Nelson v. The Special Administrative Board of the St. Louis Public Schools et al

Filing 19

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion for an Order Directing Plaintiffs Counsel to Discontinue Actions in State Court and Show Cause Why He Should Not Be Held in Contempt (Doc. No. 14 ) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs counsel, Eric Vickers, shall immediately discontinue any actions in state court with respect to the present case. IT IS FURTHER ORDERED that Plaintiffs counsel, Eric Vickers, shall show cause, in writing, no later than Friday, Septemb er 2, 2011, why Defendants should not be awarded their attorneys fees and costs in preparing their motion for an order showing cause, and accompanying memorandum (Docs. 14 , 15 ). Failure to comply with any part of this order may result in counsel being held in contempt of this court and subject to sanctions. Signed by Honorable Audrey G. Fleissig on 8/25/11. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CHERYL M. NELSON,
Plaintiff,
vs.
THE SPECIAL ADMINISTRATIVE
BOARD OF THE ST. LOUIS PUBLIC
SCHOOLS, et al.,
Defendants.

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Case No. 4:11CV00904 AGF

MEMORANDUM AND ORDER
On May 23, 2011, this Court issued an order advising Plaintiff’s counsel, Eric
Erfan Vickers, that he must apply for admission to this Court before he could represent
Plaintiff in this matter, and ordering Mr. Vickers to provide the Court with Plaintiff
Cheryl M. Nelson’s proper name and address, in writing, no later than Friday, June 3,
2011. (Doc. No. 8) On June 9, 2011, Mr. Vickers provided the Court with Plaintiff’s
proper name and address, and advised the Court that he intended to file his application for
admission to this Court within ten days. (Doc. No.16) On July 27, 2011, Mr. Vickers
was admitted to this Court.
On June 10, 2011, before Mr. Vicker’s response was docketed by the Clerk’s
Office, Defendants moved this Court for an order directing Mr. Vickers to discontinue
actions in state court and to show cause why he should not be held in contempt. (Doc.
No. 14) In their motion, Defendants notified the Court that, on June 9, 2011, Mr. Vickers

filed a First Amended Petition in the Circuit Court of the City of St. Louis, a copy of
which is attached to Defendants’ motion. (Doc. Nos. 14, 14-1)
28 U.S.C. § 1446(d) provides that after filing a notice of removal of a civil action
to federal court, Defendants shall promptly “give written notice thereof to all adverse
parties and shall file a copy of the notice with the clerk of such State court, which shall
effect the removal and the State court shall proceed no further unless and until the case is
remanded.” Therefore, Plaintiff cannot subvert this Court’s jurisdiction by filing a First
Amended Complaint in state court and this Court directs Plaintiff to discontinue actions
in state court with respect to this case immediately.
Defendants also argue that counsel’s actions have caused them to devote
unnecessary time and resources to this case, and that counsel has acted in contravention
of his obligations to this Court. Defendants therefore request that this Court award them
their attorneys’ fees and costs, pursuant to 28 U.S.C. § 1927, which 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 conduct.” Section 1927 “permits
sanctions when an attorney's conduct, viewed objectively, manifests either intentional or
reckless disregard of the attorney's duties to the court.” Clark v. United Parcel Service,
Inc., 460 F.3d 1004, 1011 (8th Cir. 2006) (internal quotations omitted). “As with
sanctions under Rule 11, the district court must provide an attorney with fair notice and
an opportunity to be heard before ordering the reimbursement of fees.” Id. (citing Fuqua
Homes, Inc. v. Beattie, 388 F.3d 618, 623 (8th Cir. 2004)).
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The Court also has the inherent authority to assess attorney fees against a party
who has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.”
Chambers v. NASCO, Inc., 501 U.S. 32, 33 (1991). See also Hutto v. Finney, 437 U.S.
678, 689 n. 14 (1978); Greiner v. City of Champlin, 152 F.3d 787, 798 (8th Cir.1998);
Doe v. Poelker, 515 F.2d 541, 547 (8th Cir.1975), rev'd on other grounds, 432 U.S. 519,
(1977). Under the Court’s inherent authority, excess costs and attorney fees may also be
assessed against an attorney personally. See Katoch v. Mediq, No. 4:04CV00938 CAS,
2007 WL 2434052, *7 (E.D. Mo. Aug. 22, 2007). “The power of a court over members
of its bar is at least as great as its authority over litigants. If a court may tax counsel fees
against a party who has litigated in bad faith, it certainly may assess those expenses
against counsel who willfully abuse judicial processes.” Roadway Express, Inc. v. Piper,
447 U.S. 752, 766 (1980) (footnote omitted).
The Court will therefore order Mr. Vickers to show cause why Defendants should
not be awarded their attorneys’ fees and costs in preparing their present motion and
accompanying memorandum, Doc. Nos. 14 and 15.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for an Order Directing
Plaintiff’s Counsel to Discontinue Actions in State Court and Show Cause Why He
Should Not Be Held in Contempt (Doc. No. 14) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s counsel, Eric Vickers, shall
immediately discontinue any actions in state court with respect to the present case.

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IT IS FURTHER ORDERED that Plaintiff’s counsel, Eric Vickers, shall show
cause, in writing, no later than Friday, September 2, 2011, why Defendants should not
be awarded their attorneys’ fees and costs in preparing their motion for an order showing
cause, and accompanying memorandum (Docs. 14, 15).
Failure to comply with any part of this order may result in counsel being held in
contempt of this court and subject to sanctions.

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 25th day of August, 2011.

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