*1 ... injury and irreparable constitute it lost required show
movant is not 678, in the Corp., F.2d at GTE
sales,” an insufficient GM made
present infringement. respect
showing with obligated court was
Thus the district and could injury to irreparable GM
to find compensation “monetary
conclude and sufficient
may ample be well ultimately prevails.” We
event GM court did not
determine balancing discretion its
abuse
harms.
Ill
AFFIRMED. AMLONG, P.A., Karen &
AMLONG al., Amlong, Interested et
Coolman
Parties-Appellants, Inc., Services,
DENNY’S, INC., T.W. al., Defendants-Appellees.
et
No. 04-14499. Appeals, States Court
United
Eleventh Circuit.
July 2006. Oct. 2006.
As Amended Sept.
As Amended *4 Cochran,
George The University of Mis- Ctr., sissippi, University, MS, Law for Ap- pellants. Stearns,
Jon K. Stage, Weaver, Miller, Weissler, Sitterson, P.A., Alhadeff & Ft. Lauderdale, FL, Stearns, Joan M. Canny, Weaver, Miller, Weissler, Alhadeff & Sit- terson, P.A., Marcus, Averill G. Averill G. Marcus, P.A., Miami, FL, Klein, A. Hinda Conroy, Ganon, Simberg, Krevans, Abel, Lurvey, Schefar, Morrow & Hollywood, FL, Appellees. HULL, HILL,
Before MARCUS Judges. Circuit MARCUS, Judge: Circuit Karen Coolman Amlong, R. Am- William firm, long, and their Amlong law Am- & P.A., long, appeal a from district court imposing order sanctions excess of $400,000, § under 28 U.S.C. for their a Title representing plain- VII in a tiff sexual harassment lawsuit. After review, thorough we conclude that the dis- trict court committed reversible error when, after referring the issue of sanctions magistrate to a judge evidentiary for an hearing Recommendation, and Report and the district court find- discarded numerous ings of fact credibility determinations made judge and substi- tuted findings faith, its own fact on bad by the hearing conducted sanctions evidentiary hear- conducting any without broth- one of Norelus’s judge, abused its magistrate court also ing. pay per- had that Jawaid ordering the ers told Valladares discretion portion on a interest Nore- back abused percent having sonally confessed therefore, sanctions, we, reverse she also visited said lus. Valladares too. award portion Norelus where Denny’s restaurants two abused. Valladares to have been claimed I. (in Valla- told her Denny’s employee a said these: In are facts case The basic words) “definitely had that Jawaid dares’s introduced Mia- client former May a that she was like thing for [Norelus] plain- attorney Debra Valladares mi Denny’s patron told property,” his Norelus, case, Floride tiff in this Title VII mistreat had seen Jawaid he Valladares told Valla- Norelus immigrant. a Haitian however, individual, Neither Norelus. pat- a horrific had suffered dares she sexual miscon- having witnessed confirmed harassment, and as- rape, sexual tern of alleged. that Norelus duct of kind Jawaid, of Asif at the hands sault from assistance sought then Valladares *5 Denny’s restaurant where a manager of Joseph Cham- attorney, another Miami Norelus’s sec- According to she worked. lawyers sought out brot, two later and the repeatedly complaint, Jawaid amended ond South well known Amlongs, who are anal oral, and vaginal, her to have forced Working from lawyers. Title VII Florida Denny’s restaurant in the with him sex Amlongs provided sample complaint claimed that home. Norelus a and at his de- sexual and Cham- Jawaid’s when she refused Valladares from another unpleasant mands, assigned her in complaint Jawaid filed Norelus’s initial brot her. She punished or duties otherwise for the South- District Court United States Jawaid, extracted manager, added that the December of Florida on ern District job advan- exchange for in sexual favors was limited at Amlongs’ role 1994. The reflecting paperwork to file tages, refused 1995, they as- January point, but status, report and alien threatened her of Norelus. representation sumed formal Nore- immigration authorities. her to the Norelus’s first firm filed Amlong to have sex forced her also Jawaid lus said court on complaint amended Hameed, roommate, his Raheel with amended and then July second Denny’s restau- and at another their home 27, 1995. The December complaint on one occa- managed. On that Hameed rant con- client assigned primary Amlong firm recounted, and Ha- sion, Jawaid Norelus first-year associ- responsibilities tact home, restrained her to their meed took (now Taylor). ate, Lisa Stern Lisa Stern her, her, penetrated raped repeatedly discovery pre-trial course object. Norelus stated vagina her with deposed over some Norelus was process, Denny’s authorities of that she informed February 1996. January and days in eight abuse, proper to take they failed but sessions, Rob- all the Taylor retaliat- attended allegedly steps. Jawaid remedial Hankins, Amlong firm associ- hours and another by reducing Norelus’s work ed ate, work schedule. Norelus had changing her some of them. attended in- so an English, with only facility limited Norelus, with met Attorney Valladares into questions terpreter translated client, former along with Valladares’s translated No- Haitian French Creole brothers, Hill, and two Norelus’s David English. The back into answers relus’s ac- meeting, During this for three hours. only ob- were not the language difficulties during cording Valladares’s deposition; stacle Nevertheless, Norelus’s behav- testified, Amlong in order highly ior was emotional and erratic. to test the veracity plaintiffs ac- questions Sometimes she answered sarcas- rape abuse, count of and sexual the firm tically respond failed to prop- otherwise retained the services of George Slattery, erly. lawyers Until instructed her to experienced respected polygraph testimony, correct her Norelus lied about examiner, to polygraph Norelus. The first immigration matters related to her status. these place examinations took in Janu- Among things, other she claimed that she ary coinciding with Norelus’s first Remy, did know Lavictore person deposition. Amlong Karen said that she whose name she had falsely used to secure wanted to conduct earlier, the examination employment. Taylor, Amlong associ- Norelus had but pregnant, become ate, the defendants that told this testimo- Slattery refused to administer a polygraph false, ny was and she instructed Norelus examination during her first trimester. to tell the truth. Norelus then admitted The second polygraph examination took fact, Remy Lavictore was a rela- 29,1996. place April Slattery unambig- tive. plaintiffs first pro- concluded, uously examination, after each duced a voluminous transcript of more that Norelus telling the truth about pages. than 1200 her core allegations abuse, of sexual rape, Amlong Taylor associates and Hankins and assault. Norelus also received treat- also attended the February deposi- from ment a Creole-speaking psychologist, Denny’s tions of ten employees. Notably, Schuth-Aine, Dr. Astrid who advised the none of these witnesses corroborated No- Amlongs that appeared Norelus to suffer *6 story. relus’s Hankins reported back to post-traumatic from stress disorder. Amlong Karen and expressed doubts about Karen Amlong despite testified that the case, the Amlong but press decided to on problems with testimony Norelus’s she re- with the case. In her testimony at the mained convinced that Norelus was telling evidentiary hearing mag- conducted the the truth. Amlong also observed that her judge, istrate citing her experi- extensive prevented duties ethical her from with- cases, ence in Title Amlong explained VII drawing representation. her Amlong de- that the absence of corroborating witness press to on cided the suit. with Accord- testimony not unusual in cases of sex- ingly, deposition, after Norelus’s on Karen assault, ual harassment and because such instructions, Amlong’s Taylor reviewed the abuse often occurs presence outside the deposition testimony with Norelus and Moreover, Amlong witnesses. said some prepared Taylor errata sheet. testified of the depositions witnesses’ contained in- she questions read the in English and consistencies of them suggesting own person another translated. For reasons of the witnesses’ might not contain cost, according Taylor, they to did not use Thus, story. the whole Am- example, for professional interpreter point one—at long that Denny’s manager observed Ja- translated, Norelus’s brother and at anoth- waid having denied ever physical had point er a friend of Norelus’s translated. relationship Norelus, with but some wit- Taylor recorded reasons pro- the Norelus suggested nesses Jawaid and Norelus for each vided change. might have had a consensual sexual rela- tionship. Amlong hoped process produced said she an unusually long ex- ploit these inconsistencies at trial pages to cast errata sheet —some 63 detailing a doubt the veracity on witnesses’ changes draw total of 868 to Norelus’s deposi- out unrevealed facets of story. the testimony. changes tion Some were spanned deposition Norelus’s second harmed Norelus’s even
inconsequential Her be- days September the instance, point in three at one case. For inap- and at times attorney shown erratic again had havior was the defense deposition to un- appeared Finally, particularly one card that after propriate. a time Norelus time, attorneys Norelus story. answer, At that her the dermine defendants’ insolent time 16, confirm the not she could claimed On October adjourned deposition. the card was authenticity the because card’s request, the dis- defendants’ the attorney , defense signed. When not specify- order trict court entered another testified Norelus point, pressed deposi- reopening the costs of ing that usually she whether could not recall she by Norelus and .payable jointly tion were errata cards. On the her time signed made no find- attorneys. This order her testi- however, changed sheet, Norelus regarding of law fact or ings conclusions unequivocally admitted mony so that she Then, on Decem- conduct. Amlongs’ her time always sign that she did not 11, 1996, dismissed district ber sheet, the errata changes on Other cards. punish Norelus action as a sanction however, improve Norelus’s appeared August with the comply failure to for her adding measurably by details case the court Specifically, order. when she was provided had Norelus noted, paid the costs Norelus had not Thus, example, testimo- deposed. and had not filed reopening provid- the errata sheet reflected on ny as took plaintiff appendix. requested and Hameed’s about Jawaid’s ed details dismissal, but appeal from order house, details their the route to cars and appeal for failure dismissed the this Court could said she previously Norelus had 12,1998. May prosecute not recall. suit, in Janu- the dismissal of After sheet, the de- receiving the errata After defendants, Meos ary four dismiss fendants asked the Inc., Inc., Services, Denny’s, Corp., T.W. the extent of arguing that Jawaid, against sought sanctions No- demonstrated in the errata sheet changes Pursuant to Title Amlongs. relus and the under had told numerous lies that Norelus 636(b)(1) U.S.Code, the dis- 28, § *7 26, 1996, district August On oath. motions the sanctions trict court referred that, motion, observing court denied an evi- judge to conduct magistrate ato raised doubts although the sheet errata of fact and hearing, findings dentiary make story, dismiss- the truth of Norelus’s about law, Report a file conclusions plaintiffs when “the only appropriate isal February On Recommendation. trial beyond The doubt.” lie is established hearing, the conducting after extensive action, it is instant wrote: “In the court Report a and Rec- judge magistrate issued juncture Court unclear to the judge magistrate rec- ommendation. ver- original or Plaintiffs revised whether attorney’s that the assess court ommended truth. constitutes the the facts sion of Norelus, under plaintiff, against fees Therefore, inappropriate is an dismissal 2000e-5(k), permits § which re- 42 U.S.C. however, did, grant court remedy.” The parties from attorney’s covery of fees that it request alternative the defendants’ However, magis- actions. rights civil No- deposition and reopen Norelus’s order that no judge squarely trate recommended reopening costs of pay relus to fees, sanctions, attorney’s be im- including direct- court deposition. district also magis- attorneys. The Norelus’s posed on detailing appendix ed Norelus to file findings that the made judge trate factual testimony in her to her any changes made litiga- throughout conduct Amlongs’ deposition. second errata sheet tion, including filing their of the errata the date the Amlongs filed the errata sheet, by legitimate was motivated a desire sheet. The district expressly court said present truthfully to their client’s case payable that the amount would include the accurately. He concluded that the Am- “fees, costs and expenses associated with longs’ conduct did not amount to bad faith motions, the sanctions evidentiary hearing justifying sanctions under 28 objections.” addition, because the § 1927. U.S.C. Amlongs yet had not paid the costs of Services, Corp., Inc.,
Meos reopening plaintiffs T.W. Den- deposition as re- Inc., ny’s, objected mag- Jawaid quired by the district court’s October judge’s istrate Report and Recommenda- 1996, order, it again Amlongs directed the tion and asked the judge district court pay that amount and added 10 percent impose on Amlongs notwith- back interest as an additional sanction. standing magistrate judge’s many find- Thereafter, magistrate judge calculat- 21, 2000, order, ings of fact. In a March attorney’s ed according fees to the district the district court judge sustained the ob- judge’s instructions. The judge jections based on her hearing review of the issued an order adopting magistrate transcript, but notably, having without judge’s recommendations with modifica- any testimony heard herself. The district tions. The district court’s order required rejected the magistrate judge’s fac- Amlongs $18,599.76 pay to cover findings tual and legal conclusions. attorney’s fees and costs incurred in re- The district court concluded that sanc- opening deposition, Norelus’s required against Amlongs tions were warranted 16, 1996, the court’s October order. separate the basis of four sources of The order further imposed an additional 10 judicial authority: 2000e-5(k); § 42 U.S.C. percent $18,599.76 interest on the amount. 1927; § 28 U.S.C. Rule 26(g) of the Feder- Finally, and most significantly, the order Procedure; al Rules of Civil and the required Amlongs personally pay court’s inherent powers. The district $389,789.07 total of attorney’s cover fees contrary magis- to what the found — and costs the defendants had incurred af- judge trate had found—-that the sheet, ter the filing of the errata as re- adequately had failed to investigate the quired by 21, 2000, the court’s March or- plaintiffs claims. The district court fur- der. appeal This followed. ther found that the errata Am- sheet the longs filed after Norelus’s first II. was not designed to ensure that Norelus’s accurate, review a testimony was We district court’s sanc as the *8 found, judge had but rather was a dishon- tions order for abuse of discretion. The est up effort to cover weaknesses the same applies standard whether sanctions plaintiffs case. imposed were any provi under of the four sions the district court invoked in this The district court concluded that the See, Air, e.g., case. Schwartz v. Millon sheet, Amlongs time the filed the errata it Inc., (11th Cir.2003) 1220, 341 F.3d 1225 had become clear that Norelus’s suit was (court reviews sanctions under 28 U.S.C. fact, grounded not continuing the discretion); § 1927 for abuse of Malautea past lawsuit that point amounted to bad Co., 1536, v. Suzuki Motor 987 F.2d 1545 faith. The district court ordered the Am- (11th (court Cir.1993) longs pay Meos, the reviews sanctions costs that T.W. Services, Inc., Inc., Denny’s, 26(g) discretion); under Rule of and Jawaid abuse Dalton, had incurred in the litigation starting 1212, from Barnes v. 158 F.3d 1214 1238 permissi were (court mine whether the sanctions Cir.1998)
(11th
reviews sanctions
sources of
at least one
those
of discre-
ble under
of
for abuse
powers
inherent
under
Ctr., Inc.,
Mo
v. Mazda
Sleep
authority. See Chudasama
tion); Sayers v. Stewart
Cir.1998) (court
(11th
(11th
1353,
1351,
1365
Cir.
