# Petition for Writ of Certiorari — Jobe v. ATR Marketing, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0480%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 528 U.S. 825 ## Text oe 98 205 4 JUN 22199 In The Supreme Court of the United States ¢ TONY JOBE, Assignee of AIR NEW ORLEANS, INC., and PLAINTIFF’S-APPELLANT’S COUNSEL, Petitioners, ATR MARKETING, INC., AVIONS DE TRANSPORT REGIONAL (G.I1.E.); AEROSPATIALE, S.N.I.; FINMECCANICA S.P.A., Individually and d/b/a ALENIA (a division of Finmeccanica) a/k/a AERITALIA S.p.A. and the Successor in the Interest of Aeritalia; AEROSPATIALE, INC.; and DEFENDANTS A through M, Respondents. ¢ On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit « PETITION FOR WRIT OF CERTIORARI ¢ Wayne E. Ferre t, Jr. Attorney at Law Counsel of Record Post Office Box 24448 Jackson, Mississippi 39225-4448 (601) 969-4700 Terry O’Retty, Esa. O’Renty & CoL.ins A PROFESSIONAL CORPORATION 2500 Sand Hill Road, Suite 201 Menlo Park, California 94025 (650) 854-7700 COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 _ fs ri oo nomena a mn erent QUESTIONS PRESENTED 1. Whether the lack of procedure on the part of the Fifth Circuit Court of Appeals in granting or denying Motions for Extensions resulted in the denial of due process to Petitioners? 2. Whether the Fifth Circuit’s refusal to grant oral argument regarding an appeal concerning the award of sanctions by the District Court, or to explain its reasons for denying a request for oral argument, resulted in a denial of due process to the Petitioners? 3. Whether the Fifth Circuit neglected when it failed, in its Appellate role, to apply the appropriate standard of review and law when affirming the District Judge’s imposition of sanctions. pursuant to 28 U.S.C. § 1927? il CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the fol- lowing listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of this Court may evaluate possible disqual- ification or recusal. ai 2 10. ,¢ F Tony B. Jobe, Appellant ATR Marketing, Inc., Appellee Aerospatiale, Inc., Appellee Aerospatiale, S.N.L., Appellee Finmeccanica, S.r.A., individually and d/b/a ALENIA (a division of Finmeccanica) a/k/a AERITALIA S.r.A. and the Successor in the Interest of Aeritalia, Appellee Avions de Transport Regionale (G.LE.), Appellee Wayne E. Ferrell, Jr., Attorney at Law, counsel for Appellant Hubbard & Pierce, PLLC, Attorneys at Law, counsel for Appellant O'Reilly & Collins, Attorneys at Law, counsel for Appellant Orvis A. Shiyou, Jr., Attorney at Law, counsel for Appellant Fleming, Hovenkamp & Grayson, Attorneys at Law, counsel for Appellant ill CERTIFICATE OF INTERESTED PERSONS - Continued 12. RR 14. Erik M. Lowrey, Attorney at Law, counsel for Appellees Hogan & Hartson, Attorneys at Law, counsel for Appellees The Honorable Charles Pickering, District Judge iv TABLE OF CONTENTS Page “Cees FONE 6 oso cnc cinvees siudesen tee csneaue i Certificate of Interested Persons..............05+0e08: ii Te Or Cs Sic +. bus vps 00h 6000555 d hhs roberta iv Tee Oe PE oe Skee cece seeskeeiebccbucenvess vi eo . PePeererreee PadeevetsvsVeuweeeey ts teeeee dees 1 I ios. 669 bo wer di es 184 CoRR EERO RAL Sad SeRCES 1 Rules Involved .......... iecuaeweak veer stan pee eeeedes 2 ee AE Te GN i abo ha aicibc dd es Caan eee sas neaKes 3 Reasons for Granting the Writ ...............eeeee eee 5 I. The Court Of Appeals For The Fifth Circuit Has A Lack of Procedures For Timely Ruling On Motions, Such As A Motion For Extension Of Time, Which Effectively Denied Petitioners Due PORROOR sv nu Gib v ie 064003 (eh vinddeeerieeeventes 5 A. *Due To The Fifth Circuit’s Lack of Pro- cedure, This Court Should Hear This Case And Impose Upon The Justices of That Court A Duty To Devise And Enforce Proper Proceauses .. 2.5 ccceccccsiccivecess 8 Il. The Petitioners Were Denied Due Process By The Refusal Of The United States Court Of Appeals For The Fifth Circuit To Hear Oral Argument Or Provide Its Reasons As To Why It Refused To Hear Oral Argument.............. 10 Ill. Fifth Circuit Failed To Appropriately Apply The —— o Standard Of Review Resulting In An Inability To Reconcile Its Ruling In The Case At ee a i cuwueae ens 12 A. The Standard Of Review.................. 12 TABLE OF CONTENTS - Continued Page B. The District Court’s Decision To Impose Sanctions Was Based Upon A Clearly Erro- neous Assessment Of The Evidence....... (1) The Fifth Circuit Failed In Its Error Correcting Role When It Affirmed The District Court’s Finding That The Peti- tioners Unreasonably And Vexatiously Multiplied The Proceedings By Submit- ting Petitioners’ Particularized State- ment of Subject Matter Discovery..... (2) The Fifth Circuit Failed In Its Error Cor- recting Role When It Affirmed The Dis- trict Court’s Finding That Petitioners Unreasonably And Vexatiously Multiplied The Proceedings By Issuing Thirteen (13) Subpoenas Duces Tecum............... (3) The Fifth Circuit Failed In Its Error Correcting Role When It Approved The District Court’s Finding That Peti- tioners Unreasonably And Vexatiously Multiplied The Proceedings By Giving Fifty (50) Requests for Production .... (4) The Fifth Circuit Failed In Its Error Correcting Role When It Affirmed The District Court’s Finding That Peti- tioners Unreasonably And Vexatiously Multiplied The Proceedings By Filing A NE OP TINT 5 ois. 5 vncde oe8 cies es C. The Fifth Circuit Failed To Correct The Dis- trict Court’s Abuse Of Discretion By Affirm- ing The Imposition Of Sanctions Pursuant to U.S.C. § 1927 ar I oi Fe ie, rr ie ent mee 13 14 17 23 24 vi TABLE OF AUTHORITIES _ Page Cases Armstrong v. Manze, 380 U.S. 545, 85 S.Ct. 1187, 14 L.BG.2 GZ. (IGGSD i ke ec cteestcedenelecucesves 11 Beatrice Foods Company v. New England Printing and Lithographing Company, 899 F.2d 1171 (Sth Cle, BOGE) iv ctrccccheosssesaviecsoneavns cannes 12, 29 Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 26 L.Bd.2d: TUS CIG71). «0 oo ssccnesievatwcdcesececss 11 Cooter and Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) ............ 12 Dryling v. Peugeot Motors of America, Inc., 768 F.2d 1159: (30th Cle, 1908)... cewc sieeve ewowervetns 28 Eastmark Apparel, Inc. v. James, 10 F.3d 1156 (Sth Cie; BOGE inn dc csuc ces vewecaet dus seeeentnsetiaes 12 Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163 (7th Cle: 10GB. yi dvceieersissrmas tie ees 28 Matthew v. Eldridge, 424 U.S. 319, 98 S.Ct. 893, @O7 L.BG.2G 16 (ESTE). 0 ons cv vee snesestiseccereess 11 Roadway Express v. Piper, 447 U.S. 752, 100 S.Ct. 2458, _. L.EG.20 .. (ISGD) «cain case pees cvescseers 11 Travelers Insurance Co. v. St. Jude Hospital of Kenner, 38 F.3d 114 (5th Cir. 1994)............. 11, 12 White v. American Airlines, Inc., 915 F.2d 1414 (10th Cis. 1990)... ovo scucsscexebacuneuseeuausdea0 28 Wilkinson v. Mercantile National Bank of Dallas, 529 So.2d 616 (Miss. 1988).............eeeeeees 22,23 ’ Ce i, ee ee) ae vil TABLE OF AUTHORITIES - Continued Page Williams v. Giant Eagle Markets, Inc., 833 F.2d Rr rs Ferrer 29 Zuk v. Eastern Pennsylvania Psychiatric Institute of The Medical College of Pennsylvania, 103 eB Ff rrr rrr ree 12, 29 STATUTES AND OTHER ApPLICABLE RULES aly es SES Wien 0k 5 ben 0bsk see be Kekerneeenn 7 ee es ae EE ba nook oda nh50ss oo on eeeuaheuen 2 OE See Oe Poa skc du vcidevckestuatesidsnabaukeeas 1 y ek ee 2 | PTC rr rer cert ree rere re roe passim Federal Rule of Appellate Procedure 26............ 2, 8 Federal Rule of Appellate Procedure 34........... 3, 10 Pee Se GANS BEUED DO 5 covets Rivcesstengae a, % © ares Gee LAE NED SG, ac vdvcccescdcvdwescue 3, 10 Pee Me MN Ms Vee ois dd Ven nve nk vicsienedennesas 5 al al: ta it ae Dita a Ste COME A REE ENP Oe RRO ON INNS ENS NS eal it i ate et ee Bee pn) ed PETITION FOR WRIT OF CERTIORARI Petitioners, Tony Jobe, Assignee of Air New Orleans, Inc., and Plaintiff’s-Appellants’ counsel, respectfully pray that a Writ of Certiorari be issued to review the Judgment and Opinion of the United States Court of Appeals for the Fifth Circuit, which was affirmed by the denial of the Petitioners’ Petition for Rehearing on March 24, 1999. ¢ OPINIONS The Opinion of the Court of Appeals, while not reported, is reprinted in the Appendix hereto, page A-1, infra. The Memorandum Opinion and Order of the United States District Court for the Southern District of Missis- sippi (C. Pickering, J.), dated August 28, 1996, is not reported, but is reprinted in the Appendix hereto, page B-1, infra. JURISDICTION Invoking federal jurisdiction pursuant to 28 U.S.C. § 1332, the Petitioners filed suit in the Southern District of Mississippi. After the completion of discovery and brief- ing, the district court entered an order dismissing the action based upon a lack of in personam jurisdiction. That decision was appealed by the Petitioners to the United States District Court of Appeals for the Fifth Circuit who affirmed the district court’s judgment on July 11, 1996. On May 24, 1995, Respondents filed their Motion for Sanctions against the Petitioners. The District Court entered a Memorandum Opinion and Order, without giv- ing the Petitioners a hearing with an opportunity to give evidence and without granting Petitioners an opportunity for oral argument, on August 28, 1996, finding that only Petitioners’ counsel had unreasonably and vexatiously multiplied the proceeding. Petitioners filed an appeal with the United States Court of Appeals for the Fifth Circuit who affirmed the District Court’s Memorandum Opinion and Order on February 19, 1999. Petitioners then timely filed their Petition for Rehearing which was subse- quently denied March 24, 1999. (Appendix, page C-1). The jurisdiction of this Court to review the judgment of the Fifth Circuit dated February 19, 1999, is invoked under 28 U.S.C. § 1254(1). RULES INVOLVED Federal Rule of Appellate Procedure 26, Computating and Extending Time. The full text of the rule is reprinted in the Appendix, page D-1, infra. Fifth Circuit Local Rule 26. The Full text of the rule is reprinted in the Appendix, page D-2, infra. Federal Rule of Appellate Procedure 31, Filing and Service of A Brief. The Full text of the rule is reprinted in the Appendix, page D-4, infra. Fifth Circuit Local Rule 31. The Full text of the rule is reprinted in the Appendix, page D-4, infra. Federal Rule of Appellate Procedure 34, Oral Argu- ment. The full text of this rule is reprinted in the Appendix, page E-1, infra. Fifth Circuit Local Rule 34, Oral Argument. The full text of this rule is reprinted in the Appendix, page E-3, infra. ¢ STATEMENT OF THE €ASE Tony jobe, Assignee of Air New Orleans, Inc., filed his Complaint on January 12, 1994. Representing Peti- tioner was T. Roe Frazier, II, of the law firm of Langston, Frazier and Sweet. Jobe later employed the firm of O’Reilly & Collins of Menlo Park, California, who associ- ated Wayne E. Ferrell, Jr., of the firm of Ferrell & Hub- bard.! Jobe’s counsel filed an Amended Complaint on Octo- ber 7, 1994, alleging that one of the Plaintiff's principal place of business was in Gulfport, Mississippi, and that the United States District Court for the Southern District of Mississippi, Hattiesburg Division, had jurisdiction of this case due to a tort being committed in whole or in part in the State of Mississippi. On September 27, 1994, the district court granted Plaintiff an Order to amend his ' Ferrell & Hubbard, Attorneys at Law, dissolved effective June 1, 1995. Wayne E. Ferrell, Jr. is currently a sole practitioner and his former partners have established a separate firm of Hubbard & Pierce, which became Hubbard, Pierce & Baria of Jackson, Mississippi. The firm of Hubbard, Pierce & Baria has now dissolved. Complaint and pursue limited discovery regarding the issue of personal jurisdiction. The parties engaged in limited discovery which was agreed to by the parties regarding whether Respondents were subject to in per- sonam jurisdiction in the State of Mississippi pursuant to the Mississippi Long Arm Statute and in accordance with due process of law. Through discovery, Jobe sought, among other things, evidence to contradict the Declara- tions Under Penalty of Perjury submitted by representa- tives of the Defendants in support of their Motion to Dismiss. As a result of the discovery filed, Petitioner discovered several instances where the declarations and discovery responses submitted by at least one of the Respondents were false. Regardless, the District Court granted the Motion to Dismiss for lack of in personam jurisdiction. Respectively they then filed their Motion for Sanctions for relief pursuant to 28 U.S.C. § 1927. On August 28, 1996, by and through its Memorandum Opin- ion and Order, the District Court granted Respondents’ Motion for Sanctions pursuant to 28 U.S.C. § 1927 for unreasonably and vexatiously multiplying the proceed- ings. Petitioners appealed the Memorandum Opinion and Order of the District Court of the United States Court of Appeals for the Fifth Circuit. The Court of Appeals for the Fifth Circuit affirmed, without hearing oral argument, basing its decision upon the rationale that the District Court judge was in a better position to determine the imposition of sanctions. (Appendix, page A-4). ¢ REASONS FOR GRANTING THE WRIT I. THE COURT OF APPEALS FOR THE FIFTH CIR- CUIT HAS A LACK OF PROCEDURES FOR TIMELY RULING ON MOTIONS, SUCH AS A MOTION FOR EXTENSION OF TIME, WHICH EFFECTIVELY DENIED PETITIONERS DUE PRO- CESS. Federal Rules of Appellate Procedure 26(b) provides in part: (a) (Enlargement of Time). The Court for good cause shown may upon motion enlarge the time prescribed by these rules or by its Order for doing any act, or may permit an act to be done after the expiration of such time; but the Court may not enlarge the time for filing of a Notice of Appeal, a Petition for Allowance, or Petition for Permission to Appeal. Nor may the Court enlarge the time prescribed by law for filing a Petition to Enjoin, Set Aside, Suspend, Modify, Enforce, or Otherwise Review, or a Notice of Appeal from, an Order of the Administrative Agency, Board, Commission or Officer of the United States, except as specifically authorized by law. Fed.R.App.P. 26(b) (See Appendix, page D-1, infra). Sim- ilarly, Local Rule 26 provides, in part: 26.2 Extensions of Time. The Court’s policy requires the timely filing of all papers within the period of time allowed by the rules, without granting extensions of time, except for good cause shown. Failure to process appeals timely will cause the dismissal for want of prosecution, without further notice, under the provision of Fifth Circuit Rule 42. If the right to file a reply 6 brief is waived, the parties or counsel should immediately