# Petition for Writ of Certiorari — Swan v. Ruben

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 934

## Text

8'7 @ 3 5 | ) Supreme Court, U.S.

FILED Jf

i

OCT 27 1987
No.
YOSEPH F. SPANIOL, UR,
=BLERK
In The

Supreme Court of the United States

October Term, 1987

££)
Ww

WARREN CITY SCHOOL DISTRICT BOARD OF
EDUCATION, ROBERT L. PEGUES, ANTHONY
BERARDUCCI, NICHOLAS ANGELO, BART
WILSON AND WILLIAM HAAS

Petitioners,

ALAN MILES RUBEN AND JEANNE RATHBUN,
Respondents.

fy)
Vv

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

fy)
Vv

CuHar_es L. RicHarps,
Counsel of Record

Ricuarps, AMBrosy & FREDERICKA
Suite 300, The First Place

159 East Market Street

Warren, Ohio 44481

(216) 373-1000

Counsel for Petitioners

Warren City School District Board
of Education, Robert L. Pegues, An-
thony Berarducci, Nicholas Angelo,
Bart Wilson and William Haas

COCKLE LAW BRIEF PRINTING CO.. (800) 225-6964
or cali collect (402) 342-2831

QUESTIONS PRESENTED

When defendant files a motion for an award of attor-
ney fees against a plaintiff and plaintiff’s counsel,
pursuant to 28 U.S.C. § 1927, what standard must the
district court apply to determine if counsel ‘‘ unreason-
ably and vexaciously’’ multiplied the proceedings.

May the court of appeals, on appeal of an award of
attorney fees made in favor of a defendant and against
a plaintiff and her attorney reverse the award on the
basis of an ‘‘abuse of disecretion’’ without also finding
that the trial court’s findings of fact and conclusions
of law issued under Fed. R. Civ. P. 52(a) are clearly
erroneous.

When counsel for plaintiff is found to have been guilty
of conducting litigation ‘‘in bad faith’’ and an award
of attorney fees against plaintiff’s counsel in
favor of the defendant is based upon such a finding,
is the award of attorney fees limited to the ‘‘excess’’
costs, expenses and attorney fees incurred because of
such conduct, even if the proper handling of the case
would have revealed the case to be frivolous in fact,
or where the bad faith conduct includes especially
egregious acts such as prosecution of the case to
extract money from the defendants.

What is the effect to be given by a federal district
court in deciding a motion for an award of attorney
fees against plaintiff and plaintiff’s counsel, of the
fact that an administrative agency, such as a state
civil rights commission, made a finding of probable
cause that discrimination had occurred.

What is the procedure to be followed by the federal
district court in ruling on a motion for an award of
attorney fees when the motion is directed against both
the plaintiff and her counsel, especially when plain-
tiff does not appear at the hearing on the motion
or when plaintiff’s counsel abandon plaintiff and
argue to preserve their own interests.

il

LIST OF PARTIES

Other parties, in addition to those listed in the cap-
tion of the complaint are the individual school board mem-
bers at the time that the suit was filed in the district court,
namely:

Catherine Swan
Henry Angelo
Willard Ruben

Raymond Tesner
Mary Milheim

In addition, the district court’s award of attorney fees
was made against two other attorneys not involved in this
appeal who are:

Elliott Lester
Keith Weiner

TABLE OF CONTENTS

Page
unease SOE i
Neen eieesecnnicnnenienee ii
SE ieee
Neen ee sth ae
LSS EC 2
STATUTORY PROVISIONS INVOLVED |... 2
Pieters UP tee CASE. 3
WHY THE WRIT SHOULD BE GRANTED |. 1]
CONCLUSION ae
APPENDICES:
Opinion of the United States Court of
Appeals for the Sixth Circuit, July 30,
Nee teeeecnmicncinernnmarerere Appendix A,
App. 1-30

Order of the United States District Court

for the Northern District of Ohio, Octo-

ber 22, 1986 ................. ROSEY RE Pea el en ae Appendix B,
App. 31-62

Findings of Fact and Conclusions of Law

of the United States District Court for

the Northern District of Ohio, July 6,

ele! STS Appendix C,
App. 63-72

Judgment entry of the United States

Court of Appeals for the Sixfh Circuit,

ES LE Appendix D,
App. 73

i ae

iv
TABLE OF AUTHORITIES

Page
CasEs

Christiansburg Garment Co. v. EEOC, 434 US.
oy JE eee REL SEDER Tia oe Schr Pe a oe me 7)

Colucci v. New York Times Co., 533 F. Supp. 1011
8 a ere SE CANE rs Ae PRIOR 12

Dreiling v. Peugeot Motors of America, Inc., 768
F.2d 1159, 1165 (10th Cir. 1985) 12

Ford v. Temple Hosp., 790 F.2d 342 (3rd Cir. 1986) ...... 11

Haynie v. Ross Gear Div, of TRW, Inc., 799 F.2d
237 (6th Cir. 1986), cert. granted, — U.S. —, 107
rs Ro ccdicemettcientuiticeconnien 12

In re TCI, Lid., 769 F.2d 441 (7th Cir. 1985) 2. 12
Indianapolis Colts v. Mayor & City Council, 775

ae Be BS A | ee eiccee acne 13
Jones v. Continental Corp., 789 F.2d 1225 (6th

Cir. 1986) 12,13
Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223

(7th Cir. 1984) i 413, 13

Lewis v. Brown & Root, Inc., 711 F.2d 1287 (5th
Cir. 1983), aff’d in part on reconsideration,
722 F.2d 209 (5th Cir. 1984), cert. denied, 464
U.S. 1069, 467 U.S. 1231 (1964) CC 12,13

Shimman v. International Union of Operating En-

gineers, 744 F.2d 1226, 1230 (6th Cir. 1984) 00. ee |
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors

Assn., 809 F.2d 626 (9th Cir. 1987) 00 12
United States v. Austin, 749 F.2d 1407, 1408 (9th

Cir. 1984) 12

STATUTES

Civil Rights Act of 1964, Title VII, 42 U.S.C.

§ 2000(e) et seq. 4
Civil Rights Act of 1964, Title VII, § 706(K),

3 Re | ee 2
28 U.S.C. § 1927 . 3, 10, 11, 13

In The
Supreme Court of the United States

October Term, 1987

_f)
ee

WARREN CITY SCHOOL DISTRICT BOARD OF
EDUCATION, ROBERT L. PEGUES, ANTHONY
BERARDUCCI, NICHOLAS ANGELO, BART
WILSON AND WILLIAM HAAS

Petitioners,

ALAN MILES RUBEN AND JEANNE RATHBUN,
Respondents.

ff)
VW

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

—_, |
VW

Petitioners the Warren City School District Board of
Education, Robert L. Pegues, Anthony Berarducci, Nicho-
las Angelo, Bart Wilson and William Haas respectfully
pray that a writ of certiorari issue to review the judgment
and opinion of the United States Court of Appeals for the
Sixth Circuit, filed on July 30, 1987.

o

OPINIONS BELOW

The opinion of the United States Court of Appeals
for the Sixth Cireuit, Case Nos. 85-3986 and 85-3987, is
reported at 825 F.2d 977 and is reproduced in Appendix A.
(App. 1-30).

The district court’s order awarding attorney fees was
filed on October 22, 1985 and is unreported. ‘This order is
reproduced in Appendix B. (App. 31-62).

The findings of fact and conclusions of law of the
United States District Court for the Northern District of
Ohio, Eastern Division, Case No. C80-1914-Y, were filed
October 22, 1985, and are unreported. These findings and
conclusions are reproduced in Appendix C. (App. 63-72).

a)

JURISDICTION

The judgment of the Sixth Cireuit Court of Appeals
was entered on July 30, 1987. The jurisdiction of this
Court is invoked under 28 U.S.C. 4 1254(1).

co)

STATUTORY PROVISIONS INVOLVED
The Civil Rights Act of 1964, Title VII, Sec. 706(K),
42 U.S.C. § 2000e-5(k) :
In any action or proceeding under this subchapter

the court, in its discretion, may allow the prevailing
party, other than the Commission or the United States,

3

a reasonable attorneys fee as part of the costs, and the
Commission and the United States shall be liable for
costs the same as a private person.

28 U.S.C. § 1927:

Any attorney or other person admitted to conduct
cases in any court of the United States or any terri-
tory thereof who so multiplies the proceedings in any
case unreasonably and vexaciously may be required
by the court to satisfy personally the excess costs, ex-
penses, and attorneys’ fees reasonably incurred be-
cause of such conduct.

¢

STATEMENT OF THE CASE

Plaintiff Jeanne Rathbun was a naturalized citizen of
the United States of French origin. Plaintiff was hired by
petitioner, Warren City School District Board of Educativn
(Board of Education), in 1973 as a substitute janitor. In
October 1975, plaintiff became a regular employee of the
Board of Education as opposed to a substitute employee.
Plaintiff worked in various school buildings operated by
the Board of Education until December of 1981, when she
took a ‘‘medical leave’’ of absence and never worked again
within the Warren Board of Education school system.

On September 11, 1978, plaintiff filed a complaint with
the Ohio Civil Rights Commission charging discrimination
in connection with her employment. She also filed charges
with the Equal Employment Opportunity Commission on
October 16, 1978. In her Ohio Civil Rights Commission
complaint, plaintiff alleged sex discrimination by the
‘*Warren City Schools’’ and mentioned acts by Bart Wil-

4

son, a foreman of custodians and janitors, William Haas,
head eustodian of the school system, and Steve Hudock,
assistant head custodian of the school system. In her Equal
Employment Opportunity Commission charge, plaintiff
also alleged sex discrimination by ‘‘ Warren City Schools’’
and likewise mentioned Wilson, Haas, and additionally
mentioned Nicholas J. Angelo, once athletic director and
then supervisor of business operations for the school
system.

In March 1979 the Ohio Civil Rights Commission is-
sued a determination of probable cause that plaintiff's
allegations established a case of sex and national origin
discrimination. The Equal Employment Opportunity Com.
mission declined to pursue the matter in its own right and
issued a right to sue letter in July of 1980.

On October 16, 1981, plaintiff filed an action in the
United States District Court for the Northern District of
Ohio alleging employment discrimination and seeking re-
lief under Title VII of the Civil Rights Act of 1964 as
amended, 42 USC § 2000(e) et seq. The original com-
plaint was filed by Attorneys Shenyey, Berman and
Abakumov of Cleveland, Ohio. In addition to the Board
of Education, the defendants named in the original com-
plaint were Robert L. Pegues, Superintendent of the War-
ren City Schools; Anthony R. Berarducci, Assistant Su-
perintendent of the Warren City Schools; the five mem-
bers of the Board of Education at the time the suit was
filed (Catherine C. Swan, Henry Angelo, Willard Rubin,
Raymond Tesner and Mary Milheim), and also Nicholas
J. Angelo, Bart Wilson, William Haas, Steven Hudock
and a fellow janitor, Bernie Wilson, who died during the
pendency of the action.

}

cr

Shenyey, Berman and Abakumov withdrew from the
case later in calendar year 1981. The defendants’ mo-
tions for attorney fees were not in any way directed at
Shenyey, Berman and Abakumov, but instead were directed
at their successors as counsel for plaintiff.

Plaintiff eventually filed a second amended complaint
and again alleged violations of Title VII of the Civil Rights
Act of 1964, 42 USC § 2000(e) et seq. The second amended
complaint became the operative pleading in terms of relief
requested by plaintiff.

Mrs. Rathbun alleged that she had been discriminated
against on the basis of her sex and national origin. That
discrimination allegedly took the following forms:

1. Denial of equal overtime
2. Verbal abuse

3. Involuntary transfer

4. Disparate workloads

On June 26, 1984, a trial to the court commenced in
the United States District Court for the Northern District
of Ohio before the Honorable Sam H. Bell. At the conclu-
sion of Mrs. Rathbun’s case on June 29, 1984, Judge Bell
granted motions for dismissal under Fed. R. Civ. P. 41(b)
on behalf of all defendants. On July 10, 1984, judgment
was entered in favor of all defendants dismissing Mrs.
Rathbun’s complaint with prejudice and findings of fact
and conclusions of law were adopted by the trial court.

Mrs. Rathbun filed a notice of appeal on the merits of
her claim on August 6, 1984. On September 24, 1984 the
Sixth Cireuit Court of Appeals dismissed Mrs. Rathbun’s

6

appeal for want of prosecution under Rule 18 of the local
rules of the Sixth Cireuit. A certified copy of that order
was filed in the trial court on October 19, 1984.

The individual school board members then filed a mo-
tion for attorney fees in the trial court on or about October
29, 1984. A second motion for attorney fees was filed on
behalf of the Board of Education and all other defendants
on January 9, 1985. After the filing of briefs and an cral
hearing on March 15, 1985, which was not attended by
Plaintiff Jeanne Rathbun herself but by her then attor-
ney, the district judge granted both motions for attorney
fees on October 22, 1985.

In his order granting fees, the district judge directed
the fees incurred on behalf of the individual school board
members to be paid as follows:

Mrs. Rathbun $ 8,321.17
Attorney Weiner 150.00
Attorney Lester 2,500.00
Attorney Ruben 2,000.00

$13,471.17

The Board of Education and other individual defen-
dants were awarded fees to be paid as follows:

Mrs. Rathbun $27,838.04
Attorney Weiner 350.00
Attorney Lester 2,500.00
Attorney Ruben 2,000.00

$33,188.04

7

Thus, Attorney-Respondent Alan Miles Ruben was or-
dered to pay only $5,000 of a total award of $46,959.21.
Attorney Ruben’s share of the total attorney fee award
was 10.7%.

From that order, an appeal was pursued on behalf of
Mrs. Rathbun and Attorney-Respondent Alan Miles Ruben.
Mrs. Rathbun’s other attorneys in the trial court, Elliott
Lester and Keith Weiner, did not appeal to the Sixth Cir-
cuit Court of Appeals.

