____________________ ____________________
No. 91-1657 No. 91-1657
EDUARDO FERRER BOLIVAR, EDUARDO FERRER BOLIVAR,
Plaintiff, Appellant, Plaintiff, Appellant,
v. v.
HERBERT L. POCKLINGTON, HERBERT L. POCKLINGTON,
Defendant, Appellee. Defendant, Appellee.
____________________ ____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge] [Hon. Juan M. Perez-Gimenez, U.S. District Judge] ___________________
____________________ ____________________
Before Before
Selya, Circuit Judge, Selya, Circuit Judge, _____________
Feinberg,* Senior Circuit Judge, Feinberg,* Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. and Cyr, Circuit Judge. _____________
____________________ ____________________
Michael J. Rovell with whom Lisa I. Fair, Robert E. Bull and Law Michael J. Rovell with whom Lisa I. Fair, Robert E. Bull and Law _________________ ____________ ______________ ___
Offices of Michael J. Rovell were on brief for appellants. Offices of Michael J. Rovell were on brief for appellants. ____________________________
Rossell Barrios-Amy with whom Jaime E. Toro-Monserrate and Rossell Barrios-Amy with whom Jaime E. Toro-Monserrate and ____________________ __________________________
McConnell, Valdes, Kelley, Sifre, Griggs & Ruiz-Suria were on brief McConnell, Valdes, Kelley, Sifre, Griggs & Ruiz-Suria were on brief _______________________________________________________
for appellee. for appellee.
____________________ ____________________
____________________ ____________________
*Of the Second Circuit, sitting by designation. *Of the Second Circuit, sitting by designation.
CYR, Circuit Judge. Shortly after appellant Eduardo CYR, Circuit Judge. ______________
Ferrer Bolivar ("Ferrer") instituted the present action against
appellee Herbert Pocklington in March 1990, Pocklington moved to
dismiss the complaint, and for the imposition of sanctions under
Fed. R. Civ. P. 11 and 28 U.S.C. 1927.1 Ferrer responded with
a timely notice of voluntary dismissal under Fed. R. Civ. P.
41(a)(1)(i).2 After the district court, on November 1, had
____________________
1The Pocklington motion was founded on Fed. R. Civ. P.
41(a)(1)(i), see infra note 2, the so-called "two-dismissal" ___ _____
rule, as the claims Ferrer asserted against Pocklington in the
present action were essentially the same as those voluntarily
dismissed in an earlier Puerto Rico Superior Court action brought
by Ferrer and two corporate entities entirely owned and con-
trolled by Ferrer. Moreover, the same two corporate entities,
along with a third corporation likewise controlled by Ferrer,
previously had filed a federal court action asserting the same
claims against several companies controlled by Pocklington. The
latter action was twice ordered dismissed by the federal district
court on abstention grounds. Villa Marina Yacht Sales, Inc. v. _______________________________
Hatteras Yachts, 915 F.2d 7 (1st Cir. 1990) [hereinafter: "Villa _______________ _____
Marina I"], on remand, 762 F. Supp 1007 (D. P.R.), aff'd, 947 ________ __ ______ _____
F.2d 529 (1st Cir. 1991); see also infra note 8. The present ___ ____ _____
action was filed two weeks after the first district court
dismissal.
2The notice purportedly dismissed the present action
"without prejudice." Rule 41(a)(1)(i) states, however, in
pertinent part:
Rule 41. Dismissal of Actions Rule 41. Dismissal of Actions
(a) Voluntary Dismissal: Effect Thereof. (a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; by Stipulation. . . . [A]n action (1) By Plaintiff; by Stipulation _____________________________
may be dismissed by the plaintiff without order of
court (i) by filing a notice of dismissal at any time
before service by the adverse party of an answer or of
a motion for summary judgment, whichever first occurs .
. . . [A] notice of dismissal operates as an _ ______ __ _________ ________ __ __
adjudication upon the merits when filed by a plaintiff ____________ ____ ___ ______ ____ _____ __ _ _________
who has once dismissed in any court of the United ___ ___ ____ _________ __ ___ _____ __ ___ ______
States or of any state an action based on or including ______ __ __ ___ _____ __ ______ _____ __ __ _________
2
endorsed "Granted and so ordered" on the notice of dismissal,
Pocklington interposed opposition to a dismissal "without pre-
judice" and renewed his request for sanctions under section 1927.
