Virginia Hospital Center-Arlington Health System v. Akl

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
ZIAD AKL,
Debtor.
____________________________
VIRGINIA HOSPITAL CENTER -
ARLINGTON HEALTH SYSTEMS,
Plaintiff,
v.
ZIAD AKL,
Defendant.
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Case No. 07-00256
(Chapter 7)
Adversary Proceeding No.
07-10026
Not for publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER DENYING IN PART AND
GRANTING IN PART MOTION OF VIRGINIA HOSPITAL CENTER-ARLINGTON
HEALTH SYSTEMS, PATRICK POTTER, AND KAREN-FAYE MCTAVISH TO
PARTIALLY RECONSIDER, ALTER, AMEND, AND ALTERNATIVELY, CLARIFY
THE COURT’S OCTOBER 14, 2009 MEMORANDUM DECISION AND ORDER
This addresses the Motion of Virginia Hospital Center-
Arlington Health Systems, Patrick Potter, and Karen-Faye McTavish
to Partially Reconsider, Alter, Amend, and Alternatively, Clarify
the Court’s October 14, 2009, Memorandum Decision and Order (Dkt.
No. 138, filed October 26, 2009). 	For the reasons set forth
The document below is hereby signed.
Signed: April 21, 2010.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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below, I will deny in part and grant in part the motion.
I
The procedural history underlying this motion is as follows.
On September 3, 2007, the plaintiff, Virginia Hospital System,
commenced the above-captioned adversary proceeding seeking a
determination of non-dischargeability of certain of the
defendant’s debts. 	After the defendant, Ziad Akl, answered,
Virginia Hospital moved for summary judgment, which I denied at a
March 12, 2008, hearing on the matter (Dkt. No. 27). 	Thereafter,
Virginia Hospital filed a motion to dismiss the adversary
proceeding (Dkt. No 28), to which Akl filed an opposition (Dkt.
No. 32), asking the court to defer ruling on the motion to
dismiss until Akl had an opportunity to file a counterclaim. 	On
April 3, 2008, Akl filed his motion for leave to file a
counterclaim (Dkt. No. 40) and his counterclaim (Dkt. No. 41).
Prior to ruling on Virginia Hospital’s motion to dismiss and
Akl’s motion for leave to file a counterclaim, Akl filed a motion
to have this court issue an order to show cause why Virginia
Hospital and its counsel, Karen-Faye McTavish and Patrick Potter,
ought not be held in criminal contempt (the “show cause motion”)
(Dkt. No. 61, filed June 16, 2008).
In two memorandum decisions (with accompanying orders) dated
September 4, 2008, I denied both Akl’s motion for leave to file a
2
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counterclaim and his show cause motion (Dkt. Nos. 90–93). 	That
same date I dismissed the adversary proceeding on the plaintiff’s
motion (Dkt. No. 93).
On October 14, 2008, Akl then filed a motion for sanctions
under 28 U.S.C. § 1927 and, in the alternative, for exercise of
the court’s inherent power to sanction Virginia Hospital, Potter,
McTavish, and Deborah Baum, another of the plaintiff’s attorneys
(Dkt. No. 110). 	In response, Virginia Hospital filed a motion to
strike, dismiss, and otherwise deny Akl’s motion for sanctions
(Dkt. No. 115, filed October 24, 2008). 	In a memorandum decision
and an order dated October 14, 2009, I granted in part and denied
in part Virginia Hospital’s motion, dismissing attorney Deborah
Baum from the proceeding (Dkt. Nos. 135 & 136). 	In response to
that decision and order, Virginia Hospital, Potter, and McTavish
(respondents) filed the motion currently before the court, to
reconsider my October 14, 2009, decision and order.
II
In their motion to reconsider, the respondents put forth
several reasons why the court’s October 14, 2009, decision was in
error. 	I will address each in turn.