Mr. Lester entered his appearance in the case on Oc-
tober 5, 1981 as successor to Shenyey, Berman and Aba-
kumov. On January 25, 1982, Mr. Ruben entered his ap-
pearance as ‘‘additional counsel’’ on behalf of Mrs. Rath-
bun. Ruben was a law professor from Cleveland Marshall
College of Law, Cleveland, Ohio, and was brought in to
help the inexperienced Elliott Lester, apparently because
of Ruben’s alleged experience in Title VII cases.

On March 15, 1982, about six weeks after Mr. Ruben
made his appearance as counsel, Mrs. Rathbun’s attorneys
sent a letter over Attorney Elliott Lester’s signature mak-
ing a settlement demand of $54,000. That letter threat-
ened defendants with the prospects of a ‘‘fifteen day trial,
seventeen or more depositions”’’ and ‘‘total additional legal
costs .. . estimated at well over One-hundred Thousand
DeHars.’’ The letter went on to list twenty-two individ-
uals to be deposed in Cleveland with depositions ‘‘expect-
ed to last eight hours per day per person.’’

In spite of the direct threat in the letter, Mrs. Rath-
bun’s attorneys did not depose a single person and no
worthwhile discovery was ever employed by plaintiff’s
counsel.

Mrs. Rathbun’s attorneys filed a motion to disqualify
all counsel on January 1, 1983. That motion sought to dis-
qualify all defense counsel in this case, nearly two and

one-half years after the action was commenced, on the
basis of an alleged ‘‘conflict of interest’? where absolute-
ly none existed. The motion was totally without sub-
stance or merit. The motion to remove counsel for con-
flict of interest was apparently the brain child of Attorney
Ruben who played a significant role in the planning and
strategy of the motion. The motion was overruled on
August 18, 1983.

Plaintiff’s counsel did not comply with District Judge
Bell’s pretrial order issued on March 29, 1984. In his
order, Judge Bell required counsel to submit to the court
proposed witness lists, pre-marked exhibits, proposed find-
ings of fact and conclusions of law, and trial briefs. Al-
though defense counsel complied with that order in every
respect, Mrs. Rathbun’s attorneys did not comply in any
regard prior to trial nor did they request leave to comply
until admonished by the trial judge on the first day of trial.

On the first day of trial, the proceedings were delayed
because Mrs. Rathbun’s attorneys were late. The proceed-
ings were further delayed because of her attorneys’ total
neglect in complying with the court’s pretrial order. Both
Mr. Ruben and Mr. Lester attended the first day of trial.
Thereafter, Mr. Ruben abandoned Attorney Lester, and
left him alone to prosecute the case, although Mr. Ruben
never withdrew as counsel and never explained his absence.

On the second day of trial Mrs. Rathbun’s attorneys
filed their pre-trial submissions which contained a witness
list of twenty-one people. That witness list included the

9

name of an individual who had died approximately eleven
months prior to trial and whose death was made part of
the record in this case on September 12, 1983.

On the third day of trial, Mrs. Rathbun did not pro-
duce witnesses to occupy the trial court’s daily schedule.
The only witnesses to have testified at that point were
Mrs. Rathbun, her husband, a personal friend, and Nick
Angelo, the defendants’ representative at trial. Mr. Lester
acknowledged to the court that none of the other witnesses
on Mrs. Rathbun’s witness list had been subpoenaed or even
notified that they might be called as witnesses.

On the fourth and final day of trial, six witnesses were
called to testify. At the conclusion of their testimony,
Mrs. Rathbun rested and moved through her counsel for
a judgment on her behalf. That motion was denied. Mo-
tions were then made on behalf of each defendant for judg-
ment under Civil Rule 41(b) and those motions were
granted. Judge Bell then filed findings of fact and con-
clusions of law.

The proceedings culminating in the award of attorney
fees against Mrs. Rathbun and her attorneys then followed.

In his thirty-three page award of attorney fees (Ap-
pendix B) the district court judge made a number of ex-
press findings and conclusions regarding the conduct of
counsel and the nature and quality of the plaintiff’s law-
suit. (App. 53-56). The judge determined that:

1. The filing and prosecution of the action against
all of the individual defendants was a frivolous and un-
warranted act as defined in Christiansburg Garment Co.
v. EEOC, 434 U.S. 412 (1978).

10

2. Plaintiff, from the inception of this action, and
her counsel, from the time they entered appearances in the
case, acted with the intent to extract some monetary set-
tlement from the several individuals associated with the
school system because of the threat of defending and ex-
pense of litigating this action.

3. Plaintiff, Mr. Lester and Mrs. Ruben all acted
without requisite good faith by charging and prosecuting
the individual defendants when they neither had nor pro-
duced a single thread of evidence against these defendants.

4. The action against the Warren Board of Educa-
tion was brought by the plaintiff and prosecuted by Mr.
Lester and Mr. Ruben in bad faith.

5. The action against the Warren Board of Educa-
tion was totally unsupported by any evidence of discrim-
inatory conduct and must be considered to be frivolous
without foundation in fact and lacking in good faith.

6. Both Mr. Lester and Mr. Ruben knew, or should
have known, that the prosecution of the action was war-
rantless.

7. The activities of counsel presented an unparalleled
example of an abusive use of the system of justice in the
civil rights area.

On appeal, the Sixth Cireuit Court of Appeals re-
versed and remanded the case to the trial court for further
proceedings. In doing so, the court of appeals invited in-
quiry ‘‘as to Rathbun’s lability for defendants’ costs and
Ruben’s liability under the district judge’s inherent power,
or 28 USC § 1927.’’ The Sixth Cireuit Court of Appeals
expressly noted that on remand:

1]

[W]e contemplate that the district judge will re-
quire defendants’ attorneys to amend their motions
to identify the claimed misconduct by Ruben and the
extra efforts required by them as a result. The dis-
trict judge can then proceed to consider their motions
anew. (App. 30).

The Sixth Cireuit Court of Appeals completely wiped
out the award of attorney fees against plaintiff, but left
it to the trial court to determine whether plaintiff, because
of her possible indigency, should be held responsible for
costs in the trial court which amount to more than three

thousand dollars.

WHY THE WRIT SHOULD BE GRANTED

THIS CASE ILLUSTRATES THE MANY PROB-
LEMS FACING FEDERAL DISTRICT COURTS
IN RULING ON A MOTION FOR AN AWARD
OF ATTORNEY FEES AND ALSO DEMON.
STRATES THE PROBLEMS FACING THE CIR-
CUIT COURTS OF APPEAL UPON RE-
VIEW OF THESE AWARDS. THE PROBLEMS
RAISED BY THIS CASE ARE SIGNIFICANT,
OCCUR FREQUENTLY, AND HAVE YET TO
BE ADDRESSED BY THE SUPREME COURT
OF THE UNITED STATES.

The standard to be applied by the district judge in de-
ciding whether attorney fees should be awarded to the de-
fendant under 28 USC $1927 is not uniform among the
circuits. Indeed, very different standards are now being

applied.

The most restrictive standard requires a showing
of willful bad faith before an attorney can be sanctioned.
Ford v. Temple Hosp., 790 F.2d 342 (8rd Cir. 1986). The
Ninth Cireuit requires a showing of either reckless con-
duct or bad faith. T.W. Elec. Serv., Inc. v. Pacific Elec.
Contractors Assn., 809 F.2d 626 (9th Cir. 1987).

12

a

The Sixth Circuit appears to apply yet another stan-
dard. The Sixth Circuit would not require a showing of
intentional conduct or conscious impropriety, but would
require more than mere negligence or inadvertence. Jones
v. Continental Corp., 789 F.2d 1225 (6th Cir. 1986) ; Haynie
v. Ross Gear Div. of TRW, Inc., 799 F.2d 237 (6th Cir.
1986), cert. granted, — U.S. —, 107 S.Ct. 1624 (1987). The
Seventh Circuit also seems to follow an intermediate stan-
dard in holding that an express finding of bad faith is not
required, however some degree of culpability must be
shown, such as recklessness, or intentionally filing or prose-
euting a claim which lacks a plausible legal or factual basis.
Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223 (7th Cir.
1984) ; In re TCI, Ltd., 769 F.2d 441 (7th Cir. 1985). The
Sixth and Seventh Circuits seem to state a reasonable per-
son standard, in that an attorney can be sanctioned under
§ 1927 where a reasonably careful attorney would have
known or should have known that a claim was frivolous
or that litigation tactics would needlessly delay or ob-
struct the progression of the lawsuit. Jones, 789 F.2d
1225 (6th Cir. 1986); In re TCI, Ltd., 769 F.2d 441 (7th
Cir. 1985); Knorr Brake Corp., 738 F.2d 223 (7th Cir.
1984).

Some circuits require a showing of bad faith or malice.
In re TCI, Ltd., 769 F.2d 4411 (7th Cir. 1985); Dreiling
v. Peugeot Motors of America, Inc., 768 F.2d 1159, 1165
(10th Cir. 1985); United States v. Austin, 749 F.2d 1407,
1408 (9th Cir. 1984); Shimman v. International Union of
Operating Engineers, 744 F.2d 1226, 1230 (6th Cir. 1984).
Some circuits measure the conduct of counsel against ac-
cepted standards of conduct used in litigation. Knorr
Brake v. Harbil, Inc., 738 F.2d 223 (7th Cir. 1984) ; Colucci
v. New York Times Co., 533 F. Supp. 1011 (S.D.N.Y.,

is Hoek an

13

1982). Other jurisdictions, including the Sixth Circuit,
have refused to apply the stringent bad faith or malice test,
and have applied the most objective test of all, which in-
volves an analysis of whether counsel filed or prosecuted
a case which was without plausible legal or factual basis.
Knorr Brake v. Harbil, Inc., 738 F.2d 223 (7th Cir. 1984) ;
Lewis v. Brown & Root, Inc., 711 F.2d 1287 (Sth Cir. 1983),
aff’d in part on reconsideration, 722 F.2d 209 (5th Cir.
1984), cert. denied, 464 U.S. 1069, 467 U.S. 1231 (1984) ;
Indianapolis Colts v. Mayor & City Council, 775 F.2d 177
(7th Cir. 1985); Jones v. Continental Corp., 789 F.2d 1225
(6th Cir. 1986).

The very opinion which this Court is being asked to
review demonstrates the problems which appellate courts
are having in determining and applying a standard to
gauge an attorney’s conduct when a motion is filed under
28 USC § 1927. Indeed, the Sixth Circuit, in an apparent
effort to find a way to reverse the studied opinion and
order of the trial judge, has abandoned the precedent even
its own circuit had previously set and came up with a new
standard defined as:

Conduct on the part of the subject attorney that trial
judges, applying the collective wisdom of their experi-
ence on the bench, could agree falls short of the obli-
gations owed by a member of the bar to the court and
which, as a result, causes additional expenses to the
opposing party. (App. 13).

It is certainly time for this Honorable Court to speak
on an issue involving conflict, not only among the circuits,
but within a given circuit, on such an important subject as
motions for awards of attorney fees.

14

The standard of review is unclear and its application
to particular cases has been inconsistent and has produced
uneven, conflicting appellate decisions.

While the standard of review in the reported cases ap-
pears to be one of ‘‘abuse of discretion,’’ a problem arises
whenever the district court makes express findings and
conclusions in its attorney fee award as did Judge Bell in
the instant case. The question presented by this appeal,
because of the manner in which the Sixth Circuit largely
ignored the trial judge’s findings of fact and conclusions
of law, is whether a reviewing court may find that an abuse
of discretion has occurred without first making a deter-
mination that the underlying evidence makes the trial
court’s findings of fact and conclusions of law upon which
the attorney fee award is based clearly erroneous.

When the test is abuse of discretion, reversal should
be both difficult and rare, yet it appears that awards by
district court judges, which are becoming more frequent,
and which are made by the person in the best position to
judge the conduct of counsel, are being reversed on a very
regular basis by the reviewing courts. Further, the prece-
dent established by the opinion of the Sixth Cireuit herein
establishes a procedural framework which is cumbersome,
largely unnecessary and which will result in a prolifera-
tion of the very ‘‘satellite litigation’’ which the Sixth Cir-
cuit seeks to avoid. (App. 29).

Petitioner submits that if Judge Bell’s carefully con-
sidered, thirty-three page opinion awarding attorney fees
on the basis of numerous specific findings of misconduct
and bad faith on the part of plaintiff and counsel is sub-
ject to reversal as an abuse of discretion, then it is cer-

15
tainly time for this court to step in and clarify this entire
subject matter, both substantively and procedurally, for
the bench and bar.

£)~
Vv

CONCLUSION

For the foregoing reasons a writ of certiorari should
issue to review the judgment and opinion of the Court of
Appeals for the Sixth Circuit.

Respectfully submitted,

Cuaries L. RicHarps,
Counsel of Record

Ricuarps, AmMpBrosy & FREDERICKA
Suite 300, The First Place

159 East Market Street

Warren, Ohio 44481

(216) 373-1000

Counsel for Petitioners

Warren City School District Board
of Education, Robert L. Pegues, An-
thony Berarducci, Nicholas Angelo,
Bart Wilson and William Haas

App. 1
APPENDIX A

Nos. 85-3986/3987

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

In rE: ALan Mites Rusen,

Atiorney-Appellant, (85-3987)

On AppgaL from the
United States Dis-
trict Court for the
Northern District
of Ohio.

JEANNE RatuHeun,
Plaintiff-Appellant, (85-3986)
v.

Warren City Scuoots, Rosert L.
Prcues, CaTHERINE O. Swan,
Henry J. ANGELO, WiLLarp T.
Rusrn, RaymMonp J. TEsNeEr,

Mary Mituem, AntrHony R.
Berarpucci, Nicnouias J. ANGELO,
Bart Witson, WituiaM Haas,
Steve Hupock, and

Bernie WILson,

ee ee ee ee ee

Defendants-A ppellees.