The judgment purportedly dismissing the case "without prejudice"
was entered in the district court docket on November 20.
On December 19, Pocklington filed an unlabelled motion
requesting that the action be dismissed "with prejudice,"
pursuant to the "two-dismissal" rule, see supra note 2, once ___ _____
again renewing the request for sanctions under section 1927. In
its January 28, 1991 opinion and order, the district court: (1)
treated the unlabelled motion as one for relief from judgment,
based on "mistake, inadvertence, surprise, or excusable neglect,"
under Fed. R. Civ. P. 60(b)(1); (2) opined that the action should
have been dismissed "with prejudice"; (3) directed that the
judgment entered November 20 be vacated; and (4) imposed
sanctions on Ferrer and his attorneys [collectively:
"appellants"] under Fed. R. Civ. P. 11 and section 1927. Ferrer ______
Bolivar v. Pocklington, 137 F.R.D. 202, 204-06 (D. P.R. 1991). _______ ___________
On February 11, 1991, Ferrer filed a motion to vacate the
January 28 order, which the district court denied. Ferrer
appealed.3
____________________
the same claim. ___ ____ _____
Fed. R. Civ. P. 41(a)(1) (emphasis added).
3The initial notice of appeal did not designate the
appellant-attorneys, Michael J. Rovell, Carlos G. Latimer, and
Gerardo A. Carlo, as parties to the appeal. After we remanded
for the entry of final judgment pursuant to Fed. R. Civ. P. 54(a)
and 58, see Fiore v. Washington County Community Mental Health ___ _____ ___________________________________________
3
____________________
Ctr., 960 F.2d 229 (1st Cir. 1991) (en banc), appellant- ____
attorneys, as well as Ferrer, filed a timely notice of appeal
from the final judgment entered on April 7, 1992.
4
A. Dismissal A. Dismissal _________
At the root of the problem is whether the district
court had jurisdiction to impose sanctions against appellants
following the entry of judgment on November 20 dismissing the
case "without prejudice." Although the parties have concentrated
their attention on the timeliness of Pocklington's unlabelled
December 19 request that the action be dismissed "with
prejudice,"4 we conclude that the Opinion and Order of
January 28 neither altered the judgment entered on November 20
dismissing the case "without prejudice," nor effected a dismissal
of the action "with prejudice."5 The only directive in the
____________________
4Coming as it did more than ten days after judgment was
entered by the clerk on November 20, the December 19 motion was
not timely under Rule 59(e). See Fed. R. Civ. P. 59(e) ("A ___
motion to alter or amend the judgment shall be served not later
than 10 days after entry of the judgment."). Accordingly,
appellants insist that the district court was without
jurisdiction to reconsider the judgment entered on November 20.
5In its "OPINION AND ORDER" of January 28, the district
court ruled that Ferrer's notice of voluntary dismissal
represented his second voluntary dismissal of an action including
the same claims against Pocklington. Ferrer Bolivar, 137 F.R.D. ______________
at 203-04. The court concluded therefore that, even though the
notice of dismissal purported to dismiss the action "without
prejudice," it nonetheless operated as an adjudication upon the
merits under the "two-dismissal" rule in Fed. R. Civ. P.
41(a)(1). Id. at 204. See supra note 2. Nevertheless, the ___ ___ _____
January 28 opinion and order did not effect a dismissal of the
action "with prejudice" or vacate the judgment of dismissal
"without prejudice" entered on November 20. First, the "separate
document" requirement was not met. See Fed R. Civ. P. 58 ("Every ___
judgment shall be set forth on a separate document. A judgment ________
is effective only when so set forth and when entered as provided __ _________ ____ ____ __ ___ _____ ___ ____ _______
in Rule 79(a).") (emphasis added); see also Fiore, 960 F.2d at ___ ____ _____
237. Although the district court order entered on remand was a
"separate document," it did not take effect until April 7, 1992,
the date of its entry, as plainly provided in Fed. R. Civ. P. 58
and 79(a). Second, the January 30 docket entry omitted any
mention of an order vacating or altering the November 20
5
Opinion and Order of January 28 which was duly entered in the
docket on January 30, 1991, ordered Ferrer and his attorneys,
jointly and severally, to pay Pocklington $5,000 in attorney fees
as a sanction for their Rule 11 and section 1927 transgres-
sions.6 We turn then to the only two questions now before us:
(1) whether the notice of dismissal "without prejudice" deprived
the district court of jurisdiction to impose sanctions, and (2)
____________________
judgment, or dismissing the action "with prejudice." See Fed. R. ___
Civ. P. 79(a) ("civil docket" entries "shall be brief but shall _____
show the . . . substance of each order or judgment of the court ____ ___ _________ __ ____ _____ __ ________
. . . .") (emphasis added). The January 30 docket entry,
however, reads:
OPINION/ORDER (PG) Directing pltf and pltf's attys to
jointly and severally pay the amt of $5,000.00 as
reasonable atty's fees, which shall be payable
within 30 days of the filing of this order.
