* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materiallyassist in the determination (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 21 2004 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SALLY BEAUTY COMPANY, INC., a Delaware corporation; MARIANNA IMPORTS, INC., a Nebraska corporation, Plaintiffs,

v. BEAUTYCO, INC., a Delaware corporation, Defendant, CRAIG S. FOCHLER; CHARLES R. MANDLY, JR.; NATHAN E. FERGUSON; JILL ROBB ACKERMAN; MICHAEL SULLIVAN, Appellants. No. 03-6055

Appeal from the United States District Court for the Western District of Oklahoma (No. CIV-99-1372-C)

Submitted on the briefs: ** (...continued)

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). -2- Craig S. Fochler, Charles R. Mandly, Jr., and Natha n E. Ferguson of Wildman, Harrold, Allen & Dixon, LLP, Chicago, Illinois and Jill Robb Ackerman and Michael Sullivan of Baird, Holm, McEachen, Pedersen , Hamann & Strasheim, Omaha, Nebraska, on the briefs for Appellants. Philip J. Weiser, University of Colorado School of Law, Boulder, Colorado, on the Amicus Curiae Brief.

Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.

A settlement agreement reached on the eve of trial generated the dispute before us. After determining that the parties’ att orneys could have alerted the court to the settlement in time to avoid the expens e of requiring the attendance of jurors in court the following morning, the districtcourt assessed the expense of the jury impanelment jointly on the parties’ counse l. The attorneys for one of the parties, Sally Beauty Co., Inc., appeal the assessment. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM

. I On Monday, January 13, 2003, jury selection for the case underlying this dispute began in district court. Selected jurors w ere instructed to call Friday, January 17, after 5.00 P.M. to verify that trial wa s proceeding on Tuesday, January 21, as scheduled. Also on January 13, 2003 , the parties reentered-3-

settlement conferencing with a magistrate judge. T he magistrate judge informed counsel that the district court would need to know whether a settlement had been reached prior to 3:00 P.M. on Friday, January 17, i n order to inform the jury. Following a three-day holiday weekend, at a hearing held the morning of Tuesday, January 21, and while the jury waited in the jury a ssembly room, the parties informed the district court judge that a settlementhad been reached the previous evening. After ordering that judgment be entered in accordan ce with the submitted consent order, the trial court proceeded to assess the costs of the jury jointly on counsel for both parties. In support of this decis ion, the trial judge explained that she had asked the magistrate judge to communicate t o counsel that if the jury was required to appear unnecessarily, counsel would “be responsible for the cost of the jury panel.” (App. at 193.) Counsel responded that the magistrate judge informed them of the 3:00 P.M. deadline so that the district court “could advise the jury,” but that they had not been informed thatany settlement reached after that time would result in the assessment of costs. (App. 193–94.) Further, they argue, a settlement had not been reached until late into the previous evening. The court explained: I’d like to state for the record that this case has been announced settled to me something like five times in the last week . . . . I am not proposing sanctions against counsel only because counsel have never announced to me that this case settled. . . . Well, the jury is her e. . . . I’m going to impose the-4-

cost of that on counsel jointly. I don’t know who’ s been at fault for what’s happened in this case or the communications that we re made to me, and I don’t particularly want to know, but I hope that itwill never happen again. What’s happened is an abuse of the system . . . . This case is dismissed. I will discharge the jury and you will be billed for your share of the jury costs. (App. at 190, 194.) Entering an order assessing costs in the amount of $405.68 to be borne equally by plaintiff and defendant counsel on Janua ry 23, 2003, the district court stated that “counsel required the attendance of the selected jury despite having settled the case in time to avoid the expense to th e Courts . . . .” Sally Beauty Co. v. Beautyco., Inc. , No. CIV-99-1372-C, slip op. at 1 (W.D. Okla. Jan. 23, 2003.) Counsel (“counsel”) for Sally Beauty Co. now appeal

. II We review a district court order imposing jury cost s on counsel for an abuse of discretion. In re Baker , 744 F.2d 1438, 1440 (10th Cir. 1984) (en banc). In considering whether the district court abused it s discretion, we will examine the “totality of the circumstances, including the s pecific case under review, the total management problems for courts, and access an d cost problems for litigants.” Id. In this case, counsel concede that it is within a f ederal district court’s inherent power to assess costs against them. See, e.g. , Martinez v. Thrifty Drug & Discount Co. , 593 F.2d 992, 993–94 (10th Cir. 1979) (approving a district-5-

