Eash v. Riggins Trucking Inc.

• Decision Date: 15 March 1985
• Docket Number: No. 83-5664,83-5664
• Parties: , 53 USLW 2470, 2 Fed.R.Serv.3d 628 Irvin E. EASH and Yvonne M. Eash, his wife v. RIGGINS TRUCKING INC., a corporation, Riggins Trucking, an unincorporated association, Riggins Trucking, a partnership, Riggins Trucking, a corporation, Riggins Trucking Company, an unincorporated association, Riggins Trucking Company, a partnership, Riggins Trucking Company, a corporation, Clifford Riggins, an individual, and Alice Ann Riggins, an individual. Appeal of RIGGINS TRUCKING COMPANY, a corporation, Clifford Riggins, an individual, Alice Ann Riggins, an individual, and William R. Tighe, Attorney for the defendants above named.
• Court: U.S. Court of Appeals — Third Circuit

Page 557

757 F.2d 557

77 A.L.R.Fed. 751, 53 USLW 2470, 2

Fed.R.Serv.3d 628

Irvin E. EASH and Yvonne M. Eash, his wife v. RIGGINS TRUCKING INC., a corporation, Riggins Trucking, an unincorporated association, Riggins Trucking, a partnership Riggins Trucking, a corporation, Riggins Trucking Company an unincorporated association, Riggins Trucking Company, a partnership, Riggins Trucking Company, a corporation Clifford Riggins, an individual, and Alice Ann Riggins, an individual Appeal of RIGGINS TRUCKING COMPANY, a corporation, Clifford Riggins, an individual, Alice Ann Riggins, an individual, and William R. Tighe, Attorney for the defendants above named.

No. 83-5664.

United States Court of Appeals, Third Circuit.

Submitted In Banc Nov. 13, 1984.

Decided March 15, 1985.

William R. Tighe, Edward A. Schenck, Tighe, Evan & Ehrman, Pittsburgh, Pa., for appellants.

Robert J. Bartow, Philadelphia, Pa., amicus curiae.

Before ALDISERT, Chief Judge, and SEITZ, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

This appeal presents an issue important to judicial administration, namely, whether a district court may order an attorney to pay to the government the cost of impanelling a jury for one day as a sanction for the attorney's abuse of the judicial process.

I

The underlying action in this case was a personal injury suit brought in a Pennsylvania state court in 1982 by plaintiffs Irvin and Yvonne Eash. Upon motion by the defendants, the case was removed to the District Court for the Western District of Pennsylvania, pursuant to 28 U.S.C. Sec. 1441 (1982). Settlement negotiations took place between the parties in the spring of 1983, leading to a stipulation to dismiss the case. Consequently, on August 1, 1983, the district court dismissed the action.

On August 12, 1983, without giving notice to the parties or conducting a hearing, the district court entered an order requiring defendants' counsel to pay $390 to the Clerk of Court. A copy of the order appears in the appendix. The case was scheduled for trial before a jury on May 23, 1983, and according to the district court judge, plaintiffs' attorney made repeated attempts to communicate with defendants' counsel regarding settlement possibilities during the week of May 16, 1983. Receiving no response, plaintiffs' attorney prepared for trial and came to court on May 23. At that point, defendants' counsel proposed a settlement figure that plaintiffs accepted. The district court believed, although this is disputed, that because defendants' attorney was scheduled for trial in state court that same day, the settlement avoided a scheduling conflict.

The district court concluded that under the circumstances "settlement on the eve of trial was not justified. Defendants' attorney was given adequate notice by plaintiffs' counsel and by court personnel to attempt to reach an agreement." App. at 8A. The court therefore imposed a sanction of $390 on defendants' attorney, calculated as follows: $30, the per diem fee for each juror, multiplied by 13, the minimum number of persons necessary to select a jury. Subsequently the court denied a petition for reconsideration submitted by defendants' counsel, in which counsel disputed the factual basis of the order.

After a timely appeal was filed, the case was listed for resolution by a panel of this Court. ¹ Because of the importance of the questions presented, however, the Court in banc has reviewed the case.

II

We first address appellants' contention that the district court was without jurisdiction to enter the order imposing the sanction because the order was entered eleven days after the dismissal of the case. It is clear that there are various contexts in which the district court retains jurisdiction over particular matters after a judgment has been entered. For example, the court retains jurisdiction to fix costs under Fed.R.Civ.P. 54(d) and Fed.R.Civ.P. 58, even after dismissal of the underlying action. See 10 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2668 (1983); cf. Richards v. Government of Virgin Islands, 579 F.2d 830, 833 (3d Cir.1978). In addition, courts generally have recognized that there is retained jurisdiction to assess attorney's fees pursuant to 28 U.S.C. Sec. 1927 (1982), within a reasonable time after a judgment on the merits is entered. See, e.g., Overnite Transportation Co. v Chicago Industrial Tire Co., 697 F.2d 789, 793 (7th Cir.1983); Obin v. District of the International Assoc. of Machinists & Aerospace Workers, 651 F.2d 574 (8th Cir.1981).

