Banik v. Angel et al

Filing 82

ORDER re 42 Motion for Sanctions.(Signed by Judge Micaela Alvarez) Parties notified.(BelindaSaenz, 7)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
BIMAL K. BANIK,
Plaintiff,
VS.
ANGEL TAMEZ, et al,
Defendants.

August 04, 2017
David J. Bradley, Clerk

§
§
§
§ CIVIL ACTION NO. 7:16-CV-00462
§
§
§
§
ORDER

The Court now considers Amanda Ybarra’s (“Defendant”) motion for sanctions,1 as well
as Bimal Banik’s (“Plaintiff”) response.2 After duly considering the record and authorities, the
Court GRANTS the motion in the amount of $19,957.63, assessed jointly and severally against
William Mount (“Mount”), Katie Klein (“Klein”) (collectively “Plaintiff’s Counsel”), and the
law firm Dale & Klein, LLP (the “Firm”). This order only further supports the previous order3 as
against Plaintiff’s Counsel, but is separate and independent with regard to the Firm.
I.

BACKGROUND

Plaintiff was a tenured professor at the University of Texas-Pan American (“UTPA”) and
was fired in part due to a complaint lodged against him by one of his students—Defendant.
Plaintiff sued various individuals in state court who were involved in his termination.4 Among
these individuals was Defendant, whom Plaintiff claims defamed him by making false statements
that ultimately led to his termination.5 Plaintiff amended his petition ten times in state court, and

1

Dkt. No. 42.
Dkt. No. 49.
3
Dkt. No. 78.
4
See Dkt. No. 1-7 p. 73.
5
Id. pp. 83–85.
2

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named Defendant in the third amended petition6 and subsequent pleadings. Defendant filed a
motion to dismiss in state court which was never adjudicated by that court.7 Eventually, the case
was removed to federal court.8
Plaintiff moved for remand,9 but the Court denied the motion.10 Defendant thereafter filed
a motion to set a hearing on the dismissal motion she filed in state court,11 and Plaintiff opposed
the motion and filed a response.12 This Court granted Defendant’s dismissal motion on the
briefing, thus mooting the need for a hearing on the issue.13 Three weeks after the Court’s
opinion dismissing Defendant, Plaintiff filed a motion to recuse Judge Alvarez from the case,14
which the Court denied.15 Thereafter, Plaintiff moved for reconsideration of the Court’s order
denying remand.16 The Court denied this motion as well.17 Then, Plaintiff moved for
reconsideration of the Court’s order dismissing Defendant,18 which the Court also denied.19
Plaintiff thereafter sought to amend his complaint to revive his claim against Defendant. 20 The
Court denied leave in this regard.21 Defendant moved for sanctions22 and Plaintiff responded,23
rendering the motion ripe for review. The Court now turns to its analysis.

6

Id. p. 73.
Dkt. No. 1-11 p. 294.
8
Dkt. No. 1.
9
Dkt. No. 9.
10
Dkt. No. 23.
11
Dkt. No. 7.
12
Dkt. No. 8.
13
Dkt. No. 24.
14
Dkt. No. 25.
15
Dkt. No. 31.
16
Dkt. No. 32.
17
Dkt. No. 44.
18
Dkt. No. 37.
19
Dkt. No. 56.
20
See Dkt. No. 62-1 ¶¶ 232–240.
21
Dkt. No. 77.
22
Dkt. No. 42.
23
Dkt. No. 49.
7

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II.

DISCUSSION

A.

Initial Matters

Defendant requests that Plaintiff’s Counsel and the Firm be held jointly and severally
liable for whatever attorney’s fees, costs, and expenses may be imposed on Plaintiff under the
Texas Citizens Participation Act (“TCPA”).24 The Court’s recent order held Plaintiff and his
lawyers jointly liable for TCPA-based fees, costs, and expenses.25 Thus, Defendant’s request
with regard to Plaintiff’s Counsel (but not the Firm) has effectively been granted. The Court
proceeds to analyze Defendant’s sanctions request as a partial, alternative basis for the division
of TCPA-based fees, costs, and expenses assessed in its prior order with regard to Plaintiff’s
Counsel, as well as an independent request for sanctions with regard to the Firm.26
Although Defendant ostensibly lays out four separate legal bases for sanctions,27 the
Court views the thrust of Defendant’s motion to be that Plaintiff’s Counsel allegedly engaged in
unreasonable and vexatious litigation tactics.28 Thus, the Court construes the instant motion as a
request for relief under 28 U.S.C. § 1927.
B.

