IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Jason A. Milner, et al.,

Case No. 2:10-cv-904

Plaintiffs, 

v. Judge Graham

Robin Biggs, et al., Magistrate Judge King

Defendants.

OPINION AND ORDER

This matter is before the court on a motion for sanctions against plaintiffs’ attorney filed by

defendants Arrow Title Agency, LLC, Arrow’s President, Jonathan Holfinger, and its regional sales

manager, Chris Moore (collectively “Arrow”). For the reasons stated below, the motion is

conditionally granted and additional briefs are ordered related to the amount of sanctions. 

I. Factual Background

Plaintiffs Jason A. Milner, Natasha M. Milner, and Lexi Milner filed their complaint on

September 7, 2010, in the Court of Common Pleas, Pike County, Ohio. (Doc. 3.) The complaint

asserted twelve claims against twelve defendants, (nine named defendants and three John Does). 

(Doc. 3.) The case was removed to this Court on October 7, 2010. (Doc. 1.) 

The twelve claims arose from plaintiffs’ dissatisfaction with the purchase of a home in

Beaver, Ohio. At some point after they moved into the house, they discovered an area under the

floor that “appeared to be all rotted” and, in several places, a substance that they believed to be mold. 

(Doc. 141 at 5.) Plaintiffs subsequently brought suit against a number of parties involved in their

purchase of the home. Plaintiffs asserted six of their twelve claims against movants: Claim II for

violation of the Ohio Consumer Sales Practices Act (“CSPA”); Claim III for negligence; Claim IV

1

Case: 2:10-cv-00904-JLG-NMK Doc #: 150 Filed: 10/02/12 Page: 1 of 9 PAGEID #: <pageID>
for negligent misrepresentation; Claim VI for civil conspiracy; Claim XI for violation of the Real

Estate Settlement Procedures Act (“RESPA”); and Claim XII for unjust enrichment.

On October 25, 2010, Arrow notified plaintiffs that it believed the claims against it to be

frivolous, and that it intended to seek sanctions if forced to incur significant legal expenses. (Doc.

146-1 at 2.) In a letter dated January 11, 2011, Arrow addressed plaintiffs’ claims that it had

negligently prepared the deed to the plaintiffs’ home by preparing the deed to convey the property

solely to Jason Milner, not to Jason and Natasha Milner. Arrow attached to the letter a “Draft

survivorship deed conveying the Property from Jason A. Milner to Jason A. Milner and Natasha M.

Milner.” (Doc. 146-2 at 1 (emphasis in original).) As of July 20, 2011, more than seven months

later, plaintiffs continued to pursue their claims against Arrow, but had taken no steps to execute and

file the survivorship deed. (Jason Milner Dep., Doc. 69-1 at 71-72.)

On February 24, 2011, Arrow moved for judgment on the pleadings with respect to each of

the five state-law claims against it, but not on the federal RESPA claim. On June 1, 2011, plaintiffs

moved to amend their complaint and to add additional parties. (Doc. 42.) The motion did not

include the text of any proposed amendment, but sought leave to amend the complaint after the court

ruled on Arrow’s pending motion for judgment on the pleadings. Id. 

On June 8, 2011, this Court granted-in-part Arrow’s motion for judgment on the pleadings. 

(Doc. 48.) The Court granted Arrow’s motion with respect to plaintiffs’ CSPA, conspiracy, and

unjust enrichment claims and denied it with respect to the negligence and negligent

misrepresentation claims. TheCourt subsequentlydenied plaintiffs’ motion for reconsideration (doc.

58) and plaintiffs’ motion to amend the complaint (doc. 54).

On September 27, 2011, after the close of discovery, Arrow moved for summary judgment

2

Case: 2:10-cv-00904-JLG-NMK Doc #: 150 Filed: 10/02/12 Page: 2 of 9 PAGEID #: <pageID>
on the three claims remaining against it. (Doc. 68.) Before the Court had ruled on that motion, the

plaintiffs, after more than a year of litigation, moved to dismiss all claims without prejudice. (Doc.

