Steinert v. Winn Group, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
March 13, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

LAWRENCE J. STEINERT,

Plaintiff,

v. No. 04-3392

WINN GROUP, INC.;
JAMES G. WINN,

Defendants-Appellees.

-------------------------

JOHN B. GAGE,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 98-CV-2564-CM)

Submitted on the briefs: *

John B. Gage, Gage Law Firm, Overland Park, Kansas, Pro se-Appellant.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
J. Nick Badgerow, Jeannie DeVeney, Michael C. Leitch, Spencer, Fane, Britt &
Browne LLP, Overland Park, Kansas, for Appellees.

Before McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.

McCONNELL, Circuit Judge.

This is an appeal from a district court order awarding appellees attorney

fees under 28 U.S.C. § 1927 against plaintiff’s attorney, pro se appellant John

Gage. Gage argues that (1) the award was inconsistent with the district court’s

denial of fees under 42 U.S.C. § 1988 and Fed. R. Civ. P. 11; (2) the award

violated due process; (3) § 1927 applies only to the multiplication of proceedings

and not to the initiation of proceedings; (4) § 1927 was inapplicable to punish his

numerous requests for extensions of time; and (5) appellees’ motion for fees

violated various procedural rules. Finding partial merit in Gage’s third argument,

we affirm in part, reverse in part, and remand for further proceedings.

B ACKGROUND

Lawrence Steinert retained attorney Gage to sue James Winn and The Winn

Group, Inc. (collectively, “Winn”). Gage filed a complaint in federal court in

December 1998, and served it in April 1999. He alleged that Winn offered to

represent Steinert in finding work as an actuary. Steinert apparently accepted and

was notified of a job opportunity with Scruggs Actuarial Service, Inc., located in

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Texas. During an interview with Scruggs, Steinert was allegedly “induced

through fraud to provide Scruggs with fifteen . . . hours of actuarial services” as

part of a conspiracy between Scruggs and Winn “to obtain slave labor.” Aplt.

App. at 7D. Steinert signed a “secrecy agreement,” but he refused to sign an

employment contract because it contained a provision requiring that he

“reimburse Scruggs . . . for any recruiting fee” if the employment relationship

ended within three years. Id. Although Steinert never became a Scruggs

employee, he filed a wage claim with the Texas Work Force Commission for the

work performed during the interview. Scruggs later sued Steinert in state court,

claiming a breach of the secrecy agreement.

Based on these allegations, Gage formulated nine claims for relief against

Winn: (1) violation of the “Kansas Private Employment Agency Act,” (KPEA) id.

at 7F; 1 (2) violation of the “Texas Personnel Employment Services Act,” (TPEA)

id. at 7H; 2 (3) breach of fiduciary duties; (4) breach of the covenant of good faith

and fair dealing; (5) negligence; (6) “exposing plaintiff to litigation with . . .

Scruggs,” id. at 7M; (7) fraud; (8) conspiracy; and (9) violation of 42 U.S.C. §§

1983 and 1985 regarding, among other things, “plaintiff’s right against

involuntary servitude and peonage,” id. at 7P.

1
Kan. Stat. Ann. §§ 44-401 through 44-412 (2000).
2
Tex. Rev. Civ. Stat. Ann. art. 5221a-7 (Vernon 1987 & Supp. 2002)
(repealed 2003).

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 On April 26, 1999, Winn answered and moved to dismiss the KPEA claim,

the fiduciary duty claim, the good-faith-and-fair-dealing claim, the

litigation-exposure claim, the Title 42 claims, and a portion of the TPEA claim.

In response, Gage embarked on a five-month extension-seeking campaign, during

which he requested nine extensions of time to file an opposition to Winn’s motion

to dismiss. The requests cited Gage’s problems with support staff, computers,

office equipment, “and other problems too numerous to detail,” Aplt. App. at 88,

as well as family illnesses, fatigue, personal doctor visits, responsibilities on

other cases, the complexity of the instant case, attendance at a legal convention,

and a camping trip with his son. Gage also sought six extensions of time to file a

motion for leave to amend or add parties, five extensions to make Fed. R. Civ. P.