Legal Standard—28 U.S.C. § 1927

Section 1927 states:
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.29

24

Dkt. No. 42 p. 7.
Dkt. No. 78 p. 20.
26
See id.
27
See Dkt. No. 42 pp. 2–7 (referencing 28 U.S.C. § 1927, a federal court’s inherent authority, Texas Rule of Civil
Procedure 13, and Texas Civil Practice and Remedies Code § 10).
28
Id. p. 5.
29
28 U.S.C.A. § 1927 (West).
25

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Section 1927 is penal in nature, and thus strictly construed to prevent the dampening of
legitimate zeal by the attorney.30 For an attorney’s conduct to be considered unreasonable and
vexatious, “there [must] be evidence of bad faith, improper motive, or reckless disregard of the
duty owed to the court.”31 If a court makes such a predicate finding, then it must isolate and
announce “the sanctionable conduct giving rise to its order,”32 and then identify which excess
costs, expenses, and attorney’s fees were “reasonably incurred because of such conduct.”33
Sanctions are limited to this figure,34 but may be imposed jointly and severally upon the lawyer
and his/her law firm.35
The purpose of § 1927 is to “curb litigation abuses by counsel, irrespective of the merits
of the client’s claim”36 because such abuses waste resources.37 Thus, the focus of § 1927 is the
mode, not the merits, of litigation.38 The Fifth Circuit, approvingly quoting the Fourth Circuit,
has aptly pointed out that:
[A]n attorney who files a meritorious claim and wins a substantial verdict may
still be assessed sanctions under § 1927 if, during the case, he multiplies the
proceedings . . . unreasonably and vexatiously. Likewise, an attorney who files a
meritless claim may not be sanctioned under § 1927 if he does not engage in such
conduct. Section 1927 focuses on the conduct of the litigation and not on its
merits.39

30

Religious Tech. Ctr. v. Liebreich, 98 Fed. Appx. 979, 984 (5th Cir. 2004).
Greer v. Richardson Indep. Sch. Dist., 471 Fed. Appx. 336, 339 (5th Cir. 2012) (quoting Edwards v. Gen. Motors
Corp., 153 F.3d 242, 246 (5th Cir. 1998)).
32
Greer, 471 Fed. Appx. at 339.
33
28 U.S.C.A. § 1927 (West) (emphasis added).
34
Religious Tech. Ctr., 98 Fed. Appx. at 984 (“[C]ounsel may be ordered to pay personally only the ‘excess’ costs,
expenses, and attorney's fees generated by their conduct.”).
35
See Religious Tech. Ctr., 98 Fed. Appx. at 988 n. 30 (imposing § 1927 sanction jointly and severally against the
lawyers and their law firm).
36
Id.at 983 (emphasis added).
37
Id. (“Underlying the sanctions provided in 28 U.S.C. § 1927 is the recognition that frivolous appeals and
arguments waste scarce judicial resources and increase legal fees charged to parties.”) (quoting Baulch v. Johns, 70
F.3d 813, 817 (5th Cir. 1995)).
38
Id.
39
Id. (approvingly quoting DeBauche v. Trani, 191 F.3d 499, 511 (4th Cir. 1999)).
31

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A court may consider relevant information which speaks to the propriety of § 1927
sanctions, and it is not cordoned off from considering an attorney’s actions in other proceedings
before a different judge.40 Nevertheless, a court cannot sanction an attorney specifically for
actions taken in a separate proceeding.41 Courts are otherwise free to make findings and issue
sanctions in a reasonable manner, given the context and needs of the case.42
C.