sc/pts (EOD 1-30-91)
Nevertheless, in light of the "two-dismissal" rule, see Fed. R. ___
Civ. P. 41(a)(1), it is irrelevant whether the district court had
jurisdiction to alter the November 20 judgment. Accordingly, the
ministerial entry on the district court docket directing
dismissal of the action "with prejudice" pursuant to the January
28 opinion and order is all that remains to be done.
6We reject appellants' suggestion that the district court
previously had declined to impose sanctions. Its November 1,
1990, endorsement on the notice of dismissal purported to do no
more than dismiss the case "without prejudice." As the notice of
dismissal said nothing about sanctions, the court's endorsement
on the motion did no more. Similarly, the January 28 opinion and
order in no way linked the November endorsement with the decision
to impose sanctions. See Ferrer Bolivar, 137 F.R.D. at 204, 205 ___ ______________
(noting that the November 20 entry of judgment was unnecessary ___________
and that the dismissal did not deprive the court of jurisdiction
over the motion for sanctions). See also Cooter & Gell v. ___ ____ ______________
Hartmarx Corp., 496 U.S. 384, 396 (1990) (Imposition of rule 11 ______________
sanctions following voluntary dismissal "does not deprive the
plaintiff of his right . . . to dismiss an action without
prejudice.").
6
whether the determination to impose sanctions constituted an
abuse of discretion.
7
B. Sanctions B. Sanctions _________
1. Jurisdiction 1. Jurisdiction ____________
The Supreme Court definitively answered the first
question in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393-98 _____________ ______________
(1990), which held that a voluntary dismissal under Rule
41(a)(1)(i) does not divest the district court of jurisdiction to
impose sanctions under Rule 11. See also Muthig v. Brant Point ___ ____ ______ ___________
Nantucket, Inc., 838 F.2d 600, 603-04 (1st Cir. 1988) (Rule _______________
41(a)(1)(ii) dismissal). Moreover, as between the imposition of
section 1927 sanctions and Rule 11 sanctions, we see no warrant
for drawing the jurisdictional distinction urged by appellants,
particularly since the initial motion for sanctions was presented
in timely fashion. See id. at 604 (Rule 11 sanctions should be ___ ___
filed "within a reasonable time" after voluntary dismissal).
The pendency of a motion for section 1927 sanctions
likewise presents a "collateral issue" appropriate for resolution
once the court has addressed the merits. See Cooter & Gell, 496 ___ _____________
U.S. at 395 ("It is well established that a federal court may
consider collateral issues after an action is no longer
pending."); id. at 396 (Imposition of Rule 11 sanctions "requires ___
the determination of a collateral issue: whether the attorney _______ ___ ________
has abused the judicial process, and, if so, what sanction would ___ ______ ___ ________ _______
be appropriate.") (emphasis added). In our view, the notice of
voluntary dismissal could no more deprive the district court of
jurisdiction to determine and sanction an "unreasonabl[e]" and
"vexatious[]" multiplication of proceedings under 28 U.S.C.
8
1927 than it could "eliminate [a] rule 11 violation." Cooter & ________
Gell, 496 U.S. at 398; see Szabo Food Serv., Inc. v. Canteen ____ ___ _______________________ _______
Corp., 823 F.2d 1073, 1079 (7th Cir. 1987) ("The obligation to _____
answer for one's act accompanies the act; a lawyer cannot absolve
himself of responsibility by dismissing his client's suit.")
