United States Court of Appeals Fifth Circuit 

## FILED February 8, 2007 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

_______________


### m 06-20073

_______________



### AMPRO 

### E NERGY 

### , L.P.,

Plaintiff,

VERSUS


### J ASON 

### P. F ORGEY 

### , ET 

### AL 

### .,

Defendants,


### A TTORNEY 

### P ETER 

### ANDREW 

### K RAUS 

### , Movant-Appellant.

_________________________ Appeal from the United States District Court fo r the Southern District of Texas 

### m 4:04-CV-3389

______________________________

Before S MITH , B ARKSDALE , and D ENNIS , Circuit Judges.

P ER C URIAM : * Peter Kraus appeals the impo sit io n of sanctions. Finding no abuse of discret io n, we affirm.

* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion s hould not be published and is not precedent except under the limited (continued...) * (...continued)

circumstances set forth in 5 TH C IR

. R

. 47.5.4.2 I. Aft er the inst an t lawsuit was filed, Kraus consulted wit h defendant Stream Gas & Electric, Ltd. (“Stream

”), about potenti ally filing counterclaims. Kraus then contacted counsel fo r plaint iff Ampro En ergy , L.P. (“Ampro”), to ascertain the status of the suit. 1 On October 31, 2005, Ampro filed a status report wit h the c ourt th at list ed Kraus as counsel fo r sev eral defendants. The status report included, as Exhibit 13, an e -m ail exchange between Kraus, plaint iff’s counsel, and Snyder, an executive of Stream , in which plaint iff’s couns el asked whether Kraus’s client s would execute a mut ual release of claims. Kraus responded with the fo llo wing:
That would depend on the scope of the release. My client s feel yo u [ s ic ] client s’ actions in challenging [Stream ]’s startup damaged them, and are likley [ sic ] not going to sign a release at this time to fo rfeit the right to pursue appropri ate relief if t hey choose. That said, I’ll be happy to review yo ur proposed release. Snyder respo nded that there would be no release and that the suit should proceed.
Three days lat er, on November 3, the court issued an order stat ing t hat a conference would be held on Nove mber 16, and “the remaining individual parti es m ust appear with their counsel.” Five days after the order was

issued, Kraus e
- mailed plaint iff’s counsel about the October 31 status report and stated th at “ [a]lth ough I have sent you correspondence indicating I represent Stream in certain mat ters, I have never entered an appearance as counsel of record f

or any party in Ampro v. Forgey .” He suggested that plaintiff’s counsel refrain from referring to him as counsel of record and correct any representations “[t]o the extent that [they ] require correcting.”
On November 10, Dawna Kelly, the district court’s case manager, faxed Kraus a c opy of the order wit h a personal not e that the court “expects yo u 

### SS

and yo ur fo rm

er client s 

### SS

at the hearing.” Kraus e-mailed Kelly, stating his surprise at being summo ned to the conference, because he had “never entered any appearance as counsel fo r any party in this lawsui t.” He explained his belief th at the status report had inco rr ectl y ident ified him as co unsel for Stream and Rodriguez.
On November 14, the court responded to Krau s via e-mail, stating, “I understand yo ur limit ed participati on. I expect you here November 16th.” Kraus responded that he understood and th at he was in the process of negoti ating a final resolution of Ampro’s claims against Stream and Rodriguez.

D espite the court’s order, on the evenin g bef ore the conference Kraus prepared an e-mail, apparently to Kelly, stating th at the parties had reached an agreement, and opposing counsel would provide it to the court at the hearing. Kraus then said that he wo uld not appear at the hearing, because “all claims and potenti al claims of any potenti al client s of mine will be disposed of by the agreed order of dismissal wit h prejudice.” Kraus did not send the e-mail to Kelly or the court, but only to opposing counsel. 1 The introductory paragraph of the e-mail stated the following: My name is Peter Kraus of the firm Waters & Kraus of Dallas. I am contacting you in connection with our firm’s representation of Rob Snyder and his newly-created company, Stream Energy , i n regard to the ongoing litigation in Federal District Court in Houston with your client, Ampro Energy, L.P.3

Kraus did not appear at the hearing, and “[b]ecause he ignored the court’s order 

### SS and subsequent e-mail 

### S

S to appear,” the court o r
dered sanctions of $1,000. Kraus filed a mo
tion apologizing and asking the court to reconsider, asse rting that the court l acked jurisdiction to issue sanctions because he was not a “party ’s attorney” under Federal Rule of Civil Procedure 16(f). The court denied the motion, finding th at Kr aus had told opposing counsel th at he represented Snyder and Stream and had told the cour t th at he was negotiating on behalf of Stream and Rodriguez, expected to s ubmit a final order on their behalf, and understood the court’s order for him t o appear.

II. “This Court reviews the impo sit io n of sanctions fo r an abuse of discretion.” M aguire Oil Co. v. City of Houston , 143 F.3d 205, 208 (5th Cir. 1998) (quoting Matta v. May , 118 F.3d 410, 413 (5th Cir.1997)). “A court abuses it s discretion to impo se sanctions when a rul ing is based on an erroneous view of the law
or on a clearly erroneous assessment of the evidence.” I

d. Rule 16(f) authorizes sanctions “[i]f a party or party ’s attorney fails to ob ey a scheduling or pretri al o rder, or if no appearance is made on behalf of a party at a scheduling or pretrial conference.”
Kraus contends th at the d i strict court lacked jurisdiction to impo se sanctions on him because he was not a “party ’s attorney .” The court fo un d, h owever, that Kraus had told plaint iff’s counsel th at he was representing Stream and th at he was negoti ating on behalf of Stream and Rodriguez and expected to submit a final order. In addition, the October 31 status report includes an e-mail from Kraus to plaint iff’s counsel in which he refers to several of the defendants as “my clients.”
Kraus re s ts his argument on the fact th at “[t]he only r eference to appellant as counsel fo r Stream was in an incorrect statem ent in plaint iff’s status report based on an assumption th at appellant was acting as Stream’s counsel in this case, and even th at m isst atem ent was prom ptl y corrected by appellant to bot h Ampro and to the Court.” But, as described above, this is not the only r eference to Kraus
as counsel. Kraus omits any mention of his
com munications stating th at he represents parties to this suit and referring to such parties as his client s.
Alt hough we are aware of no caselaw defining when an attorney becomes a “party ’s attorney” under Rule 16, we do not need such a definit io n t oday . Kraus is Stream’s attorney under any definit io n of the word, because he stated th at he was representing Stream , referred to Stream as his client , told the court he would be negoti ating on behalf of Stream , and did negotiate on Stream’s behalf.
The sanctions were not based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Moreover, Kraus’s th

rice-repeated protestation th at he will gladly pay the sanction to a ch arity if we will reverse the sanction rings hollow; eit her the s anction is reversible error, or it is not. There is no abuse of discretion, and the order impo sing sanctions is AFFIRMED.