Decided and Filed July 30, 1987

Before: WELLFORD and NORRIS, Circuit Judges;
and COHN, District Judge.*

*Honorable Avern Cohn, United States District Court for the
Eastern District of Michigan sitting by designation.

App. 2

COHN, District Judge. This appeal raises questions
about the propriety of sanctions against a plaintiff and one
of her attorneys arising out of a sex and national origin
discrimination case filed under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the rea-
sons that follow, we reverse the sanctions against plaintiff
and her attorney and taxation of costs against plaintiff,
and remand the case for further consideration by the dis-
trict judge.

I. STATEMENT OF THE CASE

Plaintiff, Jeanne Rathbun, is a naturalized citizen of
the United States of French origin. She worked as a jani-
tor at several school buildings in the Warren, Ohio public
school system from 1973 to the time she filed the under-
lying action in 1980, including East Junior High School
(‘‘East’’), Warren G. Harding High School (‘‘ Harding’’),
and Devon Elementary School (‘‘Devon’’). Throughout
this period, she alleged that she was denied overtime equal
to male janitors and was subjected to physical and verbal
abuse and disparate workloads. She claimed a retaliatory
transfer from East to Harding in September of 1974 and
a retaliatory transfer again in May of 1978 to Devon on
account of her complaints of discrimination.

Rathbun filed a charge with the Ohio Civil Rights
Commission (‘‘OCRC’’) in September of 1978, alleging
sex discrimination against ‘‘Warren City Schools’’ only!
and mentioning acts by Bart Wilson, a foreman of cus-
todians and janitors; William Haas, head custodian of the

1Defendant’s proper name appears to be Warren City School
District Board of Education.

App. 3

school system; and Steve Hudock, assistant head custodian
of the school system. Rathbun also filed a charge with the
Equal Employment Opportunity Commission (‘‘ EEOC’’)
in October of 1978, again alleging sex discrimination by
‘*Warren City Schools’? only. The EEOC charge likewise
mentioned Wilson, Haas, and, additionally Nicholas An-
gelo, athletic director and then supervisor of business op-
erations for the school system, but it did not mention Hud-
ock. (Rathbun did not complain in the EEOC charge about
her time at East Junior High, and there is only an oblique
reference to this period in the OCRC charge.)

In March of 1979, the OCRC found probable cause that
Rathbun’s allegations established a case of sex and na-
tional origin discrimination at each of the three buildings
she had worked at. The finding was accompanied by a
four-page summary of evidence based largely on inter-
views with Rathbun’s co-workers. The EEOC declined to
pursue Rathbun’s charge and issued a right-to-sue letter
in July of 1980. On the basis of the OCRC’s attempts at
conciliation, the Warren school board offered to allow
Rathbun to transfer to any one of twenty-two job sites,
including return to Harding. Rathbun refused to work
elsewhere, and she declined the jobs offered at Harding
in the belief that the jobs would be more strenuous than
her old job. In declining the conciliation offers, Rathbun
relied on the advice of her then attorneys—Shenyey, Ber-
man & Abakumov.

Shenyey, Berman & Abakumov filed this case on
October 16, 1980, within ninety days after Rathbun re-
eeived the EEOC’s right-to-sue letter. The individual de-
fendants named were: the superintendent of the Warren

App. 4

City School District at the time of suit (Robert Pegues) ;
the assistant superintendent at the time of suit (Anthony
Berarducci); the five members of Warren City School
District Board of Education (‘‘the school board defen-
dants’’) at the time of suit (Catherine Swan, Henry An-
gelo, Willard Rubin, Raymond Tesner, and Mary Mil-
heim), named in their ‘‘representative capacity’’; Nich-
olas Angelo; Bart Wilson; Haas; Hudock; and a fellow
janitor, Bernie Wilson.

Shenyey, Berman & Abakumov withdrew from the
case in 1981. Defendants do not dispute that the with-
drawal was unrelated to the merits of the case. Attorney
Elliott Lester substituted as Rathbun’s attorney and pur-
sued the case through trial. Because of Lester’s inexperi-
ence in Title VII cases, in January of 1982 he sought the
assistance of appellant Alan Miles Ruben, a law professor
from Cleveland Marshall College of Law. Ruben entered
his appearance as ‘‘additional counsel’’ and, according to
Lester, provided academic guidance only. The record re-
fleets, however, that Ruben’s role was actually more ex-
tensive. Lester also used a newly licensed associate, Keith
Weiner, on the case for a year beginning in September of
1982.

After Rathbun’s presentation of her case-in-chief over
four days of trial, the district judge granted defendants’
motion to dismiss on June 29, 1984. Fed. R. Civ. P. 41(b).
Findings of facts and conclusions of law? were filed July

2The district judge’s findings of fact and conclusions of law,
Fed. R. Civ. P. 52(a), total 11 pages. While he determined that
Rathbun’s case lacked factual and legal support, he did not
characterize her case as “frivolous” or intimate that it was in-
stituted or prosecuted in bad faith.

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MS TAS 8 Et OS

NE MIE PTE COE

App. 5

6, 1984; the order of dismissal was entered July 10, 1984.
Rathbun filed a notice of appeal on August 6, 1984; the
appeal was dismissed for want of prosecution on Septem-
ber 24, 1984. The mandate was filed with the district
court on October 19, 1984.

The school board defendants filed a motion for attor-
neys’ fees from Rathbun and her attorneys on various
legal grounds on October 30, 1984. The other defendants
filed a similar motion on January 9, 1985. The district
judge held a hearing on the motions on March 15, 1985,
at which Lester, Weiner, and defendants’ attorneys argued.
Ruben was present at the hearing; an attorney argued on
his behalf. Although briefs were filed on Rathbun’s be-
half in opposition to the motions,’ no one argued her posi-
tion at the March 15 hearing.

On October 22, 1985, the district judge entered an
order and opinion granting defendants’ motions. Weiner
was sanctioned $500 under I"ederal Rule of Civil Proce-
dure 11 for filing a motion not well grounded in fact; he
does not appeal. Lester was sanctioned $5,000; he also
does not appeal.* Ruben likewise was sanctioned $5,000.
While the district judge’s opinion does not clearly deline-
ate the legal grounds for sanctioning Ruben, his opinion
mentions Federal Rule of Civil Procedure 11, 28 U.S.C.
§ 1927, and a judge’s inherent power to punish bad faith

3While the opinion awarding attorneys’ fees states that no
briefs were filed on Rathbun’s behalf (Order at 2), the record
contradicts this statement (see R. 123, 124).

‘It appears from the record that Lester is no longer a mem-
ber of the Ohio bar.

Te

App. 6

conduct during litigation. See Roadway Express, Inc. v.
Piper, 447 U.S. 752, 765-67 (1980). The bulk of the sane-
tion—$36,159.21—fell on Rathbun. Again, while the dis-
trict judge did not clearly delineate the legal grounds for
sanctioning Rathbun, the opinion offers alternative
grounds. Like Ruben’s sanction, the first ground cited
for the sanction against Rathbun in the inherent power
to punish bad faith litigation. The second ground de-
scribed by the judge was that Rathbun’s case was ‘‘friv-
olous, unreasonable, or without foundation. .. .’’ Chris-
tiansburg Garment Co. v. EEOC, 484 U.S. 412, 421 (1978)
(interpreting § 706(k) of Title VII, 42 U.S.C. 2000e-5(k) ).
The district judge also taxed costs against Rathbun.

Il. TIMELINESS OF THE MOTIONS FOR
ATTORNEYS’ FEES

The school board defendants filed their motion almost
four months after the district judge’s findings of fact and
conclusions of law and almost three months after the no-
tice of appeal. The motion followed the dismissal of the
appeal by less than two weeks. The other defendants
filed their motion little more than two months later. There
is no local rule in the Northern District of Ohio limiting
the time period for the filing of a motion for attorneys’
fees. The parties agree that instead of a strict time meas-
ure, the test is one of ‘‘reasonableness.’’ They dispute the
proper milestone for measuring the period and whether
the motions here were filed within a ‘‘reasonable’’ time.

The district judge considered the timeliness issue in
granting the motions, relying primarily on White v. New
Hampshire Dep’t of Employment Sec., 455 U.S. 445 (1982).
There, the Supreme Court upheld an award of attorney’s

App. 7

fees under 42 U.S.C. 41988 where the motion for attor-
ney’s fees was filed four-and-one-half months after the
entry of final judgment. The Supreme Court held that the
entertainment of such a motion is within the discretion
of the district court, which should consider unfair sur-
prise or prejudice te the affected party and the policy of
avoiding piecemeal appeals, 445 U.S. at 454.

Ruben argues that the district judge lacked jurisdic-
tion to consider the attorneys’ fee motions after Rath-
bun’s appeal was dismissed, relying primarily on Overnite
Transp. Co. v. Chicago Indus. Tire Co., 697 F.2d 789 (7th
Cir. 1983). There, a motion for attorneys’ fees under 28
U.S.C. § 1927 filed eight months after dismissal and two
months after affirmance was held to be untimely. The
Overnite court did nct, however, overrule or limit two
earlier cases requiring the filing of such a motion only
within a ‘‘reasonable’’ time and, if there is an appeal on
the merits, before or during the pendency of the appeal.
Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577 (7th Cir. 1981) ;
Terket v. Lund, 623 F.2d 29 (7th Cir. 1980).

The district judge properly rejected Ruben’s reliance
on Overnite. Unlike the appeal in Overnite, the appeal here
was pending for only a brief time before it was dismissed
due to inaction by Rathbun and her attorneys. Cf. In re Itel
Sec, Litig., 791 F.2d 672 (9th Cir. 1986) (attorney cannot
destroy district court’s jurisdiction to impose sanctions by
withdrawing from case before appeal perfected or while
appeal pending), cert. denied sub nom. Bader v. Itel Corp.,
107 S. Ct. 880 (1987). The district judge noted that the
attorneys’ fee motions should not have surprised Rath-
bun and her attorneys in light of the course of the discov-
ery and trial proceedings. Finally, finding that the mo-

aa.

App. 8

tions here were timely filed does not result in piecemeal
appeals, since this is the only appeal perfected in this
case. We are not asked to reconstruct a case previously
reviewed in detail. There is no prejudice to Rathbun and
Ruben because the litigation is not being renewed after an
appeal on the merits that could have been consolidated
with the appeals of the sanctions. See Obin v. Dist. No. 9
of Intern. Ass’n of Machinists & Aerospace Workers, 651
F.2d 574, 583-84 (8th Cir. 1981). Ruben’s claimed fail-
ure to be apprised of the status of the appeal on the merits
must be disregarded as his failure to be aware of the
actions of Lester, his co-counsel. See Shea v. Donohoe
Constr. Co., Inc., 795 F.2d 1071, 1074 n.3 (D.C. Cir. 1986).

We also find support for holding the motions were
timely filed in Fulps v. City of Springfield, Tenn., 715
F.2d 1088 (6th Cir. 1983). Discussing both White and
Obin, there we allowed a party to seek attorneys’ fees
eight months after the entry of judgment by the district
court if the delay did not prejudice the opposing party,
thus requiring an equitable bar on the ground of laches.
Id. at 1095-96. While Ruben argues that he was preju-
diced, the delay here was shorter than that allowed in
Fulps, and Ruben does not show that he changed his posi-
tion or detrimentally relied upon the delay in the filing
of the motions.

Ruben also argues that White is inapplicable because
the only statutory basis for an award of attorneys’ fees
against him is section 1927, whereas section 1988 was the
relevant statute in White. We reject this argument. Ru-
ben should have known that defendants; as the prevailing
parties, could seek recovery of their attorneys’ fees under

-

et Mitts Chita

‘eeeeniiititesiimaaaalaiiaaa aii,

App. 9

42 U.S.C. § 2000e-5(k), the language of which parallels
section 1988 and therefore falls within the White rationale.
To require a defendant to seek attorneys’ fees from an
attorney immediately after judgment, but allow additional
time under White to seek recovery of attorneys’ fees from
a plaintiff, would only exacerbate the problem of piece-
meal appeals.

As the Supreme Court noted in White, 455 U.S. at 454
& n.l6 and 456 (Blackmun, J., concurring), the issue of
timeliness of a motion for attorneys’ fees can be avoided
by the adoption of a local rule establishing a timeliness
standard. We have previously encouraged the adoption
of such local rules. See Fulps, supra, 715 F.2d at 1096.
See Local Rule 17(n) of the Eastern District of Michigan.

Ill. STANDARDS FOR SANCTIONS
A. Standards for District Judges

The district judge recited four grounds in sanction-
ing plaintiff and her attorneys: (1) inherent power; (2)
28 U.S.C. § 1927; (3) Federal Rule of Civil Procedure 11;
and (4) 42 U.S.C. § 2000e-5(k). An elaborate discussion
‘of the standard for each of these grounds is not necessary.
A good discussion of the first three grounds appears in
Oliveri v. Thompson, 803 F.2d 1265, 1271-75 (2d Cir.
1986), cert. denied sub nom. County of Suffolk v. Graseck,
107 S. Ct. 1873 (1987). See generally Johnson & Cassady,
Frivolous Lawsuits and Defensive Responses to Them—

5To the extent we disagree with the Oliveri court’s “bad
faith’ requirement for sanctions under 28 U.S.C. § 1927, we
discuss below the standard for such determinations in_ this
circuit.

App. 10

What Relief is Available?, 36 Ala. L. Rev. 927 (1985);
Comment, Courts Are No Place for Fun and Frivolty: A
Warning to Vexatious Litigants and Over-Zealous Attor-
neys, 20 Williamette L. Rev. 441 (1984).

As the Oliveri court noted, the different grounds for
awarding sanctions and shifting attorneys’ fees are dis-
tinct and require a close and careful analysis. Although
the district judge mentioned the various grounds, it is
just not clear which of the various grounds was the basis
of the sanction against Rathbun and Ruben. We therefore
consider each of the grounds advanced by the district judge
and briefly set forth the differences between them.

