Thomas v. Ford Motor Co. ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1175
D. ALAN THOMAS, Esq.; JOHN ISAAC SOUTHERLAND,
Esq.,
Appellants.
---------------------------------------------
SYLVIA SHATZ; ANDREW SHATZ, her husband,
Plaintiffs - Appellees,
versus
FORD MOTOR COMPANY, a Delaware corporation,
Defendant.
No. 06-1857
D. ALAN THOMAS, Esq.; JOHN ISAAC SOUTHERLAND,
Esq.,
Appellants.
---------------------------------------------
SYLVIA SHATZ; ANDREW SHATZ, her husband,
Plaintiffs - Appellees,
versus
FORD MOTOR COMPANY, a Delaware corporation,
Defendant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Frederick P. Stamp,
Jr., District Judge. (3:01-cv-00047-FPS)
Argued: May 23, 2007 Decided: August 7, 2007
Before WIDENER,1 MICHAEL, and TRAXLER, Circuit Judges.
Reversed by unpublished per curiam opinion.
ARGUED: Rebecca A. Betts, ALLEN, GUTHRIE, MCHUGH & THOMAS,
P.L.L.C., Charleston, West Virginia, for Appellants. Christopher
L. Brinkley, MASTERS LAW FIRM, L.C., Charleston, West Virginia, for
Appellees. ON BRIEF: Stephanie D. Thacker, Peter G. Markham,
ALLEN, GUTHRIE, MCHUGH & THOMAS, P.L.L.C., Charleston, West
Virginia, for Appellants.
Unpublished opinions are not binding precedent in this circuit.
1
Judge Widener heard oral argument in this case but did not
participate in the decision. The opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
2
PER CURIAM:
The district court reprimanded and censured Alan Thomas and
John Isaac Southerland, trial attorneys for Ford Motor Company, for
improper conduct in the jury room after the jury had been
discharged, and ordered them to pay attorney’s fees and expenses in
the amount of $14,655.40. Thomas and Southerland appeal, and we
reverse.
I.
Sylvia and Andrew Shatz brought a products liability action
against Ford in West Virginia. With Thomas acting as lead trial
counsel and Southerland assisting, Ford secured a defense verdict.
After the jury was discharged, the courtroom clerk asked counsel
for both parties to assist in removing exhibits from the jury room.
On an easel in the jury room in plain view was a flip chart
reflecting the jurors’ views on the evidence presented in the case.
Thomas asked Southerland to copy the notes from the flip chart for
assistance in future cases. According to Southerland, he was
“simply taking notes from the flip chart and . . . was not aware of
any problem in doing so.” J.A. 28. Eventually, Southerland left
after being told that the courtroom was closing.
Three days later, the district judge was advised by a law
clerk that she saw someone copying notes from the jury’s flip chart
in the jury room after trial, but that she did not know who he was.
3
Based on this information, the district court issued an order
directing the parties to identify the person in the jury room and
his affiliation with the parties, and scheduled a hearing “to
determine what action, if any, should be taken.” J.A. 20.
Thomas responded that Southerland copied the notes at his
request, “[o]ut of curiosity, for professional information, and for
personal development purposes.” J.A. 22. Thomas indicated that he
did not “attempt to be secretive nor did [he] believe there was any
prohibition given the completion of the jury’s deliberations and
the discharge of the jury,” or that “there were any court rules or
regulations that were violated either by letter or in spirit.”
J.A. 22-23. Nevertheless, he apologized to the court for any
misunderstanding and provided his own and Southerland’s affidavits
regarding the incident as well as the only copy of the notes made
concerning the jury’s flip chart. Plaintiffs’ counsel submitted
affidavits denying involvement in the incident.
At the hearing, the district judge adopted the facts as set
forth in the affidavits and assumed for purposes of the hearing
that court personnel had asked the attorneys to retrieve their
exhibits from the jury room themselves. However, the district
judge admonished counsel that the court itself had not given the
lawyers permission to enter the jury room or copy the jury’s notes
from the easel. Based upon its review of the notes taken by
Southerland, the court found that the flip chart reflected the
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jury’s thoughts during deliberations and may have represented the
jurors’ division prior to unanimity. The court then concluded that
Thomas and Southerland had violated the spirit, if not the letter,
of Local Rule 47.01, which prohibits an attorney from
“communicat[ing] or attempt[ing] to communicate with any member of
the jury regarding the jury’s deliberations or verdict without
obtaining an order allowing such communication.” N.D. W. Va. Local
R. Gen. P. 47.01. The court determined that by reading and copying
the jury’s notes on the easel, Thomas and Southerland essentially
communicated with the jury without the court’s permission.
