Electronic Spoliation: Inherent Power—Fraud on Court Requires Clear & Convincing Evidence — Factors — Dismissal Requires Willfulness, Consideration of Less Drastic Sanctions — [No Reference to 37(e), Which Governs]

ComLab Corp. v. Tire, 815 Fed.Appx. 597 (2d Cir. 2020) (unpublished):

SUMMARY ORDER

Plaintiff-Appellant ComLab, Corp. (“ComLab”) brings this consolidated appeal challenging two judgments of the United States District Court for the Southern District of New York. The first appeal concerns a September 11, 2018 order of the district court (Forrest, J.) granting Defendants-Appellees Kal Tire and Kal Tire Mining Tire Group’s (together, “Kal Tire”) motion for sanctions, dismissing ComLab’s action against Kal Tire with prejudice, and awarding Kal Tire its reasonable attorneys’ fees and costs incurred in defending the action. The second appeal concerns a May 16, 2019 order of the district court (Castel, J.) adopting in full the report and recommendation (“R & R”) of the Magistrate Judge (Wang, Mag. J.), which set the amount of Kal Tire’s fee award at $313,138.67.

 

Both judgments arise from a breach of contract action brought by ComLab against Kal Tire, alleging that Kal Tire engaged ComLab in a 24-month agreement to update and maintain Kal Tire Mining Tire Group’s intranet portal in exchange for a monthly service fee of $20,000 (the “MyMTG Agreement”) and subsequently failed to pay numerous invoices. Kal Tire denies that a valid agreement was ever created. This appeal principally concerns a number of purported invoices that ComLab attached to its complaint as evidence of the MyMTG Agreement and Kal Tire’s breach, along with records of purported emails by which ComLab claims the invoices were transmitted to Kal Tire employees. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

I. The Spoliation Order

A. Background

ComLab attached twenty invoices to its complaint, each purporting to charge a $20,000 monthly service fee for one of the months between August 2015 and March 2017. ComLab alleges that each of these invoices was sent by email from ComLab’s CEO Matteo Deninno to employees at Kal Tire. Kal Tire claims that it received four of these invoices and that three of them were paid, without authorization, at the direction of Alex Vitale (“Vitale”), a former Kal Tire employee who allegedly received hundreds of thousands of dollars in kickbacks from Deninno in exchange for facilitating a fraudulent agreement. According to Kal Tire, ComLab never sent another invoice after Kal Tire terminated Vitale and did not pay the fourth invoice it received. In November 2017, Kal Tire served ComLab with a discovery request seeking native versions of emails or any evidence that ComLab had ever sent the other sixteen invoices (the “Contested Invoices”). In January 2018, ComLab produced hard copy printouts purporting to show thirteen emails sent by Deninno to employees at Kal Tire, eleven of which purported to attach one of the Contested Invoices. Kal Tire asserts that nine of these emails (the “Contested Emails”) were fabrications by ComLab, and were never actually sent.

 

Kal Tire continued to seek native versions of the Contested Emails between January and April 2018. Two days before Deninno’s scheduled deposition, and after repeatedly indicating that ComLab would produce these native files, ComLab’s counsel informed Kal Tire that “Mr. Deninno[’s]computer was infected by a virus at the end of last year. As a result, he had to wipe the machine on which the native emails existed and get a new computer....” J.A. 97 (No. 18-2872). At his deposition, Deninno testified that in response to a “trojan”-type computer virus, he had irretrievably deleted all emails sent and received prior to January 1, 2018, but no other emails or files stored on his computer. Deninno did not maintain backups of his emails, and was unable to retrieve deleted emails from before January 1, 2018 from the operator of his email server. Kal Tire moved for sanctions, seeking termination of the action and attorneys’ fees and costs.

 

The district court held an evidentiary hearing, at which Kal Tire offered the testimony of its director of platform and product technology as well as a third-party expert in computer forensics; ComLab offered further testimony from Deninno. Following the evidentiary hearing, the district court determined “by clear and convincing evidence” that Deninno had fabricated the Contested Emails and Contested Invoices, thereby perpetuating a fraud on the court, and that he subsequently purged his email server to prevent discovery of this fraud, spoliating evidence critical to Kal Tire’s defense. Based on this determination, the district court granted Kal Tire’s motion for sanctions, terminated the action, and awarded Kal Tire its reasonable attorneys’ fees and costs incurred in defending the action.

B. Analysis

We review a district court’s ruling on a motion for sanctions for abuse of discretion. See Klipsch Grp. v. ePRO E-Commerce Ltd., 880 F.3d 620, 627 (2d Cir. 2018). “A district court abuses its discretion if it (1) bases its decision on an error of law or uses the wrong legal standard; (2) bases its decision on a clearly erroneous factual finding; or (3) reaches a conclusion that, though not necessarily the product of a legal error or a clearly erroneous factual finding, cannot be located within the range of permissible decisions.” Id. (quoting EEOC v. KarenKim, Inc., 698 F.3d 92, 99–100 (2d Cir. 2012)). ComLab argues that the district court abused its discretion by basing its decision on clearly erroneous factual findings and dismissing the action without considering lesser sanctions. We disagree.

 

A party that fails to preserve evidence when it “has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation,” Fujitsu Ltd. v. Federal Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001), is subject to sanction for spoliation. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43–45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)). The party seeking sanctions for spoliation must “show by a preponderance of the evidence: ‘(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.’ ” Klipsch, 880 F.3d at 628 (quoting Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012)). The district court may also sanction a party for attempting to mislead the court by fabricating evidence. See Ostano Commerzanstalt v. Telewide Sys., Inc., 794 F.2d 763, 768 (2d Cir. 1986). To the extent that such fabrication constitutes a fraud on the court, cf., e.g., Weese v. Schukman, 98 F.3d 542, 552–53 (10th Cir. 1996), it must be established by “clear and convincing evidence.”1 King v. First Am. Investigations, Inc., 287 F.3d 91, 95 (2d Cir. 2002).

