United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 15, 1998 Decided June 23, 1998
No. 97-7107
Linda E. LaPrade,
Liddle & Robinson, L.L.P,
Appellant
v.
Kidder Peabody & Co., Incorporated,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 91cv03330)
Jacob A. Stein argued the cause for appellant, with whom
George A. Fisher was on the briefs.
Andrew J. Schaffran argued the cause for appellee, with
whom Kathy B. Houlihan was on the brief.
Before: Williams, Randolph and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: In June 1992, the district court
stayed an action brought by Linda E. LaPrade against her
former employer, Kidder Peabody & Co., because the dispute
was covered by a valid arbitration agreement. Due to vari-
ous delays, the first set of arbitration sessions did not take
place until May and June of 1995 and the next set was not
scheduled to begin until November 1996. The day before the
arbitration was to resume, LaPrade's counsel, appellant Lid-
dle & Robinson, L.L.P., obtained an ex parte order from a
New York state court staying the arbitration. Liddle &
Robinson did not inform that court of the district court's
earlier order staying the original action and retaining juris-
diction. On the motion of Kidder Peabody, the district court
lifted the stay imposed by the state court, imposed sanctions
against Liddle & Robinson under 28 U.S.C. s 1927 for its
"vexatious and dilatory tactics," and awarded Kidder Peabody
$74,951.14 in attorneys' fees. On appeal, Liddle & Robinson
contends that the district court did not have jurisdiction to
enter this order and that it abused its discretion by imposing
sanctions. We affirm.
I.
On December 31, 1991, LaPrade filed suit against Kidder
Peabody in the United States District Court for the District
of Columbia. She asserted various common law and statuto-
ry claims arising from her employment and termination by
Kidder Peabody; jurisdiction was based on diversity of citi-
zenship under 28 U.S.C. s 1332. Because LaPrade and
Kidder Peabody had entered into an arbitration agreement,
Kidder Peabody moved to stay the action pursuant to section
3 of the Federal Arbitration Act ("Arbitration Act"), which
directs that the court "shall on application of one of the
parties stay the trial of the action until such arbitration has
been had in accordance with the terms of the agreement." 9
U.S.C. s 3 (1994). On June 24, 1992, the district court
granted Kidder Peabody's motion to stay the action pending
arbitration and retained jurisdiction, instructing "the parties
[to] notify the Court once arbitration is completed as to what
further proceedings in this Court are appropriate."
Arbitration did not proceed smoothly. After appealing the
initial stay order unsuccessfully and filing a second action in
the district court against Kidder Peabody, which was consoli-
dated with the first and likewise stayed pending arbitration,1
LaPrade finally commenced arbitration before the National
Association of Securities Dealers ("NASD") on September 30,
1993. After extensive discovery and repeated scheduling
conflicts, the NASD held twelve hearing sessions in New
York City between May 1 and June 21, 1995, almost three
years after the initial stay order by the district court. Addi-
tional scheduling conflicts and a dispute among the members
of the arbitration panel resulted in further delays, and the
next round of hearings was not scheduled to begin until
November 20, 1996.
The day before the hearings were set to recommence,
however, Liddle & Robinson, whom LaPrade had retained to
represent her before the NASD, filed an action in New York
state court seeking an ex parte order that "the arbitration
hearings ... be stayed and the parties referred to their court
remedies, or in the alternative, that the NASD be ordered to
disqualify the present arbitration panel, and for such other
and further relief as may be just and proper." Notably,
Liddle & Robinson did not notify the New York state court
that the federal district court had earlier entered an order
staying LaPrade's action pending arbitration but retaining
jurisdiction. The New York state court issued the requested
ex parte order staying the arbitration, and the series of nine
arbitration sessions scheduled to begin the next day was
canceled.
Informed of Liddle & Robinson's ex parte actions before
the New York state court only after the stay was granted,
__________
1 In its order of March 23, 1994, which consolidated the first
and second actions, the district court again directed the parties to
"notify the Court once arbitration is completed as to what further
proceedings in this Court are appropriate."
