                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit

                                                      November 23, 2010
                 UNITED STATES COURT OF APPEALS
                                              Elisabeth A. Shumaker
                                                         Clerk of Court
                         FOR THE TENTH CIRCUIT


GEORGANNE BIXLER; BUDDY
JACK KENNEMUR; CARROLL
SORELLE; DEAN COLEMAN,

           Plaintiff-Counter-                     No. 10-2099
           Defendants-Appellants,     (D.C. No. 1:08-CV-00676-MCA-DJS)
                                                   (D. N.M.)
and

MINERAL ENERGY AND
TECHNOLOGY CORPORATION,
(METCO),

           Plaintiff,

v.

J. DOUGLAS FOSTER,

           Defendant-Appellee,

MICHAEL DUNCAN; SAM SAPPER,

           Defendant-Counter-
           Claimants,

and

MICHAEL R. COMEAU; PAUL
FISH; FRED PETE GIBSON, III,
in their individual capacities; JIM
MALONE; URANIUM KING, LTD.,
(UKL), an Australian corporation,

           Defendants.
                           ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



      This appeal is from a district court award of attorneys’ fees under

28 U.S.C. § 1927. Discerning no abuse of discretion in that award, we affirm.

      René Ostrochovsky, a lawyer, represented minority shareholders of Mineral

Energy and Technology Corporation (“METCO”) in a Racketeer Influenced and

Corrupt Organizations Act (“RICO”) suit against the company’s directors and

attorneys. In the complaint she filed on behalf of her clients, Ms. Ostrochovsky

alleged that METCO’s majority shareholders fraudulently traded away the

corporation’s assets, depriving plaintiffs of the full value of their shares.

      One of the defendants, J. Douglas Foster, filed a motion to dismiss under

Fed. R. Civ. P. 12(b)(6). In his motion, Mr. Foster advanced two arguments.

First, he argued, the plaintiffs lacked standing to bring RICO claims because all



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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the harm allegedly done by the defendants was done to the corporation, not to the

plaintiffs personally. Second, Mr. Foster added that, even if the plaintiffs had

standing to bring their claims, the Private Securities Litigation Reform Act of

1995 (“PSLRA”) still barred their RICO claims because those claims were based

on conduct actionable under federal securities laws. See 18 U.S.C. § 1964(c).

The district court agreed with Mr. Foster on both points and granted the motion to

dismiss.

      While METCO’s appeal was pending, Mr. Foster filed a motion for

attorneys’ fees pursuant to § 1927. Eventually, the district court granted the

motion and ordered Ms. Ostrochovsky to pay the fees incurred by Mr. Foster.

The court reasoned that Mr. Foster’s “motion to dismiss would have alerted a

responsible and reasonable attorney to fatal deficiencies in Plaintiffs’ RICO

claim.” Aplt. App. at 2.4. In particular, the court found that Ms. Ostrochovsky’s

“conduct in pursuing [a RICO] claim[] in the face of Foster’s motion to dismiss

was objectively unreasonable and multiplied the proceedings recklessly and with

indifference to well-established law.” Id. at 2.4-2.5 (internal quotations omitted);

see also 28 U.S.C. § 1927 (“Any attorney . . . 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.”). Ms. Ostrochovsky now appeals the district court’s

fee award.

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      We may review an award under § 1927 “only for abuse of discretion.”

Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1202 (10th Cir. 2008). Of

necessity, this standard of review “implies [that] a degree of discretion [is]

invested” in the district judge to issue a decision “based upon what is fair in the

circumstances and guided by the rules and principles of law.” Valley Forge Ins.

Co. v. Health Care Mgmt., 616 F.3d 1086, 1096 (10th Cir. 2010) (internal

quotation omitted). Accordingly, we may reverse the district court only if its

discretionary decision fell beyond “the bounds of the rationally available choices

[before the district court] given the facts and the applicable law in the case at

hand.” Id. (internal quotation omitted).

      We cannot say the district court’s award did that. An attorney may be

sanctioned for recklessly multiplying proceedings by opposing a motion to

dismiss a patently meritless claim. Steinert v. Winn Group, Inc., 440 F.3d 1214,

1225 (10th Cir. 2006). That’s what the district court found happened here and —

whatever we might say ourselves about what transpired — we can’t say the

district court’s view of the matter was beyond the pale of the rationally available

choices before it given the law and facts it faced. As this court noted when it

considered METCO’s appeal, the plaintiffs lacked standing because the alleged

injuries recited in their own complaint were clearly and only derivative of harm

suffered by the corporation. Bixler v. Foster, 596 F.3d 751, 757-58 (10th Cir.

2010). We also confirmed that Ms. Ostrochovsky’s pleadings — alleging conduct

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that, if true, would constitute securities fraud whether called by that name or not

— were additionally and independently barred by the plain language of the

PSLRA. Id. at 760.

      Neither were these two independently fatal flaws any surprise to

Ms. Ostrochovsky. They were clearly highlighted in Mr. Foster’s motion to

dismiss. Instead of dropping or amending these meritless claims, however,

Ms. Ostrochovsky instead forged on, filing a 93-page opposition to Mr. Foster’s

motion to dismiss. In that opposition, Ms. Ostrochovsky cited a district court

case for the proposition that dilution of share ownership conferred RICO standing

but then went on to argue that case into irrelevance by reminding the court that

plaintiffs’ case “focuses on the conversion of METCO assets.” App. Supp. App’x

at 124. By proceeding despite this admission, Ms. Ostrochovsky turned a blind

eye to the “uniform holdings of other circuits” that injuries to corporate assets do

not confer RICO standing on shareholders. See Bixler, 596 F.3d at 758-59. As to

the PSLRA bar, Ms. Ostrochovsky merely insisted that she had not intended to

plead securities fraud. But she did not cite any authority for the proposition that

the alleged conduct didn’t constitute securities fraud. And in failing to do so, she

ignored the PSLRA’s plain statutory language prohibiting RICO claims based on

conduct that “would have been actionable” under the securities laws. See

18 U.S.C. § 1964(c). It is no defense under § 1927 that she may have acted with

the purest of intentions. See Hamilton, 519 F.3d at 1202. It was enough for the

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district court to conclude that her conduct was objectively unreasonable. Id.

      To be clear, we do not mean to suggest a fee award is appropriate any time

a lawyer makes losing arguments. Losing is part of the lawyer’s lot, and § 1927

isn’t aimed at shifting fees from winners to lawyers who happen to represent the

losing side. See Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987)

(en banc). But the statute does exist to provide an “incentive for attorneys to

regularly re-evaluate the merits of their claims and to avoid prolonging meritless

claims.” Steinert, 440 F.3d at 1224. The district court found that counsel in this

case, like counsel in Steinert, failed to re-evaluate the merits of her strategy once

the writing was on the wall, pressing on with a futile matter that “unreasonably

and vexatiously” multiplied these proceedings. Our role is not to re-judge that

question; it is the district judge who is invested with the discretion of passing on

that question. Our role on appeal is to ask only, but not insignificantly, whether

the district court’s assessment amounts to an abuse of the discretion entrusted to

it given the facts and law it faced. Because we cannot say the district court’s




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conclusion in this case was that, its judgment is affirmed. Mr. Foster’s request

for attorneys’ fees on appeal is denied for failure to file a separate motion. See

Fed. R. App. P. 38.



                                        Entered for the Court



                                        Neil M. Gorsuch
                                        Circuit Judge




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