Case: 11-10830 Document: 00511886383 Page: 1 Date Filed: 06/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 13, 2012
No. 11-10830 Lyle W. Cayce
Summary Calendar Clerk
LESLIE GREER,
Plaintiff – Appellant
v.
RICHARDSON INDEPENDENT SCHOOL DISTRICT,
Defendant – Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:08-CV-160
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
The district court awarded attorneys’ fees to Defendant–Appellee under
28 U.S.C. § 1927, to be recovered jointly and severally from Plaintiff–Appellant’s
counsel, Palmer D. Bailey and Kenneth D. Carden. For the reasons set out
below, we AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff–Appellant Leslie Greer sued Defendant–Appellee Richardson
Independent School District (“RISD”), alleging violations of Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the
Rehabilitation Act of 1973, 29 U.S.C. §§ 794 and 794a. Greer’s claims related to
RISD’s Berkner B stadium, located at Berkner High School in Richardson,
Texas. Greer, who uses a wheelchair because of a spinal cord injury she
suffered, attended her son’s junior varsity football game at the Berkner B
stadium on October 4, 2007. She was unable to sit in the bleachers because they
could only be reached by climbing a flight of stairs. Consequently, she watched
the game from a paved area adjacent to the bleachers, where she estimated she
could only observe roughly 15% of the game because her view was obstructed.
Greer’s initial complaint focused exclusively on her exclusion from the stadium’s
bleacher seating.
The parties filed cross-motions for summary judgment in December 2008.
At a motion hearing on March 4, 2009, the district court granted leave for RISD
to amend its answer to assert the affirmative defense that making accessibility
modifications to the Berkner B stadium would impose an undue financial and
administrative burden. The court also reopened discovery as to RISD’s newly
asserted defense. On July 9, 2009, the district court granted Greer leave to file
a Second Amended Complaint, in which Greer added accessibility allegations
related to the restrooms in Berkner B stadium, curb cuts, ramp access to a public
right of way, and access to the track surrounding the football field. RISD filed
its Third Amended Answer on July 17, 2009.
On August 3, 2009, both parties again filed cross-motions for summary
judgment. Greer also filed a motion to extend discovery and to allow subsequent
briefing on RISD’s undue burden defense, and the district court granted this
motion. On February 1, 2010, the parties filed their third cross-motions for
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summary judgment. Greer subsequently filed a Motion to Strike Undue Burden
Defense and for Sanctions, asserting that RISD had asserted the undue burden
defense in bad faith and that RISD did not have the requisite factual basis for
the defense under 28 C.F.R. § 350.150(a)(3).
On August 2, 2010, the district court granted RISD’s motion for summary
judgment in part, holding that Greer did not present a prima facie case of
discrimination under Section II of the ADA. Greer v. Richardson Indep. Sch.
Dist., 752 F. Supp. 2d 746, 754–56 (N.D. Tex. 2010). The district court also
granted summary judgment in part to Greer based on her allegation that a ramp
installed at the stadium did not comply with ADA Accessibility Guidelines for
Buildings and Facilities (“ADAAG”) requirements and denied Greer’s Motion to
Strike Undue Burden Defense and for Sanctions. Id. at 758.
On August 20, 2010, Greer filed a Motion for Findings of Fact on Plaintiff’s
Motion to Strike Undue Burden Defense and for Sanctions, requesting that the
district court explain its denial of her motion. The district court issued an order
on August 27, 2010, concluding, inter alia, that “Defendant’s undue burden
defense was not asserted in bad faith” and stating that the court allowed RISD
to amend its answer to assert the defense “in light of the scattershot allegations
Plaintiff pled in her Complaint.” The court further noted that “it would waste
judicial resources for the Court to further evaluate the moot defense of undue
burden.”
On November 12, 2010, the district court disposed of all pending motions
and claims in favor of RISD. Greer v. Richardson Indep. Sch. Dist., 752 F. Supp.
2d 759, 762–63 (N.D. Tex. 2010). On December 7, 2010, the district court taxed
costs in the amount of $5,254.25 against Greer under 28 U.S.C. § 1920. Greer
filed a Motion to Deny Costs on December 14, 2010, seeking to deny the costs of
depositions allegedly taken in connection with RISD’s undue burden defense.