1353
123 F.3d
Corp.,
140 F.3d
tor
42 U.S.C.
1997).
under
author
any
reviews
If
one of the sources
discretion).
2000e-5(k) for abuse of
§
provides
court
by the district
ity invoked
sanctions, we must
basis for
sound
of an abuse-of-
application
“The
But if sanc
order.
the sanctions
affirm
range
recognizes
review
discretion
are not valid under
tions
may
judge
the trial
possible conclusions
appellate court
authority,
sources of
Frazier,
F.3d
v.
387
States
reach.” United
award.
reverse the sanctions
must
(en banc).
Cir.2004)
(11th
1244, 1259
an abuse-of-discretion
employing
“[W]hen
contend,
appellees
Appellants
find
standard,
we
must affirm unless
we
2000e-5(k)
§
and Rule
dispute, that
do not
has
a clear
made
supported the
clearly could not have
26(g)
applied
or has
judgment,
error of
sanctions. The
court’s award of
district
(citing Maiz v.
Id.
wrong legal standard.”
at
The Title VII
are correct.
appellants
Cir.2001)).
(11th
641,
Virani,
F.3d
662
§ 2000e-
torney’s
provision,
fees
U.S.C.
the law
contrary to
A
decision
5(k),
supported these sanc
could not have
discretion. See Coot
is an
plainly
abuse
authorizes at
tions,
provision
because
384,
Corp., 496 U.S.
&
v. Hartmarx
er Gell
litigants, not
only against
torney’s fees
(1990)
2447,
405,
L.Ed.2d 359
S.Ct.
Inc.
Roadway Express,
counsel.
against
(“A
necessarily abuse
would
district court
2455,
752, 761, 100 S.Ct.
447 U.S.
Piper,
v.
on an
ruling
it
its
if
based
its discretion
(1980)
(noting that
0124
(6th Cir.1986), ob
1225
Corp., 789 F.2d
attorney’s conduct
compare
must
§
authorizes a
1927
that “28 U.S.C.
served
at-
a “reasonable”
the conduct of
against
attorney for
against an
assess fees
court to
about wheth-
judgment
a
and make
torney
multiplication
vexatious’
according to
‘unreasonable
acceptable
conduct was
er the
of
the absence
litigation despite
of
The term “vexa-
objective standard.
some
But
Id. at 1230.
impropriety.”
conscious
an evaluation of
similarly requires
tiously”
F.2d
see,
1241
The terminology
explanation
and
short,
In
a district
may
that we have
employed
past
the
is whol
impose sanctions for egregious
by
conduct
ly consistent with the idea that sanctions
an attorney even if
attorney
the
acted
§
against
1927 are measured
objec
under
without
specific
the
purpose or intent to
standards of
tive
conduct.
In Schwartz v. multiply
proceedings.
That is not to
Air, Inc.,
Millon
we stated that sanctions
say the attorney’s purpose or intent
is
permissible
are
attorney
“where an
know
irrelevant. Although the attorney’s objec
ingly
recklessly
or
pursues a frivolous
tive conduct is the
analysis,
focus of the
claim.” 341 F.3d
(emphasis
at 1225
add
attorney’s
subjective state of mind is
ed). Thus, objectively reckless
an
frequently
important piece of the calcu
enough to warrant sanctions even if the
lus,
given
because a
act is
likely
more
to
attorney does not act knowingly and ma
fall
outside
bounds of acceptable con
levolently.
In Malautea v. Suzuki Motor
duct and therefore be “unreasonabl[e] and
(11th
Co.,
Cir.1993),
port attorney to order the may district court war- will not is, attorney’s conduct an attorneys’ “costs, expenses, pay to meet simply it fails if rant sanctions of reasonably incurred” because fees from a rea- expected conduct of standard is, excess Schwartz, attorney’s misconduct—that we Thus, in attorney. sonable attorney’s multiplication that the costs wrote: the cost added to has proceedings pro- “catch-all” not a is 1927] [Section 1927; § Peterson 28 U.S.C. litigation. See con- objectionable sanctioning for vision 1386, 1396 Refractories, BMI un- sanctions .... by counsel For duct Cir.1997) (11th that sanctions (explaining appropriate, to 1927 be der section a financial nexus § 1927 “must bear under of merit than a lack something more proceedings”). the excess designed The statute was required. “willfully abuse attorneys who sanction B. by conduct tanta- judicial process turn to the we background, With this faith.” mount to bad impose decision district court’s Section is the touchstone. “Bad faith” making it employed procedures and the A negligence. mere about 1927 is not its determination. faith is warranted of bad determination or reck- attorney knowingly where threatened attorney Plainly, an or en- claim a frivolous lessly pursues a § entitled to 1927 is under with sanctions needlessly litigation tactics gages in Roberts, F.3d 207 Reynolds v. hearing. non-frivolous litigation of obstruct Cir.2000). (11th In this 1288, 1302 claims. magistrate a designated Schwartz, 1225. F.3d at 341 evidentiary necessary conduct the judge to 636(b)(1), § to 28 U.S.C. hearing pursuant must Thus, attorney’s conduct to refer a district court permits the which to warrant egregious particularly be judge to hold magistrate to a matters attorney must imposition sanctions—the pro supply with hearings a frivolous recklessly pursue knowingly or recommenda findings of fact and posed litigation needlessly or obstruct claim to this disposition.2 for Pursuant attorney’s tions claim. If of a non-frivolous Moreover, portion of Souran —a quoted 11 § Rule under and sanctions a language parenthetical quoting from authority. brief § sources 1927 are distinct plainly Law Review student Vanderbilt addressing different kinds They at are note.— aimed holding; it to the Court's was not essential misconduct, scope, and are different in are fact, the Court in Souran re- was dicta. legal quite standards. governed by different imposition of Rule district court's versed the Nezhat, See, F.3d e.g., Byrne v. finding on a attor- based 11 sanctions Cir.2001) (11th (noting 11 “is aimed that Rule objectively reasonable. ney's pleadings” addresses the primarily attorneys, parties while conduct of both (b)(1) Notwithstanding any provision of law throughout "dilatory § tactics 1927 addresses contrary— solely litigation” and is focused entire Inc., NASCO, conduct); attorney (A) designate Chambers v. a judge may a 32, 47, any pre- 115 L.Ed.2d judge 111 S.Ct. to hear and determine 501 U.S. court, (1991) permits pending before the (noting Rule attor matter trial relief, injunctive merely for except fails a motion ney's fees “for conduct which standard,” pleadings, for judgment on the sum- in contrast meet a reasonableness quash an mary judgment, to dismiss or require powers, which to a court's inherent made or information showing). do not dis indictment higher Rule 11 cases defendant, suppress evidence in § 1927. pose arising under issues reference, order of the magistrate judge plaintiff was telling the (emphasis truth” added). evidentiary conducted an hearing over four He accepted Amlong’s explana- days involving six wit- tion that she “was not surprised partic- nesses, including four of the plaintiffs ularly at- concerned that the sexual harass- torneys, who each testified at length about ment alleged activities in this case were *13 suit, their conduct of the and George Slat- by observed others ‘they [because] sel- ” tery, the polygrapher who twice examined dom are this type Third, of case.’ the plaintiff. the When reduced to transcript magistrate judge found as a fact form, the evidentiary hearing “[plaintiff’s consumed counsel ignore also did not pages. some 505 plaintiffs propensity to exaggerate or lie during her deposition,” noting that the hearing After the evidence and receiving plaintiffs ordered two polygraph examina- filings parties, noted, from the as we have by tions George Slattery, a poly- certified the magistrate judge submitted a detailed graph examiner, in order to further test Report and including Recommendation ex- plaintiffs the veracity. findings tensive of fact and conclusions of law. Based on testimony magistrate the judge at the evi- then made a num- explicit ber of dentiary hearing, findings the magistrate judge of fact relating sheet, which, made the errata findings regarding several of fact the defendants claimed, First, made Amlongs’ attorneys’ conduct. magistrate bad faith readily apparent. judge unambiguously He wrote: found as a fact that throughout the litigation, First, had the preparation of the errata “genuinely plaintiffs believed that claims sheet and procedures used to do so were meritorious despite plaintiffs inabili- ... was improper and should not have ' ty testify completely and truthfully Second, occurred. numerous about aspects several of her case.” changes Sec- listed in the errata ... sheet ond, magistrate judge found that Kar- illuminated plaintiffs difficulty or inabili- en Amlong, an experienced Title ty VII attor- to relate a consistent account of ney, “personally plaintiff met with on more events underlying Third, her claims. than one occasion and the errata sheet revealed to defendant’s satisfied herself (C) permit criminal to dismiss or to magistrate judge pro- shall file his action, maintenance of a posed class findings dis- and recommendations for upon (B) miss failure to state a subparagraph claim under with the court granted, which relief can be copy and to in- and a shall forthwith be mailed to voluntarily dismiss an judge parties. action. A all may any pretrial of days reconsider being Within ten after served with a (A) subparagraph matter under this copy, any party may serve and file written where it has mag- objections been shown proposed findings to such judge’s clearly istrate order is errone- provided by recommendations as rules contrary or ous to law. judge court. A of the court shall make a de
(B)
judge may
designate magistrate
also
a
portions
novo
of those
determination
of the
judge
hearings,
including
report
specified proposed findings
or
or
evidentiary hearings, and to submit to a
objection
recommendations
to which
judge
proposed findings
of the court
judge
may
made. A
accept,
of the court
fact
reject, modify,
recommendations for the dis-
part,
in whole or in
court,
by
position,
judge
of the
findings
or recommendations made
(A),
excepted
motion
subparagraph
magistrate
judge.
judge may
also re-
applications
posttrial
relief made
ceive
evidence
further
or recommit the mat-
by individuals convicted of
of-
magistrate judge
criminal
ter to the
with instruc-
prisoner petitions
fenses and of
chal-
tions.
lenging
636(b)(1) (footnote omitted).
conditions of
§
confinement.
28 U.S.C.
judicial
willfully
to or
abused
sought
plaintiffs
attorneys and the Court
n to bad
and re-
suspicious
by conduct
tantamount
highly
process
through
omitted).
re-
exploration
(citations
further
quired
faith”
discovery.
opened
rejected the
flatly
The district
the erra-
However,
preparation
saying they
findings,
judge’s
First
things.
other
ta sheet revealed
record. The
contrary to the
were
detail
the care and
foremost,
factual find-
to make
then went on
judge
prepared by
document was
which that
any addi-
own, notably without
ings of her
grave
attorneys
their
reveal
plaintiffs
own inde-
hearing, but based on
tional
story in
an accurate
to tell
concern
transcript
might
interpretation
many
changes
pendent
case. While
*14
case,
that
submis-
found
plaintiffs
district court
have bolstered
record. The
and
clearly
voluminous document
sion
this
rea-
put
have
would
the errata sheet
to re-
not,
open
plaintiff
left
did
plain-
that the
attorney on notice
sonable
her credi-
concerning
challenges
newed
incred[ible],” and
“may be
tiffs
demon-
Also,
sheet
bility.
the errata
sheet,
they
errata
filed the
from the time
difficulty
strates,
part,
at least
notice of the
Plaintiff were
“counsel
discov-
dealing with the
had in
plaintiff
... and had
claims
baseless nature
including
deposition,
ery process
their client’s
investigate
obligation to
added).
