The Proper Use of Sanctions in Litigation- The Overlooked Weapon in Today's Atmosphere

Maryland trial lawyers association annual convention -- Baltimore, Marlyand
December 2, 2000
Communicating with juries

by: IRA H. LEESFIELD
Leesfield Scolaro
2350 South Dixie Highway
Miami, Florida 33133
(305) 854-4900

Regrettably, an increasing number of lawyers equate litigation with war. Trampling the truth, taking no prisoners, scorching the earth-doing anything to win, regardless of the consequences...

I. Introduction

Our adversarial system of civil justice is premised on the search for the truth. Lawyers are expected to act in good faith in the course of litigation and discovery is expected to be accomplished voluntarily. In order to encourage litigants to act in good faith, the Federal Rules of Civil Procedure specifically require parties to affirmatively disclose all relevant information without the necessity of court orders compelling disclosure. Malautea v. Suzuki Motor Company, Ltd. 987 F.2d 1536 (11th Cir. 1993); Pesaplastic, C.A. v. Cincinnati Milacron Co., 799 F.2d 1510, 1521-23 (11th Cir.1986). These rules are designed to ensure that the ultimate resolution of disputed issues is based on a full and accurate understanding of the facts. United States v. The Procter & Gamble Company, 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077; Hickman v. Taylor, 329 U.S. 495, 500-01, 67 S.Ct. 385, 388-89, 91 L. Ed. 451 (1947).

Unfortunately, procedural manipulation designed to frustrate the resolution of disputes has become a common strategy. An "increasing number of lawyers equate litigation with war. Trampling the truth, taking no prisoners, scorching the earth-doing anything to win, regardless of the consequences...". For instance, large corporations frequently stonewall, withhold documents, and generally obfuscate and delay discovery because it is more beneficial for them not to comply with discovery than to produce documents that would reveal potentially damaging evidence; evidence that would become available to other claimants and plaintiffs throughout the country and the world. In order to combat these abuses, the Federal Rules of Civil Procedure have vested courts with the power to impose sanctions for misconduct. In addition to the Federal Rules of Civil Procedure, various statutes, as well as the court's inherent power to impose sanction for bad faith conduct, provide a wealth of authority for the imposition of sanctions. Litigants, however, often fail to utilize sanctions to properly combat discovery abuses. The goal of this presentation is to provide the reader with a general understanding of the law governing sanctions. The materials will focus on strategies for obtaining and avoiding sanctions as well as the laws, statutes, and powers through which sanctions may be imposed on attorneys and parties.

II. Case Law

Frequently, the motivation to resist discovery is so great that offenders will not comply with discovery. Only by imposing harsh sanctions against a willfully deceitful and evasive litigant do the courts take the advantage out of such misbehavior and turn it into a decided disadvantage. While courts are often reluctant to impose the harshest of penalties, the following are a few examples of cases in which the misconduct was so egregious as to bring about severe penalties on the parties and in some cases the attorneys as well.

A. In re Tuto Wells Contamination Litigation, 120 F. 3d 368 (3d Cir. 1997).

The Court of Appeals affirmed a $120,000 sanction against a law firm for their part in suppressing a report by a professional engineer summarizing the results of soil and liquid tests in connection with a large environmental lawsuit. The sanctions represented the attorney fees and costs incurred by counsel in brining the suit and in connection with the sanction proceedings. Sanctions in the amount of $750,000 against the defendant party and the suspension of the defendant's attorneys from the practice of law were reversed on procedural grounds.

B. Chambers v. NASCO, 501 U.S. 32 (1991)

Sanctions in the form of attorney's fees and expenses totaling almost $1 million were upheld by the Supreme Court for the petitioner's (1) attempt to deprive the court of jurisdiction by acts of fraud, (2) filing false and frivolous pleadings, and (3) attempting, by other tactics of delay, oppression, harassment, and massive expense to reduce the respondent to exhausted compliance.

