### In the



# United States Court of Appeals

For the Seventh Circuit

Nos. 10

‐ 3842 & 11

‐ 1757

D EBORAH O. C OONEY

, Plaintiff

‐ Appellant

,

Cross

‐ Appellee,

v.

R HONDA C ASADY

, et al.,

Defendants

‐ Appellees,

Cross

‐ Appellants.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:09

‐ cv

‐ 01920

— Elaine E. Bucklo

, Judge.

A RGUED S EPTEMBER 18, 2012

— D ECIDED A UGUST 19, 2013

Before F LAUM

, S YKES

, and T INDER

, Circuit Judges.

T INDER

, Circuit Judge. This case arises out of Deborah O.

Cooney’s administrative appeal of the Illinois Department of

Children and Family Services’ (DCFS) indicated finding

against her of mental injury and substantial risk of harm to her

children. Cooney claims that Rhonda Casady and Andrew2 Nos. 10

‐ 3842 & 11

‐ 1797

Sosnowski, counsel for DCFS in that administrative appeal,

conspired with Lesley Magnabosco who was hired by DCFS to

transcribe the administrative appeal hearing to deprive Cooney

of her due process rights by altering the transcripts of those

proceedings. Cooney appeals the district court’s grant of

summary judgment to the defendants, and the defendants

appeal the denial of their petition for attorneys’ fees and costs

under 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 11.

They also seek an award of their costs and attorneys’ fees

under Federal Rule of Appellate Procedure 38. We affirm the

district court’s judgments and order Cooney to show cause

why an award under Rule 38 should not be entered against

her.

I. B ACKGROUND

Cooney divorced her husband and obtained sole custody of

their two minor sons. A few years later, the ex

‐ husband

petitioned for change of custody in Illinois state court. A court

‐ appointed expert diagnosed Cooney as having “Munchausen

[Syndrome] by Proxy,” “in which ‘an individual produces or

feigns physical or emotional symptoms in another person

under his or her care. Usually the victim is a young child, and

the person producing the symptoms may be the child’s parent

or caretaker, most often the mother.’” Cooney v. Rossiter

, 583

F.3d 967, 969 (7th Cir. 2009) (citations omitted), cert. denied

, 130

S. Ct. 3322 (2010). A therapist hired by the ex

‐ husband for the

children reported to DCFS that Cooney was abusing the

children; as a result, DCFS commenced an administrativeNos. 10

‐ 3842 & 11

‐ 1797 3

proceeding against Cooney. After an investigation, DCFS

entered an indicated finding of mental injury against her. 1

Cooney filed an administrative appeal of the indicated

finding. Casady and Sosnowski represented DCFS in the

appeal, which was heard by Administrative Law Judge Daniel

Baechle. The ALJ recorded the proceedings on microcassettes

(and he was the only one who operated the recorder, changed

the tapes, and maintained the tapes). Cooney, however,

retained a private court

‐ reporting company to transcribe the

hearing as it occurred, creating the “Fishman transcripts.”

DCFS denied Cooney’s appeal based on the ALJ’s findings and

recommendations, and Cooney filed a complaint for adminis

‐

trative review in the state circuit court.

Once the petition for administrative review was filed,

Magnabosco began transcribing the administrative

‐ appeal

recordings. The parties agree that Magnabosco was not a

certified shorthand reporter. Cf. Cooney v. Magnabosco

, 943

N.E.2d 290, 296 (Ill. App. Ct. 2011) (rejecting Cooney’s conten

‐

tion “that anyone who uses shorthand to report a proceeding

in this state is automatically practicing as a ‘certified shorthand

reporter’ or holding herself out as such”), appeal denied

. Magnabosco was an independent contractor for Benedia

Certified Court Reporting, which had a contract with DCFS to

1 “[U]pon receipt of a report of abuse

... DCFS must determine whether

the report is ‘indicated,’ ‘unfounded,’ or ‘undetermined.’” Cooney v. Casady

,

652 F. Supp. 2d 948, 950 n.1 (N.D. Ill. 2009) (quoting 325 ILCS 5/7.12). A

person “subject to an indicated finding has the right to a hearing to appeal

the finding and to request expungement of

... her name from the State

Central Register.” Id. (citing 325 ILCS 5/7.16).4 Nos. 10

‐ 3842 & 11

‐ 1797

provide official transcripts of the tape

‐ recorded administrative

hearings. She transcribed the proceedings by listening to the

recordings on the microcassettes. She was the only person who

transcribed Cooney’s DCFS administrative proceedings (but

there is no evidence that Casady or Sosnowski knew this).