 “The determination of an appropriate sanction for spoliation, if any, is confined to the sound discretion of the trial judge, and is assessed on a case-by-case basis.” Fujitsu, 247 F.3d at 436 (internal citation omitted). And “we have explained that the applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.” West, 167 F.3d at 779. In other words, it should “(1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.” Id. (internal quotation marks omitted). “Outright dismissal ... is within the court’s discretion” where “there is a showing of willfulness, bad faith, or fault on the part of the sanctioned party.” Id. (quoting Chambers, 501 U.S. at 45, 111 S.Ct. 2123 and citing Jones v. NFTA, 836 F.2d 731, 734 (2d Cir. 1987)). Nonetheless, dismissal is a “drastic remedy” to be “imposed only in extreme circumstances, usually after consideration of alternative, less drastic sanctions.” John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988) (internal quotation marks and citation omitted).

 

[1]Here, the district court made no clearly erroneous factual finding in determining that ComLab willfully fabricated the Contested Emails and subsequently spoliated evidence of this fabrication. A district court’s factual findings are clearly erroneous only if “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (internal quotation marks omitted); see also Atl. Specialty Ins. Co. v. Coastal Envtl. Grp., 945 F.3d 53, 63 (2d Cir. 2019) (“[W]e may not reverse a finding even though convinced that had we been sitting as the trier of fact, we would have weighed the evidence differently.” (internal quotation marks and alterations omitted)). We discern no such mistake in this record, and thus no abuse of discretion.

At the evidentiary hearing, Kal Tire’s representative testified that the Contested Emails did not appear on Kal Tire’s servers, and that the email system’s permanently enabled “litigation hold” feature would have prevented their deletion even if Kal Tire employees had removed the emails from their own inboxes.2 Kal Tire’s computer forensics expert then testified that Deninno’s explanation for purging his email server in the midst of litigation was inconsistent with the understanding of even a moderately informed information technology professional. In particular, he explained that a “trojan”-style virus could infiltrate all emails and files on an infected computer, rendering Deninno’s actions—i.e., purging only a select date range of emails and retaining all non-email files—an illogical means of preserving the safety of a new machine. Kal Tire’s expert also testified as to the ease of fabricating the type of evidence ComLab had presented, including by manipulating document metadata to make it appear as though it had been created at an earlier time. Also at the hearing, Deninno admitted to having fabricated a Kal Tire travel document in the past at Vitale’s request. The remainder of the evidence in the record—including the parties’ written declarations as well as further testimony at the evidentiary hearing and in depositions—similarly undermines the legitimacy of ComLab’s evidence and Deninno’s explanation for his failure to preserve relevant materials. Indeed, apart from Deninno’s testimony, ComLab did not present any evidence that a virus actually infected Deninno’s computer. This record does not leave us with “the definite and firm conviction that a mistake has been committed.” Anderson, 470 U.S. at 573, 105 S.Ct. 1504.

 

[2]Likewise, the district court did not abuse its discretion in imposing the sanction of dismissal under these extraordinary circumstances. Acknowledging its responsibility to “consider[ ] ... alternative, less drastic sanctions,” see John B. Hull, Inc., 845 F.2d at 1176, the district court “considered the full complement of options available to it under the applicable rules and its inherent authority” including “a fine, an adverse jury instruction, and other less drastic sanctions,” and nevertheless dismissed the case in light of “the seriousness of ComLab’s transgression, and the significance of the emails to this litigation.” S.A. 19–20. We have repeatedly acknowledged that dismissal is appropriate when there has been a showing of “willfulness, bad faith, or fault,” and that such sanctions serve “prophylactic, punitive, and remedial purposes.” West, 167 F.3d at 779. Though a lesser sanction may have effectively nullified the prejudice ComLab’s fraud and spoliation caused to Kal Tire, we have recognized the appropriateness of harsher sanctionsto penalize those whose conduct may be deemed to warrant such a sanction [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) (per curiam) (quoting Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)). The decision to dismiss ComLab’s action here was soundly within the district court’s discretion.

II. The Attorneys’ Fee Award

Judge Forrest stepped down from the bench on September 11, 2018, the same day that she granted Kal Tire’s motion for sanctions. Because her order instructed the clerk of court to close the case, the action was not assigned to another district judge. On October 10, after reviewing and redacting its legal invoices for privilege, Kal Tire’s counsel submitted those invoices to ComLab but was unsure how to secure payment. Since no district judge was assigned to execute the award, Kal Tire wrote to Chief District Judge McMahon on October 19, requesting permission to submit a motion or affidavit to establish the amount of its award. On October 22, the court reassigned the case to Judge Castel. On that same day, in response to a letter of inquiry from Kal Tire, the district court ordered that Kal Tire should submit a fee application to ComLab, that the parties should meet and confer, and that if disagreements remained, Kal Tire should file a motion to set the amount of the award by November 30. Kal Tire submitted such a motion on that date, and the district court referred the case to Magistrate Judge Ona T. Wang. On April 18, 2019, Judge Wang issued a report and recommendation (“R & R”) setting the amount of Kal Tire’s total award at $313,138.67. ComLab filed no objections to the R & R. On May 16, 2019, Judge Castel adopted the R & R in full.

 

[3]On appeal, ComLab does not challenge the district court’s calculation of Kal Tire’s fee award. Rather, ComLab argues that the district court erred in executing the fee award because Kal Tire did not submit that motion within fourteen days of Judge Forrest’s September 11, 2018 order. ComLab asserts that Federal Rule of Civil Procedure 54(d)(2)(B)—which requires a “claim for attorney’s fees and related nontaxable expenses” to “be filed no later than 14 days after the entry of judgment”—applies to Kal Tire’s motion and bars the requested relief. Fed. R. Civ. P. 54(d)(2)(B). The (questionable) merits of this argument notwithstanding, we conclude that ComLab, which made the same arguments unsuccessfully before the magistrate court, has waived its right to appellate review of the order setting the amount of Kal Tire’s fee award.

A party seeking appellate review of the disposition ordered in a magistrate judge’s R & R must file objections to the relevant portions of the report within fourteen days. See Fed. R. Civ. P. 72(a); Mario v. P & C Food Mkts., 313 F.3d 758, 766 (2d Cir. 2002). “Where parties receive clear notice of the consequences, failure timely to object to a magistrate’s report and recommendation operates as a waiver of further judicial review of the magistrate’s decision.” Mario, 313 F.3d at 766; see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993) (collecting cases). It is undisputed that ComLab failed to object to the R & R, which gave unambiguous notice in bold lettering that failure to file objections within fourteen days would preclude appellate review. ComLab has waived its challenge, and we decline to exercise our discretion to decide the issues ComLab raises. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000).