1. ‘‘Bad Faith”’

A district judge has inherent equitable power to award
attorneys’ fees for ‘‘bad faith’’ or frivolous conduct of a
ease. See, e.g., Roadway Express, supra, 447 U.S. at 765-
67 (citing Browning Debenture Holders’ Committee v.
DASA Corp., 560 F.2d 1078, 1088 (2d Cir. 1977)). This
power extends to parties as well as attorneys. Oliveri,
supra, 803 F.2d at 1272; Jones v. Continental Corp., 789
F.2d 1225, 1229 (6th Cir. 1986). We have diseussed the
‘“‘bad faith’’ rule at length in Shimman v. International
Union of Operating Eng’rs, Local 18, 744 F.2d 1226, 1228-
30 & nn. 5, 6 (6th Cir. 1984) (collecting cases), cert. denied,
469 U.S. 1215 (1985).

There are only two aspects of the ‘‘bad faith’’ rule
implicated by the district judge’s opinion imposing sanc-
tions here—‘‘(1) bad faith occurring during the course of
the litigation; [and] (2) bad faith in bringing[the] action
or causing [the] action to be brought. ...’’ Shimman, 744

elie crit alae ait 4 -

App. 11

F.2d at 1230. The district judge did not clearly delineate
which of these two grounds supported the sanctions
against Rathbun and Ruben, respectively. As we note be-
low, however, the only plausible ground for a bad faith
finding under the circumstances of this case must be found
in the conduct of the litigation and not in bringing it.

2. 28 U.S.C. § 1927

Section 1927 of Title 28 provides for an award of
attorneys’ fees where an attorney ‘‘multiplies the proeeed-
ings in any case unreasonably and vexatiously....’’ As
explained in the legislative history of the 1980 amend-
ment to section 1927, the section is designed as a sanction
against dilatory litigation practices and is intended to re-
quire an attorney to satisfy personally the excess costs
attributable to his misconduct. See H.R. Rep. No. 1234,
96th Cong., 2d Sess. 8, reprinted in 1980 U.S. Code Cong.
& Ad. News 2781, 2782. See generally Annotation, What
Conduct Constitutes Multiplying Proceedings Unreason-
ably and Vexatiously so as to Warrant Imposition of Li-
ability on Counsel Under 28 USCS § 1927 for Excess Costs,
Expenses, and Attorney Fees, 81 A.L.R. Fed. 36 (1987).

In United States v. Ross, 535 F.2d 346 (6th Cir. 1976),
we initially defined ‘‘unreasonably and vexatiously’’ to
mean ‘‘an intentional departure from proper conduct, or,
at a minimum, ...a reckless disregard of the duty owed
by counsel to the court,’’ Jd. at 349. We stated in Ross
that unintended, inadvertent, and negligent acts will not
support an award under section 1927, id. at 349-50, even if
significant costs are incurred by the court and opposing
parties as a result thereof. As explained in Colucci v.

App. 12

New York Times Co., 533 F. Supp. 1011, 1013-14 (S.D.N.Y.
1982), care must be taken in assessing attorneys’ fees un-
der section 1927 lest attorneys be deterred from their duty
to ‘‘represent [a] client zealously. ... Model Code of Pro-
fessional Responsibility EC 7-1 (1980).

More recently, we have noted a relaxed standard ap-
plicable to section 1927 determinations. In In Re: Jaques,
761 F.2d 302 (6th Cir. 1985), cert. denied, 106 S. Ct. 1259
(1986), the majority opinion suggested that intent is no
longer relevant to such determinations, id. at 306, although
a majority of the panel could not agree on this rule. How-
ever, a similar concept was explicated in Jones, supra, as
follows:

28 U.S.C. § 1927 authorizes a court to assess fees
against an attorney for ‘‘unreasonable and vexatious’’
multiplication of litigation despite the absence of any
conscious impropriety. An attorney’s ethical obliga-
tion of zealous advocacy on behalf of his or her client
does not amount to carte blanche to burden the fed-
eral courts by pursuing claims that are frivolous on
the merits, or by pursuing nonfrivolous claims through
the use of multiplicative litigation tactics that are
harassing, dilatory, or otherwise ‘‘unreasonable and
vexatious.’’ Accordingly, at least when an attorney
knows or reasonably should know that a claim pur-
sued is frivolous, or that his or her litigation tactics
will needlessly obstruct the litigation of nonfrivolous
claims, a trial court does not err by assessing fees
attributable to such actions against the attorney.

789 F.2d at 1230 (emphasis added). Jones makes clear that
the standard for section 1927 determinations in this cir-
cuit is an objective one, entirely different from determina-
tions under the bad faith rule. See Haynie v. Ross Gear

App. 13

Div. of TRW, Inc., 799 F.2d 237, 243 (6th Cir. 1986), cert.
dismissed, 107 8. Ct. 2475 (1987).

Nevertheless, we do not read these subsequent cases
as overruling the thrust of Ross, to wit, that simple inad-
vertence or negligence that frustrates the trial judge will
not support a sanction under section 1927. There must be
some conduct on the part of the subject attorney that trial
judges, applying the collective wisdom of their experience
on the bench, could agree falls short of the obligations
owed by a member of the bar to the court and which, as a
result, causes additional expense to the opposing party.
While this ideal may be difficult to implement, judges
faced with motions under section 1927 should be mindful
that their individual perturbations will not alone justify
a sanction.

As we discuss below, section 1927 may support a sanc-
tion against Ruben for discrete acts of misconduct.

3. Federal Rule of Civil Procedure 11

Rule 11 was the basis of the unappealed sanction
against Weiner and was again mentioned by the district
judge in sanctioning Ruben. Rule 11, however, does not
support the sanctions imposed in this case. Rule 11 is con-
cerned with the signing of frivolous pleadings and other
papers. Oliveri, supra, 803 F.2d at 1274. Because Ruben
did not sign any of the pleadings or papers filed in the
district court, Rule 11 simply cannot support the sanction
against him. Although the language of Rule 11 also allows
a sanction against a party, the district judge did not rely
upon it in assessing the sanction against Rathbun.

App. 14

4. 42 U.S.C. § 2000e-5(k)

In Christiansburg, supra, the Supreme Court described
the test for awarding attorney’s fees under 42 U.S.C.
§ 2000e-5(k) to a prevailing defendant in a Title VII case.
The Supreme Court stated: ‘‘In sum, a district court may
in its discretion award attorney’s fees to a prevailing de-
fendant in a Title VII case upon a finding that the plain-
tiff’s action was frivolous, unreasonable, or without foun-
dation, even though not brought in subjective bad faith.’’
434 U.S. at 421. As will be described, we conclude that this
standard does not support an award of attorneys’ fees_
against Rathbun.

Bb. Standard of Review

The standard for our review is whether the district
judge abused his discretion in awarding attorneys’ fees.
E.g. Jones, supra, 789 F.2d at 1227, 1233; Smith v. Smythe-
Cramer Co., 754 F.2d 180, 185 (6th Cir.), cert. denied, 473
U.S. 906 (1985) ; Tarter v. Raybuck, 742 F.2d 977, 986 (6th
Cir. 1984), cert. denied, 470 U.S. 1051 (1985). We must
review the record to determine whether it will support the
district judge’s factual findings. See Jones, 789 F.2d at
1230-31; Smith, 754 F.2d at 185; Tarter, 742 F.2d at 986.

Rathbun accepts the ‘‘abuse of discretion’’ standard.
On the other hand, Ruben conclusorily argues for a de novo
review of the district judge’s conclusion, relying on Zaldi-
var v. City of Los Angeles, 780 F.2d 823, 828 (9th Cir.
1986). Zaldivar was a Rule 11 ease, which, as we have
noted, does not apply to Ruben. Further, the Zaldivar
court itself noted in a subsequent case that the standard
for review of sanctions premised on bad faith and frivol-

App. 15

ousness is ‘‘abuse of discretion.’’ Mitchell v. Office of
Los Angeles County Sup’t of Schools, 805 F.2d 844, 846
(9th Cir. 1986) (citing Jones v. Giles, 741 F.2d 245, 250
(9th Cir. 1984)).

IV. THE SANCTION AGAINST RATHBUN
A. Attorneys’ Fees

The imposition of attorneys’ fees against Rathbun
must be reversed if only because she never had an ade-
quate opportunity for a hearing on the record. Roadway
Express, supra, 447 U.S. at 767. While briefs were filed
on Rathbun’s behalf, she was clearly abandoned by her
attorneys at the hearing itself. This points out an inherent
problem in a sanction hearing addressed to both a plaintiff
and her attorneys, where the plaintiff and attorneys are
not separately represented. See Michigan Nat’l Bank v.
Kroger Co., 619 F. Supp. 1149, 1162 (E.D. Mich. 1985). In
this case, although Rathbun’s attorneys advanced no argu-
ments for her at the hearing, at least their positions were
essentially similar, to wit, that the litigation was factually
justified. The attorneys did not attempt to blame plain-
tiff; instead, Lester graciously tried to accept all respon-
sibility for any problems with the case. Thus, while we
express no opinion on the exact circumstances in which a
party should be represented separately from her attorneys
upon the consideration of sanctions, we nevertheless note
that this a problem to which district judges should be alert.

1. Bad Faith

Even if Rathbun had been represented at the sanction
hearing, she simply cannot be sanctioned under the cireum

App. 16

stances here for bad faith either in the filing of the case
or its prosecution.

a._ Institution of the Action

Rathbun testified at trial about the use of derogatory
language toward her based on her sex and national origin
that she made known to her superiors and the school board.
She described two attacks on her, one sexual. There was
various testimony that Rathbun’s superiors considered cer-
tain work that she was capable of doing ‘‘man’s work.”’
There was evidence that went toward the issue of retalia-
tory transfer, even if it was legally insufficient. While
Rathbun’s attorneys did not do a good job of presenting
testimony from witnesses favorable to her, neither did the
basis for her case rest entirely on her own testimony.

The school board defendants concede that the OCRU's
finding of probable cause is some evidence justifying Rath-
bun’s case, but they argue that the findings should be given
little weight. See Bowers v. Kraft Foods Corp., 606 F.2d
816, 818 (Sth Cir. 1979). The district judge’s sanction
opinion did not even consider the fact that the OCRC had
issued a probable cause finding against the school board
that implicated some of the non-school board defendants.*

*As to the school board defendants, the initial complaint
as well as the amended complaints clearly established (contran
to the district judge’s statements) that they were joined only
in their representative capacity. Thus, it is not clear why they
thought it necessary to retain separate counsel. The papers
in the appendix are ambiguous on this point. The record re-
flects that Rathbun moved to default the individual board mem-
bers in January of 1983. This could not have been the motivat-

(Continued on jo'lowing page)

ee Ae ED

App. 17

The probable cause finding of the OCRC, though not dis-
positive, lends support for Rathbun’s belief that she had
a legal claim-of discrimination and did not pursue her ac-
tion in bad faith. See Mitchell, supra, 805 F.2d at 847 (re-
versing an award of attorneys’ fees to defendants on
grounds of bad faith and frivolousness following Rule
41(b) dismissal of Title VII action where EEOC had issued
probable cause determination); Badillo v. Central Sieel
& Wire Co., 717 F.2d 1160, 1165 (7th Cir. 1983) (upholding
denial of an award of attorneys’ fees to prevailing de-
fendant in Title VII case where plaintiff put misplaced
reliance on EEOU probable cause determination) ; see also
Bowers, supra (reversing an award of attorneys’ fees to
defendants on grounds of frivolousness where EEOC had
issued right-to-sue letter).

Rathbun was not completely unjustified in believing
she was the subject of discrimination and a sexually harass-
ing and abusive work environment. There is no evidence
that Rathbun knew that the individual school board mem-
bers (even assuming she did sue them in their individual
capacity) could not be held liable for acts of discrimination,
whether she informed them of the acts or not. See Jones,
supra (abuse of discretion to award attorneys’ fees under

(Continued from previous page)

ing factor behind their retaining separate counsel, however,
since they had already retained separate counsel by September
of 1982, when the record suggests they were at risk only in
their representative capacity. A motion could have resolved
this ambiguity and, perhaps, avoided the need for two attor-
neys to represent defendants throughout this lengthy litiga-
tion. While there may, at times, be reasons why defendants
do not make dispositive motions, see Kroger, supra, 619 F. Supp.
at 1154, we can conceive of no legitimate reason why this par-
ticular issue was not addressed forthrightly early in the case.

App. 18

section 1988 or inherent power in race discrimination case
in which employee failed to communicate alleged mistreat-
ment to employer and joined individual defendants as
‘‘agents’’ of employer); cf. Turner, supra, 742 F.2d at
987.88 (abuse of discretion to award attorneys’ fees under
section 1988 where only parts of plaintiff’s case without
merit). Combining the OCRC finding with Rathbun’s
testimony and her attorneys’ advice, it was clearly erro-
neous to find that Rathbun brought her discrimination
claim in bad faith. See Haynie, supra, 799 F.2d at 242.

b. Conduct of the Litigation

As for possible bad faith by Rathbun in the conduct of
the litigation, there is simply no evidence in the record
suggesting that she acted in bad faith or contributed in
any way to the manner in which this case was handled. If
there was any fault in this regard, it lay with the attorneys
and she should not be penalized for their misdeeds, if any.
Cf. Shea, supra (sins of attorneys should not be visited
upon plaintiff where attendant costs to defendants can be
remedied by assessing defendants’ attorneys’ fees against
Plaintiff’s attorneys, especially where judge has not pre-
viously warned plaintiff of derelictions of her attorneys) ;
Carter v. City of Memphis, Tenn., 636 F.2d 159 (6th Cir.
1980) (per curiam) (expressing same concept).

2. Frivolousness Under Christiansburg

The individual school board members point out that, as
to them, there was no probable cause finding. Less weight
may be given to Rathbun’s reliance on an administrative
finding of probable cause since she included in her action

App. 19

claims against defendants not considered by the OCRC.
See Badtllo, 717 F.2d at 1164.