In early May 2007, Magnabosco completed transcripts from

September 2006 proceedings; DCFS representatives had access

to them on that same date (and could have known that

Magnabosco had transcribed them). Cooney does not claim

that these transcripts were “altered,” however. (Cooney uses

the term “alter” in sort of a special way, as we will explain

below, and we use it as she does.) Thereafter

, Magnabosco

prepared transcripts for the proceedings held on October 25,

26, and 27, 2006, January 30, 2007, and February 13, 2007. These

are the transcripts that were allegedly “altered.” When Cooney

reviewed them, she compared them with the Fishman tran

‐ scripts and found discrepancies, which form the basis of her

complaint here. Because of these discrepancies, the parties

agreed to have the Fishman transcripts, rather than

Magnabosco’s transcripts, serve as the official transcripts of the

administrative hearings. Four other prehearing conferences in

the administrative appeal had not been transcribed by

Fishman; the audiotapes from those proceedings were sent to

DiGiovanni Court Reporters for transcription. Apparently,

these DiGiovanni transcriptions also contained discrepancies

when compared to Magnabosco’s transcriptions.

Cooney filed a two

‐ count complaint against the defendants.

Count I alleged that they conspired to deprive her of her due

process rights in violation of 42 U.S.C. § 1983. Count II alleged

a state

‐ law claim for intentional infliction of emotional distress.Nos. 10

‐ 3842 & 11

‐ 1797 5

With respect to her § 1983 claim, her theory is that the DCFS

transcripts were “altered” by Magnabosco at Casady’s and

Sosnowski’s direction, and that this caused extensive delay and

expense on Cooney’s part to convince the circuit court to use

the Fishman transcripts as the official record.

The district court denied the defendants’ motions to dismiss

the complaint, concluding that the complaint stated a § 1983

claim and a claim for intentional infliction of emotional

distress. Cooney v. Casady

, 652 F. Supp. 2d 948, 958–59 (N.D. Ill.

2009). The court held that Cooney was not required to plead a

meeting of the minds and was required only to indicate “the

parties, general purpose, and approximate date, so that the

defendant has notice of what he is charged with.” Id. at 957

(quotation and citation omitted). The court also concluded that

Cooney alleged a sufficient constitutional injury, namely, a

violation of her right to procedural due process by undermin

‐ ing her right to a fair hearing and delaying her ability to obtain

a meaningful remedy in state court. Id. However, the court

stated: “Let there be no mistake: plaintiff’s conspiracy allega

‐

tions have a distinctly paranoid gestalt

, and it is unlikely that

her claims have merit.” Id. at 958. The defendants’ motion for

reconsideration was denied. Cooney v. Casady

, 680 F. Supp. 2d

942, 943 (N.D. Ill. 2010).

Following discovery, the district court granted the defen

‐

dants summary judgment on the § 1983 conspiracy claim and

the claim for intentional infliction of emotional distress. Cooney

v. Casady

, 746 F. Supp. 2d 973 (N.D. Ill. 2010). The court

reasoned:6 Nos. 10

‐ 3842 & 11

‐ 1797

[P]laintiff has put forward no direct or sufficient

circumstantial evidence of a conspiracy [among

defendants]. Defendants have put forward

undisputed evidence that neither Casady nor

Sosnowski ever met Magnabosco, ever spoke to

Magnabosco, or had any kind of communication

with her whatsoever. Plaintiff’s assertions that

Casady and Sosnowski could have known

Magnabosco’s identity and contacted her is not

supported by any evidence that they did so.

