IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-11190

_______________

WILLIAM P. EDWARDS,

Plaintiff-Appellant,

HOLLY CRAMPTON,

Appellant,

VERSUS

GENERAL MOTORS CORPORATION,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________ September 11, 1998

Before KING, SMITH, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This appeal of attorney sanctions requires us to decide

whether a district court may sanction an attorney for filings made

in state court prior to removal. Because we conclude that district

courts are not authorized to do so, we reverse that portion of the

award that is based on pre-removal conduct. Because, however, the

sanctioned attorney continued to maintain her case in federal court

long after she realized it had no merit, we affirm that portion of2

the award that is based on her vexatious multiplication of the

proceedings.

I.

Plaintiff William Edwards was employed by General Motor s

Corporation (“GM”) at its plant in Wichita Falls, Texas, and was

a member of the United Auto Workers (“UAW”). As such, he was

subject to the collective bargaining agreement (“CBA”) between GM

and the UAW, which requires covered employees to bring grievances,

including discharge decisions, through union grievance procedures.

Appellant Holly Crampton is a lawyer who specializes in employment

litigation, often against GM, and has appeared before the district

judge a quo on several occasions.

In 1994, after receiving complaints that plant employees had

been selling and using drugs on the premises of its Wichita Falls

plant, GM arranged for Kevin Ray, an experienced undercover drug

agent, to investigate. He worked in the plant for almost a year,

observing and t alking to employees, and identified six employees

whom he had observed using drugs. Among them was Edwards, whom Ray

had observed snorting cocaine at the plant in February 1995. Five

of the six charged employees were white; Edwards is black.

Pursuant to the disciplinary procedures of the CBA, GM charged

Edwards with using cocaine on the premises. Edwards was first

suspended and then discharged. Of the six drug-using employees Ray3

i dentified, five were discharged and one SS who had used marihuan a

rather than cocaine SS was given a disciplinary layoff. The relative

severity of these penalties was based on previous arbitration

decisions in volving similar or identical conduct. In all, four

whites and one black were discharged, and one white was given

lesser punishment.

Edwards filed a formal grievance with the UAW, claiming that

the discharge was an excessive penalt y. The grievance mentioned

nothing about r ace discrimination or retaliation. Edwards never

prosecuted that grievance, and nothing became of it.

II.

In 1996, Crampton filed suit on behalf of Edwards in state

court, alleging that he had been unfairly tar geted for his

involvement in matters surrounding a layoff in 1987-88, and for his

race. It alleged causes of action under Texas law for race

discrimination and retaliation, intentional infliction of emotional

distress, and defamation.

GM removed to federal court, answered the complaint, and

requested attorneys' fees und er F ED

. R. C IV

. P. 11. In November

1996, G M moved for summary judgment, again requesting attorneys'

fees. On December 7, the parties attended a mandatory mediation

session.

On that day, according to Crampton, she and Edwards concluded

that they could not win their case. They decided that instead of1 Cra mpton's willingness to accept a dismissal on the merits S S which of

course precludes Edwards ever again from bringing his claim SS stands at odds with

the notion that she intended to refile Edwards's claim as part of a class action.

2 Crampton was undeniably aware of that case, for she herself had brought

that action, and lost in the Fifth Circuit.

4 pursuing it any further, Edwards would become the named plaintiff

in a new class action that Crampton was preparing to file. In the

district court and in her briefs filed with this court, Crampton

expressly conceded that after December 7, 1996, she anticipated and

desired that Edward’s suit be dismissed on the merits. 1

Crampton did not seek a voluntary dismissal, however, nor did

she notify GM or the court that she no longer intended to pursue

the case. Instead, she continued to allow GM to incur attorneys'

fees as it prepared for trial. She filed no substantive motions,

but did request several extensions of time, and filed witness and

exhibit lists. She never filed an answer to GM's motion for

summary judgment, however, and on Ja nuary 30, 1997, the court

issued a fourteen-page memorandum opinion and order granting

summary judgment for GM.

