                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 05-3215
                                 ___________

Stephen E. Jones; Doyle Clark,          *
                                        *
             Plaintiffs,                *
                                        *
Thomas R. Buchanan,                     *
                                        *
             Appellant,                 * Appeal from the United States
                                        * District Court for the
       v.                               * Western District of Missouri.
                                        *
United Parcel Service, Inc.; Local 41   *
of the International Brotherhood of     *
Teamsters,                              *
                                        *
             Appellees.                 *
                                   ___________

                            Submitted: March 13, 2006
                               Filed: August 22, 2006
                                ___________

Before COLLOTON, HEANEY, and GRUENDER, Circuit Judges.
                          ___________

COLLOTON, Circuit Judge.

      Attorney Thomas Buchanan appeals an order sanctioning him $1,000 pursuant
to Rule 11 of the Federal Rules of Civil Procedure, and an order requiring him to
reimburse attorneys’ fees of $10,000 to United Parcel Service (“UPS”) and $10,000
to Local 41 of the International Brotherhood of Teamsters (“Local 41”), pursuant to
28 U.S.C. § 1927. We affirm.

       Buchanan represented Stephen Jones and Doyle Clark in their action against
UPS and Local 41 for wrongful termination and inadequate union representation.
UPS and Local 41 moved for summary judgment on all counts raised by Jones and
Clark, and in response, plaintiffs, through Buchanan, filed a 480-page pleading, which
included a 168-page statement of controverted facts, a 179-page response to
defendants’ statements of uncontroverted facts, and a 132-page argument section. The
district court* determined that plaintiffs’ pleading violated Local Rule 56.1,
disregarded all of plaintiffs’ statement of controverted facts, and deemed defendants’
statements of uncontroverted facts admitted. See W.D. Mo. R. 56.1(a). The court
then granted summary judgment for the defendants on all counts. In an opinion filed
today, we conclude that the district court did not abuse its discretion in finding a
violation of the local rule or in disregarding the non-compliant pleading. Jones v.
UPS, Inc., Nos. 05-2202, 05-2205, slip op. at 8-11 (8th Cir. Aug. 22, 2006).

        The district court, pursuant to Federal Rule of Civil Procedure 11(c)(1)(B),
ordered Buchanan to show cause why he should not be sanctioned, and UPS and Local
41 moved for reimbursement of attorneys’ fees pursuant to 28 U.S.C. § 1927.
Buchanan’s response to the show cause order focused on six specific paragraphs of
the plaintiffs’ pleading, which the district court had cited as examples of what it
described as “misrepresentations and misstatements,” or attempts at controversion that
were either “unsupported by record or blatantly non-responsive.” He requested that
if the court intended to base sanctions on “other specific items,” then he should have
“an adequate opportunity to respond with explanation.”




      *
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

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       The court’s order imposing sanctions addressed Buchanan’s statements about
notice and opportunity to respond. The court explained that its intention in offering
six examples of deficient paragraphs in the pleading was “to provide an outline of the
objectionable conduct contained in Document 373 as a whole and not to supply an
exclusive list of sanctionable actions.” The court reasoned that although Rule
11(c)(1)(B), which permits a court to impose sanctions on its own initiative, requires
the court to provide adequate notice prior to levying sanctions, this requirement did
not place a burden on the court to enumerate “each and every transgression contained
within 480 pages” of the pleading. The court believed that sufficient notice was
provided to Buchanan in the order to show cause and the orders granting summary
judgment, which were incorporated by reference into the order to show cause.

        In explaining its decision to impose sanctions, the court determined that “the
length of the document, 480 pages and 948 paragraphs of Fact Statement, when
coupled with numerous misstatements and mischaracterizations of the record becomes
unduly burdensome.” Among other things, “the oppressive size combined with the
overall untrustworthy nature of the document had a cumulative effect which [the]
Court found to be repugnant to the very concept of judicial economy.” The court also
found that Buchanan’s attempt to justify the length of plaintiffs’ brief by comparing
it to the combined length of defendants’ three summary judgment motions and two
reply briefs was “disingenuous,” “ill-conceived,” and “irrelevant,” because two-thirds
of the defendants’ pages were devoted to responding to Buchanan’s pleading.