Kidder Peabody returned to the district court on November
25, 1996, requesting an emergency order directing LaPrade
to withdraw her petition in New York state court, holding
Liddle & Robinson in contempt, and imposing sanctions pur-
suant to 28 U.S.C. s 1927. The district court denied the
request for a temporary restraining order, but subsequently
issued a preliminary injunction and granted Kidder Peabody's
other requests for relief. The New York state court action,
the district court found, "constitutes an interference with the
arbitration currently pending between the parties ... [and]
an interference with the jurisdiction of this Court." Thus, the
district court enjoined LaPrade and her counsel from engag-
ing in further proceedings before the New York state court,
lifted the stay imposed by that court, and entered sanctions
against Liddle & Robinson. On this last point, the district
court ordered that:
plaintiff's counsel, the law firm of Liddle & Robinson, ...
shall compensate Kidder, Peabody & Co., for the vexa-
tious and dilatory tactics of plaintiff's counsel in filing ex
parte papers in the State Court proceeding, without any
notice to the State Court of the actions pending before
this Court, and without any notice to the State Court of
this Court's arbitration orders, all of which multiplied the
proceedings.
The district court directed Kidder Peabody to file a state-
ment of "the attorneys' fees, costs, and other expenses rea-
sonably incurred as a result of the improper activities of
plaintiff's counsel." Thereafter, Kidder Peabody submitted a
figure of $83,279.04, based on a total of 333.5 hours of work
by six partners, seven associates, two legal assistants, and
four other staffers of Kidder Peabody's counsel. Eighty-six
percent of the hours worked by partners was attributable to
one partner, however, and eighty-nine percent of the hours
worked by associates was attributable to three particular
associates. Liddle & Robinson objected to both the district
court's decision to grant attorneys' fees and the amount
sought by Kidder Peabody. In particular, Liddle & Robinson
claimed that the award of fees was inappropriate because its
pursuit of an ex parte state court order was a tactic previous-
ly approved by the Second Circuit in McMahon v. Shear-
son/American Express, Inc., 896 F.2d 17 (2d Cir. 1990); that
the attorneys' fees statement showed that Kidder Peabody's
counsel performed duplicative and excessive work (although
Liddle & Robinson did not challenge the reasonableness of
the rate charged per hour); that there was no proof that
Kidder Peabody had actually "incurred" the claimed ex-
penses; and that an evidentiary hearing was necessary to
determine which fees and expenses were reasonably incurred.
The district court rejected Liddle & Robinson's attempts to
reargue the merits of the sanctions award but agreed that
Kidder Peabody's proposed figure for attorneys' fees required
some adjustment. The court found that Kidder Peabody's
counsel had expended an unreasonable number of hours on
the project; thus, the district court reduced the award from
the requested figure of $83,279.04 to a figure ten percent
lower: $74,951.14.
II.
Liddle & Robinson first contends that the district court
lacked jurisdiction to enter the sanctions order. Although the
district court clearly intended to retain jurisdiction over the
stayed actions, Liddle & Robinson maintains that it could not
do so under the Arbitration Act. The district court only
stayed the actions and never actually ordered the parties to
enter arbitration. Hence, Liddle & Robinson contends, it had
no jurisdiction over the arbitration proceedings in New York
City, and thus no jurisdiction to impose sanctions based on
Liddle & Robinson's conduct related to those proceedings.
Liddle & Robinson's contention turns on the distinction
between sections 3 and 4 of the Arbitration Act. Section 3
empowers a district court only to stay an action, leaving to
the claimant the choice of arbitrating the claims or abandon-
ing them.2 See 9 U.S.C. s 3; see also The Anaconda v.
__________
2 Section 3 of the Arbitration Act provides:
American Sugar Refining Co., 322 U.S. 42, 45 (1944). Sec-
tion 4 allows the court to issue orders directing arbitration.3
See 9 U.S.C. s 4 (1994). The district court stayed the actions
brought by LaPrade against Kidder Peabody under section 3,
and did not direct arbitration under section 4; hence, Liddle
& Robinson contends that the district court had "no power to
superintend and direct the pending arbitration in New York
City."
However, the district court did not have to rely upon the
Arbitration Act for jurisdiction. The district court's jurisdic-
tion derived from the original diversity suit, which was only
__________
If any suit or proceeding be brought in any of the courts of the
United States upon any issue referable to arbitration under an
agreement in writing for such arbitration, the court in which
such suit is pending, upon being satisfied that the issue in-
volved in such suit or proceeding is referable to arbitration
under such an agreement, shall on application of one of the
parties stay the trial of the action until such arbitration has
been had in accordance with the terms of the agreement,
providing the applicant for the stay is not in default in proceed-
ing with such arbitration.
