Roth v. Spruell , 388 F. App'x 830 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
July 22, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
STEPHEN C. ROTH, as an individual;
JEAN GUMESON,
Plaintiffs,
No. 09-1453
v. (D.C. No. 1:02-CV-01116-LTB-CBS)
(D. Colo.)
DENNIS SPRUELL; MATT
BUFFINGTON; DANNY DUFUR;
JEFF COLEMAN; TIM ROWELL;
TOM HALPER; MIKE MEUER; ROY
C. LANE; JERRY MARTIN; AL
BELL; SYDNEY DUKE SCHIRARD;
CITY OF CORTEZ, a public
corporation; CITY OF DURANGO, a
public corporation; DOLORES
BOARD OF COUNTY
COMMISSIONERS, a public
corporation; LA PLATA COUNTY
BOARD OF COUNTY
COMMISSIONERS, a public
corporation,
Defendants-Appellees,
and
MICHAEL F. GREEN; BROOKS
BENNETT; HUGH RICHARDS; SAM
HAGER; KEN BRACKETT; JOEY M.
CHAVEZ; DALE WOOD, individually
and in their official capacities; TOWN
OF MOUNTAIN VILLAGE, a public
corporation; MONTEZUMA
COUNTY, BOARD OF COUNTY
COMMISSIONERS,
Defendants.
ROBERT J. MULHERN,
Attorney-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and O’BRIEN, Circuit Judges.
This is third time this case has come before this court. The only issue
remaining for consideration is whether the district court properly calculated the
amount of sanctions Attorney-Appellant Robert J. Mulhern should pay to the
Cortez, Durango, and Buffington Defendants 1 pursuant to 28 U.S.C. § 1927. We
affirm in part and reverse and remand in part.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
The “Cortez Defendants” are the City of Cortez, Dennis Spruell, Danny
Dufur and Roy C. Lane; the “Durango Defendants” are the City of Durango,
Al Bell and Jeff Copeland; and the “Buffington Defendants” are Matt Buffington,
Tim Rowell, Tom Halper, Mike Meuer, Sheriff Sydney Schirard,
Sheriff Jerry Martin, and the Boards of County Commissioners for the Counties of
Dolores and La Plata.
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I. Background
In June 2002, Mr. Mulhern filed a civil rights complaint under 42 U.S.C.
§ 1983 on behalf of his clients, Stephen Roth and Jean Gumeson, against
twenty-six named defendants and fifty unknown Doe defendants, alleging that
defendants created, established, and executed an unconstitutional drug checkpoint
that ultimately resulted in plaintiffs being unlawfully stopped, detained, searched,
and arrested. The circumstances leading to plaintiffs’ arrest involved a “ruse”
checkpoint. Signs along the highway indicated that a drug checkpoint would
occur in a few miles, but no such checkpoint existed. Officers were stationed in
unmarked cars along the highway by the signs. They were told to watch for
suspicious behavior and to stop any cars where the occupants were exhibiting
such behavior. Officers observed a female occupant in Mr. Roth’s car throw
something out of the window after the car passed one of the signs. Officers found
drug paraphernalia in the package that was thrown from the car and found drugs
in the trunk of the car once it was stopped and searched. When the § 1983
complaint was filed, Mr. Roth was still involved in state criminal proceedings that
arose out of the allegedly illegal search.
In September 2002, the named defendants moved to dismiss the complaint
and/or for summary judgment, arguing that (1) the court lacked jurisdiction over
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Mr. Roth’s claims because of the Rooker-Feldman 2 doctrine; (2) the doctrine set
forth in Heck v. Humphrey, 512 U.S. 477 (1994) barred recovery of damages
where plaintiffs’ convictions had not been reversed or otherwise declared invalid;
(3) plaintiffs failed to state a claim for relief under Fed. R. Civ. P. 12(b)(6);
(4) the undisputed facts established that the “ruse” checkpoint was constitutional;
and (5) there were no facts showing personal involvement by the defendants.
