Strangmeier v. The City of Houston Texas et al

Filing 30

MOTION for Sanctions by Annise Parker, The City of Houston Texas, filed. Motion Docket Date 6/28/2012. (Attachments: # 1 Proposed Order)(Stevens, Elizabeth)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN STRANGMEIER
v.
CITY OF HOUSTON, ET AL

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CIVIL ACTION 4:11cv03463

CITY OF HOUSTON’S AND MAYOR ANNISE PARKER’S
MOTION FOR SANCTIONS
TO THE HONORABLE JUDGE LYNN HUGHES:
The City of Houston and Mayor Annise Parker, defendants, file this Motion for
Sanctions pursuant to 28 U.S.C. § 1927, 42 U.S.C. § 1988, and this Court’s inherent power
to sanction, and request this Court to impose sanctions against both John Strangmeier and
his attorney, Randall Kallinen, to punish them for filing this case, which was filed in bad
faith, without basis in law or in fact, and for improper purposes, and which was ultimately
dismissed by Strangmeier on May 24, 2012 (DE 28).
1.

Facts in this case demonstrate sanctions are appropriate.
Strangmeier filed this suit alleging that his receipt of a red light citation from the City

of Houston violated his rights under the United States Constitution. Initially, he alleged
violations of his Fourth, Fifth and Fourteenth Amendment rights.

On the face of

Strangmeier’s Original Complaint, he failed to state a claim on which relief could be granted.
The receipt of a civil traffic citation simply does not rise to the level of a Fourth Amendment
violation.

Further, Strangmeier entirely failed to articulate any cognizable Fifth or

Fourteenth Amendment claims, and even if he had, the claims were not ripe for adjudication

because Strangmeier affirmatively pled that he was contesting the citation through the
process afforded to him and thus no property had been taken from him. The takings claim
and related due process claim were not ripe in federal court until Strangmeier had first sought
a remedy for the alleged violations in state court. On October 14, 2011, the Court held an
initial conference and, after reviewing the allegations in Strangmeier’s Complaint and the
defendants’ Rule 12(b) motion to dismiss, indicated that there was no valid legal or factual
basis for the claims asserted. Strangmeier sought to amend the complaint, and the Court
issued an order indicating that if Strangmeier “does not accomplish anything useful by
amending” he must pay the City’s defense costs. (DE 11).
In Plaintiff’s First Amended Complaint, he added additional facts that provided no
additional support for his legally infirm claims. Most prominently, he added copious
allegations to support a new claim that the ATS contract with the City of Houston violates
the Texas Transportation Code. (DE 13, pp. 3-5; ¶¶ 11-17). He provided no basis for his
standing to assert such a claim. The City and Mayor Parker’s second motion to dismiss again
addressed each of the claims, including the First, Fourth, Fifth and Fourteenth Amendment
claims and state law contract and conversion claims and demonstrated there was no viable
legal basis for any of the claims and that they were frivolously brought. (DE 19). And later,
he attempted to supplement his pleading, to which defendants were forced to respond. (DE
24, 26). This supplement primarily attempted to present information based on another case
(City of Houston v. American Traffic Systems). The motion for leave to supplement was

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never granted. He then dismissed his suit without prejudice when this Court set the matter
for hearing. (DE 28). In addition to the requirement of drafting and filing two motions and
a response, defendants were required to attend two hearings.
2.

Sanctions should be awarded under 28 U.S.C. § 1927.
Sanctions are available under 28 U.S.C. § 1927 against a party’s attorney who

unreasonably multiplies the proceedings in a case. There are three essential elements to
sanctions under Section 1927:
First, the attorney must engage in “unreasonable and vexatious” conduct.
Second, that “unreasonable and vexatious” conduct must be conduct that
“multiplies the proceedings.” Finally, the dollar amount of the sanction must
bear a financial nexus to the excess proceedings . . . .
Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997). Proof of vexatious and
unreasonable conduct requires a showing of “bad faith, improper motive, or reckless
disregard of the duty owed to the court.” Temple v. Am. Airlines, Inc., 48 Fed. Appx. 480,
2002 WL 31049426, at *3 (5th Cir. Aug. 26, 2002) (quoting Edwards v. Gen. Motors Corp.,
153 F.3d 242, 246 (5th Cir. 1998) (affirming award of sanctions under Section 1927)).
Sanctions under Section 1927 are typically supported by evidence of “repeated filings
despite warnings from the court, or other proof of excessive litigiousness.” Vanderhoff v.
Pacheco, 344 Fed. Appx. 22, 2009 WL 2776607, at *28 (5th Cir. Sep. 2, 2009) (quoting
Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 525 (5th Cir. 2002)). Although
sanctions under Section 1927 are not imposed lightly, the conduct of Kallinen in this case as
detailed above indicates that he knew his case was baseless. See, e.g., Blanco River, L.L.C.
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v. Green, 2012 WL 33048, at *5-6 (5th Cir. Jan. 6, 2012) (slip copy) (upholding award of
sanctions for attorney’s bad faith in answering post-judgment interrogatories and other
conduct).
Defendants ask that this Court take judicial notice of the clerk’s file in this case, and
award attorney’s fees under 28 U.S.C. § 1927 to punish Kallinen for filing this suit and
requiring a response by defendants, in addition to other vexatious conduct.
3.

