Opinion
No. Civ-01-1459-F
December 17, 2002
ORDER
I. Introduction
This matter comes before the court on the motion of the defendants Donna L. Anthony, Helen J. Gallaspy and Johnna Pollard (the "sisters") to recover attorneys' fees (docket entry no. 33, herein: "motion"). The motion has been fully briefed. A hearing on the motion was held on June 24, 2002. At the hearing, the court heard the testimony of witnesses and arguments of counsel.
The sisters seek to recover fees under 28 U.S.C. § 1927 and the court's inherent power (e.g., Chambers v. Nasco, Inc., 501 U.S. 32 (1991); Resolution Trust Corporation v. Dabney, 73 F.3d 262 (10th Cir. 1995)). Motion, at 22. Consequently, recovery of fees is sought from plaintiffs' counsel, Brian E. Powley, and from plaintiffs themselves. Motion, at 25. The amount sought is $37,186.00. Burnett Aff., ¶ 5 (docket entry no. 59). At the June 24 hearing, plaintiffs and Mr. Powley were represented by counsel. Tr. 4. Mr. Powley, through his counsel, has stipulated to the reasonableness of the amount sought to be shifted, but asserts that fee shifting under § 1927 is not appropriate. Tr. 26. Having carefully considered the motion and with the benefit of the presentations at the June 24 hearing, the court has determined that the motion should be granted in part and denied in part. The motion will be granted to the extent that it seeks recovery against Mr. Powley. The amount sought by the sisters will be assessed personally against Mr. Powley. The motion will be denied to the extent that it seeks to recover fees and costs from the plaintiffs.
References to "Tr." are to the transcript of the June 24, 2002 hearing. If the line is relevant, the line will also be indicated (e.g. 36/18). The transcript was filed on August 12, 2002.
II. Procedural History
A. The Complaint.
The complaint in this action was filed on September 17, 2001. It was signed by Mr. Powley on behalf of the plaintiffs. The complaint sets up seventeen "counts" against various combinations of defendants. Giving Mr. Powley the benefit of the doubt, the sisters are not included as defendants in six of the seventeen counts, as is discussed below.
The complaint states that the plaintiffs, as tenants, lived on the Cleveland County, Oklahoma property involved in this action at various times in the late 1990's and in early 2000. The defendants are alleged, without differentiation, to be "the owners and operators of the leased property." Complaint, ¶ 7. The allegations in the complaint, and the merits of the present motion, should be viewed in light of the fact that the sisters have never owned the property. The property, a farm, was owned by the sisters' parents. The sisters grew up on the property, but they have never owned it.
As to liability, the core factual allegations in the complaint state that the property was uninhabitable and dangerous as a result of the presence of "standing sewage [and] rat feces" in the house and because of the storage of "banned toxic pesticides" on the property. Id., ¶ 14. The banned pesticides are said to have consisted of "fifty-five gallon drums of DDT and five gallon cans of chlordane." Id., ¶ 19.