26(a) initial disclosures, four extensions to respond to a demand for documents,

three extensions to provide medical, employment and tax releases, three

extensions to identify authority for any attorney fee award, two extensions to

serve a preliminary witness list, and two extensions to file a certificate of

financial interest. Winn’s counsel agreed to many of the extensions and the

district court expressly granted most of them, citing good cause or excusable

neglect, and sometimes both. Most of the extension requests violated Rule 6.1(a)

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of the United States District Court Rules for the District of Kansas, as the

requests were made after the previously extended deadlines. 3

But on October 15, 1999, Winn’s counsel moved to dismiss for failure to

prosecute. On October 20, the district court reviewed the litigation’s history and

stated:

The Court recognizes that some of plaintiff’s requested
extensions, viewed in insolation, may have been
properly based on time constrictions or excusable
neglect. A review of the entire course of the litigation,
however, shows a pattern of neglect which the Court
cannot characterize as excusable.

Aplt. App. at 104. Nevertheless, the district court declined to dismiss the case,

and instead gave Gage forty-eight hours to (1) file any motion to amend/add

parties and any opposition to Winn’s April motion to dismiss, and (2) provide

initial disclosures and respond to Winn’s production demand. But the court

cautioned Gage that it might “order that plaintiff and/or his counsel pay the costs

and attorneys’ fees attributable to their default” if Gage failed to timely comply.

Aplt. App. at 105.

3
The tardy requests also violated the district court’s scheduling order, which
provided that “[a] party seeking additional time of more than three days to
perform an act shall file and serve a motion no later than three business days
before the expiration of the specified time.” Aplee. Supp. App. at 14.

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 On October 22, 1999, Gage filed a motion for leave to amend the complaint

by adding four more claims against Winn 4 and adding Scruggs as a defendant

facing ten claims. 5 In the motion, Gage revealed for the first time that the

“primary factors” causing the delays in the case were his difficulties in obtaining

a determination from Steinert and his Texas counsel regarding their intent to

proceed against Winn and Scruggs in state court. Aplt. App. at 182D. 6 The

district court denied leave to amend.

Gage also filed a seventy-seven page opposition to Winn’s April motion to

dismiss. Therein, Gage conceded that his client’s 42 U.S.C. § 1983 claim failed

because there was no state action. But Gage devoted fourteen pages to arguing

4
Gage sought to add claims against Winn for racketeering, conspiracy to
commit malicious prosecution and to violate the Fair Labor Standards Act,
29 U.S.C. §§ 201-219 (FLSA), and retaliation for invoking the FLSA.
5
Gage sought to add claims against Scruggs for fraud, malicious
prosecution, violating 42 U.S.C. § 1985(2) and (3), breach of the
good-faith-and-fair-dealing covenant, retaliation for invoking the FLSA, and
conspiracy to commit fraud, malicious prosecution and to violate the TPEA and
FLSA.
6
Specifically, Gage stated: “Now that the difficulties experienced by
plaintiff’s counsel in attempting to obtain a determination from plaintiff and his
counsel in the Texas actions with respect to the extent to which they intended to
litigate their claims against not only Scruggs but present defendants in that state
have been resolved and a determination has been made to proceed with all claims
against all defendants in this Court, plaintiff’s counsel feels free to relate to this
Court how those problems of communication and resolution of matters relating to
the two Texas actions and not only whether to proceed in a new one but how to
coordinate that action with this one were the primary factors behind significant
delays of plaintiff in this case . . . .” Aplt. App. at 182C-182D.

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that Winn and Scruggs were liable under 42 U.S.C. § 1985(2) 7 and (3). 8

Specifically, regarding subsection (2), Gage argued that Winn and Scruggs had

conspired to sue Scruggs’ employees and Steinert in state court “to keep present

employees cowering, captive, and unable to mount any challenges to their status

as peons based upon the debt bondage Scruggs has put into effect through [its

employment] contracts.” Aplt. App. at 169. Regarding subsection (3), Gage

argued that Winn and Scruggs had conspired to violate Steinert’s “constitutional

right against involuntary servitude and peonage, both of which are regarded as

badges of slavery.” 9 Id. at 171.

Gage then embarked on another extension-seeking campaign. He untimely

sought more time to oppose a motion to compel the execution of a medical release

7
Section 1985(2) provides a monetary remedy for conspiracies to, among
other things, intimidate federal court witnesses or “deny any citizen the equal
protection of the laws” through interference with the “due course of justice in any
State or Territory.”
8
Section 1985(3) provides a monetary remedy if, among other things, “two
or more persons in any State or Territory conspire or go in disguise on the
highway or on the premises of another, for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; or for the purpose of
preventing or hindering the constituted authorities of any State or Territory from
giving or securing to all persons within such State or Territory the equal
protection of the laws . . . .”
9
Gage described the § 1985(3) claim as having no racial component and no
class-based component other than the class of persons who “were conned by
Scruggs at the last minute into signing a contract of adhesion . . . requiring those
employees to reimburse Scruggs for a recruiting fee.” Aplt. App. at 180.