Moreover, the district court found that Thomas and Southerland, by
intentionally copying the notes, acted in bad faith, engaged in
professional misconduct, and breached their professional
responsibilities. Citing his powers under his inherent authority
and 28 U.S.C.A. § 1927 (West 2006), the judge reprimanded and
censured both Thomas and Southerland and found them jointly and
severally liable for attorneys’ fees and costs incurred by
plaintiffs in responding to the court’s order and attending the
hearing.
After the hearing, the district court filed a written order
memorializing his findings. In the written order, the judge
concluded that Thomas and Southerland’s conduct was improper under
not only Local Rule 47.01 but also Federal Rule of Evidence 606(b),
which generally prohibits the use of juror testimony about matters
5
occurring during deliberations to challenge a verdict. The court
explained that
clear and convincing evidence shows that Mr. Thomas and
Mr. Southerland have engaged in conduct that, from an
objective standpoint, falls short of the obligations owed
to the Court, to opposing counsel and to the jurors in
this action. By failing in such obligations, Mr. Thomas
and Mr. Southerland have required this Court to hold
additional proceedings, have complicated the grounds for
post-verdict motions, have violated the sanctity of the
jury room and have interfered with this Court’s ability
to achieve an orderly and expeditious disposition of this
case, which necessarily continues through the time
available for post-verdict motions.
J.A. 146 (citation omitted). By separate orders, the judge granted
attorneys’ fees and costs to the plaintiffs in the amount of
$14,655.40 but denied the plaintiffs’ motion for a new trial.
Thomas and Southerland appeal.2
II.
We review the district court’s decision to impose sanctions
under its inherent authority for abuse of discretion. See Chambers
v. NASCO, Inc., 501 U.S. 32, 55 (1991); Chaudhry v. Gallerizzo, 174
2
Thomas and Southerland filed a notice of appeal on November
23, 2005, appealing the October sanction order. Because the
October order did not set the amount of the sanctions, the
plaintiffs filed a motion with this court seeking to dismiss the
appeal as interlocutory. The district court’s order became final
in March 2006, when the court set the sanction amount, and Thomas
and Southerland timely appealed that order as well. While Thomas
and Southerland’s November 2005 notice of appeal may have been
premature, they filed a second notice of appeal from a final
appealable order, and the appeals have been consolidated.
Accordingly, we deny the plaintiffs’ motion to dismiss.
6
F.3d 394, 410 (4th Cir. 1999). A court abuses its discretion when
its ruling is based “on an erroneous view of the law or on a
clearly erroneous assessment of the evidence.” Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405 (1990).
A.
The district court has the inherent authority to impose
sanctions against a party who “has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons.” Chambers, 501 U.S. at 45-46(internal quotation marks omitted). This inherent authority
“extends to a full range of litigation abuses.” Id. at 46. At the
hearing, the district judge ruled that Thomas and Southerland had
acted in bad faith, although the court did not repeat this finding
in its subsequent written order. We view the written order as
supplementing the court’s oral rulings during the hearing.
Accordingly, we review his finding of bad faith for clear error.
The district court found Thomas and Southerland’s conduct
objectively sanctionable because the court viewed the copying of
the jury’s notes as an improper invasion of the jury’s
deliberations. In support, the court cited Rakes v. United States,
169 F.2d 739 (4th Cir. 1948), a case dealing with improper contact
with jurors after a trial; Local Rule 47.01, which also addresses
contact with jurors; and Federal Rule of Evidence 606(b), which
generally prohibits a juror from testifying about matters occurring
during deliberations in hearings to challenge a verdict.
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We disagree. First, Local Rule 47.01 is aimed at preventing
lawyers, without permission of the court, from bothering jurors
after they have completed their service by writing them or
attempting to talk to them. See Rakes, 169 F.2d at 745-46; N.D. W.