9 U.S.C. s 3.
3 Section 4 of the Arbitration Act provides, in relevant part:
A party aggrieved by the alleged failure, neglect, or refusal of
another to arbitrate under a written agreement for arbitration
may petition any United States district court which, save for
such agreement, would have jurisdiction under title 28, in a civil
action or in admiralty of the subject matter of a suit arising out
of the controversy between the parties, for an order directing
that such arbitration proceed in the manner provided for in
such agreement.... The court shall hear the parties, and
upon being satisfied that the making of the agreement for
arbitration or the failure to comply therewith is not in issue,
the court shall make an order directing the parties to proceed
to arbitration in accordance with the terms of the agreement.
The hearing and proceedings, under such agreement, shall be
within the district in which the petition for an order directing
such arbitration is filed.
9 U.S.C. s 4.
stayed (not dismissed) pending the results of arbitration.
While Liddle & Robinson is correct that section 3 of the
Arbitration Act was not itself a source of jurisdiction for the
district court to consider Kidder Peabody's motion for sanc-
tions, see Moses H. Cone Memorial Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 25 n.32 (1983), it also did not divest the
district court of jurisdiction over the case: "The section
obviously envisages action in a court on a cause of action and
does not oust the court's jurisdiction of the action, though the
parties have agreed to arbitrate." The Anaconda, 322 U.S. at
44; accord Morris v. Morgan Stanley & Co., 942 F.2d 648,
653-54 (9th Cir. 1991); Transportes Caribe, S.A. v. M/V
Feder Trader, 860 F.2d 637, 638-39 (5th Cir. 1988); see also
Merill Lynch, Pierce, Fenner & Smith, Inc. v. Cunningham,
736 F. Supp. 887, 889 (N.D. Ill. 1990).
Even if Liddle & Robinson means to contend that, although
the district court still had jurisdiction over the original suit,
its jurisdiction was suspended until the arbitration was com-
plete, the contention similarly fails. The Arbitration Act
contemplates that courts should not interfere with arbitra-
tions by making interlocutory rulings, see, e.g., Prima Paint
Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 (1967);
In re Arbitration Between Michaels & Mariforum Shipping,
S.A., 624 F.2d 411, 414 (2d Cir. 1980), but this general
proposition does not aid Liddle & Robinson. The rationale
behind the principle disfavoring judicial interference with
arbitration supports what the district court did here. The
principle is based on the "congressional purpose that the
arbitration procedure, when selected by the parties to a
contract, be speedy and not subject to delay and obstruction
in the courts." Prima Paint Corp., 388 U.S. at 404; accord
Moses H. Cone, 460 U.S. at 23. In the instant case, the
district court stayed LaPrade's actions, instructing her, in
effect, that she could not litigate her claims directly in court,
but could only arbitrate them or abandon them. If a party in
her position could subsequently go to another court in an
attempt to avoid the effect of the order, that party would
have an easy route to delay and obstruct the proceedings.
The Arbitration Act contemplates no such illogical result and
Liddle & Robinson can point to no persuasive authority
suggesting that conclusion.
Rather than interfering with the arbitration proceeding, the
district court was attempting to protect that proceeding and
the effect of its own order. The district court had ordered
LaPrade that she could not pursue her civil remedies without
first submitting to arbitration but, in clear contradiction of
that order, Liddle & Robinson appealed to the state court to
stay the arbitration and remit the parties to judicial remedies,
without even informing that court of the district court's
instructions. Clearly, the district court had jurisdiction to
address this situation: it retained jurisdiction over the origi-
nal suit, and the Arbitration Act did not divest it of jurisdic-
tion to ensure that the parties adhered to its previous order
under the Arbitration Act. Liddle & Robinson's contention
that the district court was without jurisdiction to impose
sanctions is meritless.4
III.
The question remains whether the district court abused its
discretion in imposing sanctions for Liddle & Robinson's
"vexatious and dilatory tactics" under 28 U.S.C. s 1927, which
provides:
Any attorney or other person admitted to conduct cases
in any court of the United States or any Territory
thereof who so multiplies the proceedings in any case
__________
4 The Arbitration Act does not provide that the district court
loses venue if the arbitration proceeds in another judicial district.
See, e.g., Apex Plumbing Supply, Inc. v. U.S. Supply Co., 1998 WL
188633, at *2-*4 (4th Cir. Apr. 22, 1998); Smiga v. Dean Witter
Reynolds, Inc., 766 F.2d 698, 706 (2d Cir. 1985). We have no
occasion to address whether other state or federal courts could have
provided Kidder Peabody with similar relief. It suffices to note
that once venue was established in regard to institution of the
lawsuit, see Minnesota Mining & Mfg. Co. v. Eco Chem., Inc., 757
F.2d 1256, 1264 (Fed. Cir. 1985), the district court did not lose
venue because the parties arbitrated elsewhere.
unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses, and
attorneys' fees reasonably incurred because of such con-
duct.