       Buchanan also responded to defendants’ motions for attorneys’ fees,
interpreting 28 U.S.C. § 1927 to require a finding of both objective unreasonableness
and subjective bad faith. He argued that neither UPS nor Local 41 made the requisite
showing. In ordering Buchanan to pay fees, the court was unconvinced that the statute
requires a showing of subjective bad faith, but found that if it did, then Buchanan’s
conduct “would easily satisfy a subjective, bad-faith component.” The court found



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that portions of the 480-page pleading “were created for the sole purpose of causing
unnecessary delay and a needless increase in the cost of litigation.”

       In his appeal of the Rule 11 sanction, Buchanan argues that the court did not
provide the notice required by Rule 11(c)(1)(B). He further contends that the asserted
deficiencies in Document 373 discussed by the court in its order did not violate Rule
11(b), and did not meet the standards for conduct that may be sanctioned under the
rule. Buchanan also argues that if there was a proper finding of sanctionable conduct,
then the sanction imposed exceeded an amount that was “sufficient to deter repetition
of such conduct.” See Fed. R. Civ. P. 11(c)(2).

       We review the district court’s determinations concerning Rule 11 under the
abuse-of-discretion standard. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405
(1990). Rule 11 sanctions may be warranted when a pleading is “presented for any
improper purpose, such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation,” Fed. R. Civ. P. 11(b)(1), contains allegations or factual
contentions that lack evidentiary support, Fed. R. Civ. P. 11(b)(3), or contains denials
of factual contentions that are not warranted on the evidence. Fed. R. Civ. P. 11(b)(4).

       Rule 11 provides a specific procedure to be followed when sanctions are
considered. A district court may impose Rule 11 sanctions on its own initiative, but
it must first enter an order describing the specific conduct that appears to violate Rule
11(b), and direct the attorney to show cause why he has not violated the rule. Fed. R.
Civ. P. 11(c)(1)(B); see also Fuqua Homes, Inc. v. Beattie, 388 F.3d 618, 623 (8th Cir.
2004). Then, when imposing sanctions, the court is required to describe the conduct
determined to constitute a violation of Rule 11, and explain the basis for the sanction
chosen. Fed. R. Civ. P. 11(c)(3).

      We are not persuaded by Buchanan’s argument that the district court failed to
give adequate notice of the specific conduct that appeared to violate Rule 11. The

                                          -4-
court entered an order to show cause in accordance with Rule 11(c)(1)(B), and the
order incorporated by reference the orders granting summary judgment, which
detailed the court’s objections to Document 373. There is no dispute that the court
thereby notified him of six specific paragraphs in the pleading that the court viewed
as deficient and exemplary of widespread flaws in the document. The response filed
by Buchanan and his law firm to the court’s order to show cause acknowledged that
upon re-review of Document 373, counsel himself found additional errors in the
citation of facts. (R. Doc. 518 at 3 n.5).

       The court in its orders granting summary judgment also pointed to other
“specific conduct” that it found objectionable. The court referred to “instances in
which [plaintiffs] attempt to dispute paragraphs which are supported by testimony
from their own depositions.” (R. Doc. 506 at 5). Although the court did not cite
specific paragraph numbers beyond one prominent example, a review of the
defendants’ pleadings should readily have revealed to Buchanan other asserted
uncontroverted facts that are supported by testimony from the depositions of Jones
and Clark. (E.g., R. Doc. 373, Pls.’ Resp. to Local 41’s Statement of Uncontroverted
Facts, ¶¶ 8, 91, 105, 106, Pls.’ Resp. to UPS’s (Clark) Statement of Uncontroverted
Facts, ¶¶ 39, 46, 101, Pls.’ Resp. to UPS’s (Jones) Statement of Uncontroverted Facts,
¶¶ 77, 120).

       The district court further observed that plaintiffs’ responses “frequently engage
in argument in opposition to Defendants’ facts without directing the Court to any
portion of the record for support.” (R. Doc. 506 at 6). The court gave one example,
but other instances again are readily identifiable on a review of Document 373. (E.g.,
R. Doc. 373, Pls.’ Resp. to Local 41’s Statement of Uncontroverted Facts, ¶¶ 119,
121, Pls.’ Resp. to UPS’s (Clark) Statement of Uncontroverted Facts, ¶ 23, Pls.’ Resp.
to UPS’s (Jones) Statement of Uncontroverted Facts, ¶¶ 34, 41, 43, 51, 71, 88). The
absence of a listing of all offending paragraphs did not deprive Buchanan of adequate



                                          -5-
notice that he should explain why many responses to the statements of uncontroverted
fact include no citation of the record as required by Local Rule 56.1.