court’s shifting of jury costs, pursuant to local r egulations, to counsel when counsel failed to notify the court of a settlement) . Nonetheless, they argue that such power must be “exercised with restraint and di scretion.” Roadway Express, Inc. v. Piper , 447 U.S. 752, 764 (1980). In particular, counsel argue that jury costs may be assessed to counsel only when individu al lawyers demonstrate badfaith conduct and only after affording counsel due process of law. See Chambers v. NASCO, Inc. , 501 U.S. 32, 45–46 (1991). Counsel argues that the district court abused its discretion in levying costs becaus e: (1) they did not act in bad faith; and (2) they did not have notice of the poss ibility of costs, nor were they given specific findings in support of the assessment of costs in violation of their due process rights. We are not persuaded. As to bad faith, Chambers held that the inherent powers of the district court extend to awarding as a sanction attorneys’ fees to the opposing party “when a party has acted in bad faith , vexatiously, wantonly, or for oppressive reasons.” 501 U.S. at 45–46 (citations omitted). Importantly, Chambers addressed the bad faith exception to the general “ American Rule,” which prohibits fee-shifting. The Court did not, h owever, purport to limit feeshifting to only bad faith contexts; rather, it req uired a finding of bad faith, with the attendant due process requirements, when a district court relies upon its inherent power to sanction a party for bad faith co nduct. We are persuaded by the-6-

record, moreover, that we are not reviewing sanctio ns, but rather a taxing of jury costs. The district court judge expressly disclaim ed any intent to sanction any of the attorneys involved in this matter and refused t o attempt to assign individual blame. Accordingly, we reject counsel’s assertion that Chambers controls here. A more closely analogous case is Baker , 744 F.2d at 1441, in which we concluded that in cases where an attorney’s conduct(e.g., the failure to take a deposition before trial) wastes the jury’s time, a district court is well within its discretion to assign jury costs to the attorney. I d. at 1441, 1442. In fact, we held that in such cases, courts should assign costs “whe re the fault lies.” Id. at 1440. We recognized that by requiring those who created t he costs to bear them, court efficiency is promoted and tax money saved. Id. at 1441, 1442. Accord , United States v. Mottweiler , 82 F.3d 769, 772 (7th Cir. 1996) (“Costs should f all on those whose carelessness creates them, the better t o induce people to take care. The public fisc should not be saddled with expenses that counsel could have averted by taking simple precautions.”). In the instant case, counsel settled on the eve of trial. While judicial economy is generally promoted by encouraging settle ments, see, e.g. , U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership , 513 U.S. 18, 28 (1994), much of the benefit of settlements to the judicial syste m is lost when the court is obligated to require the attendance of jurors at th e opening of a trial of an already-7-

settled matter. We reject counsel’s invitation to graft a bad-faith requirement onto our existing precedent; rather, we reiterate t hat in the instant matter, because attorney conduct resulted in unnecessary jury costs , it was within the district court’s discretion to assign costs. Turning to the question of due process, counsel fir st argues that the district court did not make sufficiently specific findings t o support an assessment of jury costs. Though we conclude that sanctions were not imposed here, we nonetheless look to the due process required to impose sanction s as a benchmark for evaluating whether counsel was given adequate proce ss in the instant case. We have previously endorsed the view that when “a court imposes sanctions . . . it must sufficiently express the basis for the sanctio ns imposed to identify the excess costs reasonably incurred by the party to wh om they will be due.” Braley v. Campbell , 832 F.2d 1504, 1513 (10th Cir. 1987) (en banc). Following Braley , to impose sanctions, a court must make specific fin dings sufficient to: (1) identify the excess costs providing a basis for the sanctions; (2) identify the conduct leading to the sanctions in order to provid e notice and to allow a meaningful response from the sanctioned attorney; a nd (3) identify for the reviewing court the reason for the sanction. Id. Counsel suggests that the trial court’s findings we re deficient because the judge bundled the attorneys into a single group, no t inquiring into individual-8-

responsibility and thus failing to specify which attorneys were liable to pay the assessed jury costs. Baker , however, suggests that when the context for the assignment of costs is clear, and the justification for the imposition of costs is included in the record, as in this case, more speci fic findings are not required. Baker , 744 F.2d at 1442 (“While the record is not as exp licit as it could be, we believe that the context is clear enough to underst and the trial court’s justification for imposing the sanction.”). Further, because cou nsel knew they were settling after the court-imposed deadline, it is reasonable to expect that “if the fault [of the jury impanelment] lies with the attorneys, thatis where the impact” of the assignment of jury costs should be felt. Id. The district judge was not required to ascribe the fault, and therefore the costs, to particular attorneys in this case as the record does not indicate that any of the attorneys were particularly responsible for the case settling after the mandated deadline. Although we generally require i ndividual assessments to impose a sanction as punishment, in the case of con duct by counsel of both parties which leads to avoidable court costs, assignment of culpability to individual attorneys may be impossible. We therefore conclude that the trial court’s implicit determination that all the attorneys involved in th e underlying matter were responsible for the unnecessary cost of seating the jury was not an abuse of discretion.-9-

