United States District Court, W.D. Wisconsin
ABIGAIL E. BROWN, Plaintiff,
COUNTRY VIEW EQUESTRIAN CENTER, INC., Defendant.
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE.
October 3, 2017, I entered an order (1) granting defendant
Country View Equestrian Center, Inc.'s motion to dismiss
plaintiff Abigail Brown's state law negligence claim
relating to an injury plaintiff suffered during a horseback
riding lesson on her own horse; (2) denying defendant's
motion for sanctions under Fed.R.Civ.P. 11(c); and (3)
denying defendant's motion to disqualify plaintiff's
counsel. Dkt. #22. With respect to the merits of the case, I
found that Wisconsin's equine immunity statute, Wis.Stat.
§ 895.481, barred plaintiff's claim and that the
statutory exception cited by plaintiff, Wis.Stat. §
895.481(3)(b), did not apply in this case. On September 25,
2018, the Court of Appeals for the Seventh Circuit affirmed
that decision. Dkt. #32. Now before the court are
defendant's motion for attorney fees (or sanctions) under
28 U.S.C. § 1927, and plaintiff's motion to strike
defendant's motion. Dkt. ##30, 37.
reasons discussed below, I am denying plaintiff's motion
to strike and defendant's motion for attorney fees.
asks the court to award attorney fees and costs under 28
U.S.C. § 1927, which provides that an attorney who
“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.”
Unlike a sanction imposed under Rule 11, a sanction under
§ 1927 is not limited to cases involving frivolous
claims or subjective bad faith. Boyer v. BNSF Railway
Co., 824 F.3d 694, 708 (7th Cir.), cert. denied, 137
S.Ct. 391 (2016). However, “[s]imple negligence”
by the attorney does not warrant a sanction under §
1927. Id. Rather, “[a] finding of subjective
bad faith on the part of the offending attorney will support
the imposition of sanctions under section 1927, but such a
finding is not necessary; ‘objective bad faith'
will also support a sanctions award.” Id.
(quoting Dal Pozzo v. Basic Machine Co., 463 F.3d
609, 614 (7th Cir. 2006)). See also In re TCI Ltd., 769 F.2d
441, 445 (7th Cir. 1985) (“If a lawyer pursues a path
that a reasonably careful attorney would have known, after
appropriate inquiry, to be unsound, the conduct is
objectively unreasonable and vexatious. To put this a little
differently, a lawyer engages in bad faith by acting
recklessly or with indifference to the law, as well as by
acting in the teeth of what he knows to be the law.”).
The Court of Appeals for the Seventh Circuit has instructed
courts to be mindful that “sanctions are to be imposed
sparingly.” Hartmarx Corp. v. Abboud, 326 F.3d
862, 867 (7th Cir. 2003).
initial matter, plaintiff has moved to strike defendant's
motion on the ground that it makes its request for relief in
the wrong jurisdiction because the court of appeals should
issue a decision with respect to sanctions for an
attorney's conduct on appeal. However, the United States
Supreme Court has rejected the argument that a court may
sanction only conduct occurring in its presence and not other
tribunals. Chambers v. NASCO, Inc., 501 U.S. 32, 57
(1991). In this case, defendant's motion challenges the
conduct of plaintiff's counsel in both this court and the
court of appeals. Although plaintiff also argues that
defendant's motion is untimely because defendant filed it
more than 14 days after the court of appeals issued its final
judgment, Fed. R. App. P. 39(d) (motions for sanctions must
be filed within 14 days of entry of judgment by court of
appeals), Fed. R. App. P. 54(d)(2)(E) specifically excludes
claims under 28 U.S.C. § 1927 from the 14-day deadline.
Therefore, I will deny the motion to strike.
motion for sanctions, defendant contends that plaintiff's
counsel knew that his argument regarding the applicability of
the exception to the equine immunity statute was not sound
under Wisconsin law and yet failed to abandon it, forcing
defendant to incur unnecessary litigation expenses in this
court and in the court of appeals. Specifically, plaintiff
argued unsuccessfully that defendant “provided”
the horse that she brought to the horseback-riding lesson
because defendant's instructor, Crimson Pulver, exercised
control over the horse when Pulver instructed plaintiff to
ride on a loose rein and push the horse to trot. Wis.Stat.
§ 895.481(3)(b) (immunity does not apply to person who
fails to manage safely “the particular equine
provided”). Defendant points out that in its written
decision, the Court of Appeals for the Seventh Circuit
described the argument as “bizarre” and “a
far-fetched interpretation of the exception” and the
term “provide.” Dilley v. Holiday Acres
Properties, Inc., 905 F.3d 508, 516 (7th Cir. 2018)
(consolidating appeals in Dilley and plaintiff's case).
However, as I explained in the previous order denying
sanctions under Rule 11, I am not persuaded that the argument
was unsound or completely groundless. The resolution of this
case required an interpretation of the particular phrasing of
the statutory exception and a review of Wisconsin case law
that had not addressed the exact situation at issue in this
also argues that plaintiff's attorney acted in bad faith
by (1) filing this lawsuit on behalf of his daughter, even
though he knew that he could be disqualified because he
witnessed the accident in question; (2) using his position as
a member of the Highland College board of directors to
attempt to influence the college not to hire defendant to
provide equestrian training for the college's students;
and (3) rejecting defense counsel's suggestion to keep
appellate costs under control by submitting only written
briefs or making oral arguments by telephone. Although I
agree that these actions suggest that plaintiff's
attorney may be overly zealous in his pursuit of damages on
behalf of his daughter, I am not persuaded that his actions
were vexatious or unreasonably intended to multiply
unnecessary proceedings in this case. Accordingly, I will
deny the motion for attorney fees.
ORDERED that plaintiff Abigail Brown's motion to strike,
dkt. #37, and defendant Country View Equestrian Center,