Webber v. Leson Chevrolet Company, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NATHANIAL WEBBER CIVIL ACTION

VERSUS NUMBER: 22-910

LESON CHEVROLET COMPANY, INC. SECTION: “T” (5)

ORDER AND REASONS

On May 29, 2024, this Court issued a Rule to Show Cause why Plaintiff’s counsel, JP

Gorham, should not be sanctioned for repeatedly violating the orders of this Court by (1)

failing to appear at court-ordered proceedings and (2) unreasonably and vexatiously

multiplying these proceedings by virtue of the filing a motion for sanctions and through her

routine abuse of process in ignoring or otherwise failing to comply with court-ordered

deadlines. (Rec. doc. 100). The Court scheduled a hearing on the matter and provided that

Gorham could file a written brief addressing the issues raised in the show-cause order, which

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she did. (Rec. doc. 104-2). Also, as permitted by the Court, Defendant, Leson Chevrolet, filed

a response to that brief. (Rec. doc. 106).

The Court held a hearing on June 20, 2024 and took the matter under advisement.

(Rec. doc. 107). After thoroughly considering the procedural history of the case, the parties’

briefs, and the argument of counsel, the Court rules as follows.

A. How We Got Here – The Tortured Procedural History of this Case

The story here begins with the scheduling of Defendant’s Rule 30(b)(6) deposition.

The entire saga was described by the Court in the Order setting the Rule to Show Cause and

it need not be repeated here. To summarize, a dispute arose over where the deposition

would take place – in the Middle or Eastern District of Louisiana. Despite receiving

numerous emails from Defense counsel (properly) insisting that the deposition go forward

in this District (the forum district where both parties also happen to be located), Gorham

noticed the deposition to take place in Baton Rouge, in the Middle District of Louisiana. (Rec.

doc. 51-3).

On the eve of that deposition, Defendant filed a motion for protective order, objecting

to appearing in Baton Rouge, and sought expedited review. (Rec. docs. 51, 52). Because the

deposition was set to take place the next day and the next day was the agreed-upon discovery

deadline, the Court convened a telephone conference with the hope of resolving the dispute

as expeditiously as possible.

At the conference, and as reflected in the Court’s Minute Entry, the Court directed that

the deposition proceed on April 10, 2024, at a mutually-agreeable location in the Eastern

District of Louisiana. (Rec. doc. 56). To provide Gorham a full opportunity to complete the

record in opposition to Leson’s motion, however, the Court also permitted her to file a brief

no later than FriIdda.y, April 12, 2024 to address the arguments made by Defendant in its

motion papers. ( ).

When Gorham filed that brief on behalf of Plaintiff, she accompanied it with an

altogether unexpected motion for sanctions (or something that purported to be a motion for

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sanctions). (Rec. doc. 71). After being ordered to do so by the Clerk’s office, Gorham re-

filed the motion, which was ultimately set for oral argument on May 23, 2024. (Rec. doc. 83).

She then failed to appear at the May 23 hearing on her motion. (Rec. doc. 100).

As a result of her non-appearance, the Court issued its Order and Reasons and Rule

to Show Cause. As for the sanctions motion, the Court denied thaItd .motion, both owing to

counsel’s failure to appear at the oral argument and on the merits. ( at 5-9). On the merits,

the Court found that the deposition transcript attached to the motion failed to demoInds.trate

misconduct by Defense counsel, either in the nature or frequency of his objections. ( ). As

to the suggestion that Defense counsel be sanctioned for failing to attend the deposition that

Gorham had noticed to take place in the wrong district, the Court observed:

As wasteful and inefficient as it was for Plaintiff’s counsel to go

through the motions of convening a Baton Rouge deposition

under the circumstances, moving for sanctions against Leson

and its counsel for their failure to appear at this show

proceeding is more so, particularly given the fact that the Court

had already ruled on the impropriety of noticing that deposition

Id. in another District.

( at 7-8).

Finally, concerning Gorham’s complaints that she and her client had been subjected

to “surveillance” and confined against their will at Defense counsel’s office during a previous

deposition and that Defense counsel had verbally berated and yelled at her during the

30(b)(6) depIods.ition, the Court found these to be completely unsupported by any evidence in

the record. ( at 5-7).

