groundless, can merit initiation of action). We agree with Defendant that Dr. Johnson does appear to harbor great resentment and contempt toward all defendants. This attitude is compatible, however, with the attitude one might have if one thought one had been discriminated against. Because we are unwilling to find on this evidence that Plaintiff knew his case was meritless, we decline to award attorney's fees against Plaintiff under 42 U.S.C. §§ 1988(b) and 2000e-5(k).
2. FEES FROM MR. BAILEY
Defendant also seeks attorney's fees from Mr. Bailey under 28 U.S.C. § 1927 and Fed. R. Civ. P. 54(d). Section 1927 permits recovery of attorney's fees against an attorney who "unreasonably and vexatiously" multiplies the proceedings in a case. To make an award under this statute, a court must find that the attorney acted with bad faith. Baker Indus. v. Cerberus Ltd., 764 F.2d 204, 208 (3d Cir. 1985). This can be demonstrated either by showing an ulterior motive, or misconduct such as knowingly using perjured testimony, citing as binding authority overruled or non-binding cases, or otherwise misrepresenting facts or law to the court. Chalfy v. Turoff, 804 F.2d 20, 23 (2d Cir. 1986); Ford v. Temple Hosp., 790 F.2d 342, 347 (3d Cir. 1986).
We find in this case that Mr. Bailey has acted in bad faith toward this Court.
First, he filed a Complaint alleging a variety of Constitutional wrongs with full knowledge that the defendant was not a state actor, and indeed, did not even allege that defendants were state actors. Second, the Complaint alleged a violation of the Pennsylvania Whistleblower Act despite the absence of allegations that Plaintiff was a public employer. Chalfe, 804 F.2d at 23 ("brief shows that [party] did not attempt seriously to weigh the merits of their various claims under section 1983 or the United States Constitution"); Quiroga, 934 F.2d at 503 ("attorney 'tried to force plaintiff's various grievances into the framework of various state and federal causes of action'"); cf. Ford, 790 F.2d at 348 (no bad faith when legitimate, but weak, argument that jurisdictional prerequisites could be equitably tolled).
In addition, Mr. Bailey failed to make any written discovery requests until two weeks before the discovery deadline. At this time, he filed two requests for production of documents and one set of interrogatories. We find that waiting till that point only could act to multiply and delay the action, because it became likely that an extension would be needed, and gave Mr. Bailey the chance to argue, as he did in response to Defendant's Motion for Summary Judgment, that he had not yet received Defendant's discovery responses and so no rebuttal evidence could reasonably be expected.
More important, however, was Mr. Bailey's conduct before this Court in terms of presenting support for his assertions. We granted Defendant's motion for summary judgment because we found that Plaintiff had not presented even a scintilla of evidence to support his claim. The disturbing portion was Mr. Bailey's attitude toward the necessary evidence. He argued to this Court that certain statistical evidence would support Plaintiff's claims even when he knew that no statistical evidence existed. He also attached several unsworn documents to this court, called them affidavits, and did not have them sworn to even after Defendant pointed out that they were unsworn. In addition, Mr. Bailey attempted to persuade this Court to apply withdrawn California case-law that was directly opposed to controlling law of this circuit, without citing that controlling law to this Court. Whether Mr. Bailey believed there was a case at first blush, he unreasonably multiplied the litigation by inappropriately overpleading the case and by continuing to prosecute it after it became apparent that there was no evidence to support Dr. Johnson's version of the facts. For these reasons, we find that an award of counsel fees against Mr. Bailey is appropriate under 28 U.S.C. § 1927. Finally, we find that the attorney's fees requested are reasonable in both amount and type.
An appropriate Order follows.
AND NOW, this 1st day of June, 1995, upon consideration of Defendant's Motion for Counsel Fees and Expenses and responses thereto, the Motion is hereby GRANTED in PART and DENIED in PART. The Motion is hereby GRANTED in that Plaintiff's Counsel is hereby Ordered to pay Defendant $ 19,494.75 in counsel fees and expenses within thirty days of the date of this Order's entry. The Motion is hereby DENIED in that Plaintiff is not ordered to pay any counsel fees or expenses to Defendant.
BY THE COURT:
J. CURTIS JOYNER, J.