1This court affirmed that summary judgment in Topalian v. Ehrman, 954 F.2d 1125 (5th

Cir.1992). In doing so, we decided an issue which has become involved now in this second

appeal: Defendants-Appellees in that appeal moved for sanctions against Plaintiffs-Appellants

United States Court of Appeals,

Fifth Circuit.

No. 91-2818.

Michael K. TOPALIAN, et al., Plaintiffs,

Roy Jacobs, Jr., Richard H. Manuel, and Bobby W. McDonald, Plaintiffs-Appellants,

and

Armando Lopez, Appellant,

v.

John N. EHRMAN, etc., et al., Defendants-Appellees.

Oct. 12, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before WIENER, BARKSDALE, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Appellants Armando Lopez, Roy Jacobs, Jr., Richard H. Manuel, and Bobby W. McDonald

appeal the Final Judgment of the United States District Court for the Southern District of Texas,

Houston Division, imposing sanct ions in the amount of $1,000 each on Jacobs, Manuel, and

McDonald (hereinafter together, "Plaintiffs"), and in excess of $300,000 on their attorney, Lopez.

We affirmthe sanctions against Plaintiffs; and vacate the trial court's sanctions order and remand the

case for more specific factualfindings asto the sanctionable conduct of Lopez, according to the rule

we announced in Thomas v. Capital Security Services, 836 F.2d 866, 876-77 (5th Cir.1988) (en

banc).

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs and 12 other investors originally brought this suit against 23 defendants, including

Appellees. The district court rendered summary judgment against all plaintiffs on all causes of

action.1 While the summary judgment motion was on appeal, the district court—after inviting and
under Fed.R.App.P. 38, alleging that the appeal was frivolous. As we discuss below, we rejected

this contention and denied the motion for Rule 38 sanctions. 

 

2The trial court's Final Judgment reads in part as follows:

ORDERED that the following sanctions are imposed:

1. Plaintiffs Roy Jacobs, Richard Manuel, and Bobby McDonald shall pay

sanctions in the amount of $1,000 each.... The sanctions shall be paid to [Ehrman's

counsel] Mr. Frank Pinedo who shall divide the $3,000.00 equally among Defendants....

4. Armando Lopez shall pay the following sanctions pursuant to 28 U.S.C. § 1927

and Rules 11, 26(g), 34(b) and 37, Fed.R.Civ.P.:

a. Attorney's fees in the amount of $60,236.61 to the Ehrman Defendants, which

was awarded by the Court on December 11, 1989, plus attorney's fees in the amount of

$39,763.39 as compensation for services from the date of the Court's previous order;

b. Attorney's fees in the amount of $100,000.00 to the Rio Bravo Defendants;

c. Attorney's fees to Rockwood in the amount of $89,999.98, which was awarded

by the Court on December 13, 1989, plus the sum of $10,000.02 as compensation for

services from the date of the Court's previous order;

d. Attorney's fees in the amount of $2,000.00 to the Roderick Johnson Defendants. 

receiving motionsforsanctionsfromdefendants—entered a sanctions order awarding attorney'sfees

against the Plaintiffs and against their counsel, Lopez.2

The district court awarded sanctions against Plaintiffs under Rule 11 because it held that they

were more responsible for the content ofthe pleadingsthan were the other investorsin that they were

officers and directors of one ofthe defendant companies, and therefore had prior personal knowledge

of the verity of the facts alleged in their complaint.

The district court awarded sanctions against Lopez under Fed.R.Civ.P. 11 and 28 U.S.C. §

1927. In its order sanctioning Lopez, the district court stated its findings that Lopez submitted to the

court as a true and correct copy a document that had been materially and deliberately altered; that

he responded late or not at all to motions filed by the defendants; that he filed several motions for

an improper purpose or merely to delay the proceedings; that he submitted pleadings in violation of

Rule 11; and that he disobeyed a court order to reimburse a party to the suit for expenses incurred

in travelling from New York to Texas for a deposition.
The lower court further sanctioned Lopez for violations of the discovery rules, Fed.R.Civ.P.

26(g), 34(b), and 37. The trial judge found that Lopez violated these rules by filing a motion for

sanctions against the defendantsfor their failure to produce documents that the court had previously

ordered did not need to be produced; by responding late or not at all to motions for discovery; by

being uncooperative in the discovery process; by continually rescheduling or cancelling depositions

at the last minute; by failing to produce witnesses for depositions after those depositions had lasted

past a certain time period; by being uncooperative and argumentative at depositions; by appearing

in court late on at least one occasion; and by offering frivolous and time-consuming arguments for

his lack of diligence in pursuing the litigation.