73.) The Court denied the motion to dismiss without prejudice (doc. 85) and plaintiffs moved for

summary judgment against Arrow on the negligence and negligent misrepresentation claims. (Doc.

108.) In that motion, plaintiffs’ sought “damages in the total amount of the costs associated with

correcting the deed.” (Doc. 108 at 5.) However, as of July 20, 2011, plaintiffs had taken no action

to file the deed provided by Arrow ten months before the summary judgment motion (Doc. 69-1 at

71-72), nor is there any evidence that plaintiffs ever incurred any damages in attempting to fix the

alleged error in the deed. 

On April 6, 2012, the Court granted defendants’ motions for summaryjudgment on all claims

against all defendants. (Doc. 141.) In dismissing the RESPA, negligence, and negligent

representation claims against Arrow, the Court found that there had simply never been any evidence

that there was any agreement or understanding between the real estate agents and Arrow to make any

improper kickbacks or payments: “The evidence thoroughly establishes that no such agreement

existed.” (Doc. 141 at 23.) The court also found a complete absence of evidence of negligence or

negligent misrepresentation. (Doc. 141 at 24-25.) Arrowsubsequentlymoved for sanctions, seeking

recovery of attorney’s fees, costs, and expenses pursuant to 28 U.S.C. § 1927 and “this Court’s

inherent authority.” (Doc. 146 at 1.) 

II. Legal Standard

Pursuant to 28 U.S.C. § 1927:

Any attorney or other person admitted to conduct cases in any court of the Untied

States or any Territory thereof 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

3

Case: 2:10-cv-00904-JLG-NMK Doc #: 150 Filed: 10/02/12 Page: 3 of 9 PAGEID #: <pageID>
conduct.

Sanctions issued under Section 1927 and under the Court’s inherent authority “empower the court

to command obedience to the judiciary and to deter and punish those who abuse the judicial

process.” Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 645 (6th Cir.

2006). The purpose of such sanctions is to “deter dilatory litigation practices and to punish

aggressive tactics that far exceed zealous advocacy.” Id. at 646. Accord Garner v. Cuyahoga County

Juvenile Court, 554 F.3d 624, 644 (6th Cir. 2009). An attorney subject to sanctions under 28 U.S.C.

§ 1927 is “required to personally satisfy the excess costs attributable to his misconduct.” Red

Carpet, 465 F.3d at 646.

In addition to its authority under 28 U.S.C. § 1927, this Court “has the ‘inherent authority

to award fees when a party litigates in bad faith, vexatiously, wantonly, or for oppressive reasons.’” 

First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 512 (6th Cir. 2002) (quoting

Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125 F.3d 308, 313 (6th Cir. 1997)). 

III. Analysis

Movants argue that plaintiffs have engaged in three types of sanctionable behavior: pursuing

meritless claims with the intent to harass, filing inappropriate motions, and engaging in bad-faith

discovery tactics.

Meritless Claims Brought to Harass

Arrow argues that each of the claims that plaintiffs brought against it had no factual or legal

basis and were brought to harass Arrow “into litigating or settling a meritless, vexatious claim.” 

(Doc. 146 at 11.) Ultimately, the Arrow defendants prevailed on each of the six claims that plaintiffs

brought against them. Three claims (CSPA, civil conspiracy, and unjust enrichment) were resolved

4

Case: 2:10-cv-00904-JLG-NMK Doc #: 150 Filed: 10/02/12 Page: 4 of 9 PAGEID #: <pageID>
in Arrow’s favor on its motion for judgment on the pleadings. The remaining three (negligence,

negligent misrepresentation, and RESPA) were resolved in Arrow’s favor on its motion for summary

judgment. Success on the merits does not ordinarily entitle the prevailing party to sanctions. 

