In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10‐3842 & 11‐1757
DEBORAH O. COONEY,
Plaintiff‐Appellant,
Cross‐Appellee,
v.
RHONDA CASADY, et al.,
Defendants‐Appellees,
Cross‐Appellants.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:09‐cv‐01920 — Elaine E. Bucklo, Judge.
ARGUED SEPTEMBER 18, 2012 — DECIDED AUGUST 19, 2013
Before FLAUM, SYKES, and TINDER, Circuit Judges.
TINDER, Circuit Judge. This case arises out of Deborah O.
Cooney’s administrative appeal of the Illinois Department of
Children and Family Services’ (DCFS) indicated finding
against her of mental injury and substantial risk of harm to her
children. Cooney claims that Rhonda Casady and Andrew
2 Nos. 10‐3842 & 11‐1797
Sosnowski, counsel for DCFS in that administrative appeal,
conspired with Lesley Magnabosco who was hired by DCFS to
transcribe the administrative appeal hearing to deprive Cooney
of her due process rights by altering the transcripts of those
proceedings. Cooney appeals the district court’s grant of
summary judgment to the defendants, and the defendants
appeal the denial of their petition for attorneys’ fees and costs
under 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 11.
They also seek an award of their costs and attorneys’ fees
under Federal Rule of Appellate Procedure 38. We affirm the
district court’s judgments and order Cooney to show cause
why an award under Rule 38 should not be entered against
her.
I. BACKGROUND
Cooney divorced her husband and obtained sole custody of
their two minor sons. A few years later, the ex‐husband
petitioned for change of custody in Illinois state court. A court‐
appointed expert diagnosed Cooney as having “Munchausen
[Syndrome] by Proxy,” “in which ‘an individual produces or
feigns physical or emotional symptoms in another person
under his or her care. Usually the victim is a young child, and
the person producing the symptoms may be the child’s parent
or caretaker, most often the mother.’” Cooney v. Rossiter, 583
F.3d 967, 969 (7th Cir. 2009) (citations omitted), cert. denied, 130
S. Ct. 3322 (2010). A therapist hired by the ex‐husband for the
children reported to DCFS that Cooney was abusing the
children; as a result, DCFS commenced an administrative
Nos. 10‐3842 & 11‐1797 3
proceeding against Cooney. After an investigation, DCFS
entered an indicated finding of mental injury against her. 1
Cooney filed an administrative appeal of the indicated
finding. Casady and Sosnowski represented DCFS in the
appeal, which was heard by Administrative Law Judge Daniel
Baechle. The ALJ recorded the proceedings on microcassettes
(and he was the only one who operated the recorder, changed
the tapes, and maintained the tapes). Cooney, however,
retained a private court‐reporting company to transcribe the
hearing as it occurred, creating the “Fishman transcripts.”
DCFS denied Cooney’s appeal based on the ALJ’s findings and
recommendations, and Cooney filed a complaint for adminis‐
trative review in the state circuit court.
Once the petition for administrative review was filed,
Magnabosco began transcribing the administrative‐appeal
recordings. The parties agree that Magnabosco was not a
certified shorthand reporter. Cf. Cooney v. Magnabosco, 943
N.E.2d 290, 296 (Ill. App. Ct. 2011) (rejecting Cooney’s conten‐
tion “that anyone who uses shorthand to report a proceeding
in this state is automatically practicing as a ‘certified shorthand
reporter’ or holding herself out as such”), appeal denied.
Magnabosco was an independent contractor for Benedia
Certified Court Reporting, which had a contract with DCFS to
1 “[U]pon receipt of a report of abuse … DCFS must determine whether
the report is ‘indicated,’ ‘unfounded,’ or ‘undetermined.’” Cooney v. Casady,
652 F. Supp. 2d 948, 950 n.1 (N.D. Ill. 2009) (quoting 325 ILCS 5/7.12). A
person “subject to an indicated finding has the right to a hearing to appeal
the finding and to request expungement of … her name from the State
Central Register.” Id. (citing 325 ILCS 5/7.16).