Scorched-earth litigation strategy

The Court can only properly evaluate Plaintiff’s Counsel’s motivations in taking specific
actions or filing specific documents after examining their general litigation patterns. Thus, a
recitation of some procedural history is helpful.
(1) Plaintiff’s Counsel failed to diligently serve and thus prosecute Defendant, with a
lapse of over three years from Defendant’s original allegedly defamatory complaint to service of
Defendant;43 a lapse of approximately two and one-half years from Defendant’s allegedly
defamatory complaint to naming Defendant in the third amended petition;44 a lapse of over a
year and one-half between the last alleged publication and service of Defendant;45 and over eight
months between when Defendant was named in the third amended petition and when she was
40

See Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 191 (5th Cir. 2008) (“The district court could consider
Baum's conduct in the state court proceedings in determining whether his conduct before the bankruptcy court was
undertaken in bad faith or for an improper motive.”); see also Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La.,
Inc., 38 F.3d 1414, 1417 (5th Cir. 1994) (indicating that distinct proceedings may be considered, but fees and costs
can still only be assessed for conduct in the proceeding before the sanctioning court.).
41
In Matter of Case, 937 F.2d 1014 (5th Cir. 1991).
42
Ratliff v. Stewart, 508 F.3d 225, 234 (5th Cir. 2007) (“[l]ike a sliding scale, the degree and extent to which a
specific explanation must be contained in the record will vary accordingly with the particular circumstances of the
case, including the severity of the violation, the significance of the sanctions, and the effect of the award.”) (quoting
Thomas v. Capital Security Services, 836 F.2d 866, 883 (5th Cir. 1988) (en banc).
43
See Dkt. No. 1-6 pp. 1 & 6. (Plaintiff’s original complaint was filed on November 15, 2013); see also Dkt. No. 111 ¶ 12 (Defendant’s affidavit, which states: “I was never served with any citation or petition in this lawsuit until
April 28, 2016 . . . .”)(emphasis added).
44
See Dkt. No. 1-12 p. 588. (Defendant filed her formal, written complaint against Plaintiff on February 1, 2013);
see also Dkt. No. 1-7 pp. 73 & 89 (Plaintiff’s third amended petition naming Defendant was filed on August 12,
2015).
45
See Dkt. No. 1-12 p. 593 (establishing that defendant gave testimony to the Tribunal on August 11, 2014); see also
Dkt. No. 1-11 ¶ 12 (Defendant’s affidavit, which states: “I was never served with any citation or petition in this
lawsuit until April 28, 2016 . . . .”)(emphasis added).

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served.46 The limitations clock only stops running when a claimant diligently prosecutes the
defendant, which is often when a defendant is served, not when suit is filed. Consequently, even
generously assuming Plaintiff’s defamation claim started accruing soon after September 15,
2014, the limitations period had expired some seven months before Defendant was ever served.
This, combined with the sheer number of other Defendants, suggests Defendant was named for
tactical reasons.
(2) Plaintiff’s Counsel amended the live pleading ten times while in state court, in the
face of multiple dispositive motions by Defendants along the way. This was an ostensible
attempt to kill four birds with one stone: first, to hail every conceivably Defendant into Court
over time; second, to heap as many (even frivolous) claims upon them as possible; third, to do so
in a manner that would nullify pending dispositive motions, thereby wasting Defendants’
resources; and fourth, to prolong litigation, again wasting Defendant’s resources.
(3) Simultaneously, Plaintiff filed a separate action against UTPA and UTRGV asserting
a wrongful termination whistleblower claim.
(4) Upon removal, and only after the University Defendants submitted a forty-eight page
dismissal motion,47 Plaintiff’s Counsel embedded a motion for leave to amend within the
response, without any indication of how the pleading would be improved if leave was granted.48
This request surely aimed to nullify the University Defendants’ dismissal motion, again to waste
more of their resources. Moreover, Plaintiff’s Counsel was effectively asking the Court to serve
as de facto Of counsel, stating: “If the Court is inclined to dismiss any portion of [Plaintiff’s]
complaint for failure to state a claim, [Plaintiff] requests leave of court to amend his complaint to
46

See Dkt. No. 1-7 pp. 73 & 89 (Plaintiff’s third amended petition naming Defendant was filed on August 12, 2015);
see also Dkt. No. 1-11 ¶ 12 (Defendant’s affidavit, which states: “I was never served with any citation or petition in
this lawsuit until April 28, 2016 . . . .”).
47
Dkt. No. 53.
48
Dkt. No. 60 p. 40.

