An attorney for a Rowan County couple who sued Kim Davis over her refusal to grant them a marriage license is now asking the court to sanction her attorneys.
An attorney for a Rowan County couple who sued Kim Davis over her refusal to grant them a marriage license is now asking the court to sanction her attorneys.
An attorney for a Rowan County couple who sued Kim Davis over her refusal to grant them a marriage license is now asking the court to sanction her attorneys.
An attorney for a Rowan County couple who sued Kim Davis over her refusal to grant them a marriage license is now asking the court to sanction her attorneys.
Court for the Eastern District of Kentucky Case No. 0:15-cv-00046-DLB-EBA ________________________
MOTION OF PLAINTIFFS–APPELLEES DAVID ERMOLD AND DAVID MOORE FOR SANCTIONS AGAINST LIBERTY COUNSEL AND ROGER K. GANNAM UNDER FED. R. APP. P. 38 AND 28 U.S.C. § 1927 ________________________
/s/ Michael J. Gartland
Michael J. Gartland, Esq. DelCotto Law Group PLLC 200 North Upper Street Lexington, KY 40507 Telephone: (859) 231-5800 mgartland@dlgfirm.com ATTORNEY FOR PLAINTIFFS– APPELLEES Case: 22-5260 Document: 35-1 Filed: 12/29/2022 Page: 2
Plaintiffs–Appellees David Ermold and David Moore (collectively,
“Plaintiffs”) hereby request that the Court enter an order sanctioning Liberty
Counsel and Roger K. Gannam, Esq. (“Gannam”), both of whom are counsel for
Defendant–Appellant Kim Davis (“Davis”), for filing and prosecuting this appeal.
The arguments made by Davis in the Brief of Defendant–Appellant (Doc. 15) and
the Reply Brief of Defendant–Appellant (Doc. 22) (the “Reply Brief”) were wholly
without merit and essentially had no reasonable expectation of altering the district
court’s summary judgment order based on law or fact. Davis prolonged the agony
of this appeal by filing a Petition for Initial Hearing En Banc (Doc. 19) and a Petition
for Rehearing En Banc (Doc. 29-1), both of which were denied with no active judge
requesting a vote on the suggestion of a hearing or rehearing en banc. See Docs. 21-
1, 33-1. In a word, Davis’s appeal was frivolous and initiated for the improper
purpose of harassment of Plaintiffs or a delay of a trial on the merits. For these
reasons, Plaintiffs respectfully request that the Court sanction Liberty Counsel and
Gannam jointly and severally in the amount of $21,675.01, which is the amount of
money that will compensate the undersigned’s firm for the time he and two
paraprofessionals spent representing Plaintiffs in this appeal during the period
between April 4, 2022 and the date hereof and the out of pocket expenses that it
incurred in connection therewith. In support of this Motion, Plaintiffs state as
filed her second motion to dismiss on sovereign and qualified immunity grounds
(see R. 29, Page ID # 139–140; R. 29-1, Page ID # 141–177), which was opposed
by Plaintiffs. See R. 31, Page ID # 186–222. On September 15, 2017, the District
Court entered its Memorandum Opinion and Order and dismissed the Amended
Complaint against Davis in her official capacity, but denied the request to dismiss it
against Davis in her individual capacity. See R. 49, Page ID # 294–314 (the
“Dismissal Order”). Both parties timely appealed the Dismissal Order to this Court
(see R. 51, Page ID # 317–340; R. 58, Page ID # 366–368), which commenced Case
No. 17-6119 in this Court.
The Court affirmed the District Court’s grant of sovereign immunity and
denial of qualified immunity to Davis. See Doc. 61-2 entered in Case No. 17-6119
at 1–11; Ermold v. Davis, 936 F.3d 429 (6th Cir. 2019). Answering the question of
where the allegations of the Amended Complaint adequately alleged a violation of a
clearly established right, this Court wrote:
That they do. Plaintiffs allege that: (1) the Fourteenth Amendment guarantees them the right, as same-sex couples, to marry; (2) they sought marriage licenses from Davis, whom Kentucky tasked with issuing those licenses; (3) under Kentucky law, they qualified for licenses; and (4) Davis refused to license them. Put differently, they identify the specific right they sought to exercise, what they did to exercise it, who thwarted their efforts, and how she did so. Plaintiffs therefore adequately alleged the violation of a constitution right.