       Similarly, the court cited the circumstance that “many of Plaintiffs’ attempts to
controvert facts do not specifically refer to the portions of the record, but merely
contain cross-references to other paragraphs, which oftentimes have no support.” (R.
Doc. 506 at 6). Again, while the court provided one example, numerous examples of
this cross-referencing technique can be readily identified on review of Document 373.
(E.g., R. Doc. 373, Pls.’ Resp. to Local 41’s Statement of Uncontroverted Facts, ¶¶ 23,
31, Pls.’ Resp. to UPS’s (Clark) Statement of Uncontroverted Facts, ¶¶ 27, 35, 40, 48,
49, 100, 102, 103, 107, Pls.’ Resp. to UPS’s (Jones) Statement of Uncontroverted
Facts, ¶¶ 35, 37, 121-23, 163). The district court’s reference to the tactic gave notice
of the “specific conduct” at issue.

       The district court also expressed concern that the document was “unwieldy,”
“gargantuan,” “titanic,” and “utterly oppressive by means of its sheer size,” (R. Doc.
506 at 2-3), particularly in view of the requirement of Local Rule 56.1 that the
opposition to a motion for summary judgment begin with a “concise listing of material
facts.” (Id. at 5); W.D. Mo. R. 56.1(a). While this notice is not directed to specific
paragraphs of the pleading, it is still a description of “specific conduct” that the court
found objectionable. Buchanan was properly notified that he should address why his
“concise listing of material facts” spanned 948 paragraphs, and why a 480-page
pleading was justified under the circumstances.

       As for the substantive decision that Buchanan’s conduct was sanctionable, we
said in 1990 that the standard under Rule 11 is whether the attorney’s conduct,
“viewed objectively, manifests either intentional or reckless disregard of the attorney’s
duties to the court.” Perkins v. Spivey, 911 F.2d 22, 36 (8th Cir. 1990). Rule 11 was
amended in 1993, and Buchanan argues that the amended rule requires a finding that
the attorney’s conduct was “akin to contempt of court” and motivated by subjective

                                           -6-
bad faith before a court may impose sanctions on its own initiative. This argument
draws on commentary of the advisory committee on the rules of civil procedure,
which states that “[s]ince show cause orders will ordinarily be issued only in
situations that are akin to a contempt of court, the rule does not provide for a ‘safe
harbor’ to a litigant for withdrawing a claim, defense, etc., after a show cause order
has been issued on the court’s own initiative.” Fed. R. Civ. P. 11 advisory
committee’s note (discussing 1993 amendments to subdivisions (b) and (c)).
Buchanan’s argument on the governing legal standard was accepted by a divided
panel of the Second Circuit. Compare In re Pennie & Edmonds LLP, 323 F.3d 86, 90
(2d Cir. 2003), with id. at 94-101 (Underhill, J., dissenting).

        We have said after the amendment of Rule 11 that the rule should be applied
with “particular strictness” when sanctions are imposed on the court’s own initiative,
MHC Inv. Co. v. RACOM Corp., 323 F.3d 620, 623 (8th Cir. 2003), but we have
found it unnecessary to decide whether the standard for sanctions initiated under Rule
11(c)(1)(B) is different from, and more stringent than, the standard for sanctions
initiated by motion of a party under Rule 11(c)(1)(A). Norsyn, Inc. v. Desai, 351 F.3d
825, 831 (8th Cir. 2003). We find it unnecessary to resolve that issue in this case as
well, because assuming that Rule 11 does require a finding of subjective bad faith to
impose sanctions on a court’s own initiative, the district court made such a finding
here, and we conclude that the determination was neither clearly erroneous nor an
abuse of discretion.

       Determinations under Rule 11 often involve “fact-intensive, close calls,” Cooter
& Gell, 496 U.S. at 404 (internal quotation omitted), and “[w]e give ‘[d]eference to
the determination of courts on the front lines of litigation’ because these courts are
‘best acquainted with the local bar’s litigation practices and thus best situated to
determine when a sanction is warranted.’” MHC Inv. Co., 323 F.3d at 624 (quoting
Cooter & Gell, 496 U.S. at 404). The Supreme Court adopted the deferential abuse-
of-discretion standard of review for Rule 11 sanctions with the recognition that it

                                         -7-
would “streamline the litigation process by freeing appellate courts from the duty of
reweighing evidence and reconsidering facts already weighed and considered by the
district court.” Cooter & Gell, 496 U.S. at 404.

