                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1175



D. ALAN THOMAS, Esq.; JOHN ISAAC SOUTHERLAND,
Esq.,

                                                       Appellants.
---------------------------------------------

SYLVIA SHATZ; ANDREW SHATZ, her husband,

                                           Plaintiffs - Appellees,

          versus


FORD MOTOR COMPANY, a Delaware corporation,

                                                        Defendant.


                            No. 06-1857



D. ALAN THOMAS, Esq.; JOHN ISAAC SOUTHERLAND,
Esq.,

                                                       Appellants.
---------------------------------------------


SYLVIA SHATZ; ANDREW SHATZ, her husband,

                                           Plaintiffs - Appellees,

          versus


FORD MOTOR COMPANY, a Delaware corporation,

                                                        Defendant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Frederick P. Stamp,
Jr., District Judge. (3:01-cv-00047-FPS)


Argued:   May 23, 2007                    Decided:   August 7, 2007


Before WIDENER,1 MICHAEL, and TRAXLER, Circuit Judges.


Reversed by unpublished per curiam opinion.


ARGUED: Rebecca A. Betts, ALLEN, GUTHRIE, MCHUGH & THOMAS,
P.L.L.C., Charleston, West Virginia, for Appellants. Christopher
L. Brinkley, MASTERS LAW FIRM, L.C., Charleston, West Virginia, for
Appellees.   ON BRIEF: Stephanie D. Thacker, Peter G. Markham,
ALLEN, GUTHRIE, MCHUGH & THOMAS, P.L.L.C., Charleston, West
Virginia, for Appellants.


Unpublished opinions are not binding precedent in this circuit.




     1
      Judge Widener heard oral argument in this case but did not
participate in the decision. The opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).

                                2
PER CURIAM:

     The district court reprimanded and censured Alan Thomas and

John Isaac Southerland, trial attorneys for Ford Motor Company, for

improper   conduct   in   the   jury    room   after   the   jury   had   been

discharged, and ordered them to pay attorney’s fees and expenses in

the amount of $14,655.40.       Thomas and Southerland appeal, and we

reverse.



                                       I.

     Sylvia and Andrew Shatz brought a products liability action

against Ford in West Virginia.          With Thomas acting as lead trial

counsel and Southerland assisting, Ford secured a defense verdict.

After the jury was discharged, the courtroom clerk asked counsel

for both parties to assist in removing exhibits from the jury room.

     On an easel in the jury room in plain view was a flip chart

reflecting the jurors’ views on the evidence presented in the case.

Thomas asked Southerland to copy the notes from the flip chart for

assistance in future cases.            According to Southerland, he was

“simply taking notes from the flip chart and . . . was not aware of

any problem in doing so.”       J.A. 28.    Eventually, Southerland left

after being told that the courtroom was closing.

     Three days later, the district judge was advised by a law

clerk that she saw someone copying notes from the jury’s flip chart

in the jury room after trial, but that she did not know who he was.


                                       3
Based on this information, the district court issued an order

directing the parties to identify the person in the jury room and

his affiliation with the parties, and scheduled a hearing “to

determine what action, if any, should be taken.”   J.A. 20.

     Thomas responded that Southerland copied the notes at his

request, “[o]ut of curiosity, for professional information, and for

personal development purposes.” J.A. 22. Thomas indicated that he

did not “attempt to be secretive nor did [he] believe there was any

prohibition given the completion of the jury’s deliberations and

the discharge of the jury,” or that “there were any court rules or

regulations that were violated either by letter or in spirit.”

J.A. 22-23.   Nevertheless, he apologized to the court for any

misunderstanding and provided his own and Southerland’s affidavits

regarding the incident as well as the only copy of the notes made

concerning the jury’s flip chart.   Plaintiffs’ counsel submitted

affidavits denying involvement in the incident.

     At the hearing, the district judge adopted the facts as set

forth in the affidavits and assumed for purposes of the hearing

that court personnel had asked the attorneys to retrieve their

exhibits from the jury room themselves.     However, the district

judge admonished counsel that the court itself had not given the

lawyers permission to enter the jury room or copy the jury’s notes

from the easel.    Based upon its review of the notes taken by

Southerland, the court found that the flip chart reflected the


                                4
jury’s thoughts during deliberations and may have represented the

jurors’ division prior to unanimity. The court then concluded that

Thomas and Southerland had violated the spirit, if not the letter,

of   Local     Rule     47.01,    which       prohibits       an     attorney   from

“communicat[ing] or attempt[ing] to communicate with any member of

the jury regarding the jury’s deliberations or verdict without

obtaining an order allowing such communication.” N.D. W. Va. Local

R. Gen. P. 47.01.       The court determined that by reading and copying

the jury’s notes on the easel, Thomas and Southerland essentially

communicated     with    the     jury   without       the    court’s    permission.

