Jordan v. Detroit, City of et al

Filing 97

ORDER denying 91 Plaintiff's Motion for Sanctions. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JASMINE GUY JORDAN,
Plaintiff,
v.
Case No. 11-10153
CITY OF DETROIT, et al.,
Defendants.
/
ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS
Defendants filed an improvidently timed motion to enforce a settlement
agreement thought to have been reached, but agreed in due course that is should be
terminated. In reaction to the attempt to settle, Plaintiff presents a motion for sanctions
pursuant to 28 U.S.C. § 1927 and the court’s inherent power. A hearing on the motion
is not necessary. See E.D. Mich. LR 7.1(f)(2). For the reasons that follow, the court
denies the motion.
I. BACKGROUND
The relevant facts of the underlying case are recorded in earlier orders. (See,
e.g., Dkt. # 75.) Only those facts germane to the pending motion will be recited here.
On September 19, 2012, Plaintiff filed, in the Sixth Circuit, a notice of appeal of
this court’s order granting Defendant’s motion for summary judgment and this court’s
order denying Plaintiff’s motion for reconsideration. The Sixth Circuit directed the
parties to participate in a mediation conference to explore settlement. The parties
disagree as to whether they reached a final settlement. On July 30, 2013, Defendant

Wayne County filed a “motion to enforce settlement” in this court. (Dkt. # 85.) On
August 29, 2013, this court conducted a telephonic status conference, during which
both counsel agreed that Defendants’ motion was improvidently presented, since this
court lacked jurisdiction at the time. See Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 379-80 (1994) (explaining that district courts lack “inherent power” to
enforce settlement agreements under supplemental jurisdiction, even when the court
has jurisdiction to hear the underlying case). The motion was terminated the next day.
On September 21, 2013, Plaintiff filed the instant motion for sanctions pursuant
to 28 U.S.C. § 1927 and the court’s inherent power to sanction.
II. STANDARD
A. Title 28 U.S.C. § 1927
Courts may award sanctions under 28 U.S.C. § 1927 when an attorney
“multiplies the proceedings in any case unreasonably and vexatiously.” The Sixth
Circuit recognizes the court’s ability to sanction an attorney under § 1927 “‘despite the
absence of any conscious impropriety.’” Rentz v. Dynasty Apparel Industries, Inc., 556
F.3d 389, 396 (6th Cir. 2009) (quoting Jones v. Cont’l Corp., 789 F.2d 1225, 1230 (6th
Cir. 1986)). If an attorney knows or reasonably should know that either the claim he or
she is pursuing is frivolous, or his or her litigation tactic will needlessly obstruct the
litigation of nonfrivolous claims, sanctions may be warranted absent any finding of bad
faith. Id. “However, ‘[t]here must be some conduct on the part of the subject attorney
that trial judges, applying the collective wisdom of their experience on the bench, could
agree falls short of the obligations owed by a member of the bar to the court and which,
as a result, causes additional expense to the opposing party.’” Rentz, 556 F.3d at 396
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(alteration in original) (quoting Ridder v. City of Springfield, 109 F.3d 288, 298 (6th
Cir.1997)). Thus, an attorney may be sanctioned when “he intentionally abuses the
judicial process or knowingly disregards the risk that his actions will needlessly multiply
proceedings.” Bailey v. Papa John’s USA, Inc., 236 F. App’x 200, 204 (6th Cir. 2007).
Id. “Under this objective standard, ‘§ 1927 sanctions require a showing of something
less than subjective bad faith, but something more than negligence or incompetence.’”
Id. (quoting Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642,
646 (6th Cir. 2006)).
B. The Court’s Inherent Power
In Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the Supreme Court held that a
district court has the “inherent authority” to impose independent sanctions. Id. at 43-50.
But the “imposition of inherent power sanctions requires a finding of bad faith,” First
Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 517 (6th Cir. 2002), or
conduct “tantamount to bad faith,” Roadway Express, Inc. v. Piper, 447 U.S. 752, 767
(1980). When invoking its inherent authority, “a court must exercise caution . . . and
comply with the mandates of due process.” Dell, Inc. v. Ellis, No. 07-2082, 2008 WL
4613978, at *2 (6th Cir. June 10, 2008) (citing Chambers, 501 U.S. at 50).
Nevertheless, a court “should not shrink from exercising [its power] when sanctions are
justified by the circumstances.” Stalley v. Methodist Healthcare, 517 F.3d 911, 920 (6th
Cir. 2008).
With regard to attorney fees, the Supreme Court has stated:
[A] court may assess attorney’s fees when a party has acted in bad faith,
vexatiously, wantonly, or for oppressive reasons. In this regard, if a court
finds that fraud has been practiced upon it, or that the very temple of justice
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has been defiled, it may assess attorney’s fees against the responsible party
as it may when a party shows bad faith by delaying or disrupting the litigation
or by hampering enforcement of a court order.
Chambers, 501 U.S. at 45-46 (internal citations and quotations omitted). The Sixth
Circuit has held that to award attorney fees to the prevailing party, a court must find that
“‘(1) the claims advanced were meritless, (2) that counsel knew or should have known
this, and (3) that the motive for filing the suit was for an improper purpose such as
harassment.’” Stalley, 517 F.3d at 920 (quoting First Bank of Marietta, 307 F.3d at 512)
(enumeration added).
III. DISCUSSION
Plaintiff’s counsel contends that during an April 18, 2013 phone conversation with
Wayne County Defense counsel (“Defense counsel”) regarding a potential motion to
enforce settlement, he alerted Defense counsel to Kokkonen. He argues that, despite
his admonition that this court lacked jurisdiction to enforce a settlement in light of
Kokkonen, Defense counsel nonetheless filed a “motion to enforce settlement” on July
30, 2013. (Dkt. # 85.) Defense counsel counters that this conversation never occurred.
Defense counsel attaches County Information Technology Telephone Records which
reveal that there was no communication between her and Plaintiff’s counsel on April 18,
2013. (Pg. ID 1214–16.) In his reply, Plaintiff’s counsel says he was mistaken about
the date, but that he spoke with Defense counsel about Kokkonen on April 8 (telephone
records indicate that counsel did communicate on that date).
The court is dubious about Plaintiff’s counsel’s recollection of the events. First, it
does not seem ordinary, under the accepted standard of attempting to work out the

