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)

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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

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