notify the Court to expedite sub- mission of the case to the Court. Fifth Circuit Loc.R. 26. (Appendix, page D-3). On July 1, 1998, Petitioners filed their Motion to Suspend Briefing Schedule Or, In the Alternative, Motion for Additional Time to File Appellants’ Brief. As the Court had not yet ruled on the motion, and to prevent a violation scheduling deadline, Petitioners filed an incom- plete Appellants’ Brief on July 6, 1998. On July 8, 1998, Petitioners received, via United States mail, the Fifth Circuit Order granting an extension of time in which to file Appellants’ Brief. (Appendix, page F-1). As a result, Petitioners contacted the Clerk of the Court of Appeals for the Fifth Circuit and requested that Appellants’ Brief be withdrawn in light of the Court’s Order granting an extension. The Clerk refused to withdraw Appellants’ Brief, but requested that Petitioners file a motion to with- draw the brief and to substitute the brief. On August 3, 1998, Petitioners’ Motion to Withdraw and File Substitu- tion Brief was denied, without reason, and the Clerk of the Fifth Circuit returned the original and all copies of Appellants and Appellants’ Counsel’s Substitution Brief unfiled. (Appendix, page G-1). Confusingly, the Fifth Circuit’s Order, filed August 3, 1998, left in place the extension of time granted by Order dated July 7, 1998, to submit Appellant and Appellants’ Counsel’s Brief. (Appendix, page G-1). On August 16, 1998, Petitioners also filed their Motion requesting a ten (10) day extension of time from the date of the Court’s ruling in which to file Appellants’ Rebuttal Brief which set forth the reasons for the extension therein. Due to the confusing language of the Court’s August 3rd Order, Petitioners also filed their Motion to Clarify Order, Motion for Reconsideration and/or to File Cor- rected Brief. The Fifth Circuit denied all of Petitioners’ Motions except that requesting an extension to file Rebut- tal Brief. On September 16, 1998, the Fifth Circuit issued a confusing Order which granted Petitioners an extension up to September 9, 1998, to file Appellants’ Rebuttal Brief. (Appendix, page H-2). A copy of the Court’s Order was mailed to Petitioners’ counsel by the Clerk of the Fifth Circuit on September 16, 1998, approximately seven (7) days after the deadline upon which Petitioners’ coun- sel was to have the Rebuttal Brief filed. Upon receipt of the Court’s Order, and despite its confusing language, Appellants’ counsel worked diligently and mailed Appel- lants’ Rebuttal Brief to the Court on October 9, 1998. Further, Petitioners filed a Motion to File the Rebuttal Brief out of time. Regardless, the Fifth Circuit denied the Motion, refused to consider the Rebuttal Brief and the Clerk forwarded a Notice to Petitioners’ counsel stating that the briefs would be returned, if requested, or recycled. (Appendix, page I-1). Pursuant to the Fifth Amendment of the Constitution of the United States of America, no person shall be deprived of life, liberty, or property, without due process of law. U.S. CONST. Amend. V. By failing to have in place adequate and timely procedures for the granting or denial of procedural motions, the United States Court of Appeals for the Fifth Circuit denied Petitioners the due process afforded by the Fifth Amendment of the Consti- tution of the United States of America. A. Due To The Fifth Circuit’s Lack of Procedure, This Court Should Hear This Case And Impose Upon The Justices of That Court A Duty To Devise And Enforce Proper Procedures. Pursuant to Federal Rule of Appellate Procedure 26, and the accompanying local rule, extensions of time in which to file briefs are granted upon a showing of good cause. Fed. R. App. P. 26(b); Fifth Circuit Loc.R. 26.2 (Appendix, page D-3). While the United States Court of Appeals for the Fifth Circuit advises through Local Rules 26.2 and 31 that extensions are not readily granted, it does grant relief upon a showing of good cause. Fifth Circuit Loc.R. 26.2 and 31 (Appendix, pages D-3 and D-4 through D-8). The Petitioners were denied the due process afforded to them by the Constitution of the United States of Amer- ica when the Fifth Circuit refused to consider their Sub- stitution and Rebuttal Briefs. While the Fifth Circuit rigidly adheres to the Federal Rules of Appellate Pro- cedure and its own local rules, its procedures for ruling on procedural motions are arbitrarily contrasting and lackadaisical. The Fifth Circuit denied the Petitioners the due process afforded to them by the Constitution of the United States of America when it failed to timely rule upon their July 1, 1998, Motion to Suspend Briefing Schedule Or, For Time to File Appellants’ Brief (which was granted, in part, after Appellants’ and Appellants’ Counsel's initial Brief was filed); refused to allow Peti- tioners’ to withdraw Appellants’ and Appellants’ Coun- sel Brief and file their Substitution Brief; denied Petitioners’ Motions to Clarify Order, Reconsideration and to File Corrected Brief; failed to timely rule upon Petitioners’ Motion for Extension to File Appellants’ Rebuttal Brief (which was granted seven.(7) days after the deadline set therein for Petitioners to file their Rebut- tal Brief), and denied Petitioners’ Motion & file Rebuttal Brief out of Time. Had the Fifth Circuit ruled on Peti- tioners’ Motions in a timely, fair and clear manner, then Petitioners would have had the benefit of the Court’s guidance concerning the briefing deadlines. Rather, the Fifth Circuit fail to grant or deny Petitioners’ Motions ina timely manner leaving the Petitioners in a state of limbo regarding the briefing deadlines and also provided Orders which were arbitrarily contradictory and confus- ing. Petitioners respectfully submit that such failure on the part of the United States Court of Appeals for the Fifth Circuit is a denial of due process and in violation of the Constitution of the United States of America. In their Substitution and Rebuttal Briefs Petitioners clearly sup- ported their position that the District Judge abused his discretion when he imposed sanctions pursuant to 28 U.S.C. § 1927. However, due to a lack of procedure in the Fifth Circuit, Appellants’ and Appellants’ Counsel’s Sub- stitution and Rebuttal Briefs were not considered when the Fifth Circuit heard the case. Accordingly, this Court should now hear the present case to rectify the Fifth Circuit's past procedural shortcomings regarding the rul- ing on minor, but nonetheless important, motions. Whiie it is understood that the Fifth Circuit maintains a volumi- nous docket, unless the importance of timing concerning the granting or denial of procedural motions, such as motions for extensions, is brought to the attention of the Justices of the Fifth Circuit, then those seeking the relief for which that Court was conceived will be encumbered by a legacy of procedural inconsistency. 10 ll. THE PETITIONERS WERE DENIED DUE PROC- ESS BY THE REFUSAL OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO HEAR ORAL ARGUMENT OR PROVIDE ITS REASONS AS TO WHY IT REFUSED TO HEAR ORAL ARGUMENT. Oral argument plays an important role in appellant advocacy. Federal Rule of Appellate Procedure 34, pro- vides, in part: (a) In General. (2) Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unani- mously agree that oral argument is unnecessary for any of the following reasons: (A) The appeal is frivolous; (B) The dispositive issue or issues have been authoritatively decided; or (C) The facts and legal arguments are ade- quately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. Fed.R.App.P. 34. The case at bar-concerns the imposition of sanctions upon Petitioner and Petitioners’ counsel by the United States District Court of the Southern District of Mississippi, Hattiesburg Division, pursuant to 28 U.S.C. § 1927. F.R.A.P. 34(a)(2) (Appendix, page E-1), is acknowledged and mirrored by Fifth Circuit Local Rule 34.2 (Appendix, page E-3). While the Petitioners requested oral argument, their request was never addressed by the Fifth Circuit. Rather, the Fifth Circuit ruled on the appeal without hearing oral argument or 11 providing a reason as to why oral argument was not allowed. Should a Court impose sanctions on an attorney pur- suant to 28 U.S.C. § 1927, the attorney must be afforded all appropriate protection of due process available under law. Roadway Express v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 2464, __ L.Ed.2d __, __ (1980); see also Travelers Insurance Co. v. St. Jude Hospital of Kenner, 38 F.3d 114, 118 (Sth Cir. 1994). Although the required procedures may vary accord- ing to interest at stake in a particular context, Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971), the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Matthew v. Eldridge, 424 U.S. 319, 333, 98 S.Ct. 893, 902, 407 L.Ed.2d 18 (1976) (quoting Armstrong v. Manze, 380 U.S. 545, 562, 85 S.Ct. 1187, 191, 14 L.Ed.2d 62 (1965)). A hearing on a motion for sanctions is proper when it would assist in the course and determination of the merits. Travelers Insurance, 38 F.3d at 1418. In the case at bar, the Petitioners received oral argument neither at the trial or appellate court levels. Nor were they provided any reason as to why their repeated requests for oral argument were denied. In light of the penal nature of sanctions pursuant to 28 U.S.C. § 1927, Petitioners respectfully submit that the Fifth Circuit refusal to hear oral argument in this case, or provide a reason as to why their request for oral argument was denied, is contrary to the Federal Rules of Appellate Procedure, case laws and a denial of the due process which is afforded to them by the Constitution of the United States of America. Accord- ingly, the Petitioners respectfully request that this Court hear this case to rectify the Fifth Circuit’s refusal to 12 entertain an integral part of Appellate procedure or, in the very least, provide reason for its refusal so to do. lt, FIFTH CIRCUIT FAILED TO APPROPRIATELY APPLY THE APPLICABLE STANDARD OF REVIEW RESULTING IN AN .NABILITY TO RECONCILE ITS RULING IN THE CASE AT BAR WITH PRECEDENT. The Fifth Circuit's affirmation of the District Court's imposition of sanctions in the case at bar does not com- port with precedent set in Fifth Circuit, and in other federal jurisdictions. Accordingly, the Fifth Circuit's rul- ing in this case does not comply with law set forth in Eastmark Apparel, Inc. v. James, 10 F.3d 1156 (5th Cir. 1994); Travelers Insurance Co., 38 F.3d 1414; Beatrice Foods Com- pany v. New England Printing and Lithographing Company, 899 F.2d 1171 (Sth Cir. 1990); and Zuk v. Eastern Pennsylva- nia Psychiatric Institute of The Medical College of Pennsylva- nia, 103 F.3d 294 (3d Cir. 1996). A. The Standard Of Review. When considering the imposition of sanctions pur- suant to 28 U.S.C. § 1927, the “appellate court applies the abuse of discretion standard. Eastmark, 10 F.3d at 1163, citing Cooter and Gell v. Hartmarx Corp., 496 U.S. 384, 405-06, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359, 381-82 (1990). Specifically, the district court should be reversed when its decision to impose sanctions pursuant to 28 U.S.C. § 1927 is based upon “ . . . an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. (emphasis added). When hearing this case, the Fifth Circuit failed to properly apply the standard of 13 review. Rather, the Fifth Circuit merely found that the District Judge was in a far better position to rule on the Motion for Sanctions (Appendix, page A-4) and assess the evidence. As a result, the Fifth Circuit, affirming the District Court, failed to perform its error correcting role. If the Fifth Circuit is not going to exercise its duty to review the decisions of the District Court then the Fifth Circuit should be abolished. B. THE DISTRICT COURT’S DECISION TO IMPOSE SANCTIONS WAS BASED UPON A CLEARLY ERRONEOUS ASSESSMENT OF THE EVIDENCE. The thrust of Respondents’ Motion for Sanctions pur- suant to § 1927 was that Petitioners filed suit in Missis- sippi without any basis for or investigation of the allegations for personal jurisdiction contained in the Complaint. (Appendix, page J-6 through J-7). However, the original Complaint was filed by T. Roe Frazier, not Wayne Ferrell or Terry O'Reilly. As an afterthought, Respondents’ Motion alleged that Petitioners engaged in unreasonable and vexatious discovery by filing an overly broad Plaintiff's Particularized Statement of Subject Mat- ter of Discovery on October 6, 1994, issued thirteen (13) Subpoena Duces Tecums to non-parties and filing their Motion to Strike. The District Judge acknowledged that aggressive discovery tactics were verified in this case due to the false declarations under penalty of perjury pro- vided by some of Respondents’ representatives. (Appen- dix, page B-8 through B-9). The merit of aggressive discovery in this case was likewise acknowledged by the 14 Fifth Circuit. (Appendix, page A-4). Regardless, the Dis- trict Court, affirmed by the Fifth Circuit, imposed sanc- tions due to Petitioners’ “aggressive discovery tactics.” The District Court’s imposition of sanctions is an abuse of discretion because it is based upon a clearly erroneous assessment of the evidence. The Fifth Circuit validated the District Court’s error when it failed to properly review the evidence and perform its error cor- recting function. Accordingly, the Court should hear this case to rectify the Fifth Circuit’s failure. (1) The Fifth Circuit Failed In Its Error Cor- recting Role When It Affirmed The District Court’s Finding That The Petitioners Unreasonably And Vexatiously Multiplied The Proceedings By Submitting Peti- tioners’ Particularized Statement of Sub- ject Matter Discovery. Plaintiff’s Particularized Statement of Subject Matter Discovery was, in fact, filed in agreement made by the parties pursuant to District Court’s Order of September 27, 1994. The District Court’s September 27, 1995, Order states: That the parties are to agree on the subject mat- ter of discovery needed for the Plaintiff to respond to Defendant’s Motion to Dismiss by October 12, 1994, and that if the parties cannot agree to such subject matter, they shall submit simultaneous briefs on the issue to the Court by October 17, 1994; a 15 That the parties shall conduct any of the limited discovery agreed upon by the parties by Decem- ber 12, 1994; or within sixty (60) calendar days of the Court Order establishing the permitted discovery if necessary for the Court to enter such an Order in the event that the parties are unable to agree on the permitted discovery. | (See Appendix, page J-9). George Miller, counsel for the