The court concluded that (1) Edwards put forth no evidence of

racial discrimination; (2) he put forth no evidence of retaliation;

(3) even if he had presented evidence, he had waived these claims

by failing to allege discrimination or retaliat ion in his labor

grievances; and (4) under Bagby v. General Motors Corp. , 976 F.2d

919 (5th Cir. 1992)

, 2 his state law claims were preempted by

federal labor law.3 We also note that F ED

. R. C IV

. P. 1 states that the Federal Rules of Civil

Procedure “govern the procedure in the United States district courts.”

5 Shortly after receiving summary judgment, GM moved for

attorneys' fees. Crampton filed a notice of appeal, though she had

never responded to the motion for summary judgment and had produced

no summary judgment evidence. This court dismissed the appeal for

want of prosecution.

In July 1997, the district court held a hearing on GM's motion

for attorneys' fees, at which it received evidence and heard

argument. The court granted GM's motion, awarding rule 11

sanctions of $46,820, representing the entire amount of attorneys'

fees incurred by GM in its defense of the lawsuit. Alternatively,

the court awarded $24,220 under 28 U.S.C. § 1927, representing GM's

fees incurred only after December 7, the date on which Crampton now

admits that she gave up on the suit.

III.

A.

There is no indication, in the text of the rule, that it

applies to filings in any court other than a federal district

court. 3 Thus, it cannot apply to the petition Crampton filed in

state court that thereafter was removed. S ee Foval v. First Nat’l

Bank of Commerce

, 841 F.2d 126, 130 (5th Cir. 1988) (“Rule 11 does

not apply to conduct in state court prior to removal.”). To be4 Other circuits to have addressed this issue also have concluded that

plaintiffs cannot be sanctioned after removal under rule 11 for papers filed in

state court. See, e.g., Worthington v. Wilson , 8 F.3d 1253, 1257-58 (7th Cir.

1993); Hurd v. Ralph's Grocery Co.

, 824 F.2d 806, 808 (9th Cir. 1987); Stiefvater

Real Estate, Inc. v. Hinsdale

, 812 F.2d 805, 809 (2d Cir. 19 87). C f. also

Schoenberger v. Oselka

, 9 09 F.2d 1086, 1087 (7th Cir. 1990) (noting that all

circuits to have addressed the question agree).

6 sure, we have upheld sanctions in removed cases. S ee, e.g., Childs

v. State Farm Mut. Auto Ins. Co.

, 29 F.3d 1018 (5th Cir. 1994).

But such sanctions are proper only insofar a s they are based on

post-removal filings. Cf. id. at 1023 n.16 (specifying p ostremoval filings upon which sanctions were imposed).

Moreover, r ule 11 does not impart a continuing duty, but

requires only that each filing comply with its terms as of the time

the paper is signed. S ee Thomas v. Capital Sec. Servs., Inc.

, 836

F.2d 866, 874 (5th Cir. 1988) (en banc). Consequently, Crampton

cannot be sanctioned simply for her failure to withdraw pleadings

filed in state court that would have violated rule 11 had they been

filed in federal court. 4

B.

To uphold sanctions under rule 11, we must be able to point to

some federal filing in which the sanctioned attorney violated that

rule. Rule 11 requires that attorneys certify that their claims

are well-grounded in fact and in law, and that their filings are

not being presented for any improper purpose. S ee rule 11(b).

Absent improper purpose, therefore, a rule 11 violation must be5 We need not address whether sanctions would be maintainable under rule 11

for the period after Dec ember 7, for in the next section we conclude that an

award of post-December 7 attorneys' fees may be upheld under 28 U.S.C. § 1927.

7 predicated on the certification of some legal or factual claim.

From removal through December 7, Crampton m ade no such

certification. And no one has argued that she made any filing for

an improper purpose during that time. In fact, the only paper she

filed during that nine-month period was a designation o f expert

witnesses. This filing made no legal or factual contentions and is

not alleged to have been made for an improper purpose. Therefore,

we cannot uphold the award of rule 11 sanctions for the period

through December 7, 1996. 5

IV.

The district court also based a portion of the award on

28 U.S.C. § 1927. Specifically, the court awarded attorneys' fees

under that section for Crampton's continued maintenance of the

action after D ecember 7, the date on which she admittedly

determined that her case was unwinnable, and on which she decided

not to pursue the claim any further.

