Timothy White v. Regional Adjustment Bur, Inc. , 641 F. App'x 298 ( 2015 )

Case: 15-10655 Document: 00513289681 Page: 1 Date Filed: 12/01/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-10655 United States Court of Appeals
Fifth Circuit
FILED
TIMOTHY WHITE December 1, 2015
Lyle W. Cayce
Plaintiff Clerk
v.
REGIONAL ADJUSTMENT BUREAU, INCORPORATED, doing business as
RAB, Inc.
Defendant – Appellee
v.
NOAH RADBIL
Respondent – Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:11-CV-1817
Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
The underlying dispute in this case concerned claims under consumer
protection statutes by Dr. Timothy White, represented by Noah Radbil, against
Regional Adjustment Bureau, Inc. (“RAB”). However, this appeal concerns
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-10655 Document: 00513289681 Page: 2 Date Filed: 12/01/2015
No. 15-10655
only sanctions issued by the district court against Radbil 1 arising from his
conduct during the pendency of the case. Following five hearings and full
briefing, the district court entered an eighty-three-page order sanctioning
Radbil by awarding reasonable and necessary attorneys’ fees 2 for time spent
by RAB’s counsel addressing Radbil’s conduct and suspending Radbil from
practice before the Northern District of Texas for three years. We MODIFY
the term of suspension to one year and AFFIRM in all other respects the
district court’s order regarding Radbil.
We review the sanctions order, issued pursuant to the district court’s
inherent power, for abuse of discretion, but with a careful eye. See Crowe v.
Smith, 151 F.3d 217, 226, 236 (5th Cir. 1998). This case has already been the
subject of prolonged proceedings. In light of the district court’s lengthy order
and protracted oral argument before our court, we write only to summarize our
disposition of Radbil’s challenges as follows:
1. Bad Faith Finding. The district court recounted numerous instances
of alleged wrongdoing by Radbil during the course of this trial,
specifically including making misrepresentations to the district court.
The district court found that Radbil made these misrepresentations
intentionally, rather than through mistake or mere incompetence.
Radbil takes issue with some of the findings, and we are not convinced
that all of the alleged wrongdoing was, in reality, wrongdoing.
Furthermore, some of the evidence pertained to other cases, including
1The appeal of sanctions issued against another member of Radbil’s firm, Marshall
Meyers, has been severed from this case and is now proceeding separately under Case No.
15-10723.
2 At the time of appeal, the precise amount of fees had not been determined. We
affirm the district court’s decision to award fees, recognizing that the amount should be
limited to those fees reasonably and necessarily incurred as a result of Radbil’s conduct (as
distinct from those caused by the normal course of defending the White/RAB litigation).
2
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one in which the sanction was vacated. But there is ample evidence
to support the district court’s conclusion that Radbil engaged in deceit
in the present case, and we give deference to the district court’s
firsthand view of whether that deceit was intentional. Accordingly,
we conclude that the finding of bad faith was adequately explained
and supported by clear and convincing evidence.
2. Role of Opposing Counsel. 3 Radbil argues that opposing counsel’s role
should have been limited to advocating for recovery of RAB’s
attorneys’ fees and that RAB’s counsel overreached by opining about
whether Radbil should be suspended or otherwise disciplined in
addition to the attorneys’ fees sanction. See Crowe, 151 F.3d at 233.
We agree with Radbil that a district court should appoint independent
counsel to prosecute any “inherent power” sanctions case where the
possibility of disbarment or suspension is presented and that RAB’s
counsel’s description of RAB in closing arguments before the district
court as “a private attorney general for the bar, the Court, and . . .
consumers” is troubling. See id. (noting that court sufficiently avoids
placing opposing counsel in role of prosecutor where it avoids putting
him “in the position of making legal argument in favor of disbarment,”
and finding no impropriety where opposing counsel conducted
investigations, took depositions, collected other evidence, and cross-
examined witnesses, but was not allowed to present argument,
3 Following oral argument, Radbil brought to this court’s attention a press release
from the Association of Credit and Collection Professionals stating that it has provided funds
to support RAB in this appeal. We decline to consider this document, leaving consideration
of its implications for the district court in assessing the amount of attorneys’ fees. While the
document suggests a disturbing sort of partisanship in the appeal process, it does not suggest
this group was involved during the proceedings before the district court, which is the matter
we are evaluating. Further, RAB’s counsel has confirmed that the first request for funds to
this group was in connection with this appeal. In any event, two wrongs do not make a right.
3
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submit legal authorities after trial, or suggest the sanctions to be
imposed); NASCO, Inc. v. Calcasieu Television & Radio, Inc., 894 F.2d
696, 707–08 (5th Cir. 1990) (holding that the district court “avoided
placing [opposing] counsel in the role of prosecutor for the disbarment
proceedings,” which would create danger of overzealousness, where
counsel’s argument was “devoted entirely to the issue of monetary
sanctions” and “[t]he court later relied on its own research, aided by
any briefs the parties wished to file, in determining the propriety of
nonmonetary sanctions”), aff’d sub nom. Chambers v. NASCO, Inc.,
501 U.S. 32 (1991).” However, prior to the district court’s ruling,
RAB’s counsel did not advocate for disbarment except during
testimony in response to a question from Radbil’s counsel. See Crowe
at 233–34. Thus, we conclude that the conduct of RAB’s counsel, as
it related to the effect on the district court’s ruling, did not rise to the
level that would present reversible error.
3. Explanation of Sanctions. Radbil also challenges the district court’s
alleged failure to consider lesser sanctions in imposing a three-year
suspension. The district court did consider disbarment, but it
concluded that such a punishment was too severe. It did not expressly
address imposition of a shorter period of suspension, but, as a result
of our disposition in section 4 below, we conclude it would not serve
any purpose to remand for further findings. The district court’s
lengthy opinion provides sufficient insight into the district court’s
reasoning.
4. Suspension. We conclude that the district court did not abuse its
discretion in concluding that lying to the court supports imposition of
a period of suspension from practicing before that federal district. We
have affirmed similar types of sanctions in the past. See, e.g., In re
4
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Grodner, 587 F. App’x 166, 170 (5th Cir. 2014); In re Moity, 320 F.
App’x 244, 244–45 (5th Cir. 2009); Crowe, 151 F.3d at 239; NASCO,
Inc., 894 F.2d at 698. However, based upon our review of prior cases,
we have come to the conclusion that it would be an abuse of discretion
to impose greater than a one-year suspension for the conduct found to
have occurred here. Although we ordinarily would remand for
reassessment in light of this holding, we conclude that the amount of
time devoted to this case by all concerned has been extensive and that
it serves the interests of justice to modify the district court’s order to
“bring the proceedings to a close.” Topalian v. Ehrman, 84 F.3d 433,
1996 WL 248995, at *4 n.4 (5th Cir. 1996) (unpublished). We conclude
that a one-year suspension is the least severe sanction necessary to
deter such improper conduct in the future. See id. at *4–5.
Accordingly, we MODIFY the district court’s order to reduce the
suspension from three years to one year. As modified, we AFFIRM. We DENY
Radbil’s motion to reassign the case to a different judge. 4
4 Although we are not remanding, we recognize that the amount of attorneys’ fees is
still pending before the original district judge, and we decline to order a reassignment.
5