*

Honorable Jerome Farris, Senior U.S. Circuit Judge for the

Ninth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-6503.

Archie R. TURNER, Plaintiff-Appellant,

v.

SUNGARD BUSINESS SYSTEMS, INC., a Delaware Corporation,

Defendant-Appellee.

Aug. 15, 1996.

Appeal from the United States District Court for the Northern

District of Alabama. (No. CV 93-N-2560-S), Edwin L. Nelson, Judge.

Before EDMONDSON and DUBINA, Circuit Judges, and FARRIS*

, Senior

Circuit Judge.

EDMONDSON, Circuit Judge:

This appeal concerns a trial court's ability to impose

attorney's fees and monetary sanctions on a party and his counsel

for continuing to prosecute a frivolous action. Plaintiff and his

attorney appeal the district court's order (1) imposing sanctions

on Plaintiff's counsel pursuant to Rule 11 of the Federal Rules of

Civil Procedure and 28 U.S.C. § 1927 and (2) awarding attorney's

fees against Plaintiff pursuant to 42 U.S.C. § 1988 and the

principles established in Christiansburg Garment Co. v. EEOC, 434

U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Because the

district court did not abuse its discretion, we affirm.

I. Background

In December 1993, Plaintiff Archie Turner sued Defendant

Sungard Business Systems, Inc. ("Sungard") for race discrimination

under Title VII of the Civil Rights Act of 1964. Turner alleged
 1

At the pretrial conference, Penick said that he wished to

depose Edwina Zales, Vice President of Human Resources for

Sungard. Sungard, in turn, indicated that it wished to depose

Turner. Penick completed Zales' deposition on 9 February 1995. 

that Sungard passed him over for a promotion and filled the vacant

position with a white employee. Richard Meelheim initially

represented Turner in this matter.

On 22 March 1994, the court granted Meelheim's motion to

withdraw. The district court later found that Meelheim withdrew

from the case "after plaintiff informed him that, regardless of his

advice, the plaintiff desired to pursue the matter through other

representation."

Henry Penick filed a notice of appearance for Turner on 28

December 1994. The district court held a pretrial conference on 27

January 1995. Sungard moved for summary judgment the same day. At

the pretrial conference, Penick told the court that he had evidence

to support Plaintiff's claim that the job at issue had been filled

by a white employee. On 17 February 1995, Sungard filed a

supplemental motion for summary judgment.1

 Plaintiff neither

responded to Sungard's motion for summary judgment nor appeared at

oral argument. On 27 March 1995, the district court granted

Sungard's summary judgment motion on the grounds that Turner had

made out no prima facie case of race discrimination, finding that

the position sought by Turner was doubtlessly still vacant.

Sungard then moved for sanctions. The district court issued

a show cause order to Turner, Meelheim and Penick. Only Meelheim

filed a response to the show cause order. Meelheim indicated that

he filed the action after conversations with Turner and another
 2

Rule 11(b)(3) provides, in pertinent part:

(b) Representations to Court. By presenting to the

court (whether by signing, filing, submitting or later

advocating) a pleading, written motion, or other paper, an

attorney or unrepresented party is certifying that to the

best of the person's knowledge, information, and belief,

formed after an inquiry reasonable under the circumstances,

...

(3) the allegations and other factual contentions have

evidentiary support or, if specifically so identified, are

likely to have evidentiary support after a reasonable

former employee of Sungard had convinced him that there was

evidence to form a reasonable belief that a white male had

effectively received a promotion that was denied to Turner.

The district court heard the matter of fees and sanctions on

28 April 1995. Because Meelheim made some investigation of

Turner's claim and withdrew when he learned Turner's claim was

meritless, the district court imposed no sanctions against him.

The district court issued an order awarding $10,000.00 against

Turner representing reasonable attorney's fees pursuant to 42

U.S.C. § 1988 and $6,255.00 against Penick as a sanction for

prosecuting Turner's frivolous action. Turner and Penick appeal.

II. Discussion

A. Sanctions Imposed on Counsel

 We review the district court's imposition of sanctions

pursuant to Rule 11 for an abuse of discretion. See Donaldson v.

Clark, 819 F.2d 1551, 1556 (11th Cir.1987) (en banc). Penick's and

Turner's ("Appellants") argument on the Rule 11 sanction is

two-fold. First, Appellants argue that Penick has signed no

document, such as a pleading or motion, sufficient to trigger Rule

11.2 Second, Appellants argue that because the district court
opportunity for further investigation or discovery. 

 3Appellants also argue that it was error to sanction Penick

pursuant to Rule 11 because Sungard failed to comply with the

safe harbor provisions of Rule 11(c)(1) by serving the motion for

sanctions only one day before filing it with the court instead of

the 21 days required. Because Penick was sanctioned pursuant to

a show cause order issued by the district court, this procedural

argument is without merit. See Fed.R.Civ.P. 11(c)(1)(B). 