C. In re E.I. Dupont De Nemours & Comp., 918 F. Supp. 1524, reversed 99 F. 3d 363 (11th Cir. 1996)

In re E.I. Dupont was a products liability action involving claims that fungicide was contaminated with herbicides which damages the plants and the plaintiff's nursery. Plaintiffs sought sanctions based on the defendant's failure to disclose test data that was central to plaintiffs' claims and that defendant had agreed to turn over to plaintiffs in return for access to plaintiffs' property to conduct tests. The District Court, Elliott, J., held that the evidence established that the defendant was using its "in-house legal staff, ...and others to carry out a deliberate effort to restrict legitimate discovery in this and similar cases." The court sanctioned the defendant $6.8 million for discovery abuses and $100 million for civil contempt, which contempt could be purged by compliance with court orders and publication of advertisements acknowledging wrongdoing.

On appeal, the imposition of sanctions was reversed as the Court of Appeals held that the sanctions imposed were criminal in nature, in that they were neither compensatory nor coercive, and thus the district court failed to afford Dupont the procedural protection the Constitution requires for the imposition of criminal sanctions.

D. Poole v. Textron, 192 F.R.D. 494 (D. Md 2000)

Pursuant to Rules 26(g) and 37 of the Federal Rules of Civil Procedure as well as the court's inherent power to impose sanctions, the court in Poole sanctioned the defendant $37,000.00 in expenses and attorney fees for engaging in "improper discovery tactics [which] were willful inexcusable and not in good faith."

E. Carlucci v. Piper Aircraft Corp., 775 F. 2d 1440 (11th Cir. 1985).

Attorney found to have acted in bad faith during discovery in a wrongful death action was fined $10,000 pursuant to Federal Rule of Civil Procedure Rule 37. The decision was affirmed in part and reversed and remanded in part. The Court of Appeals held that the trial court failed to set forth an accounting adequate to justify the figure it adopted, but noted that it appears that defense counsel's misconduct may well have amounted to $10,000. The Court of Appeals even went so far as to state that on remand, upon a full accounting, the trial court may in its discretion, determine that a sanction greater than $10,000 is warranted.

F. Malautea v. Suzuki Motor Company, 987 F. 2d 1536 (11th Cir. 1993)

In Malautea v. Suzuki Motor Company the court pursuant to its inherent powers fined each defendant $5000.00 and each defense attorney $500.00 for continually and willfully resisting discovery and deliberately withholding discoverable information.

II. Seeking Sanctions

If you run up against a corporate giant or any other party who willfully engages in discovery misconduct, the following pointers will assist you in obtaining sanctions.

A. Set the Tone Early

Let your opposition know right from the inception of the lawsuit that every delay or discovery violation will be met with a prompt motion to compel and/or for sanctions. If you anticipate having problems with obtaining discovery consider filing a notice of hearing with your initial discovery request. The hearing can be set for 50 days after service of the complaint and initial discovery requests, or shortly after the discovery is due depending on your jurisdiction. This accomplishes two things. First, it puts opposing counsel on notice that you don't intend to let them get away with any dilatory tactics. Second, if, and when, you receive inadequate responses, you will have a quick hearing date and negate the opposing party's attempts at delay.

B. Litigate in Good Faith.

When your opposition engages in misconduct you must resist the temptation to respond in kind. Continue to meet your discovery obligations in a timely and proper manner. The court is much more likely to impose sanctions if your hands are clean.

C. Maintain a Paper Trail

At every step document your good faith attempts to comply with discovery and to resolve discovery disputes. Each dispute should be followed by correspondence. Your correspondence should respectfully remind the opposing party that they are in violation of discovery rules and offer them the opportunity to resolve the dispute amicably and timely.

D. Pick and Choose Your Battles

Don't overuse sanction requests. Repeatedly requesting sanctions for trivial disputes will numb the court to the egregious conduct of opposing counsel. Save your motions for more serious violations or wait until you can present the court with a series of violations.

E. Know your Judge

Some judges are more likely than others to impose sanctions. It won't do you any good to ask for sanctions from a judge who is only inclined to admonish the opposing party. In these situations request a special master to govern over disputes in the case. The special master will be far more inclined to impose sanctions for misconduct.