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That motion was enSetietled “Ex parte/Consent Motion for Sanctions” and was marked “deficient” by the Clerk’s

Coming out of all this, the Court issued its Order and Reasons and Rule to Show Cause

directing Gorham to appear and show cause why she should not be sanctioned for her third

nonB-a. pTpehaer aRnuclee itno t Shhiso cwa sCea aunsde faonr dfi lRinegla ttheed m Bortiieofnin fgor sanctions.

In response to the aforementioned Order, Gorham filed a pleading entitled “Response

to the Court’s Order and Reason’s [sic] and Rule to Show Cause (Rec. doc. 100) and

Memorandum in Support of Motion for Objections.” (Rec. doc. 104-2). Apparently, Gorham

intended to both respond to the Court’s Order setting the Rule to Show on possible sanctions

and, simultaneously, object to that same Order. Based on the fact that the District Judge

referred the entire matter to me, and considering the substance and tenor of the brief, I

construed this pleading as a motion for reconsideration of the motion for sanctions,

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combined with a response to the setting of the rule to show cause on the sanctions issue.

To be kind, Gorham’s brief was long on grievance and exceedingly short on self-

awareness – especially for a lawyer with what is very close to an unprecedented history of

failing to appear at court-mandated conferences and hearings. Employing exceedingly

pointed (if not inflammatory) language, Gorham objected repeatedly to the Court’s

suggestions that her latest affront to court orders might be sanctionable. To wit, she was

“profoundly offended” that I “manipulated” the record to portray her as “dishonest and

unprofessional.” (Rec. doc. 104-2 at 2). She accused the Court of “inequitable treatment”

because I insisted upon putting her to her proof (and actually showing up) in making various

scandalous allegations against co-counsel.

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In sum (and without belaboring the issue), counsel took zero responsibility for failing

to appear for a third time in this one case.

Moreover, she continued to aggressively attack the professionalism of her opponent,

despite the Court having disposed of her motion for sanctions against him. For instance, she

wrote:

It is further deeply concerning and distressing to observe the

Court's portrayal and harsh characterization of my conduct as

Plaintiff's counsel, especially when juxtaposed against the

leniency shown towards the Defendant's counsel's clear and

Id. blatant unprofessional behavior.

( ). Predictably, then, Defense counsel felt compelled to file a response memorandum to

address these continuing broadsides. (Rec. doc. 106).

Following the filing of these pleadings, the hearing on the Rule to Show Cause went

forward.

At that hearing, the Court made a number of things clear. First, that the tone of

Gorham’s attacks on opposing counsel was beyond the pale, especially for a lawyer who was

being made to explain why she herself shouldn’t be sanctioned for missing multiple court-

ordered hearings and conferences:

THE COURT: I don't find that the language that you have used

in these briefs to describe the conduct of your opposing counsel

to be respectful in the least. It is the opposite of respectful.

. . . .

When you accuse a lawyer of that level of [un]professionalism,

you've got to come with proof, and you haven't done that.

. . . .

The other thing I want to suggest to you is that – I remember

somebody telling me this when I was a lawyer. Once you finish

writing your brief, put it to the side, and then reread it before

you file it. Because there's a lot of stuff in these briefs that

shouldn't be here. Particularly in a brief that's responding to a

rule to show cause why you shouldn't be sanctioned for

(Rec. doc. 113 at 9).

Second, the Court made clear (or thought it had) that it was not going to revisit the

merits of the previously denied motion for sanctions, both because Gorham had failed to

support her allegations in her briefs and had subsequently failed to appear at the hearing on

the motion:

THE COURT: . . . . But when you move to the next level and

somebody is screaming at you and yelling at you and hovering

over you and intimidating you, I need proof of that.

MS. GORHAM: I can provide you proof.

THE COURT: The ship has sailed. Okay? This is a motion for

reconsideration. The record is what the record is, and we're not

Id. going to keep relitigating this issue.

( at 15-16). And, while the Court took counsel to task for her rhetorical tone, I also advised

her that it would not sanction her for filing the motion in the first place.

