Dancer v. Summit Collection Services

Filing 32

ORDER that Plaintiff's second motion to dismiss (ECF No. 24 ) is granted . This case is dismissed without prejudice; Plaintiff's first motion to dismiss (ECF No. 20 ) is denied as moot; Defendants motion for attorneys fees (ECF No. 22 ) is denied. The Clerk is instructed to close this case. Signed by Judge Miranda M. Du on 10/6/2017. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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THOMAS DANCER,

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Case No. 3:17-cv-00005-MMD-WGC
Plaintiff,

ORDER

v.
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SUMMIT COLLECTIONS SERVICES,
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Defendant.
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Before the Court are Plaintiff’s two motions to dismiss (ECF Nos. 20, 24) and

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Defendant’s motion for attorney’s fees (ECF No. 22). The Court has reviewed the briefs

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relating to these motions. (ECF Nos. 23, 25, 26.) Because Plaintiff filed a second motion

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to dismiss (ECF No. 24), the Court denies his first motion to dismiss (ECF No. 20) as

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moot. The Court grants dismissal and denies Defendant’s motion for attorney’s fees.

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Plaintiff asserts that he wishes to dismiss the complaint after his review of the

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informal discovery exchanged between the parties. (ECF No. 24.) Plaintiff seeks

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voluntarily dismiss without prejudice. Defendant does not oppose Plaintiff’s motion

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contingent on payment of sanctions imposed on August 8, 2017 and any award of fees.

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(ECF No. 26.) The sanctions amount has been paid. (ECF No. 30.) Accordingly, the Court

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Plaintiff’s motion to dismiss.

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Defendant seeks fees under 28 U.S.C. § 1927. (ECF No. 22.) Section 1927

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provides that an attorney who “multiplies the proceedings in any case unreasonably and

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vexatiously may be required by the court to satisfy personally the excess costs, expenses ,

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and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927.

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Section 1927 requires that the attorney acted in bad faith or by “knowingly or recklessly

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making a frivolous argument” before a district court may impose sanctions. Gin v. Chicago

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Ins. Co., 106 F.3d 407 (9th Cir. 1997). Negligent conduct is not enough. Before issuing

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an attorneys’ fee award pursuant to section 1927, a district court must make a finding of

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subjective bad faith. In re Keegan Mgmt. Co., 78 F.3d 431, 436 (9th Cir. 1996). A court

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retains “substantial leeway” when determining whether to impose sanctions pursuant to

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section 1927. Haynes v. City & Cty. Of San Francisco, 688 F.3d 984, 987 (9th Cir. 2012).

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The Court finds that Plaintiff has not acted in bad faith and accordingly denies Defendant’s

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motion for attorney’s fees.
It is therefore ordered that Plaintiff’s second motion to dismiss (ECF No. 24) is

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granted. This case is dismissed without prejudice.
It is further ordered that Plaintiff’s first motion to dismiss (ECF No. 20) is denied as

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moot.
It is further ordered that Defendant’s motion for attorney’s fees (ECF No. 22) is
denied.

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The Clerk is instructed to close this case.

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DATED THIS 6th day of October 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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