Clarke v. Pollan, 2024 U.S. App. LEXIS 32955 (6th Cir. Dec. 30, 2024)

ORDER

PER CURIAM. In rejecting Diana Clarke's appeal in this case, we noted how Clarke's counsel, Bruce H. Wilson, repeatedly failed to recognize the relevant legal standards or respond to the opposing party's factual arguments. See Clarke v. Pollan, No. 24-3548, 2024 U.S. App. LEXIS 30289, 2024 WL 4903806 (6th Cir. Nov. 27, 2024). HN1[] When attorneys file frivolous appeals, we may sanction them under Federal Rule of Appellate Procedure 38. Waldman v. Stone, 854 F.3d 853, 854 (6th Cir. 2017); see also 28 U.S.C. § 1927 (permitting sanctions for vexatious litigation). Because of the "striking legal emptiness" of Wilson's briefing, we grant appellee Stephen Pollan's Rule 38 motion and sanction Wilson to compensate Pollan, in part, for the time and resources he expended in defending this appeal. Frank v. Good Samaritan Hosp. of Cincinnati, LLC, 848 F. App'x 191, 191 (6th Cir. 2021) (internal quotation marks omitted).

What began as a breach-of-contract case became entangled, as many cases do, in procedure. Clarke sued Pollan in Ohio state court on state-law claims. But Pollan removed the case to federal court because the parties were residents of different [*2]  states and Clarke sought nearly $200,000. That's classic diversity jurisdiction. And because a federal district court would have had original jurisdiction over the case, removal was permitted. Once in federal court, Pollan moved to dismiss the case for lack of personal jurisdiction, arguing that he lacked any contacts with Ohio and offering an affidavit to support his claims.

Clarke opposed the motion to dismiss but did not try to rebut Pollan's argument or affidavit. Instead, Wilson, her attorney, filed a response of less than two full pages that discussed removal and subject-matter jurisdiction. But that wasn't the subject of the motion to dismiss. The motion to dismiss was for lack of personal jurisdiction.

Wilson wasn't done. He also filed a half-page motion to remand the case to state court, arguing that removal was improper. His basis for that position? That Clarke's state-law claims lacked any issue arising under federal law. Though it's not entirely clear, the motion seemed to argue that diversity jurisdiction shouldn't sustain removal to federal court. But federal statutes say it does, see 28 U.S.C. §§ 1441(a), 1332(a)(1), and Wilson cited no authority holding otherwise.¹ When Pollan opposed the motion to [*3]  remand, Wilson filed no reply.

The district court denied Clarke's motion to remand and granted Pollan's motion to dismiss. Clarke v. Pollan, No. 1:24CV00284, 2024 WL 4942356 (N.D. Ohio May 31, 2024); Clarke v. Pollan, No. 1:24CV00284, 2024 WL 4958456 (N.D. Ohio June 6, 2024). In its opinions, the court explained the differences between federal-question and diversity jurisdiction, and between subject-matter and personal jurisdiction. Undaunted, Wilson filed a notice of appeal on both counts.

Before us, though, he persisted with misplaced assertions. His appellate brief—with an argument section all of two pages long—recycled the same irrelevant claims about federal-question jurisdiction when it should have been arguing about diversity jurisdiction and it failed to address personal jurisdiction at all. It's hard to pinpoint exactly what the argument is, but as best we can tell, Wilson continues to think that diversity jurisdiction is not an adequate basis for removal, and he stressed several times that this case contained no federal question. But it didn't need to. Diversity jurisdiction has long been an independent path into federal court, and thus to removal. Wilson cited no authority to the contrary, nor could he (since there is none). The list of problems goes on. Besides making other typographical and substantive errors,² he appeared [*4]  to argue that Pollan should have to pay Clarke's costs. Wilson also never filed a reply. In short, his brief—indeed, this appeal—was a legal nothingburger that wasted his client's and Pollan's resources and our time. See Frank, 848 F. App'x at 191.

In line with this pattern, Wilson let Pollan's motion for sanctions sit without any response for months, and only responded when we directed him to do so. When it finally came in, the response mostly block-quoted a two-decade-old law review article, Christopher R. McFadden, Removal, Remand, and Reimbursement Under 28 U.S.C. Section 1447(c), 87 Marq. L. Rev. 123 (2003), and an even older Eleventh Circuit case, Crowe v. Coleman, 113 F.3d 1536 (11th Cir. 1997) (which Wilson referred to as a Seventh Circuit case). Neither authority provides any support for his belief that a defendant may not remove a diversity case to federal court. (And even if they did, Wilson hadn't cited them before.) So neither shows that Wilson had a good-faith basis for his claims.

This case resembles Frank, when we sanctioned an attorney whose appellate brief was "largely devoted to frivolous argumentation" that did not address the relevant legal issue and cited inapposite caselaw, and who never bothered to file a reply brief. Frank, 848 F. App'x at 191 (internal quotation marks omitted). We could say the same about Wilson. [*5]  Thus, the arguments he presented had "no reasonable expectation of altering the district court's judgment based on law or fact." Id. (internal quotation marks omitted).

We have no reason to believe that Wilson pursued this appeal maliciously. Serious confusion and chronic lack of attention to detail, rather than bad faith, characterize his filings. But bad faith is not a prerequisite of a frivolous appeal. An appeal "may also be frivolous if it is filed out of sheer obstinacy." Larry E. Parrish. P.C. v. Bennett, 989 F.3d 452, 457-58 (6th Cir. 2021) (internal quotation marks omitted). Rule 38 does "not permit a lawyer, ostrich-like, to continue prosecuting a case while refusing to recognize the relevant legal standard or counter the opposing party's factual arguments." Kempter v. Mich. Bell Tel. Co., 534 F. App'x 487, 494-95 (6th Cir. 2013). Unfortunately, that's what Wilson did, repeatedly muddling federal-question jurisdiction with diversity jurisdiction and subject-matter jurisdiction with personal jurisdiction.

This effort fell short of what we expect from a member of the bar. See Frank, 848 F. App'x at 192. We therefore sanction Wilson in the amount of $2,000 to compensate Pollan, in part, for the time he spent defending this appeal.

¹ Wilson appears to misunderstand the one case he did cite, Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988). Carnegie-Mellon involved pendent jurisdiction, an offshoot of federal-question jurisdiction, not diversity jurisdiction. Id. at 345-47.

² To name just a few, the brief has wrong margins on one page, lacks proper quotation marks around some quotes, lacks proper italics, duplicates certain language (as if he copied and pasted something twice without realizing it), has generally inconsistent formatting, and provides no citation or authority for the standard of review.