Yankee Enterprises v. Dunkin' Donuts Inc

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-41192 Summary Calendar

YANKEE ENTERPRISES, INC.,

Plaintiff,

GREG M DYKEMAN

Appellee

VERSUS

DUNKIN’DONUTS INC.,

Defendant-Appellant.

Appeal from the United States District Court For the Eastern District of Texas (1:95-CV-136) May 21, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges. PER CURIAM*:

Dunkin’ Donuts, Inc. appeals the district court’s decision

denying its motion for sanctions pursuant to 28 U.S.C. § 1927.

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Finding no abuse of discretion, we affirm.

Yankee Enterprises, Inc. is a franchisee that operates a

Dunkin’ Donuts store in Beaumont, Texas. In 1994, Yankee brought

suit against Dunkin’ Donuts alleging that Dunkin Donuts had

breached the franchise agreement and violated the DTPA. A jury

awarded Yankee $747.723.00. The Fifth Circuit reversed and

rendered, holding that there was insufficient evidence of

causation. Yankee Enterprises, Inc. v. Dunkin’ Donuts, Inc., No.

96-40735, slip op. (5th Cir. July 8, 1997). After the case was

remanded to the district court, Dunkin’ Donuts moved for sanctions

pursuant to 28 U.S.C. § 1927, alleging various unreasonable and

vexatious conduct by counsel for Yankee Enterprises. The district

court denied the sanctions motion. Dunkin’ Donuts timely appeals.

We review a denial of sanctions under 28 U.S.C. § 1927 for

abuse of discretion. Matta v. May, 118 F.3d 410, 413 (5th Cir.

1997). Section 1927 applies to an attorney “who so multiplies the

proceedings in any case unreasonably and vexatiously.” 28 U.S.C.

§ 1927. In this case, most of the conduct alleged to be vexatious

was allowed by the district court during trial. Typically,

protection under § 1927 should come from the district court. This

appeal presents a close case, but upon review of the record as a

whole, we cannot say that the district court abused its broad

discretion by denying the sanctions motion. See Pease v. Pakhoed

Corp., 980 F.2d 995 (5th Cir. 1993)(district court has broad

discretion in denying sanctions under § 1927). Accordingly, the judgment of the district court is AFFIRMED.