Va. Local R. Gen. P. 47.01. And, Rule 606 restricts what a juror
can testify to in proceedings to set aside a verdict. See Fed. R.
Evid. 606(b). Neither of these concerns were implicated, however,
by counsel’s conduct here. Not only was no juror contacted, but it
is doubtful that any juror ever knew what transpired. There was no
harassment of any juror by the attorneys, nor has there been any
effort by Thomas or Southerland to challenge the verdict on the
basis of what the jurors wrote. In short, we find nothing in the
record to support the district court’s determination that Thomas or
Southerland engaged in conduct that is prohibited by these rules.
The district court also viewed the attorneys’ actions as an
invasion of the sanctity of the jury room and the jury’s
deliberations. We cannot agree. The jury had finished its
deliberations, reported its verdict, been discharged, and left the
building. No effort was made by the jurors to obliterate anything
written on the easel or to otherwise conceal or destroy the
information recorded thereon. The notes were left where anyone
coming into the jury room could have seen and read them. We have
found no rule or law that makes sanctionable the viewing or copying
of jurors’ notes after the case has ended, nor are we aware of any
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authority that confers per se confidentiality upon discussions in
a jury room.
Additionally, we see nothing in the record suggesting bad
faith. Indeed, these attorneys were invited into the jury room by
a representative of the court after the jury had been discharged.
Moreover, the notes on the top sheet of the flip chart were plainly
exposed to the view of anyone who entered the jury room. We cannot
fault the lawyers for seeing what was in front of them and
remembering what they had seen. Any error, therefore, would have
to be in peeking under the top sheet and in copying that
information, and in this we simply can find no grievous harm.
In sum, we see no factual or legal basis for concluding that
counsel acted in bad faith or abused the litigation process, nor do
we find any basis for concluding that counsel violated the rules
cited by the district court or engaged in conduct otherwise
deserving of sanctions under the inherent power of the court.
B.
For similar reasons, we cannot affirm the district court’s
conclusion that the sanctions were authorized by 28 U.S.C.A.
§ 1927. Section 1927 provides:
Any attorney or other person admitted to conduct cases in
any court of the United States . . . 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.
9
28 U.S.C.A. § 1927. Section 1927 requires “a finding of counsel’s
bad faith as a precondition to the imposition of fees.” See
Chaudhry, 174 F.3d at 411 n.14 (internal quotation marks omitted).
Mere negligence will not support an imposition of sanctions under
§ 1927. See United States v. Wallace, 964 F.2d 1214, 1219 (D.C.
Cir. 1992). Section 1927 authorizes sanctions only when counsel’s
bad faith conduct multiplies the proceedings, resulting in excess
costs for the opposing party.
In our view, § 1927 provides no basis for the sanctions
imposed by the district court because it is triggered by
subjective bad faith. See Chaudhry, 174 F.3d at 411 n.14; Blair v.
Shenandoah Women’s Center, Inc., 757 F.2d 1435, 1438 (4th Cir.
1985) (concluding that evidence was sufficient to show “subjective
bad faith” and supported sanctions imposed by the district court);
see also Hilton Hotels Corp. v. Banov, 899 F.2d 40, 45 n.9 (D.C.
Cir. 1990) (“[S]ection 1927 applies only when the attorney acts in
subjective bad faith.”). As stated above, there is no evidence of
subjective bad faith on the part of either attorney. In fact, the
evidence is uncontradicted that the lawyers were motivated by a
desire for general professional development rather than any purpose
related to this particular case. Consequently, the district court
committed clear error in finding that Thomas and Southerland acted
in bad faith and abused its discretion in awarding attorney’s fees.
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III.
Finally, we note that this problem could have been avoided had
the clerk of court properly performed his responsibility of
retrieving the evidence and exhibits from the jury room and
returning them to the attorneys in the courtroom. It is the duty
of the clerk of court to see that those items admitted into
evidence, and only those items, are taken to the jury room for the
jury’s use during its deliberation, see United States v. Lentz, 383
F.3d 191, 213-14 (4th Cir. 2004), and we believe it is likewise the
duty of the clerk of court to return those items to the courtroom
after the trial has ended.
IV.
Accordingly, we reverse the district court’s order censuring
and reprimanding the attorneys, and imposing sanctions against
Thomas and Southerland in the amount of $14,655.40.
REVERSED
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