Id. at 975. The court rejected Cooney’s claim that a jury should

determine whether the discrepancies between the Fishman and

Magnabosco transcripts evidenced a conspiracy among the

defendants, explaining:

Taking all these discrepancies together (and I

have reviewed all of those listed in Exhibit 3 in

detail), I cannot conclude that these discrepan

‐

cies are sufficient to prove a conspiracy, espe

‐ cially given the circumstances under which the

Magnabosco transcripts were created (via

microcassette tapes) and, most importantly,

when there is no evidence that the three defen

‐

dants ever met or communicated with each

other. Based on this evidence, no reasonable jury

could conclude that the defendants conspired

together to alter the official transcript.

Id. at 976–77. Because the claim for intentional infliction of

emotional distress was based on the same underlying conduct,

the court concluded that summary judgment for the defen

‐Nos. 10

‐ 3842 & 11

‐ 1797 7

dants was proper because Cooney had “no proof of any

conduct by defendants that was ‘extreme and outrageous.’” Id.

at 977–78 (citation omitted).

The district court denied the defendants’ subsequent

motion for attorneys’ fees under 42 U.S.C. § 1988 and for fees

and costs under Rule 11. Orlando

‐ Cooney v. Casady

, No. 09

‐ C

‐

1920, 2011 WL 995817 (N.D. Ill. Mar. 21, 2011). In addressing

§ 1988, the court noted that it “was an extremely close call”

and concluded that Cooney’s complaint, though meritless, was

not frivolous because she had engaged “in some, albeit limited,

investigation into this matter by engaging in a word

‐ for

‐ word

comparison of the two transcripts.” Id. at *2. The court rejected

the defendants’ contention that, even if Cooney’s claim was not

frivolous at the outset, it became frivolous when she failed to

dismiss once discovery was completed. Finally, the court

declined to award Rule 11 sanctions because none of the

additional ten lawsuits Cooney had filed had been deemed

frivolous and because the defendants had failed to provide any

evidence (except their own say

‐ so) that she filed suit to harass

and harm them. Id.

II. D ISCUSSION

We review the grant of summary judgment de novo and

give Cooney, the nonmoving party, “the benefit of all reason

‐

able inferences that could be drawn from the record.” Citizens

Health Corp. v. Sebelius

, No. 12

‐ 3924, 2013 WL 3957578, at *3

(7th Cir. Aug. 2, 2013). “Summary judgment is appropriate if

there are no genuine issues of material fact such that the

moving parties are entitled to judgment as a matter of law.” Id.

We review the denial of attorneys’ fees under § 1988 and the8 Nos. 10

‐ 3842 & 11

‐ 1797

denial of sanctions under Rule 11 for an abuse of discretion.

Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co.

, 649 F.3d 539,

552 (7th Cir. 2011). “An abuse of discretion exists where no

reasonable person could take the view espoused by the district

court.” Leffler v. Meer

, 60 F.3d 369, 372 (7th Cir. 1995).

A. The District Court Properly Granted Summary

Judgment

“[T]o establish § 1983 liability through a conspiracy theory,

‘a plaintiff must demonstrate that: (1) a state official and a

private individual(s) reached an understanding to deprive the

plaintiff of his constitutional rights, and (2) those individual(s)

were willful participant[s] in joint activity with the State or its

agents.’” Lewis v. Mills

, 677 F.3d 324, 333 (7th Cir. 2012)

(quoting Reynolds v. Jamison

, 488 F.3d 756, 764 (7th Cir. 2007);

see also Whitlock v. Brueggemann

, 682 F.3d 567, 577 (7th Cir.

2012) (“There must be evidence of a concerted effort between

a state actor and [a private] individual.” (quotation and citation

omitted)), cert. denied sub nom. McFatridge v. Whitlock

, 133 S. Ct.

981 (U.S. Jan. 22, 2013).

The district court granted the defendants summary judg

‐

ment on the ground that there was no evidence from which a

reasonable jury could find a conspiracy among Casady,

Sosnowski, and Magnabosco. Cooney argues that she pre

‐

sented sufficient circumstantial evidence creating a question of

fact as to whether the defendants engaged in a conspiracy. She

claims that the evidence, when viewed in her favor, “clearly

raises the possibility that a jury can reasonably infer from the

circumstances that: (a) the transcripts of [her] DCFS adminis

‐

trative hearings were altered; (b) the alterations in the tran

‐Nos. 10

‐ 3842 & 11

‐ 1797 9

scripts benefitted DCFS’s case against [her] (c) Magnabosco

was the only person who could have altered the transcripts;

and (d) Casady and Sosnowski knew Magnabosco was

transcribing [Cooney’s] administrative hearings, and therefore

knew to contact [Magnabosco] specifically in order to alter the

official transcripts.” The flaws in her reasoning are obvious:

She even fails to argue that Casady, Sosnowski, and

Magnabosco actually agreed to alter transcripts. Instead,

Cooney asserts that there was knowledge and opportunity.