Attorney’s fees should be awarded under 42 U.S.C. § 1988.
An award of attorney's fees under 42 U.S.C. § 1988 is available to a prevailing

defendant in a case where the plaintiff makes an affirmative claim under section 1983. 42
U.S.C. § 1988. Because the facts demonstrate that Strangmeier dismissed his case to avoid
a disfavorable judgment on the merits, defendants are a prevailing party and entitled to
attorney’s fees. Dean v. Riser, 240 F.3d 505, 511 (5th Cir. 2001). Moreover, the facts
demonstrate that defendants are entitled to an award of attorney’s fees because Strangmeier’s
lawsuit against defendants, that made claims under 42 U.S.C. § 1983 (DE 13, ¶¶ 28-30, 43),
was frivolous, unreasonable, and groundless:
The question before this Court is whether the district court abused its
discretion in awarding attorney fees to the four prevailing defendants regarding
§ 1983 claims of unreasonable search and seizure. Under 42 U.S.C. § 1988, a
district court may award attorney fees to a prevailing party in a § 1983 suit,
which this court reviews for an abuse of discretion. See United States v.
Mississippi, 921 F.2d 604, 609 (5th Cir.1991); see also Walker v. City of
Bogalusa, 168 F.3d 237, 239 (5th Cir.1999). A prevailing defendant is entitled
to fees "only when a plaintiff's underlying claim is frivolous, unreasonable, or
groundless." Walker, 168 F.3d at 239.FN1 When considering whether a suit
is frivolous, a district court should look to factors such as whether the plaintiff
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established a prima facie case, whether the defendant offered to settle, and
whether the court held a full trial. See Mississippi, 921 F.2d at 609.
Myers v. City of West Monroe, 211 F.3d 289, 282 (5th Cir. 2000). This standard was applied
in Parr v. Nicholls State University, 2012 WL 1032905 (E.D.La., March 27, 2012):
. . . Defendants seek an award of attorney's fees, as the “prevailing party,”
pursuant to 42 U.S.C. § 1988. Such an award, however, is not automatically
provided to every prevailing defendant. Rather, a successful defendant must
show that the plaintiff's claim was “frivolous, unreasonable, or groundless.”
Myers v. City of West Monroe, 211 F.3d 289, 292 (5th Cir.2000) (quoting
Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th Cir.1999)); Fontenot v.
Toups, 2011 WL 677345, *5 (E.D.La. Feb. 16, 2011). As set forth in Offord
v. Parker, No. 11–20086, 2012 WL 13929, *1 (5th Cir.2012)(summary
calendar), district courts are to consider certain factors in making this decision:
“(1) whether the plaintiff established a prima facie case; (2) whether the
defendant offered to settle, and (3) whether the court held a full trial.”
Further, district courts:
must “resist the understandable temptation to engage in post hoc reasoning by
concluding that, because a plaintiff did not ultimately prevail, his action must
have been unreasonable or without foundation.” Christiansburg Garment Co.
v. E.E.O. C., 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Instead,
a court must ask whether “ ‘the case is so lacking in arguable merit as to be
groundless or without foundation rather than whether the claim was ultimately
successful.’” Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 997 (5th
Cir.2008).
Id. Strangmeier’s causes of action were lacking in any arguable merit, and were without
foundation. The actions taken by both Kallinen and Strangmeier detailed above illustrate that
this case was frivolous, unreasonable, or groundless. Therefore, defendants should be
awarded their reasonable attorney’s fees.

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4.

This Court should sanction Kallinen and Strangmeier under its inherent
authority.
This Court has the inherent power to sanction both litigants and their attorneys. Toon

v. Wackenhut Corrections Corp., 250 F.3d 950, 952 (5th Cir. 2001). The Fifth Circuit has
explained that the standard is, essentially, bad faith: “To support an award of sanctions under
its inherent power, ‘[a] court must make a specific finding that the sanctioned party acted in
bad faith.’” Matta v. May, 118 F.3d 410, 416 (5th Cir.1997) (citing Dawson v. United States,
68 F.3d 886, 895 (5th Cir.1995)). A court must make a specific finding that the party acted
in bad faith in order to impose such sanctions. Dawson v. United States, 68 F.3d at 895.
Strangmeier and Kallinen acted in bad faith by filing a frivolous lawsuit. The claims
upon which the suit were based are spurious as explained in detail above. The suit was
ultimately dismissed by Strangmeier, because he knew the suit was brought in bad faith, but
wanted to avoid having it dismissed with prejudice by this Court.
5.

Defendants will provide evidence of reasonable attorney’s fees upon request.
If this Court is inclined to grant defendant’s Motion for Sanctions, and if the Court

determines it to be necessary, defendants request the opportunity to submit evidence to the
Court to establish a reasonable and necessary attorney’s fee for responding to this suit.
Conclusion
FOR THESE REASONS, defendants ask this Court to award defendants attorney’s
fees under 28 U.S.C. § 1927, 42 U.S.C. § 1988, and its inherent power, against John
Strangmeier or Randall Kallinen or both due to the conduct detailed in this motion.
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Respectfully submitted,
DAVID M. FELDMAN
City Attorney
LYNETTE K. FONS
First Assistant City Attorney
DONALD J. FLEMING
Senior Assistant City Attorney
Chief, Labor Section
/s / Elizabeth L. Stevens
Elizabeth L. Stevens
Attorney In Charge
Senior Assistant City Attorney
Federal ID 20100; SBN 00792767
[e-mail]
Andrea Chan
Senior Assistant City Attorney
Federal ID 14940; SBN 04086600
[e-mail]
City of Houston Legal Department
P.O. Box 368
Houston, Texas 77001-0368
Phone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANTS
CITY OF HOUSTON AND MAYOR ANNISE
PARKER

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion was served in
accordance with the Federal Rules of Civil Procedure on this the 7th day of June, 2012.

Randall L. Kallinen
Law Office of Randall L. Kallinen PLLC
511 Broadway Street
Houston, Texas 77012

Via efiling

/s/ Elizabeth Stevens
Elizabeth Stevens

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