Respondents, memorialized this agreement in his letter to Petitioners on October 11, 1994, as follows: Pursuant to Judge Pickering’s September 27, 1994, Order, I called today to discuss “the sub- ject matter of discovery needed for the Plaintiff to respond to Defendant’s Motion to Dismiss.” After I had outlined Defendant’s proposal, you asked that I reduce our proposal in writing and send it to you with a copy to Terry O'Reilly. This letter is in response to your request... . Because Judge Pickering’s Order enjoined the parties to agree on the scope of jurisdictional discovery by October 12 or submit briefs by October 17, I would appreciate hearing from you promptly. (See Appendix, pages J-10 through J-13). The Petitioners’ proposed discovery in accordance with the District Court’s Order and the Respondents accepted that offer. Respondents’ agreement was further outlined by Mr. Mil- ler's letter to Wayne Ferrell dated November 21, 1994, which states in part: Enclosed please find the information which we promised in our agreement on the scope of dis- covery with respect to personal jurisdiction. Specifically, | am enclosing a response to certain requests for information described in Plaintiff's 16 “Particularized Statement of Subject Matter Dis- covery” for Defendants, Aerospatiale, Inc., ATR Marketing, Inc., Avions de Transport Regional, G.LE., and Aerospatiale, S.N.I. Pursuant to our agreement, each response contains information by way of answers to Interrogatories responsive to paragraphs 8-10, 12, 14-16, and 22-27 of Plain- tiff’s “particularized statement.” (See Appendix, pages J-14 through J-15). The agreement on the scope of discovery is also evidenced by Erick Lowery’s letter to the District Court dated October 17, 1994, and by letter from Mr. Miller to Wayne Ferrell dated October 14, 1994. (See Appendix, pages J-16 through J-19). In Mr. Miller’s letter, he suggests that the parties jointly write a letter to the District Court stating the following: I suggest that the joint letter be sent to Judge Pickering on Monday read as follows: Dear Judge Pickering: In accordance with Your Honor’s Order of September 27, 1994, the par- ties have reached an agreement on a program of discovery to be conducted with respect to the issues of personal jurisdiction. In view of their agreement, the parties do not plan to file briefs today setting forth their positions on the appropriate scope of discovery. We trust that the Court will let the parties know if the foregoing mode of proceeding is in any way unsatisfactory to the Court. 17 The “contested matters” to which reference is made in the proposed joint letter to Judge Pick- ering are Plaintiff's claim of entitlement to the information described in paragraphs 1 through 6 of Plaintiff’s so-called “particularized state- ment” served by October 4. The “program of discovery to be conducted” refers.to the pro- posal made by Defendants in my letter dated October 11, 1994. Although I neglected to mention this matter when we spoke on the phone this afternoon (for which I apologize), we would also propose that the parties agree that Defendant shall provide discovery in accordance with the October 11 proposal for a period from 1985 to the present, unless Plaintiff’s “particularized statement” calls for information covering a shorter period. (See Appendix, pages J-16 through J-19). As shown by the information contained in the Appendix, the parties agreed to the scope of discovery. Based upon the agree- ment of the parties, it is clear that the District Court abused its discretion when it imposed sanctions pursuant to U.S.C. § 1927 upon the Petitioners for unreasonably and vexatiously multiplying the proceedings. (2) The Fifth Circuit Failed In Its Error Cor- recting Role When It Affirmed The District Court’s Finding That Petitioners Unreason- é ably And Vexatiously Multiplied The Pro- ceedings By Issuing Thirteen (13) Subpoenas Duces Tecum. The District Court concluded that Petitioners unrea- sonably and vexatiously multiplied the proceedings by 18 issuing Subpoena Duces Tecum to thirteen (13) non-par- ties on or about January 6, 1990, after receiving an exten- sion of the discovery period (Appendix, pages B-12 through B-13). In so doing, the District Judge stated that Petitioners obtained the extension through misrepresen- tation. The District Court, however, is clearly mistaken in this regard and the Fifth Circuit failed to recognize the District Court’s error. First, the District Court erroneously found that the request to extend the discovery period was made uni- laterally by the Petitioners. (Appendix, pages J-20 through J-22). The Amended Order actually submitted to the District Court was prepared by Respondents’ counsel, Mr. Miller, signed by all counsel, and stated that it was “on the joint motion of the parties.” (Appendix, pages J-20 through J-22). Second, the Amended Order states: This matter having come on fer hearing on the joint motion of the parties to extend the limited jurisdictional discovery and time for responding to Defendant’s Motion to Dismiss, and the Court having considered the matter and being fully advised in the premises, finds that the Motion is well taken and should be sustained. (Appendix, page J-20). The District Court did not limit discovery in any manner and certainly did not limit the extension of discovery to the taking of the depositions of the Respondents’ designated depositions. In fact, the Amended Order submitted jointly by the parties and signed by the District Court reads: That the Order entered on the 27th day of Sep- tember, 1994, be amended and the parties shall 19 conduct any of the limited discovery agreed upon by the parties by January 20, 1995. (Appendix, page J-20). Petitioners received Respondents’ responses to the Particularized Statement of Subject Matter Discovery on or about November 21, 1994. Petitioners had reason to believe that at least one of the responses was false. Peti- tioners then took depositions of Respondents and discov- ered that the designated representatives (who are supposed to be the persons having the most knowledge about their respective companies) had not conducted any research into their company’s contacts with the State of Mississippi. Petitioners then had no choice but to issue Subpoena Duces Tecum to obtain documents showing that at least one of the Defendant’s Declarations Under Penalty of Perjury in response to Plaintiff's particularized statements of the subject matter of discovery was false. The Subpoena Duces Tecum required no extra work on behalf of Respondents, except inasmuch as Respon- dents elected to file a Protective Order to prevent Peti- tioner from proving that the Declarations Under Penalty of Perjury and the responses to Particularized Statement of the Subject Matter Discovery were false. Appellant either worked out agreements with the non-parties or submitted Agreed Orders to the District Court withdraw- ing the Subpoena Duces Tecum,? so Respondents were * The Subpoenas Duces Tecum served on four (4) non- parties, Beech Aerospace, Inc., U.S. Navy in Meridian, Mississippi; U.S. Navy Contracting Office in Pascagoula, Mississippi; and the Keesler Air Force Base in Biloxi, Mississippi were solved by Agreed Orders to withdraw the 20 not required to take any action, did not have to incur any expenses or any attorney’s fees as to these Subpoenas. Further, although the District Court limited the scope of the Subpoena Duces Tecum and ordered that the deposi- tions could take place on a limited basis, the District Court never suggested that the Subpoena Duces Tecum should be quashed in their entirety or that the deposition of the non-parties should not take place. (Appendix, pages J-28 through J-32). Indeed, the Petitioner proved that the declaration of Aerospatiale was false by issuing the Subpoena Duces Tecum to Vickers, Inc., of Jackson, Mississippi. The docu- ments produced pursuant to the Subpoenas revealed that, contrary to the declarations of Thierry Tuot avering that Aerospatiale S.N.I. had never had a representative visit the State of Mississippi. Aerospatiale, in fact, had three (3) employees visiting and inspecting the Vickers, Inc. plant in Jackson, Mississippi, very near the time Mr. Tuot’s declaration was filed. Also, contrary to Aero- spatiale’s discovery responses wherein Aerospatiale denied ever having conducted business in the State of Mississippi or having entered into a contract with a resi- dent of the State of Mississippi, the issuance of the Sub- ~poena Duces Tecum prompted counsel for Aerospatiale, S.N.I. to “suddenly discover” the existence of a contract between Aerospatiale and Vickers, Inc., which was part of a relationship that existed for a period of over twenty (20) years and had resulted in sales of over $3,700,000.00 in Subpoenas which required no involvement by the Appellees. (Appendix, pages J-23 through J-27). 21 1993 alone.? To add insult to injury, Mr. Miller, counsel for Aerospatiale, represented to the District Court at a hear- ing that he had notified Appellant of this “newly discov- ered” information within ten to fourteen days after it was brought to his attention. The date of the letter revealing these contacts to Appellant was January 13, 1995. The deposition of Theirry Tuot, taken January 16, 1995, revealed that Mr. Miller was advised of the “mistake” before the Christmas holidays. Therefore, at a minimum, more than three weeks expired before Mr. Miller advised Petitioners and/or the District Court of the discrepancy.‘ (Appendix, pages J-3 through J-4). * It is noteworthy that Respondent, Aerospatiale, S.N.I., did not recognize its “error” as to the extent of its contacts with the State of Mississippi until Petitioner issued the Subpoena Duces Tecum to the thirteen (13) non-parties. Arguably, Respondents’, Aerospatiale, N.C.I., unreasonably and vexatiously multiplied the proceedings in this case by filing at least one false declaration under penalty of perjury and false responses to particularized statement of subject matter of discovery. * The following chronology of events should assist the Court in considering the misconduct of Defendants and the basis for some of the actions taken by Petitioners’ counsel: Aug. 1993 Aerospatiale, S.N.I. employees are in Mississippi at Vickers plant serge June 1994 Declaration of Thierry Tuot stating Aerospatiale, S.N.I. has had no contacts with MS Aug.-Sept. 1994 Aerospatiale, S.N.I. employees are in Mississippi at Vickers plant Nov. 1994 Aerospatiale, S.N.I. submits unsigned Responses to Certain Requests for Information, denying any contacts with Mississippi 22 Lastly, the District Court erroneously found that, in response to Defendants’ Emergency Motion to Enforce Order Governing Discovery on Personal Jurisdiction and to Quash Subpoenas served on thirteen (13) non-parties, Petitioners argued without authority that Respondents’ contacts outside the State of Mississippi with Mississippi corporations would be relevant to the issue of personal jurisdiction. The case Petitioner relied upon was Wilkin- son v. Mercantile National Bank of Dallas, 529 So.2d 616 (Miss. 1988). The Wilkinson case holds that, if a company that does business outside the State of Mississippi com- mits a tort outside the State of Mississippi which causes damage in the State of Mississippi, then the tort occurs partly in Mississippi and the Mississippi Courts have jurisdiction of that company. A reasonable extension of Wilkinson is that business activity occurring outside the State of Mississippi that results in payments being made to Mississippi corporations inside the State of Mississippi is at least discoverable information with regard to the issue of minimum contacts and personal jurisdiction. Dec. 16-21, 1994 George Miller, counsel for Aerospatiale, S.N.I., is advised by Thierry Tuot of that company’s relationship with Vickers in Mississippi _______Jan. 5, 1995 ___ Petitioners’ counsel-issues_14 -Subpoenas————- Duces Tecum to non-parties, including Vickers Jan. 13, 1995 Letter from George Miller to Wayne E. Ferrell, Jr. acknowledging Aerospatiale, S.N.I.’s contacts with Mississippi Jan. 23, 1995 Aerospatiale, S.N.I. submits its corrected Responses to Certain Requests for Information, outlining its contacts with Mississippi 23 Accordingly, Petitioners did not at any time misrepresent to the District Court that they had a case which they did not have. Instead, the District Court merely disagreed with Petitioners’ interpretation of Wilkinson. (3) The Fifth Circuit Failed In Its Error Cor- recting Role When It Affirmed The District Court’s Finding That Petitioners Unreason- ably And Vexatiously Multiplied The Pro- ceedings By Serving Fifty (50) Requests for Production. The Amended Order prepared by the Respondents and signed by the District Court extended the limited jurisdictional discovery period in this case to January 20, 1995. (Appendix, pages J-20 through J-22). Petitioner served Respondents with fifty (50) requests for produc- tion of documents on January 20, 1995. Respondents responded to these requests without filing any objections or seeking any protection from the District Court. Also, Respondents never filed the required pre-dis- covery disclosure information and never provided Peti- tioners with documents as required by the pre-discovery disclosure rules. Instead, Respondents filed a Motion to Dismiss supported by Declarations Under Penalty of Per- jury, which Petitioner had good reason to suspect con- tained false statements. Petitioner had no other way of proving Respondents made false statements to the Dis- trict Court other than issuing the Subpoenas to non- Parties (as previously discussed) and submitting requests for production of documents to Respondents. If Respon- dents had provided information in the pre-discovery dis- closure stage, provided correct information in their 24 Declarations Under Penalty of Perjury, or provided cor- rect and complete information in the F.R.C.P. 30(b)(6) depositions, the request for production of documents and Subpoenas would have been unnecessary. As it turns out, at least one of the Respondents was found to be conducting business in the State of Missis- sippi to the extent of $3.7 million in 1993 alone and had an ongoing business relationship with a Mississippi busi- ness for a period of over twenty (20) years. Petitioner had a duty to zealously represent his client and not to stand idly while Respondents made false representations to the District Court in an attempt to avoid the District Court's jurisdiction. Petitioners’ actions did not vexatiously and unreasonably multiply the praceedings, and the District Court’s ruling