(emphasis
supporting
evidence.”
testimony and
judge also determined
The magistrate
Karen Am-
found that
court
The district
be faulted for
Amlongs should not
that the
chiefly re-
Amlong were
long and William
conduct,
they “did
because
plaintiffs
case. The
conduct of the
for the
sponsible
a most difficult
they
with
the best
could
Am-
that the
further found
district court
try
the case
prolong
not
client and did
in-
“conduct a reasonable
failed to
longs
gain
proceeding^]
these
multiply
in the
alleged
facts”
vestigation
adversaries.
advantage over their
tactical
subsequent
complaint and her
plaintiffs
extending plain-
Prolonging this
district court
complaints.
amended
plaintiff
exposing
tiffs
fact that the
to the
judge
attention
called
cross-examination, only hindered
further
fact wit-
not
interviewed
Amlongs had
win the case.”
ability to
counsel’s
had not
plaintiff
other than
nesses
Overall,
judge concluded
magistrate
depositions of
from the
transcripts
ordered
and hon-
Amlongs
good
acted for
that the
and most
Finally,
the other witnesses.3
reasons,
did not
that them conduct
est
the district
purposes,
for our
significantly
objective
faith
to bad
under
amount
filed the
court found
the Am-
expressly
found
test. He
not for
the court
errata sheet with
either
not demonstrate
longs’ conduct did
correcting misstate-
purpose of
legitimate
objective
faith.
faith or
bad
subjective bad
inaccuracies,
magistrate
as
ments and
no
stated,
undersigned finds
evi-
“the
He
found,
to cover
in an effort
had
but
judge
faith,
motive or
improper
dence of bad
plain-
inconsistencies
up flaws and
duty
which would
disregard
reckless
district
of events. The
tiffs account
plaintiffs
§
justify
against
demon-
that the
sheet
errata
determined
the un-
case.
does
attorneys in this
Nor
“unreasonable,
behavior
vexatious
strated
plaintiffs
counsel
dersigned find[]
have to
depositions
the firm does not
evidentiary
so that
hearing,
testimony at the
3.
In her
transcripts from all of
pay
usually has
order —and
Amlong explained that the
its
firm
for—
prior
depositions
to trial.
the witnesses’
at witnesses'
take extensive notes
associates
unnecessarily multiplied
pro-
may
reject
these
trict court
a magistrate
ceedings.”
judge’s factual
credibility
findings
this manner.
In United States v. Mar
rejection
The district court’s
shall,
(5th Cir.1980),
Our cases since unambig- Raddatz have district court’s order in this uously repeatedly flatly observed a dis- case magis- violated the rule. The Prichard, City 4. In Bonner v. prior the former Fifth Circuit handed down of (11th Cir.1981) (en banc), adopted September this Court the close of business on 1981. binding precedent all of the decisions Id. at Chambrot, for ex- polygraph examination. findings that his made clear judge trate plain- credibility that the reason testified ample, his evaluation on turned testimony given poly- at Norelus agreed to have believability lawyers tiffs indeed, he stated being [in here evidentiary hearing; avoid “[t]o was graphed “hearing based findings were know that we his To proceedings]. con- counsel testimony plaintiffs from know, cause of action. have, a valid you plaintiff representation their cerning or to the court misrepresenting To avoid judge’s evalua- magistrate this case.” know, just of the case you the bulk having, finely tuned to make required him tion trusted in said he a lie.” Chambrot being credibili- various witnesses’ assessments Slattery because Slattery’s determination states of their they testified about ty as know, believe, you “somebody who I motivations, at mind, beliefs, and actions truly indepen- and who’s really credible It is litigation. critical stage each way care Slattery doesn’t one Mr. dent. demeanor the witnesses’ clear case.” of this the outcome or the other hearing evidentiary at credibility credited this magistrate judge Plainly, the magistrate role in the a critical played faith. finding no bad too in pur- Amlongs’ findings about judge’s plaintiffs from the Witness regard- conclusion intent his pose magistrate lawyers also was crucial The demean- objective conduct. ing their key other as- of several judge’s evaluation evidentiary witnesses Taylor, the case. Lisa Stern pects of hearing plainly influenced direct had the most associate who Amlong about whether judge’s determinations about testified plaintiff, with the contact attor- plaintiffs other Amlongs and the Am- from she the instructions received examinations arranged polygraph neys *16 she followed procedures and the longs a of dil- creating facade stratagem for as that the district the errata sheet preparing rather, to or, genuine effort igence most the salient court later found to be telling plaintiff the was whether discern Amlongs’ the bad and concrete indicium truth. the in- testifying Taylor’s demeanor faith. Slattery, George Amlongs retained acceptance judge’s magistrate the fluenced examiner, who testified polygraph of her actions. Taylor’s explanation a wide performed evaluations in had he Thus, expressly that Taylor testified range of impressive cases range of for present to was errata sheet intended offices, firms, de- judges, prosecutor’s law put to a false accurately, not and facts agen- public attorneys and defender fense story: plaintiffs misleading sheen on the levels, as and federal at both the cies state in- Okay. Q Amlong] What [William federal law enforcement as state and well structions, given by any, you if been had he Slattery that when insisted agencies. concerning me Amlong Ms. attorneys and/or for involved services performs the errata sheet? swayed preparation are litigation, his results not civil He attorneys hope to see. by what the to Amlong please go by A Ms. Just Amlong that he had evaluated other added Nor- office with Ms. reporter’s reported his past and had clients go through her and have [sic] relus when he Amlongs even conclusions prepare errata suspected falsehoods. every time and to sure sheet make that I listed a reason change was a there Debra plaintiffs attorneys,
Three of re- what the Rules it that’s Chambrot, because Valladares, Karen Joseph I quired, believe. length at about Amlong, also testified Q you changed testimony, When go in there and set the record suggestion you whose change did straight.”
testimony? After our conversation with Ms. Han- Any A testimony that I changed was kins about other depositions— these made my client because told me that Q [William Amlong] you When told whatever she telling was me was the Ms. Stern to go in and set the record response. accurate straight, your is that understanding of the Florida Bar Taylor Rules of emphatically Professional stated that she had Responsibility and what they not suggested any require as changes Norelus should candor toward the make in tribunal? testimony, her had seen Yes, indication is, A Norelus’s brother or it and when Ms. Stern real- friend had suggested any such ized that changes. she had stated a mistruth she had no option except go back in and Karen Amlong’s testimony also strongly set the record straight. influenced judge’s findings. We concerned, were nonetheless, Amlong described the handling firm’s about what may have been a cultural the lawsuit in detail from start to finish. difference; okay is it just use some- Amlong stressed her assessment of body else’s name or Security Social veracity Norelus’s with consistent number? conclusions reached four other attor- So we Kurzban, called Ira
neys, Valladares, William who Amlong, has Cham- brot, had —he’s an attorney in Taylor; town who has polygrapher, Slat- worked extensively with tery; Haitian Schutt-Aine, and Dr. clients Astrid psychologist who examined Norelus and
diagnosed post-traumatic her with Based on stress our conversation with Mr. Kurzban, disorder. Amlong said her we assessment were convinced our plaintiff client, also relied in no part small based on all the my evidence— her own Norelus, interactions own her, with assessment of her passing the many years of experience polygraph examination, litigating Ms. Stern’s as- cases of serious sexual sessment harassment. of her after days several *17 deposition testimony though even —that Karen explained Amlong how the firm may she have lacked candor on periph- handled Norelus’s false statements about issues, eral the central issues of this plaintiffs the fraudulent use of her rela- case truth, she was telling just the and tive’s name and identification way: this somebody because came into country the Amlong] [Karen concerned, We were illegally doesn’t mean that can she be however, because there were some is- raped and exploited, and that does not sues of Ms. Norrelus using the Social take that away from her. Security aunt, of her number there were (emphasis added). some inconsistencies that had come out in the testimony during deposi- these The language and cultural difficulties tions and Ms. Stern had us when called Amlong alluded to in exchange also she lied, realized that Ms. Norrelus had a problem were recurring throughout the and I believe it using was about her litigation, according to attorneys’ the testi- aunt’s Security Social or number her mony. plaintiffs The lawyers testified name, the alias. spoke only Norelus fragmentary En-
She [Taylor] had called glish, us from the although English her improved dur- depositions said, and we “You got have ing the course of the litigation. Taylor the what honestly as we could as during present occasions on several
testified that interpret- was.” the truth Norelus told deposition, the incorrect, until at were her er translations judge was short, magistrate the awith responded interpreter point one the facts draw to find basic called on ap- Once, plaintiff the brusque remark. judgments the inferences about delicate idiom, “tous les used a Creole parently they made, the actions the forced Jawaid jours,” to communicate at judgments, various those based on took “many times” or oral sex perform to her evaluation litigation. His of the stages time,” interpreter translat- the the but “all by extensive undeniably influenced was “every day,” thus literally as ed the idiom hearing evidentiary testimony at taken story. plaintiffs changing the details Indeed, the raw days in 1997. four over language adverted the defendants Even not have hearing could of the transcript effort dis- apparent difficulties—in nuances of the captured the exami- polygraph of the import count way in a the witnesses the demeanor a testimony from nations, they elicited fairly allowed the have that would Slattery, the suggested that translator who a reliable determination court to make flawed examiner, used had polygraph finding wrong in judge was magistrate Amlong testified that Creole translations. to believe the witnesses. choosing facts and proved litigation, throughout the Norelus barri- language magistrate judge client because “difficult particularly, More she degree to which of the ers and because attor- Slattery’s and the chose to believe traumatized,” Norelus’s be- but had been polygraph neys’ representations im- reopened in the havior to dis- genuine effort were examinations she improved, English as proved Norelus’s truth, attempt to not a fraudulent cern pro- comfortable with more became diligence. The veneer of a false create attorneys became cess, and the defense to credit the attor- judge chose magistrate judge aggressive. less they had believed neys’ statements reported lan- by the plainly troubled throughout allegations core plaintiffs Indeed, he difficulties. guage cultural filing interpreted He litigation. “the showed that the errata sheet found been motivated having sheet the errata dealing with the difficulty had plaintiff “grave concern lawyers’ plaintiffs including deposi- discovery process Amlong story,” just as to tell an accurate tion.” testimony. in their Taylor had stated errata production for the As evidentiary testifying attorneys said, idea sheet, Amlong specifically “[TJhe apparent some of the hearing attributed but things people, from hide [was] plain- litigation irregularities disclosure, weren’t we make full *18 instability and substantial emotional tiffs defense coun- anything to from trying hide mag- cultural barriers. language and them what the sel, trying to tell we were testimony, find- accepted istrate judge prepare them- they that could story was so they the best Amlongs “did ing that the said, way our “This was selves.” She client and did a most difficult could with straight.” to set the record attempting multiply or the case try prolong Amlong add- perspective, From a tactical a tactical ad- gain proceeding^] these proceed ed, it have been easier would vantage.” sheet, “I but filing the errata trial without unequivocally judge The district was the [filing sheet] the errata felt factual judge’s rejected magistrate the .... were thing [W]e to do appropriate regarding law conclusions of findings and job could to the best we trying to do Amlongs’ subjective both the quantity intent of entries on the Errata objective their conduct. After Sheet —which directly bolstered inconsistencies or falsities, quoting up covered magistrate judge’s conclusions, the and thereafter the inability Plaintiffs stated, factually sup- the district court “The Court finds port the errata changes at the subse- these conclusions to be based on an incor- quent deposition bad faith standard, rect —demonstrate incorrect interpretation of and willful disregard judicial for the pro- law, and not based the record” (empha- on cess by Karen Amlong, Esq., William added). sis The district court never ex- Amlong, Esq., and Amlong & Amlong plained it thought how the magistrate P.A. judge had law, misstated or misapplied the This language was nothing less than a but the statement magistrate the direct repudiation of the testimony that judge’s conclusions were “not based on the Amlong and her former colleague, Lisa clearly record” indicated that it dis- was Stern Taylor, gave at the evidentiary hear- carding his findings, including his factual and, ing, more importantly, the magistrate critical credibility determinations, along judge’s abiding belief in veracity the with legal his conclusions. To find that testimony. While magistrate the magistrate judge’s findings the were “not judge convinced, based on his hearing based the say record” was to that the of the testimony, that Amlongs pre- the testimony told a completely sto- different pared the errata sheet to cleanse the rec- ry. ord of contamination and error bring order, Later the district court truth, court closer to the judge specifically judge, found as a fact who had that an not heard a single word of testimony, purpose improper lay behind concluded that the Amlongs’ Amlongs were trying to breathe new life production of the errata sheet. Whereas into a dead case for fraudulent malevo- magistrate had judge concluded that lent reasons. The district judge could not had submitted the errata have interpreted the sheet way errata as a legitimate sheet purpose of advanc- to “repair the damage,” “bolster testimo- truth, ing the district court saw the ny,” and up “cover[ ] falsities” without nec- evidence another way: essarily rejecting Karen Amlong’s state- Plaintiffs counsel undertook efforts to and, ment notably, judge’s “repair damage” deposi- Plaintiffs finding the Amlongs only wanted to caused, tion and filed the Errata Sheet “set the straight” record present effort to bolster testimony .... truthful Quite record. simply, two fac- In contrast to Amlong’s] [Karen testimo- tual interpretations impossible are to rec- ny, ... the Court’s close examination of any practical oncile in sense—-where one the 868 errata changes indicates a con- diligence sees and fair play, other sees provide certed effort to factual support scheming underhanded and malevolence. to an otherwise meritless .... case judge’s analysis necessarily Coupled with complete lack of sup- and expressly rejected the magistrate porting evidence in this judge’s nature credibility findings.5 5. The dissent Inc., nevertheless concludes Denny’s Norelus v. No. 94-2680-CIV- "adopted magistrate’s district court LENARD, find- (S.D.Fla. slip op. at 20 n.9 Mar. *19 ings of Dissenting Op. fact.” at 1260-61. 2000) (sanctions order). Moreover, and more We are unable to the read district court's important, the plainly district court found opinion way. sanctions place, the first dramatically facts different from those found expressly the court told us in its sanc- by magistrate judge the it when wrote that the tions magistrate order that the judge's deter- Amlongs had filed the errata sheet "in an record,” minations were "not based on the only permissible hearing is ing a new denying the order subsequent
aIn for basis is an there “articulable when of the for reconsideration Amlongs’ motion original resolu- magistrate’s rejecting the again court imposed, Marshall, credibility.” tion of factu make its own that it could confirmed not in this case did court 155. The district hearing on based the al determinations basis, any is nor articulable cite such magistrate taking the transcript without in this evident otherwise justification such Nore at all. into account judge’s findings lawyer’s of a bad A determination record. Inc., No. 94-2680-CIV- Denny’s v. lus to demeanor particularly sensitive faith (S.D. June LENARD, Fla. slip op. at 6-7 not re- cues often intangible other and reconsideration). 2000) (order denying transcript. in a flected no mention court made The district credibility judge’s magistrate adopting judge’s cred- Discarding ex Indeed, district court the rel- findings. rehearing without findings ibility argument Amlongs’ rejected imper- to an pressly testimony amounted evant factual not make court “could the result that rendered shortcut missible Magis of the contrary to those of discretion. findings and an abuse invalid Cf. held an Corp., 496 the Court first v. Hartmarx Judge trate unless & Gell Cooter cited hearing.” The court S.Ct. evidentiary U.S. (1990) (“A gov that the district court proposition Raddatz for the L.Ed.2d 359 636(b)(1), it gen § if statute, necessarily its discretion 28 U.S.C. abuse erning would make its an erroneous view ruling court to allows a district its erally based ”). Amlongs’ While .... Whether hearing. a findings law own without amounted bad faith general objective statement this was a correct and fact. question of law to take note a mixed rule, failed was the district court at each purpose intent impor Amlongs’ establishing precedents of our major a factor litigation was stage rule: a district exception tant objectively. their conduct evaluating essential, demeanor-in may not override factual determi- judge’s The district judge by magistrate a finding fact tensive Amlongs had either inten- nation that the or cit the evidence itself hearing without had learning the truth or tionally avoided discard justification for ing exceptional proceedings intentionally prolonged the findings. judge’s ing magistrate her determination integral part anwas objective conduct Amlongs’ findings credibility Rejecting faith. the level of bad hold- reached judge by magistrate a without made true, lawyer knew it to when in ‘repair fact testimony,” “to effort bolster ” New Third Interna- be false. See Webster’s and, up notably, damage,’ "cover[] most (2002) (noting that Dictionary 524 tional Inc., Denny's No. 94- falsities.” Norelus something il- up” "to conceal "cover means 2680-CIV-LENARD, slip op. at 32-33 licit, embarrassing blameworthy, from no- or order). 21, 2000) (sanctions (S.D.Fla. Mar. being censured for prevent one tice: from remotely language even consonant This is Indeed, error, omission”). laxity, the dis- Amlong proceeded that Karen with the notion Amlongs proceeded tells us that trict court heart,” head, pure a "empty but with an judicial process” disregard "willful an errata have it. To file the dissent would added). finding kind of fact (emphasis This up” a client’s "cover[] sheet in an effort To beyond finding of recklessness. goes far simply to file the testimony quite means false testimony, hearing word of do so without consciously order knowingly magistrate judge’s document con- in the face of credibility determi- deliberately convey trary findings nations, the false mislead- of fact legal undeniably error. constituted a client's core ing impression that
1251
are,
therefore,
We
constrained
re-
and ordered the Amlongs to pay 10 per-
21, 2000,
verse the district court’s March
cent back
as an
interest
additional sanction
order to the extent that
it required the
for the Amlongs’
pay
failure to
the costs
Amlongs
pay
the costs the defendants
earlier.