After setting out these findings in its order, the district court entered a final judgment

imposing the sanctions. This appeal followed.

II. ANALYSIS

 The district courts wield their various sanction powers at their broad discretion. See, e.g.,

Thomas, 836 F.2d at 876-877 (sanctions under Rule 11); Burull v. First Nat'l Bank, 831 F.2d 788,

790 (8th Cir.1987), cert. denied, 485 U.S. 961, 108 S.Ct. 1225, 99 L.Ed.2d 425 (1988) (sanctions

under 28 U.S.C. § 1927); Bell v. Bell, No. 86-4321 (5th Cir.Sept. 17, 1986) (sanctions under Rule

26(g)); Roadway Express, Inc. v. Piper, 447 U.S. 752, 763, 100 S.Ct. 2455, 2462, 65 L.Ed.2d 488

(1980) (sanctions under Rule 37).

We in turn may reverse a district court's award o f sanctions only if we find that the court

abused its discretion in imposing them. Thomas, 836 F.2d at 872; Trevino v. Holly Sugar Corp., 811

F.2d 896, 907-908 (5th Ci r.1987) (sanctions under 28 U.S.C. § 1927); Bell, No. 86-4321 at 6-7

(sanctions under Rules 11, 26(g), and 37); Batson v. Neal Spelce Assoc., 765 F.2d 511, 512 (5th

Cir.1985) (sanctions under Rule 37). Although the district court imposed these sanctions under

various rules, we review all of the awards by the same standard: the question we address is not

whether this Court, in its own judgment and as an original matter, would have imposed any of these

sanctions. Rather, we only ask whether the district court abused its discretion in doing so. National

Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d
 

3Appellants are correct in their assertion that imposition of sanctions on the client is not proper

every time an attorney violates Rule 11. For example, the court in DASA Corp. held that

sanctioning a client for bad faith claims under Rule 11 is improper unless the client is personally

aware of or responsible for any procedure instituted in bad faith. 560 F.2d 1078. 

747 (1976).

1. Rule 11 Sanctions Against Plaintiffs

As their first point of error, Appellants argue that "a represented litigant is not sanctionable

under Rule 11, wholly apart from the signing requirement, simply because his lawyer has signed and

filed a purportedly sanctionable court paper or lawsuit." However, in Pavelic & LeFlore v. Marvel

Entertainment Group, 493 U.S. 120, 124, 110 S.Ct. 456, 459, 107 L.Ed.2d 438 (1989), the United

States Supreme Court noted that Rule 11 isto be interpreted literally. We therefore reject Appellants'

position as inconsistent with the clear language of Rule 11 on this point: "If a pleading, motion, or

other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall

impose upon the person who signed it, a represented party, or both, an appropriate sanction...."

Fed.R.Civ.P. 11 (emphasis added). This language is reinforced in the Advisory Committee Note to

Rule 11: "If the duty imposed by the rule is violated, the court should have the discretion to impose

sanctions on either the attorney, the party the signing attorney represents, or both.... Even though

it is the attorney whose signature violates the rule, it may be appropriate under the circumstances of

the case to impose a sanction on the client." citing Browning Debenture Holders'Committee v. DASA

Corp., 560 F.2d 1078 (2d Cir.1977).3 Rule 11 clearly allows district courts the discretion in

appropriate cases to impose sanctions against non-signing represented parties for violations of the

rule by their attorneys. See, e.g., Jennings v. Joshua Independent School District, 948 F.2d 194 (5th

Cir.1991). Appellants' first point of error is overruled; and we affirm the judgment of the trial court

in so far as sanctions against Jacobs, Manuel, and McDonald are concerned.

2. Effect of Sanctions Ruling in Prior Appeal

In their third point of error, Appellants remind us of our earlier opinion affirming the

summary judgment entered against them. There, we denied Appellees' motion for sanctions against

Appellants for bringing a frivolous appeal pursuant to Fed.R.App.P. 38, saying "although plaintiffs
[Appellants in both appeals] have not met the evidentiary burden required to survive defendant's

motion for summary judgment, we cannot summarily dismiss the issues they have brought before us

as "frivolous.' " Topalian, 954 F.2d at 1140. Appellants argue that we cannot affirm the trial judge's

findings because we are bound to our earlier decision that their appeal was not frivolous.

Appellants' argument on this point must fail, however, because it confuses our discretionary

sanctioning power under Rule 38 with the standard by which we review sanctions imposed by a

district court. In declining to impose sanctions under Rule 38 in the first appeal, we did not review

any findings by the trial court asto whether the claim wasfrivolous. Rather, we evaluated the appeal

ofthat claim de novo, exercising our own discretion. See Fed.R.App.P. 38 advisory committee note.