On April 12, 2011, the district court denied Greer’s motion.
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On November 24, 2010, RISD moved for attorneys’ fees pursuant to
Federal Rule of Civil Procedure 54 and 28 U.S.C. § 1927, and it filed an
Amended Motion for Attorney Fees on February 17, 2011. RISD sought the
recovery of fees incurred as a result of the alleged vexatious and unreasonable
conduct by Plaintiff’s counsel in its Third Motion for Summary Judgment,
Response to Defendant’s Motion for Summary Judgment, Motion to Strike
Undue Burden Defense and for Sanctions, Request for Findings of Fact on
Undue Burden Defense, and Motion to Deny Costs. RISD also sought recovery
of attorneys’ fees incurred in preparing and filing its Motion for Attorney Fees.
The magistrate judge recommended that the district court grant RISD’s motion
and award attorneys’ fees under 28 U.S.C. § 1927 in the amount of $34,958, and
paralegal fees in the amount of $5,572.50, payable jointly and severally by
Greer’s counsel, Palmer D. Bailey and Kenneth D. Carden. On August 11, 2011,
the district court awarded RISD $25,723 in attorneys’ fees and $2,162.50 in
paralegal fees, accepting the findings and conclusions of the magistrate judge in
part, but declining to award fees related to Greer’s Request for Findings of Fact
on Undue Burden Defense and RISD’s Motion for Attorney Fees. Greer timely
appealed.1
II. DISCUSSION
Under 28 U.S.C. § 1927, an “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.” For an attorney’s conduct to be
considered unreasonable and vexatious, “there be evidence of bad faith, improper
1
Greer separately appealed the district court’s grant of summary judgment in favor of
RISD and its denial of her motion for sanctions, and this court affirmed the district court’s
judgment. Greer v. Richardson Indep. Sch. Dist., No. 10–11254, 2012 WL 833367, at *1 (5th
Cir. Mar. 14, 2012).
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motive, or reckless disregard of the duty owed to the court.” Edwards v. Gen.
Motors Corp., 153 F.3d 242, 246 (5th Cir. 1998) (citations omitted). “We have
characterized awards under § 1927 as penal in nature.” Browning v. Kramer,
931 F.2d 340, 344 (5th Cir. 1991) (citation omitted). “[I]n order not to dampen
the legitimate zeal of an attorney in representing his client, § 1927 is strictly
construed.” Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc., 38 F.3d
1414, 1416 (5th Cir. 1994).
Despite our strict construction of § 1927, we review the district court’s
imposition of attorneys’ fees for abuse of discretion. See id. at 1417. “A district
court abuses its discretion if it awards sanctions based on an erroneous view of
the law or a clearly erroneous assessment of the evidence.” Walker v. City of
Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999) (citation and internal quotation
marks omitted). “[I]n reviewing the imposition of sanctions, we do not substitute
our judgment for that of the district court in enforcing acceptable standards of
conduct.” Travelers Ins. Co., 38 F.3d at 1417 (citation omitted). “The district
court is in the best position to assess the propriety of a party’s conduct.”
Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 535 (5th Cir. 1996)
(citation omitted). Nonetheless, the district “court must announce the
sanctionable conduct giving rise to its order.” Topalian v. Ehrman, 3 F.3d 931,
937 (5th Cir. 1993). “Specific findings permit effective appellate review of the
validity and amount of fees.” Procter & Gamble Co. v. Amway Corp., 280 F.3d
519, 526 (5th Cir. 2002).
Greer’s attorneys contend that there was never a finding of bad faith,
improper motive, or reckless disregard of the duty owed to the court.2 Her
2
Greer’s counsel also complains that the district court did not hold a hearing prior to
imposing sanctions. However, the magistrate judge noted that neither party requested a
hearing and found that a hearing was not needed to clarify the § 1927 issues. We have upheld
the imposition of sanctions imposed without a hearing under similar circumstances. See
Travelers Ins. Co., 38 F.3d at 1418.
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counsel asserts that it “was, in effect, sanctioned for the manner in which it
argued its summary judgment briefs and the language and arguments it made.”