Section 1927 provides that “[a]ny 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.” The adverbs being in the conjunctive, sanctions8

under § 1927 must be predicated on actions that are both

“unreasonable” and “vexatious.” S ee Travelers Ins. Co. v. St. Jude

Hosp., Inc.

, 38 F.3d 1414, 1416-17 (5th Cir. 1994). This requires

that there be evidence of bad faith, improper motive, or reckless

disregard of the duty owed to the court. S ee id.; Baulch v. Jones

,

70 F.3d 813, 817 (5th Cir. 1995).

Because of the punitive nature of § 1927 sanctions, and in

order not to chill legitimate advocacy, the provision mus t be

strictly construed. See id . We review the ruling only for abuse

of discretion, however , and we must be careful to avoid

substituting our own judgment for that of the district court. S ee

St. Jude

, 70 F.3d at 817. “[T]he question we address is not

whether this Court, in its own judgment and as an original matter,

would have imposed any of these sanct ions. Rather, we only ask

whether the district court abused its discretion in doing so.”

Topalian v. Ehrman , 3 F.3d 931, 934 (5th Cir. 1993).

The district court found that “Crampton's actions in refusing

to disclose to GM or to the Court her decision to abandon the

prosecution of this case were unreasonable and vexatious. The

Court also specifically finds that Crampton has acted in bad faith,

with improper motive, and with a reckless disregard of the duty

owed to the Court.” The court found that Crampton deliberately

kept her meritless case alive for no purpose other than to force GM

to settle or to defend it: “In eleven years on the bench, this9

Court has never witnessed an attorney so willfully cause an

opposing party to needlessly incur attorney's fees.”

The record is littered with indications that Crampton

abandoned her suit, but willfully required GM to continue to defend

it, and required the court to continue to consider its merits. In

the sanctions hearing, Crampton admitted that after December 7, she

knew that she had no case as a matter of fact, stating that “[i]n

my opinion, I could not show intentional discrimination.” Nor did

she have a case as a matter of law: “[ I]f we were successful at

trial, I don't think the Fifth Circuit would have affirmed it.”

Therefore, she admitted, “I really didn't want to save this case.”

Crampton, who represents herself on appeal, has made similar

admissions to this court. For example, in her opening brief, she

stated one of the issues as “[w]hether counsel is required to

inform the adverse party and/or the court of the party's decision

not to respond to a motion for summary judgment in anticipation

that the case will be dismissed as a result of the failure to

respond, which is the anticipated and desired result [.]” (Emphasis

added.) Perhaps most compelling is her pattern of conduct in the

district court: That she never filed any substantive motions,

never took any depositions, and never even responded to GM's motion

for summary judgment is strongly indicative that she had abandoned

the suit. The district court did not abuse its discretion in

finding that Crampton decided to abandon the suit on December 7.10

There is also ample support for the finding that after that

date, Crampton deliberately acted so as to force GM to continue to

incur costs, preparing to defend her now-abandoned claim. Although

she “anticipated and desired” that the case should be dismissed on

the merits, Crampton filed witness and exhibit lists as if she were

gearing up for trial. Twice she moved for an extension of time to

respond to GM's summary judgment motion, though she nev er did

respond. Crampton even went so far as to move for a trial

continuance, though she admits she never intended to go to trial.

Crampton was not content to allow her suit to die on the vine.

Rather, she kept it alive, hoping to extort a nuisance-value

settlement. In so doing, she abused the judicial process to harass

an apparently innocen t defendant into paying money to which her

client had no rightful claim. Her deliberate acts bespeak not

negligence, but bad faith: the willful continuation of a suit known

to be meritless, and conceded to have been abandoned. The district

court did not abuse its discretion in concluding that Crampton

unreasonably and vexatiously multiplied the proceedings by keeping

Edward's suit alive after she had decided to pursue it no further.

V.

In summary, because the district court had no authority to

impose rule 11 sanctions for the filings Crampton made in state

court, we REVERSE that portion of the sanctions attributable solely

to those filings. We AFFIRM the sanctions awarded under 28 U.S.C.11

§ 1927 in the amount of $24,220, which is the amount of attorneys'

fees GM incurred after December 7, 1996.