 

We have considered ComLab’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

 

All Citations

815 Fed.Appx. 597

Footnotes

 

1

 

ComLab argues that the district court erroneously found both spoliation and fraud on the court by a preponderance of the evidence, rather than finding the latter by clear and convincing evidence. This argument is without merit. The district court expressly stated that the “clear and convincing” standard applied as to fraud on the court, and that “it easily conclude[d] that Deninno fabricated and subsequently spoliated critical documents by ‘clear and convincing evidence.’ ” S.A. 19.

 

2

 

Consistent with this testimony, Caitlin Brothen, the Kal Tire employee to which each of the Contested Emails was purportedly addressed, submitted a sworn declaration that she never received any of the Contested Emails. ComLab argues that the district court’s factual findings were nonetheless clearly erroneous because, inter alia, Kal Tire failed to supply a similar declaration from Vitale, to whom a subset of the Contested Emails were also addressed. But because Kal Tire did provide sworn statements from a technical administrator with access to the company’s entire email server and from an employee to whom all of the Contested Emails were addressed, the absence of an additional statement from Vitale (who had already testified at deposition that he did not recall receiving the Contested Invoices) does not alter “the entire evidence” so as to create “the definite and firm conviction that a mistake has been committed.” Anderson, 470 U.S. at 573, 105 S.Ct. 1504.

 

 

End of Document

 

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816 Fed.Appx. 355

This case was not selected for publication in West’s Federal Reporter.

See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S. Ct. of App. 11th Cir. Rule 36-2.

United States Court of Appeals, Eleventh Circuit.

Daniel Eric COBBLE, Petitioner-Appellant,

v.

U.S. GOVERNMENT, John And or Jane Doe, Baldwin County D.A., John And or Jane Doe, Cherokee County D.A., John and or Jane Doe, Georgia Department of Corrections Commissioner, John and or Jane Doe, Cobb County D.A., State of Georgia, Cobb County Georgia, Cherokee County Georgia, Baldwin County Georgia, John Doe, U.S. Attorney General, Respondents-Appellees.

Daniel Castleberry, Petitioner-Appellant,

v.

Erlanger Hospital, Respondent-Appellee.

Daniel Eric Cobble, Petitioner-Appellant,

v.

U.S. Government, State of Georgia Government, Respondents-Appellees.

Daniel Eric Cobble, Petitioner-Appellant,

v.

Judge Charles H Weigle, U.S. Government, Respondent-Appellee.

Daniel Eric Cobble, Petitioner-Appellant,

v.

Cherokee County District Attorney, Cherokee County Sheriff, U.S. Government, Respondents-appellees.

Daniel Eric Cobble, Petitioner-Appellant,

v.

Cobb County District Attorney, Cobb County Sheriff, U.S. Government, Respondents-Appellees.

Daniel Eric Cobble, Petitioner-Appellant,

v.

Baldwin County Sheriff, Baldwin County District Attorney, U.S. Government, Respondents-Appellees.

Daniel Castleberry, Petitioner-Appellant,

v.

Sumter County Sheriff, Sumter County Jail, District Attorney Sumter County, Attorney General, State of Georgia, US District Court Macon GA, et al., Respondents-Appellees.

Daniel Eric Cobble, Petitioner-Appellant,

v.

Cherokee County District Attorney, Cherokee County Court Clerk, State Attorney General, Crisp County Sheriff, U.S. Government, Respondents-Appellees.

No. 19-10573

|

Non-Argument Calendar

|

No. 19-10577, No. 19-10578, No. 19-10583, No. 19-10585, No. 19-10586, No. 19-10587, No. 19-10589, No. 19-10590

|

(May 29, 2020)

Synopsis

Background: Petitioner brought several different pro se habeas and § 1983 actions. The United States District Court for the Middle District of Georgia, Nos. 1:18-cv-00091-LAG-TQL, 1:18-cv-00125-LAG-TQL, 1:18-cv-00145-LAG-TQL, 1:18-cv-00193-LAG-TQL, 1:19-cv-00012-LAG-TQL, 1:19-cv-00013-LAG-TQL, 1:19-cv-00014-LAG-TQL, 1:19-cv-00018-LAG-TQL, and 1:19-cv-00019-LAG-TQL, Leslie J. Abrams Gardner, J., dismissed petitioner’s actions, as a sanction, and imposed a two-year anti-filing injunction on future civil actions. Petitioner appealed, and appeals were consolidated.

 

Holdings: The Court of Appeals held that:

 

[1] district court did not abuse its discretion in notifying petitioner of sanctions in only one of his several cases;

 

[2] district court did not abuse its discretion in dismissing all of petitioner’s pending cases; and

 

[3] district court did not abuse its discretion in imposing two-year anti-filing injunction on future civil actions.

 

Affirmed.

 

 

 

West Headnotes (5)

 

 

[1]

 

Federal CourtsSanctions

 

 

170BFederal Courts

170BXVIICourts of Appeals

170BXVII(C)Decisions Reviewable

170BXVII(C)2Particular Decisions, Matters, or Questions as Reviewable

170Bk3329Sanctions

 

 

Petitioner did not have in forma pauperis (IFP) status to challenge the adequacy of the district court’s Rule 11 notice, and thus, such issue was barred from review by the Court of Appeals, on petitioner’s appeal of sanctions imposed as a result of his habeas and § 1983 actions; Court of Appeals’ order granting IFP explicitly stated that he could proceed on appeal only as to the prospective application of the anti-filing injunction. 28 U.S.C.A. §§ 2241, 2254; 42 U.S.C.A. § 1983; Fed. R. Civ. P. 11.

 

 

 

 

[2]

 

Federal Civil ProcedureNotice and hearing

 

 

170AFederal Civil Procedure

170AXXSanctions

170AXX(E)Proceedings

170Ak2828Notice and hearing

 

 

District court did not abuse its discretion in notifying petitioner of sanctions in only one of his several habeas and § 1983 cases, before dismissing all of his cases and imposing a two-year anti-filing injunction, where petitioner knew from the court’s previous sanction order that dismissal of all his pending cases could be imposed as a sanction. 28 U.S.C.A. §§ 2241, 2254; 42 U.S.C.A. § 1983; Fed. R. Civ. P. 11.