incurred because of the continuation of
Supreme
The
Court has stated
20,
litigation past
remand,
June
1996. On
“[bjecause
of their very potency, in
the district court need not
conduct
new
powers
herent
must be exercised with re
hearing.
It may accept
magistrate
straint
and discretion.” Chambers v.
judge’s basic findings of fact and then
NASCO, Inc.,
32, 44,
501 U.S.
111 S.Ct.
its
reach
own determination as to whether
2123,
(1991).
poses holding its designed to limit to be to me fact findings of made the erly discarded already the proposition, narrow its substituted judge and magistrate the court circuit, a in this law the threshold explained, we also own. As magistrate reject may not judge of sanc- purposes conduct bad faith of findings without credibility is powers judge’s inherent the court’s tions under prop- this of of bad The reaffirmation hearing. threshold high as the least as now is, opinion, § revised under in the for sanctions osition faith conduct this Inc., of from the facts totally divorced v. Dillard’s Cordoba See Cir.2005). (11th applicable sanc- legal the standards 1169, n. 6 So from sanctions, § 1927 from the under impermissible are tions that to Section a district court’s under the district of impermissible validity vel are also non are, there- conduct was powers. Amlongs’ We inherent that the holding court’s that neither la- to find not fore, Surely, we have also constrained sanctionable. im- 1996, 26, originally order August the so little. long for so bored 16, 1996, sanctions, the October the posing majority’s hold- of the narrowing payable jointly making the sanctions order does, howev- opinion by the revised ing 21, 2000, March or the Amlongs, by the the view, clearly er, my illuminate con- the sanctions order repeating order is not remand —it in the inherent error un- of sanctions imposition tained a valid all con- now clear that It is required. Accord- powers. court’s inherent der the the concerning the agree on cerned facts of March portion reverse ingly, we All fur- of this case. Amlongs’ conduct Amlongs required the order legal stan- the correct agree that ther deposi- reopening the costs pay to is an in this case applied to be dard tion. that the Finally, all agree objective one. case in this of the be resolved component that must remaining issue The final reasonable objectively court’s it the district is whether was challenged this pay 10 have conducted Amlongs Amlongs to for the requiring order $18,599.76 they did. on the manner which interest percent back case imposed amount. ini- judge This is what Amlongs for on the sanction additional underlying found tially did. He comply with the October failed to having frivolous patently been to have claim However, 16, 1996, order. pursuit actions Amlongs’ that the determined never transgressed grossly claim to have the October comply with had failed litiga- the conduct governing rules our Accordingly, the in bad faith. order however, on, adopt He went tion. neces- also was pay back interest order subjective lack that a view erroneous be must sarily abuse of discretion could part of counsel faith on the bad reversed. objectively bad immunize their sanctions. from REMANDED. AND
REVERSED circuit and law in our This is HILL, dissenting: Judge, Circuit rightly refused quite district court that, held She adopt this conclusion. amendment majority’s view objec- be conduct to having found the introductory I panel opinion, strike unreasonable, it within tively dissent, substi- original paragraph Amlongs, to sanction discretion leave the remainder following, and tute the did. she unchanged. *22 suggests
No one now that it Subsequently, was not the matter was referred authority within her to do ma- so. The to a different magistrate to determine the jority’s revision makes clear that amount of the award. After still more district court would not abuse her dis- evidentiary hearings, issued cretion on remand should she reimpose his Report and Recommendation on the any finding sanctions without whatsoev- amount of sanctions to be awarded. The subjective er as to the Amlongs’ good or Amlongs objected. After another de novo circuit, faith. In bad this the statute review, the district court entered a mone- permits the district court to impose tary judgment. appealed. considering sanctions without counsel’s concede, As the Amlongs “[from 1996] subjective state of mind. filed, the time appeal this the only error, then, It is to hold that remand issue before the lower Court was resolu- is required because the judge tion of two motions for against (we may have do not know since she counsel representing the Plaintiff.” De- issue) finding made no disagreed spite years these ten litigation on the with magistrate judge on the issue of sanctions, sole issue of and the enormous subjective the Amlongs’ good faith in the judicial amount of resources conduct of the case. How can such a judges of the Southern District of Florida remand required be when all agree now already have invested deciding this is- necessary this issue is not sue, majority today announces that the resolution of this case. job is not done. dissent, I continue to respectfully, to The majority instructs the district court the vacation of the district court’s order that it abused its discretion not having and remand. I should affirm. yet another evidentiary hearing, this time to listen to Karen Amlong testify to her
I. good intentions in the conduct of this liti- judge The district in this case sanctioned gation. Since the law of this circuit does plaintiffs attorneys, Karen and Wil- permit not the district court to consider Amlong firm, liam and their law under 28 subjective good intentions in deciding § U.S.C. for their unreasonable and sanctions, the issue of I respectfully dis- pursuit vexatious of their patently client’s sent from holding frivolous claim. For the past years, ten court erred in hearing the testimony. parties litigated have the award of these sanctions. Even importantly more from institu- view, tional point of our holding today will magistrate judge conducted an ex- binding revise the law of this circuit to evidentiary tensive hearing on defendants’ subjective substitute a objec- test for the motions for sanctions over the course of tive one that apply we now in deciding days, four producing a 500-page evidentia- may whether counsel’s conduct be sanc- ry record a sixteen-page Report tioned under Section 1927. This substitu- Recommendation. The district court con- tion will ability eviscerate the of our dis- ducted its own de novo review the mo- trict courts exactly to sanction the sort thirty-seven page tions issued order conduct that the district court in this awarding sanctions. The case Amlongs moved reconsideration, found judicial to be a reckless to which the abuse defen- process. dants were forced to respond, panel may and the Since of this court revision, district court issued another order reaf- not undertake such a I cannot firming the award. join opinion. in Norelus’s conflicts” consistencies
II. Attor- in the State resulting allegations, facts are recited Although the prosecute. refusal to ney’s some substan- there are majority opinion, suit filed Norelus December in- must be that I believe tive omissions Jawaid, and the various Hameed against underlying cluded, begin I with so *23 al- complaint Her defendants. corporate action. a alia, raped with that she was inter leged, oral, Underlying Action have hairbrush, A. The to repeatedly forced restau- intercourse and anal vaginal Haiti, ille- Norelus, of a citizen Floride to Jawaid and taken rant, kidnapped and in 1992. States the United gally entered she was re- home where Hameed’s and name, 1993, using her cousin’s of In June of by both repeatedly raped and strained security num- Remy, and social Lavietore characterized the The district them. at a Den- to work ber, was hired Norelus “extraordinarily as allegations complaint’s She a dishwasher.1 as ny’s restaurant lascivious, sexually lewd, graphic.” and Jawaid, Asif shortly thereafter claims that restaurant, original his signed this A. Joseph of the Chambrot manager began to sexu- later testified complaint.3 Raheel Hameed Chambrot roommate into Norelus’s factual her, the restaurant no inquiry both he made ally assault at in the com- job in her that he included quit allegations She home. at Jawaid’s on his conclusion relying rather plaint, May 1994. of victim,” and that like a “looked Norelus alleged assaults reported She like some- afraid and “looked appeared she of the restaurant and the owners both raped.”4 had one who been con- the restaurant owners of police. The complaint was re- original investigation, Norelus’s prompt a remedial ducted July complaint with an amended police placed charges baseless.2 finding her complaint a second amended but, as the of investigation, an also conducted these corn- Both of February of 1996. brief, “in- found in their Amlongs concede (Valladares brought to her. testified Norelus completing a Im- admitted to false Norelus 1. allegations against Em- Hill Service 1-9 she had defended migration and Naturalization with Eligibility in connection Form sexual harass- ployment he assault and committed using the Denny’s application, name Denny’s employee. her Hill settled while a ment cousin, Remy.” also ad- She “Lavietore her payment monetary lawsuit with income filing and 1994 false 1993 mitted spoke Subsequently, Valladares plaintiff.) name. under the same tax returns only potential two witnesses—Edmund with these two Green. Neither Reed John fact, of this As to relevance 2. No- sexual harassment witnessed men every "[vjirtually em- brief that state in their Green, regular by or Hameed. Jawaid relus prompt have has a ployment that we case that he Denny’s, felt told Valladares patron liability. investigation shows no remedial was made to sorry because Norelus she for try a case.” we never stopped us would If that to treat seemed and Jawaid bathrooms clean Debra originally consulted with Norelus had de- counsel When as a "slave.” defense her Valladares, who knew little Valladares. (with Amlong attorney him posed later Chambrot, claims, VII associated about Title a “female attor- testified that present), Green attorney experience. with trial Norelus's attor- ney” herself who identified testimony money false ney offered him any investigation rely on 4. Nor did Chambrot claim, but he refused. supporting Norelus's testified Valladares Valladares. conducted name, and he not remember her did Green that, undertaking represent Nore- prior hearings. before the sanctions died Norelus, lus, two only spoke her she with Hill, brothers, who a former client David plaints signed by were Amlong.5 Karen as well as the actual question, and simulta- Amlong later testified that neither she nor neously confer with Norelus’s counsel. anyone else her firm interviewed a sin- outset, From the Norelus’s gle fact prior witness filing and conduct during called complaints. amended question into the validity of her claims. discovery As progressed, the defense only forgot She key details alleged in lawyers depositions took the of thirteen complaints provided but several incon- people Norelus identified in her sworn in- sistent events, versions and even out- terrogatory responses as having witnessed right For falsehoods. example, in August sexual attacks. The Amlongs concede when asked about name “Lav- that, their brief on appeal after these Remy,” ictore the name she used apply- depositions, “it was clear that there was *24 ing Denny’s, to she stated that she made not one witness would who collaborate [sic] up that name and did not anyone by know charges her of sexual abuse.” The defense that name. repeated She this statement attorney, deposed witnesses, who these at the continuation of her deposition in testified that depositions revealed that: January 1996. Again, she specifically de- None of these witnesses saw [Ja- ever having nied any relative or by cousin touch plaintiff waid] way, sexual name. Shortly after this exchange, she they never any comments, heard sexual belligerent became and agitated, and her they never him saw follow her into the (an counsel Amlong associate) requested a room, men’s where she claimed she was break so that Norelus could “calm down.” allegedly sex, to perform forced oral Upon break, from returning Norelus’s and, significantly, she never complained counsel admitted Norelus did have a about Mr. Juad to [sic] of these cousin named Lavictore Remy. When No- people. relus was why lied, asked she had she Amlong later told the district court that responded “What’s wrong that?” with anyone neither she nor in her firm ordered Even more disturbing, Norelus’s deposi- a copy of or a single read one of these tion testimony directly many contradicted deposition transcripts prior to the sanc- allegations in her complaint, tions own hearing. Amlong explained that it (1) including: allegations oral, frequent was her of practice vaginal, not to interview witnesses, and anal fact in a even those intercourse testifying for walk-in freezer client, prior her (deposition to trial they testimony that because usu- no sex occurred ally lied. (2) in walk-in freezer); cooler or allega- tions of sexual intercourse inside the Meos
After the depositions, witnesses’ Norelus restaurant (deposition testimony that no herself was deposed in August of and sexual intercourse occurred in that restau- thereafter over the course of days several (3) rant); allegations January managers February and During retaliated deposition, against Norelus Norelus insisted after she com- that her plained two brothers to serve as the Meos translators. owners about sexual Throughout the deposition, the harassment (deposition brothers testimony that no would interpret the “meaning” questions retaliation occurred because she did not 5. Chambrot was pend- familiar with agreement executed, another retainer had been so ing against sexual harassment suit a different signed complaint. Chambrot The Am- Denny's filed Amlong, restaurant longs Karen representation commenced their formal and referred the Norelus Amlong receiving matter after agreement the retainer some prior filing original complaint, but no two months later. answer of one sworn replacement and stantive resignation); after her until
complain
Many
entirely
answer.
