United States Court of Appeals,
Eleventh Circuit.
No. 95-6503.
Archie R. TURNER, Plaintiff-Appellant,
v.
SUNGARD BUSINESS SYSTEMS, INC., a Delaware Corporation,
Defendant-Appellee.
Aug. 15, 1996.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CV 93-N-2560-S), Edwin L. Nelson, Judge.
Before EDMONDSON and DUBINA, Circuit Judges, and FARRIS*, Senior
Circuit Judge.
EDMONDSON, Circuit Judge:
This appeal concerns a trial court's ability to impose
attorney's fees and monetary sanctions on a party and his counsel
for continuing to prosecute a frivolous action. Plaintiff and his
attorney appeal the district court's order (1) imposing sanctions
on Plaintiff's counsel pursuant to Rule 11 of the Federal Rules of
Civil Procedure and 28 U.S.C. § 1927 and (2) awarding attorney's
fees against Plaintiff pursuant to 42 U.S.C. § 1988 and the
principles established in Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Because the
district court did not abuse its discretion, we affirm.
I. Background
In December 1993, Plaintiff Archie Turner sued Defendant
Sungard Business Systems, Inc. ("Sungard") for race discrimination
under Title VII of the Civil Rights Act of 1964. Turner alleged
*
Honorable Jerome Farris, Senior U.S. Circuit Judge for the
Ninth Circuit, sitting by designation.
that Sungard passed him over for a promotion and filled the vacant
position with a white employee. Richard Meelheim initially
represented Turner in this matter.
On 22 March 1994, the court granted Meelheim's motion to
withdraw. The district court later found that Meelheim withdrew
from the case "after plaintiff informed him that, regardless of his
advice, the plaintiff desired to pursue the matter through other
representation."
Henry Penick filed a notice of appearance for Turner on 28
December 1994. The district court held a pretrial conference on 27
January 1995. Sungard moved for summary judgment the same day. At
the pretrial conference, Penick told the court that he had evidence
to support Plaintiff's claim that the job at issue had been filled
by a white employee. On 17 February 1995, Sungard filed a
supplemental motion for summary judgment.1 Plaintiff neither
responded to Sungard's motion for summary judgment nor appeared at
oral argument. On 27 March 1995, the district court granted
Sungard's summary judgment motion on the grounds that Turner had
made out no prima facie case of race discrimination, finding that
the position sought by Turner was doubtlessly still vacant.
Sungard then moved for sanctions. The district court issued
a show cause order to Turner, Meelheim and Penick. Only Meelheim
filed a response to the show cause order. Meelheim indicated that
he filed the action after conversations with Turner and another
1
At the pretrial conference, Penick said that he wished to
depose Edwina Zales, Vice President of Human Resources for
Sungard. Sungard, in turn, indicated that it wished to depose
Turner. Penick completed Zales' deposition on 9 February 1995.
former employee of Sungard had convinced him that there was
evidence to form a reasonable belief that a white male had
effectively received a promotion that was denied to Turner.
The district court heard the matter of fees and sanctions on
28 April 1995. Because Meelheim made some investigation of
Turner's claim and withdrew when he learned Turner's claim was
meritless, the district court imposed no sanctions against him.
The district court issued an order awarding $10,000.00 against
Turner representing reasonable attorney's fees pursuant to 42
U.S.C. § 1988 and $6,255.00 against Penick as a sanction for
prosecuting Turner's frivolous action. Turner and Penick appeal.
II. Discussion
A. Sanctions Imposed on Counsel
We review the district court's imposition of sanctions
pursuant to Rule 11 for an abuse of discretion. See Donaldson v.
Clark, 819 F.2d 1551, 1556 (11th Cir.1987) (en banc). Penick's and
Turner's ("Appellants") argument on the Rule 11 sanction is
two-fold. First, Appellants argue that Penick has signed no
document, such as a pleading or motion, sufficient to trigger Rule
11.2 Second, Appellants argue that because the district court
2
Rule 11(b)(3) provides, in pertinent part:
(b) Representations to Court. By presenting to the
court (whether by signing, filing, submitting or later
advocating) a pleading, written motion, or other paper, an
attorney or unrepresented party is certifying that to the
best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances,
...
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are
likely to have evidentiary support after a reasonable
failed to sanction Meelheim for filing Plaintiff's complaint,
Plaintiff's substitute counsel, Penick, cannot be sanctioned. Both
of these contentions are mistaken.3
Appellants argue that the only paper that Penick signed and
4
submitted to the court was a notice of appearance. Appellants
argue that Penick's signing of the notice of appearance cannot
subject him to sanctions under Rule 11.
This argument ignores the plain language of Rule 11, which
merely requires "papers" to be "present[ed]" to the court.
