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 ENERGY, L.P.,

Plaintiff,

VERSUS

JASON P. FORGEY, ET AL.,

Defendants,

ATTORNEY PETER ANDREW KRAUS,

Movant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

m 4:04-CV-3389

______________________________

Before SMITH, BARKSDALE, and DENNIS,

Circuit Judges.

PER CURIAM:

*

Peter Kraus appealsthe imposition ofsanctions. Finding no abuse of discretion, we

affirm.

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the limited

(continued...)

*

(...continued)

circumstances set forth in 5TH CIR. R. 47.5.4.
2

I.

After the instant lawsuit was filed, Kraus

consulted with defendant Stream Gas & Electric, Ltd. (“Stream”), about potentially filing

counterclaims. Kraus then contacted counsel

for plaintiff Ampro Energy, L.P. (“Ampro”),

to ascertain the status ofthe suit.1 On October

31, 2005, Ampro filed a status report with the

court that listed Kraus as counsel for several

defendants. The status report included, as Exhibit 13, an e-mail exchange between Kraus,

plaintiff’s counsel, and Snyder, an executive of

Stream, in which plaintiff’s counsel asked

whether Kraus’s clients would execute amutualrelease of claims. Kraus responded with the

following:

That would depend on the scope of the release. My clients feel you [sic] clients’ actionsinchallenging [Stream]’sstartup damaged them, and are likley [sic] not going to

sign a release at thistime to forfeit the right

to pursue appropriate relief if they choose.

That said, I’ll be happy to review your proposed release.

Snyder responded that there would be no release and that the suit should proceed.

Three dayslater, on November 3, the court

issued an order stating that a conference

would be held on November 16, and “the remaining individual parties must appear with

their counsel.” Five days after the order was

issued, Kraus e-mailed plaintiff’s counsel

about the October 31 status report and stated

that “[a]lthough I have sent you correspondence indicating I represent Stream in certain

matters, I have never entered an appearance as

counsel of record for 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 copy of

the order with a personal note that the court

“expects youSSand your former clientsSSat the

hearing.” Kraus e-mailed Kelly, stating his

surprise at being summoned to the conference,

because he had “never entered any appearance

as counsel for any party in this lawsuit.” He

explained his belief that the status report had

incorrectly identified him as counsel for

Stream and Rodriguez.

On November 14, the court responded to

Kraus via e-mail, stating, “I understand your

limited participation. I expect you here November 16th.” Kraus responded that he understood and that he was in the process of negotiating a final resolution of Ampro’s claims

against Stream and Rodriguez. 

Despite the court’s order, on the evening

before the conference Kraus prepared an

e-mail, apparently to Kelly, stating that the

parties had reached an agreement, and opposing counselwould provide it to the court at the

hearing. Kraus then said that he would not

appear at the hearing, because “all claims and

potential claims of anypotential clients ofmine

will be disposed of by the agreed order of dismissal with 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, in 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 orderSSand

subsequent e-mailSSto appear,” the court ordered sanctions of $1,000. Kraus filed a motion apologizing and asking the court to reconsider, asserting that the court lacked 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 that Kraus had told opposing counsel

that he represented Snyder and Stream and

had told the court that he was negotiating on

behalf of Stream and Rodriguez, expected to

submit a final order on their behalf, and understood the court’s order for him to appear.

II.

“ThisCourt reviewsthe imposition ofsanctions for an abuse of discretion.” Maguire Oil

Co. v. City of Houston, 143 F.3d 205, 208

(5th Cir. 1998) (quoting Matta v. May, 118

F.3d 410, 413 (5thCir.1997)). “A court abuses its discretion to impose sanctions when a

ruling is based on an erroneous view ofthe law

or on a clearly erroneous assessment ofthe evidence.” Id. Rule 16(f) authorizes sanctions

“[i]f a party or party’s attorney fails to obey a

scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference.”

Kraus contends that the district court

lacked jurisdiction to impose sanctions on him

because he was not a “party’s attorney.” The

court found, however, that Kraus had told

plaintiff’s counsel that he was representing

Stream and that he was negotiating 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

plaintiff’s counsel in which he refers to several

of the defendants as “my clients.” 

Kraus rests his argument on the fact that

“[t]he only reference to appellant as counsel

for Stream was in an incorrect statement in

plaintiff’sstatusreport based onanassumption

that appellant was acting as Stream’s counsel

in this case, and even that misstatement was

promptly corrected by appellant to both Ampro and to the Court.” But, as described

above, this is not the only reference to Kraus

as counsel. Kraus omits any mention of his

communicationsstating that he represents parties to this suit and referring to such parties as

his clients.

Although we are aware of no caselaw defining when an attorney becomes a “party’s attorney” under Rule 16, we do not need such a

definition today. Kraus is Stream’s attorney

under any definition of the word, because he

stated that he was representing Stream, referred to Stream as his client, told the court

he would be negotiating 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 thrice-repeated protestation that he

will gladly pay the sanction to a charity if we

will reverse the sanction rings hollow; either

the sanction is reversible error, or it is not.

There is no abuse of discretion, and the order

imposing sanctions is AFFIRMED.