The headings for the counts pleaded in the complaint provide a general description of the counts:
COUNT I BREACH OF IMPLIED WARRANTY OF HABITABILITY IN RESIDENTIAL LEASE COUNT II BREACH OF COVENANT OF QUIET ENJOYMENT OF LEASED PREMISES COUNT III FAILURE TO PROTECT TENANTS AGAINST CRIMINAL ACTS COUNT IV DECEPTIVE TRADE PRACTICES STATUTES IN CONNECTION WITH REAL ESTATE TRANSACTIONS COURT V FRAUD COUNT VI RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT COUNT VII INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS COUNT VIII PERSONAL INJURY AND PROPERTY DAMAGE FROM PRODUCT LIABILITY COUNT IX PRIVATE NUISANCE COUNT X LIABILITY OF LESSOR FOR DANGERS UNKNOWN TO LESSEES COUNT XI NEGLIGENCE COUNT XII BY PRIVATE PARTIES UNDER RESOURCE CONSERVATION AND RECOVERY ACT [ 42 U.S.C. § 6972 (A)(1)(B)] TO ABATE DANGEROUS CONDITIONS COUNT XIII STRICT LIABILITY FOR ABNORMALLY DANGEROUS ACTIVITIES COUNT XIV NEGLIGENCE OF INDEPENDENT CONTRACTOR ENGAGED IN "INHERENTLY DANGEROUS" ACTIVITY COUNT XV NEGLIGENT SELECTION OF INDEPENDENT CONTRACTOR COUNT XVI RESPONDEAT SUPERIOR FOR TORTS COMMITTED BY AN AGENT COUNT XVII RESPONDEAT SUPERIOR FOR TORTS COMMITTED BY AN EMPLOYEEOn the basis of the text of the complaint (which is all a responding defendant can look to), the sisters were arguably not made defendants in Counts III, IV, and XIV — XVII. In summary, as to the counts leveled against the sisters, the sisters are alleged to have (as owners of the property, Complaint, ¶¶ 7, 10-12):
• Exposed the plaintiffs to standing sewage, rat feces and "banned toxic pesticides." Complaint, ¶ 14.
• Breached the covenant of quiet enjoyment. Count II.
• Intentionally and systematically utilized the property to defraud the plaintiffs. Complaint, ¶ 45.
• Purposely provided plaintiffs with uninhabitable conditions, causing personal injury. Complaint, ¶ 51.
• Engaged in a pattern of racketeering activity in violation of RICO. Complaint, ¶¶ 55-57.
• Intentionally inflicted emotional distress on plaintiffs by their willful, malicious, outrageous, deliberate and purposeful acts. Complaint, ¶ 63.
• Incurred liability for providing plaintiffs with a defective and unreasonably dangerous product. Complaint, ¶ 70.
• Maintained a private nuisance. Count IX.
• As lessors, exposed plaintiffs to dangerous contamination. Count X.
• Negligently violated their legal duties to plaintiffs, thus exposing them. to unreasonable risk of harm. Complaint, ¶ 82, 83.
• Contributed to the past handling, storage, transportation and disposal of toxic wastes including allegedly banned toxic pesticides (DDT and chlordane). ¶¶ 94-96.
• Incurred strict liability for abnormally dangerous activities consisting of the improper storage, transportation and disposal of the large quantity of banned toxic pesticides. Complaint, ¶¶ 111 and 112.
The court makes no determination as to whether chlordane has been "banned."
B. Post-Complaint Pleadings and Related Matters.
After this case was at issue, it was set for status conference. A joint status report, signed by Mr. Powley for the plaintiffs, was filed on January 28, 2002. The joint status report repeated the plaintiffs' blanket, undifferentiated allegations against the sisters. Joint Status Report, at 2-3, 7. At the status conference on February 1, 2002, the court entered an order requiring plaintiffs to file a RICO case statement if they desired to pursue their RICO claim. Order entered February 1,2002 (docket entry no. 31). The order was patterned after the order for RICO case statement which was commonly entered in this court during the surge of civil RICO litigation in the 1980's. Plaintiffs filed their RICO case statement, as required, on February 21, 2002 (docket entry no. 32). Mr. Powley signed the RICO statement. In the RICO case statement, plaintiffs stated that the sisters "are not alleged of [sic] misconduct" but that they "must have had some knowledge of the condition of the property and did benefit as beneficiaries under the trust from the alleged misconduct of" the other defendants. RICO statement, at 2. Later in the RICO statement, plaintiffs stated that the sisters "are believed to be generally passive instruments with some knowledge and acquiescence." Id. at 6. Finally, as relevant here, the RICO statement asserted that the defendants other than the sisters "were in complete control of the estate, property and the houses." Id. at 8.