Further, it is well established that Rule 11 applies to all papers
filed in a suit. See, e.g., Thomas v. Capital Security Servs.,
Inc., 836 F.2d 866, 870, 873 (5th Cir.1988) (en banc). The
district court found that "from the moment he appeared on the
plaintiff's behalf, he [Penick] had actual knowledge that there was
no merit to the plaintiff's assertions, or, at the very least, he
consciously decided not to inquire of the merits." That the only
"paper" Penick signed and submitted to the court in prosecuting
Plaintiff's claim was the notice of appearance is unimportant. By
appearing in this case, Penick affirmed to the court that the case
opportunity for further investigation or discovery.
3
Appellants also argue that it was error to sanction Penick
pursuant to Rule 11 because Sungard failed to comply with the
safe harbor provisions of Rule 11(c)(1) by serving the motion for
sanctions only one day before filing it with the court instead of
the 21 days required. Because Penick was sanctioned pursuant to
a show cause order issued by the district court, this procedural
argument is without merit. See Fed.R.Civ.P. 11(c)(1)(B).
4
Sungard states that Penick also signed and filed pre-trial
conference documents. The district court does not appear,
however, to have relied on such documents in sanctioning Penick
under Rule 11.
had arguable merit. In this sense, it was as if Penick had refiled
the complaint. To use Rule 11's words, he was "later advocating"
that the "factual contentions [in the complaint] have evidentiary
support."
Appellants' citation of Bakker v. Grutman, 942 F.2d 236 (4th
Cir.1991), is unpersuasive. In Bakker, the Fourth Circuit
determined that the district court did not abuse its discretion in
refusing to impose Rule 11 sanctions on substitute counsel whose
only role in the case had been to move for a protective order
extending the time to respond to discovery requests (to which
opposing counsel consented), to produce documents in response to
the request and then to file a voluntary dismissal, with prejudice,
of her client's claims. Penick did more wrong and less right than
did counsel in Bakker. Moreover, district courts do have broad
discretion about sanctions.
Appellants stress the view that it was an abuse of discretion
for the district court to issue sanctions against Penick when the
court did not impose sanctions against Meelheim, who signed and
submitted the complaint. In essence, Appellants argue that because
the complaint was not sufficiently frivolous to subject Meelheim to
sanctions, Penick cannot be subject to sanctions when the only
document he filed is a notice of appearance. Appellants' view of
the scope of counsel's duty under Rule 11 is far too limited.
Rule 11 was amended effective 1 December 1993. The 1993
amendment makes clear the continuing nature of a litigant's
responsibility under Rule 11. Under the 1993 amendment:
It [Rule 11] also, however, emphasizes the duty of candor by
subjecting litigants to potential sanctions for insisting upon
a position after it is no longer tenable....
. . . . .
[A] litigant's obligations with respect to the contents of
these papers are not measured solely as of the time they are
filed with or submitted to the court, but include reaffirming
to the court and advocating positions contained in those
pleadings and motions after learning that they cease to have
any merit. For example, an attorney who during a pretrial
conference insists on a claim or defense should be viewed as
"presenting to the court" that contention and would be subject
to the obligations of subdivision (b) measured as of that
time.
Fed.R.Civ.P. 11 advisory committee's note.
The district court found that (1) Penick knew from the moment
he began representing Plaintiff that his claim was meritless, (2)
at the pretrial conference, Penick represented that he had evidence
to support Plaintiff's claim that the job at issue had been filled
though no such evidence was ever presented to the court, and (3)
after taking Zales' deposition, Penick had to know that the case
was without a factual basis but failed to dismiss it, thereby
forcing Sungard (and the court) to expend time and money on a
summary judgment motion. That the contentions contained in the
complaint were not frivolous at the time it was filed does not
prevent the district court from sanctioning Penick for his
continued advocacy of them after it should have been clear that
those contentions were no longer tenable. An ample basis exists
for the district court's imposition of Rule 11 sanctions.5
B. Award of Attorney's Fees
Appellants argue that the district court's award of
5
Because the district court did not abuse its discretion in
sanctioning Penick under Rule 11, we do not reach the issue of
whether the district court abused its discretion in finding
Penick's conduct sanctionable pursuant to 28 U.S.C. § 1927.
attorney's fees violates the Supreme Court's mandate of
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54
L.Ed.2d 648 (1978). Under Christiansburg, a district court may
award attorney's fees to a prevailing defendant in a Title VII case
"upon a finding that the plaintiff's action was frivolous,
unreasonable, or without foundation, even though not brought in
subjective bad faith." Id. at 420-22, 98 S.Ct. at 700.
In determining whether to assess attorney's fees, the
district court must examine (1) whether the plaintiff established
a prima facie case, (2) whether the defendant offered to settle,
and (3) whether the trial court dismissed the case prior to trial
or held a full-blown trial on the merits. Sullivan v. School Bd.