4 Nos. 10‐3842 & 11‐1797
provide official transcripts of the tape‐recorded administrative
hearings. She transcribed the proceedings by listening to the
recordings on the microcassettes. She was the only person who
transcribed Cooney’s DCFS administrative proceedings (but
there is no evidence that Casady or Sosnowski knew this).
In early May 2007, Magnabosco completed transcripts from
September 2006 proceedings; DCFS representatives had access
to them on that same date (and could have known that
Magnabosco had transcribed them). Cooney does not claim
that these transcripts were “altered,” however. (Cooney uses
the term “alter” in sort of a special way, as we will explain
below, and we use it as she does.) Thereafter, Magnabosco
prepared transcripts for the proceedings held on October 25,
26, and 27, 2006, January 30, 2007, and February 13, 2007. These
are the transcripts that were allegedly “altered.” When Cooney
reviewed them, she compared them with the Fishman tran‐
scripts and found discrepancies, which form the basis of her
complaint here. Because of these discrepancies, the parties
agreed to have the Fishman transcripts, rather than
Magnabosco’s transcripts, serve as the official transcripts of the
administrative hearings. Four other prehearing conferences in
the administrative appeal had not been transcribed by
Fishman; the audiotapes from those proceedings were sent to
DiGiovanni Court Reporters for transcription. Apparently,
these DiGiovanni transcriptions also contained discrepancies
when compared to Magnabosco’s transcriptions.
Cooney filed a two‐count complaint against the defendants.
Count I alleged that they conspired to deprive her of her due
process rights in violation of 42 U.S.C. § 1983. Count II alleged
a state‐law claim for intentional infliction of emotional distress.
Nos. 10‐3842 & 11‐1797 5
With respect to her § 1983 claim, her theory is that the DCFS
transcripts were “altered” by Magnabosco at Casady’s and
Sosnowski’s direction, and that this caused extensive delay and
expense on Cooney’s part to convince the circuit court to use
the Fishman transcripts as the official record.
The district court denied the defendants’ motions to dismiss
the complaint, concluding that the complaint stated a § 1983
claim and a claim for intentional infliction of emotional
distress. Cooney v. Casady, 652 F. Supp. 2d 948, 958–59 (N.D. Ill.
2009). The court held that Cooney was not required to plead a
meeting of the minds and was required only to indicate “the
parties, general purpose, and approximate date, so that the
defendant has notice of what he is charged with.” Id. at 957
(quotation and citation omitted). The court also concluded that
Cooney alleged a sufficient constitutional injury, namely, a
violation of her right to procedural due process by undermin‐
ing her right to a fair hearing and delaying her ability to obtain
a meaningful remedy in state court. Id. However, the court
stated: “Let there be no mistake: plaintiff’s conspiracy allega‐
tions have a distinctly paranoid gestalt, and it is unlikely that
her claims have merit.” Id. at 958. The defendants’ motion for
reconsideration was denied. Cooney v. Casady, 680 F. Supp. 2d
942, 943 (N.D. Ill. 2010).
Following discovery, the district court granted the defen‐
dants summary judgment on the § 1983 conspiracy claim and
the claim for intentional infliction of emotional distress. Cooney
v. Casady, 746 F. Supp. 2d 973 (N.D. Ill. 2010). The court
reasoned:
6 Nos. 10‐3842 & 11‐1797
[P]laintiff has put forward no direct or sufficient
circumstantial evidence of a conspiracy [among
defendants]. Defendants have put forward
undisputed evidence that neither Casady nor
Sosnowski ever met Magnabosco, ever spoke to
Magnabosco, or had any kind of communication
with her whatsoever. Plaintiff’s assertions that
Casady and Sosnowski could have known
Magnabosco’s identity and contacted her is not
supported by any evidence that they did so.
