Lewis v. Smith

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 10-4254
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THOM LEWIS

v.

JESSE SMITH; MARY BENDER; RICK BURD;
JOHN BREINER; DAN FLAHERTY; FRANK STERNER;
JOHN DOE

*Don A. Bailey, Appellant

*(Pursuant to FRAP 12(a))
_________________

On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 4-07-cv-02011
District Judge: The Honorable John E. Jones, III
_________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 15, 2012

Before: SMITH, FISHER, and GARTH, Circuit Judges

(Filed: May 15, 2012)
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OPINION
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SMITH, Circuit Judge.

Appellant Don Bailey, attorney for Plaintiff Thom Lewis, seeks review of

the District Court’s imposition of sanctions under 28 U.S.C. § 1927 — sanctions

the District Court assessed because it concluded that Bailey had filed this suit in

bad faith. We will affirm. 1

On March 19, 2007, Bailey, acting on behalf of Mr. Lewis, filed an initial

action in the Middle District of Pennsylvania. See Lewis v. Smith, No. 07-cv-512

(M.D. Pa.) (Muir, J.) (Lewis I). Lewis I alleged civil rights violations stemming

from supposed illegal actions by Defendants Flaherty, Sterner, and others, relating

to Mr. Lewis’ kennel license. The late Judge Malcolm Muir resolved Lewis I in

four parts, granting three motions to dismiss and a motion for summary judgment.

None of these decisions was appealed. Instead, on November 2, 2007, between

Judge Muir’s granting of the third motion to dismiss (filed by Defendants Flaherty

and Sterner) and his granting of the motion for summary judgment, Bailey filed

the complaint in this case (Lewis II). Counsel for Defendants Flaherty and Sterner

filed a motion to dismiss on the grounds of res judicata. Counsel also warned

Bailey by letter that Lewis II was so closely related to Lewis I that it was barred by

1
The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1343.
We have appellate jurisdiction under 28 U.S.C. § 1291.

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res judicata and he could be subject to sanctions for filing it. The District Court

later held that Lewis II was indeed barred by res judicata, and we affirmed in a

non-precedential opinion. See Lewis v. Smith, 361 F. App’x 421 (3d Cir. 2010).

Shortly after our mandate issued, Defendants Flaherty and Sterner filed the instant

motion for attorneys’ fees and costs before the District Court. On the same day,

Flaherty and Sterner filed a motion before us seeking attorneys’ fees and costs for

Lewis’ appeal. Acting on the Report and Recommendation of Magistrate Judge

Timothy Rice, we granted Defendants’ motion in part, awarding them a total of

$28,041.71. The day after we granted the fee motion before us, the District Court

decided the instant motion, granting Defendants Flaherty and Sterner a further

$19,240.19. This appeal followed.

In order to impose sanctions, Section “1927 requires a court to find an

attorney has (1) multiplied proceedings; (2) in an unreasonable and vexatious

manner; (3) thereby increasing the cost of the proceedings; and (4) doing so in bad

faith or by intentional misconduct.” In re Prudential Ins. Co. Am. Sales Practice

Litig. Agent Actions, 278 F.3d 175, 188 (3d Cir. 2002). “Bad faith is a factual

determination reviewable under the clearly erroneous standard.” Hackman v.

Valley Fair, 932 F.2d 239, 242 (3d Cir. 1991). We review the ultimate imposition

of sanctions for abuse of discretion. Prudential, 278 F.3d at 180.

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 By filing Lewis II, Bailey multiplied proceedings that should have

concluded with the resolution of Lewis I. If Bailey believed the outcome in Lewis

I was incorrect, he should have asked for reconsideration or filed an appeal in this

Court upon conclusion of the action. Bailey’s actions in filing an entirely separate

case were therefore unreasonable and vexatious. And filing an entirely separate

case obviously increases the cost of the proceedings.

That leaves only bad faith. “Indications of . . . bad faith are findings that the

claims advanced were meritless, that counsel knew or should have known this, and

that the motive for filing the suit was for an improper purpose such as

harassment.” Prudential, 278 F.3d at 188 (quoting Smith v. Detroit Fed’n of

Teachers, Local 231, 829 F.2d 1370, 1375 (6th Cir. 1987)). Bad faith should not

be lightly inferred, and counsel should be given significant leeway to pursue

arguments on a client’s behalf. But numerous facts support the District Court’s

finding of bad faith: (1) The motion to dismiss and contemporaneous letter put

Bailey on notice that his case was potentially meritless. (2) The District Court’s

conclusion and our conclusion that Lewis II was barred by res judicata weigh in

favor of the case being objectively meritless. (3) Our decision to grant attorneys’

fees because of Bailey’s frivolous appeal suggests Bailey’s arguments against res

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judicata were objectively meritless.2 (4) Bailey’s unusual tactic of filing a

substantially-identical second action while the first was still pending suggests he

was “judge shopping,” a conclusion reinforced by his testimony before Magistrate

Judge Rice. (A395 (“I felt Judge Muir was not going to do me right.”)) This is a

manifestly “improper purpose.” (5) Finally, Bailey’s prior sanctionable conduct

suggests a pattern of vexatious litigation. See, e.g., Beam v. Downey, 151 F.