No reasonable jury could infer from the record that Casady

and Sosnowski actually knew that Magnabosco would tran

‐

scribe the challenged administrative hearings. Cooney reaches

her contrary conclusion by showing that Magnabosco was the

only person transcribing those hearings and that the completed

transcripts of the September 2006 hearings were ready by May

7, 2007. The first defect in this reasoning is the lack of any

evidence indicating that Casady or Sosnowski had knowledge

that Magnabosco was the only person transcribing Cooney’s

administrative hearings. The second defect is that, even

assuming such knowledge and opportunity, Cooney fails even

to argue that Casady and Sosnowski actually communicated

with Magnabosco. Rather, Cooney suggests that “there is a

possibility” that they could have contacted her. Because “vague

and conclusory allegations of the existence of a conspiracy are

not enough to sustain a plaintiff’s burden” at summary

judgment, Lewis

, 677 F.3d at 332, or even to survive a motion

to dismiss, Fries v. Helsper

, 146 F.3d 452, 458 (7th Cir. 1998), the

mere suggestion of such a possibility cannot defeat summary

judgment. Only speculation and conjecture could result in a

finding that the defendants conspired to deprive Cooney of her10 Nos. 10

‐ 3842 & 11

‐ 1797

rights; this is not enough. See Williams v. Seniff

, 342 F.3d 774,

785 (7th Cir. 2003) (“Although a conspiracy certainly may be

established by circumstantial evidence, we have stressed that

such evidence cannot be speculative.”); cf. Springer v.

Durflinger

, 518 F.3d 479, 484 (7th Cir. 2008) (“[A]ll the plaintiffs

have to go on is a collective hunch about the defendant’s

motives, which in itself will not survive a motion for summary

judgment.”).

Cooney seems to suggest that a plaintiff claiming a § 1983

conspiracy need not prove an agreement of some form among

the defendants; she argues that “all that is required is that the

participants share a ‘general conspiratorial objective.’”

Cooney’s Resp. & Reply Br. 5 (citing Hampton v. Hanrahan

, 600

F.2d 600, 621 (7th Cir. 1979), rev’d in part

, 446 U.S. 754 (1980)).

This argument reflects an ignorance of well

‐ established

principles of a civil conspiracy, unsupported by Hampton

. Cooney selectively quotes from that case in which we ex

‐ plained:

A civil conspiracy is a combination of two or

more persons acting in concert to commit an

unlawful act, or to commit a lawful act by un

‐

lawful means, the principal element of which is an

agreement between the parties to inflict a wrong

against or injury upon another, and an overt act

that results in damage.

... An express agreement among all the

conspirators is not a necessary element of a civil

conspiracy. The participants in the conspiracy

must share the general conspiratorial objective,Nos. 10

‐ 3842 & 11

‐ 1797 11

but they need not know all the details of the plan

designed to achieve the objective or possess the

same motives for desiring the intended conspira

‐

torial result.

Id. at 620–21 (emphasis added, internal quotations and citations

omitted). Hampton did not remove the requirement of a

conspiratorial agreement

. Cooney’s suggestion to the contrary

would eliminate this principal element of a conspiracy.

The district court was absolutely right: The record contains

no evidence that Casady, Sosnowski, and Magnabosco con

‐ spired to deprive Cooney of a federal right. This is aside from

the alleged discrepancies in the transcripts. Without proof of a

conspiratorial agreement, the alleged discrepancies in the

transcripts suggest at most negligence, on which § 1983 claims

cannot be founded. See, e.g.

, Loubser v. Thacker

, 440 F.3d 439, 442

(7th Cir. 2006).

