Fluhart v. Invention Submission Corp

Filing 26

MEMORANDUM OPINION and ORDER denying 16 MOTION for Sanctions. See Order for specifics. (Ordered by Judge John McBryde on 5/24/2013) (krg)

V.S.DISTRICTCOVRT
NORTHERN DISTRICT OF TEXAS

_ FILED

IN THE UNITED STATES DISTRICT OURT
Mif/2 4 2013
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
CLER~ U.S. DISTRICT COURT
By
§
JONATHAN FLUHART,
-----nn=~~u~cy------§
§

Plaintiff,

§
§
§
§

vs.
INVENTION SUBMISSION
CORPORATION, D/B/A INVENTHELP,
D/B/A INPEX,

NO. 4:12-CV-877-A

§
§
§
§

Defendant.

MEMORANDUM OPINION
AND

ORDER
After having considered the motion for sanctions filed in
the above-captioned action on April 15, 2013, by defendant,
Invention Submission Corporation, the briefs and appendix filed
in support of the motion, the response and objection filed by
Norred Law, PLLC 1 in opposition to such motion, and plaintiff's
reply brief and supporting appendix, the court, with a degree of
reservation, has concluded that such motion should be denied.
Defendant seeks by the motion imposition of sanctions on
Norred, counsel for plaintiff, Jonathan Fluhart, under the
authority of 28 U.S.C.

§

1927 and the holding of the Supreme

Court in Chambers v. Nasco, 501

u.s.

32 (1991).

Section 1927

provides that:

1

The court is treating the response and objection as having been filed on behalf of counsel for
plaintiff, Jonathan Fluhart, and his law firm, Norred Law PLLC, who are the respondents named in
defendant's motion for sanctions. They collectively are referred to in this order as "Norred."

"

I

Any attorney or other person admitted to conduct
cases in any court of the United States or any
Territory thereof 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.
28 U.S.C.

§

1927.

In Chambers, the Supreme Court recognized that

courts may award attorney's fees where a person has "acted in bad
faith, vexatiously, wantonly, or for oppressive reasons."
Chambers, 501 u.s. at 45-46.
Section 1927 sanctions are penal in nature.

Travelers Ins.

Co. v. St. Jude Hosp. of Kenner, La., Inc., 38 F.3d 1414, 1416
(5th Cir. 1994).

"[I]n order not to dampen the legitimate zeal

of an attorney in representing his client,
construed."

Id.

In imposing

§

§

1927 is strictly

1927 sanctions, "the offending

attorney's multiplication of the proceedings [must be] both
unreasonable and vexatious; evidence of recklessness, bad faith,
or improper motive must be present."

Id. at 14, 16-17 (citation

and internal quotation marks omitted) .
negligence cannot form the basis for

§

Carelessness and even
1927 sanctions.

Connor, 20 F.3d 1376, 1384 (5th Cir. 1994).
under

§

FDIC v.

Moreover, sanctions

1927 require "detailed findings to determine whether the

requirements of the statute have been met, and which, if any,
excess costs, expenses, or attorney's fees were incurred because

2

of [the attorney's] vexatious multiplication of the proceedings.
Id. at 1385 (internal quotation marks and brackets omitted).
From a review of the record of this action, including the
filings rel ted to the motion for sanctions, the court is
inclined to think that counsel for the plaintiff does not have
the compete ce that the court would expect of a member of the bar
of this

t, and that he failed to exercise the proper degree

of care or

ood judgment in the actions he took on behalf of the

plaintiff i

this action.

However, even if the court were to

accept as t ue all the facts (as opposed to conclusions) alleged
by defendan

in its motion papers, the court would be unable to

find the ex stence of facts that would make appropriate the
imposition

f sanctions on Norred under the authority of

§

1927

or the inhe ent authority of the court.
A matt r about which defendant expressed particular concern
in its moti n papers is a message Warren Norred, the attorney of
record for

laintiff, sent to an employee of defendant after this

action had

een dismissed for failure to state a claim, worded as

follows:
Nora,

1

In casj you are not aware yet, the court dismissed
withouJ prejudice the case against your organization.
This 1 aves me with the option to refile and replead
the ca e, or just coming to an agreement. I'll suggest

3

that t ey let it go if you will honor the offer you
made b low.
Yours,
Warren
Mot. and Br , App. at 7.
Defend nt complains that not only was counsel for plaintiff
engaging in an unauthorized communication to a party known to be
representedlby counsel, but he also included a false
representation in the communication by saying that the dismissal
was without prejudice. 2

The court shares defendant's dismay that

plaintiff's counsel would transmit such a communication, but the
court does

ot consider that the communication in question was a

matter rela ed to the prosecution of this action inasmuch as this
action had

een dismissed prior to the communication.

The

circumstanc s of the communication could well be proper for
considerati n in any future evaluation of the status of William
Norred as a member of the bar of this court.

There might well be

basis for a finding that Mr. Norred has engaged in conduct
unbecoming

member of the bar of this court.

2

The actio was dismissed by the grant of the defendant's motion to dismiss because of the
failure of plaintiff o state a claim upon which relief could be granted. Such a dismissal is with prejudice.
4

For th

reasons given above,

The co rt ORDERS that defendant's motion for sanctions be,
and is here y, denied.
SIGNED May 24, 2013.

5