A
The respondents first argue that I erred in rejecting their
res judicata argument. 	Particularly, the respondents state that
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when I rejected their res judicata argument on the basis that
there had been no judgment on the merits, I erroneously relied on
my September 4, 2008, memorandum decision and order denying Akl’s
motion for leave to file a counterclaim for lack of subject
matter jurisdiction (Dkt. Nos. 92 & 93). 	Instead, the
respondents contend, I should have looked to my September 4,
2008, memorandum decision and order denying Akl’s show cause
motion (Dkt. Nos. 90 & 91).
The respondents’ first point is correct. 	In my decision
denying the plaintiff’s motion to strike, dismiss, or otherwise
deny Akl’s motion for sanctions, I did cite and rely on the wrong
September 4, 2008, memorandum decision. 	Instead of relying on
the decision denying Akl’s motion for leave to assert a
counterclaim, I should have relied on my decision denying Akl’s
show cause motion. 	This error, however, does not affect my
decision to reject Virginia Hospital’s res judicata argument.
The respondents contend that my decision denying Akl’s show
cause motion was a judgment on the merits, thereby baring, by
operation of res judicata, his claims based on § 1927 and the
court’s inherent authority to sanction. 	In support of this
position, the respondents quote part of a footnote from my
decision. 	That footnote, in its entirety, reads:
Because I do not believe that there are reasonable
ground for believing that there has been a violation of
any 	laws 	of 	the 	United 	States 	or 	that 	an 	investigation
should be had in connection with Akl’s assertions, this
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is 	not 	an 	appropriate 	case 	for 	this 	court 	to 	make 	a
report 	to 	the 	United 	States 	Attorney 	under 	18 	U.S.C.
§ 3057. 	Nor is this an appropriate case for this court
to certify to the district court that a criminal contempt
may 	have 	arisen 	that 	the 	district 	court 	may 	wish 	to
pursue.
(Dkt. No. 90 at n.2). 	Based on this footnote, Virginia Hospital
then argues:
Both 	Section 	1927 	and 	this 	Court’s 	Inherent 	Authority
fall within the ambit of the “laws of the United States.”
As 	such, 	and 	because 	the 	facts 	underlying 	the 	Criminal
Fraud 	Motion 	and 	the 	present 	Sanctions 	Motion 	are 	the
same, 	and 	because 	he 	had 	the 	opportunity 	to 	litigate
alternative theories of liability in his Criminal Fraud
Motion, 	Akl 	is 	estopped 	from 	now 	asserting 	that 	such
facts constitute a basis for the Court to conclude that
Respondents violated more or different laws of the United
States--i.e., Section 1927 and the Inherent Authority of
the Court to sanction.
The four elements of res judicata traditionally applied in
this circuit are: (1) an identity of parties; (2) a judgment from
a court of competent jurisdiction; (3) a final judgment on the
merits; and (4) an identity of the cause of action. 	Kelly v.
Novastar, 637 F. Supp. 2d 34, 38 (D.D.C. 2009) (citing Capitol
Hill Group v. Pillsbury Winthrop Shaw Pittman, LLP, 574 F. Supp.
2d 143, 149 (D.D.C. 2008). 	The first two elements are clearly
met here. 	The only issues that remain is whether my order
denying Akl’s show cause motion was a judgment on the merits and
whether there is an identity of the cause of action.
“A dismissal for lack of subject-matter jurisdiction . . .
is not a disposition on the merits and consequently does not have
res judicata effect.” 	Prakash v. American University, 727 F.2d
5
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1174 (D.C. Cir. 1984). 	Although the respondents note that in my
decision denying Akl’s motion to issue an order to show cause why
the respondents ought not be held in criminal contempt I wrote
that I did not believe that this was an appropriate case to make
a report to the United States Attorney under 18 U.S.C. § 3057
because I did not believe that there were reasonable grounds for
believing that there had been a violation of any laws of the
United States, the respondents read too much into this line. 	As
I wrote in my order denying Akl’s motion to issue a report
pursuant to 18 U.S.C. § 3057, this is not a motion Akl had
standing to make. 	Rather, the line the respondents quote was
meant to fulfill the court’s duty under § 3057 to report, sua
sponte, any violations of chapter 9 of title 18. 1 	While Akl
styled his motion as a motion for the court to issue an order to
show cause why the respondents ought not be held in criminal
contempt, he did not rely on § 3057 nor did he request the court
to refer the matter to the U.S. Attorney.