Greer’s attorneys stress that, in recommending that the district court award
attorneys’ fees to RISD, the magistrate judge highlighted statements the district
court made regarding the “paucity of citations” in Greer’s lengthy summary
judgment briefing, the “use of informal language that seesaws between flippancy
and condescension,” and the court’s observation that the brief was “obviously not
proofread.”3 According to Greer’s counsel, such statements cannot be the basis
for imposing sanctions under § 1927 because “sanctions may not be imposed for
mere negligence on the part of counsel.”4 Baulch v. Johns, 70 F.3d 813, 817 (5th
Cir. 1995). However, the magistrate judge in this case found that the manner
in which Greer’s counsel asserted its arguments reflected a reckless disregard
for its duty to the court. Further, “[w]e have in the past upheld awards based
in part on ‘the irresponsible manner in which the litigation was conducted
[which] further multiplied the[] . . . proceedings.’” Browning, 931 F.2d at 345
(first alteration in original) (quoting Lewis v. Brown & Root, Inc., 711 F.2d 1287,
1292 (5th Cir. 1983)).
3
In full, the district court stated:
The Court observes the paucity of citations to the law in the fifty pages of
Plaintiff’s summary judgment brief, and further notes with disapproval the use
of informal language that seesaws between flippancy and condescension.
Sentences such as “Did you see that?” and “Think about it” are neither an
acceptable nor appropriate way to address the Court. See Plaintiff’s Brief in
Support of Motion for Summary Judgment at 9, 14. It is also highly
inappropriate for Plaintiff’s counsel, Mr. Bailey and Mr. Carden, to have filed
a brief that was obviously not proofread and thus contains internal notations
to counsel such as “Cite case here.” Id. at 48.
4
In its briefing on appeal, Greer’s counsel similarly contends that it “is now being
sanctioned under 28 U.S.C. § 1927 for being justly outraged at [RISD’s] conduct and for merely
holding RISD’s conduct up for light-hearted ridicule.”
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Moreover, Greer’s counsel fails to give weight to significant portions of the
magistrate judge’s findings and conclusions. The magistrate judge noted that
the district court had “thoroughly documented a number of the problems with
Plaintiff’s counsel[’]s[] conduct in this case” and set out in detail additional
conduct that it found to be unreasonable and vexatious, including the
mischaracterization of witness testimony, the failure to cite the record
accurately, and the persistent assertion of baseless arguments. These findings
are examined below.
With regard to Greer’s Third Motion for Summary Judgment, the
magistrate judge detailed Greer’s counsel’s mischaracterization of witness
testimony, as well as the assertion of baseless arguments regarding the standard
for accessibility and unsupportable accusations against RISD and its counsel.
In particular, Greer’s counsel repeatedly argued that RISD’s expert witness,
Michael Longanecker, testified that the Berkner B stadium was not accessible.
However, the district court found that “[t]his characterization is misleading at
worst; at best, it consistently confuses the different standards that apply to
new/altered and existing facilities.” The district court further noted that its
review of Greer’s Third Motion for Summary Judgment “as to the newly
renovated portions [of the Berkner B stadium] was severely hampered by Greer’s
repeated failures to accurately cite the record.” In recommending an award of
attorneys’ fees, the magistrate judge found that “Defendant was required to
expend extensive attorney and paralegal time clarifying the record for the
District Court.”
The magistrate judge also concluded that the arguments Greer’s counsel
asserted and reiterated regarding accessibility standards were baseless. Under
Title II of the ADA, “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to
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discrimination by any such entity.” 42 U.S.C. § 12132. The accessibility
requirements for existing facilities, such as the Berkner B stadium, are more
relaxed under the ADA than those for new structures. See Tennessee v. Lane,
541 U.S. 509, 531–32 (2004). “When considering ADA compliance for such
existing structures, the touchstone is . . . not the facility’s technical compliance
with the ADAAG, but is instead ‘program accessibility.’” Greer v. Richardson
Indep. Sch. Dist., No. 10–11254, 2012 WL 833367, at *4 (5th Cir. Mar. 14, 2012).
