United States District Court, D. Minnesota
Katherine Menendez United States Magistrate Judge
Plaintiff, Scott Smith, brought a motion in this case to
recover expenses and attorney's fees incurred in serving
Defendant Pamela Dahl. [Smith Mot., ECF No. 52.] The Court
denied Mr. Smith's motion on January 24, 2018, and denied
without prejudice Ms. Dahl's own request that she be
awarded her own expenses and fees incurred in responding to
Mr. Smith's motion. [Order (Jan. 24, 2018), ECF No. 72.]
The Court determined that before considering the propriety of
imposing sanctions on Mr. Smith and his counsel, Padraigin
Browne, Ms. Dahl should file a formal motion. [Id.
at 6-7.] On January 26, 2018, Ms. Dahl filed a formal motion
seeking sanctions against Mr. Smith and Ms. Browne. [Dahl
Sanctions Mot., ECF No. 74.] In her sanctions motion, Ms.
Dahl asks the Court to award her the expenses and
attorney's fees she incurred in responding to Mr.
Smith's motion for recovery of service expenses and
attorney's fees. [Dahl Mem., ECF No. 77.]
Section 1927 Sanctions
Dahl first argues that sanctions should be imposed against
Mr. Smith, Ms. Browne, and Browne Law LLC pursuant to 28
U.S.C. § 1927. Ms. Dahl contends that the filing of Mr.
Smith's motion to recover service expenses unreasonably
and vexatiously multiplied the proceedings.
1927 provides that:
Any 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
28 U.S.C. § 1927. The statute authorizes a court to
“require counsel to satisfy personally attorneys'
fees reasonably incurred by an opposing party when
counsel's conduct multiplies the proceedings in any case
unreasonably and vexatiously.” Clark v. United
Parcel Serv., Inc., 460 F.3d 1004, 1011 (8th Cir. 2006)
(internal quotations omitted). “[T]he statute permits
sanctions when an attorney's conduct, viewed objectively,
manifests either intentional or reckless disregard of the
attorney's duties to the court.” Id.
(internal quotations omitted).
explained by another district court within our Circuit,
“‘[b]ehavior is ‘vexatious' when it is
harassing or annoying, regardless of whether it is intended
to be so. Thus, if an attorney's conduct in multiplying
proceedings is unreasonable and harassing or annoying,
sanctions may be imposed under section 1927.'”
Sherman v. Sunsong Am., Inc., No. 804-cv-300, 2007
WL 1310057, at *1 (D. Neb. Mar. 27, 2007) (quoting Cruz
v. Savage, 896 F.2d 626, 632 (1st Cir. 1990)). Relying
on precedent from the Federal Circuit, another court within
the District of Minnesota recently explained that “28
U.S.C. § 1927 implicates a higher level of culpability
than Rule 11 sanctions.” M-I Drilling Fluids UK
Ltd. v. Dynamic Air Inc., No. 14-CV-4857 (JRT/HB), 2017
WL 8947185, at *16 (D. Minn. Feb. 3, 2017), report and
recommendation adopted, No. 14-cv-4857 (JRT/HB), 2017 WL
1193992 (D. Minn. Mar. 30, 2017) (citing Raylon, LLC v.
Complus Data Innovations, Inc., 700 F.3d 1361, 1371 n.6
(Fed. Cir. 2012)).
Eighth Circuit has cautioned that § 1927 should be
construed narrowly to avoid deterring zealous advocacy by an
attorney on behalf of her clients. Lee v. L.B. Sales,
Inc., 177 F.3d 714, 718 (8th Cir. 1999). As such,
conduct is not sanctionable merely because a party raises an
issue and does not prevail. Sanctions are not appropriate
where the issues raised “are subject to reasonable
dispute.” Misischia v. St. John's Mercy Health
Sys., 457 F.3d 800, 806 (8th Cir. 2006).
district court imposes sanctions under § 1927, it must
make findings and explain its reasoning. Tenku v.
Normandy Bank, 348 F.3d 737, 743 (8th Cir. 2003).
“The decision as to whether to award attorneys'
fees and costs under Section 1927 is within this Court's
discretion.” Bernstein v. Extendicare Health
Servs., Inc., 653 F.Supp.2d 949, 954 (D. Minn. 2009)
(quoting Gundacker v. Unisys Corp., 151 F.3d 842,
849 (8th Cir. 1998)).
Court concludes that it is not appropriate to sanction Ms.
Browne under § 1927 for pursuing Mr. Smith's
unsuccessful motion to recover service expenses and
attorney's fees. Most importantly, the Court reaches this
conclusion because Ms. Dahl cites no case where a court has
imposed sanctions against an attorney pursuant to § 1927
based on the filing of a single unsuccessful and unnecessary
motion. Courts imposing sanctions under this statute are
generally faced with much more prolonged and egregious
conduct than Ms. Browne engaged in here. See Books Are
Fun, Ltd. v. Rosebrough, 239 F.R.D. 532, 548-49 (S.D.
Iowa 2007) (discussing Eighth Circuit cases involving
egregious conduct where § 1927 sanctions were upheld).
Indeed, a recent case from the District of Minnesota (cited
by Ms. Dahl in her brief) suggests that sanctions should not
be awarded under the circumstances presented by this case.
Jahnke v. R.J. Ryan Const., Inc., No. CIV. 13-962
JRT/SER, 2014 WL 4639831, at *10 (D. Minn. Sept. 16, 2014)
(“[T]he Court concludes that ECS' conduct, as
described by RJ Ryan, resulted in the filing of a single
motion by RJ Ryan-hardly the type of vexatious multiplication
of proceedings that § 1927 was designed to
address.”). In the absence of more persuasive
authority, the Court cannot conclude that § 1927
sanctions are appropriate here, especially because §
1927 must be construed strictly so that advocates are not
deterred from providing their clients with zealous advocacy.
Court is also not persuaded by Ms. Dahl's suggestion that
Mr. Smith's motion for service expenses was retaliatory.
Ms. Dahl's counsel points to a dismissal and fee motion
in another case involving the same attorneys that are
representing the parties here-Davis v. Morris-Walker,
Ltd., No. 17-cv-1270 (DSD/FLN), Doc. No. 63 (D. Minn.
Dec. 7, 2017). [Dahl Mem. at 5.] Other than the fact that Mr.
Smith's motion for service expenses was filed later in
the same month that the order was issued in Davis,
Ms. Dahl has made no showing to support the assertion that
the motion ...