1 	Section 3057, in relevant part, reads:
(a) 	Any 	judge, 	receiver, 	or 	trustee 	having
reasonable grounds for believing that any violation under
chapter 9 of this title [18 USC §§ 151 et seq.] or other
laws of the United States relating to insolvent debtors,
receiverships or reorganization plans has been committed,
or 	that 	an 	investigation 	should 	be 	had 	in 	connection
therewith, shall report to the appropriate United States
attorney all the facts and circumstances of the case, the
names 	of 	the 	witnesses 	and 	the 	offense 	or 	offenses
believed to have been committed.
6
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Akl’s motion asked the court, by way of a show cause order,
to hold the respondents in criminal contempt. 	And, as I
determined in my decision denying Akl’s show cause motion, this
court is without subject matter jurisdiction to issue such an
order. 	Because I denied Akl’s show cause motion on subject
matter jurisdiction and because I raised § 3057 sua sponte, Akl
did not have an opportunity to have this court reach the merits
of the facts he alleged gave rise to the claims he asserted in
his show cause motion. 	Accordingly, dismissal on the basis of
res judicata is inappropriate on this basis. 2
B
The next point of error the respondents raise is that the
court should have denied Akl’s § 1927 claim against Potter as
matter of law because commencing a proceeding cannot be a basis
for relief under § 1927. 	As Akl states in his response to the
respondents’ motion to reconsider, however, his § 1927 claims are
limited to Potter’s and McTavish’s bringing the motion for
summary judgment and the motion for protective order (Dkt. No.
145, at 10-11). 	Consequently, to the extent the court’s order of
October 14, 2009, stated that Akl’s § 1927 claim based on the
filing of the complaint was allowed, that order is modified to
reflect that Akl has asserted no such claim.
2 	Because I have determined that the my order denying
Akl’s show cause motion was not a final judgment on the merits,
need not analyze whether an identity of cause of action exists.
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C
Finally, the respondents argue that the court should have
dismissed most of Akl’s claims because of Akl’s failure to plead
sufficient facts to state a cause of action under § 1927 and the
court’s inherent authority to sanction, essentially a motion to
dismiss under Rule 12(b)(6). 3
The purpose of a Fed. R. Civ. P. 12(b)(6) motion is “to test
the legal sufficiency of the complaint.” 	Kingman Park Civic
Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003). 	In
deciding a motion to dismiss, although the court “must construe
the allegations and facts in the complaint in the light most
favorable to the plaintiff . . . ,” Gustave-Schmidt v. Chao, 226
F. Supp. 2d 191, 195 (D.D.C. 2002), the complaint must
nevertheless plead “enough facts to state a claim to relief that
is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), and “the court need not accept inferences drawn
by plaintiffs if such inferences are unsupported by the facts set
out in the complaint . . . . [nor must it] accept legal
conclusions cast in the form of factual allegations.” 	Kowal v.
MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
3 	Although the respondents did not raise this as a
grounds for dismissal in their motion to strike, dismiss, or
otherwise deny, because Akl had an opportunity to, and did in
fact, respond to the new grounds for dismissal in the
respondents’ motion to reconsider, I elect to treat this as I
would a standard motion to dismiss.
