Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-21064
_____________________
AUGUSTINE DUBE; NOELLE DAVIS; KSHANTI MORRIS; RUBEN
CAPALETTI; ROBIN MCVEIGH; MELVIN EVANS; CHERYL
MEACHUM-EVANS; BERNARD GREAUX,
Plaintiffs - Appellants,
PROVOST UMPHREY LAW FIRM LLP,
Appellant,
v.
EAGLE GLOBAL LOGISTICS, also known as Eagle U S A Airfreight Inc.,
Defendant - Appellee,
and
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Appellee.
-----------------------------------------------------------------
Consolidated With
Case No. 01-21258
AUGUSTINE DUBE; NOELLE DAVIS; KSHANTI MORRIS; RUBEN
CAPALETTI; ROBIN MCVEIGH; MELVIN EVANS; CHERYL
MEACHUM-EVANS; BERNARD GREAUX,
Plaintiffs - Appellants,
v.
EAGLE GLOBAL LOGISTICS, also known as Eagle USA Airfreight Inc.,
Defendant - Appellee,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Appellee.
----------------------
Appeals from the United States District Court for the
Southern District of Texas
----------------------

November 25, 2002
Before WIENER and STEWART, Circuit Judges, and RESTANI*, Judge.
BY THE COURT:
Before us is the motion of Defendant-Appellee Eagle Global
Logistics ("Eagle") to impose sanctions on Plaintiffs-Appellants,
their counsel (principally, the "Provost Umphrey" law firm1), or
both. Eagle invites us to rely on Rule 38 of the Federal Rules of
Appellate Procedure, as well as 28 U.S.C. § 1927 and our inherent
powers. We choose to decide this matter under Rule 38 only, and
impose sanctions against Provost Umphrey thereunder.
Eagle's request for sanctions is predicated on our previous
rejection of Provost Umphrey's appellate briefs as noncompliant and
on that firm's subsequent voluntary dismissal of its clients'
consolidated appeals. We rejected Provost Umphrey's briefs as
noncompliant because, inter alia, they contained "specious
arguments" and had "grossly distorted" the record through the use
of ellipses to misrepresent the statements and orders of the
district court.
Under Rule 38, a federal appellate court, following a motion
by counsel, may impose "just damages" and award single or double
* Judge of the U.S. Court of International Trade, sitting by
designation.
1 Three attorneys not formally associated with Provost Umphrey
signed the offending appellate briefs: Jonathan S. Massey, Daniel
Guttman, and Marian S. Rosen. These attorneys are held jointly and
severally liable with Provost Umphrey for the sanctions imposed
hereunder.
2

costs to an appellee if the court determines that an appeal is
frivolous. In construing Rule 38, federal courts define a
"frivolous appeal" in terms of either the legal merits of the case
or the acts and methods of appellate counsel.2 With respect to the
latter, we have followed the lead of other circuits3 that have
sanctioned attorneys for filing briefs that were "bent on
misleading the court"4 and for advancing arguments that fell "below
minimum professional standards."5 Courts of Appeal have also
sanctioned attorneys under Rule 38 for breaches of professional
conduct essentially identical to those committed by Provost Umphrey
in these consolidated appeals, i.e., misrepresenting the record and
using ellipses to misrepresent statements out of context.6
Inasmuch as Provost Umphrey elected to dismiss its clients'
appeals and exhibited a degree of contrition following our initial
2 The Federal Circuit casts this distinction in terms of
appeals that are "frivolous as filed" versus appeals that are
"frivolous as argued." Finch v. Hughes Aircraft Co., 926 F.2d 1574
(Fed. Cir. 1991).
3 Coghlan v. Starkey, 852 F.2d 806, 816 n.19 (5th Cir. 1988).
4 Herzfeld & Stern v. Blair, 769 F.2d 645, 647 (10th Cir.
1985).
5 SEC v. Suter, 832 F.2d 988, 991 (7th Cir. 1987).
6 Ortiz-Villafane v. Segarra, 797 F.2d 1, 2 (1st Cir. 1986)
(sanctioning attorney for "blatant misrepresentations [of the
record] in appellant's brief"); Paulik v. Rizkalla, 796 F.2d 456,
460 (Fed. Cir. 1986) (sanctioning attorney for using ellipses to
create "flagrant misrepresentations of the record, [which] was a
gross violation of the high standards of professional conduct that
we expect and demand of members of our bar").
3

ruling in this matter, we deem sanctions in an amount equal to the
attorneys' fees and costs actually incurred by Eagle in the appeal
of these actions to be sufficient. In cases such as this one,
however, appellants generally are not held accountable for the
offending tactics employed by their attorneys. Thus, appellate
counsel alone are frequently held personally liable for any
sanctions imposed by the court.7
IT IS ORDERED, therefore, that Eagle's motion for sanctions
against Provost Umphrey under Rule 38 is GRANTED, in the amount of
Eagle's attorneys' fees and costs actually incurred ($71,117.75).
IT IS FURTHER ORDERED that Eagle's request for sanctions
against Plaintiffs-Appellants and for other sanctions against their
counsel is DENIED.
7 Coghlan, 852 F.2d at 818. See also Hilton Co. (V.I.) Inc.
v. Hyatt Int'l, 899 F.2d 250, 253-54 (3d Cir. 1990) (citing
circuits that have interpreted Rule 38 as permitting a court to
hold an attorney personally liable for sanctions imposed
thereunder).
4