III. Avoiding Sanctions

Sanctions are wonderful when you're not on the receiving end. Generally, if you follow the guidelines listed below and act in good faith, the likelihood of facing sanctions will be minimal. Follow these rules in every case:

1. Make a reasonable inquiry into the facts of the case before filing a pleading, motion, or any paper;

2. Make a reasonable investigation into the law applying to the case;

3. Do not submit any pleading to harass, delay, or increase the cost of litigation for the opposing party;

4. Do no include unnecessary parties;

5. Do not sign any document that could mislead the court;

6. Make sure every document explains the matter without a requirement of qualification. The writing must speak the entire truth by itself.

Unfortunately, if you practice law long enough you're likely to find yourself on the receiving end of a motion for sanctions even if you follow the aforementioned guidelines. After all, "even under objective tests, sanctions decisions often rest on largely subjective judicial assessments, including assessments of the merits before the merits have been litigated and of tactical decisions after tactics have misfired." In these situations, there are a number of countermeasures that you can deploy to avoid the imposition of sanctions.

1. Attack the propriety of the discovery request or order. If opposing counsel has failed to comply with the procedural rules, you can argue that the discovery request was improper ab initio.

2. Point out opposing counsel's own misconduct. This is where the issue of clean hands comes into play. Courts are reluctant to impose sanctions against one party where the other party has engaged in similar misconduct.

3. Argue that your failure to comply with the request was in good faith, albeit mistaken. Generally, as a condition precedent to imposing sanctions, the court must find that you acted in subjective bad faith or that your conduct was objectively unreasonable. If you can create a good faith reason for your conduct, albeit mistaken, you may be let off with an admonishment.

4. If you get the impression that the judge is inclined to grant the motion for sanctions, you may want to argue that the sanction is disproportionate to the violation, absent proof of prejudice. Prior to imposing harsh sanctions, such as dismissal, many courts require a showing of prejudice. See Hillig v. Commissioner, 916 F. 2d 171, 174 (4th Cir. 1990) (a showing of prejudice is required before dismissal); Navarro v. Cohan, 856 F. 2d 141, 142 (11th Cir. 1988) (recognizing that dismissal is a drastic sanction).

5. Rely on your reputation. If you have a good reputation in the legal community and you've never been sanctioned before, point that out to the court.

6. If it is clear that you have committed the violation, admit the violation, apologize, and argue that the violation is trivial in nature. Courts are reluctant to impose sanctions for trivial misconduct, unless it is continual.

IV. Statutes, Rules, and Inherent Powers To Sanction

The Federal Rules of Civil Procedure and the United States Code authorize courts to impose sanctions for various types of misconduct. The majority of states have either adopted the Federal Rules of Civil Procedure or similar provisions granting the authority to impose sanctions. In addition, courts are vested with the inherent power to control the litigants and parties who come within their jurisdiction. This inherent power permits courts to impose sanctions for bad faith conduct. The decision of when to impose sanctions and what type of sanction to impose is primarily left to the discretion of the courts. The following statutes, rules, and inherent powers are the principal sources of the courts power to sanction.

A. Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

Rule 11 prescribes sanctions for improper conduct including, but not limited to; (1) the filing fo a frivolous suit or document; (2) the filing of a document or lawsuit for an improper purpose; and (3) actions that needlessly increase the cost or length of litigation.

Specifically, the Rule provides that an attorney signature on any pleading, motion, or other court document constitutes a certification that:
(1) The attorney has read the document;

(2) To the best of the attorney's knowledge, information, and belief formed after reasonable inquiry it is:
(a) well grounded in fact; and
(b) warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and

(3) It is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Improper purposes include request for excessive discovery, filing unnecessary motions, filing a lawsuit and dismissing it only to re-file it later, and other harassing and dilatory tactics that only serve to increase the costs of litigation.

According to Rule 11, sanctions may be imposed against attorneys, law firms, and parties, and is not limited to the signer of the document.

Rule 11 generally does not provide for sanctions for discovery violations. Sanctions for this type of violation arise under rules 26(g) and 37.