On February 3, 2003, the Durango Defendants sent Mr. Mulhern a
letter notifying him of a recent case, United States v. Flynn, 309 F.3d 736
(10th Cir. 2002), involving similar factual circumstances in which this court held
that a “ruse” police checkpoint was constitutional. The letter stated that the Flynn
case appeared to be good precedent for the dismissal of plaintiffs’ claims and that
this seemed like an opportune time for Mr. Mulhern to re-examine the claims that
he had brought on behalf of his clients to determine whether he had a good-faith
basis under Fed. R. Civ. P. 11 to go forward. The Durango Defendants indicated
that it was their view that plaintiffs had no meritorious basis upon which to
proceed, and they requested that plaintiffs’ claims be dismissed. 3
Plaintiffs did not dismiss their claims at that time. Instead, they filed a
response to defendants’ motions to dismiss in March 2003. The district court
2
See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals
v. Feldman, 460 U.S. 462 (1983).
3
The Cortez Defendants and Buffington Defendants sent a similar letters to
Mr. Mulhern on February 5, 2003, and September 15, 2003.
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granted the motions to dismiss and dismissed the action in December 2003. After
the dismissal, the Cortez, Durango, and Buffington Defendants, as well as other
defendants that are not parties to this appeal, moved for sanctions against
Mr. Mulhern under Rule 11 and 28 U.S.C. § 1927. The district court granted the
motions for sanctions and Mr. Mulhern appealed.
In the first appeal, we concluded that we lacked jurisdiction over the appeal
from the sanctions order because the district court had not yet determined the
amount of sanctions to be awarded to one set of defendants. See Roth v. Green,
123 F. App’x 871, 874 (10th Cir. 2005) (Roth I). In the second appeal,
Mr. Mulhern appealed from the district court’s order sanctioning him under
Rule 11 and § 1927. See Roth v. Green, 466 F.3d 1179, 1182 (10th Cir. 2006)
(Roth II).
In Roth II, we considered Mr. Mulhern’s challenge to the merits of the
district court’s decision awarding sanctions. We concluded that:
If there were any doubts about the legality of the ruse utilized
by defendants in this case (and it appears that, even prior to Flynn,
the legality of such a ruse was clear), those doubts should have
ceased when we issued Flynn. Mulhern, in turn, upon receiving
notice of the Flynn decision (and the record indicates he was
repeatedly advised of the decision by the defendants in their
respective letters to him), should have voluntarily dismissed the
complaint. Stated differently, it was unreasonable, and a violation of
his obligations as a licensed attorney, to continue to pursue the
claims after the issuance of Flynn.
...
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In sum, the district court did not abuse its discretion in
concluding that Mulhern violated the provisions of both Rule 11 and
§ 1927 in filing and pursuing the § 1983 claims on behalf of Roth
and Gumeson.
Roth II, 466 F.3d at 1189-90.
Next, we considered whether defendants had followed the procedures
outlined in Rule 11. Because defendants had not done so, we concluded that the
district court had abused its discretion in granting defendants’ motions for
sanctions under Rule 11. But because the district court had also awarded
defendants fees under § 1927, we concluded that “the proper course is to reverse
and remand to the district court to determine the proper amount of fees and costs
to be assessed under § 1927 (i.e., ‘the excess costs . . . and attorneys’ fees
reasonably incurred because of’ his unreasonable and vexatious conduct).” Roth
II, 466 F.3d at 1193.
On remand, the Cortez, Durango, and Buffington Defendants filed
supplemental briefs in support of their original motions for sanctions. The
magistrate judge held an evidentiary hearing and issued a report and
recommendation. The magistrate judge recommended that the district court grant
the motions for sanctions and assess the following attorneys’ fees and costs
against Mr. Mulhern:
A. for the Cortez Defendants, attorneys’ fees of $6,202.80 and costs of
$346.93 incurred after February 3, 2003;
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B. for the Durango Defendants, attorneys’ fees of $6,505.65 and costs
of $1,647.34 incurred after February 3, 2003;
C. for the Buffington Defendants, attorneys’ fees of $12,402.45 and
costs of $1,624.76 incurred after September 10, 2002. 4
Mr. Mulhern filed objections to the magistrate judge’s recommendation, but
the district court ultimately adopted the recommendation and entered an order
granting the motions for sanctions in the amounts determined by the magistrate
judge. Mr. Mulhern now appeals from that order.
II. Discussion
We review an award of sanctions under § 1927 for abuse of discretion.
Roth II, 466 F.3d at 1187. Section 1927 provides that: “Any 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.” As the magistrate
judge explained in his recommendation, this court had already concluded in
Roth II that sanctions under § 1927 were warranted; as a result, the only
determination left for the district court was the amount of the sanctions.
