Phillips v. Austin Diagnostic Clinic Surgery Center
Filing
21
ORDER GRANTING IN PART AND DENYING IN PART Defendant's 17 Motion for Attorney Fees. ORDER that Plaintiff Amanda Phillips is BARRED from filing additional lawsuits in this district without first obtaining leave. Signed by Judge Sam Sparks. (lt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
AMANDA KAYE PHILLIPS,
Plaintiff,
CAUSE NO.:
AU-17-CV-940-SS
-vs-
AUSTIN DIAGNOSTIC SURGERY
CENTER,
Defendant,
[Sm,] i1
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically Defendant Austin Diagnostic (Austin Diagnostic) Clinic Association (Austin
Diagnostic)'s1
Motion for Attorneys' Fees and Supporting Brief [#17, #18] and Plaintiff Amanda
Kaye Phillips's Response [#20] in opposition. Having reviewed the documents, the governing
law, the arguments
of counsel, and the file
as a whole, the Court now enters the following
opinion and orders.
Background
On February 2, 2018, this Court entered an amended order adopting Magistrate Judge
Andrew W. Austin's Report and Recommendation advising the Court dismiss Plaintiff's pro se
complaint as frivolous under 28 U.S.0
§
1915(e)(2). Am. Order of Feb. 2, 2018 [#14]. This
Court agreed Plaintiff's complaint was frivolous, concluding Plaintiff failed to allege she was
discriminated on a basis that would fit under either the Equal Pay Act or Title VII and failed to
claim she exhausted her administrative remedies as required under Title VII. Id. After reviewing
Austin Diagnostic Clinic Association was incorrectly names as Austin Diagnostic Clinic Surgery Center
in this lawsuit.
1
1
I
Plaintiff objections to the Magistrate Judge's Report and Recommendation, the Court overruled
Plaintiff's objections and dismissed Plaintiffs complaint with prejudice. Id. On February 20,
2018, Plaintiff filed a notice of appeal.
Austin Diagnostic moves for attorneys' fees under 28 U.S.C.
§
1927. Mot. Att'y Fees
[#17]. Plaintiff does not contest Austin Diagnostic's right to a fee award. Instead, Plaintiff argues
she cannot afford to pay Austin Diagnostic's request for attorneys' fees and she should be
compensated for her time in bringing this lawsuit. Austin Diagnostic's pending motion for
attorneys' fees is now ripe for review.
Analysis
I.
Legal Standards
A.
Attorneys' Fees Under 28 U.S.C. § 1927
28 U.S.C.
§
1927 provides that, "[a]ny 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 satisf' personally the
excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." To find
a party multiplied proceedings "unreasonably" and "vexatiously," there must "be evidence
of
bad faith, improper motive, or reckless disregard of the duty owed to the court." Procter &
Gamble Co.
v.
Amway Corp., 280 F.3d 519, 525 (5th Cir. 2002). But
§
1927 only authorizes
"shifting fees that are associated with the persistent prosecution of a meritless claim." Id.
(quotation omitted).
B.
Sanctions under Federal Rule of Civil Procedure 11
Rule
11
permits the Court to impose an appropriate sanction if a pleading, motion, or
other paper is presented for any improper purpose, such as to harass or needlessly increase the
2
cost of litigation, or
if the claims or arguments therein are frivolous.
"[T]he central purpose of Rule
thus.
. .
11
See FED.
R. CIV. P.
11(b).
is to deter baseless filings in district court and
streamline the administration and procedure of federal court." Cooter & Gell
v.
Hartmarx Corp., 496 U.S. 384, 393 (1990). The Court must carefully choose sanctions that
further the purpose of the Rule and should impose the least severe sanctions that would
adequately deter its violation. See Thomas
v.
Capital Security Servs., Inc., 836 F.2d 866, 875-76
(5th Cir. 1988). When warranted, sanctions may include an order directing payment to an
opposing party of some or all of the reasonable attorney's fees or costs incurred as a result of the
violation. See Merriman
FED.
v.
Security Ins. Co. of Hartford, 100 F.3d 1187, 1191(5th Cir. 1996);
R. CIV. P. 1 l(c)(2).
The Court also possesses inherent power to "protect the efficient and orderly
administration of justice
. . .
to command respect for the court's orders, judgments, procedures,
and authority." In re Stone, 986 F.2d 898, 902 (5th Cir. 1993). Included in this inherent power is
"the power to levy sanctions in response to abusive litigation practices." See Mendoza
v.
Lynaugh, 898 F.2d 191, 195-97 (5th Cir. 1993). No pro se litigant has the "license to harass
others, clog the judicial machinery with meritless litigation, and abuse already overloaded court
dockets." Farguson
v.
MBankHous., NA., 808 F.2d 358, 360 (5th Cir. 1986).
In addition to monetary sanctions, "[a] district court has jurisdiction to impose a prefiling injunction to deter vexatious, abusive, and harassing litigation." Baum
v.
Blue Moon
Ventures, 513 F.3d 181, 187 (5th Cir. 2008). In determining whether to impose such an
injunction, the Court must weigh all of the relevant circumstances, including the following four
factors: (1) the party's history of litigation, in particular whether she has filed vexatious,
harassing, or duplicative lawsuits; (2) whether the party had a good faith basis for pursuing the
3
litigation, or simply intended to harass; (3) the extent of the burden on the courts and other
parties resulting from the party's filings; and (4) the adequacy of alternative sanctions.
See
id.
at
189. A pre-fihing injunction must be "tailored to protect the courts and innocent parties, while
preserving the legitimate rights of litigants." Id. at 187.