(Rule 11); see also Muthig, 838 F.2d at 604 (expressing agreement ___ ____ ______
with Seventh Circuit rule in Szabo). The notice of voluntary _____
dismissal notwithstanding, the district court possessed the
requisite jurisdiction to impose sanctions under Rule 11 and
section 1927.
2. Merits 2. Merits ______
The determination to impose sanctions, whether under
Rule 11 or section 1927, is reviewed for abuse of discretion.7
Cooter & Gell, 496 U.S. at 399-405 (Rule 11); Navarro-Ayala v. ______________ _____________
Nunez, No. 91-2084, slip op. at 6 (1st Cir. July 13, 1992) (Rule _____
11); Cruz v. Savage, 896 F.2d 626, 632 (1st Cir. 1990) (section ____ ______
1927) (citing cases). There was no abuse of discretion in the
present case.
Ferrer was the president and sole shareholder of the
corporate entities [collectively: "Villa Marina"] which
initiated a diversity suit against Pocklington in the United
States District Court for the District of Puerto Rico in May
1989, alleging violations of the Puerto Rico Dealer's Act, breach
of an exclusive dealer contract, and tortious interference with
____________________
7The amount of the $5,000 fee assessment is not challenged.
9
contract rights and with prospective business advantage. On
February 14, 1990, the district court (Gierbolini, J.) dismissed
the Villa Marina action under the Colorado River doctrine, see ______________ ___
Colorado River Water Conservation Dist. v. United States, 424 _________________________________________ ______________
U.S. 800 (1976), in light of the pendency of another action
between the same parties in the Puerto Rico Superior Court.
Shortly after the first dismissal of the Villa Marina
action, see supra note 1, the present action was brought by ___ _____
Ferrer, in his individual capacity, based on the same claims
asserted in the Villa Marina complaint dismissed by Judge
Gierbolini. The civil cover sheet accompanying the Ferrer
complaint neglected to note the pendency of the Villa Marina
action, which remained on the district court docket pending Villa
Marina's appeal from the Colorado River dismissal order. See ______________ ___
supra note 1. As a reasonably foreseeable consequence, the _____
present action was not assigned to Judge Gierbolini, but to Chief
Judge Perez-Gimenez, who later became informed of the cir-
cumstances surrounding the filing of the Ferrer complaint.
a. Rule 11 Sanctions a. Rule 11 Sanctions _________________
The district court (Perez-Gimenez, C.J.) found, inter _____
alia, that the complaint asserted causes of action belonging to ____
Villa Marina, to which Ferrer had no individual right. Ferrer ______
Bolivar, 137 F.R.D. at 205. The court concluded that Ferrer's _______
attorneys "should have known that filing this action was not
justified by existing law and that it unnecessarily multiplied
10
proceedings . . . ."8 Characterizing Ferrer's filing of the
present action as "forum shopping," the district court
appropriately observed that "Ferrer cannot disregard the
existence of Villa Marina when it is expedient to do so in order
to circumvent a previous dismissal . . . ." Id. at 205, 206 ___
(Ferrer "overstep[ped] the bounds of reasonableness to the point
of vexation."). The court accordingly determined that sanctions
were appropriate under Rule 11 and section 1927.
Although appellants insist that the Ferrer complaint
was warranted by existing law and in accord with the dictates of
Rule 11, there is no substance to their plea. Appellants do not
challenge the legal conclusion that Ferrer, as sole shareholder,
had no legal right to ignore the Villa Marina corporate entities.
See In re Dein Host, Inc., 835 F.2d 402, 405-06 (1st Cir. 1987) ___ ______________________
("Even a sole shareholder acquires no personal cause of action
because of an injury . . . to the corporation."). Nor do appel-
lants represent that it would have been objectively reasonable
for Ferrer to file a complaint, in his individual capacity,
demanding redress for any injury sustained by the Villa Marina
____________________
8Not only are all three claims asserted in the Ferrer
complaint identical to the three nonstatutory claims asserted in
the Villa Marina complaint, but the Ferrer complaint parrots the
Villa Marina complaint almost verbatim. Except for minor wording
changes, the drafters of the Ferrer complaint did little more
than change the parties' names. For example, whereas the Villa
Marina complaint alleges that "Villa Marina has suffered actual
damages in that it has been prevented from promoting Hatteras
products" ( 43, breach of contract claim), the Ferrer complaint
alleges that "Ferrer has suffered actual damages because he has
been prevented from promoting Hatteras products" ( 34, breach of
contract claim).