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In deciding a 12(b)(6) motion to dismiss, “the Court may only
consider the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt, 226 F. Supp. 2d at 196. 	For ease of
organization, I will address the respondents’ arguments in favor
of dismissal based on the conduct Akl alleges warrants sanctions
1. 	Sanctions re the Complaint
The respondents first argue that the court should dismiss
Akl’s motion for sanctions under the court’s inherent authority
based on the filing of the complaint because Akl has failed to
plead the necessary elements to state a claim for relief under
that authority. 	“Federal courts are endowed with a wide array of
inherent powers to protect their integrity and prevent abuse of
the judicial process.” 	Alexander v. F.B.I., 541 F. Supp. 2d 274,
303 (D.D.C. 2008). 	This power, however, “must be exercised with
restraint and discretion.” 	Roadway Express Inc. v. Piper, 447
U.S. 752, 764 (1980). 	The Supreme Court in Chambers v. NASCO,
Inc., 501 U.S. 32 (1991), set forth two such restraints. 	First,
a court “must find some connection between the sanctioned conduct
and a process of the court in the litigation before it.”
Alexander, 541 F. Supp. 2d at 303. 	Second, a court “must make an
explicit finding that [the target of the sanctions] acted in bad
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faith.” 	Id. (internal quotations omitted) (alterations in
original). 4
In their motion to reconsider, the respondents first state
that sanctions under the court’s inherent authority for the
filing of the complaint are only available against Potter and
Virginia Hospital, and not against McTavish. 	This is correct.
Akl’s only allegation against McTavish is that by appearing
in court on Virginia Hospital’s motion for protective order, she
thereby became liable for sanctions on the filing of the
complaint itself. 	This connection is too tenuous. 	Accordingly,
to the extent Akl asserts claims against McTavish under the
court’s inherent authority to sanction relating to the complaint,
such claims are appropriately dismissed.
Next, the respondents argue that Akl’s remaining claims
against Virginia Hospital and Potter for sanctions under the
4 	The respondents cite two cases stating that bad faith
must be pled with particularity. 	See In re Nogosh, No. 06-5617,
2007 U.S. Dist. LEXIS 61842, at *24 (E.D.N.Y. Aug. 22, 2007);
Fashion Fragrance & Cosmetics v. Croddick, No 02-6294, 2003 U.S.
Dist. LEXIS 5641, at *8 (S.D.N.Y. Apr. 7 ,2003). 	The court’s own
research was unable to reveal any other cases with this
requirement. 	Because Fed. R. Civ. Proc. 9(b) only requires that
fraud or mistake be pled with particularity and because there is
no binding precedent on point, I decline to require that bad
faith in the context of a motion for sanctions under the court’s
inherent authority be pled with particularity. 	And, in any
event, Akl’s allegations of bad faith center on the respondents’
intent to harass him, increase his litigation costs, and cause
collateral damages to him. 	“Malice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally.” 	Fed. R.
Civ. Proc. 9(b).
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court’s inherent authority for filing the complaint should be
denied based on a lack of sufficient factual allegations. 	In
support of this contention, the respondents focus on Akl’s
allegation that the respondents’ use of the word “forced” in the
complaint was designed to mislead this court into believing that
Virginia Hospital held a valid claim against Akl. 	This, however,
is too narrow a reading of Akl’s motion.
The crux of Akl’s motion for sanctions is that the complaint
itself was filed in bad faith, not that any particular language
within the complaint is sanctionable. 	Particularly, Akl alleges
Virginia Hospital and Potter commenced this adversary proceeding
for the improper purposes of harassing Akl, needlessly increasing
his litigation costs, and to cause collateral damage to him.
Akl’s focus on the word “forced” is intended merely to be
evidence that the complaint itself was filed for improper
purposes. 	It is not, though, the lynchpin of his argument.
Moreover, although Akl delves extensively into prior proceedings
before other courts in his motion, he is only doing so for the
purpose of showing the adversary proceeding was without merit;
that is, there was no reasonable basis for believing Virginia
Hospital’s claim against Akl was non-dischargeable. 	If Akl were
able to prove the complaint was meritless and were to prove that
Potter and Virginia Hospital commenced this proceeding for the
sole purpose of harassing him, that would warrant sanctions.