In addition to nonspecific assessment, counsel also argue that the court violated their due process rights by failing to pro vide notice that sanctions were being considered and an opportunity to respond to that notice. See Braley , 832 F.2d at 1513. Specifically, counsel contends that: (1) before the hearing on Tuesday, January 21, they had received no notice th at the court was considering assessing jury costs; (2) several lawyers of recordwere not present at the January 21 hearing; and (3) the court’s query: “Is there anything else from counsel?” (R. at 194) at the end of the hearing did not provide t hose attorneys present with a meaningful opportunity to respond to the decision t o assess costs. “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge , 424 U.S. 319, 333 (1976). However, “due process is fle xible and calls for such procedural protections as the particular situation demands.” Id. at 334 (citation omitted). For example, the dismissal of a case pre sents greater due process concerns than the imposition of attorney’s fees on the opposing party. Roadway Express , 447 U.S. at 767 n.14. Importantly, the “adequacy of notice and hearing re specting proceedings that may affect a party’s rights turns, to a consid erable extent, on the knowledge which the circumstance show such party may be takento have of the consequences of his own conduct.” Link v. Wabash R . Co. , 370 U.S. 626, 632-10-

(1962). Here the parties were warned that they wer e to advise the court before 3:00 P.M. on January 17 of any settlement agreementin order to apprise the jury members that their presence in court on Tuesday, Ja nuary 19, was not required. The fact that the parties now tell us that a settle ment was not reached until late in the evening before trial does not change our analys is as the court’s warning came against a background of various statutes (e.g., 28 U.S.C. § 1927) and rules (e.g., Fed. R. Civ. P. 16(f), Fed. R. App. P. 38) that wer e promulgated in part to encourage judicial efficiency and which authorize c ourts to impose sanctions, excess costs, expenses, and attorney’s fees. Moreo ver, it is well established that a district court has broad, inherent power to manage its proceedings. See Roadway Express , 447 U.S. at 764–67. “It has long been understoodthat certain implied powers must necessarily result to our Courts of jus tice[,]. . . [powers which] are governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs.” Chambers , 501 U.S. at 43 (citations omitted). We conclude that the possibility of the taxation of ju ry costs on counsel—where counsel settled after a court-imposed deadline, res ulting in unnecessary court costs—is reasonably foreseeable in this case, and therefore that counsel had adequate notice of the possibility of taxation of j ury costs against them. Accord , Devaney v. Continental Amer. Ins. Co. , 989 F.2d 1154, 1160 (11th Cir. 1993) (holding due process is satisfied where counsel hadreason to know of the-11-

possibility of sanctions, despite the fact that the motions for sanctions named only the party and not counsel). Next, we address counsel’s argument that the trial judge’s question, asking if counsel had anything else to bring to the court’ s attention, did not provide them an adequate opportunity to respond. First we note that because due process is contextual, what constitutes an adequate opportunity to respond in one instance may be entirely inadequate in another. Here we are faced with the imposition of costs of slightly more than four hundred dollars, t o be divided evenly between the attorneys for the plaintiff and defense. Thus, rel atively less process is due in the instant case than in a case where a party’s claim i s to be dismissed as a sanction, Roadway Express , 447 U.S. at 767 n.14, or even where a party is fa cing the possibility of monetary sanctions, as opposed to th e assessment of court costs. Given that the taxation of jury costs was reasonabl y foreseeable, and given that counsel present were given an opportunity to raise their concerns regarding the taxation of costs at the close of the hearing — if only to object to the taxation or ask for permission to brief the matter — we find th at in this context, an adequate opportunity to respond to the imposition of costs w as provided to counsel. In sum, the court: (1) instructed the magistrate j udge to inform counsel to advise the court of a settlement in time to apprise the jury; and (2) gave counsel the opportunity to respond to the court’s taxation of costs upon them at the-12-

hearing on January 21. Given the amount of the cos ts taxed to counsel, the judge’s explicit renunciation of an intent to sanct ion counsel, her warning to counsel to inform the court of any settlement in ti me to apprise the jury, and the opportunity given to counsel to respond to the asse ssment of costs at the January 21 hearing, we conclude that counsel received all t he process that was due in this matter. Accordingly, we find no abuse of discretio n on the part of the district court in assigning jury costs to the parties’ couns el jointly. For the reasons set forth above, we AFFIRM

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit JudgeNo. 03-6055, Sally Beauty Co. v. Beautyco, Inc.

