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Inherent Power Sanctions Appropriate to Punish Violation of Vexatious Litigant Injunction

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Johnson v. Taco Bell Corp., 2023 U.S. App. LEXIS 31370 (6th Cir. Nov. 27, 2023):

ORDER

Alfred A. Johnson, Sr., a pro se Ohio prisoner, appeals the district court's summary dismissal of his civil action and imposition of filing restrictions. He now moves to proceed in forma pauperis ("IFP"). For the reasons that follow, Johnson's IFP motion is denied.

The United States District Court for the Northern District of Ohio sanctioned Johnson in 2022 after he endangered court staff by sending a baggie of fentanyl with a document that he tried to file in a case there. See Johnson v. Mgmt. Training Corp., No. 3:22-cv-01482 (N.D. Ohio Oct. 6, 2022). The district court ordered that if Johnson filed a new case, the court must first "determine whether to permit the filing." Id., slip op. at 2.

Johnson then filed this suit in the Southern District of Ohio against Taco Bell, seeking $20 million in damages because he found a foreign object in food that he ordered from a store in Carey, Ohio, causing him stomach problems. In his complaint, Johnson noted that he had filed a state-court case about this incident, which had been dismissed and not properly appealed. Because Carey, Ohio, is in the Northern District of Ohio, the Southern District transferred the case [*2]  there, and the district court screened it in accordance with its 2022 order. The district court held that the complaint "lacks merit" and dismissed it. Johnson v. Taco Bell Corp. Cal., No. 3:22 CV 2319, 2023 U.S. Dist. LEXIS 6180, 2023 WL 166008, at *1 (N.D. Ohio Jan. 12, 2023). Given Johnson's prior dangerous actions and his "apparent attempt to circumvent the Court's" sanctions order, the district court prohibited him from using the mail to submit documents and from filing new lawsuits or documents without first obtaining leave of court. 2023 U.S. Dist. LEXIS 6180, [WL] at *2. The district court also denied Johnson's motion to proceed IFP on appeal. Johnson now appeals and moves for IFP status from this court.

A party that makes the requisite showing of poverty will be granted leave to proceed IFP if his appeal is being taken in good faith, that is, if it is not frivolous. See 28 U.S.C. § 1915(a); Owens v. Keeling, 461 F.3d 763, 775 (6th Cir. 2006). An appeal is frivolous when "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989).

Johnson's appeal lacks an arguable basis in law. His pleadings are devoid of factual allegations that establish federal subject-matter jurisdiction, and Johnson admitted that he already unsuccessfully litigated the same claim in state court. Moreover, the district court properly used its inherent authority to sanction Johnson for his bad-faith attempt to circumvent the filing restrictions [*3]  imposed in 2022. See White v. Phillips, 66 F.4th 615, 619 (6th Cir. 2023), cert. denied, 217 L. Ed. 2d 144, 2023 WL 6558678 (U.S. 2023) (holding that Supreme Court precedent "permit[s] the district court to resort to its inherent authority to sanction bad-faith conduct" (quoting First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 514 (6th Cir. 2002))).

For these reasons, Johnson's motion to proceed IFP is DENIED. Unless he pays the $505 filing fee to the district court within thirty days of the entry of this order, this appeal will be dismissed for want of prosecution.

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Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

No Sanctions Imposed on Counsel Who Submitted A.I.-Generated Phony Cases Without Checking Them in Good Faith on The Mistaken Assumption They Had Been Provided by Highly Respected Co-Counsel Rather Than His Criminally-Convicted, Disbarred Client — No Sanctions on Client Who Had No Access to LEXIS or Westlaw to Check the Phony Cases and Submitted Them in Good Faith: “It Would Have Been Downright Irrational For Him To Provide Fake Cases For [His Lawyer] To Include In The Motion Knowing They Were Fake —

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(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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