28 U.S.C. s 1927 (1994). Liddle & Robinson contends that
the district court abused its discretion in imposing sanctions,
in setting the level of the attorneys' fees award, and in
refusing to hold an evidentiary hearing on the attorneys' fees
issue. This court reviews a district court's decision to award
attorneys' fees under 28 U.S.C. s 1927, and the way it
chooses to set the award, only for abuse of discretion. See
Copeland v. Marshall, 641 F.2d 880, 901 (D.C. Cir. 1980) (en
banc). Although this court has not directly established the
standard of review for a district court's decision whether to
hold an evidentiary hearing on an attorneys' fees application,
the appropriate standard again appears to be abuse of discre-
tion. See D.D.C.R. 108(f); McLaughlin v. Bradlee, 803 F.2d
1197, 1205-06 (D.C. Cir. 1986); Copeland, 641 F.2d at 905.
We find none.
A.
First, Liddle & Robinson contends that the district court's
decision to impose sanctions under 28 U.S.C. s 1927 was an
abuse of discretion because the decision to seek an ex parte
order in New York state court was justified by precedent and
thus neither "unreasonable" nor "vexatious" under the stat-
ute. Liddle & Robinson maintains that the Second Circuit
specifically approved this tactic in a substantially similar case,
McMahon v. Shearson/American Express, Inc., 896 F.2d 17
(2d Cir. 1990), and thus that Liddle & Robinson's actions
could not have been so unreasonable as to merit sanctions.
A review of McMahon shows how different that case is
from this one. Plaintiffs Eugene and Julia McMahon sued
defendant Shearson/American Express ("Shearson") in dis-
trict court based on allegations of fraud and misrepresenta-
tion in its management of their profit sharing and pension
plans. See id. at 19. Upon opening their accounts, the
McMahons had signed customers' agreements that included
an arbitration provision, and after they filed their complaint,
Shearson sent them a letter indicating its intent to file a
motion to compel arbitration and requesting that they select
an arbitral forum, as was their right under the arbitration
provision. See id. The McMahons responded that the issue
of the arbitral forum was premature and that they would
select a forum only after a court declared the arbitration
provision enforceable, at which point Shearson, claiming that
the McMahons had waived their right, chose the New York
Stock Exchange ("NYSE") as the forum. See id. On Shear-
son's motion, the district court stayed certain portions of the
action under section 3 of the Arbitration Act. See id. at 19-
20. When the appeals from that order were completed, the
issue of arbitral forum resurfaced: the McMahons claimed
that they retained the option to choose a forum, while Shear-
son maintained that its previous selection of the NYSE was
binding. See id. at 20. Declining to resolve the issue, the
district court directed the parties to reach agreement on their
own, but the two sides subsequently began two separate
arbitration proceedings--Shearson at the NYSE and the
McMahons at the American Arbitration Association. See id.
At that point, seeking to vindicate his clients' right to choose
the arbitral forum, the McMahons' counsel filed an ex parte
motion in New York state court for an order to show cause
why the NYSE arbitration should not be stayed. See id.
The defendant sought relief from the district court, and the
McMahons' counsel agreed to postpone the proceedings be-
fore the state court. See id. Ruling that the defendant's
initial election of the NYSE forum was valid, the district
court imposed sanctions against plaintiffs' counsel under both
Federal Rule of Civil Procedure 11 and 28 U.S.C. s 1927.
See id. at 20-21.
Because of its conclusion that the actions of the McMahons'
counsel had not been taken in bad faith, the Second Circuit
reversed the imposition of sanctions under 28 U.S.C. s 1927.
See id. at 23-24. Noting that the district court had expressly
declined to decide the issue of the arbitral forum, the court
sketched the counsel's unpalatable options:
Examining [counsel's] alternatives for preserving his
clients' right to choose a forum, we conclude that his
choices were limited. One was a return to federal
court--where the judge had already refused to rule.
Another was to seek relief from state court, pursuant to
a New York statute governing arbitration.
Id. at 23. The court concluded that counsel's "decision to
involve the state court in the dispute was perhaps unortho-
dox, but under the circumstances ... [could not] be charac-
terized either as subterfuge or an attempt to evade the
jurisdiction of the federal court," id., but rather seemed "a
good faith attempt to preserve what counsel believed to be his
clients' right to choose an arbitral forum," id. at 24.