       We conclude that the district court did not abuse its discretion in determining
that Buchanan violated the objective unreasonableness standard of Rule 11. The court
reasonably found that the length of Document 373, combined with unsupported
attempts to controvert facts (including misstatements and mischaracterizations of the
record), failures to provide citations to the record, improper use of cumbersome cross-
references, and inappropriate inclusion of legal argument in a purported listing of
disputed material facts, made the pleading unduly burdensome. See generally Jones,
Nos. 05-2202, 05-2205, slip op. at 8-11. The record is sufficient to support the district
court’s conclusion that, when viewed objectively, Buchanan acted with reckless
disregard of his duties to the court, and the court’s order adequately explains the basis
for this conclusion.

        Regarding Buchanan’s subjective motivation, the district court specifically
found that portions of the pleading “were created for the sole purpose of causing
unnecessary delay and a needless increase in the cost of litigation.” (R. Doc. 534 at
5) (emphasis added). And the court found that Document 373 represented “a form
[of] litigation by attrition, wherein the practitioner’s intent was to force the opposition
either to yield to its position or be crushed under a great weight of misstated factual
assertions and drowned in a sea of bombast.” (Id.) (emphasis added). These are
findings that attorney Buchanan acted with an improper purpose and intent, and they
amount to a finding of subjective bad faith. Such a finding concerning an attorney’s
state of mind must necessarily be based on circumstantial evidence and inferences
drawn therefrom. Having reviewed Document 373 in detail and in the context of the
litigation, we believe the circumstances support the inference drawn by the district
court, and the order adequately explains the basis for the findings of purpose and
intent. The findings are neither clearly erroneous nor an abuse of discretion. We also

                                           -8-
conclude that a sanction of $1,000 is reasonable and consistent with the principle that
a sanction be “limited to what is sufficient to deter repetition of such conduct or
comparable conduct by others similarly situated.” Fed. R. Civ. P. 11(c)(2).
Accordingly, the district court did not abuse its discretion in imposing sanctions on
Buchanan pursuant to Rule 11.

       We also review for abuse of discretion the district court’s order that Buchanan
reimburse attorneys’ fees incurred by UPS and Local 41. Tenkku v. Normandy Bank,
348 F.3d 737, 743-44 (8th Cir. 2003). A court may require counsel to satisfy
personally attorneys’ fees reasonably incurred by an opposing party when counsel’s
conduct “multiplies the proceedings in any case unreasonably and vexatiously.” 28
U.S.C. § 1927. Relying on dicta in NAACP-Special Contribution Fund v. Atkins, 908
F.2d 336, 340 (8th Cir. 1990), Buchanan argues that § 1927 has both objective and
subjective components. Our subsequent holdings make clear, however, that the statute
permits sanctions when an attorney’s conduct, “‘viewed objectively, manifests either
intentional or reckless disregard of the attorney’s duties to the court.’” Tenkku, 348
F.3d at 743 (quoting Perkins, 911 F.2d at 36); see also Lee v. First Lenders Ins.
Servs., Inc., 236 F.3d 443, 445 (8th Cir. 2001). As with sanctions under Rule 11, the
district court must provide an attorney with fair notice and an opportunity to be heard
before ordering the reimbursement of fees. Fuqua Homes, 388 F.3d at 623.

       We conclude that the motions filed by UPS and Local 41, which incorporated
and expanded on the discussion in the court’s orders granting summary judgment and
the order to show cause, put Buchanan on notice of the asserted deficiencies in the
pleading that he needed to address with respect to § 1927. The district court’s reasons
for disregarding the non-compliant pleading and imposing Rule 11 sanctions also
support a finding that counsel “multiplie[d] the proceedings . . . unreasonably and
vexatiously.” 28 U.S.C. § 1927. The reimbursement of $10,000 to each defendant
was nearly 80% less than the amount requested by UPS and 35% less than the amount
requested by Local 41, and we believe it represents a measured determination that

                                         -9-
does not exceed the fees likely incurred as a result of the vexatious pleading. See Lee,
236 F.3d at 446. Accordingly, the district court’s order to reimburse fees was not an
abuse of discretion.

      For these reasons, the orders of the district court are affirmed.
                      ______________________________




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