With the RICO case statement in hand, the sisters filed their motion for summary judgment (and for attorneys fees) on April 3, 2002. In their response to the motion for summary judgment, filed April 29, 2002, plaintiffs stated that they "do not object to summary judgment being granted to the [sisters]" and that they had offered to dismiss all claims against the sisters with prejudice. Response, at 1. Shortly after plaintiffs filed this response, they filed a motion to dismiss their claims against the sisters with prejudice and to dismiss their claims against the other defendants without prejudice. Motion to dismiss, filed May 1, 2002. The sisters, in response to this motion, asserted that this was one of those unusual cases in which even a motion to dismiss with prejudice should be conditioned on payment of costs and fees. Response, filed May 13, 2002, at 8.
The court addressed the plaintiffs' motion to dismiss in its June 5, 2002 order. As relevant here, the June 5, 2002 order was granted, conditioned on plaintiffs' payment of taxable costs (as distinguished from attorney's fees) to the sisters. The court also stated that it would determine, at an evidentiary hearing, whether the dismissal should also be conditioned upon the payment of reasonable attorney's fees by the plaintiffs. Accordingly, the June 5 order set the matter for hearing on June 24, 2002 on the issue of the payment of attorney's fees to the sisters as an additional condition of dismissal with prejudice and on the separate issues presented by the defendants' motion for attorney's fees and costs. June 5, 2002 Order, at 8-9.
C. The Sisters' Fee Claim.
The merits of the sisters fee claim are, in essence, the inverse of the merits of the plaintiffs' claims against them — bearing in mind, of course, that in the framework of 28 U.S.C. § 1927 and the court's inherent power, mere factual deficiency will not suffice as a basis for fee shifting. The factual deficiency must be accompanied by circumstances establishing that serious litigation abuse has occurred.
The merits of the sisters' fee claim were thoroughly aired at the June 24 hearing. As noted above, the plaintiffs and Mr. Powley were represented by counsel at the hearing. Although helpful testimony was given by other witnesses, the court is influenced predominantly by the testimony of Mr. Powley.
In drafting the complaint, Mr. Powley concluded that the sisters were proper defendants (at least as to the RCRA and habitability claims) because "the owners are always proper defendants." Tr. 40, 44. The sisters have never owned the property. Mr. Powley would only go so far in his testimony as to characterize the sisters as beneficial owners of the property, allegedly with knowledge of the conditions complained of by the plaintiffs. Mr. Powley's testimony clearly establishes that the sisters were, at most, only beneficially interested in the property — and even at that, their beneficial interest, if it existed, was derived from a contested estate. Tr. 40, 41, 72. When Mr. Powley checked the land records, he concluded that "the [estate] case was still going on," and was well aware that, at most, the sisters had only a beneficial interest in the property. Tr. 72, 78. Although he at times feebly attempted to suggest otherwise (e.g., Tr. 40), when pressed, Mr. Powley stopped short of telling the court that the sisters had, at any time, owned the property. Tr. 78 ("Your Honor, no, not at all."). Any suggestion by Mr. Powley that the sisters ever owned the property, or that he ever had a basis for believing that the sisters owned the property, would be entirely untenable.
Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.
Even more telling is Mr. Powley's testimony about the condition of the property. Mr. Powley or his clients caused the property to be investigated by the Oklahoma Department of Environmental Quality. Tr. 50. He acknowledged that he was "intimately familiar" with the DEQ investigation of the allegations of hazardous waste disposal on the property. Id. He knew before he filed this action that the DEQ had sampled the pond water and found no contamination. Tr. 51. He knew before he filed this action that DEQ had found no contaminants in the channel catfish or in an alleged chemical burial site. Tr. 53; Ex. 29. The DEQ's November 3, 2000 letter on this subject could hardly have been more definitive: several specimens of channel catfish were analyzed for eight parameters, including DDT: "no contaminants were detected." Ex. 29. The DEQ also stated that "two previous analyses of the water in the pond (July 10, 2000 and July 28, 2000), as well as an excavation performed on October 3, 2000, on an alleged chemical burial site, have all been unsuccessful in uncovering evidence of contamination at this property." Id. The only sampling which yielded any report of positive results was the testing of the well water in December, 1999. The DEQ reported by letter dated December 16, 1999 that, although it did not find pesticides in the water, the bacteriological sample did not meet Safe Drinking Water Act standards. The letter went on to note that, because the Safe Drinking Water Act applies only to public water supplies, this would not be treated as an enforceable matter. Finally, the DEQ recommended that plaintiff Jana Meek not drink the water until the well was disinfected and a safe water sample obtained. Exhibit 21. Defendant Beckett, for defendant Arvest Bank, promptly notified the Meeks that they would be no longer bound by their lease. Exhibit 22. of course, the record in this action is devoid of any indication that the sisters had any connection with the property which would make them responsible for the quality of the well water or that they had any knowledge of any deficiency in the quality of the well water.