McMahon is distinguishable from the instant case in many
important respects. Perhaps most notably, the McMahons'
counsel went to the state court for resolution of an issue the
district court had declined to settle; in the instant case, by
contrast, Liddle & Robinson went to state court for relief that
was plainly inconsistent with the previous district court order.
The McMahons' counsel filed for an ex parte order in order to
protect the arbitration procedure by establishing the correct
arbitral forum, not to circumvent the arbitration altogether;
as the Second Circuit emphasized, the attempt to secure an
ex parte order was not "an attempt to evade the jurisdiction
of the federal court," id. at 23. Here the opposite appears
true. See supra Part II. Furthermore, the timing of Liddle
& Robinson's excursion to state court was more egregious:
the McMahon's counsel went to state court at the start of the
arbitration, see McMahon v. Shearson/American Express
Inc., 709 F. Supp. 369, 372 (S.D.N.Y. 1989), rev'd, 896 F.2d 17
(2d Cir. 1990), whereas Liddle & Robinson sought state court
relief after extensive discovery had been completed, on the
day before hearings were to recommence after a seventeen-
month delay. Finally, unlike Liddle & Robinson, the McMa-
hons' counsel at least informed the state court of the district
court's role in the proceedings, although the district court
found the representations to the state court deceptive. See
id. at 375 n.22. McMahon does not justify Liddle & Robin-
son's actions.
Four and one-half years after the initial suit was stayed
and the day before hearings were to restart after seventeen
months of delay, Liddle & Robinson filed an ex parte action in
New York state court to stay the hearings, without informing
that court of the district court's orders or the district court's
ongoing jurisdiction. Under the circumstances, the district
court was well within its discretion to impose sanctions under
28 U.S.C. s 1927.
B.
Second, Liddle & Robinson contends that, even if the
district court could have imposed sanctions, it did not support
its order with sufficient findings of fact. This court has not
yet established whether the standard for imposition of sanc-
tions under 28 U.S.C. s 1927 should be "recklessness" or the
more stringent "bad faith." See United States v. Wallace,
964 F.2d 1214, 1218-19 (D.C. Cir. 1992). Liddle & Robinson
contends that, no matter the proper standard, the district
court did not make findings of fact sufficient to support its
decision to sanction. To the contrary, the record makes clear
that, no matter which standard applies, the district court
found that Liddle & Robinson's actions qualified.
Although the district court concluded that Liddle & Robin-
son's actions were "vexatious and dilatory" and "improper,"
and clearly believed that Liddle & Robinson was acting in bad
faith, Liddle & Robinson objects to the district court's failure
actually to make a finding of recklessness or bad faith. In
the key passage in the order imposing sanctions, the court
ordered,
pursuant to 28 U.S.C. s 1927, that plaintiff's counsel, the
law firm of Liddle & Robinson, shall compensate Kidder,
Peabody & Co., for the vexatious and dilatory tactics of
plaintiff's counsel in filing ex parte papers in the State
Court proceeding, without any notice to the State Court
of the actions pending before this Court, and without any
notice to the State Court of this court's arbitration
orders, all of which multiplied the proceedings.
Later, in the order setting the award, the court specifically
found that Liddle & Robinson's actions "unreasonably and
vexatiously" multiplied the proceedings. These passages cer-
tainly imply that the district court thought the firm was
acting in bad faith, but Liddle & Robinson is correct that the
district court never stated this explicitly in its orders.
The fact that the district court never explicitly said the
words "bad faith" or "recklessness" does not demonstrate an
abuse of discretion: "these words are not talismans required
for affirmance." Eisenman v. Peoro (In re Peoro), 793 F.2d
1048, 1051 (9th Cir. 1986). According to the language of 28
U.S.C. s 1927, the district court must find that "the offending
attorney's multiplication of the proceedings was both 'unrea-
sonable' and 'vexatious.' " Travelers Ins. v. St. Jude Hosp. of
Kenner, La., 38 F.3d 1414, 1416-17 (5th Cir. 1994) (quoting
FDIC v. Conner, 20 F.3d 1376, 1384 (5th Cir. 1994)). For
such a finding to be valid, "evidence of recklessness, bad faith,
or improper motive must be present." Id. at 1517. Here the
district court made the requisite findings that Liddle &
Robinson's actions were unreasonable and vexatious, and
there was sufficient evidence of bad faith and recklessness to
support these findings. Moreover, given the ample evidence
that the district court believed Liddle & Robinson acted in
bad faith and recklessly,5 it would be an empty formalism to
find an abuse of discretion simply because the district court
failed to invoke the magic words "bad faith" or "reckless-
ness," and we decline to do so.