11
corporate entities. See Lancellotti v. Fay, 909 F.2d 15, 17-19 ___ ___________ ___
(1st Cir. 1990) (Rule 11 contemplates a judicial assessment of
the objective reasonableness of the signatory's inquiry into law
and facts). Rather, appellants argue that various allegations in
the complaint suggest "that [Pocklington's] wrongful conduct was
directed toward [Ferrer]."9 Although the complaint includes
references to harm sustained by Ferrer, all stem from his status
as Villa Marina's sole shareholder, as the complaint itself makes
patently clear.10 All three causes of action in the complaint
belonged to Villa Marina. The district court therefore rightly
recognized the instant action as an attempt to appropriate to
Ferrer's own use causes of action belonging to the Villa Marina
corporate entities.11
____________________
9Counsel represented at oral argument that appellants
believed in good faith that Ferrer had standing to bring these
claims. Bad faith is "not a sine qua non to a Rule 11 impost." ____ ___ ___
Lancellotti, 909 F.2d at 19. As Lancellotti explained, sanctions ___________ ___________
are appropriate if the standard of objective reasonableness has
not been met. Id. at 18-19. See also infra part B.2.b. ___ ___ ____ _____
10The complaint asserts three causes of action: Count I,
35 (breach of contract) ("Since Ferrer is the sole shareholder of
Villa Marina, he is the one who suffers these damages."); Count
II, 53 (tortious interference with contract) ("As the sole
shareholder of Villa Marina, Ferrer suffered the actual harm.");
Count III, 60 (tortious interference with prospective business
advantage) ("Since Ferrer is the sole shareholder of Villa
Marina, he suffered the economic harm caused by the actions of
Pocklington.").
11Appellants' other arguments in opposition to Rule 11
sanctions warrant little discussion. Pointing out that Pockling-
ton's second and third motions for sanctions did not invoke Rule
11, Ferrer contends that Pocklington tacitly conceded that Rule
11 sanctions were inappropriate. We note, however, not only that
Pocklington's first motion (yet pending on January 28, 1991)
invoked Rule 11, but that the district court, "upon its own ____ ___ ___
initiative, shall impose . . . an appropriate [Rule 11] sanction __________ _____ ______
12
Since there was no objectively reasonable inquiry into
whether the complaint was warranted under existing law, see ___
Lancellotti, 909 F.2d at 19, the district court did not abuse its ___________
discretion in imposing Rule 11 sanctions against Ferrer and
appellant-attorney Gerardo A. Carlo.12
b. Section 1927 Sanctions b. Section 1927 Sanctions ______________________
____________________
. . . ." Fed. R. Civ. P. 11 (emphasis added).
Affidavits filed by the appellant-attorneys in support of
the so-called Rule 59(e) motion attest that Chief Judge Perez-
Gimenez stated at a status conference that sanctions would not be
imposed in light of Villa Marina I, which reversed the initial _______________
Colorado River dismissal order. See supra note 1. Appellants _______________ ___ _____
conveniently disregard the context in which these remarks were
made. The status conference minutes reflect: "After listening
to the parties the Court states that he believes this case should
be consolidated with [the Villa Marina case] which is assigned to ____________
Hon. Gilberto Gierbolini. The parties will file a motion to
consolidate which will be referred to Judge Gierbolini."
Furthermore, even the attorneys' affidavits attest to the fact
that the court had indicated its preparedness to dismiss the
present action and impose sanctions prior to the decision in _____ __
Villa Marina I. ______________
Finally, appellants advance two new contentions on appeal in
their effort to stave off Rule 11 sanctions. Both are utterly
without merit. First, we flatly reject appellants' suggestion
that Judge Gierbolini's unrelated reference to Ferrer's absence
as a named party to the first federal court action somehow
invited the second federal action, which was unjustifiably based
on twice-dismissed causes of action belonging to the Villa Marina
corporate entities. Second, appellants frivolously and irre-
levantly assert that Pocklington's employer, Hatteras Yachts, _____________ ________
Inc., "did not claim in the [Puerto Rico Superior Court] action ________ _____ ______
that Ferrer lacked standing." (Emphasis added.)