on this item is clearly erroneous and should have been found to be contrary to the evidence and reversed by the Fifth Circuit. (4) The Fifth Circuit Failed In Its Error Cor- recting Role When It Affirmed The District Court’s Finding That Petitioners Unreason- ably And Vexatiously Multiplied The Pro- ceedings By Filing A Motion to Strike. The District Court erroneously concluded that the Petitioner-unreasonably and vexatiously multiplied the proceedings by filing a Motion to Strike. (Appendix, page B-14). The District Court, however, abused its discretion when it assessed sanctions regarding the filing of the Motion to Strike without allowing the Petitioners an opportunity to argue the Motion to Strike; considering the Motion to Strike; and ruling on the Motion to Strike. The Fifth Circuit erred when it affirmed the District = 25 Court’s findings and imposition of sanctions without con- sidering the District Court's actions. Petitioners were justified in filing the Motion to Strike because at least one of the Respondents had filed a false declaration under penalty of perjury and false responses to the Plaintiffs’ particularized statement of the subject matter of discovery. The District Court had taken no action, sua sponte, and appeared content to let the fraudulent conduct go unpunished. Petitioners’ Motion to Strike pleaded three alternative methods by which the District Court could have remedied the unacceptable con- duct of Respondents, yet the District Court, without con- sidering the merits of the Motion, found the Petitioners’ Motion to be factually and legally without basis and chose to sanction Petitioner. On or about June 27, 1994, Thierry Tuot, general counsel for Aerospatiale, S.N.I., filed a declaration under penalty of perjury as follows: I have no personal knowledge of any employees of Aerospatiale visiting the State of Mississippi on behalf of Aerospatiale or of any contacts initiated with the State of Mississippi by Aero- spatiale employees on behalf of Aerospatiale at any time in the past. Further, after conducting an investigation, I have discovered no evidence of any visits to or contacts with the State of Mississippi by Aerospatiale personnel on behalf of the company at any time. In accordance with 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. 26 (Appendix, page J-50). Respondents also provided an unsigned Particularized Statement of Fact which was to be signed by Mr. Tuot which claimed, as did Mr. Tuot’s affidavit, that Aerospatiale had never been to Mississippi, and did not have any connection with anyone in Missis- sippi. Mr. Tuot testified in his deposition that he was an attorney with Aerospatiale, S.N.I.; that he began work with Aerospatiale in 1991; that he had no personal knowl- edge about any of the events that occurred from 1985 to 1991. Mr. Tuot said that he made an investigation and checked with several individuals with Aerospatiale, but had no knowledge whether those individuals were even with Aerospatiale from the period of time of 1985 to 1991. It was obvious from the deposition of Mr. Tuot that he had no personal knowledge of the business of Aero- spatiale for the period of time from 1985 to 1991 and had no knowledge as to whether Aerospatiale did any busi- ness in the State of Mississippi from 1985 to 1991. (Appendix, pages J-51 through J-56). It is indeed strange that after Mr. Tuot signed a declaration under penalty of perjury (stating that Aerospatiale had no connection in the State of Mississippi; that Aerospatiale had never been to the State of Mississippi; and that Aerospatiale did not have any contacts with the residents of the State of Mis- sissippi), and immediately after Subpoenas Duces Tecum were issued to non-parties (including Vickers, Inc., which had a facility in Jackson, Mississippi), that representatives of Aerospatiale suddenly discovered they had been to Missis- sippi and, in fact, were in Mississippi near the very time Mr. Tuot insisted that he had performed an investigation and discovered that there were no Aerospatiale employees in the State of Mississippi. A copy of the many responses to the Particularized Statement of Fact (which were not —S ee 27 signed by Mr. Tuot) prove that the initial Declaration Under Penalty of Perjury was false. (Appendix, pages J-57 through j-63). Respondents filed declarations under penalty of per- jury with the District Court in an effort to have the Complaint and the Amended Complaint dismissed. Respondents chose representatives who had little knowl- edge about their company’s business during the relevant time frame. For instance, Thierry Tuot did not work for and had no personal knowledge of the activities con- ducted by Aerospatiale in the United States from 1985 to 1991. Likewise, Gregory Bradford began working with Aerospatiale, S.N.I. in November of 1990, and remained there until January 1, 1991, when he joined Aerospatiale, Inc. Mr. Bradford, like Mr. Tuot, was not even working for Aerospatiale, S.N.I. or Aerospatiale, Inc., from the period of 1985 to 1990 and had no personal knowledge about any of the business affairs of those companies at the time. Roberto Camiz signed a Declaration Under Pen- alty of Perjury that he had knowledge of Alenia’s, a division of Finneccianica’s, contacts with the State of Mississippi. When taking Mr. Camiz’s deposition, how- ever, he admitted that he had no personal knowledge about any of the things contained in the declaration that he signed, under penalty of perjury, and his Response and Particularized Statement of Fact was based solely upon his conversation with other lawyers in other depart- ments of Finneccianica. At least one of the Declarations under Penalty of Perjury (that of Thierry Tuot) was false, and the District Court should have sanctioned the Defen- dant. Rather, the District Court ignored the Petitioners’ request; refused to rule on Petitioners’ Motion to Strike; and failed to even give Petitioner a hearing on its Motion eee 28 to Strike. The District Court, instead, abused its discre- tion when it chose to sanction Petitioner for filing the Motion to Strike. Petitioner filed the Motion to Strike, not for any improper purpose or in bad faith, but to preserve the integrity of the judicial system by seeking appropriate disciplinary action against Respondents for intentionally, or at least recklessly, submitting to the [istrict Court false statements on material facts. Accordingly, the facts of this case prove Petitioner did not unreasonably and vex- atiously multiply these proceedings. It was an abuse of the District Court’s discretion to conclude Petitioners’ Motion to Strike “was totally without basis in law or fact and was nothing but a delay in harassment technique perpetrated against [Respondents]” without hearing, con- sidering or ruling on the Motion. (Appendix, page B-14). For these reasons, the District Court’s award of sanctions against the Petitioner on this issue is contrary to the weight of the evidence and should have been reversed and set aside by the Fifth Circuit. C. THE DISTRICT COURT’S ASSESSMENT OF THE EVIDENCE IS CLEARLY ERRONEOUS AND CONTRARY TO PRECEDENT. Sanctions—pursuant to § 1927 should be imposed “only in instances evidencing a ‘serious and standard disregard for the orderly process of justice.’ ” White v. American Airlines, Inc., 915 F.2d 1414, 1427 (10th Cir. 1990) (quoting Dryling v. Peugeot Motors of America, Inc., 768 F.2d 1159, 1165 (10th Cir. 1985) (quoting Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1167 (7th Cir. 1968), cert. denied, 395 U.S. 908, 89 S.Ct. 1750, 23 L.Ed.2d 221 (1969). 29 Further, the guiding objective of § 1927 sanctions is to deter any purposeful and unnecessary delay of the pro- ceedings. Zuk, 103 F.3d at 297, quoting Beatrice Foods, 899 F.2d at 1177. Specifically, the Court must find a willful bad faith on the part of the party to be sanctioned prior to imposing penalties under § 1927. Id., quoting Williams v. Giant Eagle Markets, Inc., 833 F.2d 1184, 1191 (3d Cir. 1999). Based upon the evidence presented herein, the Dis- trict Court’s assessment that the Petitioners unreasonably and vexaciously multiplied the proceedings is clearly erroneous and a departure from the standard for the imposition of sanctions pursuant to 28 U.S.C. § 1927. In light of this deviation, and the Fifth Circuit’s failure to conduct an assessment of the evidence under the appro- priate standard of review in light of the applicable law, Petitioners respectfully request that the Court exercise its discretion to hear this case for the purpose of performing an error correcting function in its role as supervisor of federai litigation. IV. CONCLUSION The Fifth Circuit denied Petitioners their right to due process guaranteed by the Constitution of the United States of America by failing to promulgate and utilize proper procedures for the ruling on procedural motions, such as motions for extension, and by failing to afford Petitioners oral argument, when requested, or an expla- nation of its refusal to hear oral argument. Further, the Fifth Circuit failed to perform its appellate function when it failed to apply the appropriate standard of review and assess the evidence in light of the applicable law when 30 considering the District Judge’s imposition of sanctions pursuant to 28 U.S.C. § 1927. Accordingly, this Court should hear the instant case to correct the Fifth Circuit's procedural shortcomings and failure to perform its appel- late role. Respectfully submitted, this the 22 day of June, 1999. Wayne E. Ferret, Jr. Mississippi Bar No. 5182 Attorney at Law Counsel of Record 405 Tombigbee Street Jackson, Mississippi 39205 (601) 969-7514 Of Counsel: Terry O’Retmty, Esq. O’Renty & CoLtins A PROFESSIONAL CORPORATION 2500 Sand Hill Road, Suite 201 Menlo Park, California 94025 (650) 854-7700 ES = eS A-1 APPENDIX A UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 98-60098 Summary Calendar (Filed Feb. 19, 1999) TONY B. JOBE, Assignee of AIR NEW ORLEANS, INC., Plaintiff-Appellant, versus ATR MARKETING, INC.; AVIONS DE TRANSPORT REGIONAL, (G.LE.); AEROSPATIALE, S.N.L; FINMECCANICA S.P.A., Individually and doing business as Alenia (a division of Finmeccanica), also known as Aeritalia S.P.A. and the Successor in the Interest of Aeritalia;s AEROSPATIALE, INC.; DEFENDNTS [sic] A-M, Defendants-Appellee Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:94-CV-18-PG Before WISDOM, DUHE, and DeMOSS, Circuit Judges. PER CURIAM:* Counsel for named Plaintiff-Appellant Tony Jobe appeal a ruling of the district court ordering counsel to pay $15,000 in attorneys fees to counsel for the defen- dants. The district court ordered this award as a form of sanctions under 28 U.S.C. § 1927, for unreasonably and vexatiously multiplying the proceedings. We affirm. Before addressing the merits of the case, we address the issue of jurisdiction. Appellees counsel have failed to identify themselves as the appealing party as required by Fed.R.App.P. 3 (c). If counsel have, in fact, failed to comply with Rule 3, the appeal itself is defective, and this Court does not have jurisdiction to hear it.! The notice of appeal lists Tony B. Jobe as the appel- lant in both the caption and the body of the document. Nowhere does the document itself explain that it is in fact Jobe’s counsel who are appealing the order of sanctions. Jobe’s counsel contends that the statement that the appeal is being filed for Jobe “by and through his counsel” is sufficient under the caselaw of this Circuit.? The precedent cited by Jobe may be inapplicable to the case at bar. We decline ATR’s invitation to review the *Pursuant to 5TH Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH Cir. R. 47.5.4. 1 New York Life Ins. Co. v. Desohtel, 142 F.3d 873, 884 (Sth Cir. 1998). 2 Garcia v. Wash, 20 F.3d 608, 609-10 (5th Cir. 1994). al A-3 jurisdictional question, however, as the appeal itself is plainly without merit. We review a district court’s order of sanctions under § 1927 for an abuse of discretion.4 In the case at bar counsel for Jobe undertook the following actions for which the district court ordered sanctions: (1) issued a “particularized statement of discovery” which was, in fact, overly broad, unduly burdensome, and requested irrelevant information; (2) issued thirteen subpoenas duces tecum after being granted an extension of discov- ery for the sole purpose of conducting telephonic deposi- tions; (3) issued fifty requests for production of documents on the last day by which discovery was to be completed; and (4) filed a motion for default judgment and to strike all of defendant’s responsive pleadings which the district court found to be without basis in law or fact. Appellants argue that under the caselaw of this Cir- cuit, sanctions under § 1927 “should be ‘sparingly applied’ and, only if the entire litigation was unwar- ranted and should never have been filed or pursued, should the Court utilize § 1927 to shift the financial burden of defending the action.”5 This incomplete recita- tion of Fifth Circuit precedent is exactly the type of > Texas Employers’ Ins. Ass'n v. Jackson, 862 F.2d 491 (5th Cir. 1988). * Travelers Ins. Co. v. St. Jude Hosp. of Kenner, 38 F.3d 1414, 1416-17 (Sth Cir. 1994). > Appellant's Brief at p. 12, citing F.D.I.C. v. Calhoun, 34 F.3d 1291, 1297 (5th Cir. 1994) (internal citations omitted). A-4 misrepresentation of law for which counsel was origi- nally sanctioned. The case to which appellants cite actu- ally stands for the proposition that the entire financial burden shouid be shifted only if the entire litigation was unwarranted. In the case at bar, the district court refused to shift the entire financial burden and instead imposed limited sanctions of $15,000. Appellants further argue that they were, in essence, forced to undertake unreasonable discovery procedures by false statements made under oath by representatives of the defendants. As the district court noted in its order, this would certainly warrant “aggressive” discovery pro- cedures, but not the vexatious and deceitful discovery practiced by counsel for Jobe. We conclude by noting that it is the district judge who is in the best possible position to assess fairly the damage caused by this type of litigation technique, and it is for that reason that the abuse of discretion standard is in place. Finding no abuse of discretion, we AFFIRM. B-1 APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI HATTIESBURG DIVISION TONY B. JOBE, Assignee of AIR NEW ORLEANS, INC. PLAINTIFF VERSUS CIVIL ACTION NO. 2:94-CV-18PS ATR MARKETING, INC., AEROSPATIALE, AERITALIA, and AVIONS de TRANSPORT REGIONAL (G.LE.) DEFENDANTS MEMORANDUM OPINION