The Supreme Court in Christiansburg illuminated the
standard it announced with the following pertinent lan-
guage:

In applying these criteria, it is important that a dis-
trict court resist the understandable temptation to
engage in post hoc reasoning by concluding that, be-
cause a plaintiff did not ultimately prevail, his action
must have been unreasonable or without foundation.
This kind of hindsight logic could discourage all but
the most airtight claims, for seldom can a a prospec-
tive plaintiff be sure of ultimate success. No mat-
ter how honest one’s belief that he has been the victim
of discrimination, no matter how meritorious one’s
claim may appear at the outset, the course of litiga-
tion is rarely predictable. Decisive facts may not
emerge until discovery or trial. The law may change
or clarify in the midst of litigation. Even when the
law or the facts appear questionable or unfavorable
at the outset, a party may have an entirely reasonable
ground for bringing suit.

434 U.S. at 421-22.

As discussed above, here there is no evidence that
Rathbun was aware that the individual school board mem-
bers—again, assuming she sued them in their individual
capacity, an assumption on which the district judge pro-
ceeded—could not be held legally responsible for conduct
of her fellow employees. She had some foundation for be-
lieving that she had been discriminated against either on
the basis of her sex or French origin. Combined with the
advice of her original attorneys that she had a claim against
the individual school board members and the subsequent
encouragement by an attorney and law professor to pur-

App. 20

sue these claims further, Rathbun certainly had a sufficient
basis for continuing her claims against the individual de-
fendants. See Badillo, supra, 717 F.2d at 1165; see also
Smith, supra. 754 F.2d at 185 (abuse of discretion to im-
pose sanction under section 1988 in race discrimination
case where couple had some reason to believe they had
been diseriminated-against in housing). The adding of
some meritless claims does not make the whole case frivo-
‘ous. See Haynie, supra, 799 F.2d at 242; Tarter, supra,
742 F.2d at 987-88; Badillo, 717 F.2d at 1164. Under the
circumstances, a sanction against Rathbun under the Chris-
tiansburg standard was improper.

B. Costs

While the district judge had discretion not to tax costs
against Rathbun, his doing so was not clearly an abuse of
discretion since Rathbun’s case lacked merit. See Jones,
supra, 789 F.2d at 1233. However, under the cireum-
stances, the issue of costs must be remanded for a deter-
mination of whether Rathbun is capable of paying the
rather sizeable costs claimed by defendants (over $3,000).
See Badilla, supra, 717 F.2d at 1165. For example, in Hill
v. BASF Wyandotte Corp., 547 F.Supp. 348, 355-56 (E.D.
Mich. 1982), the trial judge awarded $3,000 in attorney
fees in an employment discrimination case, but there was
evidence in that case showing plaintiff’s income to be
$24,610. See also Piljan v. Michigan Dep’t of Social Serv-
ices, 585 F.Supp. 1579, 1583 (E.D. Mich. 1984) (awarding
$3,000 in attorney fees as appropriate to deter frivolous
Title VII claims). Ordinarily, while an assessment of
costs will not be reversed on the basis of indigency, district
judges are encouraged to consider the question of indigency

App. 21

fully for the record. Jones, id. Although Rathbun raises
the indigency issue for the first time on this appeal, be-
cause of the manner in which she was denied the opportu-
nity to present her position at the hearing before the dis-
trict judge, he should consider her indigency claim on re-
mand. See Haynie, supra, 799 F.2d at 243 (remanding
for indigency determination as to fees and costs).

V. THE SANCTION AGAINST RUBEN

Since Rathbun’s case was instituted and prosecuted by
several attorneys before Ruben entered an appearance, he
cainot be sanctioned for ‘‘bad faith in bringing an action
or causing an action to be brought.’’ Shimman, supra.

The probable cause finding of the OCRC also precludes
a finding that Ruben entered the action in bad faith. While
the district judge ultimately discredited Rathbun’s testi-
mony, this alone is not a sufficient basis for sanctioning
her attorneys on grounds of bad faith where no evidence
clearly contradicted their client’s statements at the time
the attorney undertook representation. See Oliveri, supra,

803 F.2d at 1277-78. To the contrary, Rathbun’s state- . ~

ments were corroborated by the OCRC’s finding that other
evidence supported a discrimination action. Ruben, like
Rathbun, was justified in relying on this fact.

The real issue is whether Ruben continued to pursue
the case in bad faith after some discrete moment in its
history. See Christiansburg, 434 U.S. at 422. A deter-
mination of whether the sanction against Ruben was ap-
propriate depends, then, on the paper trail in the district
court and the extent of Ruben’s involvement in the alleged
misconduct of Rathbun’s attorneys. See Shimman, supra.

App. 22
A. Bad Faith in Continuing the Case Against the
Individual. Defendants

Soon after the case was filed, all defendants except
Haas, Hudock and Bernie Wilson’ moved to dismiss for
lack of subject matter jurisdiction on the ground that the
complaint indicated on its face that Rathbun filed her ac-
tion one day after the statutory ninety-day period. Rathbun
subsequently amended the complaint twice, establishing
that she filed within ninety days of receipt of the right-to-
sue letter. ‘ihe school board members later moved for
summary judgment on the ground that they were not ‘‘em-
ployers’’ under Title VII and that the district court lacked
jurisdiction over them because Rathbun failed to name
them in the EEOC charge. These motions were denied in
January of 1983. Bernie Wilson was subsequently dis-
missed because of his death. Defendants Pegues, Berar-
ducci, and Nicholas Angelo also moved for summary judg-
ment on the ground that they were not named in the EEOC
charge. Pegues and Berarducci were granted summary
judgment on this ground in June of 1984, twenty days be-
fore trial. Nicholas Angelo was mentioned in the HKEOC
charge and, thus, was not granted summary judgment.

Ruben argues that denial of the above motions pre-
eluded the district judge from later imposing a sanction,
since the denials gave him reason to believe that the case
had merit. See Jones, supra, 789 F.2d at 1231 n.4 (sug-
gesting sanction precluded where district court failed to
grant individual employees’ motion to dismiss on legal

71The record does not reflect any participation in the liti-
gation by these three defendants until after Rathbun moved
in January of 1983 for a default judgment against them. Their
subsequent motions to file answers were granted ———

App. 23

grounds). ‘The school board members, however, continue
to argue on appeal that there was no legal justification
for naming them as defendants. They argue that under
Ohio law they were not Rathbun’s ‘‘employers’’ so as to
create liability under Title VII. They also reassert that
they were not named in the EEOC charge.

The denial of the motions for summary judgment pre-
cludes a sanction on the ground that the claims against
them were legally insufficient. Where a complaint con-
tains ‘‘glaring legal deficiencies,’’ the deficiencies and
any ambiguities can be so easily resolved by motion that
it is not unduly burdensome to defend. See Jones, supra,
789 F.2d at 1231-32. A sanction is generally improper
where a successful motion could have avoided any addi-
tional legal expenses by defendants. Oliveri, supra, 803
F.2d at 1280; Obin, supra, 651 F.2d at 588 & n.15; Brown-
ing, supra, 560 F.2d at 1088. Such motions were filed and
denied. To the extent defendants now argue Rathbun
included legally groundless claims of mental anguish, emo-—
tional distress, and medical treatment, their failure to
promptly file a motion to dismiss these prayers for relief

8This appeal does not address the correctness of the de-
nial of defendants’ motions, but only the imposition of the
sanctions. (Three district judges presided over this case at
various times. The bulk of the dispositive motions mentioned
above were perfunctorily decided on two days in late January
of 1983 by the second judge involved with the case, before the
case was reassigned to the judge who presided over the trial
and fee motions that are the subject of this appeal.) Thus, we
must accept as correct the district court’s refusal to dismiss most
of the defendants on /Jegal grounds. While Pegues and Berar-
ducci were dismissed on legal grounds, the district judge’s sanc-
tion opinion does not differentiate them from Rathbun’s joining
other individual defendants whose motions were denied.

App. 24

precludes a determination that Ruben acted in bad faith
in joining the prosecution of the complaint as a whole.

Since none of the above motions was predicated on the
underlying facts, the denial of the motions did not preclude
the district judge from imposing sanctions if the case was
factually frivolous. The order imposing sanctions makes it
clear, in fact, that it was not the legal insufficiency of the
complaint that led to the sanctions but the lack of factual
support for the case. We have, however, already rejected
a factual predicate for sanctioning Ruben.

B. Bad Faith Misconduct in the Course of the Litigation

The only possible rationale for finding ‘‘bad faith’’ by
Ruben lies in his conduct during the course of the litigation.
The record shows that Ruben’s involvement was more sig-
nificant than he admits. Ruben revised a brief in opposi-
tion to a motion, and he attended a pretrial conference, a
discovery meeting, Rathbun’s deposition (the only one
taken), and the opening day of trial. Although Ruben
claims he served without compensation, in a telephone call
to one of defendants’ lawyers it was represented that Rath-
bun had retained Ruben at a rate of $150 an hour. Ruben
wrote a letter to defendants’ attorneys asking he be served
with copies of all pleadings, although it appears that, with
one exception, none was sent him. This involvement was
not insignificant, especially considering the apparently
minimal preparation put forth by Lester. We find rea-
sonable the district judge’s conclusion that, given the dif-
fering levels of experience between Lester and Ruben,
Ruben played an influential role in the case.

App. 25

In March of 1982, Lester sent to James Ries, the assist-
ant city law director originally defending the case, a letter
threatening a burdensome deposition schedule if defen-
dants did not settle. The offer was refused, yet no one
was deposed. (In fact, other than some interrogatories,
Rathbun’s attorneys conducted no discovery.) The dis-
trict judge relied on this fact in levying the sanctions?
Ruben relies on Lester’s assertion at the sanction hearing
that Ries encouraged him (Lester) to file a settlement offer
that compared the expected costs of litigation if the case
went to trial. Ruben also argues that he was not involved
in the sending of the threatening letter and that, in any
case, there is no showing it in any way multiplied the pro-
ceedings or prejudiced defendants.

A second event also figuring prominently in the dis-
trict judge’s imposition of sanctions was a motion filed by
Weiner on Lester’s behalf to disqualify defendants’ attor-
neys on the mistaken grounds of conflict of interest.!° A
discrete sanction had already been levied against Weiner
for the filing of the motion. Ruben argues that the motion
was filed in a good faith mistaken belief of the facts. Sec-
ond, he argues that, although the motion itself was not
withdrawn, the motion was promptly ‘‘rectified’’ by Rath-
bun’s reply brief on the motion, which removed the name
of one of defendant’s attorneys. Third, Ruben argues that

*Combined with other “bad faith” tactics, a threat of nu-
merous depositions may be the basis of a bad faith award against
an attorney. See Browning, supra, 560 F.2d at 1089.

A groundless motion to disqualify opposing counsel may
support a sanction under 28 U.S.C. § 1927. See Wold v. Min-
erals Eng’g Co., 575 F.Supp. 166 (D.Colo. 1983).

App. 26

there was, in fact, a conflict. This last argument is con-
tradicted by Weiner’s concession at the sanction hearing
that there was no factual foundation for the motion.
Fourth, despite evidence that Ruben participated in the
filing of the motion, he argues that his input was minimal!
and strictly academic.

Many, if not most, of the problems that arose in the
case are attributable to inadequate pretrial conduct by
Rathbun’s attorneys. Discovery by Rathbun was almost
nil. Lester and Ruben failed to file a trial brief and list
of exhibits and witnesses before trial.!' On the first day
of trial, they were granted leave to file their papers the
following day, which they did. The district judge recited
these facts as evidence of bad faith and the cause of addi-
tional expense to defendants, although he did not state
specifically what effect the delay had on defendants.
Ruben argues that there was no prejudice to defendants in
the one-day delay in filing the trial materials.’* In seeking

Proceeding to trial upon inadequate evidence may lead
to a sanction under 28 U.S.C. § 1927. See Lewis v. Brown &
Root, Inc., 722 F.2d 209 (5th Cir.), cert. denied, 467 U.S. 1231
(1984).. However, while an attorney may be sanctioned for not
acquiring facts necessary to rebut his good faith belief that
the case warranted prosecution, inadequate pretrial prepara-
tion by itself (contrary to the district judge’s suggestion) cannot
justify a conclusion that Ruben pursued the case in bad faith.
See Fisher v. Fashion Institute of Technology, 491 F.Supp. 879,
890 (S.D.N.Y. 1980).

12As an attorney of record, Ruben could be held account-
able for failure to take discovery or comply with pretrial orders.
See Jones, supra, 789 F.2d at 1232; Lipsig v. National Student
Mktg. Corp., 663 F.2d 178 (D.C. Cir.1980). However, we think
that the district judge’s willingness to accept the trial materials
one day later, without imposing a sanction at the time, pre-

(Continued on following page)

App. 27

to uphold the sanctions, defendants also point out that
Lester and Ruben were late the first day of trial and failed
to have enough witnesses present on the third day of trial
to oceupy the day. Ruben also failed to appear at trial
after the first day. The district judge recited this as fur-
ther evidence of his unprofessionalism." Ruben argues
in response that he did not appear after the first day —be-
cause his role was ancillary and there was no need for him
to be there.

As we have noted, the basis for the district judge’s
sanction against Ruben is not clearly delineated. The
district judge apparently sanctioned Ruben under his in-
herent powers, rather than 28 U.S.C. § 1927, because he
considered the cumulative nature of the facts to constitute
gross unprofessional conduct for an attorney of record.

(Continued from previous page)

cluded him from later sanctioning Ruben for this delinquency.
Cf. Potlatch v. United States, 679 F.2d 153 (9th Cir. 1982) (dis-
trict court abused discretion in exciuding documentary and wit-
ness evidence because of late filing, where party complied as
well as possible, no intent not to comply with court’s deadline,
no prejudice to opposing party, and court expressed willingness
to generally extend discovery deadlines and accept late filing
if certain condition satisfied); Vac-Air, Inc. v. John Mohr & Sons,
Inc., 471 F.2d 231 (7th Cir. 1973) (while not condoning attor-
ney’s failures, including failure to timely answer interrogatories
court reversed sanction of default where interrogatories were
answered shortly after due and attorney had already paid fine
for conduct that was partial basis for default).