 

 

 

 

[3]

 

Federal CourtsDismissal or nonsuit in general

 

 

170BFederal Courts

170BXVIICourts of Appeals

170BXVII(C)Decisions Reviewable

170BXVII(C)2Particular Decisions, Matters, or Questions as Reviewable

170Bk3292Dismissal or nonsuit in general

 

 

Petitioner did not have in forma pauperis (IFP) status to challenge dismissal of his pending cases, and thus, such issue was barred from review by the Court of Appeals, on petitioner’s appeal of sanctions imposed as a result of his habeas and § 1983 actions; Court of Appeals’ order granting IFP explicitly stated that he could proceed on appeal only as to the prospective application of the anti-filing injunction. 28 U.S.C.A. §§ 2241, 2254; 42 U.S.C.A. § 1983; Fed. R. Civ. P. 11.

 

 

 

 

[4]

 

Federal Civil ProcedureParticular types of cases in general

Federal Civil ProcedureCivil rights cases

Federal Civil ProcedureNon-monetary sanctions

 

 

170AFederal Civil Procedure

170AXXSanctions

170AXX(B)Grounds for Imposition

170Ak2767Unwarranted, Groundless or Frivolous Papers or Claims

170Ak2771Complaints, Counterclaims and Petitions

170Ak2771(2)Particular types of cases in general

170AFederal Civil Procedure

170AXXSanctions

170AXX(B)Grounds for Imposition

170Ak2767Unwarranted, Groundless or Frivolous Papers or Claims

170Ak2771Complaints, Counterclaims and Petitions

170Ak2771(5)Civil rights cases

170AFederal Civil Procedure

170AXXSanctions

170AXX(D)Type and Amount

170Ak2820Non-monetary sanctions

 

 

District court did not abuse its discretion in dismissing all of petitioner’s pending § 1983 and habeas cases, under sanction order; district court explicitly stated that it reviewed each case and determined that all were frivolous, specifying that all of the habeas petitions sought relief that was frivolous or beyond the court’s authority to provide, and explaining that sanctions were appropriate due to petitioner’s documented practice of frivolous, vexatious, and duplicative litigation, his inadequate response to the district court’s show cause order, and the frivolity of his pending cases. 28 U.S.C.A. §§ 2241, 2254; 42 U.S.C.A. § 1983; Fed. R. Civ. P. 11.

 

 

 

 

[5]

 

InjunctionRestrictions on litigation and filings

 

 

212Injunction

212IVParticular Subjects of Relief

212IV(C)Criminal Matters and Proceedings

212k1200Prisons and Prisoners

212k1207Restrictions on litigation and filings

 

 

District court did not abuse its discretion in imposing two-year anti-filing injunction on future civil actions on petitioner, as a sanction arising out of his § 1983 and habeas actions; petitioner was not foreclosed entirely from filing future actions, but rather, future civil actions were subject to pre-screening, and he would be able to make proper application for a writ of habeas corpus and file defensive pleadings in criminal cases without any sanction or qualification. 28 U.S.C.A. §§ 2241, 2254; 42 U.S.C.A. § 1983; Fed. R. Civ. P. 11.

 

 

 

 

Attorneys and Law Firms

Letitia A. McDonald, King & Spalding, LLP, Atlanta, GA, for Petitioner-Appellant

Appeals from the United States District Court for the Middle District of Georgia, D.C. Docket No. 1:18-cv-00091-LAG-TQL, D.C. Docket No. 1:18-cv-00125-LAG-TQL, D.C. Docket No. 1:18-cv-00145-LAG-TQL, D.C. Docket No. 1:18-cv-00193-LAG-TQL, D.C. Docket No. 1:19-cv-00012-LAG-TQL, D.C. Docket No. 1:19-cv-00013-LAG-TQL, D.C. Docket No. 1:19-cv-00014-LAG-TQL, D.C. Docket No. 1:19-cv-00018-LAG-TQL, D.C. Docket No. 1:19-cv-00019-LAG-TQL

Before GRANT, LUCK and DUBINA, Circuit Judges.

Opinion

 

PER CURIAM:

 

In these consolidated appeals, Petitioner/Appellant Daniel Cobble1 (“Cobble”) appeals the district court’s order dismissing with prejudice, as a sanction, his pro se actions, filed pursuant to 28 U.S.C. §§ 2241 and 2254, and 42 U.S.C. § 1983, and the district court’s imposition of a two-year anti-filing injunction on future civil actions he seeks to initiate. On appeal, Cobble seeks to raise three issues. First, he argues that the district court abused its discretion by notifying him of sanctions in only one of his 15 cases and by dismissing his actions as a sanction, when that action materially deviated from the sanction of which he was warned. Second, he argues that the district court abused its discretion by not making case-specific findings of frivolity for each case before dismissing them as a sanction. Third, he argues that the district court abused its discretion by barring him from filing future civil actions for two years. After reviewing the record and reading Cobble’s brief, we affirm the district court’s order of dismissal.2

 

 

 

I.

We review Fed. R. Civ. P. 11 sanctions for abuse of discretion. Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003). “A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous.” Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213, 1216-17 (11th Cir. 2009).

 

Under Rule 11(b), when an unrepresented party files a pleading in the district court, he certifies that (1) it is not being presented for an improper purpose, (2) its legal contentions are warranted by existing law or a nonfrivolous argument to change the law, and (3) its factual contentions have or likely will have evidentiary support. Fed. R. Civ. P. 11(b)(1)-(3). If the court believes that a party has violated Rule 11(b), it can sua sponte order the party to show cause why conduct specified in the order does not violate Rule 11(b). Fed. R. Civ. P. 11(c)(3). “If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction.” Fed. R. Civ. P. 11(c)(1). We apply a flexible standard in evaluating whether Rule 11’s notice requirement has been satisfied, and “in many cases substantial compliance may suffice.” Kaplan, 331 F.3d at 1257. “The adequacy of notice and [an opportunity to respond] depends, to some extent, on the knowledge the party has of the consequences of his own conduct.” Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1294 n. 14 (11th Cir. 2002).

