Black Warrior Riverkeeper, Inc. v. Alabama Department of Transportation et al

Filing 109

ORDER that Defendants' motion for sanctions 87 is DENIED. Signed by Chief Judge William Keith Watkins on 5/30/2013. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BLACK WARRIOR RIVERKEEPER, )
INC.,
)
)
Plaintiff,
)
)
v.
)
)
ALABAMA DEPARTMENT OF
)
TRANSPORTATION, et al.,
)
)
Defendants.
)

CASE NO. 2:11-CV-267-WKW
[WO]

ORDER
Plaintiff Black Warrior Riverkeeper, Inc., filed this lawsuit on April 11, 2011,
to challenge the construction of a new stretch of interstate highway. The original
complaint sought, among other things, judicial review of a 2006 reevaluation of the
project’s environmental impacts. On March 29, 2012, Defendants completed a new
reevaluation that superceded the old one, and the court gave Riverkeeper leave to file
an amended complaint reflecting the change. (Doc. # 81.) Defendants opposed the
amendment, arguing that Riverkeeper purposely filed a lawsuit full of “meaningless
claims” in an effort to “obtain media coverage,” all the while wasting “time, money
and resources.” (Doc. # 78, at 5.)
To penalize Riverkeeper for filing this lawsuit prematurely, Defendants
proposed dismissal of the action in its entirety. But the court declined to take that

route, which would have served only to delay matters further and needlessly multiply
litigation. (Defendants admitted dismissal would not prevent Riverkeeper from filing
a new lawsuit challenging the 2012 reevaluation.) Instead, the court gave Defendants
leave to seek sanctions “[w]ith respect to any charge that Plaintiff engaged in
gamesmanship in the premature filing of this case.” (Doc. # 81.)
Defendants responded with a request for costs pursuant to 28 U.S.C. § 1927,
which allows the court to sanction “attorney[s]” who multiply “the proceedings in any
case unreasonably and vexatiously.”1 Id. As Riverkeeper points out, that statute “was
designed to sanction attorneys who willfully abuse the judicial process by conduct
tantamount to bad faith . . . . Bad faith is the touchstone.” Schwartz v. Millon Air,
Inc., 341 F.3d 1220, 1225 (11th Cir. 2003). Thus, Defendants are entitled to fees only
if Riverkeeper acted in bad faith when it filed this lawsuit.
There is no evidence that Riverkeeper acted in bad faith. Defendants’ argument
to the contrary rests on a questionable premise: “It is clear that [Riverkeeper] knew
that the 2006 Reevaluation was about to be superceded by the new Reevaluation.”
(Doc. # 87, at 12.) But Defendants submit little evidence in support of that statement.
True, Defendants did write Riverkeeper a letter on March 9, 2011. Although
that letter mentioned “[t]he written reevaluation currently under development,” it gave

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The court construes that response as a motion for sanctions (Doc. # 87).
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not hint when that reevaluation might be completed. (Doc. # 87-5, at 17.) And
though that letter promised a reevaluation, Riverkeeper had cause for skepticism:
Defendants had been making similar promises for years, to no effect. (See, e.g., Doc.
# 88, at 4–5 (citing evidence that Defendants sent letters in 2006 and 2007 making
similar promises).) Essentially, Defendants argue that Riverkeeper should have taken
them at their word. But they cite no authority to suggest Riverkeeper acted in bad
faith when it took them to court instead.
But even if Riverkeeper did prematurely file this lawsuit, it has acted to avoid
unreasonably and vexatiously multiplying the proceedings. On November 29, 2011,
Riverkeeper moved for a stay of the proceedings pending the release of the new
reevaluation. (Doc. # 37.) Defendants opposed the motion (Docs. # 40, 41) and
insisted on continuing to “vigorously defend the 2006 Reevaluation” instead of
awaiting its successor (Doc. # 40, at 9). The court did not grant the stay. But if it had,
some eight orders, thirty filings, 341 pages of briefing, and countless exhibits, might
have been avoided. It is not Riverkeeper’s fault Defendants opposed the motion to
stay, and the court will not hold Riverkeeper responsible for proceedings it sought to
avoid.
Defendants characterize Riverkeeper’s challenge to the 2006 reevaluation as a
road going nowhere. Be that as it may, Defendants insisted on continuing to travel it.
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It is therefore ORDERED that Defendants’ motion for sanctions (Doc. # 87) is
DENIED.
DONE this 30th day of May, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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