Gen'l Chauff 330 v. James Gordan Banks ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3342
JAMES D. S HALES, JOHN P AVLAK, and T AMARA L. S MITH,
Plaintiffs,
v.
G ENERAL C HAUFFEURS, S ALES D RIVERS AND
H ELPERS L OCAL U NION N O . 330, et al.,
Defendants-Appellees.
Appeal of:
JAMES G ORDON B ANKS
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 8358—George W. Lindberg, Judge.
A RGUED S EPTEMBER 22, 2008—D ECIDED F EBRUARY 27, 2009
Before E ASTERBROOK, Chief Judge, and R OVNER and
W ILLIAMS, Circuit Judges.
E ASTERBROOK, Chief Judge. After a contested union
election, the losers sued the winners under a variety of
2 No. 07-3342
theories, including racketeering. All aspects of the suit
eventually were resolved in defendants’ favor, because
the plaintiffs could not prove what the complaint al-
leged. During discovery it became evident that many
of the allegations were fanciful. One plaintiff, for ex-
ample, contended that the successful candidate for presi-
dent of the local union had intentionally inflicted emo-
tional distress by threatening to fire her if he won. The
evidence showed that, whatever she may have heard
through the grapevine, he had not made such a threat;
after the election he kept her on with a raise. As a matter
of state law, a claim of intentional infliction of emotional
distress also requires proof of some severe reaction, and
this plaintiff offered none other than an asthma attack
more than a year after the election—and she had suffered
from occasional asthma attacks for 25 years. Other claims
were as weak, or worse.
As discovery continued and it became ever more
evident that the complaint lacked a basis in fact, counsel
for the defendants began to send letters demanding that
particular claims be deleted from the complaint and
withdrawn from the litigation. James Gordon Banks, who
represented the plaintiffs, did not reply to any of these
requests. When the case was over, defendants sought
sanctions under 28 U.S.C. §1927 on the theory that Banks
had vexatiously multiplied the proceedings, and under
Fed. R. Civ. P. 11 on the theory that Banks had failed to
make a reasonable investigation before filing suit and
had advocated the complaint long after it became clear
that the allegations were unfounded. The district judge
granted defendants’ motion for sanctions, see 2007 U.S.
No. 07-3342 3
Dist. L EXIS 22243 (N.D. Ill. Mar. 26, 2007), and asked
defendants to delineate the attorneys’ fees incurred to
defeat the suit. Defendants collectively asked for some
$200,000, but the judge thought this excessive and con-
cluded that reasonable fees had been approximately
$80,000, which he ordered Banks to pay. 2007 U.S. Dist.
L EXIS 57044 (N.D. Ill. Aug. 6, 2007).
Banks asked the judge to reduce this award, representing
that his only assets are $2,000 in cash, his watch, his
clothing, and his wedding band. He does not carry mal-
practice insurance, because he has no significant assets
to insure. Defendants replied that Banks has a legal
education and thus a potential to earn enough to pay—and,
the defendants observed, the reason Banks does not own
much is that the family home, cars, and savings all are in
his wife’s name. With the odor of a fraudulent conveyance
in the air, the district judge denied Banks’s motion to
reduce the award.
Defendants contend that Banks’s appeal is untimely. The
decision sought to be reviewed was entered on August 6,
2007, and the notice of appeal was not filed until Septem-
ber 27, more than 30 days later. But on August 20 Banks
had filed a motion to reconsider, which the district court
denied on August 28. The appeal was filed 30 days later
and is timely, if the motion suspends the decision’s
finality under Fed. R. App. P. 4(a)(4). The motion was
filed within 10 business days (weekends are excluded
from the count, see Fed. R. App. P. 26(a)(2)), so it was
timely if it is on the list in Rule 4(a)(4)(A). And that list
includes both a motion to amend the judgment under
4 No. 07-3342
Fed. R. Civ. P. 59 and a motion for relief under Fed. R. Civ.
P. 60, if filed within ten business days.
What defendants say is that Banks’s motion does not
count, despite its caption (it invoked both Rule 59 and
Rule 60), because it did not present a good argument.
But Rule 4(a)(4) refers to types of motions (effectively, to
kinds of relief sought), not to whether the motion is well
taken. See Urso v. United States, 72 F.3d 59 (7th Cir. 1995). If
a party had to present a good argument for relief, the
rule might as well be rewritten to say that the time for
appeal runs from the district court’s original decision,
unless that decision is actually amended in response to
a later motion. The actual rule, however, provides that
the existence of a motion, and not the motion’s merit, is
what suspends the time for appeal. No other approach is
feasible. Jurisdictional time limits must be ascertained
mechanically. Budinich v. Becton Dickinson & Co., 486 U.S.
196 (1988). Litigants, and a court of appeals, can ascertain
in a mechanical fashion whether, and when, a particular
motion has been filed. Making appellate jurisdiction turn
on the motion’s substance would introduce a quagmire
into appellate practice. Banks made a kind of motion
that resets the clock for an appeal, and he filed the notice
of appeal within 30 days of the motion’s denial. The
appeal is proper.