6
of Pinellas County, 773 F.2d 1182, 1189 (11th Cir.1985). We
review the district court's findings to determine whether it abused
its discretion. Id. at 1188.
Appellants offer two arguments that the district court abused
its discretion in awarding attorney's fees. First, Appellants
argue that because the district court failed to sanction
Plaintiff's initial counsel, the complaint must not have been
frivolous and, therefore, Plaintiff's action could not be
frivolous, unreasonable or without foundation as required by
Christiansburg. Second, Appellants argue that the district court
6
A finding of actual bad faith constitutes a basis for an
attorney's fees award regardless of the Sullivan factors. See
Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422-24, 98
S.Ct. 694, 701, 54 L.Ed.2d 648 (1978) ("needless to say, if a
plaintiff is found to have brought or continued such a claim in
bad faith, there will be an even stronger basis for charging him
with the attorney's fees incurred by the defense") (emphasis in
original).
failed to consider properly the Sullivan factors listed above
before imposing attorney's fees and that under such a test,
Plaintiff's action was not frivolous or groundless. Neither
contention is correct.
Appellants' argument about the implications of the district
court's failure to sanction Meelheim is based on an overly narrow
view of the Plaintiff's responsibilities under Title VII and
Christiansburg. As Appellants point out in their brief, in
Christiansburg, the Supreme Court indicated that "a plaintiff
should not be assessed his opponent's attorney's fees unless a
court finds that his claim was frivolous, unreasonable, or
groundless, or that the plaintiff continued to litigate after it
clearly became so." 434 U.S. at 422, 98 S.Ct. at 701 (emphasis
added). Appellants have cited no case which limits a litigant's
duty under Christiansburg to the time of filing the complaint, and
we have never so held. In the present action, the district court
found that "[t]he plaintiff knew his claim was frivolous, at the
latest, at some point between January 17, 1994 and March 18, 1994,
when such was communicated to him by his attorney Mr. Meelheim."
That Turner may have had a reasonable basis for believing that he
had been denied a promotion based on his race when the complaint
was filed is insufficient under Christiansburg.
Appellants dispute the district court's finding of actual bad
faith on Plaintiff's part and also say, citing a series of recent
Title VII attorney's fee cases from this circuit, that the district
court erred in failing to apply the factors we set out in Sullivan.
Appellants claim, in essence, that the district court assessed
attorney's fees simply because Sungard prevailed in the underlying
litigation. Appellants—as evidence that Plaintiff's claim was not
frivolous—stress the fact that Sungard offered to settle the matter
before the hearing on the summary judgment motion.7
Regardless of actual bad faith on Plaintiff's part, an
examination of the Sullivan factors indicates that the district
court's decision to award attorney's fees does not constitute an
abuse of discretion. The district court dismissed Plaintiff's case
on summary judgment and, in so doing, concluded that Plaintiff had
failed to establish a prima facie case of discrimination. As
Appellants have acknowledged, Plaintiff failed to oppose Sungard's
motion for summary judgment precisely because they had no basis for
doing so, that is, because Plaintiff's claim was not "meritorious
enough to receive careful attention and review." Walker v.
NationsBank of Florida, 53 F.3d 1548, 1559 (11th Cir.1995).
The cases cited by Appellants bear little resemblance to the
present case and do not dictate a different result. See id.
(attorney's fee award improper where defendant's two summary
judgment awards were denied and plaintiff established prima facie
case at trial); EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564,
1572 (11th Cir.1993) (attorney's fee award improper where EEOC
established prima facie case); Moulds v. Wal-Mart Stores, Inc.,
935 F.2d 252, 257 (11th Cir.1991) (appeal of trial court's
dismissal of claims was not frivolous to warrant attorney's fees);
7
Sungard disputes Appellants' characterization of the
settlement offer, claiming that this offer was "nominal" and
sought to dispose of not only the instant case, but two other
EEOC charges against Sungard by Turner.
Busby v. City of Orlando, 931 F.2d 764, 787 (11th Cir.1991)
(attorney's fees award improper where relevant legal issue in
underlying action was sufficiently close that "one judge on this
panel disagrees over the disposition").
The district court's imposition of sanctions on Plaintiff's
counsel under Rule 11 and its award of attorney's fees against
Plaintiff pursuant to 28 U.S.C. § 1988 for their respective roles
in continuing to prosecute an action after it became clear that
Plaintiff's claim had no basis in fact was no abuse of discretion.8
AFFIRMED.
8
Appellants also challenge as error the amount ($10,000) of
attorney's fees awarded. The district court held as follows:
"The court has no reason to question these sums as they have not
been contested and because they are reasonable in light of the
present circumstances." Not only do Appellants challenge this
amount for the first time on appeal, but they also fail to point
to evidence that would show that the amount is unreasonable under
the circumstances. So, we do not conclude that the amount of
attorney's fees awarded constituted error.