As to the submission by Defendant of its request for reasonable fees and costs, the

Court permitted Gorham to file a supplemental memorandum addressing the

reasonableness of that request (which she had not done in a reply brief in advance of the

hearing). When the Court indicated at the hearing it would allow this briefing, Defense

counsel raised concerns that the supplemental briefing would continue Plaintiff’s counsel’s

pattern of engaging in ad hominem attacks on him. The Court responded that Gorham should

have already received the message that such attacks wouldn’t be tolerated:

THE COURT: I think I have spoken to what I – I mean, I've said

something to Counsel that I don't know that I've ever said

before, which is re-read what you're going to file and tone it

down so that it's respectful and not inflammatory. We don't

need any more of that.

MR. BEEBE: That's right. And, Judge, I only point this out

because this was not the first time. Again, it becomes a repeat

behavior.

. . . .

MR. BEEBE: Thank you, Your Honor. I'm attempting to avoid

that we have any more vitriol.

THE COURT: I've just spent 15-20 minutes doing the same thing.

Id. MR. BEEBE: Very good.

THE COURT: I feel like Ms. Gorham is hearing what I'm saying.

( at 19).

C. TheI tS suepepmles mtheant tGaolr Bhraimef winags not hearing me at all.

Rather than contain herself to traversing Defense counsel’s fee submission (as I had

directed), Gorham used the opportunity to double down on her already-dismissed

complaints that Defense counsel engaged in unethical and unprofessional conduct, locked

her and her client in his office for 15 minutes during a break in a deposition, and created a

“disturbing surveillance environment” in and around that same deposition. (Rec. doc. 108).

She then went next-level, attaching declarations under penalty of perjury from herself and

hIedr. client stating that her allegations of nefarious conduct by Defense counsel were all true.

( ). This was all in the face of the Court explaining that (1) the motion would not be

revisited, (2) her opportunity to present such evidence had long since passed, and (3) her

attacks on counsel were both unsupported and inflammatory.

Gorham has clearly not heard the Court. This is frustrating to say the least. It is also

a serious problem for someone before the Court for possible sanctions for serially missing

and/or ignoring deadlines across multiple cases. Both the underlying conduct (those missed

engagements) and her responses to being ordered to explain that conduct make it clear to

the Court that further sanctions are not only warranted, but necessary.

D. Sanctions

There are numerous mechanisms by which district courts exercise sanction powers,

including the Federal Rules of Civil Procedure (through Rules 11, 16, 26, 30 and/or 37); 28

U.S.C. §1927; and the inherent power of the courts to manage their own proceedings and to

control the conduct of those who appear before them. Regardless of the source, it is well-

established that the primaryS epeu, rep.go.se of sanctions is to deter frivolous litigation and ongoing

and future abusive tactics. , Fed. R. Civ. P. 30(d)(S2e)e. , Sea.gn.c, tPioanvesl sice e&k LtoeF dloerteer v b. oMthar tvheel

cEunltpma’bt lGe raotutoprney and members of the bar in general.

, 493 U.S. 120, 126-F2r7e d( 1A9. 8S9m)i t(hfi nLduimngb etrh aCto t. hve. Epdriidminary purpose of Rule 11 is

deterrence, not compensation); , 845 F.2d 750, 752 (7th

Cir. 1988) (“the most important purpose of Rule 11 sanctionsS iasn tcot idoentse:r T fhriev oFleoduesr alilt iLgaawti oonf

aLnitdig tahteio nab Aubsiuvsee practices of attorneys”); Gregory P. Joseph,

§ 47(A) (2d ed.) (noting that the purpose of Rule 37 is four-fold: “(1)

penalizing the culpable party or attorney; (2) deterring others from engaging in similar

conduct; (3) compensating the court and oItdh.er parties for the expense caused by the abusive

conduct; and (4) compelling discovery”); at § 20 (noting that the purpose of 28 U.S.C. §

1927 is to deter unnecessary delays in litigation).

Whether a district court exercises its sanctions authority under the Federal Rules of

CTiovpial lPiaronc ve.d Euhrrem, 2a8n U.S.C. § 1927, or its inherent power, it does so at its “broad discretion.”