Cooney argues that a comparison of Magnabosco’s tran

‐ scripts to the Fishman transcripts demonstrates that the former

were intentionally “altered” and that the district court improp

‐ erly weighed the evidence in concluding otherwise. Yet no

reasonable jury could infer that Magnabosco intentionally

“altered” transcripts. At oral argument Cooney clarified that

her claim is not that the transcripts were altered—she has no

evidence of prior, unaltered versions of the transcripts—but

rather, that the hearings were erroneously transcribed. As the

district court found, and the record supports, there is no

evidence that the portions of the transcripts indicated as

inaudible to Magnabosco, who transcribed the proceedings

from the microcassette recordings, were in fact audible to12 Nos. 10

‐ 3842 & 11

‐ 1797

anyone else transcribing from the same recordings. The fact

that Magnabosco has no background in medical terminology

further supports the conclusion that alleged errors (whether

“inaudibles” or misheard testimony) in her transcripts may

have been affected by her lack of knowledge. In no way does

it raise a reasonable inference that Casady and Sosnowski

directed Magnabosco to “alter” the transcripts, especially when

there is no evidence of any communication between them.

Cooney suggests that an independent court reporter

listened to the same tapes as Magnabosco and did not find any

of the recordings inaudible, but she is comparing apples to

oranges. She is relying on the DiGiovanni transcripts of

different hearing dates than the Magnabosco transcripts at

issue. While it may be true that the DiGiovanni transcripts of

prehearing dates also contained discrepancies when compared

to Magnabosco’s transcripts of the same prehearing dates

, that has

no bearing whatsoever on the Magnabosco transcripts at issue.

(And we note that Cooney does not claim that Magnabosco’s

transcripts of the prehearing dates were “altered.”)

Furthermore, while some of the discrepancies between the

Magnabosco transcripts and Fishman transcripts may have

benefitted DCFS’s case against Cooney, some of them did not.

For example, as Cooney admitted in her response to the

defendants’ statement of undisputed material facts, in one

instance, Magnabosco’s transcript reads:

MS. CASADY: When you refer to illness induced

in [Cooney’s son], what illnesses are you refer

‐ ring to and induced by whom?Nos. 10

‐ 3842 & 11

‐ 1797 13

DR. ROSSITER: Well an example, the delusional

disorder, (inaudible)

...

Whereas Fishman’s transcript reads:

Q. When you refer to illnesses that were induced

in [Cooney’s son], what illnesses are you refer

‐ ring to and induced by whom?

A. Well, for example, the first and most impor

‐

tant illness that I think was induced was a delu

‐

sional state, delusional disorder that was in

‐

duced by his mother and to a lesser extent his

grandparents.

And in some cases, the substance of the omitted witness

testimony that is favorable to Cooney is contained elsewhere

in the transcripts. For example, as again admitted by Cooney,

she claims that Magnabosco omitted testimony in which a

witness admitted to having no “expertise or medical training,”

in order to bolster the witness’s credibility; however, the

witness’s preceding testimony is accurately reflected in

Magnabosco’s transcript:

Q. You don’t have any medical background for

doing this?

A. Absolutely not.

As in the district court, Cooney tries to make much of the

fact that Magnabosco’s transcript indicates that a witness (Dr.

Paller) testifying about her son’s lesions used the term

“factitious” (meaning intentionally produced), whereas the

Fishman transcript indicates that the word used was “ficti

‐

tious” (false). Cooney alleges the transcript was “altered” to14 Nos. 10

‐ 3842 & 11

‐ 1797

support DCFS’s claim that her son was self

‐ inducing his

injuries because of her influence. Yet Cooney has admitted that

Dr. Paller testified that although he didn’t know where the

son’s lesions were coming from, he thought that “these are

ulcers that either he or somebody else is inducing.”

No reasonable jury could infer a conspiracy from the mere

fact of the discrepancies in the transcripts. This conclusion is

bolstered by the undisputed evidence that neither Casady nor

Sosnowski ever communicated with Magnabosco. Because

Cooney failed to produce sufficient evidence from which a

reasonable jury could infer a conspiracy, the defendants were

entitled to judgment as a matter of law on the § 1983 claim.

