King v. Whitmer
CIVIL 20-13134 (E.D. Mich. Aug. 25, 2021)
the other side's legal fees . . . is limited to the fees
the innocent party incurred solely because of the
misconduct.” In re Bavelis, 743 Fed.Appx. 670,
675 (6th Cir. 2018) (quoting Goodyear Tire &
Rubber Co. v. Haeger, 137 S.Ct. 1178, 1183-84
(2017)). In other words, “[t]he complaining party .
. . may recover ‘only the portion of his fees that he
would not have paid but for' the misconduct” but
courts have “considerable room” to “exercise
discretion and judgment” when making this “but
for” determination. Id. at 676 (quoting Goodyear
Tire, 137 S.Ct. at 1187).
Plaintiffs' attorneys contend that the Court cannot
rely on its inherent authority because “[t]he
comments accompanying Rule 11 indicate that its
procedures are controlling when the Court
exercises its inherent authority.” (ECF No. 161 at
Pg ID 5804.) This argument is misleading.
Plaintiffs' counsel first quote the Advisory
Committee's 1993 comment to Rule 11: “The
power of the court to act on its own initiative is
retained, but with the condition that this be done
through a show cause order.” (Id. (quoting
Fed.R.Civ.P. 11 Advisory Committee Notes (1993
Amendment)).) But this comment simply explains
that the amendment retained the authority for
courts to issue sua sponte sanctions pursuant to
Rule 11 but with the added requirement of a show
cause order.
To maintain that the show cause requirement
applies to sanctions under a court's inherent
authority, Plaintiffs' attorneys quote a second
statement in the comments but strategically omit
the following key italicized language: “[T]he
procedures specified in Rule 11-notice,
opportunity to respond, and findings- should
ordinarily be employed when imposing a sanction
under the court's inherent authority.” (Id. (omitted
language added).) Nothing in the comments
suggests that the additional procedures in Rule 11
apply when a court sanctions pursuant to its
inherent authority or that Rule 11 supplants this
authority. In fact, the Advisory Committee's 1993
comment specifically states the opposite:
Rule 11 is not the exclusive source for
control of improper presentations of
claims, defenses, or contentions. It does
not supplant statutes permitting awards of
attorney's fees .... It does not inhibit the
court in punishing for contempt, in
exercising its inherent powers, or in
imposing sanctions, awarding expenses, or
directing remedial action authorized under
other rules or under 28 U.S.C. § 1927.
Fed. R. Civ. P. 11 Advisory Committee Notes
(1993 Amendment) (emphasis added).
When invoking its inherent authority to sanction,
“[a] court must, of course, . . . comply with the
mandates of due process, both in determining that
the requisite bad faith exists and in assessing
fees.” Chambers, 501 U.S. at 50 (citing Roadway
Express, Inc. v. Piper, 447 U.S. 752, 767 (1980)).
The Sixth Circuit has further explained:
The district court must [] afford the parties
concerned . . . at least minimal procedural
protections, including notice and the
opportunity to respond or to be heard.
Miranda, 710 F.2d at 522. We do not, in so
holding for due process purposes, indicate
that there must be a formal ‘complaint'
lodged with specifications in the event of a
proposed sanction, or that a ‘full fledged'
hearing is mandated, but notice and a
reasonable opportunity to be heard is a
minimum protection to be afforded.
Ray A. Scharer & Co. v. Plabell Rubber Prod.,
Inc., 858 F.2d 317, 321 (6th Cir. 1988) (additional
internal citations omitted) (discussing due process
in context of court's inherent authority); see also
Banner v. City of Flint, 99 Fed.Appx. 29, 37 (6th
Cir. 2004) (explaining that, when exercising its
inherent authority, a court must “give . . . minimal
procedural protections, but no[] formal notice
detailing the penalties or a full evidentiary
hearing” is required “when the court has sufficient
relevant information, including pleadings or
materials filed in the record, to decide”); In re Big
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