, 3 F.3d 931, 934 (5th Cir. 1993). “The discretion vested in the trial court

is granted so Jietsn nthinogusg vh.t Jfouslh euxae rIc.Si.sDe. will carry out the educational and deterrent functions of

the rule[s].” , 948 F.2d 194, 199 (5th Cir. 1991).

Gorham’s failures to appear are a Rule 16 problem. The sanctions provision of

Federal Rule of Civil Procedure 16 provides:

In General.

(f) Sanctions.

(1) On motion or on its own, the court may

issue any just orders, including those authorized by Rule

37(b)(2)(A)(ii)–(vii), if a party or its attorney:

(A) fails to appear at a scheduling or other pretrial

conference; or

. . . .

(C) fails to obey a scheduling or other pretrial

Impoorsdinegr. Fees and Costs

(2) . Instead of or in addition to

any other sanction, the court must order the party, its

attorney, or both to pay the reasonable expenses –

including attorney's fees – incurred because of any

noncompliance with this rule, unless the noncompliance

was substantially justified or other circumstances make

an award of expenses unjust.

Fed. R. Civ. Pro. 16 (emphasis added). It is pursuant to this framework that the Court

considers the appropriate sanction for Gorham for what appears to be her habitual faliures

to appear.

Beyond counsel’s conduct in this case, the Court’s analysis must also be informed by

her history in this Court pre-dating this case. As previously catalogued in its Order setting

all of this for hearing, this is hardly counsel’s first transgression when it comes to simply

showing up.

To recap what has happened in the present case, Gorham’s no-show at the hearing on

her Motion for Sanctions was her third. She failed to appear at the Court-ordered scheduling

conference on August 16, 2023, prompting the District Judge to reset that hearing. (Rec. doc.

34). After the District Judge granted Plaintiff’s motion to continue due to incomplete

Id.

set by the Court to select new dates. ( at 1-2). That caused theId C.ourt to issue an Order to

Show Cause why the Plaintiff’s case should not be dismissed. ( at 2). Plaintiff’s counsel

responded, citing numerous personal issues and scheduling mishaps as reasons for missing

the two Court-ordered conferences, and the District Judge declined to take further action.

(Rec. doc. 35).

A sixth Scheduling Order was issued by the District Judge, setting a deadline for

Plaintiff to designate experts and issue reports by February 22, 2024. (Rec. doc. 37). The

day before that deadline, Plaintiff filed an Ex Parte/Consent motion to extend the expert

deadline a somewhat staggering three months, to May 22, 2024 (at that time, the trial was

scheduled to begin June 10, 2024). Now, against this unusual background of non-compliance

with deadlines and other court orders, the Court must confront another non-appearance by

counsel.

As noted above, in determining the appropriate sanction for these non-appearances,

the Court must Daulsnon c vo. nAspidacehr ecounsel’s history in this District of similar failures to appear.

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Her conduct in (for which she was sanctioned twice) was strikingly similar

to (but even more egregious than) that displayed here. Mindful of the goal of deterring future

similar misconduct in assessing the appropriate sanction, a brief discussion of the relevant

history of Dthuantn case is appropriate then.

In , Gorham (who represented the plaintiff) failed to attend a telephonic status

conference on March 8, 2019. (No. 17-cv-12777, rec. doc. 62). When the Court could Indo. t

contact her, District Judge Ivan Lemelle issued an order re-setting the conference. ( ).

Gorham failed to appear for that conference, failed to provide the Court with a contact

Dunn v. Apache Indus. Servs.

Id.

number, and was unresponsive to the Court’s attempts to contact her. ( , rec. doc. 63).

OIwd.ing to these failures, Judge Lemelle actually dismissed Plaintiff’s case without prejudice.

( ).

Following the order of dismissal, Gorham filed a motion for relief and/or

reconsideration, suggesting that her failures to coIdm.ply with court orders were due to

inadvertence and a technical issue with her pIhdo. ne. ( , rec. doc. 64). The Court granted that

motion and vacated its order of dismissal. ( , rec. doc. 71). In that order, the Court found

that, while counsel’s “neglectful” conduct did not justify punishing an innocent plaintiff by

dismissing herI dc.ase, a $200 monetary sanction on counsel was appropriate to deter future

misconduct. ( ).