In the case of existing facilities, a public entity must “operate each service,
program, or activity so that the service, program, or activity, when viewed in its
entirety, is readily accessible to and usable by individuals with disabilities.” 28
C.F.R. § 35.150(a). Nonetheless, Greer “insist[ed] throughout the litigation to
apply a strict, technical definition of ‘accessible’ as defined in the ADAAG to
mean compliance with the ADAAG standards.” Greer, 2012 WL 833367, at *5
n.5. However, as this court found, Greer improperly “conflate[d] . . . facility
deviations from ADAAG standards, which are applicable to newly constructed
or modified facilities, with RISD’s obligation to provide program access at an
existing facility” and, in effect, “attempt[ed] to completely nullify the ‘program
access’ standard.” Id. at *5. The magistrate judge in this case found that
Greer’s argument regarding the standard for accessibility was “[w]ithout legal
or factual justification.”
Not only did Greer’s counsel misstate the applicable legal standards for
accessibility, it accused RISD of fabricating a new standard for accessibility and
misleading the court by using a definition of accessible that differed from that
in the ADAAG. The district court, however, found that RISD had advanced the
correct legal standard for assessing the accessibility of existing facilities, and in
recommending sanctions against Greer’s counsel, the magistrate judge
characterized Greer’s accusations as “attempt[s] to misdirect the Court.”
Moreover, Greer’s counsel’s arguments took a form that the magistrate judge
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characterized as “wrongful accusation[s]” and “attack[s],” including allegations
that RISD’s counsel had “misled th[e] court” and “wast[ed] literally hundreds
and hundreds of hours of [Plaintiff’s counsel’s] legal time briefing this case in
order to expose this complete fabrication about what [Defendant] means by
‘accessible.’”
With regard to Greer’s Response to Defendant’s Motion for Summary
Judgment, the magistrate judge found that Greer’s counsel continued to
mischaracterize Longanecker’s testimony and to assert the baseless accusations
against RISD regarding the proper standard for assessing accessibility. The
magistrate judge further noted that Greer’s counsel made additional
“unprofessional and untrue claims” and mischaracterized the testimony of
RISD’s employees regarding the planned expenditures of bond funds.
Regarding Greer’s Motion to Strike Undue Burden Defense and for
Sanctions, the magistrate judge concluded that this motion was both “frivolous
and unwarranted.” Greer’s counsel had argued that RISD asserted its undue
burden defense in bad faith and failed to produce any evidence supporting the
defense despite repeated discovery requests. However, as this court noted,
“RISD provided substantial discovery materials related to the analyses the
school district performed when evaluating what modifications would be made to
facilities in the district and how budgetary funds would be allocated, by priority,
to modification projects.” Greer, 2012 WL 833367, at *10. Moreover, both this
court and the district court concluded that RISD had an evidentiary basis for its
undue burden defense.5 See id.
After the district court explicitly found that RISD asserted its undue
burden defense in good faith, Greer reiterated the argument that RISD was
5
Much of Greer’s counsel’s briefing on appeal merely reiterates the position that RISD
had no basis for asserting its undue burden defense—an argument repeatedly rejected by the
district court and rejected by this court as well.
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asserting the defense in bad faith in her Motion to Deny Costs. In denying
Greer’s motion, the district court noted its consistent rejection of Greer’s
arguments regarding RISD’s undue burden defense and stated that “Plaintiff
has not only failed to show good cause for the Court to deny costs . . . but she has
also brought a frivolous motion . . . [and] unreasonably multiplied the
proceedings.”
In light of the magistrate judge’s findings described above and adopted by
the district court, as well as our review of the record and relevant pleadings, we
conclude that the district court did not abuse its discretion in awarding
attorneys’ fees to RISD under § 1927. Greer’s counsel challenges the amount of
the fees awarded and contends that the district court did not properly limit the
award to those fees caused by any vexatious and unreasonable conduct. The
magistrate judge found that RISD had incurred a total of $206,004.25 in
attorneys’ fees and $29,355.00 in paralegal fees in defending against Greer’s
claims, amounts well in excess of those awarded. In addition, the magistrate
judge expressly found that the fees sought by RISD were only the portion
attributable the unreasonable and vexatious conduct of Greer’s counsel. We
conclude that the district court did not abuse its discretion by declining to
segregate fees further.
III. CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the district
court. Costs shall be borne by Appellant.
10