Briscoe, Circuit Judge, dissenting: I respectfully dissent. In my view, the district c ourt’s order assessing jury costs against counsel was clearly a sanction that w as issued without a factual basis in the record and without sufficient notice. I would reverse.
I. When the parties appeared before the district courtfor trial on January 13, 2003, the district judge advised them that she was ill. The judge proposed conducting voir dire to select a jury and continuin g the trial proceedings until January 21, 2003 (the day after the Martin Luther K ing, Jr., holiday), and the parties agreed. After the district judge completed the voir dire proceedings, she advised the jurors to call the court “[a]nytime between Friday [at 5 p.m.] and Tuesday morning . . . to find out if you’re still s upposed to report” for trial. App. at 182. Following completion of voir dire, the mag istrate judge conducted a settlement conference. No settlement was reached b ut “substantial progress” was made and the parties continued throughout the ensui ng week to engage in settlement discussions. Aplt. Br. at 9-10. On January 17, the district judge allegedly directe d the magistrate “to communicate to [counsel]” that they would “be respo nsible for the cost of the jury panel” if the case settled after “3 o’clock on Frid ay.” App. at 193. The magistrate “informed [one of the defense attorneys] , who in turn relayed the-2-

information to [the lead counsel for plaintiff Sall y Beauty], that the district court would need to know that a settlement had been reach ed prior to 3:00 p.m. on Friday . . . if jurors were to be notified to avoid reporting for duty on Tuesday, January 21st.” Aplt. Br. at 10. However, appellan ts and defense counsel deny being informed by the magistrate that they would be responsible for jury costs if settlement was reached after that time. On the evening of January 20, the parties “finally did reach agreement to settlement terms,” and “[a] signed writing memorial izing the terms was received by plaintiffs’ lawyers from defendant’s lawyers at approximately 10:00 p.m.” Aplt. Br. at 10. Between 8:00 and 9:00 a.m. the fo llowing morning, appellants “informally informed the Trial Judge’s chambers that they believed . . . a settlement agreement had been concluded.” Id. at 11. At a hearing convened at approximately 9:00 a.m., the district judge noted t hat she “ha[d] in front of [her] an agreed settlement order which [wa]s signed by mo st of you, [but] not enough to make it a settlement as yet.” App. at 190. Aft er confirming that defendant’s insurer had agreed to pay the agreed settlement ter ms, the district judge noted her intent to discharge the jury and dismiss the “case on entry of the agreed settlement order.” Id. at 193. In doing so, the judge expressed frustrat ion at having “been told [apparently by the magistrate jud ge] that . . . the case [wa]s settled too many times.” Id. at 190. Upon inquiry by the district judge, couns el-3-

denied that they had been informed by the magistrat e judge that jury costs would be imposed against them if the case settled after 3 :00 p.m. on January 17. The district judge proceeded to impose the jury costs “ on counsel jointly.” Id. at 194. The written order, dated January 23, 2003, stated:

As stated in open court on Tuesday, January 21, 200 3, because counsel required the attendance of the selected jury despite having settled the case in time to avoid the expense to th e Courts, counsel are required to pay to the Government those costs. As reflected by the records of the jury clerk, attached hereto, the total cost is $405.68. This shall be borne equally between Plain tiffs and Defendant. Each shall remit a check in the amount of $202.84, made payable to the U.S. District Courts within twenty ( 20) days. Id. at 152. The district court granted appellants’ mo tion for stay of judgment on February 13, 2003.
II. Nature of district court order Despite the majority's statement to the contrary, t here is little doubt the district court's order constitutes a sanction. It is apparent from the record that the district court was not acting pursuant to any Feder al Rule of Civil Procedure, statute, or local rule regarding the imposition of costs. Cf. Martinez v. Thrifty Drug & Discount Co. , 593 F.2d 992, 993 (10th Cir. 1979) (approving loc al court rule of United States District Court for District o f New Mexico “which authorized the court, under certain conditions, to impose jurycosts against the parties and their counsel”); Fed. R. Civ. P. 54(d) (authorizing award of costs to prevailing-4-