Id. at 975. The court rejected Cooney’s claim that a jury should
determine whether the discrepancies between the Fishman and
Magnabosco transcripts evidenced a conspiracy among the
defendants, explaining:
Taking all these discrepancies together (and I
have reviewed all of those listed in Exhibit 3 in
detail), I cannot conclude that these discrepan‐
cies are sufficient to prove a conspiracy, espe‐
cially given the circumstances under which the
Magnabosco transcripts were created (via
microcassette tapes) and, most importantly,
when there is no evidence that the three defen‐
dants ever met or communicated with each
other. Based on this evidence, no reasonable jury
could conclude that the defendants conspired
together to alter the official transcript.
Id. at 976–77. Because the claim for intentional infliction of
emotional distress was based on the same underlying conduct,
the court concluded that summary judgment for the defen‐
Nos. 10‐3842 & 11‐1797 7
dants was proper because Cooney had “no proof of any
conduct by defendants that was ‘extreme and outrageous.’” Id.
at 977–78 (citation omitted).
The district court denied the defendants’ subsequent
motion for attorneys’ fees under 42 U.S.C. § 1988 and for fees
and costs under Rule 11. Orlando‐Cooney v. Casady, No. 09‐C‐
1920, 2011 WL 995817 (N.D. Ill. Mar. 21, 2011). In addressing
§ 1988, the court noted that it “was an extremely close call”
and concluded that Cooney’s complaint, though meritless, was
not frivolous because she had engaged “in some, albeit limited,
investigation into this matter by engaging in a word‐for‐word
comparison of the two transcripts.” Id. at *2. The court rejected
the defendants’ contention that, even if Cooney’s claim was not
frivolous at the outset, it became frivolous when she failed to
dismiss once discovery was completed. Finally, the court
declined to award Rule 11 sanctions because none of the
additional ten lawsuits Cooney had filed had been deemed
frivolous and because the defendants had failed to provide any
evidence (except their own say‐so) that she filed suit to harass
and harm them. Id.
II. DISCUSSION
We review the grant of summary judgment de novo and
give Cooney, the nonmoving party, “the benefit of all reason‐
able inferences that could be drawn from the record.” Citizens
Health Corp. v. Sebelius, No. 12‐3924, 2013 WL 3957578, at *3
(7th Cir. Aug. 2, 2013). “Summary judgment is appropriate if
there are no genuine issues of material fact such that the
moving parties are entitled to judgment as a matter of law.” Id.
We review the denial of attorneys’ fees under § 1988 and the
8 Nos. 10‐3842 & 11‐1797
denial of sanctions under Rule 11 for an abuse of discretion.
Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co., 649 F.3d 539,
552 (7th Cir. 2011). “An abuse of discretion exists where no
reasonable person could take the view espoused by the district
court.” Leffler v. Meer, 60 F.3d 369, 372 (7th Cir. 1995).
A. The District Court Properly Granted Summary
Judgment
“[T]o establish § 1983 liability through a conspiracy theory,
‘a plaintiff must demonstrate that: (1) a state official and a
private individual(s) reached an understanding to deprive the
plaintiff of his constitutional rights, and (2) those individual(s)
were willful participant[s] in joint activity with the State or its
agents.’” Lewis v. Mills, 677 F.3d 324, 333 (7th Cir. 2012)
(quoting Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007);
see also Whitlock v. Brueggemann, 682 F.3d 567, 577 (7th Cir.
2012) (“There must be evidence of a concerted effort between
a state actor and [a private] individual.” (quotation and citation
omitted)), cert. denied sub nom. McFatridge v. Whitlock, 133 S. Ct.
981 (U.S. Jan. 22, 2013).
The district court granted the defendants summary judg‐
ment on the ground that there was no evidence from which a
reasonable jury could find a conspiracy among Casady,
Sosnowski, and Magnabosco. Cooney argues that she pre‐
sented sufficient circumstantial evidence creating a question of
fact as to whether the defendants engaged in a conspiracy. She
claims that the evidence, when viewed in her favor, “clearly
raises the possibility that a jury can reasonably infer from the
circumstances that: (a) the transcripts of [her] DCFS adminis‐
trative hearings were altered; (b) the alterations in the tran‐
Nos. 10‐3842 & 11‐1797 9
scripts benefitted DCFS’s case against [her] (c) Magnabosco
was the only person who could have altered the transcripts;
and (d) Casady and Sosnowski knew Magnabosco was
transcribing [Cooney’s] administrative hearings, and therefore
knew to contact [Magnabosco] specifically in order to alter the
official transcripts.” The flaws in her reasoning are obvious:
She even fails to argue that Casady, Sosnowski, and
Magnabosco actually agreed to alter transcripts. Instead,
Cooney asserts that there was knowledge and opportunity.