 4Sungard states that Penick also signed and filed pre-trial

conference documents. The district court does not appear,

however, to have relied on such documents in sanctioning Penick

under Rule 11. 

failed to sanction Meelheim for filing Plaintiff's complaint,

Plaintiff's substitute counsel, Penick, cannot be sanctioned. Both

of these contentions are mistaken.3

 Appellants argue that the only paper that Penick signed and

submitted to the court was a notice of appearance. 4 Appellants

argue that Penick's signing of the notice of appearance cannot

subject him to sanctions under Rule 11.

This argument ignores the plain language of Rule 11, which

merely requires "papers" to be "present[ed]" to the court.

Further, it is well established that Rule 11 applies to all papers

filed in a suit. See, e.g., Thomas v. Capital Security Servs.,

Inc., 836 F.2d 866, 870, 873 (5th Cir.1988) (en banc). The

district court found that "from the moment he appeared on the

plaintiff's behalf, he [Penick] had actual knowledge that there was

no merit to the plaintiff's assertions, or, at the very least, he

consciously decided not to inquire of the merits." That the only

"paper" Penick signed and submitted to the court in prosecuting

Plaintiff's claim was the notice of appearance is unimportant. By

appearing in this case, Penick affirmed to the court that the case
had arguable merit. In this sense, it was as if Penick had refiled

the complaint. To use Rule 11's words, he was "later advocating"

that the "factual contentions [in the complaint] have evidentiary

support."

 Appellants' citation of Bakker v. Grutman, 942 F.2d 236 (4th

Cir.1991), is unpersuasive. In Bakker, the Fourth Circuit

determined that the district court did not abuse its discretion in

refusing to impose Rule 11 sanctions on substitute counsel whose

only role in the case had been to move for a protective order

extending the time to respond to discovery requests (to which

opposing counsel consented), to produce documents in response to

the request and then to file a voluntary dismissal, with prejudice,

of her client's claims. Penick did more wrong and less right than

did counsel in Bakker. Moreover, district courts do have broad

discretion about sanctions.

 Appellants stress the view that it was an abuse of discretion

for the district court to issue sanctions against Penick when the

court did not impose sanctions against Meelheim, who signed and

submitted the complaint. In essence, Appellants argue that because

the complaint was not sufficiently frivolous to subject Meelheim to

sanctions, Penick cannot be subject to sanctions when the only

document he filed is a notice of appearance. Appellants' view of

the scope of counsel's duty under Rule 11 is far too limited.

Rule 11 was amended effective 1 December 1993. The 1993

amendment makes clear the continuing nature of a litigant's

responsibility under Rule 11. Under the 1993 amendment:

It [Rule 11] also, however, emphasizes the duty of candor by

subjecting litigants to potential sanctions for insisting upon
 5

Because the district court did not abuse its discretion in

sanctioning Penick under Rule 11, we do not reach the issue of

whether the district court abused its discretion in finding

Penick's conduct sanctionable pursuant to 28 U.S.C. § 1927. 

a position after it is no longer tenable....

 . . . . .

[A] litigant's obligations with respect to the contents of

these papers are not measured solely as of the time they are

filed with or submitted to the court, but include reaffirming

to the court and advocating positions contained in those

pleadings and motions after learning that they cease to have

any merit. For example, an attorney who during a pretrial

conference insists on a claim or defense should be viewed as

"presenting to the court" that contention and would be subject

to the obligations of subdivision (b) measured as of that

time.

Fed.R.Civ.P. 11 advisory committee's note.

The district court found that (1) Penick knew from the moment

he began representing Plaintiff that his claim was meritless, (2)

at the pretrial conference, Penick represented that he had evidence

to support Plaintiff's claim that the job at issue had been filled

though no such evidence was ever presented to the court, and (3)

after taking Zales' deposition, Penick had to know that the case

was without a factual basis but failed to dismiss it, thereby

forcing Sungard (and the court) to expend time and money on a

summary judgment motion. That the contentions contained in the

complaint were not frivolous at the time it was filed does not

prevent the district court from sanctioning Penick for his

continued advocacy of them after it should have been clear that

those contentions were no longer tenable. An ample basis exists

for the district court's imposition of Rule 11 sanctions.5

B. Award of Attorney's Fees

 Appellants argue that the district court's award of
 6

A finding of actual bad faith constitutes a basis for an

attorney's fees award regardless of the Sullivan factors. See

Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422-24, 98

S.Ct. 694, 701, 54 L.Ed.2d 648 (1978) ("needless to say, if a

plaintiff is found to have brought or continued such a claim in

bad faith, there will be an even stronger basis for charging him

with the attorney's fees incurred by the defense") (emphasis in

original). 

attorney's fees violates the Supreme Court's mandate of

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54

L.Ed.2d 648 (1978). Under Christiansburg, a district court may

award attorney's fees to a prevailing defendant in a Title VII case

"upon a finding that the plaintiff's action was frivolous,

unreasonable, or without foundation, even though not brought in

subjective bad faith." Id. at 420-22, 98 S.Ct. at 700.