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substance of a motion before filing it, that a conversation including a caution about the
predicates of a motion would have taken place fully four months before the eventual
filing. Second, and more importantly, if Plaintiff’s counsel had warned Defense counsel
about Kokkonen in April, then it would seem that he would at least mention such an
admonition in his response to Defendants’ motion to enforce settlement. Yet in neither
the August 8, 2013 response, (Dkt. # 86), nor in two subsequently filed errata sheets,
(Dkt. ## 87, 88), did Plaintiff’s counsel say anything about a April phone call regarding
Kokkonen. Finally, Plaintiff’s counsel actually filed the response, as just noted, on
August 8, yet in his itemization of fees next to “8/12/13" he wrote “[b]egin first draft
response to motion to enforce settlement.” (Pg. ID 1178.) Plaintiff appears to be at
least somewhat confused about the sequence of events in this case.
Defense counsel’s filing of a “motion to enforce settlement,” may, at worst,
constitute “negligence or incompetence,” Rentz, 556 F.3d at 396 (internal quotations
and citations omitted), yet the improvident filing does not meet the necessary threshold
for the imposition of sanctions under either 28 U.S.C. § 1927 or the court’s inherent
power. Defense counsel inherited this case from a former Wayne County attorney, Ms.
Boylan, who resigned from her position while her former client’s motion for summary
judgment was pending before the court. (Pg. ID 1209.) Moreover, Defense counsel’s
“motion to enforce settlement” primarily cites Michigan, not federal, caselaw. When
filing the motion, “[s]he was mistakenly under the assumption that the District Court
matter was still pending on the district court docket until the briefs on appeal had been
filed” and thus, as she had yet to file an appeal brief, that the district court retained

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jurisdiction to enforce a settlement. (Pg. ID 1196.) In accordance with this
misunderstanding of the relevant law, the day after filing the “motion to enforce
settlement,” on August 1, 2013, Defense counsel sought an extension of time to file her
brief from the Sixth Circuit. (Pg. ID 1174.)1 In that appellate motion, Defense counsel
stated: “On Tuesday, July 30, 2013, counsel for Defendant-Appellee filed a Motion to
Enforce Settlement with the underlying trial court, which, if successful, would remove
jurisdiction from this appellate Court.” (Pg. ID 1181.) Defense counsel provides an
entirely adequate explanation of why she improvidently filed the “motion to enforce
settlement.”
Defense counsel’s conduct does not meet the “objective” standard of 28 U.S.C. §
1927 under which the court may impose sanctions: “a showing of something less than
subjective bad faith, but something more than negligence or incompetence.” Rentz, 556
F.3d at 396 (internal quotations and citations omitted); see also
Smith v. ABN AMRO Mortgage Grp. Inc., 434 F. App’x 454, 469 (6th Cir. 2011)
(“Although . . . counsel’s well-intentioned zeal in representing her clients may have
affected her judgment at times during this litigation, we believe that the challenged
conduct during this appeal is not sufficiently unreasonable and vexatious to justify
sanctions under § 1927”) (internal quotations, citations, and brackets omitted). As such,
Defense counsel’s conduct also does not meet the higher standard, which requires bad

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Plaintiff’s counsel emphasizes that he responded on August 1, 2013 by citing
Kokkonen and arguing that Defense counsel’s filing of a “motion to enforce settlement”
in this court was inappropriate. Regardless, Plaintiff’s counsel filed this response after
Defense counsel filed the motion. The court also observes that Plaintiff’s counsel does
not mention the alleged April 18 phone call.
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faith, necessary to impose sanctions under the court’s inherent power. See First Bank
of Marietta, 307 F.3d at 517.
IV. CONCLUSION
When “well intentioned zeal,” as exhibited by defendants’ counsel herein, is met
by such a fulsomely aggressive counter-attack, the resulting point-counterpoint seems
often to produce more heat than light. But, as explained above, in the light of the actual
record, this motion [Dkt. # 91] should be, and the same is, DENIED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: December 13, 2013

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, December 13, 2013, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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