II.
Application
Austin Diagnostic's motion for attorneys' fees requests a total fee award of $13,938.00
under 28 U.S.C.
pro se
F.
1927. Supp. Br. [#18] at 1. But the Fifth circuit has not determined whether a
§
litigant can be sanctioned under
§
1927.2 See Simmons v. Methodist Hosps.
of Dallas, 632
App'x 784, 787 n.5 (5th Cir. 2015) ("We note that this court has not yet addressed whether a
pro se litigant can be subject to sanctions under section 1927 and need not do so today.").
District courts within the Fifth Circuit are split on "whether a pro
sanctions under
§
se
litigant can be subject to
1927, with the majority finding they cannot." Barcroft
v.
Gibbs,
No.
416CVOO562ALMCAN, 2017 WL 1499247, at *5 (E.D. Tex. Apr. 5, 2017), report and
recommendation adopted, No. 4:16-CV-562, 2017 WL 1498532 (E.D. Tex. Apr. 25, 2017)
(collecting district court cases evaluating if apro
se
litigant can be sanction under
§
1927). Given
the lack settled authority, this Court denies Austin Diagnostic's request to impose
§
1927
sanctions on Plaintiff.
Instead, the Court applies Rule
11
of the Federal Rules of Civil Procedure. In dismissing
Plaintiff's suit against Austin Diagnostic, this Court agreed with Magistrate Judge Austin
Austin Diagnostic failed to highlight the fact the Fifth Circuit has yet to endorse § 1927 sanctions for pro
se litigants or the fact that district courts within the Fifth Circuit are split on whether § 1927 can be applied to pro se
litigants. In a case where Austin Diagnostic's counsel is the only counsel of record and Plaintiff is unrepresented,
Austin Diagnostic's failure to highlight adverse authority comes perilously close to violating the Texas Disciplinary
Rules of Professional Conduct. See Tex. Disciplinary Rules Prof 1 Conduct R. 3.03(a)(4), reprinted in TEX. GOV'T
CODE ANN., tit. 2, subtit. G, app. A, art. 10, § 9 (West 2013). Rule 3.03(a)(4) prohibits a lawyer from "fail[ing] to
disclose to the tribunal authority in the controlling jurisdiction known by the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel." Id. The local rules of the Western District of Texas
require attorneys practicing before it to "comply with the standards of professional conduct set out in the Texas
Disciplinary Rules of Professional Conduct." Local Rule AT-7(a).
2
Plaintiff's claims were frivolous. Moreover, in commencing this suit, Plaintiff filed a complaint
identical to a petition Plaintiff had filed in a state court case non-suited with prejudice. See Mot.
Dismiss [#8-1] Ex. A (State Litigation R.).
In addition to this lawsuit, Plaintiff has filed at least seven cases in the Western District
of Texas since the beginning of 2017, two of which have been dismissed. See Phillips
v.
Hunter
Warfield, Inc., No. A-17-CV-939 (W.D. Tex. Jan. 19, 2018) (dismissing claims as frivolous);
Phillips
v.
Christus Santa Rosa Healthcare Corporation, No. SA-17-CA-0421-FB (W.D. Tex.
Sept. 29, 2017) (dismissing claims for failure to state a claim). Sanctions under Rule 11 are
necessary to deter Plaintiff's baseless filings as well as compensate Austin Diagnostic for the
costs of defending against Plaintiff's second suit in this court.
However, the amount requested by Austin Diagnostic is excessive. At most, Austin
Diagnostic filed a motion to dismiss in defending this
lawsuit.3
Given the minimal amount of
work necessary to defend this lawsuit, the Court estimates approximately ten hours of work were
required to draft Austin Diagnostic's seven-page motion to dismiss. The Court adopts the
reasonable hourly rate provided by Austin Diagnostic for an associate lawyer, $250 per hour.
Supp. Br. [#18] at 3. As a result, the Court awards Austin Diagnostic $2,500 in attorneys' fees
and costs. Until Plaintiff pays Austin Diagnostic, Plaintiff shall not file additional lawsuits within
the Western District of Texas without first obtaining leave.
The Court is not convinced Austin Diagnostic's motion to dismiss was necessary as it was filed after
Judge Austin entered his report and recommendation advising this Court to dismiss Plaintiff's suit as frivolous.
5
Conclusion
Accordingly,
IT IS ORDERED that Defendant Austin Diagnostic Clinic Association's Motion
for Attorneys' Fees [#17] is GRANTED 1N PART and DENIED IN PART as described
in this opinion;
IT IS FURTHER ORDERED that Plaintiff Amanda Phillips SHALL PAY TWO
THOUSAND AND FIVE HUNDRED DOLLARS to Austin Diagnostic Clinic
Association for attorneys' fees or costs incurred as a result of this litigation;
IT IS FURTHER ORDERED that Austin Diagnostic Clinic Association SHALL
NOTIFTY this Court when Amanda Phillips tenders the TWO THOUSAND AND FIVE
HUNDRED DOLLARS; and
IT IS FiNALLY ORDERED that Plaintiff Amanda Phillips, in any capacity, is
BARRED from filing additional lawsuits in the Western District of Texas without first
obtaining leave from a Federal District Judge in the Western District of Texas, Austin
Division, or a Judge of the United States Court of Appeals for the Fifth Circuit until she
pays the sanctions against her.
SIGNED this the
/4/day of March 2018.
/
SAM SPARKS
SENIOR UNITED S'tATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?