United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
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 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.
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.
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.
Legal Standards A. Attorneys' Fees Under
28 U.S.C. § 1927
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.
Sanctions under Federal Rule of Civil Procedure 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).
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
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.
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.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 ...