 

In Mitchell v. Nobles, we reversed the district court’s dismissal as a Rule 11 sanction because it failed to provide the plaintiff with notice, a show cause order, or an opportunity to respond. 873 F.3d 869, 875 (11th Cir. 2017). In that case, a prisoner filed a 42 U.S.C. § 1983 complaint on a prisoner form which required him to disclose all previous lawsuits, cautioning that failure to do so could result in the dismissal of his case. Id. at 871-72. He indicated that he had none, and the district court sua sponte dismissed his complaint, in part, as a sanction under Rule 11 for falsely representing his litigation history. Id. at 872. On appeal, we concluded that the district court did not give adequate notice under Rule 11 because it gave no notice at all, “much less a formal order to show cause,” or an opportunity to respond. Id. at 875.

 

In Kaplan, we held that the district court erred in imposing Rule 11 sanctions, in part, because there was a material variance between the show-cause notice and the ultimate sanction imposed. 331 F.3d at 1252. There, DaimlerChrysler, A.G. (“DC”), had filed a motion to exclude derogatory statements in reference to DC as a “Nazi” company. Id. at 1253. The court found the motion frivolous, denied it as moot, and threatened to impose sanctions unless DC convinced the court that sanctions should not be imposed for the exclusion motion. Id. at 1253-54. The court subsequently imposed sanctions, adding that sanctions were also warranted because DC had attempted to “bury” its opponent with other filings. Id. at 1254. On appeal, we concluded that there was a material difference between the show-cause notice isolating the exclusion motion as the basis for sanctions and the ultimate sanction order which referred to additional motions. Id. at 1257.

 

[1] [2]Initially, we note that Cobble does not have in forma pauperis (“IFP”) status to challenge the adequacy of the district court’s Rule 11 notice because this court’s order granting IFP explicitly stated that he could proceed on appeal only as to “the prospective application of the anti-filing injunction.” (CM/ECF for 11th Cir., case no. 19-10573, doc. 25 at 5.) Hence, this issue is barred from review by this court’s previous order. Alternatively, we conclude that the district court did not abuse its discretion in notifying Cobble of sanctions in only one of his cases because he knew from the court’s previous sanction order that dismissal of all his pending cases could be imposed as a sanction. Applying the flexible standard under which Rule 11 notice requirements are evaluated, Cobble’s knowledge of the past consequences of his own conduct was adequate to put him on notice that his pending cases would again be dismissed if he failed to show cause. See Kaplan, 331 F.3d at 1257. Moreover, Cobble does not refer to any legal authority requiring the district court to issue separate show cause orders for every single pending case that might be subject to the show cause order, list all cases that might be affected, or require separate justifications for each pending case. Accordingly, because we discern no abuse of discretion by the district court, we affirm as to this issue.

 

 

 

II.

Cobble argues that the district court abused its discretion by not making case-specific findings of frivolity for each case before dismissing them as a sanction. He contends that the district court erroneously relied upon a sole determination that his Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971), action was frivolous in deciding that his other cases were also frivolous. As to his habeas cases, Cobble asserts that the district court’s justification for dismissal addressed only his “one claim” for diplomatic immunity, deportation, enforcement of his marriage, termination of pending state court cases, and the arrest of the district judge, and this could not serve as the sole basis for the dismissal of his other actions based on different factual allegations.

 

“An order imposing Rule 11 sanctions should state the specific basis of the sanction to allow for meaningful appellate review.” Thomas v. Evans, 880 F.2d 1235, 1240 (11th Cir. 1989). Where a district court imposes sanctions without explaining why they were appropriate, meaningful appellate review is impossible and we will reverse and remand for findings to be made. Harris v. Heinrich, 919 F.2d 1515, 1516-17 (1990) (reversing and remanding where the district court declared, without explanation, that the defendants were entitled to Rule 11 sanctions). Where an appellant argues that the district court dismissed his pending cases as a sanction based solely on a determination that one of them was frivolous, we have held that, “[b]efore we accept an allegation that the district court has not reviewed the dismissed cases, it is incumbent upon the party raising this allegation to come forward with some basis for it.” Cofield v. Ala. Pub. Serv. Comm’n, 936 F.2d 512, 516 (11th Cir. 1991).

 

[3] [4]Initially, we note that like the first issue, Cobble does not have IFP status to challenge the dismissal of his pending cases under the sanction order. Thus, this issue is barred from review by this court’s previous order. Alternatively, we conclude that the district court did not abuse its discretion in dismissing Cobble’s pending cases because it explicitly stated that it reviewed each case and determined that all were frivolous. The district court specified that all Cobble’s habeas petitions sought relief that was frivolous or beyond the court’s authority to provide. Thus, Cobble’s arguments on appeal are merely bare conclusory allegations that the district court did not review the dismissed cases, and a mere allegation without evidentiary support does not merit relief. We also conclude that the district court adequately explained why sanctions were appropriate: Cobble’s documented practice of frivolous, vexatious, and duplicative litigation, his inadequate response to the district court’s show cause order, and the frivolity of his pending cases. Accordingly, because we discern no abuse of discretion by the district court, we affirm as to this issue.

 

 

 

III.

Cobble argues that the district court abused its discretion by enjoining him from filing future civil actions, excluding defensive pleadings in a criminal action or a proper application for writ of habeas corpus. We review for an abuse of discretion a district court’s imposition of a filing injunction as a sanction. See Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004) (noting the standard of review for injunctions in general). An abuse of discretion occurs, among other times, if the restriction is unnecessarily broad. Id. Where an error by the district does not affect the aggrieved party’s substantial rights, the court’s decision will not be disturbed. Fed. R. Civ. P. 61.

 

Prisoners have a constitutional right to access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52 L.Ed.2d 72 (1977), abrogated on other grounds by Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L.Ed.2d 606 (1996). That right, however, “is neither absolute nor unconditional,” and the right “may be counterbalanced by the traditional right of courts to manage their dockets and limit abusive filings.” Cofield, 936 F.2d at 517 (quotation marks omitted). While courts may take creative action to discourage hyperactive litigators, they “cannot construct blanket orders that completely close the courthouse doors to those who are extremely litigious.” Id. at 517.