AND ORDER (Filed Aug. 28, 1996) This matter is before the Court on Defendants’ Motion for Sanctions against Plaintiffs Counsel pursuant to this Court’s inherent power, 28 U.S.C. § 1927, and the Mississippi Litigation Accountability Act. The Court hav- ing considered the Motion, the response, the briefs of counsel, the authorities cited, the pleadings and exhibits on file, and having conducted at least two oral argument hearings on various phrases [sic] of this case and numerous telephone conferences, finds as follows, to wit: The Defendants’ basic allegation is that Plaintiffs counsel failed to conduct any investigation or at least a proper investigation into whether or not this Court had jurisdiction over the Defendants. Defendants also assert that Plaintiffs counsel have advanced spurious legal theo- ries and made factual representations without first con- ducting an investigation into the accuracy of those representations and that they have misrepresented facts to the Court, made reckless allegations of impropriety B-2 against the Defendants and their counsel and engaged in unreasonable and vexatious discovery and violated Court orders. The Defendants assert that they are entitled to an award of sanctions against Plaintiffs counsel in an amount equal to the attorney fees and expenses reason- ably incurred by the Defendants in this action. This matter was originally filed in this Court on January 12, 1994. On June 29, 1994, all Defendants filed a Motion to Dismiss for lack of personal jurisdiction. The Plaintiff responded by requesting to hold the Motion to Dismiss in abeyance pending completion of discovery. On July 21, 1994, the Magistrate Judge denied the Motion to hold in abeyance and stayed all discovery pending this Court’s ruling on Defendants’ Motion to Dismiss. On September 20, 1994, the Plaintiff moved to amend the complaint and to be allowed certain discovery on the jurisdictional issue. On September 27, 1994, after a tele- phonic hearing, this Court entered an Order allowing the Plaintiff to amend the complaint and to conduct limited discovery as set forth in the Order. The limited discovery period was to terminate on December 12, 1994. By agree- ment of the parties, the deadline for conducting discov- ery was extended to January 20, 1995. On January 6, 1995, after the Court had entered a January 4, 1995, Order allowing the extension of discov- ery, the Plaintiff caused to be issued subpoenas duces tecum to thirteen non parties. On January 11, 1995, the Defendants moved to enforce the Court’s prior Order governing discovery and to quash the Plaintiffs sub- poenas served upon the thirteen non parties. After con- ducting various hearings and telephone conferences on the subject, the Court on January 24, 1995, entered an B-3 Order on Defendant's emergency motion to enforce the Order governing discovery and ordered the Plaintiff to comply with the Court’s previous Order limiting discov- ery to jurisdictional issues. Thereafter, on January 27, 1995, the Plaintiff filed its amended response to the Defendants’ motion to dismiss. On February 3, 1995, the Defendants filed their rebuttal to that response to which the Plaintiff, on February 7, 1995, moved the Court to strike the responsive pleadings filed by the Defendants and for entry of default judgment. On May 3, 1995, the Court conducted oral arguments on the Defendants’ motion to dismiss and granted that motion based on lack of personal jurisdiction over all Defendants. That ruling was memorialized in an Order entered on May 10, 1995 On May 24, 1995, the Defendants filed the present motion pending before the Court for sanctions against the Plain- tiffs counsel. This case has been long and overly contentious litiga- tion. The Plaintiff was the owner of a commuter airline operating out of New Orleans. He apparently had entered into preliminary negotiations to purchase certain aircraft from the Defendants for use in that airline business. The Plaintiff had also entered into something similar to a joint venture agreemen: with Continental Airlines whereby Continental would handle certain administrative, sched- uling and baggage handling functions for the Plaintiffs company, Air New Orleans. To facilitate the consumma- tion of this joint venture agreement, the Plaintiff appar- ently turned over certain confidential financial documents and strategic plans to Continental Airlines. In separate litigation, the Plaintiff has alleged that Continen- tal Airlines misused that information and improperly ‘ B-4 provided it to these Defendants to the detriment of Plain- tiff and Air New Orleans. At any rate, the allegation of the complaint before the Court is that these Defendants, through fraud or otherwise, refused to sell six commuter airplanes to the Plaintiff because of some covert connec- tion with Continental Airlines who had misappropriated Air New Orleans’ strategic plan for its own benefit. The Plaintiff has asserted to the Court that he filed suit against Continental Airlines in Texas and procured a rather substantial settlement. However, Continental Air- lines was placed in bankruptcy and the Plaintiff has admitted candidly that the value of his settlement against Continentai Airlines was greatly reduced. Apparently either during that litigation or shortly thereafter, the Plaintiff filed the present action against these Defendants because of the alleged fraudulent connection between these Defendants and Continental Airlines which resulted in the Defendants’ refusing to consummate the sale of the six commuter airplanes to the Plaintiff. As a result, the Plaintiff alleges that his company went into bankruptcy and was ultimately shut down. The basis of Defendants’ motion to dismiss was that this Court lacked personal jurisdiction over any of the defendants. The Plaintiff hotly contested this all the way up through the oral argument hearing on the motion to dismiss and has appealed this Court’s dismissal of his action. The Fifth Circuit has now affirmed that decision. To say that the Plaintiff was tenacious in trying to estab- lish personal jurisdiction would be a gross understate- ment. Every time the Defendants asserted a defense against personal jurisdiction, the Plaintiff provided a new, and usually novel, basis for the Court to assert eee B-5 personal jurisdiction. Ultimately the Court ruled against the Plaintiff and in favor of the Defendants finding that it had no personal jurisdiction over any of the Defendants. After the conclusion of the hearing on the motion to dismiss, the Defendants filed the present motion assert- ing that they are entitled to attorneys’ fees and costs expended by them in defending this claim for the grounds asserted above. The Defendants have moved the Court to exercise its inherent powers to award them their full attorneys’ fees and costs or in the alternative to proceed under 28 U.S.C. § 1927 or the Mississippi Litiga- tion Accountability Act. The Defendants asserted in their original motion that they were not moving for sanctions under Rule 11. However, in reply to the Plaintiffs response and in supplemental replies the Defendants now assert that if the Court chooses to enter sanctions pursuant to Rule 11 it is within the Court’s discretion. What concerns the Court most about the conduct of counsel for Plaintiff is that counsel argued so forcefully and with such seeming sincerity about matters as to which he had no basis in some instances in the law and in other instances in the facts for the position that he was taking. In retrospect, this Court is well aware that the original order of the Magistrate Judge denying Plaintiff the opportunity to do discovery or to amend his plead- ings was correct and should have been followed by this Court. However, this Court out of an abundance of pre- caution and because of the persistence and apparent sin- cerity of counsel for Plaintiff did not want to foreclose Plaintiff if he had a legitimate cause of action. However, because of the aggressive but misplaced argument of counsel for Plaintiff, the Court did permit the discovery B-6 to go forward and even after that point counsel continued to be less than candid with the Court and with counsel opposite and persisted in maintaining positions that were and are untenable. Specifically the Court is concerned that counsel for the Plaintiff failed to acknowledge that residence was a prerequisite under clearly established Mississippi case law for obtaining jurisdiction under the doing business prong of the long arm statute. It is also obvious that counsel for Plaintiff filed documents before this Court under oath that Plaintiffs Principal place of business was in Mississippi at the same time Plaintiff was maintaining in other jurisdictions that it’s [sic] principal place of business was in Louisiana. The two positions are contradictory. The obvious futility of Plaintiff's position in this regard is borne out by the fact that Plaintiff entirely abandoned this argument before the Fifth Circuit Court of Appeals. The Court is likewise concerned that counsel for Plaintiff represented to the Court and counsel for the Defendant that there was an extension of discovery needed for the purpose of taking telephonic 30(b)(6) depositions. Immediately after the Court entered the Order making the extension so that counsel could con- duct these telephonic depositions, counsel served sub- poenas upon thirteen non parties. Attorneys representing clients before this Court are officers of the Court. Counsel should have advised the Court of all of the reasons coun- sel desired an extension, then the Court could have made an informed decision to allow the extension or not to allow the extension. As it was, the Court only knew part of the reason that counsel for the Plaintiff was asking for an extension. This Court has a right to expect counsel to ee ees - B-7 be candid and forthcoming. Counsel at no time repre- sented to this Court that counsel had in mind such exten- sive discovery when counsel prevailed upon the Court to extend the discovery deadline. Counsel likewise misrepresented to the Court that counsel had a case holding that contracts fulfilled outside of the State of Mississippi would have a bearing on whether a Defendant was doing business in this State if such contracts were with corporations domiciled in the State of Mississippi. Although counsel expressly and specifically represented this to the Court in a telephone conference, when the Court called upon counsel to pro- vide the case that counsel had told the Court he had, he was unable to furnish such a case: The Court did not think that the argument counsel for Plaintiff was making was in accordance with controlling case law, and for that reason asked counsel for the Plaintiff if he had authority for his argument. The colloguy went something like this: “Do you have a Mississippi case that holds this?” Response: “Yes.” “Well, I want to see it, send me a copy of it.” Response: “I will do that.” This case would have been terminated long ago had it not been for the persistence of counsel for the Plaintiff in stating to the Court facts that were not supported either by the law in some instances or by the facts in other instances. The conclusion that the Court reaches in this matter is tempered somewhat by the fact that counsel for the B-8 Plaintiff has represented that his aggressiveness is due in part to his being aware of a case in another jurisdiction in which the defendant had not been forthcoming. Counsel for the Defendant is right that whether Defendant was or was not forthcoming in a matter being litigated in another forum is not material to any issue before this Court. It does, however, give some explanation as to the aggressiveness of counsel for Plaintiff in trying to elicit information from the Defendants. However, in the opin- ion of this Court, counsel for the Plaintiff went beyond the bounds of propriety in conducting discovery and arguing to the Court as will be more fully set out later. This Court also is aware and the final judgment in this case will be tempered by the fact that Defendant or at least one of the Defendants made misrepresentations to the Court. The Court does not find that these misrepre- sentations were willful but nevertheless they were mis- statements. First, the Defendant Aerospatiale, SNI, provided an affidavit or declaration that it had never had representatives in the State of Mississippi when in fact this was not true. Additionally, the same Defendant denied that it had any contracts or had done any business in Mississippi when it turned out that this company had done business with Vickers of Jackson for a considerable period of time and in 1993 alone had sales of over 3.7 million dollars. Whether this information was deliberate or not, it does give Plaintiff's counsel a reason to be aggressive in trying to determine the truthfulness of the information provided by the Defendants. However, as previously indicated, the Court is of the opinion that even taking that into consideration that there were B-9 instances in which counsel for Plaintiff took positions that were unreasonable and vexatious. Counsel on a number of times was requested to agree to things that obviously should have been agreed to and he refused and declined to do so. It appears that counsel for the Plaintiff would not even have agreed to the time of the day if both his watch and that of the Defendant were synchronized. That kind of failure to cooperate while not alone providing a basis for awarding attorneys fees taken together with the total conduct of counsel for Plaintiff does provide the basis for the award of attorney fees which will be set out more fully in the balance of this opinion. This Court has concluded under the totality of the situation that the Court should not use its inherent power to sanction Plaintiff. However, the totality of the circumstances has been taken into account as the Court rules on specific instances of unreasonable and vexatious conduct. An attorney has a duty of one hundred percent loy- alty to his client. Neither his self interest nor the interest of any person can come ahead of an attorney's obligation to his client. An attorney has a responsibility to vigor- ously represent his client, but the duty of representation never imposes upon an attorney a responsibility to be discourteous, uncoopera‘ive, to conceal facts, to misrep- resent, to harrass, or to be unreasonable or vexatious. The Court is aware of the power it possesses to enter appropriate sanctions under its inherent powers pursuant to the Supreme Court's dictates in Chambers v. Nasco, 501 U.S. 32, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991). However, the Court is also well aware of the criticisms of using its B-10 inherent power in the face of specific statutory or Rule authority allowing the Court to appropriately sanction undesirable conduct. For the reasons stated hereinafter, the Court is of the opinior-that the appropriate way to sanction the complained of conduct in this case is not under its inherent power but instead under 28 U.S.C. § 1927. Neither will the Court address sanctions under Rule 11 since the Court is of the opinion that the matter is appropriately resolved under § 1927. 