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form. He resurrected his prior excuses and added that he had suffered two car

accidents, “litigat[ed] . . . the dissolution of his earlier office-sharing

arrangement,” id. at 277, experienced marital difficulties, and struggled with

“other problems too numerous and personal to mention,” id. at 278. After his

own suggested deadline expired, Gage sought to extend the time even further,

complaining of a “total computer breakdown.” Id. at 281. Even after the district

court ordered Gage to produce the executed release, Gage failed to comply,

prompting a motion to dismiss from Winn.

Gage also sought an extension in which to oppose a motion to compel the

execution of an employment-records release form, describing at length his

“continuing and taxing time problems in maintaining his workload.” Id. at 292.

And nearly one month after the scheduling order’s date for the close of discovery,

Gage moved to extend the deadlines for disclosing expert witnesses, propounding

written discovery, and completing all discovery. He cited staffing problems and

his recent diagnosis with “adult Attention Deficit and Hyperactivity Disorder.”

Id. at 361. Gage also stated that he had telephoned Winn’s counsel and offered to

dismiss the case because Steinert “could not litigate in two different states,” id. at

362, but that Winn’s counsel responded by insisting in a letter that dismissal be

conditioned on the payment of Winn’s fees and costs. In the letter, dated

January 10, 2000, Winn’s counsel commented that “the Court is empowered to

-8-
award attorneys’ fees under 28 U.S.C. § 1927 and Rule 11,” and that he would be

seeking fees under those provisions. Id. at 1214.

On January 27, 2000, the district court granted in part and denied in part

Winn’s April 1999 motion to dismiss. The court dismissed Steinert’s § 1985

claims, observing that conspiracies motivated by economic animus are not

actionable and that there were no allegations of discrimination similar to racial

bias. Also dismissed were Steinert’s KPEA, § 1983, and litigation-exposure

claims, as well as a portion of Steinert’s TPEA claim.

On March 17, 2000, facing another motion to compel and his client’s

scheduled deposition, Gage moved to dismiss the case with prejudice, stating that

Steinert was unable to continue financially. The district court granted the motion,

dismissed the case, and on August 3, 2000, entered judgment in Winn’s favor.

On August 11, 2000, Winn filed a two-page “Motion for Award of

Attorney’s Fees and for Discovery Related Thereto,” citing 42 U.S.C. § 1988 and

Fed. R. Civ. P. 41(a)(2). Aplt. App. at 416. On September 26, Winn filed a

thirteen-page document entitled “Suggestions in Support” of the motion, again

citing § 1988 and Rule 41(a)(2), but adding 28 U.S.C. § 1927 as justifying a fee

award against Gage primarily for multiplying the proceedings by seeking

numerous extensions of time, but also for asserting frivolous claims. Aplt. App.

at 422. Winn asked the court to either “require plaintiff and/or his attorney” to

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pay fees or allow him to depose Steinert regarding the frivolity of his claims and

to then supplement the Suggestions. Filed contemporaneously with the

suggestions was a “Statement of Consultation,” indicating that Winn’s counsel

had informally tried to resolve the fee issue by letter on September 15 and that

Gage did not respond. Gage filed an opposition to the fees motion and

suggestions, disputing the availability of § 1927 fees.

On September 6, 2001, the district court granted Winn’s request to depose

Steinert, but limited the scope to Winn’s “assertion of entitlement to attorney’s

fees pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1927, and under the exception to

the American Rule.” Aplt. App. at 635. The district court further ruled that

Winn’s fee request was “mooted pending completion of the post-dismissal

discovery,” but that Winn could resubmit the briefs after Steinert’s deposition.

Id. Gage unsuccessfully sought reconsideration or a protective order to minimize

Steinert’s expenses in traveling to the deposition.

During the deposition, which took place on April 24, 2002, Steinert

testified that he paid no placement fee to either Winn or Scruggs, stayed through

the fifteen-hour interview “to be polite” and because he “thought that there was a

job at the end of the rainbow,” Aplt. App. at 754, but never entered into

employment with Scruggs. Afterward, Winn resubmitted the fee request by filing

an eighteen-page “Suggestions in Support of Defendants’ Renewed Motion” on

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May 24, 2002. Id. at 678. Therein, Winn again argued entitlement to attorney

fees under 28 U.S.C. § 1927 primarily “because [Gage] multiplied the

proceedings in this case unreasonably and vexatiously” by seeking numerous

extensions of time, id. at 692, but also because Gage had “assert[ed] frivolous

claims,” id. at 694. Winn again asked the court to “require plaintiff and/or his

attorney” to pay fees. Aplt. App. at 695. Gage filed an opposition, again arguing

against the imposition of § 1927 fees.