treat-
(4)
required medical
with
allegations
different
“clarifica-
(inability in
rape
changes, explained
these
the hairbrush
ment for
health
name of
details
material
provide
response,” supplied
deposition
tion
occurred).6
treatment
facility where
to remem-
totally
care
unable
was
that Norelus
deposition.
at her
ber
for her
support
providing
Instead
fur-
claims,
Norelus’s'
alleg-
complaint
example, Norelus’s
For
credibility by ex-
her
ther undermined
took
kidnapped her
that Hameed
es
allega-
of unsubstantiated
her list
panding
house, where she was
by car
his
have
forced to
she was
tions, including that
by both
repeatedly raped
restrained
worked
every day she
with Jawaid
oral sex
deposition,
At her
and Jawaid.
Hameed
of 1993
June
restaurant between
at the
could
times but
numerous
was asked
she
slept
that she had
May of
car,
nor the route
describe the
neither
The district
1000 men.
with over
driving
the house.
took when
Hameed
testimony was
that Norelus’s
noted
later
Sheet, however, Norelus’s
Errata
In the
falsities, misrepresenta-
with
replete
“so
detail was
great
changed
answer
that no reasonable
contradictions
tions and
the exact
the car and
about both
provided
*25
allega-
could have believed
person
his house.
took to
that Hameed
route
tions.”
many street
included
information
new
This
con-
counsel were
Norelus’s
Apparently,
precise ordinal directions
names
poly-
well,
they had her
as
because
cerned
addition,
tes-
deposition
In
her
the route.
once,
deposi-
during her
graphed twice—
by Jawaid
an assault
timony regarding
tion,
again
afterward.
provide
to
changed
completely
almost
was
trial
1996,
weeks
three
before
In
June
testimo-
factual detail. Her
greater
much
commence,
Amlongs served
towas
the color
not remember
that she could
ny
This
defendants.
Sheet”
all
“Errata
to so-
hairbrush used
material of the
or
and,
long,
sixty-three pages
was
“sheet”
Errata
her,
replaced
was
domize
concedes,
make
undertook to
majority
medium
light
to
with
Sheet
color—
depo-
to
sworn
Norelus’s
868 “corrections”
Er-
See
the material —wood.
brown—and
these
testimony.
explained
It
sition
Norelus,
*3,
at
at-
Excerpt,
Sheet
rata
her failure
the result of
changes as
A.8
Appendix
hereto as
tached
poor
or
being asked
what
understand
was
(her broth-
by
interpreter
translations
Sheet
the Errata
corrections
Other
ers).7
deposition
make to Norelus’s
sought
opposite
exact
testimony were the
however, were not
“corrections,”
Many
changing
testimony,
sworn
previously
“errors.”
translation
or
mere scrivener
to “correct” answers
“wrong” answers
sub-
involved the
Rather,
changes
these
pri-
deposition questions and Norelus’s
evi-
every any
other sort
Nor was there
answers.
allegations.
dentiary support for these
excerpt from
prepared an
8.The district court
product
a con-
was the
Sheet
7. The Errata
highlighting
of the 868
Sheet
some
Errata
of the Am-
associate
attended
ference
Appendix A.
(also
changes.
hereto as
firm,
It is attached
her two
long
brothers
Norelus
page
Sheet was
witnesses).
sixty-three
Errata
entire
by her as fact
Norelus’s
identified
award-
to the district court's order
appended
deposition,
only
translated
brothers
*
A.
Appendix
ing
See
meaning
sanctions.
interpreted and “clarified”
but
were
allegations
consistent with the
of her
aspect of the
order, and,
district court’s
complaint. Her deposition answer “no” to
1996,
December of
the court dismissed the
question
whether she was ever forced
case.11
sex,
have anal
changed
was
in the Erra-
“yes,”
ta Sheet to
as alleged in her com- B. The Sanctions Motions
plaint.
deposition
Her
testimony that she
After the
dismissed,
case
the defen
did not remember anything that she told
moved,
dants
under
§
28 U.S.C.
1927 and
police
about the assaults was replaced
power
inherent
court,
for the
in the Errata Sheet with a recollection that
award
against
Norelus and the
she told the police that the managers sexu-
Amlongs. Section 1927 codifies the “bad
ally assaulted her.
Id.
faith exception” to the American rule that
After
Sheet,
receiving
Errata
defen-
litigants pay their own fees and costs.
dants
moved to dismiss the
arguing Roadway
Inc.,
Express,
Piper,
447 U.S.
it
an attempt
constituted
to work a 752, 766,
100 S.Ct.
long testified her claims. in her client her belief Norelus’s pursuit in the intentions good idea that rejected the magistrate claim. excused examinations polygraph case, finding prosecution continued magistrate February of In strength- were claims “plaintiffs He and Recommendation. Report his filed ex- polygraph by manner ened frivolous claim was that Norelus’s found only seemed which passed she aminations and without “unreasonable it was because attorneys’ lack her own to demonstrate lacked foundation,” “always factual of the client.” allegations trust other evidence, any evidence or credible unreliable recollec- own plaintiffs than further found his recommendation support tions.” sheet and the errata “preparation awarded and costs be attorney’s (i.e., fees translation do so used to procedures her, that: specifically found he against possible expla- by plaintiffs brothers counsel) only questions plaintiffs her own Here, nations of presented plaintiff oc- have not and should improper testimony, without corrobora- was changing Furthermore, numerous “the any other witnesses from curred.” support or tion only sheet nearly errata totally or listed sources, changes which inability difficulty or numer- plaintiffs by plaintiffs illuminated totally discredited lies, account of events out- a consistent outright relate memory, lapses of ous her de- her claims.” during underlying made landish comments .... position however, magistrate rec- Ultimately, magis- Amlongs, respect the Am- against With ommended trate found that: that “their decision longs. He concluded litigation despite and believed on with the accepted press
Plaintiffs counsel counsel that ex- from defendants’ warnings based almost allegations [Norelus’s] might result merit and own recollections lacked clusively on case plaintiffs they “genuinely plaintiffs from was because initial corroboration sanctions” claims were meri- plaintiffs person, proceed- and third believed brother testify inability to .... despite plaintiffs lawsuit on basis torious to file ed *27 as- thereafter, truthfully about several plain- and immediately completely Almost hearing Karen ques- her case.” After appear pects of allegations began tiffs testify good intentions attorneys, Amlong her tionable, plaintiffs even of this dur- the conduct falsehoods several plaintiffs due to faith, find no “bad name, that he could concluded regarding her ing her of disregard or reckless improper motive and other seem- security number social sanctions.12 duty” justify that would More insignificantly matters. ingly [sic] witnesses, listed plaintiffs importantly, Court by the District C. Sanctions members, family including own her review, the district novo Denny’s, all its de friends, After and coworkers “findings magistrate’s that the held version contrary plaintiffs testified investigation, lack of frivolity, lack soon left plaintiff was facts so findings of court's contest the now timely objections to not fact, defendants filed 12. All fact exception of the ultimate with the Report and Recommendation. magistrate’s reckless, any mate- their conduct was any objections to the Amlongs not file did Recommendation, way. they do rial and Report and evidence, corroborating presence and allegations based exclusively almost on contradictory evidence” all militated in fa- plaintiff’s recollections;” own vor of the award of against sanctions (4)the “preparation of the errata sheet Amlongs, and that the magistrate’s recom- procedures and the used to do so was to the contrary mendation was “based improper have should not oc- standard, incorrect interpreta- incorrect (all added) curred.” emphases law, tion and not on the based record.” In the context of facts, these undisputed The magistrate applied erroneous le- magistrate’s own finding of impro- gal standard to Amlongs’ conduct priety, his failure to find the Amlong’s permitting Karen Amlong’s subjective not, reckless was the district court good intentions trump what he had al- said, upon based permitted or by the rec- found ready to be objectively her “improp- ord. A application correct objective er” conduct. The correct standard for the facts, test to these court, said the district imposition circuit, results in the following conclusions of law: held, district court an objective one (1) The Amlongs’ decision not to investi- conduct, which evaluates counsel’s not her gate Norelus’s allegations, after her subjective state of mind. witnesses failed claim, to support her Furthermore, held, the district court certainly her after own false- magistrate’s findings should have led him hood-riddled deposition, constituted to the conclusion Amlongs’ that the “im- a reckless disregard for the merits of proper” conduct was reckless. magis- her claim. trate’s not, conclusion to contrary (2) At least after deposition, Norelus’s held, the district court consistent with or have should known that (as upon based the record the magistrate her claim likely was very frivolous. be). already himself had it to found (3) The Amlongs’ decision to continue to this, To demonstrate the district court pursue a frivolous by filing claim catalogued magistrate’s findings of fact Errata Sheet was unreasonable and regarding the Amlongs’ conduct as out- vexatious and multiplied the pro- lined in his Report and Recommendation: (all ceedings unnecessarily, emphas- (1) Norelus’s claim was be- frivolous added) es it “always cause lacked credible evi- Accordingly, imposed Section dence, evidence other than plain- 1927 sanctions on the Amlongs and their
tiff’s recollections;” own unreliable (the law firm13from June 1996 date of the (2) witnesses, Norelus’s “listed including Sheet) (the Errata through March members, own family friends, order). date of the sanctions at Denny’s, coworkers all con- testified *28 trary plaintiffs of version the facts so The Amlongs make arguments three plaintiff was soon left with only her appeal: the court district erred in own to support claims;” her applying an objective standard to their (3) her deposition conduct; was filled with “nu- that the court district abused its lapses merous memory, lies, of outright in concluding discretion Amlongs’ that the (3) comments;” [and] outlandish the standard; Am- conduct met this and that the longs “accepted believed attorney’s [Norelus’s] award of fees and costs for the by 1993). Authorized Malautea v. Motor Suzuki Co., Ltd., (11th 1544 Cir.