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cure the alleged pleading deficiencies . . . .”49 Or as the Court interprets the request, “please
waste your time doing my job for me.”
(5) Thereafter, Plaintiff’s Counsel moved again for leave to amend to submit an eleventh
amended complaint,50 this time attaching an eighty-four page proposed complaint, approximately
double the size of the previous pleading,51 and fourteen times the length of the original petition.52
Besides failing to constitute a short and plain statement of the claims pursuant to Federal Rule of
Civil Procedure 8(a), this pleading would have reintroduced the exact same defamation claim
against Defendant that this Court dismissed with prejudice approximately six months prior53 and
of which Plaintiff had already sought reconsideration. University Defendants filed a ten-page
response,54 and naturally, the Defendant joined the response.55
(6) Plaintiff’s Counsel violated a written agreement56 by refusing to consent to a TCPA
hearing in an ostensible attempt to delay resolution of the TCPA dismissal motion, and to selfgenerate procedural hurdles to Defendant’s TCPA defense. Ultimately, Plaintiff’s Counsel’s
refusal resulted in twenty-five pages of needless briefing,57 including the vast majority of
Defendant’s seven-page motion to set a hearing,58 as well as Plaintiff’s nine-page response59 and
Defendant’s ten-page reply.60

49

Id. (emphasis added).
Dkt. No. 62.
51
See Dkt. No. 1-12 pp. 583–628 (tenth amended petition was forty-five pages long).
52
See Dkt. No. 1-6 pp. 1–6 (original petition was six pages long).
53
See Dkt. No. 62-1 ¶¶ 232–240.
54
Dkt. No. 66.
55
Dkt. No. 67.
56
See Dkt. No. 7-2.
57
In fact, twenty-six pages of briefing ensued, but one of those pages would have been necessary even if Plaintiff’s
Counsel agreed to a TCPA hearing to bring that request to the Court’s attention.
58
Dkt. No. 7.
59
Dkt. No. 8.
60
Dkt. No. 10.
50

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(7) Plaintiff’s Counsel filed a fifteen-page motion to remand,61 and the University
Defendants responded with thirty-seven pages of briefing.62 Defendant and Defendant Tamez
joined in the response.63 Plaintiff’s Counsel then submitted a nine-page response,64 and the Court
issued a nineteen-page opinion denying remand.65
(8) Discontent with the Court’s ruling, Plaintiff’s Counsel submitted a thirteen-page
motion to reconsider the Court’s order denying remand.66 Plaintiff’s Counsel wasted three pages
criticizing the Court on issues wholly unrelated to the remand order, in addition to falsely
accusing the Court of not considering Plaintiff’s previous briefing.67 Otherwise, Plaintiff’s
Counsel rehashed arguments that had already been made. The University Defendants responded
to the reconsideration motion with a fifteen-page brief.68 The Court issued a six-page order
denying reconsideration of its remand order.69
(9) Discontent with the Court’s dismissal of Defendant from this case, Plaintiff’s Counsel
submitted a twenty-four page motion to reconsider the Court’s dismissal order,70 as well as a
subsequent four-page supplement.71 Defendant responded with a twenty-nine page brief,72 and
the Court ultimately denied the motion with a twelve-page opinion.73
(10) Shortly after the Court denied remand and granted Defendant’s TCPA dismissal
motion, Plaintiff’s Counsel submitted an eleven-page motion to recuse this Court from the