And because she had insufficient evidence to withstand

summary judgment on her § 1983 claim, she also had insuffi

‐

cient evidence with respect to her claim for intentional inflic

‐

tion of emotional distress. She appears to acknowledge as

much in her briefs on appeal. Therefore, the district court

properly granted summary judgment to the defendants.

B. The District Court Did Not Abuse Its Discretion in

Denying Defendants’ Request for Fees, Costs, and

Sanctions

The defendants petitioned for attorneys’ fees under § 1988

and Rule 11 sanctions. Section 1988 provides that in § 1983

actions “the court, in its discretion, may allow the prevailing

party

... a reasonable attorney’s fee as part of the costs.” 42

U.S.C. § 1988(b). The statute commits the decision whether to

award attorneys’ fees to the district court’s sound judgment.

Khan v. Gallitano

, 180 F.3d 829, 837 (7th Cir. 1999). We reviewNos. 10

‐ 3842 & 11

‐ 1797 15

the denial of fees in this context for abuse of discretion,

although we review legal questions de novo. Id.

Prevailing defendants may be awarded attorneys’ fees only

if the plaintiff’s “claim was frivolous, unreasonable, or ground

‐

less, or if the plaintiff continued to litigate after it clearly

became so.” Christianburg Garment Co. v. EEOC

, 434 U.S. 412,

422 (1978); see also Hughes v. Rowe

, 449 U.S. 5, 14–15 (1980) (per

curiam) (applying Christianburg under § 1988). The plaintiff’s

action must be groundless or without foundation (i.e.,

meritless), but “[t]he fact that a plaintiff may ultimately lose his

case is not in itself a sufficient justification for the assessment

of fees.” Hughes

, 449 U.S. at 14. “There is a significant differ

‐

ence between making a weak argument with little chance of

success

... and making a frivolous argument with no chance of

success,” and “it is only the latter that permits defendants to

recover attorney’s fees” under § 1988. Khan

, 180 F.3d at 837.

When considering the defendants’ petition for fees, the

district court articulated the proper legal rules and concluded

that, although it “was an extremely close call,” Cooney’s claim

was not frivolous but simply meritless. Orlando

‐ Cooney

, 2011

WL 995817, at *2. The court acknowledged that the only

evidence she had was the apparent discrepancies between the

transcripts, but it found that she “did engage in some, albeit

limited, investigation into this matter by engaging in a word

‐

for

‐ word comparison of the two transcripts.” Id. The court also

rejected the defendants’ view that Cooney continued to litigate

after the case became frivolous once discovery was complete,

again finding that it was “a very close call.” Id.16 Nos. 10

‐ 3842 & 11

‐ 1797

The defendants raise several arguments challenging the

district court’s conclusion but they have conflated their § 1988

attorneys’ fees analysis with their Rule 11 sanctions analysis (as

they did in the district court). Nonetheless, it appears that they

identify the following as support for an award of fees: (1)

Cooney’s reliance on a comparison of the transcripts itself

shows she could not reasonably believe a conspiracy had

occurred because parts of the Fishman transcripts were more

damaging to her than the Magnabosco transcripts—i.e., the suit

is frivolous; (2) Cooney did not act pro se but instead had ghost

counsels’ help throughout; and (3) Cooney has a history of

filing frivolous suits against participants in the state custody

and DCFS proceedings.

Cooney responds that she had adequate circumstantial

evidence of a conspiracy, but just not enough to preclude

summary judgment, which she contests on appeal, see supra

. However, as discussed, the only “evidence” that she had to

prove her claim was the inconsistencies between the tran

‐ scripts. Yet the district court determined that Cooney’s

complaint was not frivolous. It also found that the defendants

offered nothing other than their own say

‐ so to show that

Cooney filed the case to harass and harm them. Under similar

circumstances we have affirmed the denial of the defendants’

fee petition. In Springer v. Durflinger

, 518 F.3d 479 (7th Cir.