However, movants argue that the claims against Arrow were so frivolous that they should have been

resolved early in this litigation when Arrow provided plaintiffs with a survivorship deed with which

they could have fixed the alleged error on the deed, and that maintaining the claims after that point

only served to unreasonably multiply and delay the litigation.

Three of the claims–negligence, negligent representation, and unjust enrichment–relate to the

alleged error in the deed. The CSPA, RESPA, and conspiracy claims each would have required

additional improper actions by Arrow. Plaintiffs had no evidence of or reason to suspect that Arrow

had violated the CSPA or RESPA, or engaged in a civil conspiracy. There is no evidence of, or even

any allegation to support the idea that Arrow “committed unfair, deceptive, and/or unconscionable

acts and practices” to support the CSPA claim. (Doc. 3 ¶ 51.) Nor is there any evidence of a

kickback or improper payment to support the RESPA claim. Plaintiffs’ have admitted as much,

candidly acknowledging that the RESPA claim was based on speculation and assumption. (N.

Milner Dep., doc. 70-1 at 83, 110, J. Milner Dep., doc. 69-1 at 52-55.) The conspiracy claim against

Arrow rested on the sole allegation that Arrow and other defendants were “working together and

steering customers to Defendants’ benefit.” (Doc. 3 ¶ 112.) Like the RESPA claim, plaintiffs had

no basis other than pure speculation on which to rest this claim.

The claims against Arrow for negligence, negligent representation, and unjust enrichment

at least related to some potentially-real, non-speculative harm. They all arose solely from the fact

that Natasha Milner’s name did not appear on the deed, only her husband’s. Plaintiffs do not allege

5

Case: 2:10-cv-00904-JLG-NMK Doc #: 150 Filed: 10/02/12 Page: 5 of 9 PAGEID #: <pageID>
and have provided no evidence of any harm arising from the fact that the deed was not how they

wanted it, nor are any such harms plausible. Therefore, as the court stated in its order granting-inpart Arrow’s motion for judgment on the pleadings, “as to Arrow it would seem that the only

damages related to this claim could be the costs associated with correcting the deed.” (Doc. 48 at

12.) Yet, very early in this litigation, on January 11, 2011, Arrow provided plaintiffs with a

survivorship deed that would solve the problem with the deed. (Doc. 146-2.) The only other

possible damages plaintiffs could have suffered at that point from Arrow’s negligence or negligent

misrepresentation are any costs associated with filing the deed. Yet, more than six months later,

Jason Milner testified that he had not filed the survivorship deed, nor had plaintiffs taken any other

action to correct the deed. (Doc. 69-1 at 71-72.) Given plaintiffs’ refusal to file the deed that would

solve the onlyharm they alleged Arrow to have caused by negligence or negligent misrepresentation,

Arrow did everything it could have to make plaintiffs whole when it provided them with the

survivorship deed. Any non-frivolous controversy concerning negligence or negligent

misrepresentation ended then, and further proceedings served simply to unreasonably multiply the

proceedings. Similarly, though this Court held that plaintiffs had stated no claim for unjust

enrichment (see doc. 48 at 6), any possible harms stemming from that claim could have been

resolved with the survivorship deed.

Because the three claims not directly related to the alleged error on the deed were meritless

and served only to multiply the proceedings, and because the negligence, negligent

misrepresentation, and unjust enrichment claims became meritless and served only to multiply the

proceedings once Arrow had provided a solution to the problem, Arrow is entitled to all attorney’s

fees, costs, and expenses incurred between January 11, 2011 and this Court’s entry of judgment on

6

Case: 2:10-cv-00904-JLG-NMK Doc #: 150 Filed: 10/02/12 Page: 6 of 9 PAGEID #: <pageID>
April 6, 2012.