The court received the sisters' summary judgment exhibits into evidence at the June 24 hearing without objection. The exhibit references in this order refer to the tab numbers on that appendix of exhibits, filed on April 3, 2002 (docket entry no. 34).
At this point, Ed Masry, of Erin Brockovich fame, lost interest. Mr. Powley had tried to get Mr. Masry in tow in this case. However, according to Mr Powley, "[a]fter the testing of the ponds came back negative, he dropped out." Tr. 64.
Mr. Powley also had his own environmental testing done on the property. At Mr. Powley's behest, sampling and testing was done on the property by Techrad, a local environmental testing firm. Techrad's testing revealed nothing above background levels of contaminants. Tr. 57-58. At the time he drafted the complaint and filed this action, Mr. Powley had in hand no analytical results indicating the presence of DDT or chlordane on the property. Tr. 70-71.
Armed with comprehensive environmental sampling results which were negative in every respect save one, and with no factual basis for asserting a claim against the sisters, Mr. Powley proceeded to draft his pleading.
See, e.g., Ex. 25.
As to jurisdiction, Mr. Powley, asserted federal question and diversity. Complaint, ¶ 1. He then alleged that all of the plaintiffs and most of the defendants were from Oklahoma. Id., ¶ 1. On this basis, he concluded that diversity of citizenship existed. Tr. 72.
In paragraph 26 of the complaint, Mr. Powley alleged that "[t]he Defendants substantially interfered with the Plaintiff's [sic] use and enjoyment of the leased premises by purposely making the properties uninhabitable." At the hearing, he explained this allegation:
Q: [by the court]: At the time you drafted that, what information did you have in hand indicating that the sisters had done any such thing?
A: Oh, no, I didn't think the sisters had done that at all.
Tr. 73.
The RICO claim ( 18 U.S.C. § 1961 et. seq.) is pleaded in Count VI. The RICO claim is leveled at the "Defendants," with no differentiation at all among the defendants or categories of defendants. Thus, the sisters are alleged to be "persons," within the meaning of 18 U.S.C. § 1961, who engaged in a pattern of racketeering activity. Complaint, ¶¶ 55-57.
Mr. Powley explained this allegation as follows:
Q: [by the court]: What specifically did these sisters do to engage in this pattern of racketeering activity?
A: Again, I didn't mean for that to apply to the sisters.
. . . .
Q: At the time you filed this complaint, did you have a belief that these sisters, in fact, had engaged in anything that could be characterized as a pattern of racketeering activity?
A: No. I was saying that the fraud was basically by Torossian and Arvest Bank and therefore that's what the RICO is about, too.
Tr. 75.
In Count VII, the defendants are alleged, without differentiation, to have acted "willfully, maliciously, outrageously, deliberately and purposely with the intention to inflict emotional distress upon the plaintiffs." Complaint, ¶ 63. At the hearing, Mr. Powley explained this allegation as follows:
Q: [by the court]: What malicious, outrageous, and deliberate acts of these sisters did you rely upon in making that allegation against them?
A: Again, I was not referring to the sisters when I said that.
Tr. 75-76.
