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Wade Robertson v. William C. Cartinhour

August 10, 2012

WADE ROBERTSON, PLAINTIFF,
v.
WILLIAM C. CARTINHOUR, JR., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Yet again, this Court must confront the issue of sanctions arising from the litigation brought by Wade Robertson against Dr. William Cartinhour. This time the issue is whether to impose sanctions against Ty Clevenger for filing excessive and frivolous pleadings on behalf of his client, Wade Robertson, in violation of 18 U.S.C. § 1927. To date, in related litigation, Clevenger has been sanctioned by the D.C. Circuit in orders issued on October 19 and December 14, 2010;*fn1 by Chief Judge Lamberth in a related bankruptcy proceeding on April 2, 2012;*fn2 and by Bankruptcy Judge Teel in a seventy-nine page opinion where Clevenger was fined for, inter alia, his "complete disregard for the facts and law in advancing . . . frivolous argument[s] [which] generated a staggering amount of work for the court, and has put Cartinhour and his attorney to the unnecessary burden of defending against frivolous arguments in this and other courts."*fn3 If anything, Clevenger's conduct here is even more egregious than in these related cases. Therefore, this Court will grant the motion and sanction Clevenger for his vexatious and abusive litigation tactics in this case.*fn4

BACKGROUND

This Court's involvement in Robertson's suits against Cartinhour dates back to 2009 when Robertson unsuccessfully sued Cartinhour, which ultimately resulted in a jury verdict in favor of Cartinhour for $7 million, including punitive damages of $3.5 million. The tortured history relating to that case, "Robertson I," and the current one, which has been referred to as "Robertson II," was last set forth in detail in a Memorandum Opinion dated March 16, 2012. In that opinion, this Court granted a motion to dismiss all counts, including charges of RICO and state common law claims, that Clevenger initially brought on Robertson's behalf against Cartinhour, hisattorneys ("Kearney Attorneys") in Robertson I and others in the Southern District of New York.*fn5 Given the detailed recitation that appears in that Memorandum Opinion, the Court will only to summarize the relevant events that occurred subsequent to March 16, 2012.

1. On April 2, 2012, Chief Judge Lamberth imposed sanctions of $7,249.00 against Robertson and Clevenger jointly, recognizing that they had filed a frivolous bankruptcy case in an "attempt to stall litigation in this district in front of Judge Ellen Huvelle"*fn6 and finding that sanctions were warranted because of "the groundless nature of the [bankruptcy] appeal, unfounded whatsoever in the law . . . ."*fn7

2. On April 3, 2012, in an unpublished opinion, the D.C. Circuit affirmed the jury's $7 million verdict in Robertson I and found that Robertson presented "no meritorious argument on appeal."*fn8

3. On May 4, 2012, Bankruptcy Judge Teel granted a motion for sanctions and fined Clevenger and Robertson $10,000 each, finding that "Clevenger joined Robertson in knowingly and in bad faith advancing frivolous arguments in [the] bankruptcy case."*fn9

4. On June 12, 2012, Clevenger filed an appeal in the D.C. Circuit seeking review of this Court's dismissal of Robertson II.

5. On June 25, 2012, Chief Judge Lamberth ordered Clevenger and Robertson to show cause why they "should not be enjoined from further filings [in the bankruptcy-related matters], filing further appeals from the underlying bankruptcy case, and from filing new related matters in this district court."*fn10 In response to their objections, Chief Judge Lamberth responded to their objections on July 25, 2012, by listing the egregious behavior that Robertson and Clevenger have engaged in dating back to the inception of Robertson I.*fn11

Understandably with this history as backdrop, Cartinhour has now moved for sanctions against Clevenger for attorney's fees and costs incurred in Robertson II in the amount of $158,954.28. (See Cartinhour Mot. For Sanctions Against Ty Clevenger, Esq. ("Cartinhour Mot.").)*fn12 In his initial response, Clevenger sought extensive discovery relating to the bills of Cartinhour's New York attorneys ("Yuzek Attorneys"); challenged whether Cartinhour actually incurred these fees in this litigation and whether the Yuzek Attorneys were acting under the direction of the Kearney Attorneys; and sought discovery from Cartinhour relating to whether he authorized the lawyers to act on his behalf.*fn13 Clevenger also sought 90 days to oppose the sanctions motion.*fn14 These motions were denied and finally, on May 21, 2012, Clevenger filed his response, in which he characterizes the Kearney Attorneys as "not honest men by nature" (Clevenger's Response to Mot. for Sanctions Purportedly Filed on Behalf of Def. Cartinhour ("Clevenger's Opp'n") at 6) and argues that they have failed to meet their burden under 28 U.S.C. § 1927; that the Court cannot award sanctions for events that occurred in the Southern District of New York; and that the motion is brought for an improper purpose. (Id. at 2, 4, 6.) These arguments are, as demonstrated below, utterly frivolous.

ANALYSIS

I. LEGAL STANDARD

Cartinhour seeks sanctions under 28 U.S.C. § 1927, which provides that an 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." 28 U.S.C. § 1927. The purpose of § 1927 is to allow the Court "to assess attorney's fees against an attorney who frustrates the progress of judicial proceedings." United States v. Wallace, 964 F.2d 1214, 1218 (D.C. Cir. 1992).

The District of Columbia "'has not yet established whether the standard [for unreasonable and vexatious conduct under section 1927] should be recklessness or the more stringent bad faith.'" Huthnance v. Dist. of Columbia, 793 F. Supp. 2d 177, 181 (D.D.C. 2011) (quoting LaPrade v. Kidder Peabody & Co., 146 F.3d 899, 905 (D.C. Cir. 1998)) (some internal quotation marks omitted); see also Wallace, 964 F.2d at 1218-19. However, it is clear that, to warrant such a sanction, the attorney's conduct must be "at least 'reckless.'" Id. at 1217. This means that there must be a "'conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.'" Id. at 1220 (quoting ...


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