Moreover, the district court found that Thomas and Southerland, by

intentionally copying the notes, acted in bad faith, engaged in

professional     misconduct,        and       breached       their     professional

responsibilities.       Citing his powers under his inherent authority

and 28 U.S.C.A. § 1927 (West 2006), the judge reprimanded and

censured both Thomas and Southerland and found them jointly and

severally    liable     for    attorneys’      fees    and    costs    incurred   by

plaintiffs in responding to the court’s order and attending the

hearing.

     After the hearing, the district court filed a written order

memorializing his findings.             In the written order, the judge

concluded that Thomas and Southerland’s conduct was improper under

not only Local Rule 47.01 but also Federal Rule of Evidence 606(b),

which generally prohibits the use of juror testimony about matters


                                          5
occurring during deliberations to challenge a verdict.   The court

explained that

     clear and convincing evidence shows that Mr. Thomas and
     Mr. Southerland have engaged in conduct that, from an
     objective standpoint, falls short of the obligations owed
     to the Court, to opposing counsel and to the jurors in
     this action. By failing in such obligations, Mr. Thomas
     and Mr. Southerland have required this Court to hold
     additional proceedings, have complicated the grounds for
     post-verdict motions, have violated the sanctity of the
     jury room and have interfered with this Court’s ability
     to achieve an orderly and expeditious disposition of this
     case, which necessarily continues through the time
     available for post-verdict motions.


J.A. 146 (citation omitted). By separate orders, the judge granted

attorneys’ fees and costs to the plaintiffs in the amount of

$14,655.40 but denied the plaintiffs’ motion for a new trial.

Thomas and Southerland appeal.2



                                  II.

     We review the district court’s decision to impose sanctions

under its inherent authority for abuse of discretion. See Chambers

v. NASCO, Inc., 501 U.S. 32, 55 (1991); Chaudhry v. Gallerizzo, 174


     2
      Thomas and Southerland filed a notice of appeal on November
23, 2005, appealing the October sanction order.       Because the
October order did not set the amount of the sanctions, the
plaintiffs filed a motion with this court seeking to dismiss the
appeal as interlocutory. The district court’s order became final
in March 2006, when the court set the sanction amount, and Thomas
and Southerland timely appealed that order as well.  While Thomas
and Southerland’s November 2005 notice of appeal may have been
premature, they filed a second notice of appeal from a final
appealable order, and the appeals have been consolidated.
Accordingly, we deny the plaintiffs’ motion to dismiss.

                                   6
F.3d 394, 410 (4th Cir. 1999).       A court abuses its discretion when

its ruling is based “on an erroneous view of the law or on a

clearly erroneous assessment of the evidence.” Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 405 (1990).

                                     A.

      The district court has the inherent authority to impose

sanctions against a party who “has acted in bad faith, vexatiously,

wantonly, or for oppressive reasons.”         Chambers, 501 U.S. at 45-46

(internal   quotation    marks    omitted).     This   inherent      authority

“extends to a full range of litigation abuses.” Id. at 46.              At the

hearing, the district judge ruled that Thomas and Southerland had

acted in bad faith, although the court did not repeat this finding

in its subsequent written order.          We view the written order as

supplementing    the    court’s   oral    rulings   during     the    hearing.

Accordingly, we review his finding of bad faith for clear error.

      The district court found Thomas and Southerland’s conduct

objectively sanctionable because the court viewed the copying of

the   jury’s    notes   as   an   improper    invasion    of    the    jury’s

deliberations. In support, the court cited Rakes v. United States,

169 F.2d 739 (4th Cir. 1948), a case dealing with improper contact

with jurors after a trial; Local Rule 47.01, which also addresses

contact with jurors; and Federal Rule of Evidence 606(b), which

generally prohibits a juror from testifying about matters occurring

during deliberations in hearings to challenge a verdict.


                                     7
     We disagree.        First, Local Rule 47.01 is aimed at preventing

lawyers, without permission of the court, from bothering jurors

after   they     have    completed    their     service    by    writing     them   or

attempting to talk to them.          See Rakes, 169 F.2d at 745-46; N.D. W.

Va. Local R. Gen. P. 47.01.          And, Rule 606 restricts what a juror

can testify to in proceedings to set aside a verdict.                  See Fed. R.

