United States District Court, D. Colorado
ORDER ON PLAINTIFF'S MOTION TO DISMISS CASE
(DOCKET NO. 24) AND DEFENDANTS' MOTION FOR SANCTIONS
(DOCKET NO. 26)
MICHAEL J. WATANABE United States Magistrate Judge
case is before this Court pursuant to the Order of Reference
entered November 10, 2016, and the parties' unanimous
consent to disposition of this action by a United States
initiated this Fair Debt Collection Act (“FDCA”)
action by filing a Complaint on September 13, 2016. (Docket
No. 1.) Defendant filed an Answer (Docket No. 8) on October
17, 2016, and then filed a Motion for Summary Judgment on
November 10, 2016. (Docket No. 11.) Plaintiff filed a Motion
to Dismiss Case (Docket No. 24) on December 15, 2016. In
response, on January 4, 2017. Defendant filed a Motion for
Sanctions. (Docket No. 26.)
seeks sanctions pursuant to 28 U.S.C. § 1927 and
Fed.R.Civ.P. 11(c)(3). Defendant argues that Plaintiff's
counsel was informed prior to filing the Complaint that her
client's claims were not supported by fact or law, and
that by filing it anyway, Plaintiff's counsel acted
unreasonably and vexatiously and caused Defendant to incur
costs in filing an Answer and Motion for Summary Judgment.
28 U.S.C. § 1927
1927 provides that “[a]ny attorney . . . who so
multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys'
fees reasonably incurred because of such conduct.” 28
U.S.C. § 1927. “Section 1927 awards are
appropriate ‘only in instances evidencing a serious and
standard disregard for the orderly process of
justice.'” Sangui Biotech Int'l, Inc. v.
Kappes, 179 F.Supp.2d 1240, 1243 (D. Colo. 2002). The
Court's analysis focuses on the objective nature of the
conduct, not the attorney's subjective intent.
Hamilton v. Boise Cascade Exp., 519 F.3d 1197, 1202
(10th Cir.2008). “Sanctions are appropriately imposed
under § 1927 on counsel . . . who continue to pursue
claims that are no longer reasonable.” Sangui
Biotech, 179 F.Supp.2d 1244 at 1244.
to this case, “it is widely recognized that § 1927
only applies to the multiplication of proceedings and not to
the initiation of proceedings.” Barrientos-Sanabria
v. Holte, No. 11-cv-00838-KLM, 2013 WL 3270597, at *4
(D. Colo. June 27, 2013). Because § 1927 covers only the
multiplication of “the proceedings in any case, ”
this “unambiguous statutory language necessarily
excludes the complaint that gives birth to the proceedings,
as it is not possible to multiply proceedings until after
those proceedings have begun.” Steinert v. Winn
Grp., Inc., 440 F.3d 1214, 1224-25 (10th Cir. 2006).
“Section 1927 is not a ‘catch all' provision
designed to serve as a basis for sanctioning any and all
attorney conduct that courts want to discourage. . . .
Instead, § 1927 is an ‘incentive for attorneys to
regularly re-evaluate the merits of their claims and to avoid
prolonging meritless claims.'”
Barrientos-Sanabria, 2013 WL 3270597, at *4 (quoting
Steinert, 440 F.3d at 1224).
this authority in mind, it is apparent that Defendant cannot
rely on § 1927 as a basis for sanctions, as its motion
is aimed squarely at Plaintiff's counsel's decision
to initiate, rather than multiply, the proceedings. Defendant
complains that it incurred costs associated with filing its
Answer and Motion for Summary Judgment, preparing and serving
its initial disclosures, and drafting a proposed Scheduling
Order. However, all of these tasks were undertaken in
response only to Plaintiff's Complaint, not to any other
actions taken by Plaintiff or her counsel. Plaintiff's
counsel did not file a response to the Motion for Summary
Judgment (Docket No. 11); instead, she offered to dismiss her
case with prejudice, and filed a motion requesting the Court
to do so. (Docket No. 24.) In short, she re-evaluated the
merits of her claim and took action to avoid prolonging a
meritless case, which is exactly the behavior encouraged by
cases cited by Defendant in support of its argument that
§ 1927 sanctions are appropriate where a party is forced
to expend unnecessary fees and costs associated with filing a
motion to dismiss and/or for summary judgment are
distinguishable. These cases involved contested
dispositive motions, see Riddle v. Assocs., P.C.,
414 F.3d 832 (7th Cir. 2005); Longmoor v. Nilsen,
312 F.Supp.2d 352, 363 (D. Conn. 2004), or instances where
the plaintiff “insist[ed] upon the relinquishment of a
right as a condition of discontinuing a frivolous
claim.” Viola Sportswear v. Minum, 574 F.Supp.
619, 621 (E.D.N.Y. 1983). In contrast, Plaintiff, in response
to the Motion for Summary Judgment (Docket No. 11), simply
moved to dismiss her claims with prejudice, thereby
effectively ending the action.
Court does not find that Plaintiff unreasonably and
vexatiously multiplied the proceedings in this case.
Accordingly, Defendant's Motion for Sanctions must be
denied as to this basis.