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This is what Akl has pled and this is sufficient to survive a
motion to dismiss
Second, because Akl seeks sanctions based on filing a
complaint commencing an adversary proceeding in this court, not
Virginia or Maryland state or federal courts, he has also met the
requirement under Alexander that the court find some connection
between the sanctioned conduct and a process of the court in the
litigation before it. 	For these reasons, the respondents’ motion
to dismiss Akl’s motion for sanctions for failure to state a
claim upon which relief can be granted is denied with regards to
Virginia Hospital and Potter.
2. Sanctions re Summary Judgment Motion
The respondents next argue that the court should deny Akl’s
motion for § 1927 and inherent authority sanctions regarding the
summary judgment motion based on a lack of sufficient factual
allegations.
a. Section 1927 Claims
Section 1927 provides for sanctions against any attorney who
“unreasonably and vexatiously” multiplies proceedings. 	To make
this finding, “evidence of recklessness, bad faith, or improper
motive must be present.” 	LaPrade v. Kidder Peabody & Co., 146
F.3d 899, 906 (D.C. Cir. 1998). 	“Bad faith is present when an
attorney knowingly or recklessly raises a frivolous argument, or
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argues a meritorious claim for the purpose of harassing an
opponent.” 	Soules v. Kauaians For Nukolii Campaign Comm., 849
F.2d 1176, 1185 (9th Cir. 1988).
In their motion to reconsider, the respondents start off by
stating that Akl’s issue is not with the summary judgment motion
per se, but with statements made within the motion and certain
attachments to it. 	In his response, however, Akl clearly states
that he is seeking sanctions based on the filing of the motion;
the statements in the motion, he contends, are evidence of the
bad faith of the motion for summary judgment itself. 	The issue
in the first instance, then, is whether the filing of a motion
for summary judgment can be, as a matter of law, a basis for
sanctions under § 1927.
In their motion to reconsider the respondents begin by
asserting that “[a] motion for summary judgment (at least one
filed early in the proceeding as in this case) cannot logically
be the basis for Section 1927 relief.” 	The respondents, however,
cite no authority in support of this proposition. 	Although, to
be sure, it would be rare for a motion for summary judgment to be
found to multiply a proceeding, some courts have issued § 1927
sanctions on this basis. 	Sweetland v. Bank of American Corp.,
241 Fed. Appx. 92, 97 (4th Cir. 2007).
In his motion for sanctions and his response to the
respondents’ motion to reconsider, Akl argues that the motion for
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summary judgment was sanctionable for two reasons. 	First, Akl
contends that the motion for summary judgment was sanctionable
because it was brought in furtherance of an adversary proceeding
that was commenced in bad faith. 	Particularly, Akl contends that
the adversary proceeding was without merit, Potter knew it was
without merit, and brought it solely for the purpose of harassing
and causing financial damage to Akl. 	Thus, argues Akl, because
the summary judgment motion was in furtherance of an adversary
proceeding that was brought in bad faith, the motion is
sanctionable, too. 	Second, Akl argues that the summary judgment
motion is sanctionable because, like the adversary proceeding
itself, it was without merit, Potter knew it was without merit,
and brought it for the purpose of harassing and causing financial
damage to Akl.
Turning to Akl’s first argument, he should not be allowed to
bootstrap the complaint itself into a basis for awarding
sanctions under § 1927 regarding the motion for summary judgment.
In essence, Akl’s first argument boils down to saying that even
if the summary judgment motion itself was not brought in bad
faith, because it was in furtherance of an adversary proceeding
that was brought in bad faith the motion should be sanctionable
under § 1927. 5 	In response to Potter’s argument that a § 1927
5 	Query, though, whether a motion for summary judgment in
an adversary proceeding brought in bad faith could ever itself be
brought in good faith. 	The more logical choice for a party
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claim cannot be brought for commencing a proceeding (as that
would not constitute a multiplying of proceedings), Akl has
foresworn any claim under § 1927 with respect to the filing of
the complaint. 	Thus, to the extent Akl is claiming that the
summary judgment motion is sanctionable merely because it was in
furtherance of an adversary proceeding that might have been
brought in bad faith, his claim must fail.