2008), parents who were disgruntled with a high school

softball coach filed a § 1983 suit, alleging baseless First Amend

‐

ment retaliation claims against a school district. Id. at 480. Even

though the parents “proffer[ed] no evidence whatsoever” of

retaliation, id. at 483, we affirmed the denial of the defendants’

fee petition:Nos. 10

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‐ 1797 17

The district court specifically noted that the

complaint was neither frivolous, nor brought in

bad faith. If we were in the district court’s posi

‐

tion, considering the facts in the first instance, we

may well have come to a different conclusion

regarding an award of attorneys’ fees. It may

have been error—considering the deficiency of

evidence—to allow this case to proceed to the

discovery phase in the first place. But given that

the parents did make it to discovery, they cannot

be faulted for trying, but ultimately failing, to

gather sufficient evidence of retaliation.

Id. at 486.

Here, as in Springer

, the district court found that Cooney’s

complaint was not frivolous and that the defendants had no

evidence of bad faith, and thus allowed the case to proceed to

discovery and summary judgment. If we were to decide the fee

issue in the first instance, we might have reached a different

conclusion than the district court. (Indeed, had the district

court decided to award attorneys’ fees, we doubt that decision

would have been an abuse of discretion.) But the district

court’s decision should be accorded appropriate deference. The

district court presided over the case for a period of time from

the pleading stages and pretrial discovery up to summary

judgment and beyond. Its intimate involvement with the case

and parties positioned it well to make a thoughtful exercise of

discretion regarding the defendants’ request for fees (and

sanctions). And Cooney should not be faulted for proceeding

with her case once she was given the chance to do so with the

denial of the motions to dismiss. Cf. Nisenbaum v. Milwaukee18 Nos. 10

‐ 3842 & 11

‐ 1797

Cnty.

, 333 F.3d 804, 809 (7th Cir. 2003) (“[Defendant] prevailed

at trial, and the magistrate judge’s decision that a trial was

essential precludes any shifting of trial costs back to [plain

‐ tiff].”).

Regarding Cooney’s less

‐ than

‐ pro

‐ se status, it seems that

she was aided by “ghost counsel” along the way. Cf. Cooney

,

652 F. Supp. 2d at 956–57 (stating “that plaintiff—a non

‐ lawyer

representing herself—has done a commendable job fending off

defendants’ various challenges, responding to their attacks

with lucid arguments and citations to pertinent (and often

persuasive) authorities”). Yet the defendants do not use this

assistance to support any argument for fees or sanctions;

rather, they assert that ghost counsel should be sanctioned

also. But § 1988 does not authorize an award of attorneys’ fees

against a party’s lawyers. Roadway Exp., Inc. v. Piper

, 447 U.S.

752, 761 (1980). As for Cooney’s litigation history, she may

have abused the system by filing many suits but the district

court found that none of those suits were frivolous. This

conclusion is accorded deference. The defendants do them

‐

selves a disservice by arguing that the decision in Cooney v.

Rossiter recognized that Cooney’s related claims “smack[ed] of

harassment.” It did not. The decision held only that the

complaint did not meet the “high standard of plausibility.” 583

F.3d at 971.

As for Rule 11 sanctions, the purpose of Rule 11 is to deter

baseless filings in the district court. Cooter & Gell v. Hartmarx

Corp.

, 496 U.S. 384, 393 (1990). The rule is not a fee

‐ shifting

measure—it provides only that a court may impose an

“appropriate sanction” for a violation of Rule 11(b). Fed. R.

Civ. P. 11(c)(1); see Bus. Guides, Inc. v. Chromatic Commc’nsNos. 10

‐ 3842 & 11

‐ 1797 19

Enters., Inc.

, 498 U.S. 533, 553 (1991) (former version of Rule

11). The decision to grant or deny a motion for Rule 11 sanc

‐

tions is within the sound judgment of the district court and will

be disturbed only where the court abuses its discretion. Mars

Steel Corp. v. Cont’l Bank N.A.

, 880 F.2d 928, 933 (7th Cir. 1989).

For the same reasons we affirmed the district court’s denial of

fees under § 1988, we affirm its decision to decline Rule 11

sanctions. Moreover, the defendants fail to identify the specific

pleadings or filings that they contend violated Rule 11(b). This

provides another reason to affirm the district court’s exercise

of discretion in this case.

C. Rule 38 Sanctions

However, the defendants’ request for Rule 38 sanctions is

a different matter. “If a court of appeals determines that an

appeal is frivolous, it may, after a separately filed motion or

notice from the court and reasonable opportunity to respond,

award just damages and single or double costs to the appel

‐

lee.” Fed. R. App. P. 38. “Under Rule 38, we must first deter

‐

mine if the appeal is frivolous, and if we find it is, we have

discretion to award sanctions or decline to do so.” Smeigh v.