On March 17, 2003, the district court ruled that an award of fees against

Gage was warranted under § 1927 for two reasons. First, the court found that

Gage’s “decision to move forward with [the 42 U.S.C. §§ 1983 and 1985] claims

when no clear legal basis supported them multiplied the proceedings in this case,

resulted in an increase in the cost of the proceedings, and was unreasonable and

vexatious.” Aplt. App. at 1038. Second, the court found that Gage’s requested

extensions multiplied the proceedings by “approximately 495 days,” unreasonably

and vexatiously increasing the costs of the proceedings. Id. at 1039. The court

ordered Winn’s counsel to account for the fees expended in defending against the

Title 42 claims and responding to Gage’s extension requests. Gage

unsuccessfully sought reconsideration.

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 Winn’s counsel accounted for $22,258.79 in fees. After reviewing Winn’s

counsel’s records and Gage’s objections, the district court reduced the figure and

sanctioned Gage $20,677.22 in August 2004. Gage appeals. 10

D ISCUSSION

“Any 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.” 28 U.S.C. § 1927.

Sanctions under § 1927 are appropriate when an attorney
acts recklessly or with indifference to the law. They
may also be awarded when an attorney is cavalier or
bent on misleading the court; intentionally acts without a
plausible basis; [or] when the entire course of the
proceedings was unwarranted.

10
To the extent that Gage’s notice of appeal purports to identify Steinert as a
party challenging the fee award, Gage concedes that Steinert is not an aggrieved
party with standing to appeal. And insofar as the notice of appeal designates the
August 2000 order granting Steinert’s motion to dismiss the case, denying Winn’s
motion to condition dismissal on discovery and an attorney fee award, and stating
that Winn “will have ample opportunity to establish entitlement to attorney fees,”
Aplt. App. at 414, Gage states that he only challenges the order’s fee component.
Interlocutory fee rulings that culminate in the final and appealable fee award are
reviewable on appeal from that award. See Am. Soda, LLP v. U.S. Filter
Wastewater Group, Inc., 428 F.3d 921, 924 (10th Cir. 2005) (observing that an
award of attorney fees is final and appealable when reduced to a sum certain);
Montgomery v. City of Ardmore, 365 F.3d 926, 934 (10th Cir. 2004) (recognizing
that an appeal from a final judgment permits an attack against any nonfinal order
or ruling leading up to it).

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Dominion Video Satellite, Inc. v. Echostar Satellite L.L.C., 430 F.3d 1269, 1278

(10th Cir. 2005) (quotations and citations omitted; alteration in original). We

review a district court’s award of § 1927 sanctions for an abuse of discretion.

Resolution Trust Corp. v. Dabney, 73 F.3d 262, 265 (10th Cir. 1995). But “we

review de novo any statutory interpretation or other legal analysis underlying the

district court’s decision concerning attorneys’ fees.” AeroTech, Inc. v. Estes,

110 F.3d 1523, 1527 (10th Cir. 1997).

I. Section 1927 as an Independent Basis for Sanctions

Gage first argues that the district court’s imposition of § 1927 sanctions is

incompatible with its rejection of sanctions under 42 U.S.C. § 1988 and

Fed. R. Civ. P. 41(a)(2). The court’s entire explanation for selecting § 1927 over

§ 1988 and Rule 41(a)(2) is contained in a single sentence: “Having examined

the three bases set out by [Winn] in support of [the] request for attorneys’ fees,

the parties’ arguments, and the relevant statutory and case law, the court finds

that an award of attorneys’ fees in this case is appropriate only under 28 U.S.C.

§ 1927.” Aplt. App. at 1035-36. We reject Gage’s all-or-nothing argument.

Section 1988(b) allows fees to be awarded to the party who prevails on or

against claims brought under civil rights statutes like 42 U.S.C. §§ 1983 and

1985. But when a defendant prevails, he “may recover an attorney’s fee only

where the suit was vexatious, frivolous, or brought to harass or embarrass the

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defendant.” Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983). Rule 41(a)(2),

on the other hand, allows an attorney fee award as a term or condition of a

dismissal sought by the plaintiff. 9 Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 2366, at 309 (2d ed. 1995). But if the dismissal

is with prejudice, attorney fees may be imposed under Rule 41(a)(2) only in

“exceptional circumstances.” AeroTech, 110 F.3d at 1528. An example of such a

circumstance is “when a litigant makes a repeated practice of bringing claims and

then dismissing them with prejudice after inflicting substantial litigation costs on

the opposing party and the judicial system.” Id.