While failure to appear for trial may, in a proper case, re-
sult in a sanction under 28 U.S.C. § 1927, see In Re: Jacques,
supra; see also Coston v. Detroit Edison Co., 789 F.2d 377 (6th
Cir. 1986), non-appearance for a court proceeding does not
appear to be punishable where co-counsel is present in lieu
of the subject attorney. See United States v. Delahanty, 488
F.2d 396, 399-400 (6th Cir. 1973).

App. 28

Ruben argues that because he did not control the litiga-
tion, it was improper to sanction him.’ While Ruben’s
ancillary role could not entirely protect him, it would per-
haps have been better for the district judge to advise him
to either withdraw from the case or take uver its manage-
ment when it first became apparent that the case had
severe problems.

That portion of the sanction attributable to Ruben’s
alleged misconduct must be reconsidered by the district
judge with more exacting scrutiny. A district judge should
not await the aggregation of what he considers multiple
acts of misconduct and then levy an aggregated sanction
without at least warning the attorneys at the time of each
act or reserving decision upon timely requests by opposing
counsel. Discrete acts of vexatious conduct should be
identified and a determination made whether they were
done in bad faith or, even if bad faith was not present,
whether they multiplied the proceedings pursuant to 28
U.S.C. § 1927. Because the district judge did not analyze
the impact upon defendants of discrete acts of claimed
misconduct, remand is necessary to allow the district judge
to make such a determination. As the Court of Appeals
for the Second Circuit noted in Browning, supra:

[Ijn an action not itself brought in bad faith, an
award of attorneys’ fees [against a plaintiff’s attor-
ney] should be limited to those expenses reasonably
incurred to meet the other party’s groundiess, bad
faith procedural moves. No attempt was made below
to relate claimed expenses, costs, and fees to particu-
lar bad faith maneuvers. See In re Boston & Provi-

14See@ Conley v. KFC Corp., 622 F.Supp. 767 (W.D.Ky. 1985).

App. 29

dence R.R. Corp., 501 F.2d 545, 550 (1st Cir. 1974).
Accordingly, we remand for more specific findings as
to those procedural motions or other actions, under-
taken in bad faith, without justification or fer an im-
proper purpose, such as harassment or delay, and as
to the expenses, costs, and attorneys’ fees reasonably
incurred by the opposing party or parties in meeting
such improper motions, actions, or delays.

560 F.2d at 1089.

The extent to which Ruben’s misfeasance, if any,
caused defendants to incur additional expenses should be
explored on remand.'’ While we endorse the view that
sanction proceedings should not be allowed to bloom into
protracted satellite litigation, see Westmoreland v. CBS,
Inc., 770 F.2d 1168, 1179 (D.C. Cir. 1985) ; Advisory Com-
mittee Notes to 1983 Amendment to Rule 11, 97 F.R.D.
198, 201 (1983), a district judge faced with a sanction mo-
tion must make certain findings in determining that an
award is appropriate. Careful analysis and discrete find-
ings are required, no matter how exasperating the case.
The grounds for sanctions explored here are designed to
improve the litigation process, but improvement cannot
come at the expense of vigorous advocacy. District courts
must strike a delicate balance between protecting the ad-

Ruben argues that the district judge improperly sanctioned
him the same amount as Lester—for every alleged act of mis-
conduct from the inception of Rathbun’s case—even though
he (Ruben) did not join the litigation until much later. Ruben
also argues that he never received an affidavit of hours from
one of defendants’ attorneys. We need not address these
claims since, on remand, both defense attorneys will be re-
quired to file affidavits setting forth with specificity the time
— incurred defending against claimed vexatious acts by Ruben
only.

App. 30

versary system and not allowing attorneys to exploit the
system for their own purposes.

For the foregoing reasons, we REVERSE the sanc-
tions as to Rathbun and REMAND for proceedings not in-
consistent with this opinion as to Rathbun’s liability for
defendants’ costs and Ruben’s liability under the district
judge’s inherent power of 28 U.S.C. 41927. On remand,
we contemplate that the district judge will require defen-
dants’ attorneys to amend their motions to identify the
claimed misconduct by Ruben and the extra efforts re-
quired by them as a result. The district judge can then
proceed to consider their motions anew.

App. 31
APPENDIX B

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JEANNE RATHBUN ) CASE NO.
) C80-1914-Y
Plaintiff )
) JUDGE
Vv ) SAM H. BELL
)
CITY OF WARREN BOARD ) ORDER
OF EDUCATION, et al. )
) (Filed October
Defendant ) 22, 1985)

On October 16, 1980, the plaintiff Jeanne Rathbun filed
the above-entitled action against her employer, the War-
ren City School District Board of Education. Also named
as defendants were several members of the board of edu-
cation and various employees of the school system all of
whom were named in their individual capacity. On June
26, 1984, a four day trial to the court commenced, and
at the conclusion of the plaintiff’s evidence, the court
granted all of the defendants’ motions for dismissal pur-
suant to Rule 41(b) of the Federal Rules of Civil Proce-
dure. Thereafter, on July 6, 1984, the court issued formal
Findings of Fact and Conclusions of Law in accordance
with Rule 52(a) of the Federal Rules of Civil Procedure.
An appeal of this judgment was timely filed by the plain-
tiff. On September 24, 1984, the Sixth Cireuit Court of
Appeals dismissed the appeal for want of prosecution un-
der Rule 18(d) of the Rules of the Sixth Circuit.

App. 32

Presently before the court are two motions for an
award of attorney fees. The first was filed by Craig Lei-
ster, counsel for the individual board members, and the
second by Charles Richards, counsel for the Warren Board
of Education and the employees of the school system. All
of the defendar.ts are seeking an award of fees from the
plaintiff, and from three of the attorneys who represented
her throughout these proceedings, Elliot Lester, Alan
Miles Ruben and Keith Weiner. Mr. Lester and Mr.
Weiner are attorneys presently engaged in the private
practice of law, while Mr. Ruben is a professor at the
Cleveland Marshall College of Law at Cleveland State
University. Mr. Ruben’s participation in the action, how-
ever, was in his capacity as a private attorney and not as
a representative of the College of Law or Cleveland State
University. All three men are admitted to the bar of the
United States District Court for the Northern District of
Ohio and are currently in good standing in that court.

On March 15, 1985, the court conducted a hearing on
the defendants’ motions for an award of attorney fees. At
that hearing Mr. Ruben was represented by counsel while
Mr. Weiner and Mr. Lester appeared on their own behalf.
Presumably, all three men were continuing to represent the
plaintiff since they have not withdrawn from representing
her nor have they requested leave to do so. Singularly,
it should be noted that no argument or briefs were ad-
vanced on Mrs. Rathbun’s behalf by any of the attorneys.
Instead, each of them advanced positions on behalf of
themselves. After considering the record and the argu-
ments by counsel, the court hereby grants the motions for
attorney fees and enters its findings as follows.

ee eee ot

App. 33

I

The first issue to be addressed involves the jurisdic-
tion of this court to determine an award of attorney fees
at this stage of the proceedings. The defendants contend
that they are entitled to an award of fees against both the
plaintiff and her counsel under Title VII of the Civil
Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq.
(hereinafter Title VII). Specifically, they claim that fees
should be awarded against plaintiff’s counsel pursuant to
the sanction provisions in Rule 11 of the Federal Rules of
Civil Procedure, and through similar sanctions available
under 18 U.S.C. §¢ 1927. In addition, the defendants assert
that jurisdiction for awarding fees against plaintiff’s
counsel is available by reason of the inherent power of a
district court to sanction an attorney in a proper case.

Mr. Ruben and Mr. Weiner have argued that this
court lacks subject matter jurisdiction over the attorney
fee issue, inasmuch as the Sixth Circuit Court of Appeals
had already dismissed the appeal for want of prosecution
at the time the defendants filed their motions for attorney
fees. It is counsel’s position that once the court of ap-
peals dismissed the appeal, this court lost all jurisdiction
over the awarding of fees. In support of their jurisdic-
tion contention, plaintiff’s counsel rely upon the decision
of the Seventh Cireuit Court of Appeals in Overnite
Transp. Co. v. Chicago Indust. Tire Co., 697 F.2d 789 (7th
Cir. 1983). The Seventh Circuit found that a district court
did not have subject matter jurisdiction over a motion to
award attorney fees under 28 U.S.C. § 1927, which was filed
after the underlying action had been affirmed on appeal.
In Overnite, the defendants’ motion for attorney fees was

App. 34

filed eight months after the original dismissal of the ac-
tion by the trial court and nineteen days after the mandate
was returned to the district court by the court of appeals
which affirmed the judgment.

In holding that the filing of a motion for attorney
fees after the underlying action was affirmed on appeal
was unreasonable and outside of the district court’s juris-
diction, the Overnite court found as follows:

Moreover, if there has been no appeal of the
court’s decision on the merits of a case, a fair read-
ing of Terket reveals that absent a specific statute or
other rule, a motion for attorney’s fees and costs must
be filed with the district court within a ‘‘reasonable
time’’ or as ‘‘expeditiously as possible,’’ after a judg-
ment on the merits is entered. In the instant case no
motion requesting attorney’s fees was filed with either
the district court or this court during the pendency
of Overnite’s original appeal of the merits. It was
not until two months after this court affirmed the dis-
trict court’s dismissal of the plaintiff’s action that the
defendant filed its motion for fees and costs. There-
fore, since the defendant failed to file a motion before
any court requesting attorney’s fees while the appeal
on the merits was pending, and because the district
court did not reserve jurisdiction nor was jurisdiction
expressly reserved by statute, we hold the defendant
did not file its motion within a reasonable time. .
(Footnotes omitted.)

Overnite Transp. Co. v. Chicago Indust. Tire Co., supra
at 793, citing Terket v. Lund, 623 F.2d 29 (7th Cir. 1980).

Although the Supreme Court Las never specifically
addressed the issue of when a motion for attorney fees
should be filed in an action arising under Title VII, that
Court has discussed the time limitations for filing a fee
application in civil rights actions pursuant to 42 U.S.C.

App. 35

§ 1988. In White v. New Hampshire Dept. of Empl. Sec.,
455 U.S. 445 (1982), the prevailing party sought attorney
fees four and one-half months after an appeal was dis-
missed and the parties had entered into a consent judg-
ment. The Court, while reinstating the district court find-
ing that the motion was timely filed, held that the time to
file a motion for attorney fees is a reasonable time which
is subject to the discretion of the district court, and that
the trial court should deny a motion for fees which ‘‘un-
fairly surprises or prejudices the affected party.’ Id.
at 454.

Applying the standards set forth above, this court now
decides that all of the facts and circumstances surrounding
the action must be considered to determine whether a mo-
tion for attorney fees has been timely filed and is thus
within the jurisdiction of this court. To routinely find
that all motions for attorney fees be filed prior to the
termination of any appeal would contradict the finding in
White v. New Hampshire Dept. of Empl. Sec., supra. In-
stead, the court must examine the record to ascertain
whether the motion for attorney fees was filed in a rea-
sonable time and does not unfairly surprise or prejudice
the plaintiff and plaintiff’s counsel.

In this action, the certified copy of the order of the
Sixth Cireuit dismissing the appeal was received and
docketed by the clerk of the district court on October 19,
1984, approximately two months after the filing of the
appeal. On October 30, 1984, the individual school board
members represented by Mr. Leister filed their motion for
attorney fees. The motion for fees filed by Mr. Richards
on behalf of the school board and its employees was filed

App. 36

on January 9, 1985. Under the facts and circumstances
of this action, this court finds that both motions were filed
in a timely and reasonable manner and do not unfairly
surprise or prejudice the plaintiff or her counsel.

Unlike the appeal in Overnite which was pending for
several months prior to resolution, the appeal in this ac-
tion was pending but for a brief period of time. Further,
the dismissal of the appeal was directly caused by the ac-
tions or inactions of the plaintiff and her counsel. It
was incumbent upon the plaintiff to either prosecute the
appeal or be subject to a dismissal for failure to comply
with the appellate rules. It is not unreasonable for de-
fense counsel to presume that the plaintiff will prosecute
her appeal once it was filed, and therefore the defendants
must be allowed some time to move for attorney fees.
Thus, the court is unable to find any prejudice to the plain-
tiff or her counsel by permitting the filing of the motions
for fees.

In addition, the court is unable to find that plaintiff
or her counsel should have been unfairly surprised by the
filing of these motions. The motions were filed within
one month and three and one-half months respectively of
the date upon which the appeal was dismissed in the Sixth
Cireuit. In light of the four and one-half months after
dismissal of the appeal time period determined in White
v. New Hampshire Dept. of Empl. Sec., supra, to have
been reasonable, the defendants’ actions in this case can-
not be deemed to be unreasonable. Additionally, the plain-
tiff and her counsel at trial were made aware that fees
could be sought by the defendants pursuant to the state-
ments made by defense counsel during their motions under

App. 37

Rule 41(b) of the Federal Rules of Civil Procedure. Fur-
ther, they should have been aware, by reason of the de-
fendants’ repeated assertions throughout the trial pro-
ceedings, that defendant considered the action to be friv-
olous, unjustified in fact and law, and brought by the
plaintiff and her counsel in bad faith. Hence, the court
finds that the motions for awarding attorney fees were
filed within a reasonable time frame and that it has juris-
diction to entertain the motions.

II

The first substantive issue to be addressed is that
concerning the responsibility and liability of Mr. Weiner.
The record reveals that at the time of his involvement in
this action, Mr. Weiner had been a member of the bar of
this state for a very short time. In his capacity as a duly
licensed attorney, Weiner was employed as an associate
in the firm of Lester & Associates and worked on this case
on a limited basis under the supervision of Mr. Lester.

