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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Micol Petty, 

Plaintiff, 

v. 

Circle K Stores Incorporated, et al., 

Defendants. 

No. CV-18-00567-PHX-DWL

ORDER 

Defendant Couche-Tard Brands and Financing LLC (“Couche-Tard”) has filed a 

motion for attorneys’ fees against Plaintiff Micol Petty (“Petty”). (Doc. 47.) The motion 

is fully briefed and neither party requested oral argument. 

Under 28 U.S.C. § 1927, a lawyer who “unreasonably and vexatiously” multiplies 

court proceedings “may be required by the court to satisfy personally the excess costs, 

expenses, and attorneys’ fees reasonably incurred because of such conduct.” This statute 

“requires proving that the opposing party acted with ‘subjective bad faith.’” Kohler v. 

Flava Enters., Inc., 779 F.3d 1016, 1020 (9th Cir. 2015) (citation omitted). Such bad 

faith may be inferred “when an attorney knowingly or recklessly raises a frivolous 

argument or argues a meritorious claim for the purpose of harassing an opponent.” 

Blixseth v. Yellowstone Mountain Club, LLC, 796 F.3d 1004, 1007 (9th Cir. 2015) 

(citation omitted).1

 Moreover, even when the requisite showing of bad faith has been 

 

1

 See generally In re Girardi, 611 F.3d 1027, 1061 (9th Cir. 2010) (“While[] [o]ur 
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made, the Court may decline, in its discretion, to impose sanctions. Haynes v. City and 

Cty. of San Francisco, 688 F.3d 984, 987 (9th Cir. 2012) (“[W]ith § 1927 as with other 

sanctions provisions, ‘[d]istrict courts enjoy much discretion in determining whether and 

how much sanctions are appropriate.’”) (citation omitted). See also Corley v. Rosewood 

Care Ctr., Inc. of Peoria, 388 F.3d 990, 1014 (7th Cir. 2004) (“Section 1927 is 

permissive, not mandatory. The court is not obliged to grant sanctions once it has found 

unreasonable and vexatious conduct. It may do so in its discretion.”). 

 The Court will deny Couche-Tard’s motion. As an initial matter, there is no merit 

to Couche-Tard’s contention that sanctions are warranted because Petty named it as a 

defendant in the initial complaint “without substantial justification and without any basis 

in fact or law.” (Doc. 47 at 4.) Because section 1927 only authorizes sanctions for the 

improper multiplication of proceedings, it “cannot be applied to an initial pleading.” In 

re Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 435 (9th Cir. 1996). See also id. (“The 

filing of a complaint may be sanctioned pursuant to Rule 11 or a court’s inherent power, 

but it may not be sanctioned pursuant to § 1927.”). 

 Couche-Tard also contends that sanctions are warranted based on Petty’s counsel’s 

“refusal to respond to defense counsel’s repeated requests” and “failure to oppose [the] 

Motion to Dismiss or seek to amend her complaint.” (Doc. 47 at 4.) Although the Court 

agrees that Petty’s counsel could and should have been more diligent in cooperating with 

Couche-Tard’s counsel to resolve the issue without motion practice, see generally Doc. 

41 at 2 (“Going forward, the Court expects Plaintiff to be more diligent in prosecuting her 

case, and for all parties to take more seriously their obligations to meet and confer, avoid 

 

cases have been less than a model of clarity regarding whether a finding of mere 

recklessness alone may suffice to impose sanction for attorneys’ fees under § 1927, or 

whether there must be a finding of subjective bad faith, what is clear from our case law is 

that a finding that the attorney recklessly or intentionally misled the court is sufficient to 

impose sanctions under § 1927, and a finding that the attorneys recklessly raised a 

frivolous argument which resulted in the multiplication of the proceedings is also 

sufficient to impose sanctions under § 1927.”) (citations, internal quotation marks, and 

italics omitted). 
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needless motion practice, and ensure the just, speedy, and inexpensive resolution of this 

matter.”), the Court finds that Petty’s counsel’s lack of diligence was the result of 

carelessness, not subjective bad faith.2

 Cf. Garcia v. JPMorgan Chase Bank NA, 2018 

WL 1570249, *10 (D. Ariz. Mar. 30, 2018) (denying motion for § 1927 sanctions where 

“conduct was objectively unreasonable, but not subjectively egregious enough to justify 

sanctions”). 

IT IS ORDERED that Couche-Tard’s motion for attorneys’ fees (Doc. 47) is 

DENIED. 

 Dated this 5th day of November, 2018. 

 

2

 For essentially the same reasons, the Court also declines to impose sanctions 

pursuant to its inherent authority.