61

Dkt. No. 9.
Dkt. No. 11.
63
Dkt. Nos. 14 & 18.
64
Dkt. No. 22.
65
Dkt. No. 23.
66
Dkt. No. 32.
67
Id. pp. 2–4.
68
Dkt. No. 34.
69
Dkt. No. 44.
70
Dkt. No. 36.
71
Dkt. No. 52.
72
Dkt. No. 41.
73
Dkt. No. 56.
62

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case,74 and later submitted an amended version.75 The University Defendants filed a ten-page
response,76 and Defendant joined the response.77 The Court issued an eight-page opinion denying
the recusal motion.78
(11) Due to the large number of Defendants named over time in this lawsuit, as well as
the even larger number of claims levied against those Defendants, the University Defendants’
dismissal motion was (of necessity) forty-eight pages long.79 Plaintiff’s response was forty-two
pages long,80 and this Court’s order partially granting dismissal was fifty-four pages long.81 Of
the eighty-plus claims (not even considering declaratory or injunctive requests), only nineteen
remained after the dismissal order.82 Indeed, as the Court’s analysis demonstrates, Plaintiff’s live
pleading (even after ten amendments) was littered with throw-away claims, with no apparent
consideration of the attendant elements of certain causes of action, or otherwise, no interest in
providing any facts to ground the claims. This speaks to Plaintiff’s Counsel’s motivations in
even filing such claims.
(12) Plaintiff’s Counsel’s activity in a related case is also relevant. In particular,
Plaintiff’s Counsel moved for recusal in Sanders on the basis that this Court imposed a delayed
scheduling order (as it did in this case as well).83 Instead of consolidating discovery in like-cases
and waiting to see which issues still existed after resolution of the pending pleadings-based
dispositive motions, Plaintiff’s Counsel wished to “conduct[] discovery and marshal[] evidence

74

Dkt. No. 25.
Dkt. No. 27.
76
Dkt. No. 26.
77
Dkt. No. 30.
78
Dkt. No. 31.
79
Dkt. No. 53.
80
Dkt. No. 60.
81
Dkt. No. 74.
82
Id. pp. 53–54.
83
Sanders v. Rodrigues et al., 7:16-cv-00650, Dkt. No. 12 p. 2.
75

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to make [their] case.”84 This argument is not only silly, as evidence is categorically irrelevant to
pleadings-based dispositive motions, but it further exposes Plaintiff’s Counsel’s true intentions—
to bootstrap meritless claims to justify evidentiary fishing expeditions before the Court has an
opportunity to determine whether those claims have any merit on the pleadings.
Taken together, Plaintiff’s Counsel’s past conduct demonstrates a habit of generating
waste, drawing out litigation, and filing secondary motions containing condescending language
as a form of emotional backlash to this Court’s adverse rulings. This general pattern and strategy
provides insight into Plaintiff’s Counsel’s motivations when taking specific actions before this
Court.85 The Court now turns to those specific, sanctionable actions.
i.

Motion to reconsider Defendant’s dismissal

The Court finds that given the procedural history of this case, this secondary motion was
filed with bad faith and improper purpose, namely, to extend litigation and cause waste. Thus,
Plaintiff’s Counsel and the Firm are liable under § 1927 for bringing about $5,408.0086 worth of
wasted briefing.
ii.

Depositions

Almost immediately after Defendant was dismissed, when the only remaining issue was
attorney’s fees, Plaintiff’s Counsel insisted upon Defendant’s and her attorney’s depositions and
also sought document production pertaining to the issue of attorney’s fees. Plaintiff refused to
84

Id.
See Travelers Ins. Co., 38 F.3d at 1417–18 (5th Cir. 1994) (indicating that an attorney’s actions in distinct
proceedings may be considered to deduce bade faith or improper motive in the present proceeding).
86
See Dkt. No. 43-1 pp. 8, 9, 11, & 12 (concerning Defendant’s briefing in response to Plaintiff’s motion for the
Court to reconsider its order dismissing Defendant). From page eight, the Court includes entry ten, but reduces the
hours from 5.1 to 4.1 due to block billing. From page nine, the Court includes entry one. From page eleven, the
Court includes entries three through eight. Entry three is accepted in full. Entry four is modified downward from 3.9
hours to three hours due to block billing. Entry five is accepted in full. Entry six is accepted in full. Entry seven is
modified downward from 5.7 hours to five hours due to block billing. Entry eight is accepted in full. From page
twelve, the Court includes all computer research expenses from January 19, 2017, because the only research
completed that day concerned Defendant’s response to Plaintiff’s motion for reconsideration of the dismissal order
(see page eleven).
85