1. Basic Requirements
(A) Signing Requirement
(B) Presenting Requirement
(C) Reading Requirement
(D) Certification

2. Procedure and Due Process

Rule 11(c)(1) provides that sanctions may be initiated by motion and/or on the court's own initiative. If by motion, it must be served first on the offender pursuant to Rule 5, but shall not be filed with or presented to the court unless within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. This provision is known as the "safe harbor" provision to the rule.

Every motion must "be made separately from other motions and requests and ...describe the specific conduct alleged to violate" the Rule. Failure to comply bars consideration of the motion. Travelers Ins. Co. v. St. Jude Medical Office Bldg., L.P., 154 F.R.D. 143, 144 n.4 (E.D. La. 1994); Dunn v. Pepsi-Cola Metro. Bottling Co., 850 F. Supp. 853, 856. N. 4 (N.D. Cal. 1994).

Sanctions may not be imposed upon a party who is not on notice of (a) the fact that sanctions are under consideration, (b) the reasons why sanctions are under consideration or (c) the type of sanctions under consideration. Dailey. v. Vought Aircraft Co., 141 F.3d 224, 229-30 (5th Cir. 1998).

The procedure employed to decide a Rule 11 motion may vary with the circumstances, provided that due process requirements are satisfied. Among the factors that the court considers in fashioning a procedure to insure due process are:

a. the severity of the sanction under consideration;

b. the interests of the alleged offender in having a sanction imposed only when justified;

c. the risk of an erroneous imposition of sanctions relative to the probable value of additional notice and hearing;

d. the interest of the court in the efficient use of the judicial system, including the fiscal and administrative burdens that additional procedural requirements would entail.

e. whether sanctions a issue were sought by a party or are being considered sua sponte by the court;

f. if the sanctions were sought by a party, the type of sanction sought;

g. the type of sanction under consideration by the court;

h. whether the sanction under consideration rests on a factual finding, such as a finding of bad faith on the part of the alleged offender;

i. whether the judge imposing or considering the sanction presided over the proceedings and is the same judge before whom the offense was committed; and

j. whether counsel, client or both are the target of the proposed sanction, and the impact of the sanctions proceedings on the attorney-client relationship.

3. Rule 11 Sanctions

Courts are free to impose sanctions at their own discretion. The following are types of sanctions commonly imposed for Rule 11 violations:

a. an admonition, reprimand or censure of the offender;

b. mandatory continuing legal education;

c. mandatory pro bono representation;

d. reference of the matter to the appropriate attorney disciplinary or grievance committee;

e. disqualification of counsel;

f. an order precluding the introduction of certain evidence;

g. an order precluding the litigation of certain issues;

h. an order precluding the litigation of certain claims or defenses;

i. dismissal of the action;

j. entry of a default judgment;

k. injunctive relief limiting a party's future access to the courts;

l. suspension or disbarment from practicing before the forum court;

m. forfeiture of a sanctions award;

n. precluding payment of attorney's fees;

o. a fine or penalty paid into the court coffers, and;

p. if imposed on option and warranted for effective deterrence, an ware of reasonable attorneys' fees, incurred as a result of the misconduct.

4. Mitigating and Aggravating Factors

Numerous factors are taken into account by the court in gauging the appropriate harshness or leniency of a sanction. Among the factors which the court may consider (1) as militating in favor of, or against, the imposition of a particular sanction, or (2) in the case of a monetary sanction, in assessing the amount of a sanction, are:

a. the good faith or bad faith of the offender;

b. the degree of willfulness, vindictiveness, negligence or frivolousness involved in the offense;

c. the knowledge, experience and expertise or the offender;

d. any prior history of sanctionable conduct on the part of the offender;

e. the amount, reasonableness and necessity of the out-of-pocket expenses incurred by the offended person as a result of the misconduct;

f. the nature and extent of prejudice, apart from out-of-pocket expenses, suffered by the offended person as a result of the misconduct;

g. the relative culpability of client and counsel, and the impact on their privileged relationship, of an inquiry into that area;

h. the risk of chilling the specific type of litigation involved;