Banks’s principal argument is that Rule 11 is not a pure
fee-shifting statute, so ability to pay should be taken
into account. This is true as far as it goes. “A sanction
imposed under this rule must be limited to what suffices
to deter repetition of the conduct or comparable conduct
No. 07-3342 5
by others similarly situated.” Fed. R. Civ. P. 11(c)(4). The
poorer the lawyer, the lower the sanction can be and
still deter repetition by the lawyer or anyone similarly
situated. Cf. Leister v. Dovetail, Inc., 546 F.3d 875, 883–84
(7th Cir. 2008); Zazú Designs v. L’Oréal, S.A., 979 F.2d 499,
507–08 (7th Cir. 1992). A district judge therefore should
take the sanctioned party’s resources into account when
setting the amount of a Rule 11 sanction. See Johnson v.
A.W. Chesterton Co., 18 F.3d 1362, 1366 (7th Cir. 1994). But
the district judge imposed sanctions under §1927, a real
fee-shifting law, as well as Rule 11. An award under §1927
depends (as an award under Rule 11 does not) on a
finding of bad faith. It is awfully hard to see why a
lawyer who acted in bad faith should be let off lightly.
Banks’s brief essentially ignores §1927, but that does not
make it go away.
A violation of §1927 is a form of intentional tort. And
there is no principle in tort law that damages depend on a
tortfeasor’s assets. Quite the contrary. Damages depend on
the victim’s loss, not the wrongdoer’s resources. A physi-
cian who injures a patient by an act of medical malpractice
will be ordered to pay whatever injury the malpractice
causes. The physician’s assets—and whether he holds his
property in a relative’s name—will not play any role in
determining the amount of damages. So too if Banks had
walked up to Dominic Romanazzi, the principal defendant
(he beat Shales in the 2003 election for President of
Local 330), and punched Romanazzi in the mouth. The
damages for battery would depend on Romanazzi’s injury,
not on Banks’s wealth. Likewise if Banks has slandered
Romanazzi. Instead of hitting Romanazzi with a fist or an
6 No. 07-3342
insult, Banks hit him with a lawsuit. Again damages
depend on injury, once the judge concludes that the
litigation was tortious. (We speak here of compensatory
rather than punitive damages in tort litigation; the
award under §1927 is compensatory, not punitive.)
A physician only four years out of medical school does
not get a discount on his malpractice judgments; Banks’s
observation that he was only four years out of law school
when he took this case does not give him a license to
injure others by making unsupported assertions and
clinging to them long after their falsity has been revealed.
This would be plain enough if Banks had injured his
own client by malpractice; the proposition is no different
when he injures his client’s adversary. We therefore
agree with Hamilton v. Boise Cascade Express, 519 F.3d
1197, 1206 (10th Cir. 2008), that a lawyer’s ability to pay
does not affect the appropriate award for a violation of
§1927. (Several cases in this circuit, of which Fox Valley
Construction Workers v. Pride of the Fox Masonry & Expert
Restorations, 140 F.3d 661, 667 (7th Cir. 1998), is an ex-
ample, assume that district judges may consider the
lawyer’s wealth but hold that it is never necessary to do so.
These decisions lump together analysis under Rule 11 and
§1927, apparently because the parties did the same. For
reasons we have given, it is necessary to distinguish these
two sources of authority. No case we could find in this
circuit holds that consideration of the wrongdoer’s wealth
is necessary under §1927; such a position would be outré
if taken in a tort suit.)
If Banks cannot meet all of his financial obligations, he
may have them written down in bankruptcy. What Banks
No. 07-3342 7
effectively wants us to do is to give him some debt relief
in a quasi-bankruptcy proceeding, but without the
forms of that process—forms that would include the
opportunity for assets to be brought into the estate in a
fraudulent-conveyance action. Instead of trying to ad-
minister debt relief one debt at a time, creating an odd
(and extra-statutory) set of priorities, district judges
should let the bankruptcy proceeding handle all debts
and all creditors at one go, according to the Bankruptcy
Code—which governs not only which claims are paid
first but also how much a debtor with a given level of
income must pay to creditors in the aggregate, and over
how much time. All a district court could do by re-
ducing the liability for sanctions under §1927 would be
to interfere with the Bankruptcy Code.
Making the award depend on the injury, rather than
the offender’s wealth, has four additional benefits:
(a) It avoids the expense of suit-by-suit inquiries into
ability to pay, which as this case shows may be complex.
Whether a fraudulent conveyance has occurred can be
hard to pin down. Why replicate a bankruptcy pro-
ceeding just to decide on an award of sanctions?
(b) It avoids false positives. Some people who claim to
be indigent aren’t. Indeed, the very assertion “I’m indigent,
so please excuse me” implies solvency. Why seek to
avoid an award that, if you are destitute, cannot harm
you? (A person who fears that the award could be col-
lected from future income may have it discharged in
bankruptcy.)
(c) It avoids disparate treatment of identically situated
litigants. District judges differ substantially in how they
8 No. 07-3342
use discretion. Rights measured by the chancellor’s foot
are not “rights” of any kind, and such a stochastic
process is not the administration of justice. We need
rules that apply in an even-handed fashion.
(d) It achieves deterrence. If Banks really is a bad
lawyer (as he depicts himself), and is poor because people
are not willing to pay much, or at all, for his services, then
he should turn from the practice of law to some other
endeavor where he will do less harm. No court would
say, in a medical-malpractice action, that a doctor whose
low standards and poor skills caused a severe injury
should be excused because he does not have very many
patients. No more is a bad lawyer excused because he
has few clients.
A FFIRMED
2-27-09