Count VIII of the complaint asserts a product liability claim against all of the defendants. Complaint, ¶ 70. Mr. Powley was likewise unable to provide any basis for that allegation as against the sisters. Tr. 76-77. The same is true of Count X, where the sisters are sued as lessors. Complaint, ¶ 79. Mr. Powley knew nothing about the sisters which would have subjected them to the duties of a landlord. Tr. 77.
As has been noted, the status and scheduling conference was held on February 1, 2002. On that day, the sisters' counsel offered to take a dismissal of plaintiffs' baseless action against them with no fees being payable. Tr. 79. Plaintiffs refused that offer. Id. The filing of the RICO statement and the summary judgment and attorney's fee papers followed.
III. Legal Standards
A. Liability Under 28 U.S.C. § 1927.
Section 1927 of Title 28 states as follows:
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.Dreiling v. Peugeot Motors of America, Inc., 768 F.2d 1159 (10th Cir. 1985) provides a good beginning point for analysis of the Tenth Circuit's guidance with respect to application of § 1927. InDreiling, the Court of Appeals affirmed the district court's award of fees against an attorney under § 1927. The Court of Appeals noted the district court's finding that the action had been commenced and continued with no factual or legal basis. Id. at 1165. The Court of Appeals agreed with the district court that it made no difference that the plaintiffs had thought better of their lawsuit and dismissed it. Id. at 1166. The fee award which was affirmed by the Court of Appeals apparently encompassed all of the fees and costs incurred in defending the ill-founded action. As to the substantive basis for the award, the court held that an award may be made under § 1927 if(i) the actions of the attorney multiply the proceedings and (ii) the attorney's actions are vexatious and unreasonable. Id. at 1165. The court noted, as a cautionary matter, that the power to make an award under § 1927 should be used only in instances evidencing a serious disregard for the orderly process of justice. Id.
The standard to be applied by the district court under § 1927 was further explained by the Court of Appeals in Braley v. Campbell, 832 F.2d 1504 (10th Cir. 1987). The Court of Appeals began its discussion by quoting with approval the following passage from In re TCI Ltd., 769 F.2d 441, 445 (7th Cir. 1985):
"by acting recklessly or with indifference to the law, as well as by acting in the teeth of what he knows to be the law. . . . A lawyer's reckless indifference to the law may impose substantial costs on the adverse party. Section 1927 permits a court to insist that the attorney bear the costs of his own lack of care."832 F.2d at 1511. Notably, the Court of Appeals explicitly rejected the contention that an award of fees under § 1927 requires a finding of subjective bad faith. In so holding, the Court of Appeals stated that: "Subjective bad faith ought not to be an infinitely expansive safe harbor to protect an attorney who brings an action that a competent attorney could not under any conceivable justification reasonably believe not frivolous." Id. at 1512. Accordingly, the Court of Appeals concluded that the appropriate standard under § 1927 is that excess costs, expenses or attorney's fees are imposable against an attorney personally for conduct that, viewed objectively, manifests either intentional or reckless disregard of the attorney's duties to the court. Id. at 1512. The district court must, of course, identify the basis for the assessment of fees and, under § 1927, must identify the extent of the multiplicity resulting from the attorney's behavior and the costs resulting therefrom. Id. at 1513.
The objective standard which was applied in Braley was reaffirmed inMiera v. Dairyland Ins. Co., 143 F.3d 1337 (10th Cir. 1998). In Miera, the court noted that § 1927 may be applied either "when the entire course of the proceedings was unwarranted" or when only certain portions of the proceedings were unjustified and increased the costs of the litigation. Id. at 1342.
The collective effect of the Tenth Circuit's cases under § 1927 is that the threshold for making an award of fees is high. Section 1927 is assuredly not a mere "prevailing party" fee shifting provision. Serious misconduct must be found, be it intentional or unintentional. At the same time, the court has recognized that it is not, and in our system cannot be, a defense that the attorney had a pure heart but an empty head, both of which Mr. Powley argues he had in this case. Braley at 1512.
As is discussed below, the court does not, in any event, conclude that, as against the sisters, the complaint in this case was filed in good faith. The utter absence of a factual basis for suing the sisters precludes any such finding.
