Mr. Lazroe's testimony, at the hearing in April, that Kruse's decision not to appear at trial was a surprise to him was not credible. His suggestion that the United States should have subpoenaed Kruse for trial leaves the inference that he knew beforehand that Kruse would not appear. In the face of settled law regarding the defendant's obligation to carry the burden of proof, he represented that his client would testify. Either he knew or should have known at that time that he had no evidence to rebut the government's case.
Mr. Lazroe's failure to notify Mr. Plepler on the eve of the February hearing that he intended to retain counsel and seek an adjournment was inexcusable. He had already been reprimanded by the court for falsely representing that his client would appear at trial. To repeat this conduct and force the government attorney to make a fruitless journey should not go unnoticed.
These instances of misconduct reflect a pattern of attempts to frustrate the United States' efforts to collect the subject liabilities. Mr. Lazroe's obstructive behavior has placed unnecessary burdens not only upon the Department of Justice but also upon the court itself.
The government has filed two certificates setting forth expenses incurred because of Lazroe's conduct (Items 30 and 37). The suggested award in the sum of $ 10,439.50 is most reasonable.
The purposes of 28 U.S.C. § 1927 will be furthered by an award of attorney's fees against Jeffrey Lazroe personally. Such a sanction is, in addition, justifiable pursuant to the court's inherent power. United States v. International Brotherhood of Teamsters, 948 F.2d 1338, 1344-1345 (2d Cir. 1991).
An award is appropriate under 28 U.S.C. § 1927 because Mr. Lazroe unreasonably and vexatiously multiplied the proceedings in this case. The Second Circuit has held that an award under § 1927 is proper when "'the attorney's actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay.'" United States v. International Brotherhood of Teamsters, 948 F.2d at 1345 (quoting Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986), cert. denied, 480 U.S. 918 (1987)). In this case, not only was the defense as to every claim without merit, but Mr. Lazroe failed to produce his client Kruse at trial after representing that Kruse would appear to testify and offer a defense. He falsely represented to the court that Kruse was not available for depositions. Further, he failed to notify the court and counsel that he intended to retain counsel for the hearing on attorney's fees when he knew that he would be taking such action. This resulted in the government attorney making a second needless trip to the court for the purpose of the bearing.
An award is equally well justified pursuant to the court's inherent power, which "stems from the very nature of courts and their need to be able 'to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. United States v. International Brotherhood of Teamsters, 948 F.2d at 1345 (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 115 L. Ed. 2d 27, 111 S. Ct. 2123, 2132 (1991)). Mr. Lazroe's actions provide the clear evidence of bad faith required for imposition of sanctions under the court's inherent power. Id. (citing Oliveri v. Thompsen, 803 F.2d at 1272); see also, Hirschfield v. Board of Elections in the City of New York, 984, F.2d 35, 40 (2d Cir. 1993).
The government seeks an award of attorney's fees in the sum of $ 10,439.57 and has submitted affidavits in support of that application. The affidavits are in order, and judgment shall be entered by the Clerk against Jeffrey Lazroe in the sum of $ 10,439.50, with interest.
JOHN T. CURTIN
United States District Judge
Dated: December 21, 1993
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