Akl’s second argument, however, does set forth a valid claim
under § 1927. 	Again, Akl alleges that the motion for summary
judgment was without merit, Potter knew it was without merit, and
the motion was brought for the purpose of harassing and causing
financial damage to Akl. 	Even if Potter’s motion was not
frivolous, if he made it for the sole purpose of harassing Akl,
as Akl alleges, then that would be a grounds for sanctions under
§ 1927. 	Soules, 849 F.2d at 1185. 	This is what Akl alleges and,
accordingly, dismissal of Akl’s § 1927 claim against Potter based
on the summary judgment motion itself being filed in bad faith is
improper at this time.
Finally, as a corollary from Akl’s § 1927 sanctions motion
being limited to the act of filing the motion for summary
judgment and because McTavish did not sign that motion or
advocate in furtherance of it, sanctions against her are
seeking to conclude a proceeding brought in bad faith would
simply be to dismiss it.
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appropriately dismissed.
b. The Court’s Inherent Authority to Sanction
Regarding Akl’s claim for sanctions under the court’s
inherent authority, the respondents also argue that Akl has
failed to meet the necessary pleading requirements. 	As I stated
above, in order for the court issue sanctions under its inherent
authority, there must be (1) some connection between the
processes of the court and the sanctionable conduct and (2) bad
faith by the party against whom the movant is seeking sanctions.
Alexander, 541 F. Supp. 2d at 303.
The requisite connection is here because Akl is seeking
sanctions based on a motion for summary judgment filed in this
adversary proceeding. 	Moreover, as I noted above, Akl has
alleged that the motion was filed solely for the purpose of
harassing him, thereby alleging bad faith. 	Thus, the
respondents’ motion to dismiss Akl’s motion for sanctions under
the court’s inherent authority based on filing the motion for
summary judgment is denied with regard to Potter and Virginia
Hospital. 	Regarding McTavish, because Akl’s motion for sanctions
under the court’s inherent authority is limited to the filing of
the motion for summary judgment and because McTavish neither
signed that motion nor advocated on its behalf, Akl’s motion for
sanctions against her is dismissed.
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3. The Motion for Protective Order and To Quash Subpoena
The respondents last argue that the court should deny Akl’s
motion for § 1927 and inherent authority sanctions regarding
Virginia Hospital’s motion for protective order and to quash a
subpoena Akl issued to depose Dr. Garrett based on a lack of
sufficient factual allegations. 6
a. Section 1927 Sanctions
The basis for Akl’s motion for § 1927 sanctions for the
filing of the motion to quash is the same as his first argument
for sanctions for filing the motion for summary judgment: the
adversary proceeding itself was commenced in bad faith, and,
therefore, everything subsequently filed in that adversary
proceeding, including the motion to quash the subpoena he issued
to Dr. Garrett, is sanctionable. 	This argument is unpersuasive.
As I stated regarding Akl’s motion for § 1927 sanctions
based on the filing of the motion for summary judgment, Akl
cannot establish a § 1927 claim by showing that the complaint
itself was filed in bad faith and by contending that the later
motion is sanctionable under § 1927 because it was in furtherance
of the complaint and thus unreasonably and vexatiously multiplied
6 	The respondents argue in their motion to reconsider
that Akl is seeking sanctions based solely on the statements that
McTavish made during the hearing on their motion for protective
order and motion to quash. 	As Akl clarifies in his response to
the respondents’ motion to reconsider, however, Akl is seeking
sanctions based only on the filing of the motions itself, not the
statements made by McTavish during the hearing on the matter.