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agree to any alternative manner of securing such evidence. Rather than limiting the depositions
to attorney’s fees issues, Plaintiff covered substantive issues, for use in his motion for
reconsideration.87 Plaintiff later claimed “[i]t was unreasonable for [Defendant’s attorney] to
charge to prepare for and attend the deposition given the trial court’s ruling on [Defendant’s]
motion to dismiss.”88 Plaintiff also included a request for production to Defendant and her
attorney for Defendant’s college transcript. While Plaintiff was entitled to explore the issue of
attorney’s fees, Counsel’s insistence on depositions, refusal to consider alternative modes of
obtaining that evidence, exploration of issues beyond attorney’s fees, and request for production
of irrelevant matters demonstrates Counsel’s abusive tactics intended to harass. This conduct
resulted in an additional $8,935.6389 in wasted fees and expenses.
iii.

Refusal to agree to a TCPA hearing in federal court

The state court set a hearing on Defendant’s TCPA motion to dismiss for July 13, 2016.90
The parties were still considering settlement at that time, so they agreed in writing to cancel the
July 13, 2016 hearing, and to reschedule a TCPA hearing if settlement did not transpire:
This letter will reflect our agreement to pull down the hearing on [Defendant’s]
motion to dismiss pursuant to the TCPA . . . while we attempt to finalize a
mutually-agreeable resolution of [Plaintiff’s] claims against [Defendant] . . . . If
for some reason the parties cannot come to an agreement in the near future, we
will reschedule our hearing on the motion to dismiss.91
After it became clear that settlement was not possible, Defendant initiated another TCPA hearing
to be held in state court on August 11, 2016.92 The University Defendants removed the case on

87

Dkt. No. 36; 36-4 pp. 1–9.
Dkt. No. 35 p. 8.
89
See Dkt. No. 29-5 p. 85 (entries five through nine); Id. p. 86 (entries one—reduced by 75% and rounded down to
$22—four, seven, eight, nine, ten, twelve, and thirteen); Id. pp. 86–87 (expenses totaling $477.63).
90
Dkt. No. 1-4 p. 18.
91
Dkt. No. 7-2 (emphasis added).
92
Dkt. No. 7 ¶ 8.
88

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August 8, 2016,93 and Defendant joined in removal,94 effectively canceling the hearing in state
court on Defendant’s TCPA dismissal motion.
After removal, Plaintiff’s Counsel refused to agree to any TCPA hearing in federal court,
despite the written agreement that “we will reschedule our hearing on the motion to dismiss.”95
Plaintiff’s Counsel’s only explanation is that “[t]here was no agreement to hold a hearing on the
motion to dismiss in [federal] Court.”96 However, this explanation does not comport with the
written agreement itself, which does not limit the scope of the agreement to state court
proceedings.
The proceedings in this case were multiplied by Plaintiff’s Counsel’s refusal because
Defendant was then forced to incur unnecessary legal fees to file a motion to set a hearing on the
TCPA motion to dismiss,97 as well as a reply to Plaintiff’s response.98 Of course, some sort of
filing would have been required regardless to bring an agreed request for a hearing to the Court’s
attention. Nevertheless, if the hearing were agreed to, the filing could have taken up a few
sentences and the lesser part of one page, as Defendant would not be required to establish that
the TCPA requires a hearing, or to counter Plaintiff’s opposition with a reply. 99 Because
Plaintiff’s Counsel refused to agree to a hearing, Defendant incurred otherwise unnecessary
attorney’s fees in the amount of $4,762.50.100