B. Liability Under the Court's Inherent Power.
In Chambers v. Nasco, Inc., 501 U.S. 32 (1991), the Supreme Court made it clear that the district court has the inherent power, independent of any statute or rule, to impose sanctions for serious litigation abuse. The Court, in Chambers, noted that the various statutes and rules which might be applied to remedy litigation abuse reach "only certain individuals or conduct," while the inherent power "extends to a full range of litigation abuses." Id. at 46. The inherent power does not have only interstitial application, however. The power can "be invoked even if procedural rules exist which sanction the same conduct." Id. at 49.
Use of the court's inherent power is particularly appropriate where the court would otherwise be required to focus on "discrete occurrences" even though the litigation was abusive in its entirety. Id. at 51. Applying these principles to the facts before it, the Supreme Court concluded that the district court properly shifted attorney's fees for the entire litigation. Id. at 56-57.
Five years after the Chambers decision, the Supreme Court added a note of caution in Degen v. United States, 517 U.S. 820 (1996). The Court noted that the inherent power doctrine was an exercise by the judicial branch in definition of its own authority. Id. at 823. Accordingly, the Court cautioned that a power such as this, the contours of which are defined without the benefit of the usual checks and balances, must be "delimited with care" and used with restraint. Id.
In the wake of Chambers v. Nasco, it is now clear in our circuit that the inherent power may be used by the court "to impose a variety of sanctions to regulate its docket, promote judicial efficiency and deter frivolous filings." Resolution Trust Corp. v. Dabney, 73 F.3d 262, 267 (10th Cir. 1995).
The court is satisfied that, in an appropriate case, 28 U.S.C. § 1927 authorizes the shifting of fees attributable to the entire course of the litigation. Miera, 143 F.3d at 1342. However, lest there be any doubt as to the scope of relief available under § 1927, the doctrine established by Chambers and its progeny is equal to the task at hand.
IV. Analysis and Conclusions
The controlling legal principles are discussed above. The application of those principles to the truly exceptional facts of this case leads the court to the conclusion that the legal expense incurred by the sisters in successfully defending this action simply must not ultimately be borne by the sisters; that expense must be borne by Mr. Powley.
One of Mr. Powley's primary arguments against fee shifting is that he is guilty of nothing more than ignorance and legal ineptitude. He pleaded ignorance and ineptitude numerous times during the June 24 hearing. Tr. 36/24, 37/2, 38/18, 57/16, 62/15, 65/19, 70/20-23, 72/12, 73/6, 73/24, 75/6, 76/19, 78/14. Analyzing the matter either under § 1927 or the court's inherent power, ignorance is not a defense. Moreover, Mr. Powley's assertion of legal ignorance and ineptitude does not save him from the fact that, as against the sisters at least, this action was as factually baseless as it was legally baseless. The record establishes without doubt that, regardless of the depth and breadth of Mr. Powley's professed legal ignorance, he was well aware, when he filed the complaint in this case, that he simply had no factual case against the sisters. He had in hand no basis, because there was in fact no basis, for any allegation that the sisters had any connection with the property which would impose upon them the duties of a landlord. Aside from that, save for the bacterial content of the well water, his sensational allegations about contamination with such substances as DDT and chlordane were simply baseless.
Powley also, at times, professed to have special expertise (e.g. Tr, 36/18; 39/13). The court does not focus on those instances, however, because, if they had any effect on the issues at hand, they would only weaken Mr. Powley's contentions based on professed ignorance.