And that right was clearly established when Davis acted … Here, Obergefell both recognized the right to same-sex marriage and defined its contours. The Court’s decree was as sweeping as it was 4 Case: 22-5260 Document: 35-1 Filed: 12/29/2022 Page: 5
unequivocal: [T]he right to marry is a fundamental right inherent in the
liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. The Court made no mention of a limit on that right, of an exception to it, or of a multi-factor test for determining when an official violates it. For a reasonable official, Obergefell left no uncertainty. For Davis, however, the message apparently didn’t get through. And it still doesn’t appear to have gotten through.
Id., 936 F.3d at 435–36 (italics in original) (citations omitted). Davis petitioned this
Court for a rehearing en banc; her petition was denied without requiring Plaintiffs to
file a response and “[n]o judge [] requested a vote on the suggestion for rehearing
en banc.” See Docs. 65-1 and 75-1 entered in Case No. 17-6119.
After remand, the District Court entered a Scheduling Order, which was
amended to permit Davis to seek review in the Supreme Court via her Petition for
Writ of Certiorari, which was denied. See R. 67, Page ID # 401–402; R. 74-1, Page
ID # 451–671; R. 76, Page ID # 683–684; R. 78, Page ID # 690–691; R. 79, Page
ID # 692; R. 80, Page ID # 693–694; R. 82, Page ID # 700. The District Court set
July 30, 2021 as the deadline for the parties to file dispositive motions. See R. 87,
Page ID # 712. Plaintiffs filed their motion for summary judgment and supporting
memorandum on July 30, 2021. See R. 88, Page ID # 713–714; R. 88-1, Page ID
# 715–723. Davis filed her 78-page motion for summary judgment one day beyond
the deadline to file dispositive motions. See R. 93, Page ID #1699–1766. She did,
however, manage to clutter the record with 941 pages of irrelevant material by the
July 30, 2022 filing deadline. See R. 88–92-20, Page ID # 758–1698.
On March 18, 2022, the District Court granted Plaintiffs’ summary judgment
motion and denied Davis’s competing summary judgment motion by a well-
reasoned Memorandum Opinion and Order. See R. 108, Page ID # 1948–1969 (the
“Summary Judgment Order”); Ermold v. Davis, 2022 WL 830606 (E.D. Ky. Mar.
18, 2022). Referencing this Court’s opinion in Ermold v. Davis, 936 F.3d 429 (6th
Cir. 2019), the District Court wrote:
In the Sixth Circuit’s opinion, it unequivocally stated that Plaintiff’s
[sic] allegations at the Motion to Dismiss stage “adequately alleged the violation of a constitution[al] right.” Id. at 435. As the Sixth Circuit aptly explained, Plaintiffs alleged that the Fourteenth Amendment guaranteed them the right to marry, that they sought marriage licenses from Defendant Davis, an elected official who “Kentucky tasked with issuing those licenses[,]” that they qualified for those licenses, and that “Davis refused to license them.” Id. Now, at the summary judgment stage, the discovery material available to the Court proves that these allegations are undeniable.
It is readily apparent that Obergefell recognizes Plaintiffs’ Fourteenth
Amendment right to marry. It is also readily apparent that Davis made a conscious decision to violate Plaintiffs’ right. Both the Ermold and Yates Plaintiffs sought marriage licenses from either Defendant Davis or the deputy clerks who were acting in conformance with the policy instituted by Davis—a policy directing deputy clerks to refuse to issue marriage licenses in the wake of Obergefell. Ermold, ECF No. 88-2 at 12; Yates, ECF No. 78 at 61. Each time, Plaintiffs’ requests for marriage licenses were refused. Id. In total, the Ermold Plaintiffs were refused a marriage license three times, ECF No. 88-2 at 14-15, 17, and the Yates Plaintiffs were refused a license five times, ECF No. 80 at 94- 97. These facts were solicited from Defendant Davis’s own testimony. Defendant Davis violated Plaintiffs’ constitutional right to marry by 6 Case: 22-5260 Document: 35-1 Filed: 12/29/2022 Page: 7
refusing to issue them marriage licenses, either personally or through
the policy she established for the Rowan County Clerk’s office.