And in our discretion, we determined that the appeal was not frivolous, and therefore we declined

to impose sanctions on Appellants. But, in reviewing sanctions imposed under the district court's

varioussanctioning powers, we will not suppose to substitute our judgment for that ofthe trial court,

when it comes to enforcement of acceptable standards of litigation conduct. Thomas, 836 F.2d at

873, citing Eastway Construction Corp. v. City of NewYork, 637 F.Supp. 558, 566 (E.D.N.Y.1986).

It is inconsistent with the purposes of a district court's power to sanction, as well as the principles of

appellate review, to hold here that our earlier decision on appeal now binds our review of the district

court's exercise of discretion in awarding sanctionsin the first instance. Therefore, our earlier denial

ofRule 38 sanctions notwithstanding, we hold that we are free to affirm the sanctions order if we find

that the district court did not abuse its discretion in awarding these sanctions.

3. Specific Findings to Support Sanctions

Even though we have o verruled two of Appellants' contentions, we find ourselves in

agreement with Appellants' second point of error; and accordingly we must vacate the trial court's

award of sanctions against Lopez; and remand the case for further factual findings to support that

award. We reach this conclusion because the district court's findings provide an insufficient basis for

reviewing the district court's decision for an abuse of discretion, and because in Thomas we required
 

4Appellees urge that the record in this case contains more than an adequate basis for the

sanctions award, and that Appellant's argument merely attempts to ignore volumes of record and

look only to a brief set of findings by Judge Black. Appellees cite Bogney v. Jones, 904 F.2d 272

(5th Cir.1990) as authority for our power to uphold a sanctions award simply by reviewing the

record. But our reading of Bogney convinces us that such is the exception, not the rule. In

Bogney, the court stated "as a reviewing court, we would not want to pore over every trial court

record in which Rule 11 sanctions were imposed, hoping to infer the basis and amount of the

award. In this case, however, the record is short, the materials supporting counsel's motion are

reasonably specific, and there is virtually no room for misunderstanding the court's motivation." 

Id. at 275. On the other hand, in the present case the record is exceptionally long, 28 volumes,

and we decline to scour it in the hope of finding some support for the district court's award, which

it failed to articulate in its findings. 

 

5While Thomas dealt only with Rule 11 sanctions, we feel that it is instructive as to the nature

and standards of sanction powers and review in general, despite the obvious procedural

differences among the sanction provisions at issue in this appeal (e.g., Rule 11 involves mandatory

sanctions once a violation is found, while 28 U.S.C. § 1927 leaves the decision whether or not to

impose a sanction to the court's discretion; Rule 11 and § 1927 deal with claims and pleadings in

general, while Rules 26(g) and 37 deal only with discovery abuses). Therefore, although conduct

that violates one rule may not warrant the same type or amount of sanction as conduct that

violates another rule, we think the underlying principles elucidated in Thomas in the context of

Rule 11 apply across-the-board to all of the district court's sanction powers. 

specific factual findings to support awards as large as this one.4

We recognize that a district court need not provide specific factualfindingsin every sanction

order. However, as we said in Thomas:

the rule we adopt does emphasize the importance of an adequate record for appellate review

... Like a sliding scale, the degree and extent to which a specific explanation must be

contained in the record will vary accordingly with the particular circumstances of the case,

including the severity of the violation, the significance of the sanctions, and the effect of the

award.

If the sanctions imposed are substantial in amount, type, or effect, appellate review

of such awards will be inherently more rigorous; such sanctions must be quantifiable with

some precision. 836 F.2d at 883.5

The sanctions award of over $300,000 against Lopez in the present case clearly belongs near the

upper end of the "sliding scale" described in Thomas, and therefore our scrutiny of it requires very

specific factual bases from which we may conduct our duty of "rigorous" review for abuses of the

district court's discretion.

In Thomas, this court said that the sanction should be tailored to fit the particular wrong;

and therefore, we reasoned, "the district court should carefully choose sanctions that foster the

appropriate purpose of the rule, depending on the parties, the violation, and the nature of the case."
 

6A closer examination of this Circuit's post-Thomas opinions provides additional guidance for

trial courts.