No reasonable jury could infer from the record that Casady
and Sosnowski actually knew that Magnabosco would tran‐
scribe the challenged administrative hearings. Cooney reaches
her contrary conclusion by showing that Magnabosco was the
only person transcribing those hearings and that the completed
transcripts of the September 2006 hearings were ready by May
7, 2007. The first defect in this reasoning is the lack of any
evidence indicating that Casady or Sosnowski had knowledge
that Magnabosco was the only person transcribing Cooney’s
administrative hearings. The second defect is that, even
assuming such knowledge and opportunity, Cooney fails even
to argue that Casady and Sosnowski actually communicated
with Magnabosco. Rather, Cooney suggests that “there is a
possibility” that they could have contacted her. Because “vague
and conclusory allegations of the existence of a conspiracy are
not enough to sustain a plaintiff’s burden” at summary
judgment, Lewis, 677 F.3d at 332, or even to survive a motion
to dismiss, Fries v. Helsper, 146 F.3d 452, 458 (7th Cir. 1998), the
mere suggestion of such a possibility cannot defeat summary
judgment. Only speculation and conjecture could result in a
finding that the defendants conspired to deprive Cooney of her
10 Nos. 10‐3842 & 11‐1797
rights; this is not enough. See Williams v. Seniff, 342 F.3d 774,
785 (7th Cir. 2003) (“Although a conspiracy certainly may be
established by circumstantial evidence, we have stressed that
such evidence cannot be speculative.”); cf. Springer v.
Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) (“[A]ll the plaintiffs
have to go on is a collective hunch about the defendant’s
motives, which in itself will not survive a motion for summary
judgment.”).
Cooney seems to suggest that a plaintiff claiming a § 1983
conspiracy need not prove an agreement of some form among
the defendants; she argues that “all that is required is that the
participants share a ‘general conspiratorial objective.’”
Cooney’s Resp. & Reply Br. 5 (citing Hampton v. Hanrahan, 600
F.2d 600, 621 (7th Cir. 1979), rev’d in part, 446 U.S. 754 (1980)).
This argument reflects an ignorance of well‐established
principles of a civil conspiracy, unsupported by Hampton.
Cooney selectively quotes from that case in which we ex‐
plained:
A civil conspiracy is a combination of two or
more persons acting in concert to commit an
unlawful act, or to commit a lawful act by un‐
lawful means, the principal element of which is an
agreement between the parties to inflict a wrong
against or injury upon another, and an overt act
that results in damage.
… An express agreement among all the
conspirators is not a necessary element of a civil
conspiracy. The participants in the conspiracy
must share the general conspiratorial objective,
Nos. 10‐3842 & 11‐1797 11
but they need not know all the details of the plan
designed to achieve the objective or possess the
same motives for desiring the intended conspira‐
torial result.
Id. at 620–21 (emphasis added, internal quotations and citations
omitted). Hampton did not remove the requirement of a
conspiratorial agreement. Cooney’s suggestion to the contrary
would eliminate this principal element of a conspiracy.
The district court was absolutely right: The record contains
no evidence that Casady, Sosnowski, and Magnabosco con‐
spired to deprive Cooney of a federal right. This is aside from
the alleged discrepancies in the transcripts. Without proof of a
conspiratorial agreement, the alleged discrepancies in the
transcripts suggest at most negligence, on which § 1983 claims
cannot be founded. See, e.g., Loubser v. Thacker, 440 F.3d 439, 442
(7th Cir. 2006).