i. the impact of the sanction on the offender, including the offender's ability to pay a monetary sanction;

j. the impact of the sanction on the offended party, including the offended person's need for compensation;

k. the relative magnitude of sanction necessary to achieve the goal or goals of the sanction;

l. burdens on the court system attributable to the misconduct, including consumption of judicial time and incurrence of juror fees and other court cost;

m. the degree to which the offended person attempted to mitigate any prejudice suffered by him or her;

n. the degree to which the offended person's own behavior caused the expenses for which recovery is sought;

o. the extent to which the offender persisted in advancing a position while on notice that the position did not have evidentiary support or was not warranted by existing law or a non-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law; and the time of, and circumstances surrounding, any voluntary withdrawal of a pleading, written motion or other paper.

B. Rule 26. General Provisions Governing Discovery; Duty of Disclosure

The sanctioning provision of Rule 26 is subsection (g) which builds upon the certification requirements of Rule 11 and imposes sanctions for misconduct during discovery. Essentially, the rule provides "[e]very request for discovery or response or objection thereto" must be signed by an attorney of record and this signature constitutes a certification that the "signer has read the request, response, or objection, and that to the best of the signer's knowledge, information, and belief formed afer a reasonable inquiry it is:

(1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;

(2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and

(3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation."

If any attorney violates this rule the court may impose sanctions upon motion or upon its own initiative.

Rule 26(g) must be read in the context of Rules 26 through 37, which regulate pretrial disclosure and discovery. The Rule applies to all discovery requests, responses or objections served or filed in federal district court and to Rule 26(a)(1) and (3) disclosures. Note, however, misconduct that does not involve the signing of a discovery paper or disclosure document is not sanctionable under the Rule.

Sanctions may be imposed on the signer, on the singer's client, or both. The type of sanctions that can be imposed, as well as the mitigating and aggravating factors, are similar to those discussed in Rule 11.

C. Rule 37. Failure to Make Disclosure or Cooperate in Discovery: Sanctions

Rule 37 authorizes the court to impose sanctions when a litigant or attorney fails to comply with discovery rules or orders. Rule 37 must be read in conjunction with Rule 26. The rules overlap to an extent, however, Rule 37 encompasses violations outside of written discovery. Neither rule addresses all discovery abuse. Rule 37 permits the courts to impose sanctions for five specified categories of misconduct:

1. noncompliance with a discovery order (Rule 37(b));

2. failure to admit in response to a Rule 36 request (Rule 37(c));

3. specified misconduct in connection with depositions, interrogatories and requests for inspection (Rule 37(d));

4. failure to participate in framing a Rule 27(f) discovery plan (Rule 37(g));

5. failure to make Rule 26(a) or 26(e)(1) disclosure (Rue 37(c)).

Similar to Rule 11 and Rule 26(g), the decision of whether to impose sanctions and what sanctions to impose is left to the broad discretion of the court. Sanctions may be imposed on the client, the lawyer, or both. The following is a list of some of the sanctions that may be imposed:

a. An order specifying that designated facts be taken as established for purposes of this action;

b. An order precluding the litigation of certain issues;

c. An order precluding the introduction of certain evidence;

d. An order striking out pleadings or part thereof;

e. An order staying further proceedings pending compliance with an order that has not been obeyed;

f. Dismissal of the action in full or in part;

g. Entry of a default judgment on some or all claims;

h. An order treating as a contempt or court the failure to obey any discovery order except an order to submit to a physical or mental examination; and

i. An award of reasonable expenses, including attorneys' fees, incurred in (i) making a successful, or opposing an unsuccessful, motion to compel; (ii) proving at trial any matter which an opponent failed to admit in response to an request; (iii) moving for sanctions.

D. 28 U.S.C. §1927. Counsel's liability for excessive costs.

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...

