In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2021 & 05-2115
THE JOLLY GROUP, LTD.,
Plaintiff,
and
MICHAEL J. ROVELL,
Respondent-Appellant,
Cross-Appellee,
v.
MEDLINE INDUSTRIES, INC.,
Defendant-Appellee,
Cross-Appellant.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 9390—Suzanne B. Conlon, Judge.
____________
ARGUED OCTOBER 26, 2005—DECIDED JANUARY 24, 2006
____________
Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
EVANS, Circuit Judge. In this appeal, attorney Michael J.
Rovell challenges a rather modest ($450 plus 4 hours of
attorneys fees) sanction order issued against him stemming
from his representation of The Jolly Group, Ltd. in a breach
of contract action against Medline Industries, Inc. For
2 Nos. 05-2021 & 05-2115
reasons we will explain, we find that the district court did
not abuse its discretion in imposing the sanctions, but we
also deny Medline’s cross-appeal asking us to significantly
enlarge the scope of the penalty: Medline seeks a more
robust sanction order—in excess of $30,000 (as of May
2004) with the meter still running.
Jolly sued Medline in 2003. Medline moved to dismiss the
complaint as failing to allege the existence of a valid
written contract and because the statute of frauds barred
enforcement of a purported oral contract. Instead of re-
sponding to the motion, Jolly filed an amended complaint.
Medline’s counsel sent Rovell a letter pointing out factual
inconsistencies between the two complaints and threatening
a Rule 11 motion. Medline then moved to dismiss the
amended complaint, and Jolly filed its response.
The district court (Judge Suzanne B. Conlon) dismissed
the amended complaint with prejudice on April 30, 2004.
Two weeks later, Medline moved for sanctions under
Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927,
which authorizes sanctions against an attorney who
“multiplies the proceedings in any case unreasonably
and vexatiously.” Instead of responding to the sanctions
motion, Jolly moved the next day, May 14, 2004, for recon-
sideration of the dismissal and for leave to file a second
amended complaint.
On June 4, 2004, the district judge denied everything
except the § 1927 sanctions, finding that Rovell had in bad
faith asserted four different purported contracts as well
as contradictory versions of events. Rovell moved to va-
cate the order, saying he had not been given an opportunity
to respond to Medline’s motion before sanctions
were ordered. Medline, meanwhile, continued to press for
even larger sanctions. Judge Conlon held a hearing and
agreed that Rovell should have been given an opportunity
to respond to Medline’s sanctions motion. She vacated the
Nos. 05-2021 & 05-2115 3
sanctions portion of her June 4 order and referred the
matter to Magistrate Judge Geraldine Soat Brown for
further proceedings.
After briefing and oral argument, Magistrate Judge
Brown recommended that the Rule 11 sanctions motion
be denied but that § 1927 sanctions were justified. In her
careful § 1927 analysis, the magistrate judge divided
Rovell’s conduct into two time periods: before and after the
district judge’s decision to dismiss the suit. Noting that
“[T]he line between strong advocacy and vexatious con-
duct is not always bright,” the judge declined to find
improper motives behind Jolly’s original complaint and
amended complaint. On the other hand, she found Rovell’s
May 14, 2004, motions, after the case had been dismissed
with prejudice, “clearly vexatious and unreasonable.” She
rejected Rovell’s argument that he had sought reconsidera-
tion in order to perfect the appellate record and went on
to criticize what she considered his “sloppiness” in assem-
bling pleadings, “disingenuous explanations,” and “negli-
gent[,] . . . reckless, and indifferent conduct” that demon-
strated bad faith and justified sanctions under § 1927. She
recommended that Medline be awarded excess costs based
on 4 hours of attorney time and that Rovell be assessed
$450 payable to the court for wasting its time and re-
sources. District Judge Conlon adopted the recommenda-
tions. Rovell now appeals.
We review a district court’s imposition of attorney
sanctions for an abuse of discretion. U.S. Bank Nat’l Ass’n,
N.D. v. Sullivan-Moore, 406 F.3d 465, 469 (7th Cir. 2005).