Johns Manville, Inc.

, 643 F.3d 554, 565 (7th Cir. 2011) (citation

omitted). “An appeal is frivolous when the result is obvious or

when the appellant’s argument is wholly without merit.” Id.

(quotation and citation omitted). “When an appeal rehashes

positions that the district court properly rejected, or when it

presents arguments that are lacking in substance and ‘foreor

‐

dained’ to lose, the appeal is frivolous.” Berwick Grain Co. v. Ill.

Dep’t of Agric.

, 217 F.3d 502, 505 (7th Cir. 2000) (citations

omitted).20 Nos. 10

‐ 3842 & 11

‐ 1797

Cooney’s appeal is just such an appeal. She merely reargues

the arguments that the district court properly rejected. And she

does so despite the district court’s clear warning that her

complaint teetered on the line separating the frivolous from the

meritless. Although Springer may preclude a finding that the

district court abused its discretion here, it provides ample

support for an award of sanctions under Rule 38. There, after

affirming the district court’s denial of fees and costs, we said:

[W]e are not at all sympathetic to the [plaintiffs’]

appeal. They have never been able to point to

one shred of evidence demonstrating retaliation.

To insist that there is a genuine issue of material

fact in this case is beyond the pale, and an appeal

arguing as much is frivolous.

... Appeals such as

this not only bring the courts into disrepute but

also divert scarce judicial time from other liti

‐

gants who have serious claims or defenses.

Springer

, 518 F.3d at 486 (quotation, citation, and alteration

omitted).

Like the plaintiffs in Springer

, Cooney “may have caught

one break from the district court, but we are not inclined to

give [her] another one.” Id. She has no evidence of a conspir

‐

acy. We reiterate that had the district court decided to make an

award of attorneys’ fees to the defendants under § 1988, we

would not be inclined to find an abuse of discretion given the

record in this case.

Cooney asserts that Fed. R. App. P. 38 sanctions are

inappropriate because the standard of review is de novo. A

similar argument was rejected in Smeigh

, where the plaintiff’sNos. 10

‐ 3842 & 11

‐ 1797 21

arguments had been properly rejected by the district court yet

the plaintiff asserted the same arguments on appeal (nearly

verbatim):

Smeigh’s counsel responded at oral argument

that our review is de novo and he can raise the

same arguments to this court as below and isn’t

permitted to raise new arguments. Although

true, he certainly could have explained why the

district court’s decision was erroneous—for

example, he could have explained how Smeigh

can succeed without asserting vicarious liabil

‐ ity—or, if he has no explanation, he could have

decided not to appeal his conversion claim.

643 F.3d at 566. The court ultimately declined to impose

monetary sanctions because, unlike Cooney’s appeal, Smeigh’s

case was “too close to the line”: “Smeigh raised a non

‐ frivolous

argument (retaliatory discharge) on appeal, and JM had to

expend only minimal effort in responding to Smeigh’s frivo

‐

lous conversion claim.” Id.

Rule 38 requires that the party seeking sanctions file a

separate motion or that the court give notice and an opportu

‐ nity to respond. Fed. R. App. P. 38. The defendants did not file

a separate motion; rather, they merely raised the issue in their

brief. The Advisory Committee Note accompanying Rule 38

states: “A statement inserted in a party’s brief that the party

moves for sanctions is not sufficient notice.

... Only a motion,

the purpose of which is to request sanctions, is sufficient. If

there is no such motion, notice must come from the court.” Id.

, advisory committee’s note (1994 amendments). We do so here:22 Nos. 10

‐ 3842 & 11

‐ 1797

We order Cooney to show cause, within 15 days after the

conclusion of this appeal, as to why she should not be required

under Rule 38 of the Federal Rules of Appellate Procedure to

pay the defendants’ costs and reasonable attorneys’ fees on

appeal.

III. C ONCLUSION

We A FFIRM the district court’s judgment and we O RDER

Cooney to show cause why she should not be sanctioned for

filing this frivolous appeal.