C.
Third, Liddle & Robinson contends that, even if sanctions
were appropriate, the district court abused its discretion in
awarding $74,951.14. In particular, Liddle & Robinson con-
tends that the statement filed by Kidder Peabody was so
"outrageously unreasonable" that, under Environmental De-
__________
5 In numerous pointed statements to a representative of Liddle
& Robinson in two hearings, the district court made clear its view
that the facts supported an award of attorneys' fees whether the
proper standard was recklessness or bad faith.
fense Fund, Inc. v. Reilly, 1 F.3d 1254 (D.C. Cir. 1993), the
district court ought to have denied Kidder Peabody any
award at all. Id. at 1258. Instead, considering the proposed
fee award of $83,279.04 based on 333.5 hours of work by
Kidder Peabody's counsel, the district court awarded
$74,951.14, a figure ten percent below Kidder Peabody's
lodestar figure.
Admittedly, 333.5 hours of work seems a high figure for
actions taken in response to Liddle & Robinson's ex parte
action in state court, and it seems a bit excessive that six
partners, seven associates, two legal assistants, and four
other staffers worked on the matter. Although Liddle &
Robinson did not challenge the rate charged per hour, the
district court agreed that the basis for the resulting fees was
unreasonable "both in terms of the number of attorneys and
the number of hours." Faced with these unreasonable fig-
ures, the district court heeded this court's decision in Cope-
land v. Marshall, 641 F.2d 880 (D.C. Cir. 1980) (en banc), in
which the court held that a district court judge--"recognizing,
as he did, that some duplication or waste of effort had
occurred--did not err in simply reducing the proposed 'lode-
star' fee by a reasonable amount without performing an item-
by-item accounting." Id. at 903. Although a district court
might in some circumstances consider a fee request, or a
particular item within a fee request, so "outrageously unrea-
sonable" that outright denial of the request or an item within
the request would be appropriate, Environmental Defense
Fund, 1 F.3d at 1258 (quoting Brown v. Stackler, 612 F.2d
1057, 1059 (7th Cir. 1980)) (internal quotation marks omitted),
the district court's decision to award a lesser figure than the
lodestar request, rather than denying the request outright,
was within the district court's discretion.6 See id. at 1260;
Copeland, 641 F.2d at 900-08.
__________
6 Liddle & Robinson's assertion that the record contains no
proof that Kidder Peabody actually "incurred" these costs (that is,
actually paid its counsel for services rendered) is belied by a
certificate filed by Kidder Peabody's counsel stating that Kidder
Peabody paid its counsel $83,279.04. See Fed. R. App. P. 10(a); D.C.
D.
Nor is Liddle & Robinson's position that the district court
abused its discretion by not holding an evidentiary hearing on
the attorneys' fees issue after the court decided to impose
sanctions persuasive. This failure, Liddle & Robinson insists,
violated due process because 28 U.S.C. s 1927 is a punitive
statute and, hence, Liddle & Robinson should have been
allowed to inquire at an evidentiary hearing into what ex-
penses were actually incurred and how reasonable such ex-
penses were.
Although a hearing may certainly be "useful" in some
instances, see Copeland, 641 F.2d at 905, and "it is perhaps
conceivable that due process could require a hearing on
sanctions ... in certain circumstances," a hearing is not
required in all circumstances. McLaughlin, 803 F.2d at 1205.
Regarding sanctions under Federal Rule of Civil Procedure
11, the court stated in McLaughlin:
The trial court, as a primary participant in the proceed-
ings, had already observed those elements of the litiga-
tion most relevant to the criteria for imposing sanctions
under the rule, most notably McLaughlin's conduct dur-
ing the trial.... The opportunity the District Court
provided McLaughlin to respond to the defendants' appli-
cations for fees and costs gave him ample opportunity to
set forth whatever objections he had to the level of
sanctions imposed.
Id. at 1205-06 (citation omitted). Here, as in McLaughlin,
the party against whom sanctions have been imposed has had
ample opportunity to set forth arguments in opposition to
sanctions. Liddle & Robinson has no valid objection based in
due process, and the district court did not abuse its discretion
in deciding that a hearing was unnecessary.
Accordingly, we hold that the district court had jurisdiction
to impose sanctions upon Liddle & Robinson and that in so
doing it did not abuse its discretion, and we affirm.
__________
Cir. R. 30(b). Liddle & Robinson has introduced no contradictory
evidence.