Cooney argues that a comparison of Magnabosco’s tran‐
scripts to the Fishman transcripts demonstrates that the former
were intentionally “altered” and that the district court improp‐
erly weighed the evidence in concluding otherwise. Yet no
reasonable jury could infer that Magnabosco intentionally
“altered” transcripts. At oral argument Cooney clarified that
her claim is not that the transcripts were altered—she has no
evidence of prior, unaltered versions of the transcripts—but
rather, that the hearings were erroneously transcribed. As the
district court found, and the record supports, there is no
evidence that the portions of the transcripts indicated as
inaudible to Magnabosco, who transcribed the proceedings
from the microcassette recordings, were in fact audible to
12 Nos. 10‐3842 & 11‐1797
anyone else transcribing from the same recordings. The fact
that Magnabosco has no background in medical terminology
further supports the conclusion that alleged errors (whether
“inaudibles” or misheard testimony) in her transcripts may
have been affected by her lack of knowledge. In no way does
it raise a reasonable inference that Casady and Sosnowski
directed Magnabosco to “alter” the transcripts, especially when
there is no evidence of any communication between them.
Cooney suggests that an independent court reporter
listened to the same tapes as Magnabosco and did not find any
of the recordings inaudible, but she is comparing apples to
oranges. She is relying on the DiGiovanni transcripts of
different hearing dates than the Magnabosco transcripts at
issue. While it may be true that the DiGiovanni transcripts of
prehearing dates also contained discrepancies when compared
to Magnabosco’s transcripts of the same prehearing dates, that has
no bearing whatsoever on the Magnabosco transcripts at issue.
(And we note that Cooney does not claim that Magnabosco’s
transcripts of the prehearing dates were “altered.”)
Furthermore, while some of the discrepancies between the
Magnabosco transcripts and Fishman transcripts may have
benefitted DCFS’s case against Cooney, some of them did not.
For example, as Cooney admitted in her response to the
defendants’ statement of undisputed material facts, in one
instance, Magnabosco’s transcript reads:
MS. CASADY: When you refer to illness induced
in [Cooney’s son], what illnesses are you refer‐
ring to and induced by whom?
Nos. 10‐3842 & 11‐1797 13
DR. ROSSITER: Well an example, the delusional
disorder, (inaudible) …
Whereas Fishman’s transcript reads:
Q. When you refer to illnesses that were induced
in [Cooney’s son], what illnesses are you refer‐
ring to and induced by whom?
A. Well, for example, the first and most impor‐
tant illness that I think was induced was a delu‐
sional state, delusional disorder that was in‐
duced by his mother and to a lesser extent his
grandparents.
And in some cases, the substance of the omitted witness
testimony that is favorable to Cooney is contained elsewhere
in the transcripts. For example, as again admitted by Cooney,
she claims that Magnabosco omitted testimony in which a
witness admitted to having no “expertise or medical training,”
in order to bolster the witness’s credibility; however, the
witness’s preceding testimony is accurately reflected in
Magnabosco’s transcript:
Q. You don’t have any medical background for
doing this?
A. Absolutely not.
As in the district court, Cooney tries to make much of the
fact that Magnabosco’s transcript indicates that a witness (Dr.
Paller) testifying about her son’s lesions used the term
“factitious” (meaning intentionally produced), whereas the
Fishman transcript indicates that the word used was “ficti‐
tious” (false). Cooney alleges the transcript was “altered” to
14 Nos. 10‐3842 & 11‐1797
support DCFS’s claim that her son was self‐inducing his
injuries because of her influence. Yet Cooney has admitted that
Dr. Paller testified that although he didn’t know where the
son’s lesions were coming from, he thought that “these are
ulcers that either he or somebody else is inducing.”
No reasonable jury could infer a conspiracy from the mere
fact of the discrepancies in the transcripts. This conclusion is
bolstered by the undisputed evidence that neither Casady nor
Sosnowski ever communicated with Magnabosco. Because
Cooney failed to produce sufficient evidence from which a
reasonable jury could infer a conspiracy, the defendants were
entitled to judgment as a matter of law on the § 1983 claim.
And because she had insufficient evidence to withstand
summary judgment on her § 1983 claim, she also had insuffi‐
cient evidence with respect to her claim for intentional inflic‐
tion of emotional distress. She appears to acknowledge as
much in her briefs on appeal. Therefore, the district court
properly granted summary judgment to the defendants.