App’x 142 (3d Cir. 2005); Beam v. Bauer, 383 F.3d 106 (3d Cir. 2004). Given

these facts, the District Court’s finding of bad faith was not clearly erroneous, and

its imposition of sanctions was not an abuse of discretion.

Bailey raises numerous challenges to the sanctions granted against him.

First, Bailey argues that the motion for sanctions, filed well after the District

Court’s decision on the merits, violates the supervisory rule announced by this

Court in Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90 (3d Cir. 1988). The

Pensiero rule requires “that all motions requesting Rule 11 sanctions be filed in the

district court before the entry of a final judgment.” Id. at 100. But we have

explicitly refused to extend the Pensiero rule to sanctions under Section 1927. In

2
Bad faith must be considered as of the time Bailey took the complained-of
actions. But res judicata is not a novel defense. Subsequent decisions on the
merits and on appellate sanctions are referenced to demonstrate that the law is
clear and Bailey knew or should have known of its applicability when he filed this
action.
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re Schaefer Salt Recovery, Inc., 542 F.3d 90, 102 (3d Cir. 2008). In Schaefer, we

agreed with the Tenth Circuit that Section “1927 sanctions are not untimely if

sought or imposed after final judgment,” id. at 101 (quoting Steinert v. Winn Grp.,

Inc., 440 F.3d 1214, 1223 (10th Cir. 2006)), so long as a motion for sanctions is

filed “within a reasonable time.” Id. at 102. To the extent Bailey argues that the

motion was untimely on some other basis, we note that counsel filed their fee

motion within thirty days of our ruling on the appeal, pursuant to an order issued

by the District Court. 3 In light of these facts, we decline to reject counsel’s fee

motion as untimely.

Second, Bailey initially argued that the Supreme Court’s decision in

Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980), excluded attorneys’ fees

from the scope of sanctions under 28 U.S.C. § 1927. Though that was indeed

Piper’s holding, Congress amended Section 1927 three months after Piper issued,

expressly to provide for attorneys’ fees. Pub. L. 96-349, 94 Stat. 1154 (Sept. 12,

1980). While Bailey now concedes his mistake, we simply cannot understand how

he could have made the argument in the first place, considering that the current

statutory text explicitly names “attorneys’ fees” as a potential sanction. 28 U.S.C.

3
By motion filed November 26, 2008, Defendants sought an extension of time to
request attorneys’ fees. By order dated December 1, 2008, the District Court
granted the motion, instructing Defendants to seek attorneys’ fees within thirty
days of our ruling.
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§ 1927 (2012).

Third, Bailey criticizes the District Court’s decision not to hold an

evidentiary hearing. We review this decision for abuse of discretion. See Angelico

v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 279-80 (3d Cir. 1999). While the

Supreme Court has noted that “attorney’s fees . . . should not be assessed lightly or

without fair notice and an opportunity for a hearing on the record,” Piper, 447 U.S.

at 767, we have held that this does not require a hearing in every case. See

Angelico, 184 F.3d at 279. The District Court had the full record before it. Bailey

had “fair notice of the charges and an opportunity to respond” in writing. Id. at

279-80. We cannot conclude that the District Court abused its discretion in

declining to hold an evidentiary hearing. See id.

Fourth, Bailey questions the District Court’s calculation of fees, offering

vague arguments that the fees claimed are duplicative and excessive. “We review

an assessment of attorney’s fees for abuse of discretion if the court applied the

correct legal standard.” Angelico, 184 F.3d at 273. We have reviewed the billing

records and the District Court’s rationale for its fee calculation. The District Court

conducted a careful and well-reasoned analysis. Where appropriate, the District

Court cut billing rates, reduced permitted time for tasks, and removed duplicative

items. Given that Bailey has failed to provide specific objections to particular

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items in the billing records, we cannot conclude that the District Court abused its

discretion in performing the fee calculation.

Finally, Bailey accuses counsel for Flaherty and Sterner of fraud, alleging

that they misrepresented facts in seeking leave to file a brief out of time before the

District Court and in the billing records they submitted. We perceive no fraud in

the motion seeking leave, and the District Court was well within its discretion to

grant it. Also, while the District Court noted some duplicative and arguably

excessive billing by Defendants’ counsel, our review of the record does not

suggest anything remotely approaching fraud. Different attorneys will take

different amounts of time to complete even identical tasks. When assessing

sanctions, fees are adjusted to conform to a reasonable baseline. But the mere fact

that attorneys take different amounts of time or that an attorney’s fee claims are

adjusted hardly suggests fraud. And Bailey offers no more specific examples of

this supposed fraud.

We note that Bailey’s filings in this case spin broad conspiracy theories and

make unfounded allegations of fraud and judicial misconduct stretching back to

the filing of Lewis I and beyond. Such spurious allegations only serve to

emphasize the impropriety of this action. The sanctions imposed by the District

Court are appropriate. We will affirm.

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