28 U.S.C. § 1927 provides: Any attorney or other person admitted to con- duct cases in any court of the United States or any territory thereof who so multiplies the pro- ceedings in any case unreasonably and vex- atiously may be required by the court to satisfy personally the excess costs, expenses and attor- ney fees reasonably incurred because of such conduct. This section does not allow an imposition of costs, expenses or attorney fees against parties but only against their attorney or attorney-parties. The Plaintiff in this case is an attorney. See, Breazeale v. Smith, 857 F.2d 258 (5th Cir. 1988). As the Fifth Circuit has pointed out, § 1927 only creates liability “for excess costs, expenses and attorney fees reasonably incurred because of the attor- ney’s unreasonable and vexatious multiplication of the proceedings.” Browning v. Kramer, 931 F.2d 340, 344 (Sth Cir. 1991). “Under § 1927, only those fees and costs asso- ciated with ‘the persistent prosecution of a meritless claim’ may be awarded.” Thomas v. Capital Security Ser- vices, Inc., 836 F.2d 866, 875 (5th Cir. 1988) (en banc). “Except when the entire course of proceedings were B-11 unwarranted and should neither have been commenced nor persisted in, an award under § 1927 may not shift the entire financial burden of an action’s defense.” Browning v. Kramer, 931 F.2d at 345. In order to award sanctions under § 1927 the Court must find that the attorney's conduct in multiplying the proceedings was both unrea- sonable and vexatious. See, Federal Deposit Insurance Corp. v. Connor, 20 F.3d 1376 (5th Cir. 1994). Based upon the Court’s determination that neither Plaintiff nor Plaintiff's counsel is subject to sanction under Rule 11 or the inherent powers of this Court, the Court is bound by the dictates of § 1927 and the cases interpreting that section to specifically delineate the pro- ceedings which, in the opinion of the court, Plaintiff’s counsel commenced or persisted in which unreasonably and vexatiously multiplied the proceedings before the Court. The Defendants in their motion, have delineated what they consider to be eight specific instances of con- duct by plaintiff's counsel which unreasonably and vex- atiously multiplied the proceedings. The Court has carefully reviewed those eight specific instances and the Plaintiff's response thereto and has recalled its involve- ment in this case from its inception and the untoward amount of time it spent on resolving the various ques- tions relating to jurisdictional issues presented to reach its conclusion in this case and to reach the conclusions contained hereinafter in support of this decision. The Court therefore finds that Plaintiff's counsel has unreasonably and vexatiously multiplied the proceedings B-12 in this case before the Court in the following specific instances: 1. The Court is of the opinion that the Plaintiff’s particularized statement of subject matter discovery filed on October 6, 1994, pursuant to this Court’s September 27, 1994, order of the Court unreasonably and vexatiously multiplied the proceedings. The Court finds that the ' Plaintiff’s requests, contained in what was supposed to be a “particularized statement”, were overly broad and unduly burdensome. The statement requested informa- tion that was totzlly irrelevant in time and place to the limited discovery permitted by this Court. The Court is also of the opinion that Plaintiff’s counsel, in response to requests from Defendants to clarify the discovery requests, were tardy, discourteous and unprofessional. The Court is therefore of the opinion that the Defendants are entitled to an appropriate award of attorney’s fees and costs regarding this item. 2. The second item which the Court views as having unreasonably and vexatiously multiplied the proceedings in this case was Plaintiff’s counsel’s issuance of sub- poenas duces tecum to thirteen non party witnesses on January 6, 1996, after having received an uncontested extension of the discovery period. The Defendants made a reasonable offer to compromise the objection to the subpoenas if the subpoena recipients were only required to provide information on contacts with Defendants within the State of Mississippi. Plaintiff refused this com- promise and forced the Defendants to bring the matter to the Court for resolution. The court conducted a telephone conference on the Defendants’ emergency motion to enforce the order governing discovery in which Plaintiff’s a B-13 counsel represented to the Court that he had a Missis- sippi Supreme Court case supporting his position. After having been directed by the Court to fax a copy of that case to the Court and to counsel opposite, Plaintiff's counsel instead faxed a number of cases which were not as represented by counsel. Plaintiff’s counsel then filed a response to the Defendants’ emergency motion in which he argued, without authority, that the Defendants’ con- tacts outside Mississippi with Mississippi corporations would be relevant to sustain the court’s jurisdiction over the Defendants. This Court ultimately granted the Defendants’ emer- gency motion in part by limiting the Plaintiff's discovery from the thirteen non party witnesses to information related to their contacts with the Defendants in Missis- sippi. The Defendants offer to compromise this situation previously was in line with what the Court ultimately ordered. The Court is therefore of the Opinion that the Plaintiff's counsels’ actions were unreasonable and vex- atious in multiplying the proceedings in regard to this item and finds that the Defendants are entitled to an award of fees and costs incurred in connection with the Emergency Motion to Enforce This Court’s Previous Order of September 27, 1994. 3. The next item which the Court considers that the Plaintiff’s counsel unreasonably and vexatiously multi- plied the proceedings in this matter was when the Plain- tiff’s counsel served fifty requests for production of documents on the Defendants on January 20, 1995, which was the last day by which discovery was to be completed. The Defendants assert that out of an abundance of cau- tion they responded to the discovery requests even B-14 though they were not required to. The Court is therefore of the opinion that the Plaintiff's counsel’s conduct in serving the late discovery vexatiously-and unreasonably multiplied the proceedings. However, the Court is further of the opinion that defense counsel's choice to respond to that discovery may have increased the costs beyond what was reasonable. Therefore, even though the Court is of the opinion that the Defendants are entitled to recover certain expenses and costs for responding to the Plain- tiff’s late discovery, the Court will make a final deter- mination upon that after it receives the Defendants’ itemized statements of time and affidavits in support thereof. 4. The next item which the Court feels that the Plaintiff's counsel unreasonably and vexatiously multi- plied the proceedings in this cause deals with the Plain- tiff’s counsel’s motion to strike the responsive pleadings filed by the Defendants and motion for entry of default judgment filed on February 7, 1995. The Court is of the opinion that the Plaintiff's ntotion was totally without basis of law or fact and was nothing but a delay and harassment technique perpetrated against the Defen- dants. The Court is therefore of the opinion that the Defendants are entitled to recover their expenses and costs for responding to that motion. The Court, having concluded that the Defendants are entitled, as sanctions for Plaintiff's counsel’s vexatious and unreasonable conduct in this litigation in the speci- fics provided above, to a reasonable amount of attorney’s fees and other expenses incurred by the Defendants in defending against these specific acts of misconduct, hereby orders that the Defendants’ and the Plaintiff’s a B-15 counsel shall attempt to agree upon the amount of the above fees and expenses. However, prior to trying to agree counsel shall initiate a telephone conference with the Court which is to be held no later than ten (10) days from the date of this Order. Mr. Ferrell has the respon- sibility of scheduling this telephone conference with the Court and with counsel opposite. If within fifteen (15) days of this conference, the parties are unable to reach an agreement, the Defendants shall file and serve an itemized statement of such fees and expenses along with supporting affidavits regarding reasonable hourly rates. The Court would advise the parties that it is aware that Defendants’ counsel has asserted entitlement to an hourly fee of $300 to $310 per hour and that the Court will be very hesitant to find such an hourly rate reasonable for the type of jurisdictional discovery and motions filed in this action. The Court has advised counsel of this so that they may all be prepared to respond accordingly. The Court is further aware that both parties have requested oral argument on this motion. However, “the right to a hearing . . . is limited to cases where a hearing would assist the court in its decision.” Travelers Insurance Co. v. St. Jude Hospital of Kenner, 38 F.3d 1414, 1418 (Sth Cir. 1994). The Court is of the opinion that oral argument or a hearing on the motion pending before the Court would not assist in its resolution beyond the pleadings and papers on file. The Court has already permitted the parties to conduct conferences and arguments that under the facts and law of this case were not justified. Based on the Court’s awareness of the issues, and the briefs already filed, the Court does not find that oral argument would be helpful. B-16 SO ORDERED AND ADJUDGED this the 28th day of August, 1996. /s/ Charles W. Pickering, Sr. CHARLES W. PICKERING, SR. UNITED DISTRICT JUDGE C-1 APPENDIX C IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-60098 TONY B JOBE, Assignee of Air New Orleans Inc Plaintiff - Appellant v. ATR MARKETING, INC; AVIONS DE TRANSPORT REGIONAL, (G.LE.); AEROSPATIALE, S.N.L.; FINMECCANICA S.P.A., Individually and doing business as Alenia (a division of Finmeccanica), also known as Aeritalia S.P.A. and the Successor in the Interest of Aeritalia; AEROSPATIALE, INC.; DEFENDANTS A-M Defendants - Appellees Appeal from the United States District Court for the Southern District of Mississippi, Hattiesburg ON PETITION FOR REHEARING (Filed Mar. 24, 1999) Before WISDOM, DUHE and DeMOSS, Circuit Judges. PER CURIAM: IT IS ORDERED that the petition for rehearing filed in the above case is denied ENTERED FOR THE COURT: /s/ John Minor Wisdom United States Circuit Judge D-1 APPENDIX D FRAP 26. COMPUTATION AND EXTENSION OF TIME (a) Computation of Time. In computing any period of time prescribed or allowed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule “legal holiday” includes New Year’s Day, Birthday of Martin Luther King, Jr., Washington’s Birthday, Memorial Day, Indepen- dence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States. It shall also include a day appointed as a holiday by the state wherein the district court which rendered the judgment or order which is or may be appealed from is situated, or by the state wherein the principal office of the clerk of the court of appeals in which the appeal is pending is located. (b) Enlargement of Time. The court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may - ee - D-2 permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal, a petition for allowance, or a petition for permission to appeal. Nor may the court enlarge the time prescribed by law for filing a petition to enjoin, set aside, suspend, modify, enforce or otherwise review, or a notice of appeal from, an order of an administrative agency, board, commission or officer of the United States, except as specifically authorized by law. (c) Additional Time after Service. When a party is required or permitted to act within a prescribed period after service of a paper upon that party, 3 calendar days are added to the prescribed period unless the paper is delivered on the date of service stated in the proof of service. FIFTH CIRCUIT RULE 26 26.1 Computing Time. Except for briefs and appendices, all other papers, including petitions for rehearing, shall not be timely unless they are actually received by the clerk within the time fixed for filing. Briefs and appendices shal! be deemed filed on the day dispatched to the clerk by a third-party commercial carrier for delivery within 3 calendar days, or on the day of mailing if the most expeditious form of delivery by mail is used. The additional 3 days after service by mail, or after delivery to a commercial carrier for delivery within 3 calendar days as referred to in Fed. R. App. P. 26(c), applies only to matters served by a party and not to filings with the clerk of such matters as petitions for rehearing under Fed.R.App. P. 40, suggestions for rehearing en banc under Fed. R. App. P. 35, and bills of costs under Fed. R. App. P. 39. D-3 26.2 Extensions of Time. The court's policy requires the timely filing of all papers within the period of time allowed by the rules, without granting extensions of time, except for good cause shown. Failure to process appeals timely will cause their dismissal for want of prosecution, without further notice, under the provisions of 5th Cir. R. 42. If the right to file a reply brief is waived, parties or counsel should immediately notify the clerk to expedite submission of the case to the court. FRAP 31. FILING AND SERVICE OF A BRIEF (a) Time for Serving and Filing Briefs. The appellant shall serve and file a brief within 40 days after the date on which the record is filed. The appellee shall serve and file a brief within 30 days after service of the brief of the appellant.. The appellant may serve and file a reply brief within 14 days after service of the brief of the appellee, but, except for good cause shown, a reply brief must be filed at least 3 days before argument. If a court of appeals is prepared to consider cases on the merits promptly after briefs are filed, and its practice is to do so, it may shorten the periods prescribed above for serving and filing briefs, either by rule for all cases or for classes of cases, or by order for specific cases. (b) Number of Copies to Be Filed and Served. Twenty- five copies of each brief must be filed with the clerk, and two copies must be served on counsel for each party separately represented unless the court requires the filing or service of a different number by local rule or by order in a particular case. If a party is allowed to file type- written ribbon and carbon copies of the brief, the original and three legible copies must be filed with the clerk, and , N . D-4 one copy must be served on counsel for each party sep- arately represented. (c) Consequence of Failure to File Briefs. If an appellant fails to file a brief within the time provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal. If an appellee fails to file a brief, the appellee will not be heard at oral argument except by permission of the court. FIFTH CIRCUIT RULE 31 31.1 Briefs - Number of Copies. Only 7 copies of briefs shall be filed in all cases. 