                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name:

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 RANDALL SCOTT WALDMAN, et al.                           ┐
                                            Appellant,   │
                                                         │       No. 16-5160
                                                         >
      v.                                                 │
                                                         │
                                                         │
 RONALD B. STONE,                                        │
                                             Appellee.   │
                                                         ┘

                              Decided and Filed: January 24, 2017

            Before: McKEAGUE, KETHLEDGE, and STRANCH, Circuit Judges.

                                      _________________

                                            ORDER
                                      _________________

       KETHLEDGE, Circuit Judge. We recently rejected Randall Waldman’s third appeal in
this case, and closed with the following summary: “Waldman defrauded Stone more than a
decade ago, and since then has subjected Stone to three rounds of litigation in the district court
and in this court as Stone sought a remedy for the fraud. A handful of Waldman’s arguments
(among the baskets-full he has presented to us and the district court) have been meritorious; but
Waldman has repeatedly presented arguments that we have already rejected or for which he
presented no support. Stone has borne the expense of responding to all those arguments. And in
this appeal, as explained above, Waldman has presented arguments that Waldman or his counsel
(subject to their right to attempt to show otherwise) should have known not to present.”
Waldman v. Stone, No. 16-5160, 2016 WL 7093992, at *2 (6th Cir. Dec. 6, 2016) (citation
omitted). Stone thereafter moved under Federal Rule of Civil Procedure 11 for sanctions in the
amount of $4,157.50, which were his attorneys’ fees in the most recent appeal. Waldman filed a
response. We construe the motion as a request for sanctions under Federal Rule of Appellate
 No. 16-5160                Randall Waldman, et al. v. Ronald Stone                  Page 2


Procedure 38, and grant it. See CFE Grp., LLC v. Firstmerit Bank, N.A., 809 F.3d 346, 353 (7th
Cir. 2015).

       Rule 38 “affords us discretion to assess just damages when confronted with a frivolous
appeal.” Miller v. Toyota Motor Corp., 554 F.3d 653, 654 (6th Cir. 2009) (internal quotation
marks and citation omitted). “An appeal is frivolous if it is obviously without merit and is
prosecuted for delay, harassment, or other improper purposes.” McDonald v. Flake, 814 F.3d
804, 816 (6th Cir. 2016) (citation omitted).

       The scope of our remand after the second appeal is relevant to the question whether
Waldman’s third appeal was frivolous. In Waldman’s first appeal, we held there was ample
evidence that Waldman (along with attorney Bruce Atherton) had defrauded Stone, but we
vacated the judgment on Article III grounds unrelated to the merits of Stone’s claims. The
district court thereafter entered a new judgment in favor of Stone and against Waldman and
Atherton, jointly and severally, for over $1 million in compensatory damages and $2 million in
punitive damages. In the second appeal, we again affirmed that Waldman and Atherton had
committed fraud, but we reduced Stone’s compensatory damages to $650,776 and vacated the
court’s determination of joint and several liability. We remanded the case for the limited
purpose of apportioning liability among the parties for Stone’s damages. On remand, the district
court found Waldman and Atherton each 50% responsible (and Stone not responsible at all) for
Stone’s compensatory and punitive damages. The court also reduced the amount of punitive
damages from $2 million to $1.2 million to retain the 2:1 ratio of punitive to compensatory
damages in its earlier judgment.

       Waldman then brought his third appeal, in which he made four arguments. One of them
challenged the district court’s decision to award punitive damages in the first place; another
challenged the court’s use of a 2:1 ratio of punitive to compensatory damages. The district court
had made both of those decisions, however, pursuant to our general remand after the first appeal
in this case, not pursuant to our limited remand after the second. Hence both of these arguments,
we said in rejecting them, were “patently beyond the scope of our limited remand and therefore
out of bounds in this appeal.” Waldman, 2016 WL 7093992, at *1. Moreover, we explained,
Waldman had waived both of these arguments in his second appeal, which made them “doubly
 No. 16-5160                Randall Waldman, et al. v. Ronald Stone                    Page 3


out of bounds” in the third.        Id.   Waldman offers no reason to revisit any of those
characterizations. We therefore hold now what we strongly suggested then: both of these
arguments were legally frivolous.

       Waldman’s remaining two arguments in the third appeal concerned the district court’s
apportionment of responsibility (50% to Waldman, 50% to Atherton) for Stone’s damages. In
making one of those arguments—that Waldman bore 0% responsibility for Stone’s damages—
Waldman came “perilously close to arguing for a third time that he did not commit fraud at all:
we rejected that argument on the merits in Waldman I, and when Waldman nonetheless made the
same argument in Waldman II, we rejected it on the ground that we had ‘already rejected’ it in
Waldman I.” Id. at *2. We conclude now that the peril was realized, and that Waldman’s
argument on this point in the third appeal was for practical purposes a reiteration of an argument
that we had twice rejected in the earlier appeals. Hence this argument in the third appeal was
frivolous.

       Waldman’s remaining argument in the third appeal was that Stone bore some of the fault
for his damages because he should have uncovered Waldman’s fraud sooner. That argument was
plainly meritless—as we said then, “Waldman himself did everything in his power to prevent
Stone from uncovering the fraud[,]” id.—but we do not think the argument was so obviously
wrong as to be frivolous.

       That Waldman included one argument that was plainly meritless rather than frivolous,
however, does not deprive us of discretion to award sanctions under Rule 38. “It would be
strange if by the happenstance of including one colorable (though losing) claim amidst an ocean
of frivolous ones, a litigant could ward off all sanctions.” Hill v. Norfolk & W. Ry. Co., 814 F.2d
1192, 1200 (7th Cir. 1987) (awarding sanctions under Rule 38); see also Macklin v. City of New
Orleans, 300 F.3d 552, 554 (5th Cir. 2002) (same); In re Perry, 918 F.2d 931, 934-35 (Fed. Cir.
1990) (same). Here, Waldman’s appeal was “obviously without merit[.]” McDonald, 814 F.3d
at 816. And Waldman “wasted our time and his adversary’s money” by submitting a brief
largely “devoted to frivolous argumentation.” Hill, 814 F.2d at 1200. Thus, we conclude that
Waldman’s third appeal on the whole was frivolous.
 No. 16-5160             Randall Waldman, et al. v. Ronald Stone                 Page 4


       We therefore grant Stone’s motion, and order Waldman and his counsel, jointly and
severally, to pay Stone $4,157.50. See, e.g., Top Entertainment v. Ortega, 285 F.3d 115, 120
(1st Cir. 2002).

       So ordered.
