Timothy White v. Regional Adjustment Bur, Inc. , 632 F. App'x 234 ( 2016 )

Case: 15-10723 Document: 00513361393 Page: 1 Date Filed: 01/29/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-10723
Fifth Circuit
FILED
January 29, 2016
TIMOTHY WHITE Lyle W. Cayce
Clerk
Plaintiff
v.
REGIONAL ADJUSTMENT BUREAU, INCORPORATED, doing business as
RAB, Inc.
Defendant – Appellee
v.
MARSHALL MEYERS,
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 of the
law firm Weisberg & Meyers, against Regional Adjustment Bureau, Inc.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-10723
(“RAB”). The merits of that case were not appealed, but the case did spawn
attorney sanctions that were appealed and ultimately split into two appellate
cases. We recently resolved the appeal concerning Radbil by modifying the
sanctions to a one-year suspension from practice in the Northern District of
Texas (the “Northern District”) and affirming liability for attorneys’ fees.
White v. Reg’l Adjustment Bureau, Inc. (Radbil), No. 15-10655, 2015 WL
7740524, at *1–2 (5th Cir. Dec. 1, 2015).
This appeal addresses sanctions issued against the managing partner of
Radbil’s firm, Marshall Meyers. Following five hearings and full briefing, the
district court entered an eighty-three-page order that, in addition to
sanctioning Radbil by awarding reasonable and necessary attorneys’ fees for
time spent by RAB’s counsel addressing Radbil’s conduct and suspending
Radbil from practice before the Northern District for three years, also assessed
the same punishment against Meyers. Meyers did not personally appear at
the underlying trial that gave rise to Radbil, but did personally appear at the
sanctions hearings thereafter. As to Meyers, we VACATE the term of
suspension, and MODIFY the award of attorneys’ fees.
The lengthy briefing and oral argument, as well as the previous
discussion in Radbil, obviate the need for a protracted discussion here. We are
certainly hopeful that the kind of interchange we witnessed here will not be
repeated such that this opinion is written primarily for the parties. We adopt
the reasoning of Radbil with respect to the standard of review and the issue of
defense counsel’s involvement in advocating for sanctions beyond attorneys’
fees. We write only to summarize our disposition of Meyers’s other challenges
as follows:
1. Meyers’s Role. At first blush, Meyers’s implicit argument that he is
being punished for “guilt by association” seems appealing. But
digging deeper, we conclude that Meyers’s role in the sanctions
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hearings was not that of the disinterested attorney hired only as an
advocate for an unrelated client. RAB sought sanctions against
Meyers’s firm and Radbil. When Meyers appeared at the sanctions
hearing, he stated that he was there “representing [Weisberg &
Meyers], and to the extent the [c]ourt allows, Mr. Radbil as well.”
Thus, any misrepresentations he made to the court cannot be excused
as mere unwitting misstatements as part of advocacy for a client.
2. Suspension. We previously modified the sanction against Radbil to
one year (from three years). Meyers contends that he was not
adequately notified of the potential for disbarment-like sanctions in
this case. We need not decide this issue because we conclude that the
conduct Meyers committed, while improper, is not as egregious as
that of Radbil such that the sanction of suspension cannot stand. We
VACATE that sanction.
3. Bad Faith Finding. The district court determined that Meyers
himself made and perpetuated some of the same misrepresentations
put forth by Radbil. At least to the extent of the sanctions affirmed
herein, we conclude that the finding of bad faith was adequately
explained and not clearly erroneous. See Crowe v. Smith, 261 F.3d
558, 563 (5th Cir. 2001) (“A court [imposing inherent power sanctions]
abuses its discretion when its finding of bad faith is based on an
erroneous view of the law or a clearly erroneous assessment of the
evidence.”). 1
1 Because only the attorneys’ fee sanctions remain at issue, we need not determine
whether the bad faith finding is supported by clear and convincing evidence. Cf. Crowe, 261
F.3d at 563 (“In attorney suspension and disbarment cases, the finding of bad faith must be
supported by clear and convincing proof.”).
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4. Attorneys’ Fees. We conclude that the evidence before the district
court does not support that Meyers did anything to cause the original
problems during the underlying trial that gave rise to the subsequent
sanctions hearings. However, the district court determined that
Meyers’s conduct after the first sanctions hearing included
misrepresentations to the court that fomented the dispute and
prolonged the proceedings, and that determination was not clearly
erroneous. Accordingly, we conclude that the district court erred in
assessing joint liability for the trial attorneys’ fees but did not err in
assessing joint liability for the attorneys’ fees from the second
sanctions hearing to conclusion, to the extent that those fees were
attributable to Meyers’s misconduct. The district court has not yet
assessed an amount of those fees, and we leave to the district court in
the first instance the question of how much of the fees related to the
sanctions hearings, if any, should be properly assessed against
Meyers. We note that “[t]he district court must demonstrate some
connection between the amount of monetary sanctions it imposes and
the sanctionable conduct by the violating party” and should not
attribute to Meyers self-imposed costs unreasonably incurred by RAB
in investigating and arguing extraneous matters. Topalian v.
Ehrman, 3 F.3d 931, 937 (5th Cir. 1993). 2
Suspension VACATED; liability for attorneys’ fees MODIFIED.
2We note also that RAB has not sought an award of attorneys’ fees against Meyers on
statutory grounds; the sole basis for an award of fees against Meyers is the district court’s
inherent authority.
4