1260 sanctions may impose court district [A] was also themselves proceedings sanctions attorney an egregious conduct of discretion.14 an abuse the attorney acted without the even if multiply or intent purpose specific III. say the not to is That proceedings. the irrele- is or intent attorney’s purpose may be im- sanctions 1927 A. Section objective attorney’s the Although vant. reckless conduct objectively posed for analysis, the focus of is the conduct in- subjective counsel’s regardless of is mind state subjective attorney’s of tent. piece important an frequently court act is more permits calculus, 1927 a given Section because of ac- “unreason- the bounds conduct that to fall outside likely litigation sanction be “un- and therefore conduct ceptable pro- vexatiously” multiplies ably and if it is vexatiousf]” reasonablfe] that “bad long held ceedings. have We or intent purpose a malicious done with imposition for the faith is touchstone” added). (emphasis Schwartz, the statute. under of sanctions accurate not an clearly, this is Quite Recently, made clear we at 1225. F.3d 341 Under objective test. description of in coun- found is to be bad faith that this faith, counsel’s bad objective test for subjec- conduct, not in objective sel’s “frequently never are subjective intentions objec- Id. Under of mind. tive state in eval- the calculus” piece of important majority, “the test, according to tive We objective conduct. uating counsel’s attorney’s compare the must Travel- Souran v. so held. explicitly have a ‘reason- the conduct against conduct (11th Co., F.2d Ins. ers about judgment attorney make able’ Cir.1993) (“‘The should determine ac- acceptable the conduct whether with- sanctions propriety of objectively the (em- objective standard” cording to some attor- conducting exploration out circuit, added). litigation phasis ”) (quoting subjective intentions’ ney’s it is reck- if may sanctioned be Note, Ap- Wilson, The Intended Debbie A. gross ... a have mean “by which we Proce- Rule Civil Federal plication less— Head, ‘Empty rea- might be 11: “An End to from conduct dure deviation and a Schwartz, Pure Heart’ in the circumstances.” sonable Reinforcement Defense Standards,” L.Rev. 41 Vand. Ethical at 1227. F.3d (1988)). opinion majority carefully established having After so that, clear “it is elsewhere even concedes test for Section appropriate that the the case statutory language from objective, not circuit is in this 1927, bad §of purposes law that for faith less than to no subjective, with citation subjective in- attorney’s turns not on proceeds cases, majority then fourteen con- objective tent, attorney’s but on the cita- added). proposition counsel’s It is advance (emphasis duct” —without intentions, conduct, under the authority not her single to a tion —that inquiry.15 focus our objective test: of her to our evaluation relevant are somehow address the majority opinion does not 14. The contrary, counsel’s objective conduct. On at all. third issue second *29 that evalu- irrelevant to remain bad intentions intentions, course, in a bad first determine must 15. counsel's district court Of ation. The objectively may a fac- was proved, become counsel’s conduct particular if whether found, court Having so district decision to court's ultimate reckless. tor in not, conduct discretion sanction majority has the But is sanction. bad faith presence of actual Clearly, the asserts, not. subjective intentions those because 1261 The district court’s determination adopted magistrate’s findings of fact— whether conduct “falls outside the and, undisputed indeed, by the defended acceptable bounds conduct” governed they conducted no indepen- —that by well-established precedent. circuit dent investigation of the facts underlying litigation Certain permissible conduct is claim,16 Norelus’s there was no evi- law, under our other conduct is forbidden. dentiary support for allega- Norelus’s may Sanctions be imposed where counsel’s tions,17that there was much evidence con- conduct was forbidden. tradicting her allegations,18 that Norelus’s
Conduct remains if forbidden even coun- was replete falsehoods, with acted sel with the best of intentions —for contradictory testimony19 and did not fac- example, helping client in whom she tually support the allegations of her own honestly believed, press a claim contradict- complaint,20 and, finally, that in response by ed all the available evidence and sup- to this circumstances, set of the Amlongs ported objective test, none. Under the did not dismiss the claim but rather chose a district may not excuse counsel’s to prepare and file 868 item errata reckless conduct because she acted with an sheet that changed materially their client’s head, “empty but pure Souran, heart.” sworn testimony.21 The district con- F.2d at 1508. Margo See also v. cluded that this conduct is forbidden our Weiss, (2d Cir.2000) (the 213 F.3d circuit, and, therefore, objectively reckless. objective any standard eliminates empty- majority, however, head, never pure-heart justification even dis- patently cusses these arguments); frivolous facts or their Wahl, legal conse- Thornton (7th quences. Cir.1986) (under 787 F.2d There is no discussion whatsoev- objective sanctions, test for er majority emp- opinion of “[a]n whether the ty pure defense”). head but a heart is no Amlongs’ was objectively reckless. “To excuse objectively unreasonable con- There is no case on whether they what did by an attorney duct would be to state that investigate Norelus’s claim was reason- one who empty acts ‘with “an head and a able under the law. There is case no pure heart” responsible is not for the con- whether the Amlongs may reasonably ” sequences.’ Braley v. Campbell, 832 choose rely on their belief their (10th Cir.1987) F.2d (quoting story client’s exclusion of other McCandless v. Great Atlantic and investigation. is no Pacific There case on whether Co., (7th Cir.1983)). Tea the Amlongs’ pursuit continued of Nore- This is not the law in the Eleventh Circuit. lus’s claim was reasonable when it became circuit, In our others, as in most Karen clear there evidentiary was no support for Amlong’s pure heart may not excuse her it and much contradictory evidence. conduct, it bad if was bad. whether, There is no case on a depo- after court correctly sition agree reviewed the that all with riddled false- with Amlongs’ conduct hoods, to determine it whether contradictory testimony and which objectively doing, reckless. In so it completely almost failed to support might tip case the balance in iavor of usually Because witnesses lie. sanctions. 19. Because she was confused. 16. Because usually witnesses lie. 20. Because there were translation errors. 17. Because normally such attacks do not they oc- 21. Because wanted to set the record cur where others can see straight. them.
1262 Amlong’s objective Karen to evaluate Amlongs’ court the complaint, of the
allegations mind. of subjective state her item conduct—not file a 868 prepare decision to did what she Having determined that changing their materially sheet” “errata as reckless, speculation the district court’s acceptable testimony was sworn client’s Even pure it dicta. the why she did is to simply no dis- There is litigation conduct. it noted that when majority recognizes this these about whether cussion whatsoever these “factual find- court the district made of sanctions. award support facts the subjective intentions be- her ings” about majori- discussion, the of Instead such its determi- obliged justify to cause it “felt these do that ty position takes the facts (emphasis objective nation bad faith” of majority, the the According to not exist. added). regarding ir- Credibility findings magistrate’s rejected the court district constitute re- testimony do not relevant Errata Amlongs filed the finding the necessary to is error. No remand versible to, as Karen attempt faith good in a Sheet the district court a conflict between resolve testified, straight.” the record Amlong “set to irrelevant the magistrate that is and the dis- Instead, complains, the majority the of this case. outcome the errata they filed trict court found Kar- speculation its about opposed As to testimony,” “repair the sheet “bolster mind, subjective state of the Amlong’s The en “coverup falsities.” damage,” the the Am- holding is that court’s court district the district majority holds was reckless. objective longs’ “rejected mag- the it “clearly erred” when conduct, agree all respect to credibility de- With fact and findings of istrate’s adopted, court facts. The district hearing.” ... without terminations find- rejected, magistrate’s rather than view, be re- the case must majority’s Amlongs fact what ings concerning of to be found. for the facts manded order Norelus’s claim.22 pursuit their did in It rooted mistaken. is This view is dispute these do Even be- majority’s distinguish failure to have contrary, as we seen facts. On the regarding what findings fact tween their above, defend con- they vigorously re- credibility findings Amlongs did and necessary Therefore, no is duct. remand subjective good their intentions garding facts do not facts. These to find these district that the doing it. To the extent credibility. Amlong’s Karen depend upon about reached conclusions court (there upon Karen only depends no fact is subjective intentions Amlongs’ good claim to credibility her Amlong’s opinion), faith in its finding of actual bad she did. Since doing what intentions these conclusions and to the extent irrelevant the determination this fact is magistrate, conflict with those conduct, point what is objective irrel- and the conflict conclusions are dicta remand? requires evant. statute discretion, judicial rejected the exercise sound had 22. Even if the court district however, magistrate’s proposed findings, place it would magistrate’s on the fact chose de In its novo v. have no error. findings committed Mathews recommendations.” motions, 261, 273, Weber, review of S.Ct. 46 96 423 U.S. reject, modify, “accept, court is entitled (1976). is the district Nor L.Ed.2d findings or recom- part, in whole or in evidence. United required to rehear by magistrate.’’ United mendations made Marshall, (5th States v. 673-74, Raddatz, U.S. States Cir.1980) (district may de- base factual (1980). Further- S.Ct. 65 L.Ed.2d record, including transcript terminations more, review, “Congress in its intended hearing judge). before judge, in permit reliance a district whatever *31 that, majority professes agree testimony that she did these things be- test, objective fully even credited under usually cause there are not witnesses to good may intentions not excuse otherwise lie, such events or the usually witnesses in blameworthy implicit conduct. But its that she believed story, Norelus’s that oth- Amlong’s testimony that Karen insistence too, ers believed it and that she filed the must be heard is the belief that even if the errata sheet to “set straight,” the record in claim things pursuit she did of Norelus’s our cases litigation condemn such conduct forbidden, things permitted were these are regardless of the reasons for it. Case good when done with intentions. This after in case this circuit unequivocally throughout majori- belief is reflected holds that an utter failure to investigate ty’s opinion, not one which contains word satisfy does not duty counsel’s to the objective about recklessness of the court—even if counsel considers such in- conduct, Amlong’s exhaustively but cata- vestigation fruitless. Case after case holds logues good their intentions. that reliance on a belief in one’s client
But this is not the law. No amount without more is not enough satisfy coun- good legitimize intentions can otherwise duty sel’s regardless of the court — litigation forbidden conduct. If what coun- strength with which such a belief is held. transgresses permissible sel has done Our cases are unanimous that an errata bounds, may plead good counsel faith sheet that changes makes wholesale to a so, in it. doing Were that not counsel who plaintiffs sworn testimony is justice, in ought, knows his client win both improper judicial and an abuse of the good the case could claim faith in suborn- process regardless of the doing motive in — ing perjury to achieve that success. so. Similarly, So, having good intentions cannot make story “knew” that Norelus’s was true and permissible major- what is forbidden. The prevail They she should her claim. ity offers not one testimony case which Therefore, they believed her. filed her subjective about good counsel’s intentions claim any investigation without whatsoev- to, was held to be even relevant much less They er. depose single chose not to of, objective determinative reckless- witness. After the depositions, defense ness of I suggest counsel’s conduct. there when it every became clear that fact wit- is not one. by ness identified only Norelus had not If the Amlong’s conduct is forbidden but, fact, support, failed to contradicted cases, our as both the and the story, they her pursuit continued their held, district court then remand for recon- her claim. After Norelus’s falsehood-rid- sideration of that conduct in light dled deposition, support which failed to Amlong’s good Karen intentions is unnec- allegations complaint, of her own Am- essary. longs pursuit chose not to abandon their claim, but prepared instead and filed have specifically We so held. In direct that, an 868 item errata sheet as the ma- majority conflict with the opinion, we have jority acknowledges, itself materially that, held under Section no remand changed contradicted —Norelus’s —even to the district court necessary where the previously sworn testimony. record contains the facts of counsel’s ob jective because, objec under the circuit, majori-
The law in this
which the
test,
ty
mentions,
may
propriety
never
tive
we
review the
even
is that
litiga-
such
tion
objectively
conduct is
conduct without
or findings
reckless and
Despite
sanctionable.
Amlong’s
regarding
subjective
Karen
counsel’s
intentions.
*32
proceedings.
multiplying
(the
atiously
should
Souran,
F.2d at 1508
982
Schwartz,
at 1225.
F.3d
341
objec
of sanctions
propriety
determine
exploration
conducting
tively without
a lack of merit”
more than
“Something
intentions). Un
subjective
attorney’s
however,
a claim to
for
be
is required,
Souran,
of fact
findings
der
not suf
is
“[I]t
frivolous. Id.
considered
meritless;
than sufficient
are more
of this case
record
claim found
that the
be
ficient
court’s
legal
of the district
a plausible
our review
permit
must be without
the claim
lacking
justifica
in
Id.23
to sanction.
factual basis
decision
Harbil, Inc.,
Corp.
Brake
v.
Knorr
tion.”
undis-
court reviewed
The district
(cited
(7th Cir.1984)
223, 226-27
F.2d
738
what the
puted
regarding
facts
Orlando,
City
264
in Torres v.
that,
binding
under our
did, and concluded
(M.D.Fla.2003)
(aff'd
1053
F.Supp.2d
objectively
was
this
precedent,
Cir.2003))).
(11th
Fed.Appx. 391
88
dissent from
respectfully
I must
reckless.
be frivolous
claims to
have found
We
I
again.24
it must do so
holding that
they
“groundless [and] base
were
where
job
done.
its
believe
is
“untruthful, out
upon
predicated
less”
court’s
job is to review
Our
scandalous,
alle
and slanderous”
rageous,
was
Amlongs conduct
that the
conclusion
Annis,
F.2d
745
Beard v.
gations,
majority
Because
objectively reckless.
(11th Cir.1984),
“false and
upon
or based
all, I have
this
at
address
issue
does not
v.
Footman
allegations.”
unsupported
following discussion.
included
(11th
144, 146
Cir.
Fed.Appx.
Cheung, 139
2005).
frivolous claims are
types of
Other
abuse its
court did not
B. The district
all,
at
by any evidence
unsupported
those
the Am-
concluding that
discretion in
1567, 1573,
Mroz,
1574-75
F.3d
In re
reck-
objectively
was
longs’ conduct
(11th Cir.1995),
“rea
having no
or those
less.
Barnes,
fact.”
158 F.3d at
basis in
sonable
circuit,
sanc-
attorney may be
v.
In
School
generally
Sullivan
See
liti-
County,
1927 when she
773 F.2d
under Section
Pinellas
tioned
Bd. of
(district
Cir.1985)
attorney
(11th
“must
objective bad faith. An
gates
the case
question
she
objective
faith
focus on
whether
litigates in
bad
when
merit as to
claim,
arguable
be
delay-
lacking
so
a frivolous
recklessly pursues
rather
foundation
groundless or without
unreasonably and vex-
its dismissal
ing
Souran,
dicta
upon
as
I
inappo-
Nor have
relied
Souran
majority
23. The
dismisses
I have cited Souran
majority suggests.
After con-
a Rule 11 case.
because it is
site
principles
ceding
“many
same
of the
remand is unneces-
proposition
for the
statutes,
majority
apply” to both
sanctions
the facts of
sary
the record contains
where
statutes
significance in the fact
conduct,
finds
if it fails to
objective
even
counsel’s
authority” and in the
Souran,
are "different sources
of mind.
us of her state
inform
plead-
primarily at
Rule 11 "is aimed
fact that
explicitly
quite
that remand
the court held
of both
ings”
the conduct
and "addresses
counsel’s intentions
develop
record as to
majority,
attorneys.”
howev-
parties
inquiry
unnecessary
the court's
because
er,
addressing
cen-
gets
never
around
to counsel’s
conduct —not her
was limited
fact,
is,
applicable
Souran
why
reason
tral
of mind.
state
and Sec-
both Rule 11
to this case —because
objectively bad
impose
tion 1927
hearing
yet another
this time after
24. But
conduct,
regard
state of
to counsel's
without
testily
Amlong
during
will
which Karen
objective standard
of the
In their use
mind.
good
totally
inten-
length to
irrelevant
sanctions,
whatsoev-
is no difference
there
tions.
statutes.
er between
two
146;
Nezhat,
ultimately
Byrne
the claim was
than whether
suc-
cessful”).