 

For example, this court has upheld injunctions (1) requiring prefiling screening of claims, (2) requiring that the litigant obtain leave of the court before filing new actions against his former employer, and (3) directing the clerk to mark any papers submitted by a litigant as received and not to file them unless a judge approved them for filing. Riccard, 307 F.3d at 1295; Cofield, 936 F.2d at 518; Copeland v. Green, 949 F.2d 390, 391 (11th Cir. 1991). Conversely, we have struck down injunctions (1) prospectively denying IFP status for all claims, (2) barring the plaintiff from filing future lawsuits unless done through counsel, and (3) applying to filings unrelated to the areas where the litigant had demonstrated a history of abusive litigation. Miller v. Donald, 541 F.3d 1091, 1098 (11th Cir. 2008); Cofield, 936 F.2d at 518; Procup v. Strickland, 792 F.2d 1069, 1071, 1074 (11th Cir. 1986) (en banc). This case is akin to the cases in which we have upheld injunctions against litigants.

 

[5]Although the district court’s anti-filing injunction on Cobble’s future filings is arguably overbroad, Cobble fails to demonstrate how it effects his substantial rights because the sanction does not completely close the courthouse doors to him. We note that the district court is very familiar with Cobble’s history of frivolous and vexatious filings. The district court outlined the process by which Cobble’s future filings will be considered. “[T]he clerk shall receive the papers that [Cobble] submits, open a miscellaneous case number, and forward the documents to the presiding District Judge to determine whether [Cobble] qualifies as indigent and whether he has stated a claim with any arguable merit. Upon receipt, the Court will read and consider [Cobble’s] filings. Only if a given pleading alleges a plausible claim for relief will the Court allow it to be filed.” (R. Doc. 54 at 6.) Because Cobble is not foreclosed entirely from filing future actions, and he is able to make proper application for a writ of habeas corpus and file defensive pleadings in criminal cases without any sanction or qualification, Cobble cannot show a deleterious effect on his substantial rights. Therefore, we discern no abuse by the district court in this regard.

 

Based on the foregoing, we affirm the district court’s order dismissing with prejudice Cobble’s actions filed pursuant to 28 U.S.C. §§ 2241, 2254, and 42 U.S.C. § 1983, as a sanction, and the district court’s imposition of a two-year anti-filing injunction on future civil actions.3

 

AFFIRMED.

 

All Citations

816 Fed.Appx. 355

Footnotes

 

1

 

In two of the consolidated appeals, Cobble filed under the name “Daniel Eric Castleberry.” See Case no. 1:18-cv-00125 and Case no. 1:19-cv-00018.

 

2

 

The Appellees did not file an appellate brief.

 

3

 

We deny as moot Cobble’s motion to put the court on notice of alternative procedures. (CM/ECF for 11th Cir., case no. 19-10573, doc. 50).

 

 

End of Document

 

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

 

 

 

 

 

 

815 Fed.Appx. 842

This case was not selected for publication in West’s Federal Reporter.

See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 6th Cir. Rule 32.1.

United States Court of Appeals, Sixth Circuit.

Katoria S. WILLIAMS and Demetri M. Faulkner, Plaintiffs-Appellants,

Lucinda Jones and Valerie V. Vie, Interested Parties-Appellants,

v.

SHELBY COUNTY SCHOOL SYSTEM, et al., Defendants-Appellees,

State of Tennessee, Intervenor-Appellee.

Nos. 19-5238/5789

|

FILED May 28, 2020

Synopsis

Background: Former school employees brought an action against school system alleging violations of state and federal law stemming from termination of their employment contracts. The United States District Court for the Western District of Tennessee, Thomas L. Parker, J., dismissed action as untimely and awarded attorney’s fees to school system. Employees appealed. The Court of Appeals, 2020 WL 1190433, affirmed, and school system moved for attorney’s fees and costs as a sanction for employees’ and their attorneys’ conduct on appeal.

 

Holdings: The Court of Appeals held that:

 

[1] imposing sanctions against employees was not warranted;

 

[2] imposing sanctions against employees’ appellate counsel was not warranted; and

 

[3] imposing sanctions against employees’ trial counsel was not warranted.

 

Motion denied.

 

McKeague, Senior Circuit Judge, filed dissenting opinion.

 

 

 

West Headnotes (3)

 

 

[1]

 

Federal Civil ProcedureFrivolousness;  particular cases

 

 

170AFederal Civil Procedure

170AXXSanctions

170AXX(F)On Appeal

170Ak2837Grounds

170Ak2840Frivolousness;  particular cases

 

 

Imposing sanctions against former school employees who, through new appellate counsel, filed an untimely appeal of district court’s original sanctions order, imposed as a result of bringing an untimely action against school system stemming from termination of employment contracts, was not warranted; there was no evidence that employees harbored an improper motive, such as intent to harass or cause delay, nor was there any evidence that they pressured their new attorney into filing appeal that they knew would be time barred. 28 U.S.C.A. § 1912; Fed. R. App. P. 38.

 

 

 

 

[2]

 

Federal Civil ProcedureFrivolousness;  particular cases

 

 

170AFederal Civil Procedure

170AXXSanctions

170AXX(F)On Appeal

170Ak2837Grounds

170Ak2840Frivolousness;  particular cases

 

 

Imposing sanctions against appellate counsel for former school employees for filing an untimely appeal of district court’s original sanctions order, imposed as a result of bringing an untimely action against school system stemming from termination of employment contracts, was not warranted; case which held that an original sanctions order, not a fees-for-fees order, would start the clock for an appeal of post-judgment sanctions, had not yet been decided when fees-for-fees motion was filed by opposing counsel. 28 U.S.C.A. § 1912; Fed. R. App. P. 38.

 

 

 

 

[3]

 

Federal Civil ProcedureFrivolousness;  particular cases

 

 

170AFederal Civil Procedure

170AXXSanctions

170AXX(F)On Appeal

170Ak2837Grounds

170Ak2840Frivolousness;  particular cases

 

 

Imposing sanctions against trial counsel for former school employees for challenging district court’s original sanctions order, imposed against them for bringing an untimely action against school system stemming from termination of employment contracts, was not warranted, although trial counsel’s conduct was unprofessional and serious enough to meet the standard for imposing sanctions, they raised three semi-colorable arguments in their appeal, and the deterrent and compensatory purpose of sanctions was adequately served by the nearly $40,000 judgment against them in the district court. 28 U.S.C.A. § 1912; Fed. R. App. P. 38.

