Sixth Circuit Orders Attorney Who Sued Judges to Show Cause or Face Sanctions

An all-too-rare sanctions order from a federal court.

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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.

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  1. “All-too-rare sanctions decision”

    That’s a strange statement to see. Rule 11 is often cited as one main reason why federal practice is so bare-knuckled “mean”. And there is a large body of appellate case law on “satellite litigation” involving awards of fees.

  2. Judicial immunity is self dealt and enforced, as illustrated here. Because judges are often wrong, their immunity deprives their victims due process under the Fifth Amendment. For example, 20% of criminal conviction are wrongful. Judges should be made to carry liability insurance to cover the damage to their victims when they deviate from professional standards of judge due care.

    Such a reversal in this unjust self dealing policy will improve judging practices.

    In addition, if you believe that legal liability is a replacement of endless cycles of violent revenge, then immunity justified violence in formal logic. The contra-positive of a true assertion is always true (all bat are mammals; this animal is not a mammal; it cannot be a bat). Judge liability precludes the moral justification for violence.

    In addition, judges are lazy, shiftless, stupid, worthless, government workers. They don’t do anything all day, and take a good salary. When they decide to look at a case, they assign it to a magistrate. That is a bait and switch. They were appointed to review cases, and we are getting reviews by loser hacks. These magistrate hacks just reject the overwhelming majority of claims with standardized decision language. They do so after years, when the outcome was known after 4 hours. They should be reviewed every 2 years for productivity and for accuracy. If a judge fails, move the office to the boiler room and do not assign any case, until the judge resigns. Judge customer service is unacceptable.

    Their immunity originated in a delusion from a religion, psychotic and violating the Establishment Clause. The sole justification of immunity is that the Sovereign speaks with the Voice of God. It is crazy. Nor is it widespread. One could sue the Emperor of Prussia. His lawyer would show up, and defend him in court.

    The lawyers in this case should have added a clause to their claim. “The claim is to change bad law.” That would eliminate the counter argument of a frivolous claim against people with legal immunity.

    1. Judicial immunity is self dealt and enforced, as illustrated here. Because judges are often wrong, their immunity deprives their victims due process under the Fifth Amendment.

      It has to be self dealt. Who else would enforce it?

      Judges are sometimes (not often) wrong. But a wrong result doesn’t deprive anyone of due process. When a judge is wrong, there’s a right to appeal. At some point, there’s a court of last resort that you can’t appeal from, but we all understand that. The point is, there’s nothing PROCEDURALLY UNFAIR about the fact that your case is judged by a human being, appealable to other human beings, and you have to live with the result and not sue the judge.

      1. The judge is often the smartest and most experienced in the room. Due to rent seeking, he is not allowed to investigate. Then, those appeals are limited to errorsoflawnot offact. The outcomrs are hideous. The guiltu sre loosed. The innocent are carcerated. The profession is the stinkiest, most failrd in the land.

  3. “I can think of a few recent cases in which sanctions might be justified.”

    Haha, burn!

    1. He should signal his virtue harder there and just say which cases he means.

  4. Funny how judges only call for sanctions when lawyers are insulting the judges, not when the government is vexatiously prosecuting people or when private citizens are being insulted in front of the court.

  5. My impression is that the seventh circuit is considerably more willing than other circuits to order show cause hearings under FRAP 38.

  6. Obviously, the judge in that matter is not one of the originalists that Trump promised us, because at the time of the Framing, one could sue a judge for injurious malefactions, and a prosecutor too. The immunities protecting those characters and other are manufactured of whole cloth by the Court to protect itself, and then protect their prosecutor pals and other government allies.

    The Framers contemplated the subject of immunities in this fledgling “everyone is equally accountable to the law” regime they were establishing and they decided only one group should have immunity – congresspeople in a very narrow set of circumstances. That means they did not intend others in government to be able to escape accountability. And why should the?.

    So, even though the lower court judge could not change the law concocted from above, he could have desisted in ordering sanctions. And should have.

    1. Interesting. I always thought Judicial Immunity like other aspects of Government Immunity flowed from the traditional Sovereign Immunity of Kings.

    2. The problem with this argument is that absolute judicial immunity, like qualified immunity for police officers, is a doctrine of statutory construction, not constitutional law. It is based on the intent of the post-Civil War Congress, not the original constituition’s Framers. And it could be changed by Congress.

      Congress has multiple times considered modifying qualified immunity, amd so far has declined each time. It could also change absolute immunity if it wanted to.

  7. Rooker-Feldman lives!

  8. If resolving the issues appealed wouldn’t change the outcome of the case because of unappealed dispository rulings also mandating dismissal, why did the 6th Circuit bother to resolve them? Why did the 6th Circuit have jurisdiction to resolve them?

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