Mr. Powley's secondary defense, after pleading legal ignorance and ineptitude, is that fees should not be shifted where, as here, he offered to dismiss the case. This argument is likewise unavailing. Some cases start out on a factually plausible basis, only to crumble under the weight of evidence which was not available, or which could not have been fully evaluated, at the outset of the litigation. In that kind of a case, the offended defendant's rejection of a dismissal on a "walk away" basis might deserve close scrutiny. This is not that case. As against the sisters, this case was a sham from the day it was filed. There was never any arguable claim against the sisters. This is, for that reason, that rare case in which it was entirely reasonable for the sisters to reject a dismissal unaccompanied by recompense for the cost of defending the claims Mr. Powley elected to plead against them. In short, while many civil actions ultimately fail on their merits for reasons which give the defendant no cause to be indignant that he was sued in the first place, this is a case in which, as a matter of simple justice, the fee meter started ticking against Mr. Powley from the day the lawsuit was filed.
At the risk of undermining the important point that all of the claims asserted against the sisters were baseless, it should be noted that reckless allegations of racketeering are especially deserving of censure. See, e.g., Byrne v. Nezhat, 261 F.3d 1075, 1115 (11th Cir. 2001); Ryan v. Clemente, 901 F.2d 177, 180-181 (1st Cir. 1990).
The lack of viable claims against the sisters was compounded by the undifferentiated, blanket allegations leveled against them in the complaint, which allegations were incorporated from one count to the next. "In drafting a complaint this way, the pleader inevitably incorporates into a count factual allegations, and even defendants, that are not germane to the cause of action purportedly stated in that count."Byrne v. Nezhat, 261 F.3d 1075, 1107 (11th Cir. 2001).
In dozens of places in the complaint, allegations are made against "the Defendants." This recklessly inclusive approach to pleading is inherently vexatious and inevitably "multiplies the proceedings," 28 U.S.C. § 1927, because it thrusts upon the defendant the undeserved task of marshaling the evidence necessary to negative, at the summary judgment stage or otherwise, numerous allegations which a responsible pleader, conscious of the need (and professional obligation) to differentiate between multiple defendants when pleading multiple claims, would not have made in the first instance. Put simply, "shotgun pleadings wreak havoc on the judicial system." Byrne at 1130.
As is discussed above, the court is required not only to determine that the litigation was abusive, but also to determine the extent to which the litigation was abusive (and, correspondingly, the extent to which the cost of defense should be shifted). That task is simplified in the case at bar by Mr. Powley's stipulation that the entire amount sought, $37,186.00, is reasonable. However, lest it be thought that this stipulation extends only to the reasonableness of the amount of the fee as an abstract proposition, the court finds that shifting of this entire amount is not only appropriate but required on the facts of this case. As has been made clear, this action was, as against the sisters, devoid of any factual or legal foundation from its very inception. Thus, we do not have here a situation in which sporadic procedural abuses occurred during the course of the prosecution of an arguably meritorious claim. The very filing of this action, as against the sisters, amounted to an inexcusable abuse of our civil justice system. The sisters' entire cost of defense should be shifted to Mr. Powley. Although, in a proper case, the sins of the lawyer may be visited upon the client, e.g., Gripe v. City of Enid, ___ F.3d ___ 2002 WL 31716630 (10th Cir. 2002), the court has concluded that this is not such a case. No fees will be assessed against the plaintiffs.
Accordingly, attorney's fees and costs in the amount of $37,186.00 shall be assessed against Brian E. Powley, personally. So much of this sum as may remain unpaid and unsuperseded 30 days after entry of this order shall, on appropriate motion, be reduced to judgment.
In light of the court's determination of the request for attorney's fees pursuant to § 1927 and the court's inherent power, the sisters' objection to plaintiffs' motion to dismiss with prejudice (docket entry no. 46, filed May 13, 2002) is DENIED to the extent that the sisters seek dismissal conditioned on payment of attorneys' fees. As the court has previously determined, the plaintiffs' motion to dismiss their claims against the sisters, filed May 1, 2002 (docket entry no. 39) is GRANTED, conditioned on payment of taxable costs to the sisters.
The sisters' motion for summary judgment, filed April 3, 2002 (docket entry no. 33) is STRICKEN as moot. The sisters' motion for attorney's fees (filed April 3, 2002 and combined with their motion for summary judgment) is GRANTED [N PART AND DENIED IN PART, as set forth above.