On January 5, 1983, plaintiff moved to disqualify all
of the attorneys representing the various defendants.
While this motion was admittedly prepared by Mr. Weiner
while under the supervision and at the request of Mr.
Lester, and only after consulting with Mr. Ruben on the
legal issue raised therein, Mr. Weiner signed the motion.
That pleading asserted that the various defense counsel
had a conflict of interest because of their alleged multiple
representation of defendants. Specifically, the plaintiff
alleged as follows:

In the case at bar there exists an overwhelming

blatant appearance of conflicting interests between
both the Defendant Board and the Board Member De-

App. 38

fendants and as such Defendant’s counsel should not
only be disqualified, but should have been alert to these
conflicting interests and declined multiple represen-
tation of said Defendants. (Emphasis added.)

Plaintiff’s Brief in Support of the Motion to Disqualify
Counsel at page 3.

This statement is singularly inaccurate factually and
plaintiff’s counsel should have been aware of the inaccu-
racy at the time the motion was filed. The record and the
pleadings submitted by the various defendants clearly de-
lineate that the Warren Board of Education and its em-
ployees were being represented by Mr. Richards, while the
individual board members were being represented by Mr.
Leister. The alleged dual representation of defense coun-
sel of both the Warren Board of Education and the in-
dividual board members had no factual basis whatsoever.
The record reflects that these defendants were represented
by separate counsel. Thus, factually, the alleged conflict
in representation asserted by the plaintiff simply did not
exist at the time the motion was filed. All counsel in-
volved in this action should have been aware of the actual
representation of each defendant by simply reviewing the
pleadings in the record.

Rule 11 of the Federal Rules of Civil Procedure re-
quires that every pleading, motion or other paper which
is submitted to the court be signed by an attorney. In
addition, the rule provides as follows:

The signature of an attorney . . . constitutes a cer-
tification by him that he has read the pleading, mo-
tion, or other paper; that to the best of his knowl-
edge, information, and belief formed after reasonable
inquiry it is well grounded in fact and is warranted

abled side a it

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App. 39

by existing law or a good faith argument for the ex-
tension, modification, or reversal of existing law, and
that it is not interposed for any improper purpose,
such as to harass or to cause unnecessary delay or
needless increase in the cost of the litigation. (Em-
phasis added.)

Further, the rule states that any attorney who violates the
provisions of this rule shall be subject to an appropriate
sanction, ‘‘which may include an order to pay to the other
party or parties the amount of the reasonable expenses
incurred because of the filing of the pleading, motion, or
other paper, including a reasonable attorney’s fee.’’

A motion for sanctions under Rule 11 should not be
lightly made by a party or granted by a court. This court
is very much aware of the serious effect the granting of a
sanction may have upon a lawyer’s professional record
and reputation in the community. In determining the ap-
propriateness of imposing any sanctions under Rule 11
against Mr. Weiner in this action, the court has reviewed
with care the Advisory Commiitee Notes to the rule which
states in pertinent part:

The rule is not intended to chill an attorney’s
enthusiasm or creativity in pursuing factual or legal
theories. The court is expected to avoid using the
wisdom of hindsight and should test the signer’s con-
duct by inquiring what was reasonable to believe at
the time the pleading, motion, or other paper was
submitted. Thus, what constitutes a reasonable in-
quiry may depend on such factors as how much time
for investigation was available to the signer; whether
he had to rely on a client for information as to the
facts underlying the pleading, motion, or other paper;
whether the pleading, motion, or other paper was
based on a plausible view of the law; or whether he

App. 40

depended on forwarding counsel or another member of
the bar.

Applying this criteria to the conduct of counsel in this
case, the court finds that sanctions should be imposed.

At the hearing on the motion for attorney fees and
sanctions, the court addressed a direct inquiry to Mr.
Weiner to determine the extent of his investigation into
the underlying facts prior to his filing the motion in ques-
tion. Mr. Weiner replied that he had done little investi-
gation and, in fact, had never reviewed the pleadings in
this action to ascertain which defendants were represented
by Mr. Richards and which defendants were represented
by Mr. Leister. Instead, Mr. Weiner stated that because
the file in this matter was quite large and there were
numerous defendants, the actual representation of the
various defendants was confusing and unclear to him.

This careless approach to the filing of a serious and

-unjustified charge of professional misconduct and con-

flict of interest upon each member of defense counsel war-
rants the assessment of sanctions. The purpose of Rule
11 is to prevent and eventually end the filing of motions,
pleadings, and other paper by counsel which are totally
unfounded and not warranted by either the facts or the
law. The motion which Mr. Weiner filed clearly comes
under the rule. It further appears that the motion was
filed with the sole purpose of disrupting the efforts of
the defense attorneys to obtain discovery and bring this
manner to trial. It is not the purpose of the rule to pre-
vent or preclude the filing of motions predicated upon
novel or unique legal theories or questions of fact. In-
stead, the purpose is to prevent a motion such as the one

App. 41

filed by Mr. Weiner, a motion which was never researched
in fact and was seemingly designed only to harass op-
posing counsel.

Mr. Weiner has asserted two separate theories for
the proposition that sanctions are inappropriate against
him. First he claims he was merely following the instruc-
tions of his supervisor Mr. Lester and advisor, Mr. Ru-
ben, and second, he asserts that he was acting as an em-
ployee of Mr. Lester and would be protected by the doc-
trine of respondeat superior. Both of these arguments
are totally without merit.

The fact that Mr. Lester and Mr. Ruben may have
been involved in the preparation and filing of the motion
to disqualify defense counsel does not alter Mr. Weiner’s
responsibility factually or legally. Mr. Weiner, was and
is a licensed attorney. As such, he had and has a legal
and professional responsibility under Rule 11 to abide by
the rule’s provisions which require that motions be filed
after reasonable inquiry. When counsel pursues a mo-
tion ‘‘that a reasonably careful attorney would have
known, after appropriate inquiry, to be unsound, the con-
duct is objectively unreasonable and vexatious.’’ Jn re
TCI Ltd, 769 F.2d 441, 445 (7th Cir. 1985). As an attor-
ney, and as a professional who actively prepared the mo-
tion and signed the document, Mr. Weiner is fully ac-
countable under Rule 11 for the filing of the motion. Al-
though Mr. Lester asserts that he alone is responsible for
the filing of unwarranted motions, his acceptance of re-
sponsibility does not alter the accountability of the attor-
ney who actually certifies that the motion fulfills the
standards required by Rule 11.

App. 42

The assertion of the doctrine of respondeat superior
as a defense to any sanctions under Rule 11 is without
foundation in the law. The doctrine has no application to
the actions taken by Mr. Weiner in this case. Rule 11 ap-
plies to the attorney who affixes his signature and thus cer-
tifies the document submitted to the court; it has no ap-
plication to his employer. Though counsel may serve his
business associates, his first and foremost duty is to the
Law.

In determining the amount of the sanctions to be im-
posed under Rule 11 against Mr. Weiner, the court may
consider all of the circumstances involved in this action
including the experience and standing of counsel. See:
Huettig & Schromm v. Landscape Contractors Council,
582 F.Supp. 1519, 1522 (N.D. Cal. 1984). Since Mr. Wein-
er’s participation in this action was limited to the motion
for disqualification and reply briefs to that motion, the
court feels it just to assess only a sanction for the attor-
ney fees which involved that motion. In considering a
monetary sanction against Mr. Weiner, the court notes
that he is a young attorney with a limited amount of ex-
perience, and that he relied to some extent upon the direc-
tions given by more experienced counsel, Mr. Lester and
Mr. Ruben. Thus, it is the hope of this court that the
sanction imposed against Mr. Weiner shall cause him in
the future to consider the magnitude of his actions should
he file a motion which is not well founded in fact or re-
searched in the Law and also cause him to consider the
professional responsibility he has to his client and to the
other members of the bar and bench. Hence, this court
orders that Mr. Weiner pay $350.00 as attorney fees to
Mr. Richards and $150.00 as attorney fees to Mr. Leister
on behalf of their respective clients as a sanction for vio-
lating Rule 11.

App. 43

III

The next issue to be addressed by this court concerns
whether the defendants are entitled to an award of attor-
ney fees under Section 706(k) of Title VII, 42 U.S.C.
§ 2000e-5(k). The defendants contend that the plaintiff
and her counsel pursued this action in bad faith even
though they were aware that it was frivolous, unreason-
able and without foundation in fact and law.

In Christiansburg Garment Co. v. E.E.0.C., 434 U.S.
412 (1978), the Supreme Court discussed the awarding of
attorney fees to a ‘‘prevailing party’’ under Title VII.
The Supreme Court found that a prevailing plaintiff
should normally be awarded attorney fees under the act,
absent extraordinary circumstances. In reaching this
conclusion, the Court examined the legislative history
of Title VII, and noted that successful plaintiff is
vindicating a policy established by the Congress in expos-
ing unlawful employment discrimination. Thus, the Court
concluded that Congress intended to provide remuner-
ation for plaintiff’s counsel to compensate them for their
private role in enforcing the civil rights statutes by re-
quiring the defendant-employer, which engages in discrim-
inatory practices, to pay all of the costs including attorney
fees of the action.

The Christianburg Court further stated that it was
the legislative intent to provide additional protection to
a defendant from unwarranted actions brought against
him. This protection for defendants was the subject of
the discussion which follows:

The sparse legislative history of 4 706(k) reveals

a little more than the barest outlines of-a proper ac-
commodation of the competing considerations we have

App. 44

discussed. The only specific references to § 706(k) in
the legislative debates indicates that the fee provi-
sion was included to ‘‘make it easier for a plaintiff of
limited means to bring a meritorious suit.’’ During
the Senate floor discussions of the almost identical at-
torney’s fees provision of Title II, however, several
Senators explained that its allowance of awards to
defendants would serve ‘‘to deter the bringing of
lawsuits without foundation,’’ ‘‘to discourage friv-
olous suits,’’ and ‘‘to diminish the likelihood of un-
justified suits being brought.’’ If anything can be
gleaned from these fragments of legislative history,
it is that while Congress wanted to clear the way for
suits to be brought under the Act, it also wanted to
protect defendants from burdensome litigation having
no legal or factual basis. (Emphasis added, footnotes
omitted.)

Id. at 420.

Having found that Congress intended to provide some
protections to prevailing defendants, the Christiansburg
Court developed a standard which must be met in order
to award attorney fees to a prevailing defendant. The
Court stated,

In sum, a district court may in its discretion
award attorney’s fees to a prevailing defendant in a
Title VII case upon a finding that the plaintiff’s
action was frivolous, unreasonable, or without foun-
dation, even though not brought in subjective bad
faith.

In applying this criteria, it is important that a
district court resist the understandable temptation to
engage in post hoc reasoning by concluding that, be-
cause a plaintiff did not ultimately prevail, his action
must have been unreasonable or without foundation.
This kind of hindsight logic could discourage all but
the most airtight claims, for seldom can a prospective

App. 45

plaintiff be sure of ultimate success. No matter how
honest one’s belief that he has been the victim of
discrimination, no matter how meritorious one’s claim
may appear at the outset, the course of litigation is
rarely predictable. Decisive facts may not emerge
until discovery or trial. The law may change or
clarify in the midst of litigation. Even when the law
or the facts appear questionable or unfavorable at
the outset, a party may have an entirely reasonable
ground for bringing suit. (Emphasis added.)

Id. at 421-422. Therefore, this court must determine
whether the plaintiff’s claim was ‘‘frivolous, unreasonable,
or without foundation’’ at the outset of this litigation or
‘*that the plaintiff continued to litigate after it clearly be-
came so.’’ Id. Further, should this court find that the
instant action was either brought or continued in bad
faith by the plaintiff or her counsel, ‘‘there will be an even
stronger basis for charging him with the attorney’s fees
ineurred by the defense.’’ Jd.

The Sixth Cireuit Court of Appeals has recently dis-
cussed the Christiansburg standard for awarding attorney
fees to a prevailing defendant in civil rights actions. In
Tarter v. Raybuck, 742 F.2d 977 (6th Cir. 1984), the court
reversed the district court’s award of attorney’s fees to a
defendant since the underlying claim was not wholly mer-
itless or without foundation. In Tartar, the issue before
the district court involved a student’s fourth amendment
rights in the context of a physical search of the student
by a school official. Although the district court found
that the student had consented to the search, the consent
issue ‘‘was reasonably in dispute given the context of the
purported waiver of important constitutional rights. The
exact nature and extent of a student’s fourth amendment

App. 46

rights are not well settled.’’ Jd. at 988. Thus, the cir-
cuit court held that a fee award would not be justified
when a factual dispute exists and the plaintiff is assert-
ing a cause of action predicated upon the violation of
constitutional rights which are not well defined under the
law.

The Christiansburg standards have also been applied
recently by the Sixth Circuit to a fair housing action. In
Smith v. Smythe-Cramer Co., 754 F.2d 180 (6th Cir. 1985),
the court stated:

Application of these standards requires inquiry
into the plaintiffs’ basis for bringing suit. Awards to
prevailing defendants will depend on the factual cir-
cumstances of each case. While a showing of bad
faith is not required for an award of attorneys fees
to a prevailing defendant, such a showing would jus-
tify an award of fees. Additionally, courts have
awarded attorneys fees to prevailing defendants where
no evidence supports the plaintiff’s position or the
defects in the suit are of such magnitude that the
plaintiff’s ultimate failure is clearly apparent from
the beginning or at some significant point in the pro-
ceedings after which the plaintiff continues to litigate.
As the Supreme Court emphasized in Hughes, how-
ever, the mere fact that allegations prove legally in-
sufficient to require a trial does not, for that reason
alone, render a complaint groundless under Christians-
burg, 449 U.S. at 16, 101 S.Ct. at 179.

Id. at 183. The court further noted that awards of attor-
ney fees have been properly granted to d -ndants when
a plaintiff misuses the civil rights laws to collaterally chal-

lenge state judgments, Tonti v. Petropoulous, 656 F.2d
212, 215-16 (6th Cir. 1981), or when a plaintiff brings a
claim which is clearly barred by unambiguous ease law.
Werch v. City of Berlin, 673 F.2d 192, 196 (7th Cir. 1982).