93

Dkt. No. 1.
Dkt. No. 14.
95
Dkt. No. 7-2.
96
Dkt. No. 49.
97
See Dkt. No. 7.
98
Dkt. No. 10.
99
See id. ¶¶ 9–10.
100
See Dkt. No. 29-5 pp. 66 & 73. From page sixty-six, the Court includes entries six, seven (cut by one-third—for a
total of $1,060—because of block billing), eight, and ten. From page seventy-three, the Court includes entries one,
two, three, five (cut by one-half—for a total of $210.00), six, eight, nine, and ten. The sum of these entries is
$1,923.00.
94

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This waste was created with improper motive and bad faith. With the exception of a
groundless argument for why the written agreement did not apply in federal court, Plaintiff’s
Counsel provides no explanation in the present briefing for why they refused to agree to a
hearing. Given the circumstances, a reasonable explanation is that in contravention of the
TCPA’s policy,101 Plaintiff’s Counsel wished to delay the Court’s ruling on the dismissal motion,
thus keeping Defendant in the case as long as possible.
It might be argued that Plaintiff’s Counsel was aiming to conserve resources by waiting
until their remand motion,102 which had not yet been filed, was ruled on before resolving the
TCPA dismissal motion. This theory, however, is belied by a particular argument contained
within Plaintiff’s response to the motion for a hearing. Specifically, Plaintiff’s Counsel resisted a
hearing on the TCPA motion, arguing that any setting would be premature, 103 but simultaneously
arguing that the TCPA dismissal motion should be denied for failure to timely hold a TCPA
hearing.104 Thus, it appears Plaintiff’s Counsel’s refusal to agree to a TCPA hearing was, at least
in part, an attempt to delay resolution of the dismissal motion, depriving Defendant of her TCPA
defense for self-generated and purely procedural reasons—an improper motive.105 The Court also
notes that Plaintiff could have not opposed a hearing yet still opposed the propriety of a TCPA
dismissal in federal court. Consequently, Plaintiff’s Counsel is liable for an additional $4,762.50
in attorney’s fees under § 1927.

101

See Tex. Civ. Prac. & Rem. Code Ann. § 27.004–27.005 (West) (providing expedited procedures for TCPAshielded Defendants to be dismissed from lawsuits).
102
Dkt. No. 9.
103
See Dkt. No. 8. p. 8.
104
Id. p. 7.
105
This goes to Plaintiff’s Counsel’s intent, not the law. The Court is suggesting that Plaintiff’s Counsel hoped to
procedurally bar Defendants TCPA defense by intentionally delaying its resolution. This is not to say that the
TCPA’s procedural provisions actually apply in federal court. As noted in previous opinions, the Fifth Circuit has
not yet resolved this issue.

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iv.

Motion for leave to amend—11th amended complaint

Plaintiff moved for leave to amend his complaint an eleventh time106 in response to the
University Defendant’s forty-eight page dismissal motion.107 Attached to the motion for leave to
amend was a proposed eleventh amended complaint which would have reintroduced a
defamation claim against Defendant108—the same defamation claim this Court dismissed with
prejudice approximately six months prior.109 There are only two explanations. Plaintiff’s
Counsel was either acting carelessly or intentionally. If they were acting carelessly, then they
were disregarding a duty they owe to the Court—not to needlessly waste its valuable time. The
Court also notes that Plaintiff’s Counsel has represented to the Court that all pleadings are
specifically reviewed by a partner of the Firm before filing.110 If Plaintiff’s Counsel were acting
intentionally, then they were acting in bad faith to force Defendant to relitigate a dead claim. In
either case, Plaintiff’s Counsel and the Firm are subject to additional § 1927 sanctions in the
amount of $544.00.111
v.