 

 

 

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

Attorneys and Law Firms

Lucinda Jones, Law Office, Detroit, MI, for Appellants in 19-5238

Darrell J. O’Neal, Law Office, Memphis, TN, Lucinda Jones, Law Office, Detroit, MI, for Plaintiffs - Appellants in 19-5789

Robert Otis Binkley, Jr., Matthew Robert Courtner, Rainey, Kizer, Reviere & Bell, Jackson, TN, Jennifer Vallor Ivy, State of Tennessee, Jackson, TN, for Defendant - Appellee in 19-5238

Robert Otis Binkley, Jr., Matthew Robert Courtner, Rainey, Kizer, Reviere & Bell, Jackson, TN, for Defendant - Appellee in 19-5789

James Robert Newsom, III, Office of the Attorney General of Tennessee, Nashville, TN, for Intervenor - Appellee

BEFORE: GIBBONS, McKEAGUE, and WHITE, Circuit Judges.

Opinion

 

PER CURIAM.

 

Before us is defendant-appellee Marjorie Douglas’s motion for fees and costs as a sanction against plaintiffs-appellants Katoria Williams and Demetri Faulkner, as well as their attorneys Lucinda Jones, Valerie Vie, and Darrell O’Neal. In 2017, Williams and Faulkner filed suit against the Shelby County School System and its employee, Douglas, for alleged violations of federal and state law stemming from the termination of their employment contracts. Williams v. Shelby Cty. Sch. Sys., Nos. 19-5238/5789, 2020 WL 1190433, at *1 (6th Cir. Mar. 12, 2020). Williams and Faulkner’s complaint, however, was filed four years after their contracts were terminated, meaning that their claims were barred by various statutes of limitations. Id. As a result, the district court dismissed the complaint and awarded fees against the plaintiffs and their trial attorneys, Jones and Vie, as a sanction. Id.

 

Douglas then requested fees for fees from the district court—that is, attorney’s fees incurred while preparing the original motion for fees. Id. After the fees-for-fees motion, but before the district court had ruled on the motion, Jones and Vie—the two trial attorneys—filed a timely notice of appeal challenging the sanctions order as it applied to them. Id. Shortly thereafter, and more than 30 days after its original sanctions order, the district court granted the fees-for-fees motion. Id. Only then did Williams and Faulkner—now represented by substitute counsel O’Neal—file a notice of appeal challenging the original sanctions order. Id. Neither the plaintiffs nor their attorneys appealed the dismissal of the underlying claims. See id.

 

We affirmed the district court. First, we dismissed Williams and Faulkner’s appeal as untimely, explaining that it was filed more than 30 days after the original sanctions order and did not include a challenge to the later fees-for-fees order. Id. at *1–2. Second, we upheld the award of fees as a sanction against Jones and Vie. Id. at *2–3. We reasoned that Jones and Vie’s argument that Douglas might have committed continuing violations of Williams and Faulkner’s rights—which would have revived their claims—was “leaky at best, frivolous at worst.” Id. at *2 (quoting Carter v. Hickory Healthcare Inc., 905 F.3d 963, 969 (6th Cir. 2018)). Finally, we declined to issue further sanctions against the plaintiffs or their attorneys because Douglas failed to file a separate motion requesting appellate sanctions. Id. at *3 n.2.

 

After we issued our decision, Douglas filed the instant motion requesting fees and costs as a sanction for the conduct of plaintiffs and their attorneys on appeal. She argues that Williams, Faulkner, and their appellate counsel, O’Neal, should be sanctioned for pursuing an “untimely and frivolous appeal,” thereby “unreasonably and vexatiously” multiplying the proceedings. CA6 R. 23-2, Mot. for Sanctions, at 6. Douglas likewise argues that Jones and Vie “vexatiously and needlessly multiplied the proceedings” by pursuing their own frivolous appeal. Id. at 5.

 

We may impose sanctions for conduct on appeal pursuant to three grants of authority: Federal Rule of Appellate Procedure 38; 28 U.S.C. § 1912; and 28 U.S.C. § 1297. As we have explained, the standard under each provision is similar:

[Rule] 38 provides for sanctions “[i]f a court of appeals determines that an appeal is frivolous.” “Sanctions under [Rule 38] 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.’ ” Scherer v. JP Morgan Chase & Co., 508 F. App’x 429, 439 (6th Cir. 2012) (quoting B & H Med., L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 270 (6th Cir. 2008)). Although a finding of bad faith is not required for imposition of Rule 38 sanctions, “we will usually impose Rule 38 ... sanctions only where there was some improper purpose, such as harassment or delay, behind the appeal.” Barney v. Holzer Clinic, Ltd., 110 F.3d 1207, 1212 (6th Cir. 1997). [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.” It “is ‘similar’ ” in application to Rule 38, Kempter v. Mich. Bell Tel. Co., 534 F. App’x 487, 493 (6th Cir. 2013) (quoting Waeschle v. Dragovic, 687 F.3d 292, 296 (6th Cir. 2012)), cert. denied, 572 U.S. 1043, 134 S. Ct. 1764, 188 L.Ed.2d 610 (2014). Finally, § 1927 declares that “[a]ny attorney ... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” Section 1927 allows for sanctions when the “attorney knows or reasonably should know that a claim pursued is frivolous,” Scherer, 508 F. App’x at 439 (quoting Tareco Prop., Inc. v. Morriss, 321 F.3d 545, 550 (6th Cir. 2003)). “Section 1927 sanctions may be imposed without a finding that the lawyer subjectively knew that his conduct was inappropriate,” but “the conduct must exceed ‘simple inadvertence or negligence that frustrates the trial judge.’ ” Id. (quoting Ridder v. City of Springfield, 109 F.3d 288, 298 (6th Cir. 1997)).

Hogan v. Jacobson, 823 F.3d 872, 886 (6th Cir. 2016).

 

[1]We begin with Williams and Faulkner. Although a party may be sanctioned under Rule 38 or § 1912, Douglas offers no evidence that Williams and Faulkner harbored an improper motive, such as the intent to harass or cause delay. Barney, 110 F.3d at 1212. Nor is there any evidence that they pressured O’Neal into filing an appeal that they knew to be time barred. We thus find that William and Faulkner’s conduct is not sanctionable.