Section 1927 applies to all cases "in any court of the United States, including the courts of appeals. State Indus. V. Mor-Flo Indus., 948 F.2d 1573 (Fed. Cir. 1991); Reliance Ins. Co. v. Sweeney Corp., 792 F.2d 1137, 1138 (D.C. Cir. 1986). However, the statute only applies to attorneys, and not to clients, pro se litigants or any other non-lawyers. Smith Int'l, Inc. v. Texas Commerce Bank, 844 F.2d 1193, 1197 (5th Cir. 1988); Zaldivar; Westmoreland v. CBS, Inc., 770 F.2d 1168, 1173 (D.C. Cir. 1985).

Examples of conduct unreasonably and vexatiously multiplying proceedings includes:

1. Filing a baseless or deceptive pleading. Action Mfg., Inc. v. Fairhaven Textile Corp., 790 f.2d 164, 165-66 (1st Cir.), cert. denied, 479 U.S. 854 (1986) (answer); United States v. Nesglo, Inc., 744 F.2d 887, 891 (1st Cir. 1984) (third-party complaint).

2. Filing a baseless motion. Glass v. Pfeffer, 657 F.2d 252, 256-57 and n. 2 (10th Cir. 1981) (motion for attorneys' fees by losing party); EBI, Inc. v. Gator Indus., 807 F.2d 1, 6 (1st Cir. 1986) (groundless motion for reconsideration). Trustees of Tampa Maritime Ass'n v. S.E.L. Maduro (Fla.), Inc., 849 F. Supp. 1535, 1542 (M.D. Fla. 1994) (sanctioning plaintiffs for improperly filing "Emergency Motion" without notice to the defense and without complying with applicable Federal Rules of Civil Procedure; motion "served no purpose other than to request relief already requested, and to circumvent notice requirements and the spirit of the Federal Rules of Civil Procedure").

3. Serving baseless opposition papers in response to a motion. Smiga v. Dean, Witter, Reynolds, Inc., 766 F.2d 698, 708 (2d Cir. 1985), cert. denied, 475 U.S. 1067 (1986) (frivolous opposition to motion to confirm arbitration award).

4. Pursuing a litigation position after it becomes apparent that the asserted position is devoid of merit. Ford v. Temple Hosp., 790 F.2d 342 (3d Cir. 1986) (after an obviously meritorious limitations defense was interposed, plaintiff's continued prosecution of claim violated § 1927).

5. Breaching a procedural stipulation that leads to needless motion practice. Baker Indus. v. Cerberus Ltd., 764 F.2d 204, 211 (3d Cir. 1985) (reneging on agreement to refer case for a non-appealable decision by a specific referee by thereafter appealing the decision).

6. Taking frivolous legal positions and making scandalous accusations. Blair v. Shenandoah Women's Center, Inc., 757 F.2d 1435, 1438 (4th Cir. 1985) (between 4 and 22 separate incidents of misconduct).

7. Failing to prosecute an action leading to its dismissal, only to obtain its reinstatement and then to default again. Lewis v. Brown & Root, Inc., 711 F.2d 1287, 1290-91 (5th Cir. 1983) (including failures to appear at docket calls and depositions).

8. Failing to prepare a case for trial, requiring it to be rescheduled. In re Jacques, 761 F.2d 302, 306 (6th Cir. 1985), cert. denied, 475 U.S. 1044 (1986) (per one judge with a second concurring in the result) (lawyer required to pay cost of summoning 22-person venire panel); cf. In re Yagman, 796 F.2d 1165, 1187 (9th Cir. 1986) (failure to prepare case for trial might be a basis for imposing sanctions under § 1927, but none were appropriate in the instant case where there was no showing of how any such failure resulted in a delay or multiplication of the proceedings).

9. Filing a frivolous appeal or petition for review. American Sec. Vanlines, Inc. v. Gallagher, 782 F.2d 1056, 1056-7 (D.C. Cir. 1986) (meritless attempt to dishonor settlement agreement that had been incorporated into district court judgment); Bankers Trust Co. v. Publicker Indus., 641 F.2d 1361, 1367 (2d Cir. 1981) (appeal constitutes merely "an argument with the jury"); Muigai v. INS, 682 F.2d 334, 337 (2d Cir. 1982) (frivolous appeal of deportation order fled solely to obtain automatic stay of deportation); Acevedo v. INS, 538 F.2d 918, 920 (2d Cir. 1976).