See, e.g., Akin v. Q-L Investments, Inc., 959 F.2d 521, 534-35 (5th Cir.1992)

(large sanction required specific factual findings as to factors used to consider appropriate

sanction, alternative sanctions considered, and reason for choosing particular sanction); 

Jennings, 948 F.2d at 196-99 (vacating "arbitrary" and "cryptic" decision to award half of

claimed attorney's fees; holding instead that amount of Rule 11 sanctions should be tied

directly to expenses directly caused by violation); Willy v. Coastal Corp., 915 F.2d 965,

968 (5th Cir.1990) (affirming sanction award supported by district court's findings of

"causal relationship" between attorney's conduct and amount of sanctions imposed); 

Bogney, 904 F.2d at 274 (noting that sanction amount must be tied to the precise Rule 11

violation at issue); Truck Treads, Inc. v. Armstrong Rubber Co., 868 F.2d 1472, 1475

(5th Cir.1989) (reversing portion of attorney fee award that was not directly caused by the

Rule 11 violation); Willy v. Coastal Corp., 855 F.2d 1160, 1173 (5th Cir.1988) (reversing

sanctions award because trial court did not explain how it arrived at specific figure); Ho v.

Martin Marietta Corp., 845 F.2d 545, 549 (5th Cir.1988) (vacating attorney fee award

because trial court did not identify specific act committed by plaintiff that warranted

sanctions); Smith Intern. Inc. v. Texas Commerce Bank, 844 F.2d 1193, 1202 (5th

Cir.1988) (directing trial court to apportion sanctions among offending appellants to

reflect individual rule violations of each). 

Thomas, 836 F.2d at 877. From Thomas and our recent post-Thomas cases reviewing sanction

orders,6 we discern four factors which the trial court's findings must reflect, the specificity of which

is calculated according to Thomas's "sliding scale," in ordering sanctions:

(1) What conduct is being punished or is sought to be deterred by the sanction? It is

axiomatic that the court must announce the sanctionable conduct giving rise to its order.

(2) What expenses or costs were caused by the violation of the rule? The district court must

demonstrate some connection between the amount of monetary sanctions it imposes and the

sanctionable conduct by the violating party. See Thomas, 836 F.2d at 879; Willy v. Coastal Corp.,

855 F.2d 1160, 1173 (5thCir.1988), appeal afterremand, 915 F.2d 965 (1990); Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714, 717 (5th Cir.1974).

(3) Were the costs or expenses "reasonable," as opposed to self-imposed, mitigatable, or

the result of delay in seeking court intervention? "A party seeking [costs and fees for defending

against frivolous claims] has a duty to mitigate those expenses, by correlating his response, in hours

and funds expended, to the merit of the claims," Thomas, 836 F.2d at 879, as well as by giving notice

to the court and the offending party promptly upon discovering the sanctionable conduct. See

Chapman & Cole v. Itel Container International B.V., 865 F.2d 676, 684 (5th Cir.1989). The
Court's findings must reflect some consideration of the reasonableness of the nonviolating party's

actions in connection with the sanctionable conduct.

(4) Was the sanction the least severe sanction adequate to achieve the purpose of the rule

under which it was imposed? In Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212-213

(5th Cir.1976), followed in Thomas, 836 F.2d at 878, we ruled that district courts must demonstrate

that sanctions are not vindictive or overly harsh reactions to objectionable conduct, and that the

amount and type of sanction was necessary to carry out the purpose of the sanctioning provision.

See also, Akin v. Q-L Investments, Inc., 959 F.2d 521, 534-535 (5th Cir.1992).

Because the "sliding scale" rule of Thomasrequiresthe district court to provide very specific

factual findings on each of the factors above to support sanctions as large as those before us today,

we must vacate the trial judge's order and remand for findings on each of the factors just discussed.

As we said in Batson v. Neal Spelce Associates, Inc., 765 F.2d 511, 517 (5th Cir.1985), "[w]hile we

leave the determination of reasonable attorney's fees and expenses to the sound discretion of the

district court, the court must articulate reasons for its assessment so that, if appealed, we may have

a basis to review the court's action."

One of the problems we face in reviewing the sanctions on appeal here is the district court's

failure to differentiate between the rules under which it imposed the sanctions. In its order, the court

merely said that it imposed the sanctions "pursuant to 28 U.S.C. § 1927 and Rules 11, 26(g), 34(b)

and 37, Fed.R.Civ.P." As a result, we cannot determine what portions of the sanctions award are

attributable to what rule violations. See, e.g., Sheets v. Yamaha Motors Corp., U.S.A., 849 F.2d 179,

186 (5th Cir.1988); compare Chapman & Cole, 865 F.2d at 687 (upholding an award of sanctions

imposed under Rules 11, 26, and 37).