 

[2]Similarly, although O’Neal was responsible for filing the untimely appeal on behalf of Williams and Faulkner, Douglas offers little more than the conclusory allegation that O’Neal should have known that the appeal was untimely. It is not enough, however, that we ultimately found the appeal to be untimely. See, e.g., Talamini v. Allstate Ins. Co., 470 U.S. 1067, 1071, 105 S.Ct. 1824, 85 L.Ed.2d 125 (1985) (Stevens, J., concurring) (noting that unmeritorious claims do not automatically warrant sanctions). And no case had directly rejected the argument that a fees-for-fees motion could reset the clock for an appeal of post-judgment sanctions. Although our reasoning in JPMorgan Chase Bank, N.A. v. Winget, 920 F.3d 1103 (6th Cir. 2019), makes clear that an original sanctions order—not a fees-for-fees order—would start the clock on such an appeal, Winget had yet to be decided when Douglas filed her fees-for-fees motion. We thus find that O’Neal’s conduct is not sanctionable.

 

[3]Jones and Vie’s conduct merits closer scrutiny. We are mindful that sanctions against losing civil-rights plaintiffs are disfavored and should only be imposed in “truly egregious cases of misconduct.” Ridder v. City of Springfield, 109 F.3d 288, 299 (6th Cir. 1997) (quoting Jones v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir. 1986)). Jones and Vie’s challenged conduct, however, is largely unrelated to the nature of the claims they prosecuted. See, e.g., id. (pointing to the “intrinsic” difficulty of collecting evidentiary support prior to commencing a civil-rights action as one example of why we are reluctant to sanction such plaintiffs). They did not pursue a novel theory of liability or attempt to meaningfully distinguish controlling precedent; rather, they filed time-barred claims and then, on appeal, sought to lay responsibility at the feet of the district court. Williams, 2020 WL 1190433, at *2–3. Jones and Vie should have known that blaming the district court and repeating their most meritless arguments would fail.

 

Some of Jones and Vie’s conduct is mitigated by the posture of their appeal. They did not challenge the merits of the district court’s holding that the claims were time barred. They instead challenged the district court’s order sanctioning them for filing the claims in the first place. That is, Jones and Vie argued the reasonableness of their views—not whether those views were, in fact, correct—and challenged the district court’s analysis. In doing so, they raised three semi-colorable arguments. First, Jones and Vie maintained that the claim for inducement to breach of contract was arguably subject to a six-year statute of limitations. Second, they challenged the district court’s finding that the litigation was meant to “grind down” Douglas, highlighting the limited nature of their discovery requests and motions practice. Finally, they argued that the district court failed to make the necessary findings of discrete acts of vexatious conduct, citing caselaw to support their argument. Although the law was “solidly against these new arguments,” they at least evidence some bases upon which Jones and Vie might have believed that their appeal would gain traction. Friedler v. Equitable Life Assurance Soc’y, 86 F. App’x 50, 57 (6th Cir. 2003).

 

We exercise our discretion not to sanction Jones and Vie. Although their conduct was unprofessional and serious enough to meet the standard for imposing sanctions, the deterrent and compensatory purpose of sanctions is adequately served by the nearly $40,000 judgment against them in the district court. This is especially so given that Douglas would have had to defend the sanctions order anyway in Williams and Faulkner’s appeal. We believe that further sanctions would serve no useful purpose. And when “no useful purpose” would be served by imposing additional sanctions, we may “decline to impose” them. Flaherty v. Gas Research Inst., 31 F.3d 451, 459 (7th Cir. 1994); City of E. St. Louis v. Circuit Court for the Twentieth Judicial Circuit, 986 F.2d 1142, 1145 (7th Cir. 1993); cf. also Asberry v. United States Postal Serv., 692 F.2d 1378, 1382 (Fed. Cir. 1982) (“[W]e consider it appropriate under all the circumstances to remit the costs and attorney’s fees imposed in this case.”). We thus decline to impose them here.

 

The motion is denied.

 

 

 

McKEAGUE, Circuit Judge, dissenting.

 

I am in almost complete agreement with the majority. On behalf of their clients, Lucinda Jones and Valerie Vie filed a lawsuit against Marjorie Douglas, a Shelby County School System supervisor, well after all statutes of limitations expired. “Maintaining a clearly time-barred lawsuit” is sanctionable. Carter v. Hickory Healthcare Inc., 905 F.3d 963, 969 (6th Cir. 2018). But Jones and Vie had little to say for themselves before the district court, which appropriately sanctioned them. Then Jones and Vie appealed, arguing what little they said (and failed to say) was enough to save them from sanctions; they even argued the district court should’ve kept the bill low for them. We rejected these arguments. Williams v. Shelby Cty. Sch. Sys., Nos. 19-5238/5789, 2020 WL 1190433 (6th Cir. Mar. 12, 2020). And my colleagues rightly recognize that Jones and Vie’s frivolous appeal is itself sanctionable.

 

I would, however, award monetary sanctions against Jones and Vie under 28 U.S.C. § 1927. No doubt the district court’s sanctions order, our opinion affirming that order, and the majority’s opinion denying further sanctions have sent a strong message to Jones and Vie. But there’s still a “useful purpose” in making them pay Douglas’s fees on appeal. Flaherty v. Gas Research Inst., 31 F.3d 451, 459 (7th Cir. 1994). Namely, their conduct wasn’t victimless: someone has to pay Douglas’s lawyers for hours billed on this frivolous appeal. If it’s the Shelby County School System—really, the public—that pays, those thousands of taxpayer dollars are better spent on students, teachers, and schools. The equitable thing to do would be to shield these innocent stakeholders from the expense of Jones and Vie’s frivolous appeal. See Hamilton v. Boise Cascade Exp., 519 F.3d 1197, 1205 (10th Cir. 2008) (“[T]he text of § 1927 ... indicates a purpose to compensate victims of abusive litigation practices, not to deter and punish offenders.”). If it’s Douglas—the public servant—who pays, then she too deserves to be spared. See id.

 

Because the majority declines to award fees to Douglas as a sanction against Jones and Vie, I respectfully dissent.

 

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