It's become clear that such a sanction was not nearly sufficient to achieve the stated

goal of deterrence.

Following the actual dismissal of her client’s case and a monetary sanction, Gorham

continued to violate and/or ignore Judge Lemelle’s orders. The record indicatides. that she

violated the scheduling order in that case by serving discovery requests late, ( , reIdc.. doc.

94), and failed to attend two more scheduling conferences ordered by the Court. ( , rec.

docs. 134, 137-38). As a result of thIeds.e additional failures, the defendant filed a motion to

dismiss, citing lack of prosecution. ( , rec. doc. 137). In a seven-page “Order and Reasons”

citing counsel’s record of “repeated failures to comIpdl.y with court orders,” Judge Lemelle set

the motion to dismiss for an evidentiary hearing. ( , rec. doc. 139).

The Court conducted an evidentiary hearing and ultimately denied the motion to

dismiss, finding that a lesser sanction (than dismissal) was “appropriate to guard against

Id.

future failures to comply with Court Orders.” ( , rec. doc. 155). That lesser sanctioIdn. was

$2,000, assessed against Gorham and payable to Defendant by November 29, 2021. ( ).

Against this backdrop, the Court turns again to Gorham’s record in this case. The first

court-ordered conference Gorham missed in this case was August 16, 2023 – almost two

years after being sanctioned $2,000 by Judge Lemelle in an effort to deter such future

violations. As was the case with Judge Lemelle’s initial $200 sanction, his subsequent $2,000

sanction clearly did not have had the desired or intended effect, as counsel has now missed

tDhurnene more court-ordered conferences or hearings in this case (to go along with the four from

).

Compounding these failures, Gorham continues to ignore the Court’s orders and

directions concerning her ill-advised motion for sanctions and insists on continuing to

aggressively litigate that motion and the issues raised therein, despite the Court very

pointedly denying that motion and explaining at the June 20, 2024 hearing that her motion

to reconsider would also be denied. (Rec. doc. 113).

Notably, the Court-ordered briefing in which Gorham was directed to address her

non-appearances in this case was long on grievance and complaints about opposing

counsel’s conduct and the Court’s treatment of her and very short on acceptance of

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responsibility, remorse, or anything approaching a mea culpa for routinely failing to appear.

She persists in re-litigating a losing cause (which consists entirely of attacks on opposing

5

Finally, at the show-cause hearing, Gorham informed the Court that she was “deeply remorseful” for her non-

appearances. (Rec. doc. 113 at 12). And in her post-hearing supplemental brief she wrote that she “has

counsel’s professionalism), which requires opposing counsel to respond and, of course,

requires the Court to continue to grapple with a denied motion.

Based upon all this, the Court finds that Gorham’s third non-appearance in this case

is a violation of Federal Rule of Civil Procedure 16 and that a sanction is appropriate for that

violation. Unlike Rule 11, Rule 16 proscribes certain acts regardless of purpose or

motivation. Failure to attend a scheduled hearing falls within this category – no doubt serial

failures qualify. Improper motive, bad-faith, even reckless behavior, is not a prerequisite for

finding a violation of the Rule. So long as the court is convinced counsel or her office received

proper and timely notice, a negligent failure to attend the scheduled conference amounts to

a violation of the Rule.

In addition to this violation, the Court also finds that Gorham’s insistence on re-

litigating the matters raised in her motion for sanction is a violation of 28 U.S.C. § 1927, which

provides,

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. Gorham’s Motion for Sanctions was denied due to her own non-appearance

at the hearing on that motion as well as on the merits. (Rec. doc. 100). At the oral argument

on her “Motion for Objections to the Magistrate's Order and Rule to Show Cause,” the Court

made it abundantly clear that the time for trying to support those arguments had paspsaesds iamnd

warned counsel against continuing to lash out at opposing counsel. (Rec. doc. 113, ).

The Court even short-circuited Defense Counsel’s argument with this closing observation:

MR. BEEBE: Thank you, Your Honor. I'm attempting to avoid

that we have any more vitriol.

THE COURT: I've just spent 15-20 minutes doing the same thing.

MR. BEEBE: Very good.

