Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Phillips v. Austin Diagnostic Surgery Center

United States District Court, W.D. Texas, Austin Division

March 1, 2018




         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Defendant Austin Diagnostic (Austin Diagnostic) Clinic Association (Austin Diagnostic)'s[1] Motion for Attorneys' Fees and Supporting Brief [#17, #18] and Plaintiff Amanda Kaye Phillips's Response [#20] in opposition. Having reviewed the documents, the governing law, the arguments of counsel, and the file as a whole, the Court now enters the following opinion and orders.


         On February 2, 2018, this Court entered an amended order adopting Magistrate Judge Andrew W. Austin's Report and Recommendation advising the Court dismiss Plaintiff s pro se complaint as frivolous under 28 U.S.C § 1915(e)(2). Am. Order of Feb. 2, 2018 [#14]. This Court agreed Plaintiffs complaint was frivolous, concluding Plaintiff failed to allege she was discriminated on a basis that would fit under either the Equal Pay Act or Title VII and failed to claim she exhausted her administrative remedies as required under Title VII. Id. After reviewing Plaintiff objections to the Magistrate Judge's Report and Recommendation, the Court overruled Plaintiffs objections and dismissed Plaintiffs complaint with prejudice. Id. On February 20, 2018, Plaintiff filed a notice of appeal.

         Austin Diagnostic moves for attorneys' fees under 28 U.S.C. § 1927. Mot. Att'y Fees [#17]. Plaintiff does not contest Austin Diagnostic's right to a fee award. Instead, Plaintiff argues she cannot afford to pay Austin Diagnostic's request for attorneys' fees and she should be compensated for her time in bringing this lawsuit. Austin Diagnostic's pending motion for attorneys' fees is now ripe for review.


         I. Legal Standards A. Attorneys' Fees Under 28 U.S.C. § 1927

         28 U.S.C. § 1927 provides that, "[a]ny 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." To find a party multiplied proceedings "unreasonably" and "vexatiously, " there must "be evidence of bad faith, improper motive, or reckless disregard of the duty owed to the court." Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 525 (5th Cir. 2002). But § 1927 only authorizes "shifting fees that are associated with the persistent prosecution of a meritless claim." Id. (quotation omitted).

         B. Sanctions under Federal Rule of Civil Procedure 11

         Rule 11 permits the Court to impose an appropriate sanction if a pleading, motion, or other paper is presented for any improper purpose, such as to harass or needlessly increase the cost of litigation, or if the claims or arguments therein are frivolous. See Fed. R. Crv. P. 11(b). "[T]he central purpose of Rule 11 is to deter baseless filings in district court and thus... streamline the administration and procedure of federal court." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). The Court must carefully choose sanctions that further the purpose of the Rule and should impose the least severe sanctions that would adequately deter its violation. See Thomas v. Capital Security Servs., Inc., 836 F.2d 866, 875-76 (5th Cir. 1988). When warranted, sanctions may include an order directing payment to an opposing party of some or all of the reasonable attorney's fees or costs incurred as a result of the violation. See Merriman v. Security Ins. Co. of Hartford, 100 F.3d 1187, 1191 (5th Cir. 1996); Fed. R Civ. P. 11(c)(2).

         The Court also possesses inherent power to "protect the efficient and orderly administration of justice ... to command respect for the court's orders, judgments, procedures, and authority." In re Stone, 986 F.2d 898, 902 (5th Cir. 1993). Included in this inherent power is "the power to levy sanctions in response to abusive litigation practices." See Mendoza v. Lynaugh, 898 F.2d 191, 195-97 (5th Cir. 1993). No. pro se litigant has the "license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets." Farguson v. MBankHous., N.A., 808 F.2d 358, 360 (5th Cir. 1986).

         In addition to monetary sanctions, "[a] district court has jurisdiction to impose a pre-filing injunction to deter vexatious, abusive, and harassing litigation." Baum v. Blue Moon Venture, 513 F.3d 181, 187 (5th Cir. 2008). In determining whether to impose such an injunction, the Court must weigh all of the relevant circumstances, including the following four factors: (1) the party's history of litigation, in particular whether she has filed vexatious, harassing, or duplicative lawsuits; (2) whether the party had a good faith basis for pursuing the litigation, or simply intended to harass; (3) the extent of the burden on the courts and other parties resulting from the party's filings; and (4) the adequacy of alternative sanctions. See Id. at 189. A pre-filing injunction must be "tailored to protect the courts and innocent parties, while preserving the legitimate rights of litigants." Id. at 187.

         II. Application

         Austin Diagnostic's motion for attorneys' fees requests a total fee award of $13, 938.00 under 28 U.S.C. § 1927. Supp. Br. [#18] at 1. But the Fifth Circuit has not determined whether a pro se litigant can be sanctioned under § 1927.[2]See Simmons v. Methodist Hosps. of Dallas,632 Fed.Appx. 784, 787 n.5 (5th Cir. 2015) ("We note that this court has not yet addressed whether a pro se litigant can be subject to sanctions under section 1927 and need not do so today."). District courts within the Fifth Circuit are split on "whether a pro se litigant can be subject to sanctions under § 1927, with the majority finding they cannot." Barcroft v. Gibbs, No. 416CV00562ALMCAN, 2017 WL 1499247, at *5 (E.D. Tex. Apr. 5, 2017), report and recommendation adopted, No. 4:16-CV-562, 2017 WL 1498532 (E.D. Tex. Apr. 25, 2017) (collecting district ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.