imposing sanctions after concluding that the appeal involved an “insubstantial” issue that had already been “clearly resolved” and for which the plaintiff could have “no reasonable expectation of altering the district court’s judgment based on law or fact” (internal quotation marks omitted)
How later courts described this case
- imposing sanctions after concluding that the appeal involved an “insubstantial” issue that had already been “clearly resolved” and for which the plaintiff could have “no reasonable expectation of altering the district court’s judgment based on law or fact” (internal quotation marks omitted)
- upholding district court's refusal to pierce corporate veil where plaintiff "failed to show any criminal, fraudulent, or deceptive action on [defendant’s] part or that he induced the contract; misrepresented his relationship to and with [the corporation]; or abused the corporate form”
- observing that there is no need to engage in a choice- of-law analysis when the parties agree on the applicable substantive law
- noting that there is no need to undertake a choice-of-law analysis when the parties agree on the source of substantive law
Written by the judges who cited it.
The opinion
GILMAN, Circuit Judge,
concurring.
I fully concur in Judge Wellford’s analysis of both the merits of this case and the issue of sanctions. My disagreement is with the decision to remand the case to the district court for it to determine the proper amount of the sanctions.
There are two reasons to believe that a determination of the appropriate sanctions is an appellate question. First, Rule 38 of the Federal Rules of Appellate Procedure states that “If a court of appeals determines that an appeal is frivolous, it may ... award just damages and ... costs ...” (emphasis added). Fed. R.App. P. 38. The plain language of the rule does not appear to contemplate a remand. Second, in nine of the ten appellate cases cited in the majority’s opinion in which sanctions were awarded, those sanctions were awarded at the appellate level. See Dallo v. INS, 765 F.2d 581, 589 (6th Cir.1985); NLRB v. Akron Paint & Varnish Co., 985 F.2d 852, 855 (6th Cir.1992); Nagle v. Alspach, 8 F.3d 141, 145 (3d Cir.1993); Coghlan v. Starkey, 852 F.2d 806, 814 (5th Cir.1988); Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1203 (7th Cir.1987); Reliance Ins. Co. v. Sweeney Corp., Marlyand, 792 F.2d 1137, 1139 (D.C.Cir.1986); Moore v. City of Des Moines, 766 F.2d 343, 346 (8th Cir.1985); Hirschfeld v. Spanakos, 104 F.3d 16, 20 (2d Cir.1997).
Determining the award of sanctions at the appellate level strikes me as more efficient from the viewpoint of both the parties and the court system. The district court does not possess any more information than do we about the costs that Brown incurred in this appeal. Furthermore, with the district court’s crowded docket and the possibility of still another appeal, it may well take months to dispose of what we could handle in a matter of weeks.
I also question the need for oral argument in a matter such as this, the absence of which would allow us to give as much consideration to this collateral issue as would the district court. In addition, our decision would almost certainly be final. I would therefore be inclined to follow Judge Posner’s approach in Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1203 (7th Cir.1987), in which the appellee was given 15 days to submit proper documentation to the clerk of the court, and the appellant was given an opportunity to respond.