Id. THE COURT: I feel like Ms. Gorham is hearing what I'm saying.

( at 19) (emphasis added). The Court was wrong about that last bit, given that Gorham

followed up immediately with yet another pleading doubling down on her attacks on

counsel’s professionalism and taking the additional step of including declarations made

under penalty of perjury repeating those same attacks.

This is all wasteful in the extreme. The Court finds that Gorham’s conduct along this

continuum rises to the level of conduct that has unreasonably and vexatiously multiplied the

proceedings, in violation of Section 1927.

Finally, the Court turns to an appropriate sanction. Rule 16 authorizes monetary and

non-monetary sanctions, whereas Section 1927 authorizes only monetary sanctions in the

form of excess costs, expenses, and attorneys’ fees reasonably incurred because of the

conduct being sanctioned. Here, Defense counsel has requested $3,500 in reasonable

attorney’s fees. (Rec. doc. 106). As a direct result of the motion for sanctions, Gorham’s non-

appearance, and her continuing efforts to re-litigate a lost cause, the Court notes that Defense

counsel has been required to file three separate memoranda and appear at two different live

hearings. (Rec. docs. 82, 106, 111). This is not to mention the amount of time the Court has

been forced to expend on all this.

Whether a court wields its sanction powers under the TFoepdaelriaaln Rules, 28 U.S.C. §1927,

or its inherent power, it does so at its “broad discretion.” , 3 F.3d at 934. “The

discretion vested in the trial court is granted soJ eitnsn tinhgosughtful exercise will carry out the

educational and deterrent functions of the rule.” , 948 F.2d at 199.

Concerning the fashioning of an appropriate sanction on a case-by-case basis, the

Fifth Circuit has stated,

Under this circuit's pGroenczeadleenz tv, .w Teri hnaitvye M reaqriunier eGdr pth., aInt cth. e district

court use “the least onesreoeu asl ssoa Tnocptiaolnia nwhich will address the

offensive conduct.” , 117 F.3d

894, 899 (5th Cir.1997); , 3 F.3d at 937 (holding

that district courts must show that “sanctions are not vindictive

or overly harsh reactions to objectionable conduct, and that the

amount and type of sanction was necessary to carry out the

Brown v. Oil Stpautersp Soksaeg oift tShmea stacnoctioning provision”) (citation omitted).

, 664 F.3d 71, 78 (5th Cir. 2011).

In conducting this required analysis in this case, the Court cannot ignore Gorham’s

prior conduct and the fact that a $200 sanction followed by a $2,000 sanction for serial non-

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appearances before another judge in this District did not have the intended effect of

deterring future misconduct.

Based on all of the above, the Court finds that a sanction of $3,500, payable as

attorneys’ fees to Defense Counsel, is appropriate here. As noted, the amount of this sanction

aligns, not only with the cost to Defendant and counsel, but also with the well-established

goal of deterrence. Given the failure of a $2,000 sanction to achieve this goal, the Court must

look beyond that figure.

No lawyer should have to be sanctioned three times. The Court sincerely hopes this

is the last time that Gorham appears before any Court to answer for the type of shortcomings

described herein. It certainly hopes that this sanction has the desired effect and that no court

in the future has to consider more onerous sanctions against counsel.

Dunn

DENIES

Accordingly, the Court hereby Plaintiff’s “Motion for Objections to the

Magistrate's Order and Rule to Show Cause.” (Rec. doc. 102). The Court further orders that

J.P. Gorham is sanctioned pursuant to Federal Rule of Civil Procedure 16 for repeated failures

to appear at court-ordered hearings and conferences and pursuant to 28 U.S.C. § 1927 for

multiplying the proceedings unreasonably and vexatiously by continuing to litigate and brief

issues that were decided by the Court and no longer ripe for litigation. Gorham is hereby

ordered to pay to Defense Counsel $3,500 in reasonable attorneys’ fees. That payment shall

be made no later than October 1, 2024, and Gorham shall notify the Court once the payment

has been made in satisfaction of this Order.

26th August

New Orleans, Louisiana, this _______ day of _________________________, 2024.

MICHAEL B. NORTH

UNITED STATES MAGISTRATE JUDGE