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App. 47

Unlike the novel legal issues presented to the trial
court in Tartar v. Raybuck, supra, the legal issues ad-
vanced by the plaintiff in this action involve a settled area
of the law. The plaintiff did not advance or even attempt
to advance facts or theories which would serve to effectu-
ate a change in existing law under Title VII; instead, she
asserted that a cause of action of discrimination based
upon sex and national origin factually existed under the
standards for Title VII actions set forth in McDonnell
Douglas Vorp. v. Green, 411 U.S. 792 (1973). Therefore,
any determination of whether the plaintiff’s filing and
prosecution of this action meets the standards for frivol-
ous claims under Christiansburg, involves a review of
factual circumstances surrounding the filing and prosecnu-
tion of this case only in this manner may it be determined
whether a good faith belief of a factual dispute existed.

Conjunctive to with this determination is a review of
the involvement of plaintiff’s counsel, Mr. Lester and Mr.
Ruben. The defendants assert that both attorneys prose-
cuted this action in bad faith solely to extort a settlement
from the school board. Further, it is asserted that plain-
tiff’s counsel knew that the underlying claims and allega-
tions made by the plaintiff were frivolous and totally
without merit, but in spite of that knowledge continued to
press this litigation in the hope that due to the threat of
the expense of the litigation, some settlement could be
forced upon the defendants.

In addition to the authority contained in Rule 11, a
district court may assess attorney fees against an attorney
who comes before it pursuant to 28 U.S.C. § 1927, which

follows:

App. 48

Any attorney or other person admitted to conduct
cases in any court of the United States or any Terri-
tory thereof who so multiplies the proceedings in any
case unreasonably and vexatiously may be requifd
by the court to satisfy personally the excess costs, ex-
penses, and attorneys’ fees reasonably incurred be-
cause of such conduct.

This statute has been construed by the Supreme Court to
permit the awarding of attorney fees against counsel in
a civil rights action as sanction under limited cireum-
stances.

In Roadway Express, Inc. v. Piper, 447 U.S. 752
(1980), the Supreme Court found that attorney fees could
be assessed and awarded against a plaintiff’s counsel un-
der 28 U.S.C. $1927 if counsel willfully abuses the judi-
cial process. The Court stated:

Of course, the general rule in federal courts is
that a litigant cannot recover his counsel fees. See
Alyeska Pipeline Co. v. Wilderness Society, 421 U.S.
at 257. But that rule does not apply when the oppos-
ing party has acted in bad faith. In Alyeska, we ac-
knowledged the ‘‘inherent power’’ of courts to ‘‘assess
attorneys’ fees for the ‘willful disobedience of a court
order ...as part of the fine to be levied on the de-
fendant [,] Toledo Scale Co. v. Computing Scale Co.,
261 U.S. 399, 426-428 (1923), ‘Fleischmann Distilling
Corp. v. Maier Brewing Co., supra, at 718; or when
the losing party has ‘acted in bad faith, vexatiously,
wantonly, or for oppressive reasons... .’ F.D. Rich
Co. [v. United States ex rel. Industrial Lumber Co.},
417 U.S. [116], at 129 [(1974)] (citing Vaughan v.
Atkinson, 369 U.S. 527 (1962)). Id., at 258-259.

The bad-faith exception for the award of attorney’s
fees is not restricted to cases where the action is filed
in bad faith. ‘‘ ‘{Bjad faith’ may be found, not only

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App. 49

in the actions that led to the lawsuit, but also in the
conduct of the litigation.’’ Hall v. Cole, 412 U.S. 1,
15 (1973). See Browning Debenture Holders’ Comm.
v. DASA Corp., 560 F.2d 1078, 1088 (CA2 1977). This
view coincides with the ruling in Link, supra, which
approved judicial power to dismiss a case not because
the substantive claim was without merit, but because
the plaintiff failed to pursue the litigation.

The power of a court over members of its bar is
at least as great as its authority over litigants. If a
court may tax counsel fees against a party who has
litigated in bad faith, it certainly may assess those
expenses against counsel who willfully abuse judicial
processes. (Footnote omitted.)

Id. at 765-766. Under this test, the trial court may only
award attorney fees if it makes a specific finding that
plaintiff’s counsel’s conduct constituted or was tantamount
to bad faith. See In re TCI Ltd, supra, at 445; Dreiling
v. Peugeot Motors of America, Inc., 768 F.2d 1159, 1165
(10th Cir. 1985); United States v. Austin, 749 F.2d 1407,
1408 (9th Cir. 1984); Shimman v. International Union of
Operating Engineers, 744 F.2d 1226, 1230 (6th Cir. 1984).
In this regard, the court must review the actions and con-
duct of both Mr. Lester and Mr. Ruben separately.

Mr. Lester first entered an appearance in this action
on October 5, 1981 after original counsel obtained leave to
withdraw. Mr. Ruben filed his notice of appearance as
‘‘additional counsel’’ on January 25, 1982. Thereafter, all
court notices or orders were sent to both men by the clerk
of courts. At all pretrials conducted in this matter before
this court, one or both men attended on behalf of the plain-

tiff.

App. 50

On March 15, 1982, Mr. Lester sent a letter to the de-
fendants wherein he offered to settle this action for fifty-
four thousand dollars. In this letter, counsel advised the
defendants that their failure to accept this offer ‘‘will
dramatically increase Mrs. Rathbun’s legal fees and ren-
der settlement for fifty-four thousand ‘‘unrealistic.’’ Spe-
cifically, counsel stated ‘‘[t]his office estimates that tak-
ing into consideration a fifteen day trial, seventeen or
more depositions and various other costs, the total addi-
tional legal costs would be estimated at well over One-
hundred Thousand Dollars.’? Contemporaneously, coun-
sel informed the defendants that unless the settlement
offer was accepted immediately, deposition subpoenas
- would be sent to 22 employees and officials of the Warren
City School System. Many of these people were not par-
ties to this action. These depositions were to take place
in Cleveland, Ohio and would last an estimated ‘‘eight
hours per day per person.’’

Upon receipt of this letter, the defendants did not
agree to settle this litigation. In spite of defendant’s po-
sition, the 22 employees and officials of the school system
were never issued the subpoenas nor were any of them
deposed as stated in the Letter of March 15. In fact, the
only deposition ever conducted in this action was the depo-
sition of the plaintiff which was taken by the defendants.
The plaintiff did not undertake any depositions but in-
stead elected to conduct discovery through the issuance
of several sets of interrogatories to the various defen-
dants.

On March 29, 1984, a trial notice was issued, setting
this action for trial on June 26, 1984. Simultaneously,

App. 51

this court issued an order regarding the preparation of
counsel for trial, which order required counsel for all par-
ties to submit to the court proposed witness Lists, and
pre-marked exhibits two days prior to the trial. In addi-
tion, counsel was required to submit proposed findings
of fact and conclusions of law and trial briefs. Although
this order was sent to all counsel of record, only defense
counsel complied with the court’s order regarding pre-
trial submissions. Neither attorney for the plaintiff com-
plied with the court’s order or requested leave to comply
prior to trial. 4

On the morning of trial, Mrs. Rathbun was repre-
sented by Mr. Lester and Mr. Ruben in the courtroom.
The trial, however, was delayed because Mr. Lester was
late in arriving to commence trial. Upon Mr. Lester’s
arrival, the proceedings were yet further delayed in order
to ascertain the reasons for Mr. Lester and Professor
Ruben’s total failure to comply in any manner with the
court’s pretrial order of March 29, 1984. Thereafter, Mr.
Lester requested and was granted leave to file ali pre-
trial submissions by 9:00 A.M. on the next day. The trial
of this matter then commenced with both Mr. Lester and
Mr. Ruben in attendance. The sole witness called on the
first day of trial was the plaintiff herself.

On June 27, 1984, Mr. Lester filed his pretrial sub-
missions which included a witness list with twenty-one
people named. Among the purported witnesses was a man
who had recently undergone a serious heart operation
and was under the advise of his physician to remain bed-
ridden. Also named as a witness was a man who had
died approximately eleven months prior to trial. State

App. 52

ment of the fact of his death was made part of the record
in this action on September 12, 1983.

Mr. Ruben did not attend the trial proceedings after
the first day. Prior to his absence the court was not in-
formed that he would no longer participate in the trial
proceedings, nor was his absence ever explained.

On the third day of trial, the plaintiff did not have
sufficient witnesses to complete the day, even though
counsel had been previously made aware of the court’s
daily schedule for trial and had been requested to sched-
ule his witnesses accordingly. Until this time, Mr. Lester
had called as witnesses Mrs. Rathbun, her husband, a
friend of the plaintiff’s and the defendant’s representa-
tive at trial, Mr. Angelo. At this point Mr. Lester dis-
closed that none of the witnesses named on his list had
yet been the subject of subpoena or even notified that
they could possibly be called as witnesses. Counsel as-
sured the court that he would personally have the sub-
poenas served that evening and that no further delays in
the trial would occur. Mr. Lester explained that he and
the plaintiff had limited financial resources and that he
was, at this point in the proceedings, prosecuting the
action on his own.

The next day, Mr. Lester called six witnesses who
were the plaintiff’s co-workers and who had been issued
subpoenas the previous evening. Several of these wit-
nesses testified that they knew nothing concerning the
subject matter of this litigation, and all testified that they
had very limited contact with the plaintiff. None of these

witnesses had been deposed or even interviewed by plain-
tiff’s counsel prior to testifying at trial. In fact, much

App. 53

of the evidence presented through these witnesses and
through earlier witnesses offered by the plaintiff con-
trasted sharply with the testimony offered by the plain-
tiff herself.

In essence, both of plaintiff’s attorneys’ preparation
and performance at trial were less than professional, to
say the least. Although the plaintiff brought this action
against five individual school board members eud several
individual employees of the school systems, the record is
totally devoid of any evidence involving these people. In
fact most of the individual defendants’ names, identities,
employment or official positions were never mentioned
by any witness including the plaintiff, nor do these de-
fendants’ names appear in any exhibit offered by the
plaintiff. Instead, the record establishes only that these
individual defendants had the misfortune of being so
named and were therefore forced to defend this lawsuit.
It is clear to the court that under the facts and cireum-
stances found in the record, the filing and prosecution of
this action against all of the individual defendants was
a frivolous and unwarranted act as defined in Christians-
burg. Further, this court can only reach one conclusion
regarding the purpose of this filing and prosecution by
the plaintiff and her counsel as it relates to the individ-
ual defendants. That conclusion is that the plaintiff, from
the inception of this action and her counsel from the time
they entered appearances in this case, acted with the
intent to extract some monetary settlement from several
individuals associated with the school system because of
the threat of defending and expense of litigating this
action, even though the plaintiff had no evidence either
direct or circumstantial of any wrongdoing or liability

App. 54

on the part of these individual defendants. The actions
on the part of Mrs. Rathbun, Mr. Lester and Mr. Ruben
of bringing and prosecuting unfounded charges of inten-
tional discriminaton against the innocent individual de-
fendants are totally contradictory to the legislative pur-
pose of Title VII and the other civil rights laws of this
country. Under such circumstances, as heretofore de
seribed, the court finds that the plaintiff, Mr. Lester and
Mr. Ruben have all acted without requisite good faith by
charging and prosecuting the individual defendants when
they neither had nor produced a single thread of evidence
against these defendants. [urther, the testimony of the
plaintiff_hersellf clearly demonstrated that she had no
evidence whatsoever which would indicate any discrimi-
natory or unlawful action on the part of those individ-
uals.

The court also finds that the action against the War-
ren Board of Education was brought by the plaintiff and
prosecuted by Mr. Lester and Mr. Ruben in bad faith. In
her pleadings, the plaintiff alleged that the actions of
her employer against her were a result of unlawful dis-
crimination in violation of Title VII. At trial, Mrs. Rath-
bun testified that she was denied overtime opportunities
by the board of education and that she received burden-
some work tasks and a retaliative transfer to another
school. However, all of the relevant evidence offered by
Mrs. Rathbun, including some of her testimony and that
of the other witnesses which she offered, disputed and
contradicted each and every claim.

The record reveals factually that Mrs. Rathbun did

receive numerous overtime opportunities with the school

als 6 CEN FO

PAR TO Re le Le

App. 55

board. ‘This was true even though she was at that time
only a substitute employee of the school system, and was
not entitled under school policy to work overtime unless
all of the regular employees were first offered the over-
time work. Further, the record reveals that Ms. Rathbun
was actually aware that she was working as much or
more overtime as her male co-workers, but wanted to
work even more hours. ‘the total lack of evidence oi
unconstitutional or discriminatory acts presented at trial
by the plaintiff is grounds for awarding attorney fees
against Mrs. Rathbun. See Lewis v. Brown & Root, Inc.,
711 F.2d 1287 (Sth Cir. 1983) cert denied —U.S. —, 104
S. Ct. 2690, 81 L.Ed.2d 884 (1984).

Additionally, the record reveals that Mrs. Rathbun
was transferred to an elementary school close to her home
after an incident occurred between her and a male co-
worker while she was employed at the high school. This
incident involved a physical attack upon the plaintiff by
the co-worker. Subsequent to this attack, the school board
met to administer a severe discipline against the man.
However, at the requesi of Mrs. Rathbun, no discipline
was administered against the co-worker. There was no
evidence offered by the plaintiff that her transfer after
this incident was for a discriminatory reason. The sole
evidence offered by the plaintiff demonstrated that the
transfer was to alleviate the plaintiff’s concerns about
working with the men at the high school and to provide
her employment closer to her home. ‘Thus, the action
against the Warren Board of Education was totally un-
supported by any evidence of discriminatory conduct and
must be @onsidered to be {rivolous, without foundation in
fact, a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1103%3A1. Public record. Not legal advice.