party and against losing party); 28 U.S.C. § 1920 ( authorizing taxation of certain costs); 28 U.S.C. § 1927 (authorizing imposition of costs on any attorney “who so multiplies the proceedings in any case unreasonablyand vexatiously”). Thus, the only reasonable conclusion is that the district cou rt was sanctioning counsel for what it viewed as noncompliance with its pretrial o rder regarding notification of settlement (i.e., its oral direction to counsel to notify the court if settlement occurred prior to 3 p.m. on January 17, 2003). See In re Baker , 744 F.2d 1438, 1440-41 (10th Cir. 1984) (characterizing similar or der as sanction pursuant to Fed. R. Civ. P. 16(f)). “[F]ederal district courts have the inherent power to manage their business ‘so as to achieve the orderly and expeditious dispo sition of cases.’” LaFleur v. Teen Help , 342 F.3d 1145, 1149 (10th Cir. 2003) (quoting Chambers v. NASCO,
Inc. , 501 U.S. 32, 43 (1991)). In particular, federal district courts have the inherent power “to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers , 501 U.S. at 44-45. We “review a court’s impositi on of sanctions under its inherent power for abuse of discretion.” LaFleur , 342 F.3d at 1149 (internal quotations omitted). In doing so , we review the district court’s underlying factual findings for clear error. Id. “An abuse of discretion occurs when the district court bases its ruling on an erro neous conclusion of law or relies-5-

on clearly erroneous fact findings.” Ashby v. McKe nna , 331 F.3d 1148, 1149 (10th Cir. 2003) (internal quotations omitted). Lack of factual basis for sanction Appellants assert, and I agree, that the facts of r ecord are inadequate to support the district court’s sanction. There is no evidence in the record that appellants had been advised by the district court t hat settlement of the case after 3:00 p.m. on January 17, 2003, would result in the imposition of jury costs against them. Thus, as noted by appellants, there was no e vidence that they acted in bad faith or in willful disobedience of a court order i n settling the case on the night of January 20, 2003. Indeed, the district court made no findings of misconduct on the part of appellants or anyone else involved in t he litigation. See App. at 194 (“I don’t know who’s been at fault for what’s happe ned in this case or the communications that were made to me, and I don’t pa rticularly want to know.”). Finally, and most troubling, the district court’s w ritten order of January 23, 2003, erroneously stated that counsel “required the atten dance of the selected jury despite having settled the case in time to avoid th e [jury] expense to the Courts.” Id. at 152. As outlined above, the record belies this finding. A tentative settlement was not reached until 10:00 p.m. on Janu ary 20, 2003 (the night before trial), and the actual settlement agreement was notfinalized until the morning of January 21, 2003 (when the defendant’s insurer agre ed to pay the terms of the-6-

settlement). Thus, contrary to the district court’ s written order, there is no evidence that the case was settled in time to avoid the jury expense. Lack of notice Appellants also contend the district court “failed to accord them due process of law,” including providing them with “req uisite notice ” of the possibility of sanctions. Aplt. Br. at 14. I agre e. The only published circuit case that I have found o n point is Boettcher v. Hartford Ins. Group , 927 F.2d 23 (1st Cir. 1991). In Boettcher , the trial court directed that the plaintiff and her attorney pay $2 31.68 to the court’s jury commissioner as a result of having settled their ca se on the first day of trial. The trial court cited the following reasons for its ord er: “unnecessary costs incurred for the jurors’ attendance at court; two days loss of trial time by the court; and unreasonable conduct by the plaintiff in delaying s ettlement.” 927 F.2d at 25. On appeal, the First Circuit reversed the trial court’ s order. In doing so, the court noted there was “no local district court rule provi ding for the payment of jury costs for settling a case on the day of trial afterthe jury ha[d] reported to the courthouse,” nor was notice “given to counsel in th is case, either orally or in writing, at any time prior to the settlement that j ury costs would be imposed if there was a settlement on the scheduled trial date. ” Id. The court concluded that “[l]ack of fair notice [wa]s fatal to [the trial co urt’s] exercise of inherent power-7-

under these circumstances.” Id. at 26. Thus, the court set aside the sanctions “because appellants did not have fair warning of th [e trial court’s] unwritten rule.” Id. (internal quotations omitted). As was the case in Boettcher , the district court here imposed its sanction order without fair warning to appellants. In parti cular, there was no evidence that appellants were advised by the magistrate judge that settlement of the case after 3:00 p.m. on January 17, 2003, would result in the jury costs being imposed on them. Absent such an express warning, I am not per suaded that reasonable attorneys in their position would or should have kn own they would be liable for such costs. See Zebrowski v. Hanna , 973 F.2d 1001, 1007 (1st Cir. 1992) (noting parties in Boettcher“would not likely have expected to suffer the unus ual sanction of paying for a jury”).