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proceedings. 	Again, Akl has made clear that he is not seeking
§ 1927 sanctions based on the filing of the complaint. 	Moreover,
Akl does not contend that the motion to quash itself was filed in
bad faith. 	Indeed, at a hearing on the matter I granted Virginia
Hospital’s motion to quash. 	Even assuming without deciding that
the adversary proceeding itself was commenced in bad faith, for
the sole purpose of harassing Akl, it does not follow that a
meritorious motion to quash in that proceeding was itself tainted
by that bad faith. 	And, in any event, because I granted the
motion it cannot, as a matter of law, be found to be either
“unreasonable” or “vexatious.” 	Accordingly, Akl’s § 1927 claim
based on the filing of the motion to quash is appropriately
dismissed.
b. The Court’s Inherent Authority to Sanction
Akl’s motion for sanctions under the court’s inherent
authority for the filing of the motion to quash also fails. 	As I
stated above, one of the requirements for sanctions under the
court’s inherent authority is bad faith. 	Again, Akl does not
claim that the motion in its own right was sanctionable; rather,
Akl argues that the motion to quash should be sanctionable
because the adversary proceeding itself was instituted in bad
faith. 	This is not enough.
Like Akl’s § 1927 claim, he cannot bootstrap the alleged bad
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faith filing of the complaint into a basis for imposing an
inherent authority sanctions claim for filing the motion to
quash. 	If the complaint itself were filed in bad faith, Akl’s
remedy for that filing is to seek sanctions based on that filing.
And, if I were to grant that motion, I would likely award
sanctions to Akl for the entire cost of defending the proceeding.
That award, though, would not include the cost of Akl having to
contest the motion to quash.
As I ruled at the hearing on Virginia Hospital’s motion to
quash, Akl issued his subpoena prematurely. 	If Akl thought that
the entire proceeding was meritless and commenced for the sole
purpose of harassing him, he had a duty to mitigate his damages.
In this case, that meant not trying to depose Dr. Garrett prior
to determining, by a less intrusive means of discovery, how
Virginia Hospital intended to prove that Akl acted willfully or
maliciously. 	By issuing the subpoena prior to finding this out,
Akl failed to mitigate and, therefore, would not be entitled to
damages for having to contest the motion to quash. 	For these
reasons, Akls motion to sanctions under the court’s inherent
authority based on the filing of the motion for protective order
and to quash subpoena is also dismissed.
III
In accordance with the foregoing, it is
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ORDERED that the court’s October 14, 2009, Order is modified
to reflect that Akl has asserted no § 1927 claims against the
respondents based on the filing of the complaint. 	It is further
ORDERED that the court’s October 14, 2009, Order is modified
to reflect that Akl’s § 1927 sanctions claim based on the filing
of the motion for summary judgment is dismissed to the extent Akl
argues that the motion is sanctionable merely because it was in
furtherance of the adversary proceeding. 	It is further
ORDERED that the court’s October 14, 2009, Order is modified
to reflect that Akl’s § 1927 sanctions claim and sanctions claim
under the court’s inherent authority based on the filing of the
motion to quash are dismissed. 	It is further
ORDERED that the court’s October 14, 2009, Order is modified
to reflect that Akl’s claims for sanctions under § 1927 and the
court’s inherent authority against McTavish are dismissed. 	It is
further
ORDERED that the motion to reconsider is otherwise denied. 7
[Signed and dated above.]
Copies to: All counsel of record; Office of U.S. Trustee.
7 	Based on the foregoing, the only sanctions claims
remaining are as follows: (1) sanctions under the court’s
inherent authority for the filing of the complaint against Potter
and Virginia Hospital; (2) sanctions under § 1927 against Potter
for the filing of the motion for summary judgment, except to the
extent Akl argues the motion is sanctionable merely because it
was in furtherance of the adversary proceeding; and (3) sanctions
under the court’s inherent authority against Potter and Virginia
Hospital for the filing of the motion for summary judgment.
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