B. The District Court Did Not Abuse Its Discretion in
Denying Defendants’ Request for Fees, Costs, and
Sanctions
The defendants petitioned for attorneys’ fees under § 1988
and Rule 11 sanctions. Section 1988 provides that in § 1983
actions “the court, in its discretion, may allow the prevailing
party … a reasonable attorney’s fee as part of the costs.” 42
U.S.C. § 1988(b). The statute commits the decision whether to
award attorneys’ fees to the district court’s sound judgment.
Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir. 1999). We review
Nos. 10‐3842 & 11‐1797 15
the denial of fees in this context for abuse of discretion,
although we review legal questions de novo. Id.
Prevailing defendants may be awarded attorneys’ fees only
if the plaintiff’s “claim was frivolous, unreasonable, or ground‐
less, or if the plaintiff continued to litigate after it clearly
became so.” Christianburg Garment Co. v. EEOC, 434 U.S. 412,
422 (1978); see also Hughes v. Rowe, 449 U.S. 5, 14–15 (1980) (per
curiam) (applying Christianburg under § 1988). The plaintiff’s
action must be groundless or without foundation (i.e.,
meritless), but “[t]he fact that a plaintiff may ultimately lose his
case is not in itself a sufficient justification for the assessment
of fees.” Hughes, 449 U.S. at 14. “There is a significant differ‐
ence between making a weak argument with little chance of
success … and making a frivolous argument with no chance of
success,” and “it is only the latter that permits defendants to
recover attorney’s fees” under § 1988. Khan, 180 F.3d at 837.
When considering the defendants’ petition for fees, the
district court articulated the proper legal rules and concluded
that, although it “was an extremely close call,” Cooney’s claim
was not frivolous but simply meritless. Orlando‐Cooney, 2011
WL 995817, at *2. The court acknowledged that the only
evidence she had was the apparent discrepancies between the
transcripts, but it found that she “did engage in some, albeit
limited, investigation into this matter by engaging in a word‐
for‐word comparison of the two transcripts.” Id. The court also
rejected the defendants’ view that Cooney continued to litigate
after the case became frivolous once discovery was complete,
again finding that it was “a very close call.” Id.
16 Nos. 10‐3842 & 11‐1797
The defendants raise several arguments challenging the
district court’s conclusion but they have conflated their § 1988
attorneys’ fees analysis with their Rule 11 sanctions analysis (as
they did in the district court). Nonetheless, it appears that they
identify the following as support for an award of fees: (1)
Cooney’s reliance on a comparison of the transcripts itself
shows she could not reasonably believe a conspiracy had
occurred because parts of the Fishman transcripts were more
damaging to her than the Magnabosco transcripts—i.e., the suit
is frivolous; (2) Cooney did not act pro se but instead had ghost
counsels’ help throughout; and (3) Cooney has a history of
filing frivolous suits against participants in the state custody
and DCFS proceedings.
Cooney responds that she had adequate circumstantial
evidence of a conspiracy, but just not enough to preclude
summary judgment, which she contests on appeal, see supra.
However, as discussed, the only “evidence” that she had to
prove her claim was the inconsistencies between the tran‐
scripts. Yet the district court determined that Cooney’s
complaint was not frivolous. It also found that the defendants
offered nothing other than their own say‐so to show that
Cooney filed the case to harass and harm them. Under similar
circumstances we have affirmed the denial of the defendants’
fee petition. In Springer v. Durflinger, 518 F.3d 479 (7th Cir.
2008), parents who were disgruntled with a high school
softball coach filed a § 1983 suit, alleging baseless First Amend‐
ment retaliation claims against a school district. Id. at 480. Even
though the parents “proffer[ed] no evidence whatsoever” of
retaliation, id. at 483, we affirmed the denial of the defendants’
fee petition:
Nos. 10‐3842 & 11‐1797 17
The district court specifically noted that the
complaint was neither frivolous, nor brought in
bad faith. If we were in the district court’s posi‐
tion, considering the facts in the first instance, we
may well have come to a different conclusion
regarding an award of attorneys’ fees. It may
have been error—considering the deficiency of
evidence—to allow this case to proceed to the
discovery phase in the first place. But given that
the parents did make it to discovery, they cannot
be faulted for trying, but ultimately failing, to
gather sufficient evidence of retaliation.