31.2 Briefs — Time for Filing Briefs of Intervenors or Amicus Curiae. In order to provide for maximum utilization of the options permitted by Fed. R. App. P. 28(i), the time for filing the brief of the intervenor or amicus is extended until 15 days after the filing of the principal brief of the party supported by the intervenor or amicus. For purposes of Fed. R. App. P. 31 (a), the time for filing the next brief shall run from that date. 31.3 Briefs —- Time for Mailing or Delivery to a Commer- cial Carrier. Appellant's brief must be sent to the clerk not later than 40 days after the date of the briefing notice. Pur- suant to Fed. R. App. P. 26(c), appellee has 33 days from the date of the certificate of service to place the brief in the mail or to give it to a third-party commercial carrier for delivery within 3 calendar days. This rule may not be combined with the additional time provisions of Fed. R. App. P. 26(c) to give the appellee 36 days to file a brief. The certificate of service required by Fed R. App. P. 25(d) must be shown at the conclusion of the brief and must be dated. See 5th Cir. R. 39.2 D-5 for limitations on recovery of certain mailing and commercial delivery costs. 31.4 Briefs — Time for Filing Briefs of Parties. 31.4.1 General Provisions. The court expects briefs to be filed timely and without extensions in the vast majority of cases. No extensions are automatic, even where the request is unopposed. Any requests for extensions — including initial extensions and extensions that can be granted by the clerk — should be made sparingly. No extension can be granted without good cause shown as required by Fed. R. App. P.26(b), or without meeting the additional requirements contained in the Sth Cir. Rules. (a) A request for extension should be made as soon as it is reasonably possible to foresee the need for the extension. The request shall be received by the clerk at least 7days before the due date (including Saturdays, Sundays, and holidays as pro- vided in Fed. R. App. P. 26(a)), unless the movant demon- strates, in detail, that the facts that form the basis of the motion either did not exist earlier or were not, or with due diligence could not have been, known earlier. (b) Before requesting an extension, the movant must contact all other parties to determine whether the request is opposed. Movants should request only as much time as is absolutely needed. The pendency of a motion for extension does not toll the time for compliance. 31.4.2 Grounds for Extensions. As justification for extensions, generalities, such as that the purpose of the motion is not for delay or that counsel is too busy, are not sufficient. Grounds that may merit consideration for extensions are, without lim- itation, the following, which must be set forth if claimed as a D-6 reason in any motion for a Level 2 or Level 3 extension (as defined in 5th Cir. R. 31.4.3): (a) Engagement of counsel in other litigation, provided such litigation is identified by caption, number, and court, and there is set forth: (1) A description of any effort taken to defer the other litiga- tion and of any ruling thereon; (2) An explanation of why other litigation should receive priority over the case at hand; and, (3) Other relevant circumstances, including why other asso- ciated counsel cannot prepare the brief or relieve the movant's counsel of the other litigation. (b) The matter is so complex that an adequate brief cannot reasonably be prepared when due. (c) Extreme hardship will result ualess an extension is granted, in which event the nature of the hardship must be set forth in detail. 31.4.3 Levels of Extensions. There are three levels of exten- sions: a Level 1 extension of 1-30 days from the original due date; a Level 2 extension of 31-60 days from the original due date; and a Level 3 extension of more than 60 days from the original due date. 31.4.3.1 Level 1 Extensions. The clerk is authorized to grant, deny, or take other appropriate action for the court on unop- posed Level 1 extensions. The court prefers that the request be made by telephone, but it may be by written motion or letter. When making the request, the movant must explain what good cause exists for the extension. If the extension is granted by telephone, the movant shall immediately send a confirming D-7 letter to the clerk, with copies to all parties. Instead of acting on the request, the clerk may refer it to the court. If the request is opposed, it shall be made only by written motion setting forth why there is good cause. The motion shall state the initial due date, whether any other extension has been granted, the length of the requested extension, and which parties have expressed opposition. Opposed extensions may be acted upon only by the court. 31.4.3.2 Level 2 Extensions. The clerk is authorized to grant, deny, or take other appropriate action for the court on unop- posed Level 2 extensions. The request must be made by written motion, with copies to all parties, stating the initial due date, whether any other extension has been granted, the length of the requested extension, and whether the motion is opposed. More than ordinary good cause is required for a Level 2 extension. The movant must demonstrate diligence and sub- stantial need and must show in detail what special circum- stances exist that make a Level 1 extension insufficient. Instead of acting on the motion, the clerk may refer it to the court. Opposed extensions may be acted upon only by the court. 31.4.3.3 Level 3 Extensions. Level 3 extensions shall be acted upon only by the court and are greatly disfavored. They will be granted only under extraordinary circumstances and for the most compelling reasons. The motion shall state the initial due date, whether any other extension has been granted, the length of the requested exten- sion, and whether the motion is opposed. The motion shall disclose facts that establish that with due diligence, and giving priority to the preparation of the brief, it is not reasonably possible to file the brief timely. Factual statements shall be set D-8 forth with specificity. In cases in which a party may be in custody, the motion must state the custodial status, including the status of any bail. 31.4.4. Extensions for Reply Briefs. All extensions of time for filing reply briefs are greatly disfavored, as the court assumes that the parties have had ample opportunity to present their arguments in their initial briefs and that extensions for reply briefs only delay submission of the case to the court. E-1 APPENDIX E FRAP 34. ORAL ARGUMENT (a) In General; Local Rule. Oral argument shall be allowed in all cases unless pursuant to local rule a panel of three judges, after examination of the briefs and record, shall be unanimously of the opinion that oral argument is not needed. Any such local rule shall provide any party with an opportunity to file a statement setting forth the reasons why oral argument should be heard. A general statement of the criteria employed in the admin- istration of such local rule shall be published in or with the rule and such criteria shall conform substantially to the following minimum standard: Oral argument will be allowed unless (1) the appeal is frivolous; or (2) the dispositive issue or set of issues has been recently authoritatively decided; or (3) the facts and legal arguments are adequately pre- sented in the briefs and record and the decisional process would not be significantly aided by oral argument. (b) Notice of Argument; Postponement. The clerk shall advise all parties whether oral argument is to be heard, and if so, of the time and place therefor, and the time to be allowed each side. A request for postponement of the argument or for allowance of additional time must be made by motion filed reasonably in advance of the date fixed for hearing. I Ray AY Doran BEG ne bgt EEL OD CLEFT RIA PELE LOADING NL OIL IL YES = 8 E-2 (c) Order and Content of Argument. The appellant is entitled to open and conclude the argument. Counsel may not read at length from briefs, records, or authorities. (d) Cross and Separate Appeals. A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the court otherwise directs. If a case involves a cross appeal, the party who first files a notice of appeal, or in the event that the notices are filed on the same day the plaintiff in the proceeding below, shall be deemed the appellant for the purpose of this rule unless the parties otherwise agree or the court otherwise directs. If separate appellants support the same argument, care shall be taken to avoid duplication of argument. (e) Non-appearance of Parties. If the appellee falls to appear to present argument, the court will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee, if present. If neither party appears, the case will be decided on the briefs unless the court shall otherwise order. (f) Submission on Briefs. By agreement of the parties, a case may be submitted for decision on the briefs, but the court may direct that the case be argued. (g) Use of Physical Exhibits at Argument; Removal. If physical exhibits other than documents are to be used at the argument, counsel shall arrange to have them placed in the court room before the court convenes on the date of the argument. After the argument counsel shall cause the exhibits to be removed from the court room unless the court otherwise directs. If exhibits are not reclaimed by counsel within a reasonable time after notice is given by E-3 the clerk, they shall be destroyed or otherwise disposed of as the clerk shall think best. FIFTH CIRCUIT RULE 34 34.1 Docket Control. In the interest of docket control, the chief Judge may from time to time appoint a panel or panels to review pending cases for appropriate assignment or disposition under this rule or any other rule of this court. 34.2 Oral Arguments. Oral argument shall be allowed in ail cases except those unanimously determined by a three-judge panel of the court to fall in I of the 3 categories specified by Fed. R. App. P. 34(a). Those cases will be placed on the summary calendar for decision without oral argument. Those cases to be orally argued will be calendared by the clerk based upon the court's calendaring priorities. Counsel for each party must present oral argument unless excused by the court for good cause shown. The oral argument docket will show the time the court has allotted for each argument. If counsel for all parties indicate pursuant to paragraph .3 of this rule that oral argument is not necessary, the case will be governed by Fed. R. App. P. 34(f). 34.3 Submission Without Argument. A party who desires to waive oral argument in a case noticed for oral argument must file a motion for permission to waive in advance of the date set for hearing. 34.4 Number of Counsel To Be Heard. Not more than 2 counsel will be heard for each party on the argument of a case, and the time allowed may be apportioned between counsel in their discretion. E-4 34.5 Expediting Appeals. The court may, on its own motion or for good cause shown on motion of either party, advance any case for hearing, and prescribe an abbreviated briefing sched- ule. 34.6 Continuance of Hearing. After a case has been set for hearing, it may not be continued by stipulation of the parties or their counsel, but only by an order of the court on good cause shown. Engagement of counsel in other courts will not be considered good cause. 34.7 Recording of Oral Arguments. No cameras, tape recorders, or other equipment designed for the recording or transmission of visual images or sound may be present or used during oral argument; provided, however, that with the advance approval of the presiding judge, counsel may arrange, at their own expense, for a qualified court reporter to be present to record and transcribe oral argument. If it is the usual practice of such court reporter to do so, the reporter may make and utilize a sound recording for the sole purpose of preparing an accurate transcript, then must immediately destroy or erase the recording without making it available to counsel, a party, or any other person for any purpose. The court records oral argument for its exclusive use and does not make the tapes, or copies or transcripts thereof available to counsel, the parties, or any other person. 34.8 Criminal Justice Act Cases. The court expects court- appointed counsel to present oral argument. Presentation of oral argument by an associate attorney not appointed under the act will only be allowed under the most pressing and unusual circumstances, upon advance authorization. 34.9 Checking In with Clerk’s Office. As provided on the calendar, on the day of hearing counsel should first check in E-5 with the clerk 30 minutes in advance of the convening of court to confirm with the courtroom deputy the name of the attorney or attorneys who will present argument for each party and how the argument time will be divided between opening and rebut- tal. All counsel in the fourth and fifth cases on the docket heard in New Orleans have the privilege of checking in by telephone, but must report in person to the clerk's office within one hour after court convenes. On the last day of the New Orleans session, all attorneys must report in person to the clerk's office 30 minutes before court convenes. 34.10 Submission Without Argument. When a case ts placed on the oral argument calendar, a judge of the court has deter- mined that oral argument would be helpful in that particular case. Therefore, requests of the parties to waive oral argument are not looked upon with favor, and counsel may be excused only by the court for good cause shown. See 5th Cir. R. 34.3. If appellant fails to appear in a criminal appeal from convic- tion, the court will not hear argument from the United States. 