12Appellant Carlo is the only attorney who signed the Ferrer
complaint. Appellants correctly point out that Rule 11 sanctions
cannot be imposed against counsel who have not signed the
offending document. The Rule 11 sanctions are enforceable
against Ferrer, however, by virtue of the fact that he signed the
verified complaint. See Business Guides, Inc. v. Chromatic ___ _______________________ _________
Communications Enters., Inc., 111 S. Ct. 922, 928-33 (1991); _____________________________
Navarro-Ayala, slip op. at 6-7. _____________
13
The appellant-attorneys assert no sound basis for
concluding that the district court abused its discretion in
determining their conduct "unreasonable" and "vexatious" within
the meaning of 28 U.S.C. 1927.13 Their argument that Ferrer
was the real party in interest in the lawsuit is frivolous and
irrelevant. Moreover, the record plainly demonstrates that their
conduct was not due to "mere negligence, inadvertence, or
incompetence." Cruz, 896 F.2d at 632 (defining behavior not ____
amounting to "vexatious" conduct under section 1927).14 First,
on its face, the complaint exhibits blatant disregard for a basic
____________________
13Section 1927, in its entirety, provides:
1927. Counsel's liability for excessive costs 1927. Counsel's liability for excessive costs
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.
28 U.S.C. 1927 (1980) (emphasis added). Section 1927 would not
empower the district court to impose sanctions on Ferrer in these
circumstances, as it provides for sanctions only against "[a]ny
attorney or other person admitted to conduct cases." See United ________ __ _______ _____ ___ ______
States v. International Bhd. of Teamsters, 948 F.2d 1338, 1345 ______ ________________________________
(2d Cir. 1991) ( 1927 sanctions cannot be imposed on client).
14As explained in Cruz, even though counsel's objectively ____
unreasonable conduct must amount to more than mere negligence,
bad faith is not a necessary predicate for the imposition of
1927 sanctions. Cruz, 896 F.2d at 631-32. Cf. Kotsilieris v. ____ ___ ___________
Chalmers, 966 F.2d 1181, 1184-85 (7th Cir. 1992) (bad faith ________
required under 1927, but standard includes an objective
component which can be satisfied by showing "recklessness or
indifference to the law"); MGIC Indemnity Corp. v. Moore, 952 _____________________ _____
F.2d 1120, 1122 (9th Cir. 1991) (applying subjective bad faith
standard which can be met by "[k]nowing or reckless conduct");
see generally United States v. Wallace, 964 F.2d 1214, 1218-19 ___ _________ _____________ _______
(D.C. Cir. 1992) (collecting 1927 appellate cases).
14
legal principle: a sole shareholder cannot commandeer
corporation assets by discarding the corporate veil at his con-
venience. See Alfond v. Frontier Enters., Inc., 599 F.2d 483, ___ ______ ______________________
484 (1st Cir. 1979) (shareholder may not "use the corporate form
both as a shield and sword at his will"). Second, the timing of
events indicates that initiation of the present action was
spurred by a bald attempt to circumvent the initial order (per
Gierbolini, J.) dismissing the Villa Marina action.15 Third,
the district court supportably concluded that the Ferrer
complaint "unnecessarily multiplied proceedings and increased the
cost of litigation to [Pocklington] . . . ." Ferrer Bolivar, 137 ______________
F.R.D. at 205.