Ermold, 2022 WL 830606, at *4 (emphasis in original). Nowhere in Defendant’s
Response in Opposition to Plaintiffs’ Motion for Summary Judgment (R. 105, Page
ID # 1921–1927) did Davis even attempt to refute any of the facts contained in the
Memorandum of Law in Support of Plaintiff’s [sic] Motion for Summary Judgment
(R. 88-1, Page ID # 715–723), most of which made their way into the District Court’s
Summary Judgment Order. Because Davis never challenged Plaintiffs’ summary
judgment facts, she had no reasonable expectation of getting the Summary Judgment
Order reversed. Nevertheless, she plowed ahead undeterred and filed a timely notice
of appeal (see R. 109, Page ID # 1970), which commenced this appeal.
On June 14, 2022, Davis filed her opening Brief (Doc. 15) and requested oral
argument, a request that was denied. See Doc. 15 at 11; Doc. 24. Plaintiffs filed
their response Brief on July 14, 2022 (Doc. 16), which is the same day that Davis
filed her Petition for Initial Hearing En Banc three times. See Docs. 17–19. In the
third such petition, Davis claimed that a “new panel” hearing the instant appeal
might be “heavily influenced, if not constrained, to follow” the prior panel’s majority
opinion affirming the District Court’s disposition at the motion to dismiss stage. See
R. 19 at 7. On the contrary, a “new panel” would have been required to follow this
On August 8, 2022, Davis filed the Reply Brief (Doc. 22). Just forty-nine
days later, the Court affirmed the Summary Judgment Order in an Opinion that was
not even five full pages. See Doc. 25-2; Ermold v. Davis, 2022 WL 4546726 (6th
Cir. Sept. 29, 2022). In the first paragraph of that Opinion, this Court succinctly
stated:
Over three years ago, we considered whether plaintiffs, two same-sex
couples who sought to marry in Rowan County, Kentucky, pleaded a plausible case that Kim Davis, then-Rowan County Clerk, violated their clearly established right to marry when she declined to issue marriage licenses based on her belief that same-sex marriage was immoral. They did, meaning Davis was not entitled to qualified immunity at the motion-to-dismiss stage. Ermold v. Davis, 936 F.3d 429, 432 (6th Cir. 2019). At the summary-judgment stage, discovery proved the facts plaintiffs pleaded. Thus, Davis is still not entitled to qualified immunity, and we again affirm the district court.
Ermold, 2022 WL 4546726, at *1. The panel refused to consider “other issues” that
Davis attempted to “inject” into this appeal—“largely based on the allegations that
her First Amendment rights were violated”—for lack of jurisdiction because they
were not resolved by the District Court “in the course of denying qualified
immunity.” Id. at *2. Undeterred, Davis filed a Petition for Rehearing En Banc on
October 14, 2022. See Doc. 29-1. That Petition was “circulated to the full court,”
but “[n]o judge [] requested a vote on the suggestion for rehearing en banc.” Doc.
33-1. That was the second time that no judge of this Court expressed any interest in
rehearing en banc the denial of Davis’s qualified immunity defense.
1. Davis’s appeal of the Summary Judgment Order was wholly without
merit because her arguments on appeal had no reasonable expectation of altering that order based on law or fact. This appeal was therefore filed for an improper purpose, such as harassment or delay.
Plaintiffs seek sanctions against Liberty Counsel and Gannam for the time that
the undersigned spent defending Plaintiffs in this appeal and the out of pocket
expenses incurred in conjunction therewith. There are two avenues for the Court to
impose sanctions for this frivolous appeal. The first is Rule 38 of the Federal Rules
of Appellate Procedure, which provides:
If a court of appeals determines that an appeal is frivolous, it may, after
a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.