(11th Cir.2001).
pursuit
counsel’s
Additionally,
We have refused to excuse the failure to
merely
must be more than
frivolous claim
independent
conduct an
investigation even
Schwartz,
which we
deviation
chose, instead,
rely
‘multiple
on his
in
might
be'
in
reasonable
Torres,
terviews’ with his client.”
264
circumstances)”
support
will
an
award
F.Supp.2d at
(aff'd
1054-55
88 Fed.Appx.
under
1927. Id. at 1227.
sanctions
Section
391). We have made clear
that “[a]
court in Cordoba
it well
The district
stated
good
client’s
faith belief in a claim does not
it said that “counsel’s conduct must
when
automatically make that claim meritori
have sunk so far beneath a reasonable
ous.” Id.
competence,
deeper
standard of
much
than
lacking
addition to claims
credible
that it
negligence,
essentially
mere
became
evidentiary support
filing,
at
“dogged pur
faith.”
indistinguishable from bad
Cordo-
suit of a colorable claim becomes action
Dillard’s, Inc.,
1169,
ba v.
419 F.3d
1178
(or
attorney
able bad faith once the
learns
(11th Cir.2005)
*7)
Cordoba,
(quoting
at
learned)
should have
the claim is
(district
opinion).
TCI, Ltd.,
bound to fail.” In re
769 F.2d
circuit,
pursuit
In this
counsel’s
of a
plaintiffs’
at 445. When
own witnesses
claim
in
lacking
frivolous
is reckless
eases
knowledge
have no
alleged
the facts
in
outset,
credibility from the
such as when
complaint,
1582,
Avirgan, 932 F.2d at
attorney
investigate adequately
fails to
or,
still,
worse
testimony actually
their
comp
allegations
contained in the
Beard,
contradicts
allegations,
those
730
Walden,
961,
v.
Collins
834 F.2d
laint.25
744,
at
F.2d
counsel is on notice that her
(11th Cir.1987) (affirming
965
sanctions
claim is
plausible legal
without
or factual
where counsel had neither direct nor cir
apparent
basis.
“When it becomes
cumstantial evidence of
at time of
[claim]
discoverable evidence will not bear out the
Torres,
filing);
F.Supp.2d
264
at 1054-55
claim,
litigant
attorney
and his
a
have
391) (counsel
(aff'd
Fed.Appx.
88
sanc
duty to
quest,” risking
discontinue their
tioned where he conducted no independent
Walden,
if they
sanctions
do not.
834 F.2d
investigation, relying instead on
in
belief
Byrne,
at 965. See also
groundless, only if the finding factual so). making tion clearly it became after gate Id. This clearly erroneous.” finding were frivo pursuit Finally, reckless pay deference requires us standard and vexa unreasonably must lous claim interpretation court’s the district proceedings. multiply tiously City it. Anderson record before factual held have Schwartz, at 1225. We 573-74, Bessemer, U.S. claim of a litigation the continued (1985). Thus, 84 L.Ed.2d S.Ct. the discov from apparent it becomes after of the evi- account court’s “[i]f sup exists that no evidence facts erable record light of the plausible dence in this multiplies proceedings it port appeals the court of entirety, in its viewed (aff'd Torres, at 1055 F.Supp.2d way. though convinced it even may not reverse 391). also held have We Fed.Appx. *34 fact, trier of sitting as the it been had that proceedings the multiplies that counsel evidence differ- weighed the it have would the requires his conduct vexatiously when permissible are two ently. Where there amount a considerable spend court evidence, the fact finder’s of the views of that consequences dealing with time clearly er- cannot be between them choice evidentiary hear conduct, in an including Id. roneous.” v. Su Malautea sanctions. ing regarding 1536, by Ltd., 1545 Co., yardstick F.2d is the 987 zuki Motor Reasonableness Cir.1993) (defense ulti- discovery intransi court’s (11th the district we measure which Amlongs’ to deal judge that required legal conclusion gence mate motions,” “necessitat In re level. to sanctionable with “countless rose a conduct regarding sanc 120 evidentiary hearing Litigation, ed an Contamination Tutu Wells Cir.1997). imposing (3d order In Tutu tions, thirty-eight page a 389 F.3d sanctions, that even appeal”). Wells, and this held circuit the Third a advanced counsel sanctioned though Amlongs’ that court held The district conduct, for their explanation plausible claim, there a frivolous recklessly pursued sup- in the record was evidence there vexatiously multiply unreasonably and by that conclusion court’s port district is This conclusion proceedings. ing these delay,” as “pattern they engaged in The discretion.26 an abuse of reviewed for the district circumstances In such well. factual both involves to sanction decision Id. reasonable. conclusion was court’s Hart & Gell legal issues. Cooter evidence,” the “undisputed view 384, 399, 110 S.Ct. 496 U.S. Corp., marx unreasonable concluded, “it was not court (1990). The district L.Ed.2d 359 that the to conclude district court for the factual issue determine the court must were willful and investigation in delays did, as actually as well attorney what the faith.” in Id. bad conduct that of whether legal issue Both level. Id. a sanctionable rises to court’s decision Finally, district however, merely decisions, reviewed are substantial is entitled to impose 401, 110 Id. at discretion. abuse posi- best it “is because deference S.Ct. 2447. the factual circumstances to review tion judgment [it] render informed facts, court respect “[a] With liti- intimately involved with concluding justified be would appeals to the mer- recklessly indifferent was imply that extent 26. To the claims, and the Errata negligence applied a mere of their client's its conduct, disagree. proceedings. The vexatiously multiplied I their standard to Sheet Amlongs' clearly held attorneys gants, daily hand, and the basis.” On the other there was much evi- Services., Inc., Capital Thomas v. Sec. 836 dence that Norelus’s claims were not cred- (5th Cir.1988) (en banc). F.2d ible. employers’ The remedial investiga- Thus, we, course, although review the tion revealed no wrongdoing. police decision, district court’s “the issue is not investigation revealed such “inconsisten- sanctions, whether we would award but cies and contradictions” that the At- State whether, applying appropriate, defer torney did prosecute. not There standard, ential review we must sustain witness, one as the Amlongs concede the district court’s decision.” Phonome- brief, their who could corroborate her trics, Co., Inc. v. Westin Hotel. charges of sexual contrary, abuse. On the (Fed.Cir.2003) n. (affirming directly witnesses contradicted her sto- by sanctions awarded a district court in ry, testifying they never saw sex- the Southern District of Florida and apply ual harassment improper sexual com- ing Eleventh Circuit law under 28 U.S.C. ment, except Norelus herself.28 When 1927). § Norelus deposed, herself was the “incon- sistencies” outright lies her own Amlongs recklessly pursued a apparent counsel, were even to claim. frivolous causing them to have her polygraphed. Amlong Karen testified because she Nonetheless, counsel continued to press *35 client, believed her she did not interview demonstrably claim, this unsupported any people of the Norelus claimed to have without in engaging any investigation of witnessed the prior incidents of abuse to allegations. Norelus’s filing the amended complaints. Even after Based upon facts, these undisputed depositions witnesses’ revealed that found, district court as magistrate, did the supported none her version of events at that claim Norelus’s was frivolous because all, counsel admits she did not believe it “always evidence, it lacked any credible or necessary any to order of the transcripts evidence than other own [her] unreliable to testimony, evaluate this nor to conduct recollections” and that “un- any sum, inquiry. further In counsel’s dertook no investigation reasonable prior premised belief in her client was neither filing any to Complaints any or at any on facts nor on investigation; she point during pendency of this litiga- evidence, literally had no other than Nore- tion,” instead, choosing, rely to continue to story, prior lus’s filing any to on Norelus’s story. unsubstantiated (to complaints amended which defendants district court concluded that this conduct obliged were respond again) to that Jawaid was reckless. or any Hameed committed of the acts al- leged in those complaints.27 Amlongs argue Nor was that there independent ever such evidence. in abused its discretion concluding Amlong testified that majority she "faxed a form innuendo.” The comments that Valladares, complaint” Amlong's suggested and at "some witnesses that Jawaid and direction, provided an associate of hers might “tech- Norelus have had a consensual sexual guidance nical assistance” and to Valladares relationship,” "Amlong and that said she purposes copying, "cutting past- hoped exploit these inconsistencies at trial ing,” preparing original what became the veracity to cast doubt on the witnesses’ complaint in this action. story.” draw out unrevealed facts of the I astonishing. find this comment If Norelus testimony 28. The witness was that she "came and Jawaid had a consensual sexual relation- happy, friendly, joke ship, to work she would about this whole case was a sham and an engage sexually sex at work and graphic judicial process! in abuse of the indicated own witnesses Norelus’s was reckless because their conduct as in lying. belief in her that she was their client’s
they relied on
Blue,
advanced
previously
only
“the
‘evidence’ ever
We have
allegations.”
“core
however,
attorney
has
their claims were their own
held,
by plaintiffs
“[i]f
‘unsubstantiated,
inquiry
self-serving,
into
contradicto-
a reasonable
failed to conduct
matter,
obligated
the court is
claims of discrimina-
ry,
then
and inconsistent
”
(internal
attorney
if the
had
even
citations omit-
impose sanctions
tion.’
Id. at 543
ted).
the claim was
faith
good
belief
In the face of such unsubstantiated
Mroz,
It will
Blue: for the client’s claims factual bases Undoubtedly there are instances obtained in dis- examination of materials attorney irresponsibly by acts which and im- covery paucity reveal the would his investigate the facts behind failing to plausibility of the evidence. relying instead client’s claim Id. at 543.29 sup- solely on the client’s Hopson, 108 Fed. Similarly, Byrd escape cannot port his case. “Counsel (4th Cir.2004), Fourth Cir Appx. 749 here, by liability, they attempt where: cuit affirmed an award of sanctions belief that their relying solely on their investigation of on a reasonable [Biased they feel that were genuinely clients law, should have the facts and [counsel] it longer enough “No fairly treated.” plaintiffs] recognized that quickly [the attorney to claim that he acted for an groundless. The court not- claims were faith, personally or that he *36 good plaintiffs] version of events [the ed that nature of an groundless unaware of the nu- underlying this lawsuit contained claim.” argument or and that the wit- merous inconsistencies omitted). (citations Thus, the
Id. at 542
in
spoke
whom [counsel]
nesses with
in their belief in their
Amlongs’ good faith
credibility
investigating the case lacked
not insulate them from
client does
alleg-
the information
almost all of
[and]
of the federal rules to inves-
requirements
edly
by these individuals was
known
they bring to the court.
tigate the claims
rumor,
hearsay,
or-speculation.
“Blind
on the client is seldom
reliance
”
In
wit-
Id. at 755.
this
Norelus’s
inquiry
Leasing
....
Southern
sufficient
any
knowledge
improper
had no
nesses
McMullan,
Partners,
801 F.2d
Ltd.
at all.
(5th Cir.1986).
hand,
have declined to
On the other
we
permit
their belief in their client
Nor did
counsel,
where
when
testimony
of all
affirm sanctions
Amlongs
ignore
length
plaintiffs' respective versions of events
quoted at
from
in
Fourth Circuit
The
per-
opinion
point:
mandating
question
on this
that
their
the district court's
counsel
Here,
ception
....
ac-
of discrimination
produced
had
an enormous
Defendant
investigate plaintiffs’
was vir-
cess to
stories
clearly
discovery
of it
amount
—much
Yet,
tually
[plaintiffs'Jclaims
unchecked.
any
by
credible evidence in
unrebutted
continued,
filed,
apparently
Counsel,
were
and ...
plaintiffs' possession ....
cer-
thought
any objective
as to their
without
tainly by
time ... had no reasonable
this
rely
plaintiff.
merit.
upon which to
on either
basis
Significant gaps
“hints of arose Norelus’s 30(e) Amlongs maintain that Rule case.30 way “in no types limits the and number of Therefore, I changes” conclude that an errata permitted sheet is finding prior court did not abuse its discretion in to make to a deposition.31 The ma- Amlongs’ jority agree, noting that the belief their client was seems to without com- objection because it was: ment or unreasonable that Norelus’s sworn changed 868 times neither on facts nor reason- [PJremised Errata Although early may Sheet. cases literally investigation. able Counsel had given impression have such beyond incendiary no evidence Plaintiffs is, changes permissible, are the rule contradictory descriptions that De- was at Amlongs the time the filed the fendants committed of the acts al- Sheet, contrary. Errata leged Complaint. when the submitted finding,
In view of this it was not unrea Sheet, the Norelus Errata this rule was for the district court to conclude sonable already earlier, years clear. Four Amlongs pursuit of Norelus’s Co., Greenway Paper v. Int’l 144 F.R.D. Although claim was reckless. the Am- (W.D.La.1992), the court noted longs protest they prosecuted is not a straightforward way “[a] case in a and in their take home manner, examination.” The court said: usual as the district court said fine, 30(e) Torres conduct would be if the “[s]uch purpose of Rule is obvious. prosecuting case was worth in the first reporter Should the make a substantive place. F.Supp.2d It was not.” 264 at 1055 error, i.e., reported “yes” he but I said 391). (aff'd Fed.Appx. “no,” error, i.e., or a formal he reported the name to be “Lawrence Smith” but *37 2. filing the Errata Sheet reck- of Smith,” the proper name is “Laurence lessly multiplied proceedings. then corrections the deponent would with the failure to investigate, As be order. The Rule cannot be inter- Amlongs dispute they helped preted do not that to allow one to alter what was hold, majority ject psychologist’s opinion I would not seems the notion that a do, having poly- inclined to that one’s client story that the client believes her own is suffi- ,graphed acceptable is an substitute rea- for satisfy duty investigate. cient to counsel’s investigation sonable and evaluation of the all, only thing First discovered facts. Amlongs 31. The do concede that errata sheet polygraph "proves” that the examination changes "materially alter the substance” story. the examinee believes her own client's are sanctionable This, however, is not the measure of color- when done in actual bad faith. See Combs v. Secondly, purpose able claim. of discov- 486, Corp., Rockwell Int’l 488-89 that, ery objective is to elicit facts so (9th Cir.1991) (sanctioning changes that in- possible, the extent fact finder is relieved of [plaintiff’s] cluded answers to "reversals divining through the burden of the truth key questions”). swearing Similarly, electronic match. I re-
1270 (10th 1275, 1281-82 County, 330 F.3d that were the son oath.
said under
If
Cir.2003)
questions
(analogizing
to rule that affidavit
merely answer
one could
return home
at all then
sworn
thought
prior
no
to contradict
may
with
not be used
artful
plan
responses.
