorney's fees is DENIED.


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