We have explained that a court has discretion to impose
§ 1927 sanctions when an attorney has acted in an “objec-
tively unreasonable manner” by engaging in “serious
and studied disregard for the orderly process of justice,”
Pacific Dunlop Holdings, Inc. v. Barosh, 22 F.3d 113, 119
(7th Cir. 1994); pursued a claim that is “without a plausible
legal or factual basis and lacking in justification,” id.; or
4 Nos. 05-2021 & 05-2115
“pursue[d] a path that a reasonably careful attorney would
have known, after appropriate inquiry, to be unsound,”
Kapco Mfg. Co. v. C & O Enters., Inc., 886 F.2d 1485, 1491
(7th Cir. 1989). We have also interpreted § 1927 “to impose
a continuing duty upon attorneys to dismiss claims that are
no longer viable.” Dahnke v. Teamsters Local 695, 906 F.2d
1192, 1201 n.6 (7th Cir. 1990).
Rovell protests that he should not have been punished for
filing the May 14, 2004, motions because Medline’s sanc-
tions motion had preceded those filings and had sought
sanctions on a different basis. Of course, a district court
acting under § 1927 is not bound by the parties’ motions
and may, in its sound discretion, impose sanctions sua
sponte as long as it provides the attorney with notice
regarding the sanctionable conduct and an opportunity to
be heard. Johnson v. Cherry, 422 F.3d 540, 551-52 (7th Cir.
2005). This means that the court could properly take into
account all of Rovell’s conduct in this case and calibrate
sanctions accordingly. As Judge Conlon noted, the poten-
tially sanctionable nature of Rovell’s filings was raised
during oral argument on his motion to vacate and, of
course, during proceedings before the magistrate judge.
Thus, we must reject Rovell’s argument that the § 1927
sanctions are procedurally improper.
Rovell also contends that sanctions are substantively
improper because his May 14, 2004, motions were sup-
ported by a proper motive and sufficient legal basis. He
claims that a second amended complaint was necessary to
change a key date in one of Jolly’s allegations. Rovell was,
in essence, attempting to perfect the record because he “did
not want to appeal the dismissal of a complaint that had an
allegation he now believed was untrue.” But the date in
question had been a central issue in the litigation up to that
point, and so the district court interpreted this move as
simply an effort by Rovell to abandon an unsuccessful legal
theory and substitute a new one. Rovell counters that his
Nos. 05-2021 & 05-2115 5
contemplated correction was necessary to properly address
an “argument” that was “raised sua sponte by the trial
court” in its April 30, 2004, ruling. “Medline had never
made [this] argument in either of its two motions to dis-
miss . . . ,” he says, “and, accordingly, Jolly had never had
a chance to respond to it.”
The district court correctly observed that “[m]otions for
reconsideration do not provide a vehicle for a party to
introduce new evidence or legal theories that could have
been presented earlier.” Caisse Nationale de Credit Agricole
v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). Even
if he believed his intentions were sound, we think Rovell
went wrong in characterizing a conclusion reached by the
district court, after full briefing and argument by both
parties, as an “argument” whose basis his client had to
challenge in order to protect an appeal. The court drew its
conclusions based on filings Jolly knowingly submitted and
argued. At that point, Rovell was, for better or worse, stuck
with the record he had made. After his case was dismissed
with prejudice, prudence should have counseled that by
filing additional motions aimed at changing facts and
responding to the court’s conclusions, he was pursuing a
path that was unsound.
We see no need to address two additional sins Magistrate
Judge Brown found in the way Rovell assembled some of his
pleadings. Neither error appears to have multiplied the
proceedings, and one of them, a collating mistake, seems
attributable to Rovell’s bad eyesight, an unfortunate
consequence of his diabetes.
Finally, we find no merit in Medline’s argument that the
district court’s sanctions didn’t go far enough. Medline
continues to demand recovery of its litigation costs for the
claims Rovell pursued prior to dismissal of the suit. We
cannot agree with Medline that the district court abused its
discretion in allowing Jolly to file a first amended com-
6 Nos. 05-2021 & 05-2115
plaint; whether that pleading had the effect of vexatiously
multiplying the litigation was a matter for the district court
to determine in its sound discretion. Based on our review of
the record, we think the court drew a sensible and proper
distinction between Rovell’s advocacy before dismissal,
doomed as it might have been, and his decision after
dismissal to continue inflicting motions on his adversary
and the court.
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-24-06