____________________
15It is noteworthy that all three appellant-attorneys
appeared in behalf of Villa Marina in Villa Marina I. See Villa ______________ ___ _____
Marina I, 915 F.2d at 8. We further note their failure to enter _________
the pending Villa Marina action, as a related case, on the civil
cover sheet filed with the present action. Their contention that
the cover sheet instructions merely required that cases pending _______
in the district court be noted, an argument not raised below,
would be unavailing in any event even if their narrow interpreta-
tion of the term "pending" were to be accepted. See D. P.R.L.R. ___
302.5(B) ("[I]f the party filing the initial pleading in a case
believes that it is related to a case already assigned, whether _______ __ _ ____ _______ ________ _______
or not the case is then pending, the title and number of such __ ___ ___ ____ __ ____ _______
case shall be indicated.") (emphasis added). As a foreseeable
consequence of the appellant-attorneys' omission, Chief Judge
Perez-Gimenez was not informed of the related Villa Marina case
until May, more than three months after the present action was
filed. Their omission represented a "'serious and studied
disregard for the orderly process of justice.'" Cruz, 896 F.2d at ____
632 (quoting United States v. Nesglo, Inc., 744 F.2d 887, 891 ______________ ____________
(1st Cir. 1984)). Thus, scarce judicial resources were further
strained, unnecessarily so, when counsel deprived the court of
information which would have enabled it promptly to assign the
case to the district judge (Gierbolini, J.) already intimately
familiar with the related Villa Marina action. We cannot doubt
that their omission "multiplie[d] the proceedings . . . unreason-
ably and vexatiously . . . ." 28 U.S.C. 1927.
15
Thus, viewed objectively, see Cruz, 896 F.2d at 632 ___ ____
(section 1927 inquiry is an objective one), the district court's
characterization of the appellant-attorneys' conduct as
"unreasonable and vexatious" is plainly supportable. See id. ___ ___
(conduct is "'vexatious' when it is harassing or annoying,
regardless of whether it is intended to be so"; sanctions are
warranted where "an attorney acts in disregard of whether his __ _________ __
conduct constitutes harassment or vexation . . . .") (emphasis
added); Walter v. Fiorenzo, 840 F.2d 427, 433 (7th Cir. 1988) ______ ________
(section 1927 sanctions warranted "where a 'claim [is] without a _____ ____ _______ _
plausible legal or factual basis and lacking in justification.' _________ _____ __ _______ _____ ___ _______ __ _____________
Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 227 (7th Cir. _________________ ____________
1984) . . . (emphasis added)."); see also Browning v. Kramer, 931 ___ ____ ________ ______
F.2d 340, 345 (5th Cir. 1991) (section 1927 provides for an award
of fees and costs "associated with 'the persistent prosecution of
a meritless claim.'") (quoting Thomas v. Capital Sec. Serv. Inc., ______ _______________________
836 F.2d 866, 875 (5th Cir. 1988) (en banc)); cf. United States ___ _____________
v. Nesglo, Inc., 744 F.2d 887, 891 (1st Cir. 1984) (upholding ____________
section 1927 sanctions imposed for filing frivolous third-party
complaint in bad faith and for engaging in post-filing miscon-
duct).16
____________________
16Except as noted, we need not discuss the numerous
arguments asserted by appellants aimed at rebutting various
grounds upon which Pocklington sought to support the motions for
sanctions in the district court, but which were not relied on by
the district court. We do note, however, in no uncertain terms,
that Villa Marina I, which vacated the initial Colorado River _______________ _______________
dismissal, in no way justified the filing of the meritless
complaint in the instant action.
16
As the district court possessed the jurisdiction to
determine the collateral issues raised by the Pocklington motion
for sanctions pursuant to Fed. R. Civ. P. 11 and 28 U.S.C.
1927, and did so in the sound exercise of its discretion, the
judgment must be affirmed.17
The district court order is affirmed. The case is _______________________________________________________
remanded for the formal amendment and entry of the final judgment _________________________________________________________________
imposing sanctions and dismissing the action, with prejudice. ____________________________________________________________
____________________
17In their last-ditch effort, appellants challenge the form
of the district court judgment. Appellants argue that the order
imposing sanctions does not "identify by name any lawyer [upon
whom sanctions are imposed] which is a prerequisite to there
being a final judgment." Reply Brief for appellants at 4.
Although we construe the district court order as rather plainly
imposing joint and several liability upon Ferrer and all
appellant-attorneys in the sum of $5,000, payable within thirty
days, we recognize that neither the January 28, 1991 order, nor
the April 7, 1992 order entered on remand, contains the
appropriate direction that Pocklington "recover of plaintiff
Eduardo Ferrer Bolivar, and attorneys Michael J. Rovell, Carlos
G. Latimer and Gerardo A. Carlo," jointly and severally, the sum
of $5,000. See Official Form 32. We therefore remand for formal ___
amendment of the judgment by the district court clerk in
accordance herewith and in accordance with the above discussion.
See supra note 5. ___ _____
17