Original and amended motions to recuse

Plaintiff’s Counsel filed their recusal motion112 and amended recusal motion113 on the
heels of this Court’s orders denying remand114 and dismissing Defendant from the case.115 These
motions multiplied litigation because they required Defendant to join the University Defendants’

106

Dkt. No. 62.
Dkt. No. 53.
108
See Dkt. No. 62-1 pp. 40–42.
109
Dkt. No. 24.
110
See Sanders v. Rodriguez, 7:16-cv-00650, Dkt. No. 27 p. 36, line 14–17.
111
See Dkt. No. 71-1 p. 19. The Court includes entries three, four, and five, but cuts entry three in half due to blockbilling. The sum is $544.00.
112
Dkt. No. 25.
113
Dkt. No. 27.
114
Dkt. No. 23.
115
Dkt. No. 24.
107

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response,116 resulting in additional, reasonable attorney’s fees of $307.50.117 This waste was
generated in bad faith and with improper motive.
A substantive basis for Plaintiff’s recusal motion was that Judge Alvarez received her
undergraduate and graduate degrees from the University of Texas at Austin and that she founded
a scholarship at the University of Texas School of Law.118 However, these facts were public
knowledge from the moment this case landed in this Court. If Judge Alvarez’s alma mater
animated the recusal motions, Plaintiff’s Counsel could and should have filed them the moment
this case came before Judge Alvarez. They did not.
Instead, the recusal motions were conspicuously filed shortly after the Court issued two
adverse rulings. Moreover, Plaintiff’s Counsel never sought recusal of Judge Rose Reyna in state
court, even though she too attended the University of Texas School of Law and was also a
founder of the exact same scholarship.119 In fact, the photos submitted by Plaintiff as part of the
motion to recuse feature Judge Reyna standing next to Judge Alvarez, 120 as well as a plaque
explicitly stating that the scholarship was “established by Judge[] . . . Rose Guerra Reyna.”121
The fact that Plaintiff instructed his attorneys to file the recusal motions 122 is of no
consequence. Plaintiff’s Counsel cannot simply shift the blame to their client in a naked hemade-me-do-it fashion. The Texas Lawyer’s Creed imposes a duty on attorneys to advise their

116

Dkt. No. 30.
See Dkt. No. 29-5 p. 86. The Court includes entries nine and eleven. Entry nine is billed in block fashion, so it is
not possible to determine how much of the $2,160 billed was for a conference concerning the motion to recuse. The
Court attributes thirty minutes of the 7.2 hours claims for purposes of the conference, thus resulting in $150 in
attorney’s fees for entry nine. Combined with the $157.50 fee in entry eleven, the sum total is $307.50.
118
Dkt. No. 25 pp. 8–9.
119
https://www.martindale.com/edinburg/texas/rose-guerra-reyna-1695250-a/.
120
Dkt. No. 25-3 p. 3.
121
Id. p. 2.
122
Dkt. No. 49-2 p. 2.
117

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clients not to pursue tactics meant to harass, offend, delay, or waste. 123 Thus, Plaintiff’s Counsel
had a duty not to indulge Plaintiff’s requested motions, insofar as they harassed, offended,
delayed, or wasted time and resources. Plaintiff’s Counsel’s sharp, even condescending,
language contained within the recusal motions strongly suggest they were emotional backlashes
to two adverse rulings, not good faith requests. Thus, Plaintiff’s Counsel acted with improper
motive and bad faith, and also recklessly disregarded their duty to the Court. Plaintiff’s Counsel
and the Firm are liable for an additional $307.50 in attorney’s fees under § 1927.
III.

HOLDING

For the foregoing reasons, Defendant’s motion for sanctions is GRANTED in the
amount of $19,957.63, assessed jointly and severally against Plaintiff’s Counsel and the Firm.
This order only further supports the previous order124 as against Plaintiff’s Counsel, but is
separate and independent with regard to the Firm.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 4th day of August, 2017.
___________________________________
Micaela Alvarez
United States District Judge

123

See Texas Lawyer’s Creed,
https://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ContentDisplay.cfm&C
ontentID=22241 (“I will endeavor to achieve my client’s lawful objectives in legal transactions and in litigation as
quickly and economically as possible . . . . I will treat adverse parties and witnesses with fairness and due
consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct . . . . I will
advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial
resources of the opposing party . . . . I will advise my client that we will not pursue tactics which are intended
primarily for delay.”).
124
Dkt. No. 78.

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