Even if the district court’s selection of § 1927 as the basis for sanctioning

Gage could be equated with an affirmative ruling that there was no merit to a

§ 1988 or Rule 41(a)(2) sanction, such a ruling would not foreclose § 1927

sanctions. There are significant differences between the three fee provisions that

permit imposing a § 1927 sanction while concurrently denying a § 1988 or

Rule 41(a)(2) sanction. For instance, § 1988 is not available against attorneys,

Foster v. Mydas Assocs., Inc., 943 F.2d 139, 142 (1st Cir. 1991); Brown v.

Borough of Chambersburg, 903 F.2d 274, 276-77 (3d Cir. 1990); see also

Roadway Express, Inc. v. Piper, 447 U.S. 752, 761 & n.9 (1980), whereas § 1927

is available against only attorneys, Maguire Oil Co. v. City of Houston, 143 F.3d

205, 208 (5th Cir. 1998). And although § 1927 targets the vexatious and

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unreasonable multiplication of proceedings, a Rule 41(a)(2) sanction in a case

dismissed with prejudice is reserved for the most exceptional of abuses, such as

repeat filings and dismissals. Accordingly, we conclude that § 1927’s operation

in this case was not dependent upon the district court’s imposition of § 1988 or

Rule 41(a)(2) sanctions.

II. Due Process

Gage next argues that he was sanctioned without due process because Winn

never filed a motion for fees under § 1927. Gage points out that Winn’s August

2000 “Motion for Award of Attorney’s Fees and for Discovery Related Thereto”

only mentioned § 1988 and Rule 41(a)(2). Although Winn’s September 26, 2000

and May 24, 2002 “Suggestions” relied on § 1927, as well as § 1988 and

Rule 41(a)(2), Gage maintains that those memoranda were not motions. Thus, he

reasons, “[r]eliance of the district court on suggestions alone, rather than a motion

under § 1927, denied [him] due process of law.” Aplt. Br. at 17.

We need not dwell on this argument too long. “The basic requirements of

due process with respect to the assessment of costs, expenses, or attorney’s fees

are notice that such sanctions are being considered by the court and a subsequent

opportunity to respond.” Dominion Video, 430 F.3d at 1279 (quotation omitted).

The precise procedural protections of due process vary, depending upon the

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circumstances, because due process is a flexible concept unrestricted by any

bright-line rules. Id.

Gage knew as early as October 1999, when the district court gave him

forty-eight hours to file any motion to amend/add parties and an opposition to

Winn’s motion to dismiss, that his conduct could lead to sanctions. Winn’s

counsel reiterated that point in his January 2000 letter, even citing § 1927. And

although Winn’s August 2000 “Motion” for fees failed to cite § 1927, both of

Winn’s “Suggestions” in support of the motion sought to establish Gage’s liability

under the statute. Further, the district court ordered that Steinert be deposed

regarding § 1927, and Gage attacked the statute’s applicability on several

occasions. We conclude that Winn’s failure to cite § 1927 in the fees “Motion”

did not deny Gage due process.

Gage also contends he lacked notice that § 1927 sanctions were being

considered by the district court for filing frivolous claims. Although most of

Winn’s § 1927 argument concerned Gage’s dilatory conduct, Winn concluded

each § 1927 segment of the two “Suggestions” by stating that Gage “should be

required to bear the expense” for “assert[ing] frivolous claims, provid[ing] no

information required by the Rules and the Court, delay[ing] the case, impos[ing]

on [Winn] substantial attorneys’ fees and expenses and then dismiss[ing] his

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claims.” Aplt. App. at 433 & 694 (emphasis added). We conclude that Gage had

notice regarding the full extent of his § 1927 liability.

Additionally, Gage states that Martens v. Thomann, 273 F.3d 159 (2d Cir.

2001), applied the “procedural provisions of Rule 11 . . . to the imposition of

sanctions pursuant to 28 U.S.C. § 1927.” Aplt. Br. at 12-13. But Martens did no

such thing. Rather, the Second Circuit in that case merely observed that the

“imposition of sanction[s] under section 1927 . . . requires notice and an

opportunity to be heard.” Id. at 178 n.13. We decline Gage’s invitation to hold

that due process is thwarted when § 1927 is invoked with “other motions or

requests,” Fed. R. Civ. P. 11(c)(1)(A), or when the offending party is not given a

“safe harbor” in which to avoid sanctions by withdrawing the challenged claim,

Fed. R. Civ. P. 11 Advisory Committee’s Note (1993 amendments). In so

declining, we join the Second Circuit in expressly recognizing that “[s]ection

1927 contains no counterparts to the safe harbor and separate motion

requirements of Rule 11.” Ted Lapidus, S.A. v. Vann, 112 F.3d 91, 96 (2d Cir.