4
This assessment of attorneys’ fees reflects a ten-percent reduction by the
district court of the fees requested by defendants. The magistrate judge
concluded that the attorneys’ fees should be reduced by ten percent to reflect time
entries that were not sufficiently informative or work that could not reasonably be
attributed to Mr. Mulhern’s violation of § 1927. The defendants did not file any
objections to the magistrate judge’s report and recommendation.
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In order to make a determination about the amount of sanctions, the district
court needed to decide when Mr. Mulhern unreasonably and vexatiously
multiplied the proceedings. For the Cortez and Durango Defendants, the district
court concluded that the fees and costs incurred after February 3, 2003—the date
on which Mr. Mulhern was notified of the Flynn decision—“were attributable to
Mr. Mulhern’s obdurate adherence to a legal theory that was no longer tenable.”
Aplt. App. at 14. For the Buffington Defendants, the district court concluded that
Mr. Mulhern should be liable for the reasonable fees and costs incurred after
September 10, 2002, when Mr. Mulhern “persisted in recklessly pursuing claims
against those Defendants in the face of their well-supported motion to dismiss,” in
which those defendants indicated that they had not personally participated in the
stop and search of the vehicle or plaintiffs’ arrest. Id. at 14-15.
A. Constitutionality of § 1927
Although the only determination at issue before the district court on remand
was the amount of fees and costs to be awarded, Mr. Mulhern now argues that he
should not be sanctioned under § 1927 because the statute is unconstitutional on
its face and as applied. But this court already determined in Roth II that the
district court did not abuse its discretion in concluding that Mr. Mulhern’s
conduct was sanctionable under § 1927. See Roth II, 466 F.3d at 1190. We
remanded solely for a determination of the amount of fees that could be attributed
to that conduct. See id. at 1193, 1195. Mr. Mulhern’s facial challenge to § 1927
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represents a challenge to the district court’s decision that Mr. Mulhern’s conduct
was sanctionable under § 1927. That issue was fully and finally litigated in Roth
II and the Supreme Court denied Mr. Mulhern’s petition for certiorari from our
decision, see Roth v. Green, 522 U.S. 814 (2007). Accordingly, Mr. Mulhern may
not bring a facial challenge to § 1927 at this stage in the proceedings when we are
solely reviewing the district court’s determination of the amount of the sanctions,
not whether sanctions were proper under § 1927.
As for Mr. Mulhern’s as-applied-challenge, because it can be read to
encompass the district court’s determination of the amount of fees on remand, we
will consider it. Mr. Mulhern’s main complaint appears to be that the district
court’s application of § 1927 violated his due process rights. But in Braley v.
Campbell, 832 F.2d 1504, 1514 (10th Cir. 1987) (en banc), we explained that
“[t]he basic requirements of due process with respect to the assessment of costs,
expenses, or attorney’s fees are notice that such sanctions are being considered by
the court and a subsequent opportunity to respond.” Those basic requirements of
due process were met in this case—Mr. Mulhern was on notice that sanctions
were being considered, and he had the opportunity to respond and to participate in
a hearing on the issue.
Mr. Mulhern also complains that the district court should have considered
his ability to pay and the other factors outlined in White v. General Motors Corp.,
908 F.2d 675, 684-85 (10th Cir. 1990), when the district court was determining
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the amount of sanctions under § 1927. But White was a Rule 11 sanctions case.
This court has recently “reject[ed]” a similar attempt by another attorney “to
import several precedents concerning Rule 11 . . . into the context of 28 U.S.C.
§ 1927.” Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1205 (10th Cir.
2008). In Hamilton, this court specifically rejected the same argument advanced
here by Mr. Mulhern, stating: “[W]e also reject Appellant’s contention that the
court’s sanction award improperly failed to comply with our directive in White
that a district court consider such factors as the minimum amount that will serve
as a deterrent and the attorney’s ability to pay.” Id. at 1206. Mr. Mulhern
acknowledges the existence of Hamilton, but asserts that it was erroneously
decided and should be reversed. But this panel is bound by prior precedent unless
there is an intervening en banc decision of this court or a superseding contrary
decision by the Supreme Court. See In re Smith, 10 F.3d 723, 724 (10th Cir.
1993) (per curiam). Mr. Mulhern has failed to demonstrate that the district
court’s application of § 1927 was unconstitutional.