Id. at 486.
Here, as in Springer, the district court found that Cooney’s
complaint was not frivolous and that the defendants had no
evidence of bad faith, and thus allowed the case to proceed to
discovery and summary judgment. If we were to decide the fee
issue in the first instance, we might have reached a different
conclusion than the district court. (Indeed, had the district
court decided to award attorneys’ fees, we doubt that decision
would have been an abuse of discretion.) But the district
court’s decision should be accorded appropriate deference. The
district court presided over the case for a period of time from
the pleading stages and pretrial discovery up to summary
judgment and beyond. Its intimate involvement with the case
and parties positioned it well to make a thoughtful exercise of
discretion regarding the defendants’ request for fees (and
sanctions). And Cooney should not be faulted for proceeding
with her case once she was given the chance to do so with the
denial of the motions to dismiss. Cf. Nisenbaum v. Milwaukee
18 Nos. 10‐3842 & 11‐1797
Cnty., 333 F.3d 804, 809 (7th Cir. 2003) (“[Defendant] prevailed
at trial, and the magistrate judge’s decision that a trial was
essential precludes any shifting of trial costs back to [plain‐
tiff].”).
Regarding Cooney’s less‐than‐pro‐se status, it seems that
she was aided by “ghost counsel” along the way. Cf. Cooney,
652 F. Supp. 2d at 956–57 (stating “that plaintiff—a non‐lawyer
representing herself—has done a commendable job fending off
defendants’ various challenges, responding to their attacks
with lucid arguments and citations to pertinent (and often
persuasive) authorities”). Yet the defendants do not use this
assistance to support any argument for fees or sanctions;
rather, they assert that ghost counsel should be sanctioned
also. But § 1988 does not authorize an award of attorneys’ fees
against a party’s lawyers. Roadway Exp., Inc. v. Piper, 447 U.S.
752, 761 (1980). As for Cooney’s litigation history, she may
have abused the system by filing many suits but the district
court found that none of those suits were frivolous. This
conclusion is accorded deference. The defendants do them‐
selves a disservice by arguing that the decision in Cooney v.
Rossiter recognized that Cooney’s related claims “smack[ed] of
harassment.” It did not. The decision held only that the
complaint did not meet the “high standard of plausibility.” 583
F.3d at 971.
As for Rule 11 sanctions, the purpose of Rule 11 is to deter
baseless filings in the district court. Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 393 (1990). The rule is not a fee‐shifting
measure—it provides only that a court may impose an
“appropriate sanction” for a violation of Rule 11(b). Fed. R.
Civ. P. 11(c)(1); see Bus. Guides, Inc. v. Chromatic Commc’ns
Nos. 10‐3842 & 11‐1797 19
Enters., Inc., 498 U.S. 533, 553 (1991) (former version of Rule
11). The decision to grant or deny a motion for Rule 11 sanc‐
tions is within the sound judgment of the district court and will
be disturbed only where the court abuses its discretion. Mars
Steel Corp. v. Cont’l Bank N.A., 880 F.2d 928, 933 (7th Cir. 1989).
For the same reasons we affirmed the district court’s denial of
fees under § 1988, we affirm its decision to decline Rule 11
sanctions. Moreover, the defendants fail to identify the specific
pleadings or filings that they contend violated Rule 11(b). This
provides another reason to affirm the district court’s exercise
of discretion in this case.
C. Rule 38 Sanctions
However, the defendants’ request for Rule 38 sanctions is
a different matter. “If a court of appeals determines that an
appeal is frivolous, it may, after a separately filed motion or
notice from the court and reasonable opportunity to respond,
award just damages and single or double costs to the appel‐
lee.” Fed. R. App. P. 38. “Under Rule 38, we must first deter‐
mine if the appeal is frivolous, and if we find it is, we have
discretion to award sanctions or decline to do so.” Smeigh v.
