NOT RECOMMENDED FOR FULL-TEXT PUBLICATION 

File Name: 17a0178n.06 

 Case No. 16-6785 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

UNITED STATES OF AMERICA EX REL. 

ANDREW HIRT, 

 Plaintiff-Appellant, 

v. 

WALGREEN COMPANY, 

 Defendant-Appellee. 

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE MIDDLE DISTRICT OF 

TENNESSEE 

BEFORE: SUHRHEINRICH, SUTTON, and McKEAGUE, Circuit Judges. 

PER CURIAM. After losing his qui tam lawsuit at the district court, Andrew Hirt, owner 

of Andy’s Pharmacies, filed a Rule 59 motion to vacate or amend the judgment. Hirt failed to 

persuade the court, and defendant Walgreen Company moved to impose $19,108 in sanctions for 

“unreasonable and vexatious multiplication of the proceedings.” R. 60 at 1. The district court 

rejected the motion in part and granted it in part, ultimately awarding $5,833 in sanctions. 

Because the district court did not abuse its discretion, we affirm. 

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.” 28 U.S.C. § 1927. To merit 

sanctions, the conduct must demonstrate more than negligence or incompetence but need not 

amount to bad faith. Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 
Case No. 16-6785, U.S. ex rel. Hirt v. Walgreen Co.

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646 (6th Cir. 2006). We review an award under § 1927 for abuse of discretion. Hall v. Liberty 

Life Assurance Co. of Bos., 595 F.3d 270, 275 (6th Cir. 2010). 

Because Hirt’s Rule 59 motion directly parroted arguments made in a prior motion, we 

cannot say that the district court abused its discretion in awarding sanctions. A Rule 59 motion 

must identify a clear error of law, a change in controlling precedent, newly discovered evidence, 

or a need to prevent manifest injustice. Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 

2005). It is not a vehicle for re-litigating the case with (previously available) fresh arguments or 

for merely rehashing it with (previously presented) stale ones. Sault Ste. Marie Tribe of 

Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998); Culver v. CCL Label, Inc., 455 

F. App’x 625, 631 (6th Cir. 2012). 

Hirt’s motion commits the latter offense. It repeats nearly word-for-word the arguments 

that Hirt had presented to the district court in his objections to the Magistrate’s Report and 

Recommendations. It does not identify a clear error of law and does not attempt to invoke any 

of the remaining three grounds for Rule 59 relief. As a result, the district court did not err in 

determining that Hirt’s counsel “‘reasonably should have known’ that the motion to alter or 

amend would ‘needlessly obstruct the litigation.’” R. 66 at 5. If the arguments did not work the 

first time, Hirt’s counsel had every reason to know that re-submitting a verbatim recitation of 

them would do little but create additional litigation expense. 

That some district courts have declined to impose sanctions in other cases does not show 

that the court abused its discretion in this case. Those cases of course involved their own facts, 

circumstances, and litigation history. No less fundamentally, discretion necessitates room for 

choice. Even if other courts, or for that matter this court, might have exercised this discretion 
Case No. 16-6785, U.S. ex rel. Hirt v. Walgreen Co.

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differently in the first instance, we cannot say that the district court’s use of its discretion 

amounted to an abuse in this case. 

For these reasons, we affirm.