United States District Court, D. Utah
SHERMAN G. SORENSEN, M.D., Plaintiff,
GERALD I. POLUKOFF, M.D.; ZABRISKIE LAW FIRM, LCC, a Utah limited liability company; RHOME ZABRISKIE, J.D.; FLEMFNG, NOLEN & JEZ, LLP., a Texas limited liability partnership; and RAND P. NOLEN-, J.D., Defendants.
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S
MOTION FOR SANCTIONS AND PLAINTIFF'S MOTION FOR LEAVE TO
FILE A SURREPLY
Stewart United States District Judge.
matter is before the Court on Defendant's Motion for
Sanctions and Plaintiffs Motion for Leave to File a Surreply.
For the reasons discussed below, the Court will deny both
case was closed on July 31, 2018, when the Court dismissed
Plaintiffs federal claims with prejudice and declined to
exercise supplemental jurisdiction to consider Plaintiffs
state-law claims. On August 28, 2018, Plaintiff filed a
Notice of Appeal to the Tenth Circuit Court of Appeals.
Defendant filed a Motion for Sanctions the same day. To
ensure both parties adequate opportunity to brief all the
relevant issues related to the Motion for Sanctions, the
Court granted both parties leave to file excess pages.
seeks sanctions under 28 U.S.C. § 1927 and under the
Court's equitable powers.
U.S.C. § 1927 provides that:
Any attorney or other person admitted to conduct cases in any
court of the United States or any Territory thereof 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.
Court has discretion to sanction conduct that "manifests
either intentional or reckless disregard of the
attorney's duties to the court." However, this is
an "extreme standard" reserved for instances of
"serious and standard disregard for the orderly process
of justice." The statute makes attorneys liable for
harm caused "because of objectional conduct. Therefore,
before sanctions can be imposed, there must be an established
"causal connection between the objectionable conduct of
counsel and multiplication of the
courts also have discretion to impose attorney's fees
according to their equitable powers. Although the general rule is
against fee-shifting, a "court may award counsel fees to
a successful party when his opponent has acted in bad faith,
vexatiously, wantonly, or for oppressive
reasons." "The essential element in triggering
the award of fees is the existence of bad faith on the part
of the unsuccessful litigant."
Defendant argues that sanctions are appropriate based on
Plaintiffs conduct in "(1) bringing this case in bad
faith for an improper purpose; (2) advancing frivolous legal
theories; (3) making repeated misrepresentations; and (4)
engaging in bad faith litigation tactics."
has not met the "extreme standard" of 28 U.S.C.
§ 1927. Evidence of unreasonable and vexatious conduct
is lacking, as is evidence that proceedings were multiplied
by the counsel's conduct. The Court also declines to
impose sanctions using its equitable power-finding inadequate
evidence of bad faith, or vexatious, wanton, or oppressive
that Defendant's Motion for Sanctions (Docket No. 61) is
DENIED. It is further
that Plaintiffs Motion for Leave to File a Surreply ...