10. Engaging in misconduct on appeal that extends or encumbers the appellate process. S & D California Fruit Exch., Inc. v. Gurino, 783 F.2d 345 (2d Cir. 1986) (failing to appraise the court, prior to submission of the appeal for decision, that the case had been settled, resulting in the court's commencement of work on the merits); Westinghouse Elec. Corp. v. NLRB, 809 F.2d 419 (7th Cir. 1987) (failure to comply with appellate rule governing spacing and margins of brief, requiring the court and opposing counsel to examine two sets of briefs).

11. Repeatedly disobeying court orders by filing papers late. Associated Business Telephone System Corp. v. Cohn, No. C-93-1570-DLJ, 1994 U.S. Dist. LEXIS 14746 (N.D. Cal. Oct. 4, 1994).

See generally Hudson Motors Partnership v. Crest Leasing Enterprises, 845 F. Supp. 969, 978 (E.D.N.Y. 1994) ("Conduct which allows for the imposition of sanctions under § 1927 pursuant to the discretion of the court include the following: resubmitting a motion that had previously been denied; bringing a motion based on "facts" the opposite of which were previously found by the court; making several insupportable bias recusal motions and repeated motions to reargue; "continually engaging in obfuscation of the issues, hyperbolism and groundless presumptions in addition to insinuating that the court was biased;" and waiting until the eve of trial before making a jury demand").

E. The Inherent Power of the Courts

Federal Courts are empowered to "'protect the administration of justice by levying sanctions in response to abusive litigation practices.'" Kovilic Const. Co., v. Missbrenner, 106 F.3d 768, 772-73 (7th Cir. 1997); Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 11 (1st Cir. 1985), cert. denied, 475 U.S. 1018 (1986), quoting Penthouse Int'l, Ltd. v. Playboy Enters., 663 F.2d 371, 386 (2d Cir. 1981).

The source of the court's inherent power is "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R., 370 U.S. 626, 630-631 (1962). See also Brockton Sav. Bank v. Peat, Marwick, Mtichell & Co., 771 F.2d 5, 11 (1st Cir. 1985), cert. denied, 475 U.S. 1018 (1986). That authority extends to all matters that come before the court. There is no limitation as to the type of proceedings - criminal or civil, trial or appeal - in which sanctions may issue. See, e.g., United States v. Kouri-Perez, 1999 U.S. App. Lexis 8811 (1st Cir. May 7, 1999) ( inherent power sanction of $4,000 imposed on criminal defense counsel for violating civility order by filing motion for purpose of harassing and humiliating prosecutor; district court expressly held that the sanction was no in the nature of a contempt and thus, the appeals court ruled, was not immediately appealable (on the issue of appealability, see § 29(C), infra)); United States v. Blodgett, 709 F.2d 608, 610 (9th Cir. 1983) (inherent power sanctions imposed defense counsel in criminal appeal); Sherk v. Texas Bankers Life & Loan Ins. Co., 918 F.2d 1170, 1178 (5th Cir. 1990) ("a district court has the power to impose sanctions for a frivolous bankruptcy appeal based upon either the inherent power of the judiciary or the statutory authority of 38 U.S.C. § 1927").

The imposition of inherent power sanctions is appropriate only where the offender has willfully abused judicial process or otherwise conducted litigation in bad faith. In re Itel Sec. Litig., 791 F.2d 672, 675 (9th Cir. 1986), cert. denied, 479 U.S. 1033 91987); Kreager v. Solomon & Flanagan, P.A. 775 F.2d 1541, 1542-43 (11th Cir. 1985); Lipsig v. Nation Student Mktg. Corp., 663 F.2d 178, 180-81 (D.C. Cir. 1980); Link v. Walbash R.R., 370 U.S. 626, 632 (1962).

The Supreme Court has held that federal courts have the power to impose sanctions pursuant to the court's inherent power even if the violation is subject to sanctions under existing statutes or rules. However, the Court limited its holding by stating that when available the court should utilize the rules and statutes rather than its inherent power to sanction litigants.