1997); see also Ridder v. City of Springfield, 109 F.3d 288, 297 (6th Cir. 1997)

(stating that, “[u]nlike Rule 11 sanctions, a motion for excess costs and attorney

fees under § 1927 is not predicated upon a ‘safe harbor’ period”).

Nor will we hold that § 1927 is necessarily inoperable “after disposition of

a case,” Aplt. Br. at 21. Although the Third Circuit has adopted a “supervisory

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rule” that sanction issues under Rule 11 and the inherent power of the court must

be decided before or concurrent to the final judgment, and hinted that the rule

applies to § 1927, see Prosser v. Prosser, 186 F.3d 403, 405-06 (3d Cir. 1999),

we see no reason to extend such a rule to § 1927 in this circuit. Unlike Rule 11,

the application of § 1927 may become apparent only at or after the litigation’s

end, given that the § 1927 inquiry is whether the proceedings have been

unreasonably and vexatiously multiplied. Even the Third Circuit seems to

recognize that Rule 11 does not require such a “protracted scrutiny,” Mary Ann

Pensiero, Inc. v. Lingle, 847 F.2d 90, 99 (3d Cir. 1988), because Rule 11 focuses

only on a challenged pleading or written motion. Inherent-power sanctions are

also capable of a narrow focus, as the inquiry is whether a person has abused the

judicial process by acting “in bad faith, vexatiously, wantonly, or for oppressive

reasons,” Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991) (quotations

omitted). But we need not decide whether that capability necessarily allows a

court to reach abusive conduct earlier through its inherent power than through

§ 1927. We simply conclude that § 1927 sanctions are not untimely if sought or

imposed after final judgment. See Ridder, 109 F.3d at 297.

With that said, however, resort to § 1927 should not be unnecessarily or

unreasonably delayed. In this case, Winn promptly sought § 1927 fees after the

dismissal and again after Steinert’s deposition, and the district court decided the

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issue after briefing, discovery, and then more briefing. Although we believe that

the district court should have curtailed the parties’ nearly four-year odyssey over

attorney fees, we will not invalidate the fee award on the record before us, which

shows that the parties filed numerous and extensive briefs on the fee issue, and

that Gage sought at least ten extensions of time to comply with fee briefing

deadlines.

III. Initiation versus Multiplication

Gage next argues that § 1927 only applies to the multiplication of

proceedings and not to the initiation of proceedings. This argument has support.

See, e.g., DeBauche v. Trani, 191 F.3d 499, 511 (4th Cir. 1999); Zuk v. E. Pa.

Psychiatric Inst., 103 F.3d 294, 297 (3d Cir. 1996); In re Keegan Mgmt. Co., Sec.

Litig., 78 F.3d 431, 435 (9th Cir. 1996). But see In re TCI, Ltd., 769 F.2d 441,

448 (7th Cir. 1985). Gage maintains, then, that the district court erred in

sanctioning him for filing the initial complaint. We agree, to the extent that the

court actually did so. The court stated that the proceedings had been multiplied

by Gage’s “decision to move forward with [the § 1983 and § 1985] claims when

no clear legal basis supported them,” Aplt. App. at 1038, and then directed Winn

to account for the fees incurred “in connection with [the] defense of the dismissed

§ 1983 and § 1985 claims.” Id. at 1041. But afterward, when reviewing Winn’s

counsel’s accounting, which included fees for drafting the motion to dismiss, the

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court said that Gage had violated § 1927 by “asserting” the § 1983 and § 1985

claims. Id. at 1228. This court has encountered similarly imprecise language

before.

In Dreiling v. Peugeot Motors of America, Inc., 768 F.2d 1159, 1165

(10th Cir. 1985), this court affirmed a § 1927 sanction against an attorney who,

according to the district court, had “continued to assert” bogus claims “long after

it would have been reasonable and responsible to have dismissed the claims,” and

who “commenced the action . . . without grounds and thereafter maintained ‘the

litigation in bad faith, vexatiously, wantonly and for oppressive reasons.’” This

court further identified a bad faith multiplication of proceedings in the attorney’s

filing of an amended complaint prior to receiving discovery essential to

understanding one of the defendant’s roles in the litigation. Id. at 1166.