B. Objective standard
Mr. Mulhern argues that the district court erred because it applied an
objective standard, as opposed to a subjective standard, to determine at what point
his conduct became unreasonable. He claims that he acted in good faith. But this
argument is also foreclosed by Hamilton, in which we explained that Ҥ 1927
does not require a finding of bad faith” and that “any conduct that, viewed
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objectively, manifests either intentional or reckless disregard of the attorney’s
duties to the court, is sanctionable.” 519 F.3d at 1202 (quotation omitted,
emphasis added). Accordingly, the district court did not err in applying an
objective standard to determine when Mr. Mulhern’s conduct became
unreasonable.
C. Cortez Defendants
Regarding the fees awarded to the Cortez Defendants, Mr. Mulhern argues
that the district court (1) used an incorrect starting date as to when he
unreasonably multiplied the proceedings; (2) used an incorrect ending date for
determining fees and costs; and (3) awarded amounts for non-reimbursable costs.
1. Starting Date for Fees
The district court determined that Mr. Mulhern should be responsible for
paying fees that defendants incurred after February 3, 2003—the date on which
defendants notified Mr. Mulhern that this court had issued the Flynn case, that
Flynn appeared to be dispositive of plaintiffs’ claims, and that, in light of Flynn,
“continued maintenance of this case is frivolous and groundless.” Aplee. Supp.
App. at 267. In Roth II, we stated that “upon receiving notice of the Flynn
decision . . . [Mulhern] should have voluntarily dismissed the complaint” and that
“it was unreasonable . . . to continue to pursue the claims after the issuance of
Flynn.” 466 F.3d at 1189. On remand, the magistrate judge quoted this language
and then concluded that “consistent with the Tenth Circuit’s analysis, . . . fees and
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costs incurred by the Cortez [Defendants] after February 3, 2003 were attributable
to Mr. Mulhern’s obdurate adherence to a legal theory that was no longer
tenable.” Aplt. App. at 14.
Relying on our decision in Steinert v. Winn Group, Inc., 440 F.3d 1214
(10th Cir. 2006), Mr. Mulhern argues that proceedings cannot be multiplied until
an attorney files a response to a motion to dismiss. He contends that because he
did not file a response to defendants’ motions to dismiss until March 2003, he
should not be responsible for any fees incurred up until that point. In Steinert,
440 F.3d at 1224-25, we concluded that § 1927 covers only the multiplication of
the proceedings and necessarily excludes the complaint that gives rise to the
proceedings. We therefore determined that counsel’s “conduct in pursuing [the]
claims in the face of [defendants’] motion to dismiss multiplied the proceedings
recklessly and with indifference to well-established law,” but that the district
court abused its discretion to the extent it awarded fees based on the preparation
of defendants’ motion to dismiss. 440 F.3d at 1225-26. As a result, in Steinert,
we remanded for the district court to deduct from the sanctions award the fees
generated by defense counsel in preparing the motion to dismiss. Id. at 1226.
But in Steinert, we did not instruct the district court to deduct the fees that
defense counsel incurred from the date of the filing of the motion to dismiss to
the date of the filing of the response to the motion to dismiss, which is what
Mr. Mulhern is arguing for in this case.
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Based on Steinert, the district court presumably could have started the
clock for fees from the date of the filing of the motion to dismiss; instead, the
district court used the date that Mr. Mulhern was notified of the Flynn decision,
which occurred five months after defendants filed their motions to dismiss. At
that point, we noted that “[i]f there were any doubts about the legality of the ruse
utilized by the defendants in this case (and it appears that even prior to Flynn, the
legality of such a ruse was clear), those doubts should have ceased when we
issued Flynn.” Roth II, 466 F.3d at 1189. Once Mr. Mulhern was notified of the
Flynn decision, he should have voluntarily dismissed the complaint. By failing to
do so, he continued to pursue plaintiffs’ claims in a way that unreasonably and
vexatiously multiplied the proceedings. Accordingly, the district court did not
abuse its discretion in determining that Mr. Mulhern should be responsible for
attorney’s fees and costs incurred after February 3, 2003.
Mr. Mulhern also argues that the district court erroneously included fees in
its total assessment that were incurred on February 3, 2003. He contends that the
proper date to begin calculating fees would be February 4, 2003, because the
district court ordered him to be responsible for costs incurred “after February 3,
2003,” Aplt. App. at 14, 18 (emphasis added). Based on our review of the billing
records, it does appear that the district court included fees that were incurred on
February 3, 2003, as opposed to starting the calculation after that date. On
remand, this error should be corrected.