Evid. 606(b).      Neither of these concerns were implicated, however,

by counsel’s conduct here.          Not only was no juror contacted, but it

is doubtful that any juror ever knew what transpired.                  There was no

harassment of any juror by the attorneys, nor has there been any

effort by Thomas or Southerland to challenge the verdict on the

basis of what the jurors wrote.            In short, we find nothing in the

record to support the district court’s determination that Thomas or

Southerland engaged in conduct that is prohibited by these rules.

     The district court also viewed the attorneys’ actions as an

invasion    of    the    sanctity    of   the    jury     room   and   the    jury’s

deliberations.          We cannot agree.         The jury had finished its

deliberations, reported its verdict, been discharged, and left the

building.      No effort was made by the jurors to obliterate anything

written on the easel or to otherwise conceal or destroy the

information recorded thereon.             The notes were left where anyone

coming into the jury room could have seen and read them.                     We have

found no rule or law that makes sanctionable the viewing or copying

of jurors’ notes after the case has ended, nor are we aware of any


                                          8
authority that confers per se confidentiality upon discussions in

a jury room.

      Additionally, we see nothing in the record suggesting bad

faith.     Indeed, these attorneys were invited into the jury room by

a representative of the court after the jury had been discharged.

Moreover, the notes on the top sheet of the flip chart were plainly

exposed to the view of anyone who entered the jury room.                 We cannot

fault the lawyers for seeing what was in front of them and

remembering what they had seen.           Any error, therefore, would have

to   be   in     peeking   under   the   top    sheet    and    in   copying   that

information, and in this we simply can find no grievous harm.

      In sum, we see no factual or legal basis for concluding that

counsel acted in bad faith or abused the litigation process, nor do

we find any basis for concluding that counsel violated the rules

cited     by    the   district   court   or    engaged   in    conduct   otherwise

deserving of sanctions under the inherent power of the court.

                                         B.

      For similar reasons, we cannot affirm the district court’s

conclusion that the sanctions were authorized by 28 U.S.C.A.

§ 1927.        Section 1927 provides:

      Any attorney or other person admitted to conduct cases in
      any court of the United States . . . 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.



                                         9
28 U.S.C.A. § 1927.    Section 1927 requires “a finding of counsel’s

bad faith as a precondition to the imposition of fees.”                  See

Chaudhry, 174 F.3d at 411 n.14 (internal quotation marks omitted).

Mere negligence will not support an imposition of sanctions under

§ 1927.   See United States v. Wallace, 964 F.2d 1214, 1219 (D.C.

Cir. 1992).    Section 1927 authorizes sanctions only when counsel’s

bad faith conduct multiplies the proceedings, resulting in excess

costs for the opposing party.

     In our view, § 1927 provides no basis for the sanctions

imposed   by   the   district   court    because   it   is   triggered    by

subjective bad faith.    See Chaudhry, 174 F.3d at 411 n.14; Blair v.

Shenandoah Women’s Center, Inc., 757 F.2d 1435, 1438 (4th Cir.

1985) (concluding that evidence was sufficient to show “subjective

bad faith” and supported sanctions imposed by the district court);

see also Hilton Hotels Corp. v. Banov, 899 F.2d 40, 45 n.9 (D.C.

Cir. 1990) (“[S]ection 1927 applies only when the attorney acts in

subjective bad faith.”).    As stated above, there is no evidence of

subjective bad faith on the part of either attorney.          In fact, the

evidence is uncontradicted that the lawyers were motivated by a

desire for general professional development rather than any purpose

related to this particular case.        Consequently, the district court

committed clear error in finding that Thomas and Southerland acted

in bad faith and abused its discretion in awarding attorney’s fees.




                                   10
                                       III.

      Finally, we note that this problem could have been avoided had

the   clerk   of    court   properly    performed   his    responsibility      of

retrieving    the    evidence   and    exhibits   from    the   jury   room   and

returning them to the attorneys in the courtroom.               It is the duty

of the clerk of court to see that those items admitted into

evidence, and only those items, are taken to the jury room for the

jury’s use during its deliberation, see United States v. Lentz, 383

F.3d 191, 213-14 (4th Cir. 2004), and we believe it is likewise the

duty of the clerk of court to return those items to the courtroom

after the trial has ended.



                                       IV.

      Accordingly, we reverse the district court’s order censuring

and reprimanding the attorneys, and imposing sanctions against

Thomas and Southerland in the amount of $14,655.40.

                                                                       REVERSED




                                        11