Johns Manville, Inc., 643 F.3d 554, 565 (7th Cir. 2011) (citation
omitted). “An appeal is frivolous when the result is obvious or
when the appellant’s argument is wholly without merit.” Id.
(quotation and citation omitted). “When an appeal rehashes
positions that the district court properly rejected, or when it
presents arguments that are lacking in substance and ‘foreor‐
dained’ to lose, the appeal is frivolous.” Berwick Grain Co. v. Ill.
Dep’t of Agric., 217 F.3d 502, 505 (7th Cir. 2000) (citations
omitted).
20 Nos. 10‐3842 & 11‐1797
Cooney’s appeal is just such an appeal. She merely reargues
the arguments that the district court properly rejected. And she
does so despite the district court’s clear warning that her
complaint teetered on the line separating the frivolous from the
meritless. Although Springer may preclude a finding that the
district court abused its discretion here, it provides ample
support for an award of sanctions under Rule 38. There, after
affirming the district court’s denial of fees and costs, we said:
[W]e are not at all sympathetic to the [plaintiffs’]
appeal. They have never been able to point to
one shred of evidence demonstrating retaliation.
To insist that there is a genuine issue of material
fact in this case is beyond the pale, and an appeal
arguing as much is frivolous. … Appeals such as
this not only bring the courts into disrepute but
also divert scarce judicial time from other liti‐
gants who have serious claims or defenses.
Springer, 518 F.3d at 486 (quotation, citation, and alteration
omitted).
Like the plaintiffs in Springer, Cooney “may have caught
one break from the district court, but we are not inclined to
give [her] another one.” Id. She has no evidence of a conspir‐
acy. We reiterate that had the district court decided to make an
award of attorneys’ fees to the defendants under § 1988, we
would not be inclined to find an abuse of discretion given the
record in this case.
Cooney asserts that Fed. R. App. P. 38 sanctions are
inappropriate because the standard of review is de novo. A
similar argument was rejected in Smeigh, where the plaintiff’s
Nos. 10‐3842 & 11‐1797 21
arguments had been properly rejected by the district court yet
the plaintiff asserted the same arguments on appeal (nearly
verbatim):
Smeigh’s counsel responded at oral argument
that our review is de novo and he can raise the
same arguments to this court as below and isn’t
permitted to raise new arguments. Although
true, he certainly could have explained why the
district court’s decision was erroneous—for
example, he could have explained how Smeigh
can succeed without asserting vicarious liabil‐
ity—or, if he has no explanation, he could have
decided not to appeal his conversion claim.
643 F.3d at 566. The court ultimately declined to impose
monetary sanctions because, unlike Cooney’s appeal, Smeigh’s
case was “too close to the line”: “Smeigh raised a non‐frivolous
argument (retaliatory discharge) on appeal, and JM had to
expend only minimal effort in responding to Smeigh’s frivo‐
lous conversion claim.” Id.
Rule 38 requires that the party seeking sanctions file a
separate motion or that the court give notice and an opportu‐
nity to respond. Fed. R. App. P. 38. The defendants did not file
a separate motion; rather, they merely raised the issue in their
brief. The Advisory Committee Note accompanying Rule 38
states: “A statement inserted in a party’s brief that the party
moves for sanctions is not sufficient notice. … Only a motion,
the purpose of which is to request sanctions, is sufficient. If
there is no such motion, notice must come from the court.” Id.,
advisory committee’s note (1994 amendments). We do so here:
22 Nos. 10‐3842 & 11‐1797
We order Cooney to show cause, within 15 days after the
conclusion of this appeal, as to why she should not be required
under Rule 38 of the Federal Rules of Appellate Procedure to
pay the defendants’ costs and reasonable attorneys’ fees on
appeal.
III. CONCLUSION
We AFFIRM the district court’s judgment and we ORDER
Cooney to show cause why she should not be sanctioned for
filing this frivolous appeal.