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2. Ending Date for Fees
The Cortez Defendants requested that they be awarded fees incurred until
the date that the district court entered judgment dismissing all of the claims in
December 2003. But Mr. Mulhern contends that the district court erred by
awarding fees and costs through January 30, 2004. Defendants contend that
Mr. Mulhern is incorrectly reading the time sheets and that the district court did
not include any fees in the award for work done after the dismissal. See Aplee.
Br. at 20. The district court did not indicate what the end date was for its award
of fees and costs, but it appears after carefully reviewing the billing statements
that the district court did award amounts through January 30, 2004, even though
those fees were not requested by the defendants and they were incurred after the
case was dismissed. Because defendants did not request fees and costs for work
after the dismissal and because Mr. Mulhern did not take any action to multiply
the proceedings after the district court granted the motions to dismiss on
December 5, 2003, the district court abused its discretion by including amounts
incurred after that date in its award of fees and costs.
3. Non-reimbursable costs
Mr. Mulhern contends that the district court erred in awarding costs for
items that were not reimbursable under § 1927 because the only costs
reimbursable under § 1927 are those listed in 28 U.S.C. § 1920. As we explained
in Resolution Trust Corp. v. Dabney, 73 F.3d 262, 267 (10th Cir. 1995), “‘Excess
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Costs’ recoverable under 28 U.S.C. § 1927 include only those enumerated in 28
U.S.C. § 1920, which lists the items that ordinarily may be taxed to a losing
party.” In this case, the district court awarded costs for legal research, telephone
calls, facsimiles, postage, delivery service, and parking. None of these items are
reimbursable as costs under § 1920.
Defendants appear to be arguing that the district court did not err because it
was permissible for the court to award “costs and other expenses related to
Mulhern’s vexatious conduct,” Aplee. Br. at 10. The statute does state that
“excess costs, expenses, and attorneys’ fees reasonably incurred” may be
awarded. 28 U.S.C. § 1927 (emphasis added). We need not decide, however,
whether the other items that were assessed as costs are reimbursable as expenses
because defendants’ sanctions motions requested only attorneys’ fees and costs
and did not ask for “expenses.” Consistent with these requests, we indicated in
Roth II that, on remand, the district court should determine “the proper amount of
fees and costs to be assessed under § 1927.” 466 F.3d at 1193. Consistent with
this mandate, the district court’s order assessed attorneys’ fees and costs against
Mr. Mulhern; there is no mention of an additional award for “expenses.” See
Aplt. App. at 18. Because the defendants only asked for costs and not expenses,
and we directed the district court to assess costs and not expenses, the district
court was limited in assessing costs to those items listed in § 1920. Accordingly,
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the costs award must be reduced to include only those items that are reimbursable
under § 1920.
D. Durango Defendants
Mr. Mulhern asserts that the district court failed to be specific in its
findings of fact and recommendations when it awarded fees and costs in favor of
the Durango Defendants without the benefit of detailed contemporaneous time
sheets. Mr. Mulhern also asserts that the Durango Defendants waived their right
to fees and costs by failing to timely submit detailed time sheets. Both the Cortez
and Buffington Defendants submitted detailed time sheets reflecting the fees and
costs for the relevant time period. The Durango Defendants submitted time sheets
through December 31, 2002, but they did not submit any time sheets for 2003,
which is the time period for which the district court ultimately awarded fees and
costs. Instead of submitting time sheets, the Durango Defendants submitted an
affidavit that summarily stated that they incurred fees from February 3, 2003, in
the amount of $7,218.50 and costs in the amount of $1,647.34.
The district court’s task was to make “specific findings” that “sufficiently
express the basis for the sanctions imposed to identify the excess costs reasonably
incurred by the party to whom they will be due.” Hamilton, 519 F.3d at 1203-04
(quotation omitted). This task could not be accomplished without reviewing the
actual billing sheets that detailed the fees and costs allegedly incurred by
defendants. Cf. Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983) (explaining
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that “[t]he first step in calculating fee awards is to determine the number of hours
reasonably spent by counsel” and that lawyers should “keep meticulous,
contemporaneous time records to present to the court” if they intend to seek
sanctions under 42 U.S.C. § 1988), overruled on other grounds by Pennsylvania
v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711 (1987).
Defendants offer no real rebuttal to Mr. Mulhern’s argument. First, they
assert that Mr. Mulhern did not raise this issue in the district court. That is not
accurate. Mr. Mulhern argued this point in his objections to the magistrate
judge’s report and recommendation. See Aplt. Supp. App., Vol. II at 835, 846-49.