Assuming the district court had the authority to impose the sanction in this matter, we find no jurisdictional obstacle to the entry of the order in question eleven days after the underlying case was disposed of on the merits.

III

Counsel also challenges the district court's power to impose the cost of impanelling a jury as a sanction for his misconduct. The district court did not specify the authority upon which it relied; however, there appear to be two possible sources: 28 U.S.C. Sec. 1927 (1982) or the court's inherent power.

As amended in 1980, 28 U.S.C. Sec. 1927 states:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof 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.

A threshold question is whether the terms "costs" and "expenses" contained in the statute include the per diem juror fees paid by the government. If not, the statute would appear to provide no authority for the order in question.

In Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), the Supreme Court held that "costs" under Sec. 1927 are limited to those costs permitted under 28 U.S.C. Sec. 1920 (1982), which enumerates the items that ordinarily may be taxed to a losing party. ² The Court reasoned that Sec. 1927 should be read in pari materia with Sec. 1920 because the two sections are part of an integrated legislative effort, first approved in 1853, to allow the award of excess costs against lawyers who vexatiously multiply litigation. 447 U.S. at 760, 100 S.Ct. at 2461. The Supreme Court concluded that the

most reasonable construction is that the [original Act containing the present Sec. 1920] defined those costs that may be recovered from counsel. Congress, of course, may amend these provisions that derive from the 1853 Act. In the absence of express modification of those provisions by Congress, however, we should not look beyond the Act for the definition of costs under Sec. 1927.

Id. at 760, 100 S.Ct. at 2461 (footnote omitted). ³ Neither Sec. 1920 nor Sec. 1927 contains reference to the costs of impanelling a jury, costs which customarily are borne by the government. Only the opposing litigants' costs and expenses incurred by virtue of an attorney's misconduct are within the ambit of the statutes. Thus, the Supreme Court's decision in Roadway precludes reliance on Sec. 1927 as granting district courts the authority to impose the sanction employed in this case. See also United States v. Blodgett, 709 F.2d 608 (9th Cir.1983); United States v. Ross, 535 F.2d 346 (6th Cir.1976) (Sec. 1927 does not authorize assessment of juror costs). ⁴

IV

A.

The amicus suggests that the district court's order is most properly viewed as an exercise of the court's inherent power. That courts have inherent powers--powers vested in the courts upon their creation, see Michaelson v. United States, 266 U.S. 42, 66, 45 S.Ct. 18, 20, 69 L.Ed. 162 (1924); Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510, 22 L.Ed. 205 (1874); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227, 5 L.Ed. 242 (1821), and not derived from any statute, see Link v. Wabash Railroad Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962); United States v. Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812)--is not disputed. Inherent power has been frequently invoked by the courts to regulate the conduct of the members of the bar as well as to provide tools for docket management. Courts have thus relied on the concept of inherent power to impose several species of sanctions on those who abuse the judicial process. For example, federal courts may dismiss a case for failure to prosecute, Link v. Wabash Railroad Co., 370 U.S. at 629-30, 82 S.Ct. at 1388-89; see also National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam); Titus v. Mercedes Benz of North America, 695 F.2d 746 (3d Cir.1982). Similarly, the contempt power is rooted in the inherent power of the judiciary. E.g., Levine v. United States, 362 U.S. 610, 615, 80 S.Ct. 1038, 1042, 4 L.Ed.2d 989 (1960). Commentators have also noted occasions in which, under its inherent power, a court has disbarred, suspended from practice, or reprimanded attorneys for abuse of the judicial process. See Comment, Financial Penalties Imposed Directly Against Attorneys in Litigation Without Resort to the Contempt Power, 26 UCLA L.Rev. 855, 856 (1979); Comment, Involuntary Dismissal for Disobedience or Delay: The Plaintiff's Plight, 34 U.Chi.L.Rev. 922, 937 n. 96 (1967); accord Ex parte Wall, 107 U.S. 265, 288-89, 2 S.Ct. 569, 588-89, 27 L.Ed. 552 (1883); cf. Spevack v. Klein, 385 U.S. 511, 524, 87 S.Ct. 625, 633, 17 L.Ed.2d 574 (1967) (Harlan, J., dissenting) (courts "have endeavored to regulate the qualification and practice of lawyers, always in hope that this might better assure the integrity and evenhandedness of the administration of justice ... since the 17th century"). This Court has stated that in the absence of a statute, the taxation of costs in the appellate court "is a matter, inherently and necessarily within its general powers." See Island Development...