Certainly, an award of all costs incurred in defending this cause of action would not be

appropriate if the violations consisted primarily of abuses of the discovery procedures, see, e.g.,

Pressey v. Patterson, 898 F.2d 1018, 1023 (5th Cir.1990) (reversing an award of $900,000 in

attorney's fees where the court's findings specified only discovery violations). Furthermore, where

the violation consists of unreasonably or vexatiously multiplying the litigation, the sanction should
 

7Appellees argue that a vacation and remand of the district court's order today will require a

sanctions order hundreds of pages long, full of minutiae and detailed factual findings. However,

we reiterate what we said in Johnson: "[b]y this discussion today we do not attempt to reduce

the calculation of a reasonable fee to mathematical precision." 488 F.2d at 720. We merely

require that the judge provide some avenue for us to trace his reasoning and review his exercise of

discretion. 

reflect only the costs or fees incurred in responding to those proceedings that are found to be

unreasonable or vexatious. See 28 U.S.C. § 1927 ("excess costs, expenses, attorneys'feesreasonably

incurred because ofsuch conduct") (emphasis added); compare Lubrizol Corp. v. Exxon Corp., 957

F.2d 1302, 1308 n. 13 (5th Cir.1992) ("the amount claimed by Exxon [and awarded by the district

court] is for the entire course of the proceedings"). On remand, the court should differentiate

between the portions ofthe totalsanctions award attributable to each ofthe respective rule violations.

Secondly, we are not convinced that the district court sufficiently described the way in which

it arrived at the amount it awarded as attorneys' fees and costs. The Appellees submitted figures

reflecting their claimed expenses and fees incurred as a result of the entire litigation. The court

reduced each of the total sums to be awarded each defendant, arriving at an apparently arbitrary

figure. Given the size of the sanction involved here, this is precisely the type of appearance of

arbitrariness which the court in Thomas sought to eradicate. See, e.g., Willy, 855 F.2d at 1173

(reversing an award of attorneysfees where, although claims were supported by affidavits, "[n]either

firm submitted sufficiently detailed information from which the district court could determine what

portion of these fees and expenses were incurred because of Rule 11 violations. Nor did the district

court explain how it derived from these amountsitsfigure...."); Johnson, 488 F.2d at 717 (reversing

an award of attorney'sfees because "[t]he judgment does not elucidate the factors which contributed

to the decision and upon which it was based. No correlation to the facts and figures submitted by

the plaintiffs is visible " (emphasis added)). We see nothing in the findings from the proceedings

below that would illuminate as to the court's decision making process in arriving at these severe

sanction amounts. Accordingly, we cannot adequately review that decision for an abuse of discretion.

On remand, the district court must make factual findings which render the sanction awards

"quantifiable with some precision." See Thomas, 836 F.2d at 883.7 Also, on remand, the court
should make express findings as to the reasonableness of Appellees' expenses and costs, in light of

the mitigation requirements we set out in Thomas. We recognize that the court warned Appellants

of possible sanctionsso that Appellants had an opportunity to desist fromtheir objectionable conduct.

Of course, thisis a formofmitigation,see Chapman &Cole, 865 F.2d at 684, but the court must also

ensure that Appellee's responses to the sanctionable conduct were not reasonably avoidable or

self-imposed. Thomas, 836 F.2d at 879.

Finally, the trial court'sfindings contain no analysis asto whether these sanctions are the least

severe sanctions adequate to accomplish the purpose for which the sanction was imposed. Thomas,

836 F.2d at 878; Akin, 959 F.2d at 535. As we said in Akin, "[w]hile the district court has broad

discretion to fashion an appropriate sanction, this court on appeal must ensure that the district court

discharged its duty to impose the least severe sanction adequate." Id. In assessing a sanction of this

magnitude, the court should make explicit the factors it considered in choosing thistype and amount

ofthe sanction; which alternative sanctions it considered; and why the sanction chosen was the least

severe sanction adequate to serve the purpose. Id.

III. CONCLUSION

For the reasonsset out above, "the amount of and basisfor the sanction must be reconsidered

by the district court in light of the standards set out in Thomas." Willy, 855 F.2d at 1172. We wish

to ensure that the district court's justification for imposing the sanctions corresponds to the amount

of those sanctions, before we review his decision for an abuse of discretion. See Jennings v. Joshua

Independent School District, 877 F.2d 313, 322 (5th Cir.1989), appeal after remand, 948 F.2d 194

(1991).

Therefore, the portion of the lower court order imposing sanctions on Appellants Manuel,

McDonald, and Jacobs is AFFIRMED; and the portion imposing sanctions on Lopez is VACATED

and that portion is REMANDED for further factual determinations consistent with this opinion.