Insofar as Dreiling includes “commenc[ing] the action without grounds”

amongst the court’s § 1927 reasoning, we do not think the court meant to say that

§ 1927 liability could be imposed for initiating meritless litigation. Rather, it

appears the court either included this language as a precursor to its discussion of

the merits or simply incorporated the district court’s use of inherent-power

terminology, which would have been appropriate for discussing the bad faith

initiation of litigation, see Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir.

1986). In any event, we read Dreiling in line with other courts that recognize

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§ 1927’s incentive for attorneys to regularly re-evaluate the merits of their claims

and to avoid prolonging meritless claims, see, e.g., Jolly Group, Ltd. v. Medline

Indus., Inc., 435 F.3d 717, 720 (7th Cir. 2006); Thomas v. Capital Sec. Servs.,

Inc., 836 F.2d 866, 875 (5th Cir. 1988), but we reiterate that § 1927 covers only

the multiplication of “the proceedings in any case,” 28 U.S.C. § 1927. 11 This

unambiguous statutory language necessarily excludes the complaint that gives

birth to the proceedings, as it is not possible to multiply proceedings until after

those proceedings have begun. 12 To the extent that the Seventh Circuit held

otherwise in In re TCI, Ltd., 769 F.2d at 448, we find the court’s reasoning

questionable. There, the Seventh Circuit looked beyond § 1927’s language to

(1) a failed amendment that would have required a warning prior to sanctions;

and (2) the “new” Fed. R. Civ. P. 11, which, the court observed, “requires the

11
In Miera v. Dairyland Ins. Co., 143 F.3d 1337 (10th Cir. 1998), we
relegated this language to a footnote while mentioning that defendant’s trial
counsel had requested § 1927 sanctions for the “filing of the complaint.” Id.
at 1342 & n.4 (italics omitted). Although we reversed the district court’s sanction
award, which was based on plaintiff’s counsel’s failure to research the law “once
the case was removed” to federal court, id. at 1343, and his “failure to cite
[controlling precedent] in any motion or response,” id. at 1342, we did not
attempt to dispel the notion that § 1927 can reach the filing of an initial
complaint. Consequently, we may have inadvertently intimated that
§ 1927 can reach more than the multiplication of proceedings.
12
We do not address here whether “proliferative uses of complaints . . . fall
within the statute.” Gregory P. Joseph, Sanctions: The Federal Law of Litigation
Abuse 389 (3d ed. 2000) (suggesting that § 1927’s language would not be
offended, for example, by sanctioning counsel who had filed the same meritless
complaint in other courts).

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attorney to take care before filing a complaint.” Id. We see no reason to look

past § 1927’s clear language. See BedRoc Ltd., LLC v. United States, 541 U.S.

176, 187 n.8 (2004) (recognizing “longstanding precedents that permit resort to

legislative history only when necessary to interpret ambiguous statutory text”).

Because Gage acquiesced in Winn’s first and only attempt to dismiss the

§ 1983 claim, we cannot say that Gage multiplied the proceedings after pleading

this claim in the complaint. Consequently, the district court abused its discretion

in awarding sanctions based on this claim. But Gage did oppose the dismissal of

the § 1985(2) and (3) claims and even sought to expand their scope in the motion

to amend/add parties, requiring Winn to further address § 1985’s viability in the

reply in support of dismissal and in the response to the motion to amend/add

parties. Given the patently meritless nature of the § 1985 claims, 13 we conclude

13
See United Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 837
(1983) (observing that § 1985(3) was not intended “to reach conspiracies
motivated by bias towards others on account of their economic views, status, or
activities”); Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (stating that
§ 1985(3) requires “some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ action”); Kush v. Rutledge,
460 U.S. 719, 726 (1983) (recognizing that § 1985(2) proscribes conspiracies to
interfere with the due course of justice in any state because of “some racial, or
perhaps otherwise class-based, invidiously discriminatory animus” and
conspiracies to interfere with federal proceedings); Pollock v. Williams, 322 U.S.
4, 17-18 (1944) (commenting that, “in general the defense against oppressive
hours, pay, working conditions, or treatment is the right to change employers,”
rather than the rights guaranteed by the Thirteenth Amendment against slavery
and involuntary servitude); Butler v. Perry, 240 U.S. 328, 332 (1916) (stating that
(continued...)

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that Gage’s conduct in pursuing those claims in the face of Winn’s motion to

dismiss multiplied the proceedings recklessly and with indifference to

well-established law.

