Frivolous and unwarranted appeals.  They continue to be a problem in the Sixth Circuit, as long-time followers of our blog know.  We’ve gone back and reviewed over two years’ worth of opinions in the Sixth Circuit, and the picture that emerges is one of too many parties and too many attorneys pursuing frivolous and unwarranted appeals leading to appellate sanctions.  

It shouldn’t be this way.  Rule 3.1 of the ABA Model Rules of Professional Conduct prohibits unwarranted appeals while Rule 38 of the Federal Rules of Appellate Procedure makes clear that frivolous appeals are sanctionable.  Rule 38 states that “[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.”  The Sixth Circuit has emphasized that “Rule 38 should doubtless be more often enforced than ignored in the face of a frivolous appeal.” Shaya v. Countrywise Home Loans, Inc., 489 Fed. Appx. 815, 819 (6th Cir. 2012).  And without a doubt, the Sixth Circuit has put its words into practice. 

Consider the recent opinions below in which the Sixth Circuit, more often than not, has imposed sanctions.  The opinions below provide insight into the types of improper behavior that may lead to sanctions, including, among other things: (1) ignoring clearly established facts barring a claim, (2) discounting prior warnings by the district court that sanctions are possible, (3) failing to include record citations in a brief, (4) failing to file a reply brief when necessary to respond to the other side, (5) relying on imaginary citations, (6) ignoring adverse authority, (7) failing to deal candidly with the Court, and (8) otherwise pursuing an appeal “ostrich-like” without regard to the relevant law or the facts. 

  • Bridgeport Music, Inc. v. Southfield Music, Inc., 714 F.3d 932 (6th Cir. 2013): awarding sanctions under Rule 38 after concluding that the conduct of a party and her appellate counsel was “objectively and patently meritless and a waste of judicial resources” because the appeal was untimely and because the claim was barred by a signed release.
  • Seifert v. Graphic Packaging Int’l, Inc., 486 Fed. Appx. 594 (6th Cir. 2012): awarding sanctions under Rule 38 against plaintiff’s counsel (though not against plaintiff) because the plaintiff’s attorney filed a brief with no record citations (violating Federal Appellate Rule 28(a)(9)(A)) that “had no reasonable expectation” of vacating the district court’s summary judgment in favor of the defendant. 
  • In re Reese, 485 Fed. Appx. 32 (6th Cir. 2012): recognizing that the Court should be “cognizant of the need to weigh the impositions of sanctions carefully in order to avoid chilling parties’ exercise of the rights to appeal,” but nonetheless affirming an award of sanctions imposed by the Bankruptcy Appellate Panel for the filing of a frivolous appeal (though declining to award additional attorney’s fees with respect to the appeal to the Sixth Circuit). 
  • Shaya v. Countrywide Home Loans, Inc., 489 Fed. Appx. 815 (6th Cir. 2012): after concluding that “Plaintiffs’ arguments are wholly without merit and had no reasonable expectation of altering the district court’s judgment,” awarding sanctions against plaintiffs’ counsel “because the blame sits on Plaintiffs’ counsel’s shoulders.”  (And if you needed additional proof that proper citations (and proper cite checking) is critical, consider the panel’s criticism of plaintiff’s counsel for relying on an imaginary citation: “Plaintiffs’ counsel’s citation to ‘12 CFR 108 & 130’—a citation that was made in two separate district court cases and now on appeal, and which does not exist—is frivolous, unreasonable, and without foundation.”) 
  • Waeschle v. Dragovic, 687 F.3d 292 (6th Cir. 2012): declining to impose Rule 38 sanctions but including a stern warning that counsel, as officers of the court, are obligated “to deal candidly with the obvious [circuit] authority that is contrary to [their client’s] position.”

Finally, consider the Sixth Circuit’s recent decision in Kempter v. Michigan Bell Telephone Co., 2130 FED App. 0786N (6th Cir. 2013).  The panel here acknowledged that the case did not involve “any serious misrepresentations, vexatious tactics, or other overt signs of bad faith,” but it did suffer from “such serious factual and legal issues that sanctions are warranted.”  Among other things, the appellant relied on an “often misleadingly selective, reading of the record” and “a marked lack of fam iliarity with the relevant law.”  The panel also highlighted that the appellant had “failed to file a reply brief altogether, a problematic factor given the strength of [the opposing party’s] response,” and that the appellant previously had been warned by the district court that sanctions might be justified.  The panel concluded its opinion by making clear that Rule 38 does “not permit a lawyer, ostrich-like, to continue prosecuting a case while refusing to recognize the relevant legal standard or counter the opposing party’s factual arguments.”

The Sixth Circuit’s bottom line is clear: Don’t act ostrich-like on appeal or you will risk sanctions.