Similarly, the Seventh Circuit
testimony).
substance which
change
that “a
has held
Id.
is im
transcript
actually contradicts
1994,
Similarly, in
the United States
rep
plausibly
it can
be
unless
permissible
District of Columbia
for
District Court
of an error
as the correction
resented
noted that:
”
dropping a ‘not.’
transcription, such as
30(e)
that Rule
...
argues
Defendant
Corp., 207
Aerospace
Thorn v. Sundstrand
any
make
substantive
allows
(7th Cir.2000) (calling
such
F.3d
389
older
she so desires. While
change
tactic”).
an errata sheet a “foolish
position,
support
appear
cases
limited this blank
have often
later cases
affirmed a district court’s
too have
We
check;
potential
perhaps because
disregard an errata sheet
decision to
for abuse.
to a
changes
material
attempted to make
Liabili-
Parkersburg
Ltd.
v.
Wireless
SEC
depo
grounds that the
deposition on the
(D.D.C.1994).
Co.,
F.R.D.
ty
156
529
at the time of the
was “confused”
nent
IBM,
Corp.,
District Court
320
Reynolds
The United States
deposition.
Carolina,
(M.D.Fla.2004),
Middle District of North
F.Supp.2d
aff'd
attempt
to “cor
plaintiffs
(11th Cir.2004)
sanctioned
(approv
Fed.Appx.
correc
7-page
“with
rect” her
disregard
court’s decision to
ing district
corrections
a 260-
over
tion list with
did not
changes
deponent
where
errata
‘yes’ to ‘no’
deposition, changing
page
during depo
any obvious confusion
exhibit
Barlow v. Esselte
vice versa.”
Pendaflex
sition).
initial
Similarly, Norelus’s
sworn
(M.D.N.C.1986).
404, 406
111 F.R.D.
Corp.,
reflect
“yes” or “no” do not
answers of
faith from the
inferred bad
The court
have been “clarified”
confusion
should
the erra
changes”
number of
“manner and
opposite
of the exact
by the substitution
characterizing the con
proposed,
ta sheet
answer,
great detail.
along with
causing “unneces
“harassing”
duct as
that the
changes
contend
sary delay and costs.” Id.
did not
by their
Sheet
mate-
made
Errata
Bigler,
F.Supp.
In Rios v.
of Norelus’s an-
rially alter the substance
(D.Kan.1994),
court,
154 6 —47
Amlong testified that
Karen
swers.
that it would consid
citing Greenway, held
really only “immaterial
changes were
changes
only those errata sheet
er
elaborations,”
“really significant.”
and not
and not those that
deposition,
clarified
careful review the
The district court’s
it.
materially altered
A,
changes,
Appendix
attached hereto as
by several courts of
Recent decisions
example,
it to find otherwise. For
led
*38
own,
in
including
affirm this
appeals,
our
“no” to
deposition answer
the
Norelus’s
30(e).
Tenth
of Rule
Cir
terpretation
forced to
whether she was ever
question
said,
do not condone counsel’s
cuit has
“We
sex,
in the Errata
changed
anal
have
was
changes
deposition
allowing for material
“yes,”
alleged
complaint.
in her
Sheet to
testimony
certainly
approve
and
do not
of
an as-
testimony regarding
deposition
Her
testimony that is
the use of such altered
completely
by
was almost
sault
Jawaid
original testimony.”
by
controverted
the
greater
much
factual
changed
provide
Club,
Country
v. Pueblo
Garcia
could
testimony
Her
that she
(10th Cir.2002);
detail.
n.
accord
of
the color or material
Jack-
remember
County
v. Board
Com’rs
Burns
of
her,
the Errata
filing
re-
Sheet was their
to sodomize
was
hairbrush used
with the col-
in the Errata Sheet
faith effort
to “set
the record
placed
good
the ma-
brown—and
light to medium
straight” and because the “corrections”
or—
Her
terial —wood.
opened
up
potentially
devastat-
Norelus
anything that
remember
that she did not
ing
argument,
cross-examination. This
the assaults was
police
told the
about
she
however, ignores
plain
fact that with-
a recol-
in the Errata Sheet with
replaced
sheet,
out the Errata
Norelus had no case
police
that she told the
lection
at all. The district court found that the
her. Her de-
managers sexually assaulted
Errata
“repair
Sheet was
effort to
could not re-
testimony that she
position
damage”
deposition by providing
to her
car Hameed
anything about the
member
support
factual
to an
dismissible
otherwise
they took when he
her in or the route
put
Specifically,
case.
the court found:
her to his house
kidnapped her and drove
[T]he Court’s close examination
repeatedly
where she was restrained
changes
868 errata
indicates
concerted
Jawaid,
was
raped by both Hameed
provide
support
effort to
factual
to an
great
in
Errata
with
replaced
Sheet
otherwise meritless case. The informa-
car and the exact
detail about both the
changes
tion
in the errata
included
house, in-
took to his
route that Hameed
backbone
forms
factual
of Plaintiff's
many
precise
names and
cluding
street
unsupported by
case and is
Plaintiffs
for the route.
directions
deposition, both
before
after
simply correcting
than
inaccura-
Rather
(em-
preparation
changes
the errata
transcription
or mistakes of transla-
cies
added).
phasis
tion,
that the Erra-
the district court found
in
finding.
There is no clear error
See
changes bolstered Norelus’s case
ta Sheet
Footman,
(rejecting
at
Fed.Appx.
by supplying
support
allega-
for the
truth-
counsel’s characterization as “more
glaringly
that was
complaint
tions of her
“corrections” to
ful and accurate” his
deposition. This
missing
original
interrogatory
sworn
answers that bol-
clearly
finding by the district court is not
case).
stered
erroneous.
it
also contend
I find unreasonable the district
Nor do
district court
not reasonable for the
filing
legal
court’s
conclusion
filing
conclude that
their
of the Errata
this Errata
was reckless. The dis-
Sheet
objective
bad faith because
Sheet was
that, “[c]oupled
trict court concluded
with
that,
ultimately
held
since
complete
supporting
lack of
evidence
client,
they
they engaged
in their
believed
quantity
in this
the nature
advocacy.
than
nothing more
zealous
Errata
bol-
entries on the
Sheet —which
magistrate’s legal
But this reliance on the
up falsi-
stered inconsistencies or covered
I
misplaced.
pointed
conclusion is
As have
ties,
inability
and thereafter the Plaintiffs
above,
conducting
out
its de novo review
factually
changes
support
errata
sanctions,
of the motions for
subsequent deposition
—demonstrate
it
judi-
court is entitled to make whatever use
disregard
bad faith and willful
Amlongs].”
cial
See Bar-
process
magistrate’s Report
[the
sees fit of the
low,
(inferring
that the firm’s actions able. nothing more than tigation amounted advocacy representation in of its
zealous deci- 3. The district court’s ultimate not warrant clients and therefore did con- Amlongs’ sion to sanction the The firm submits that sanctions. duct was not an abuse discretion. disagree court had no basis to district that, sum, In the district court found magistrate judge’s conclusions. with the in despite good their faith belief Norelus’s However, in that in- the district court duty story, Amlongs had a to investi- magistrate judge stance did not owe they ful- gate allegations, her which had Further, undisputed any deference. filled, would have revealed to them the makes it clear that it was not evidence frivolity failure of her case. view the for the district court to unreasonable her support of her own fact witnesses to delays investiga- conclude that the story, especially after her own false- faith. tion were willful and bad deposition, hood-riddled which she too added). (emphasis at Simi- evidentiary for provide support failed to Amlongs ad- larly, while claim, they obligated were to but did their exculpatory explanation vance an if investigate not to determine there was advocacy- conduct—zealous was —there at all evidentiary support for her support ample evidence the record to Instead, they claim.32 and filed prepared finding the district court’s of recklessness an 868 item errata sheet that had the instead, and, therefore, was its conclusion bolstering effect of Norelus’s not unreasonable. testimony by eliminating inconsistencies Furthermore, Amlongs’ decision to lies, outright providing support Sheet, file the Errata instead of “discon a patently for what was otherwise frivolous Walden, tinuing] quest,” their F.2d at Concluding case. that the reck- 965, clearly multiplied proceedings. lessly pursued a frivolous claim and multi- multiplying We have affirmed sanctions for plied proceedings, these district counsel chose to proceedings where sanctionable, held their conduct and exer- litigate continue to a claim after he should impose cised its discretion to sanctions.33 have known that no evidence even remote I would affirm this decision. ly suggested that the claim had merit. Torres, F.Supp.2d (aff'd at 1055 The district court did not abuse its C. 391). Fed.Appx. awarding discretion in costs proceedings.34 the sanctions fees for upon findings, Based these legal filing requires court’s conclusion that Section “nexus” between the Errata Sheet was reckless and multi-. the amount claimed as a sanction and the reject Amlongs’ apparent theory why 32. I Karen no reason these costs and fees are not rely story properly that she could on Norelus’s because awarded under Section 1927 for the given judge, "When I out we had a female I I have above. found same reasons just delighted, because I felt that if one simply woman looks another woman majority opinion 34. The does address this story, to this woman tell her listens she’s issue at all because it does not rule on the ” going to believe her .... of sanctions. I include this discussion merits for the same reasons that I outlined above— Although majority parses reimpose out the dis- should the district court sanc tions, trict court's decision to award sanctions for this issue should be resolved in the deposition, judicial economy. re-opening of Norelus's I see interests of
1273
Peterson v.
perceive
one is better
situated to
itself.
sanctionable
measure of the sanction.
1386,
Refractories,
124 F.3d
1396
BMI
Walden,
at
834 F.2d
966.
Cir.1997).
(11th
The district court award-
majority
of cases hold
fees and
date
fees,
expenses from the
costs and
ed
pro-
in connection with the sanctions
costs
complaint
Norelus’s
dismissal
ceedings
may
themselves
be awarded as
order.
of the sanctions
through the date
product
of the sanctionable conduct
of fees
object to the inclusion
Wells,
Tutu
See
(citing
mine the Further, party if a tions award. reasons, foregoing I believe the For that the costs he incurs in aware ex ante judgment awarding district court’s sanc- conduct will never exposing sanctionable in all respects, tions is due to be affirmed recouped, party may be decide to and, respectfully I must dissent from the altogether. forgo proceeding a sanctions majority’s contrary. conclusion to the however, party might doing, In so litigation re- This interminable is now allow otherwise sanctionable conduct to turned to the court for further district cases, go unaddressed. In such the de- The is told proceedings. yet hearing that it must hold another goal terrent of a sanction award has sincerity determine the counsel’s lost; parties who know that been majority, conduct of this case. The howev- facing proceed- likelihood of a sanction er, fails to instruct the district court what in ing may engage are low sanctionable may place these facts have its ultimate conduct more often. reimpose decision whether to sanctions. I Therefore, I agree Id. at 388. with the they suggest place have no at all. district court that it has the discretion to attorney’s arising from the
award fees proceedings themselves. A Appendix litigation over the sanctions occupied parties has motions for the 2. The Errata Sheet time, effort, past years. ten and re- sixty-three pages The Errata Sheet was expended proceedings sources these has long changes and made 868 Plaintiffs been much a harm to defen- [these “as answers, sought sworn delay in litigation as is the dants] explain changes material to Plaintiffs tes- prejudice the substantive caused (1) timony through categories: four broad I agree conduct.” Id. with the Tenth being “Did not what understand “attorneys engage Circuit when (2) (3) asked”; recollection”; “Refreshed challenge scorched earth tactics to such a (4) by interpreter”; “Poor translation award, permit recovery fee refusal (See response.” “Clarification of Errata defending 1.) additional fees for award following examples Sheet at are purported changes testimony: would allow counsel to dilute the value of material *43 (See Sheet, generally, Errata dated June ASSURANCE, FINANCIAL SECURITY (hereinafter Sheet”) (an- “Errata INC., Plaintiff-Appellant, A.))
nexed Appendix hereto as STEPHENS, INC., Hayes, James & Associates, Inc., Defendants- Appellees. No. 04-14894. United States of Appeals, Court Eleventh Circuit. Sept.