The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The U.S. Court of Appeals for the Sixth Circuit issued an unusual and interesting opinion today in Larry E. Parrish P.C. v. Bennett. The opinion by Judge Griffin begins:
In this action, Larry E. Parrish, P.C., a Tennessee law firm (the "Parrish Firm") sued three judges of the Tennessee Court of Appeals because they allegedly made false statements in a written opinion resolving an appeal to which the Parrish Firm was a party. Plaintiff claims that the false statements were a violation of its Fourteenth Amendment rights, but as a remedy, it seeks no damages or injunctive relief—instead, requesting only a declaration that defendants violated its constitutional rights.
The district court, however, granted defendants' motion to dismiss, reasoning that it was "not a close issue" that it lacked jurisdiction, and that even if it had jurisdiction, dismissal was required by judicial immunity and the relevant statute of limitations. Finally, even ignoring these sizable defects, the district court concluded that the facts pleaded by plaintiff were insufficient to state a claim. Now on appeal, plaintiff primarily challenges the district court's rulings regarding jurisdiction and judicial immunity. We affirm the judgment of the district court and direct plaintiff and plaintiff's counsel to show cause why sanctions should not be assessed against them on appeal.
That last little bit—the order that the plaintiff and plaintiff's counsel show cause why they should not be required to pay sanctions—is quite unusual. In my view, show cause orders threatening to impose sanctions are too unusual, as courts are generally too reluctant to impose sanctions on attorneys who file frivolous or vexatious lawsuits.
The underlying facts are quite something. The Parrish firm was hired by Ms. Strong to file a malpractice claim against her prior attorney, but this action was dismissed because the Parrish firm missed discovery deadlines. Ms. Strong apparently refused to pay, and the Parrish firm sued. Ms. Strong counterclaimed, and prevailed in the trial court. The Parrish firm appealed, and was apparently sufficiently upset with the resulting appellate court decision that the Parrish firm sued the judges on the appellate panel seeking a correction of allegedly false claims in the appellate opinion. Unable to obtain relief in state court, the Parrish firm turned to federal court, eventually leading to today's opinion.
On the substance, the Sixth Circuit found the Parrish firm's arguments to be "unpersuasive at best, and nearly incoherent at worst," and easily concluded that the federal courts lack jurisdiction to hear their claims. Wrote Judge Griffin:
we conclude that the complaint failed to present a justiciable case or controversy because plaintiff requested a ruling only on whether the past actions of defendants were right or wrong, which could not affect the present relationship between the parties. In other words, plaintiff sought only an advisory opinion from the district court as to whether its constitutional rights had been violated. The court therefore lacked an Article III controversy to adjudicate.
On the question of sanctions, Judge Griffin wrote:
defendants request that we sanction the Parrish Firm and Larry Parrish individually under 28 U.S.C. § 1927 and Federal Rule of Appellate Procedure 38.
Rule 38 provides that we may assess "just damages and single or double costs" in response to a frivolous appeal, either upon a motion from the opposing party or if the court gives notice and an opportunity to respond. Fed. R. App. P. 38. Generally, an appeal is frivolous if "it is obviously without merit and is prosecuted for delay, harassment, or other improper purposes." Barney v. Holzer Clinic, Ltd., 110 F.3d 1207, 1212 (6th Cir. 1997) (quoting NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 591 (6th Cir. 1987)). But an appeal may also be frivolous if it is filed out of "sheer obstinacy—when the only issues in the case clearly have been resolved against the appellant." Anderson v. Dickson, 715 F. App'x 481, 489 (6th Cir. 2017) (internal quotation marks and citation omitted); see also Wilton Corp. v. Ashland Castings Corp., 188 F.3d 670, 676 (6th Cir. 1999) ("Sanctions are appropriate where the appeal was prosecuted with no reasonable expectation of altering the district court's judgment and for purposes of delay or harassment or out of sheer obstinacy." (internal quotation marks and citation omitted)). Similarly, § 1927 provides: "[a]ny 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. We have imposed § 1927 sanctions where "an attorney objectively 'falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party.'" Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006) (quoting Ruben v. Warren City Sch., 825 F.2d 977, 984 (6th Cir. 1987)).
It appears that those standards have been met here. First, we agree with the district court that the jurisdictional defects presented by the complaint were "not . . . close issue[s]," and plaintiff's arguments on appeal did not narrow the issues in any meaningful way. And beyond those flaws, the appeal appears frivolous because plaintiff has not provided any cogent argument to explain why the statute of limitations did not bar his claim, nor how the complaint pleaded facts to plausibly establish a Fourteenth Amendment violation—two additional grounds the district court gave for granting the motion to dismiss. In other words, even if plaintiff had prevailed on the two issues it briefed (jurisdiction and judicial immunity), we would still affirm the district court's dismissal of the complaint because the Parrish Firm has forfeited case dispositive issues by failing to raise them for review. Finally, we share the district court's concern for attorney Parrish's penchant for calling state judges' integrity into question seemingly whenever they disagree with him.
Accordingly, defendants may file an affidavit setting forth their reasonable costs and attorneys' fees incurred by this appeal not later than fourteen days after the issuance of this opinion. Once defendants' affidavit is filed, plaintiff and plaintiff's counsel shall have fourteen days to show cause why they should not be sanctioned, addressing both Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927.
As noted, it's somewhat rare for a federal appellate court to issue such an order. Perhaps it will not be so rare in the future. I can think of a few recent cases in which sanctions might be justified.