Defendants next claim that “[a]ll defendants submitted contemporaneous records
of time expended.” Aplee. Br. at 19. That statement is not correct. The Durango
Defendants did not submit any time records for 2003. See Aplee. Supp. App.
at 275-76, 281-82; Aplee. Supp. App., Vol. II at 438-39, 441-47. Finally,
defendants criticize the cases that Mr. Mulhern relies on to support his argument.
While it is true that the cases Mr. Mulhern cites arise out of different attorneys’
fee award provisions, defendants do not provide any case contrary to
Mr. Mulhern’s position—that a district court may not rely solely on a summary
affidavit with a lump sum amount when determining reasonable fees and costs
under § 1927. Accordingly, we conclude that the district court abused its
discretion in awarding fees and costs to the Durango Defendants without
reviewing their detailed time sheets.
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E. Buffington Defendants
Mr. Mulhern makes the same arguments with respect to the Buffington
Defendants as he did with the Cortez Defendants. He argues, first, that the
district court used the wrong starting date for when he multiplied the proceedings;
second, that the district court included fees that were incurred after the motions to
dismiss were granted on December 5, 2003; and third, that the district court erred
in awarding non-reimbursable costs. As was the case with the Cortez Defendants,
the district court abused its discretion in awarding fees and costs incurred after
December 5, 2003, and in awarding costs that were not reimbursable as costs
under § 1920.
With respect to the starting date, the district court used an earlier starting
date for these defendants, concluding that they were entitled to fees incurred after
September 10, 2002—the date when they filed their motion to dismiss. The
district court explained that the Buffington Defendants moved to dismiss the
§ 1983 claims “based upon their lack of personal participation in the stop and
search of Mr. Roth’s vehicle or in the arrest of Mr. Roth and Ms. Gumeson,” and
“[t]hat lack of personal participation distinguished the Buffington Defendants
from the Cortez and Durango Defendants.” Aplt. App. at 14. The district court
noted that this court had stated in Roth II that “individuals who had no direct
connection with or participation in the ruse checkpoint were not properly named
as defendants in the complaint,” which would encompass the Buffington
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Defendants. Id. (quotations omitted). The district court found that Mr. Mulhern
“should be liable for the reasonable fees and costs incurred by the Buffington
Defendants when Plaintiffs’ counsel persisted in recklessly pursuing claims
against those Defendants in the face of their well-supported motion to dismiss
filed on September 10, 2002.” Id. at 15. Based on our decision in Steinert,
discussed more fully in subsection C above, we see no abuse of discretion in the
district court’s decision to award fees and costs incurred after September 10, 2002
to the Buffington Defendants.
III. Conclusion
We AFFIRM the district court’s determination as to when Mr. Mulhern
vexatiously multiplied the proceedings, but we REVERSE and REMAND the
calculation of fees and costs.
On remand, the district court should recalculate fees and costs incurred
from February 4, 2003 through December 5, 2003 for the Cortez Defendants, with
costs being limited to the items listed in § 1920, 5 and recalculate fees and costs
incurred from September 11, 2002 through December 5, 2003 for the Buffington
Defendants, with costs being limited to the items listed in § 1920. 6 As for the
5
Based on our preliminary calculations, the new assessment should reflect
reductions of $122.00 for fees incurred on February 3, $2,168.00 for fees incurred
after December 5, $10.92 for non-reimbursable costs, and $93.46 for costs
incurred after December 5.
6
Based on our preliminary calculations, the new assessment should reflect
reductions of $1,020.00 for fees incurred after December 5, $1,136.89 for
(continued...)
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Durango Defendants, the district court will first need to reconsider and expressly
rule on Mr. Mulhern’s argument made in his objections to the magistrate judge’s
report and recommendation that the Durango Defendants waived their right to
attorneys’ fees and costs by failing to submit detailed time sheets in support of
their motion for sanctions. See Aplt. Supp. App., Vol. II at 849. If that issue is
resolved in favor of the Durango Defendants, then they will need to submit
detailed time sheets in order for the district court to recalculate the amount of
fees and costs incurred from February 4, 2003 through December 5, 2003, with
costs being limited to the items listed in § 1920.
Entered for the Court
Stephen H. Anderson
Circuit Judge
6
(...continued)
non-reimbursable costs, and $175.02 for costs incurred after December 5.
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