 In determining whether to assess attorney's fees, the

district court must examine (1) whether the plaintiff established

a prima facie case, (2) whether the defendant offered to settle,

and (3) whether the trial court dismissed the case prior to trial

or held a full-blown trial on the merits. Sullivan v. School Bd.

of Pinellas County, 773 F.2d 1182, 1189 (11th Cir.1985). 6

 We

review the district court's findings to determine whether it abused

its discretion. Id. at 1188.

Appellants offer two arguments that the district court abused

its discretion in awarding attorney's fees. First, Appellants

argue that because the district court failed to sanction

Plaintiff's initial counsel, the complaint must not have been

frivolous and, therefore, Plaintiff's action could not be

frivolous, unreasonable or without foundation as required by

Christiansburg. Second, Appellants argue that the district court
failed to consider properly the Sullivan factors listed above

before imposing attorney's fees and that under such a test,

Plaintiff's action was not frivolous or groundless. Neither

contention is correct.

 Appellants' argument about the implications of the district

court's failure to sanction Meelheim is based on an overly narrow

view of the Plaintiff's responsibilities under Title VII and

Christiansburg. As Appellants point out in their brief, in

Christiansburg, the Supreme Court indicated that "a plaintiff

should not be assessed his opponent's attorney's fees unless a

court finds that his claim was frivolous, unreasonable, or

groundless, or that the plaintiff continued to litigate after it

clearly became so." 434 U.S. at 422, 98 S.Ct. at 701 (emphasis

added). Appellants have cited no case which limits a litigant's

duty under Christiansburg to the time of filing the complaint, and

we have never so held. In the present action, the district court

found that "[t]he plaintiff knew his claim was frivolous, at the

latest, at some point between January 17, 1994 and March 18, 1994,

when such was communicated to him by his attorney Mr. Meelheim."

That Turner may have had a reasonable basis for believing that he

had been denied a promotion based on his race when the complaint

was filed is insufficient under Christiansburg.

 Appellants dispute the district court's finding of actual bad

faith on Plaintiff's part and also say, citing a series of recent

Title VII attorney's fee cases from this circuit, that the district

court erred in failing to apply the factors we set out in Sullivan.

Appellants claim, in essence, that the district court assessed
 7

Sungard disputes Appellants' characterization of the

settlement offer, claiming that this offer was "nominal" and

sought to dispose of not only the instant case, but two other

EEOC charges against Sungard by Turner. 

attorney's fees simply because Sungard prevailed in the underlying

litigation. Appellants—as evidence that Plaintiff's claim was not

frivolous—stress the fact that Sungard offered to settle the matter

before the hearing on the summary judgment motion.7

Regardless of actual bad faith on Plaintiff's part, an

examination of the Sullivan factors indicates that the district

court's decision to award attorney's fees does not constitute an

abuse of discretion. The district court dismissed Plaintiff's case

on summary judgment and, in so doing, concluded that Plaintiff had

failed to establish a prima facie case of discrimination. As

Appellants have acknowledged, Plaintiff failed to oppose Sungard's

motion for summary judgment precisely because they had no basis for

doing so, that is, because Plaintiff's claim was not "meritorious

enough to receive careful attention and review." Walker v.

NationsBank of Florida, 53 F.3d 1548, 1559 (11th Cir.1995).

The cases cited by Appellants bear little resemblance to the

present case and do not dictate a different result. See id.

(attorney's fee award improper where defendant's two summary

judgment awards were denied and plaintiff established prima facie

case at trial); EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564,

1572 (11th Cir.1993) (attorney's fee award improper where EEOC

established prima facie case); Moulds v. Wal-Mart Stores, Inc.,

935 F.2d 252, 257 (11th Cir.1991) (appeal of trial court's

dismissal of claims was not frivolous to warrant attorney's fees);
 8

Appellants also challenge as error the amount ($10,000) of

attorney's fees awarded. The district court held as follows: 

"The court has no reason to question these sums as they have not

been contested and because they are reasonable in light of the

present circumstances." Not only do Appellants challenge this

amount for the first time on appeal, but they also fail to point

to evidence that would show that the amount is unreasonable under

the circumstances. So, we do not conclude that the amount of

attorney's fees awarded constituted error. 

Busby v. City of Orlando, 931 F.2d 764, 787 (11th Cir.1991)

(attorney's fees award improper where relevant legal issue in

underlying action was sufficiently close that "one judge on this

panel disagrees over the disposition").

The district court's imposition of sanctions on Plaintiff's

counsel under Rule 11 and its award of attorney's fees against

Plaintiff pursuant to 28 U.S.C. § 1988 for their respective roles

in continuing to prosecute an action after it became clear that

Plaintiff's claim had no basis in fact was no abuse of discretion.8

AFFIRMED.