34.11 Time for Oral Argument. The time for oral argument will be indicated on the printed calendar. Most cases are allowed 20 minutes to the side. The word “side” refers to parties in their position on appeal. Where in doubt, the clerk's office should be consulted. 34.12 Additional Time for Oral Argument. Additional time for oral argument is sparingly permitted. Requests for addi- tional time for oral argument should be set forth in a motion or letter to the clerk filed well in advance of the oral argument. 34.13 Calling the Calendar. Usually the court will not call the calendar unless there are some special problems requiring E-6 attention. The court proceeds to hear the cases in the order in which they appear on the calendar. * * * F-1 APPENDIX F IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-60098 TONY B JOBE, Assignee of Air New Orleans Inc Plaintiff - Appellant Vv ATR MARKETING, INC; AVIONS DE TRANSPORT REGIONAL, (G.LE.); AEROSPATIALE, S.N.L; FINMECCANICA S.P.A., Individually and doing business as Alenia (a division of Finmeccanica), also known as Aeritalia S.P.A. and the Successor in the Interest of Aeritalia; AEROSPATIALE, INC.; DEFENDANTS A-M Defendants - Appellees os Appeal from the United States District Court for the Southern District of Mississippi, Hattiesburg (Filed Jul. 7, 1998) ORDER: IT IS ORDERED that motion of appellant to stay case pending litigation in related case number 96-3396-R in the Eastern District Court of Louisiana is denied. F-2 IT IS FURTHERED ORDERED that motion of appel- lant to extend time to file appellant's brief for 45 days, up to and including August 20, 1998, is granted. /s/ Robert M. Parker ROBERT M. PARKER UNITED STATES CIRCUIT JUDGE G-1 APPENDIX G IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-60098 TONY B JOBE, Assignee of Air New Orleans Inc Plaintiff - Appellant Vv ATR MARKETING, INC; AVIONS DE TRANSPORT REGIONAL, (G.L.E.); AEROSPATIALE, 5S.N.L; FINMECCANICA §S.P.A., Individually and doing business as Alenia (a division of Finmeccanica), also known as Aeritalia S.P.A. and the Successor in the Interest of Aeritalia; AEROSPATIALE, INC.; DEFENDANTS A-M Defendants - Appellees Appeal from the United States District Court for the Southern District of Mississippi, Hattiesburg (Filed Aug. 3, 1998) ORDER: IT IS ORDERED that appellant's motion to withdraw original brief and record excerpts, and to re-file within the forty-five (45) days previously granted, or, until August 20, 1998, is DENIED /s/ Harold R. DeMoss, Jr. HAROLD R. MoO. JR. UNITED STATES CIRCUIT JUDGE H-1 APPENDIX H IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-60098 TONY B JOBE, Assignee of Air New Orleans Inc Plaintiff - Appellant V. ATR MARKETING, INC; AVIONS DE TRANSPORT REGIONAL, (G.L.E.); AEROSPATIALE, S.N.L; FINMECCANICA S.P.A., Individually and doing business as Alenia (a division of-Finmeccanica), also known as Aeritalia S.P.A. and the Successor in the Interest of Aeritalia; AEROSPATIALE, INC.; DEFENDANTS A-M Defendants - Appellees Appeal from the United States District Court for the Southern District of Mississippi, Hattiesburg (Filed Sep. 16, 1998) Betore EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges. BY THE COURT: 'T IS ORDERED that appellant's motion for leave to tile motion for clarification and reconsideration of this Court's orders of July 7, 1998 and August 3, 1998 out of time is GRANTED H-2 IT IS FURTHERED ORDERED that appellant's motion for clarification and reconsideration of this Court’s orders of July 7, 1998 and August 3, 1998 is DENIED IT IS FURTHER ORDERED that appellant's motion for an extension of time to file reply brief, to and includ- ing September 9, 1998 is GRANTED IT IS FURTHER ORDERED that appellant’s motion to substitute the appellant’s brief on appeal is DENIED /s/ EMG, HRD, FPB I-1 APPENDIX I IN THE UNiTED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-60098 TONY B JOBE, Assignee of Air New Orleans Inc Plaintiff - Appellant v. ATR MARKETING, INC; AVIONS DE TRANSPORT REGIONAL, (G.LE.); AEROSPATIALE, S.N.L; FINMECCANICA S.P.A., Individually and doing business as Alenia (a division of Finmeccanica), also known as Aeritalia S.P.A. and the Successor in the Interest of Aeritalia; AEROSPATIALE, INC.; DEFENDANTS A-M Defendants — Appellees Appeal from the United States District Court for the Southern District of Mississippi, Hattiesburg (Filed Nov. 13, 1998) ORDER: IT IS ORDERED that appellant’s motion for leave to file reply brief out of time is DENIED /s/ Harold R. DeMoss, Jr. HAROLD R. DeMOSS, JR. UNITED STATES CIRCUIT JUDGE J-1 APPENDIX J UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI HATTIESBURG DIVISION TONY B. JOBE, ASSIGNEE OF AIR NEW ORLEANS, INC. Plaintiff V. CIVIL ACTION NO. 2:94cv18PS ATR MARKETING, INC., ET AL) _ Defendants COURT REPORTER’S TRANSCRIPT OF ORAL ARGUMENT ON DEFENDANTS’ MOTION TO DISMISS BEFORE HONORABLE CHARLES W. PICKERING, SR. UNITED STATES DISTRICT COURT JUDGE May 3, 1995 Hattiesburg, Mississippi APPEARANCES: MR. WAYNE E. FERRELL, JR. P.O. Drawer 24448 Jackson, MS 39225-4448 MR. ORVIS A. SHIYOU, JR. P.O. Box 310 Hattiesburg, MS 39403-0310 Representing the Plaintiff EXHIBIT — [p. 2. APPEARANCES (CONT'D) MR. GEORGE W. MILLER 555 Thirteenth St., N.W. Washington, D.C. 20004 J-2 MR. ERIK MARTIN LOWREY P.O. Box 485 Hattiesburg, MS 39403 Representing the Defendants ALSO PRESENT: Mr. Tony B. Jobe, Plaintiff Ms. Tammy Rogers, Secretary COURT REPORTER: Margaret A. Kinchen, RPR-CM 701 N. Main Street, Room 253 Hattiesburg, MS 39401 (601) 583-4383 + * * [p. 31] THE COURT: Let me ask you why did you all file affidavits that y’all were doing no business in the State of Mississippi when you were doing millions of dollars of business in the State of Mississippi? MR. MILLER: Your Honor, that affidavit was filed. It was believed to be true at the time it was filed. We later discovered it was erroneous. As soon as we discovered it, we advised Mr. Ferrell of that information. THE COURT: But that was after he had issued subpoenas to a large number of companies? MR. MILLER: That’s true. We had discovered the information before he issued the subpoena. He had served answers to interrogatories. I had directed the cli- ent — THE COURT: You had discovered it before he served the subpoenas? MR. MILLER: Yes, sir. J-3 THE COURT: But you did not reveal it to him until after he served the subpoenas? MR. MILLER: Because he had served interroga- tories that called for specific information about those contracts, and we were in the process of gathering that information. As soon as we got it, we supplemented our answers to interrogatories. THE COURT: But in the meantime, he had issued those subpoenas which insured he was going to get it. MR. MILLER: That is true. In the meantime - [p. 32] THE COURT: Mr. Miller, | take very seriously filing affidavits that ain’t true. MR. MILLER: Your Honor, no more serious than I. I couldn’t agree with you more. That’s absolutely right. I take it very seriously. THE COURT: Somebody somewhere were will- ing to sign something that they either were careless and they didn’t know was false or that they deliberately knew it was false. MR. MILLER: Well, they didn’t deliberately know it was false. I can assure you of that, Your Honor. THE COURT: Then they had to be careless. MR. MILLER: They were caretess. I agree with Your Honor. It was a mistake. THE COURT: You’re an officer of the court. Did you know that? J-4 MR. MILLER: I did not know it. As soon as | became aware of these facts, I - THE COURT: How long was it after you became aware of it before you let Mr. Ferrell know about it? MR. MILLER: Within ten days or two weeks, Your Honor. THE COURT: And it was during that interval that these subpoenas were issued? MR. MILLER: That is correct. That is correct. But the information had come to the client’s attention before that. [p. 33] The client advised me. I told the client, Look, find out this, that and the other thing. These were all things that had been asked for in interrogatories that Mr. Ferrell had served. I wanted to be able to supplement our answers to interrogatories. It took them a little while to get that information as soon as they got it, we supple- mented our answers to interrogatories. We produced the contracts in question. I regret that the initial declaration turned out to be incorrect, but there was no intention to mislead the Court. As soon as we became aware of the true facts, we cofrected the filing with the court. But | apologize for the initial filing. \ THE COURT: All right. You may make your rebuttal. MR. MILLER: Your Honor, one question ‘was raised with respect to the anticipated place of delivery under the alleged contract. The alleged contract is Exhibit 8 to the defendants’ reply to plaintiff's amended response J-5 to defendants’ motion to dismiss. Exhibit 8 is the pro- posal dated December 5, 1986, made by Avions De Trans- port Regional to Air New Orleans. And in the very first paragraph on page 1, it is stated, “Subsequent delivery of the aircraft being implemented in Toulouse (France).” There is no dispute, Your Honor, that delivery was con- templated to be made in France in this case, not in New Orleans or in Mississippi as was perhaps suggested inad- vertently in Mr. Ferrell's argument. Secondly, with respect to the cases that-Mr. Ferrell drew * * * [p. 38] CERTIFICATE OF COURT REPORTER I, Margaret A. Kinchen, CSR, RPR-CM, Official Court Reporter for the United States District Court for the Southern District of Mississippi, appointed pursuant to the provisions of Title 28, United States Code, Section 753, do hereby certify that the foregoing is a correct transcript from the record of proceedings in the above- entitled and numbered cause. I further certify that the transcript fees and format comply with those prescribed by the Court and the Judi- cial Conference of the United States. /s/ Margaret A. Kinchen MARGARET A. KINCHEN, RPR-CM OFFICIAL COURT REPORTER J-6 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI HATTIESBURG DIVISION TONY B. JOBE, Assignee of AIR NEW ORLEANS, INC., Plaintiff, v. No. 2:94-CV-18PS ATR MARKETING, INC., AEROSPATIALE, AERITALIA, and AVIONS de TRANSPORT REGIONAL (G.LE.), Defendants. DEFENDANTS’ MOTION FOR SANCTIONS AGAINST PLAINTIFF’S COUNSEL (Filed May 24, 1995) Pursuant to this Court’s inherent power, 28 U.S.C. § 1927, and the Mississippi Litigation Accountability Act, Defendants hereby move for sanctions against Plaintiff's counsel, including an award of the reasonable attorneys’ fees and expenses incurred by Defendants in this matter. Prior to filing the Complaint, Plaintiff’s counsel failed to conduct any investigation into whether this Court had jurisdiction over Defendants. After taking dis- covery from Defendants, Plaintiff’s counsel still lacked any factual support\for the exercise of jurisdiction over Defendants, yet he continued to argue that jurisdiction was proper. J-7 In addition, throughout this litigation, Plaintiff's counsel has advanced spurious legal theories, made fac- tual representations without first conducting an investi- gation into the accuracy of those representations, misrepresented facts to the Court, made reckless allega- tions of impropriety against Defendants and their coun- sel, engaged in unreasonable and vexatious discovery, and violated Court Orders. By reason of such conduct, which is more fully set forth in the attached Memorandum of Authorities in Sup- port of Defendants’ Motion for Sanctions Against Plain- tiff’s Counsel, Defendants ask the Court to award to them, as sanctions against Plaintiff's counsel, an amount equal to the attorneys’ fees and expenses reasonably incurred by Defendants in this action. Pursuant to Local Rule 8(f), counsel for Defendants requests oral argument on this motion. Respectfully submitted, OF COUNSEL: George W. Miller, PHV No. 40715 James J. Moore, PHV No. 40716 HOGAN & HARTSON L.LF. 555 Thirteenth Street, N.W. Washington, D.C. 20004 202/637-6575 Dated: May 24, 1995 /s/ Erik M. Lowrey Erik M. Lowrey ERIK M. LOWREY, P.A. 214 West Pine Street Hattiesburg, Mississippi 39403-0485 601/582-5015 a State Bar. No. 1466 Attorney for Defendants J-8 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI HATTIESBURG DIVISION TONY JOBE, Assignee of AIR NEW ORLEANS, INC. PLAINTIFF VERSUS 2:94-CV-18PS ATR MARKETING, INC., AEROSPATIALE AERITALIA, and AVIONS de TRANSPORT REGIONAL (G.LE.) DEFENDANTS ORDER ~ (Filed Sep. 27, 1994) This matter is before the Court on defendants’ motion to dismiss, plaintiff's motion for leave to amend complaint and for status conference to establish limited discovery schedule regarding jurisdictional issues. The Court, having heard from counsel for all parties and being fully advised in the premises, finds as follows, to-wit; That in the interest of judicial economy and commen- surate with the parties’ interest in concluding this matter as expeditiously as possible, the plaintiff should be allowed to amend his complaint and then be allowed to conduct limited discovery directed at only the jurisdic- tional issues addressed in defendants’ motion to dismiss before the Court rules thereon. IT IS THEREFORE ORDERED; That plaintiff shall file his amended complaint by October 7, 1994; That the plaintiff shall submit to the defendants a particularized statement of the subject matter of the ]-9 discovery needed to respond to defendants’ motion to dismiss by October 4, 1994; That the parties are to agree on the Subject matter of the discovery needed for the plaintiff to respond to defendants’ motion to dismiss by October 12, 1994, and that if the parties cannot agree on such subject matter, they shall submit simultaneous briefs on the issue to the Court by October 17, 1994; That the parties shall conduct any of the limited discovery agreed upon by the parties by December 12, 1994; or within sixty (60) calendar days of the Court order establishing the permitted discovery if necessary for the Court to enter such an order in the event the parties are unable to agree on the permitted discovery; That within five (5) calendar days after the permitted discovery is completed, the plaintiff shall submit any supplemental response he wishes to defendants’ motion to dismiss; That within five (5) working days after the plaintiff submits any supplemental response to defendants’ motion to dismiss he chooses, the defendants shall sub- mit any suppl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0480%3A1. Public record. Not legal advice.