We stress, however, that § 1927 could have been applied only to Gage’s

conduct in attempting to preserve and advance the § 1985 claims beyond the

complaint. Gage did nothing with these claims until after Winn moved to dismiss.

Thus, the district court abused its discretion to the extent it awarded fees based on

Winn’s counsel’s preparing the April 1999 motion to dismiss. Accordingly, this

matter will be remanded for the district court to deduct from the sanctions award

the fees generated by Winn’s counsel in attacking the Title 42 claims via the April

1999 motion.

13
(...continued)
the Thirteenth Amendment “was adopted with reference to conditions existing
since the foundation of our government, and the term ‘involuntary servitude’ was
intended to cover those forms of compulsory labor akin to African slavery which,
in practical operation, would tend to produce like undesirable results”).

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 IV. Extension Requests as a Basis for § 1927 Sanctions

Gage states that he cannot be sanctioned under § 1927 for seeking

extensions of time because “each order granting an extension found ‘good cause’

or ‘excusable neglect,’” Aplt. Br. at 27, and that such findings do not comport

with an unreasonable or vexatious multiplication of the proceedings. We

disagree. In requesting every extension from May 1999 through October 1999,

Gage concealed from the district court the “primary factors” responsible for his

delay. Aplt. App. at 182D. The court’s findings of excusable neglect and good

cause are meaningless given this deception. Furthermore, on October 20, 1999,

when the court looked back upon the “entire course of the litigation,” it found a

pattern of inexcusable neglect. Id. at 104.

Gage also argues that § 1927 is not available to punish excessive extension

requests. Again, we disagree. Section 1927 targets conduct that multiplies the

proceedings, which, when “viewed objectively, manifests either intentional or

reckless disregard of the attorney’s duties to the court.” Miera v. Dairyland Ins.

Co., 143 F.3d 1337, 1342 (10th Cir. 1998) (quotation omitted). We have no

difficulty deciding that Gage’s numerous and predominantly untimely requests for

extensions of time met this standard. See Julien v. Zeringue, 864 F.2d 1572,

1575-76 (Fed. Cir. 1989) (imposing § 1927 sanctions on appeal against an

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attorney who, among other things, had “continually missed deadlines” and

“requested at least 10 extensions of time to file his briefs”).

V. Rule Compliance

Finally, Gage contends that Winn’s motion for fees violated Rules 7(b)(1)

and 54(d)(2)(B) of the Federal Rules of Civil Procedure by not specifying the

judgment and the basis for the ultimate award. But the purpose of Rule 7 is

notice, Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 104

(6th Cir. 1995), which Gage had, see supra Part II, and Rule 54(d)(2)(B) is not

applicable to 28 U.S.C. § 1927, see Fed. R. Civ. P. 54(d)(2)(E).

Gage also argues that Winn violated local rule 54.2, which requires the

party seeking a fee award to first attempt an informal resolution and, if

unsuccessful, to file a “statement of consultation” and a supportive memorandum

within thirty days of filing the motion, U.S. Dist. Ct. Rules, D. Kan. Rule 54.2.

Although Winn’s statement and memorandum were filed sixteen days late, the

district court found the late filing to be excusable, and we see no abuse of

discretion in that regard. 14

14
To the extent Gage brings to our attention Winn’s counsel’s “fail[ure] to
initiate consultation . . . within 30 days after filing the[ ] motion,” Aplt. Br. at 24,
we note that Winn’s counsel attempted consultation within thirty-five days of
filing the motion, but Gage simply “disregarded” the attempt because it was late,
Aplt. App. at 521. Gage’s disregard of the consultation attempt, even though
untimely, was not consistent with the spirit of good faith required whenever
(continued...)

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 C ONCLUSION

Section 1927 was properly invoked to punish the serious and standard

disregard for the orderly process of justice that occurred when Gage filed

excessive and tardy extension requests and sought to keep the § 1985(2) and (3)

claims alive. But since the district court went slightly further, and sanctioned

Gage for simply pleading those claims, we AFFIRM IN PART, REVERSE IN

PART, AND REMAND for proceedings consistent with this opinion. 15 Winn’s

motion for attorney fees on appeal is DENIED.

14
(...continued)
counsel must endeavor an informal resolution. Cf. Halas v. Consumer Servs.,
Inc., 16 F.3d 161, 165 (7th Cir. 1994) (stating that the intent of a local discovery
rule requiring consultation between counsel was to require a good faith effort in
informal dispute resolution).
15
We remind the district court that on remand sanctions under either its
inherent authority or 28 U.S.C. § 1927 are available to address any further abuse
of the judicial process.

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