Other Arguments for Sanctions

In light of the sufficient reasons for imposing sanctions discussed above, it is unnecessary

to consider Arrow’s other arguments that sanctions are warranted–because plaintiffs engaged in

inappropriate motions practice and bad-faith discovery tactics. It is worth noting, however, that

plaintiffs did engage in unreasonable motions practice that served only to multiply proceedings. For

example, Arrowargues that plaintiffs’ motions to amend the complaint unreasonablyand vexatiously

delayed this case. Plaintiffs twice moved to amend their complaint and were twice denied. Plaintiffs

first attempted to amend their complaint more than eight months after they filed their complaint. 

(Doc. 42.) But given the absence of any substantial proposed amendment, it is unclear whether this

first motion to amend represents an attempt to delay and multiply the litigation, or simply a poorly

executed motion that ended up being entirely content-less due to inadvertence or inexperience. The

plaintiffs’ second motion to amend sought to add host of new parties and claims not clearly related

to the ongoing litigation. (Doc. 93.) This motion came more than a year after the original complaint

was filed and more than two months after the close of discovery. Plaintiffs waited six months after

they had all the facts relevant to the new parties and claims before moving to amend their complaint. 

This inexplicable delay and departure from the case schedule can only be characterized as an

unreasonable and vexations multiplication of proceedings.

Also more than a year after initiating this litigation and after the close of discovery, plaintiffs

filed a motion seeking to dismiss all claims against all defendants without prejudice. (Doc. 73.) 

This motion presents supporting arguments that are so frivolous that it can only be interpreted as an

attempt to secure a do-over, and to start over with litigation against another group of litigants.

7

Case: 2:10-cv-00904-JLG-NMK Doc #: 150 Filed: 10/02/12 Page: 7 of 9 PAGEID #: <pageID>
Finally, in a motion for summary judgment, plaintiffs sought “damages in the total amount

of the costs associated with correcting the deed.” (Doc. 108.) Evidence in the record demonstrates

that plaintiffs had incurred no such costs, there were no such damages, and they had declined to file

the survivorship deed provided byArrow. The summaryjudgment motion was entirelyunreasonable

and vexatious.

IV. Conclusion

The decision to grant sanctions under 28 U.S.C. § 1927 lies within this Court’s discretion. 

See Jones v. Continental Corp., 789 F.2d 1225, 1229 (6th Cir. 1986). However, a panel of the Sixth

Circuit has suggested that in considering sanctions, this Court “may consider . . . an attorney’s ability

to pay the sanction, whether the attorney or the client was the cause of the multiplication of

proceedings, [and] whether the multiplication was negligent, inadvertent, malicious, reckless, or

intentional.” Stephens v. Freeman-McCown, No. 99-3048, 1999 WL 993870, at *4 (6th Cir. Oct.

19, 1999) (citing Reynolds v. Humko Prods., 756 F.2d 469, 473 (6th Cir. 1985)). With these

considerations in mind and based on the foregoing reasons, Arrow’s motion for sanctions (doc. 146)

is conditionally GRANTED. Plaintiffs’ attorney shall be personally liable to the movants for all

attorney’s fees, costs, and expenses incurred between January 11, 2011 and April 6, 2012. Movants

shall file a claim for attorney’s fees, costs, and expenses together with a supporting affidavit and

itemized billing records (indicating the billing rate, number of hours, and description of the work

performed) and a brief regarding the factors discussed above, relating to the amount of sanctions to

be awarded, on or before November 1, 2012. A responsive brief from plaintiffs’ counsel shall be

filed on or before November 16, 2012, and any reply by movants is due on or before December 3,

2012. 

8

Case: 2:10-cv-00904-JLG-NMK Doc #: 150 Filed: 10/02/12 Page: 8 of 9 PAGEID #: <pageID>
IT IS SO ORDERED. 

S/ James L Graham 

James L. Graham

UNITED STATES DISTRICT JUDGE

Date: October 2, 2012

9

Case: 2:10-cv-00904-JLG-NMK Doc #: 150 Filed: 10/02/12 Page: 9 of 9 PAGEID #: <pageID>