Fed. R. App. P. 38. “Sanctions under Fed. R. App. P. 38 are appropriate when an
appeal is wholly without merit and when the appellant’s arguments essentially had
no reasonable expectation of altering the district court’s judgment based on law or
fact.” Hogan v. Jacobson, 823 F.3d 872, 886 (6th Cir. 2016) (quoting Scherer v. JP
Morgan Chase & Co., 508 F. App’x 429, 439 (6th Cir. 2016)). Under Rule 38, there
is no “bad faith” requirement, but this Court “will usually impose Rule 38 …
sanctions only where there was some improper purpose, such as harassment or delay,
behind the appeal.” Howlett v. City of Warren, Michigan, 852 F. App’x 899, 902
(6th Cir. 2021) (quoting Hogan, 823 F.3d at 886) (ellipses in original); see also 9 Case: 22-5260 Document: 35-1 Filed: 12/29/2022 Page: 10
“But an appeal may also be frivolous if it is filed out of “sheer obstinacy—when the
only issues in the case clearly have been resolved against the appellant.” Anderson
v. Dickson, 715 F. App’x 481, 489 (6th Cir. 2017) (internal quotation marks and
citation omitted); see also Wilton Corp. v. Ashland Castings Corp., 188 F.3d 670,
676 (6th Cir. 1999) (“Sanctions are appropriate where the appeal was prosecuted
with no reasonable expectation of altering the district court’s judgment and for
purposes of delay or harassment or out of sheer obstinacy.”) (internal quotation
marks and citation omitted).
The second avenue to impose sanctions against an attorney for taking a
frivolous appeal is under Section 1927 of the United States Code, which provides:
Any attorney or other person admitted to conduct cases in any court of
the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.
28 U.S.C. § 1927.
This Court has imposed Section 1927 sanctions “where an attorney
objectively falls short of the obligations owed by a member of the bar to the court
and which, as a result, causes additional expense to the opposing party.” Larry E.
Parrish, P.C. v. Bennett, 989 F.3d 452, 458 (6th Cir. 2021) (quoting Red Carpet
Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006)
Plaintiffs submit, that this appeal, which is one in a series of appeals by Davis,
was filed to harass Plaintiffs or delay a trial on the merits, something that Davis has
succeeded in doing for nearly seven and a half years. Sanctions against Liberty
Counsel and Gannam are warranted under Rule 38 and/or Section 1927 for appealing
the Summary Judgment Order for the improper purpose of harassment or delay with
no reasonable expectation of altering that order based on law or fact. Howlett, 852
F. App’x at 902; Hogan, 823 F.3d at 886; Scherer, 508 F. App’x at 439. Simply put,
this appeal flunks Section 1927’s objective standard. Rathbun, 825 F.2d at 984.
2. The Court should order Liberty Counsel and Gannam to pay the sum of $21,675.01 to DelCotto Law Group PLLC for the time the undersigned and two paraprofessionals spent defending this appeal and preparing this Motion, and the out of pocket expenses the firm incurred in connection therewith.
The undersigned is the sole attorney representing Plaintiffs that prepared the
Brief of Appellees David Ermold and David Moore (Doc. 16), the Response of
Plaintiff–Appellees David Ermold and David Moore to Defendant–Appellant’s
Petition for Rehearing En Banc (Doc. 32) and this Motion. See Paragraph 14 of the
Declaration of Michael J. Gartland dated December 29, 2022 (“Gartland
Declaration”), a copy of which is attached hereto as Exhibit 1. Attached hereto as
Exhibit 2 is an invoice prepared by DelCotto Law Group PLLC (“DLG”) in the
ordinary course of its business (the “Invoice”). See Gartland Declaration ¶ 13.
Michael J. Gartland, Esq. DelCotto Law Group PLLC 200 North Upper Street Lexington, KY 40507 Telephone: (859) 231-5800 Facsimile: (859) 281-1170 mgartland@dlgfirm.com
TYPE-VOLUME LIMITATIONS, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS
1. This Motion complies with the type-volume limitation of Fed. R. App.
P. 27(d)(2)(A) because it contains 4,048 words.
2. This Motion complies with the typeface requirements of Fed. R. App.
P. 32(a)(5)(A) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word for Microsoft 365 MSO (Version 2211) in Times New Roman at 14 point. .
/s/ Michael J. Gartland
Michael J. Gartland, Esq. DelCotto Law Group PLLC 200 North Upper Street Lexington, KY 40507 Telephone: (859) 231-5800 mgartland@dlgfirm.com
I hereby certify that on December 29, 2022, the above Motion of Plaintiffs– Appellees David Ermold and David Moore for Sanctions Against Liberty Counsel and Roger K. Gannam Under Fed. R. App. P. 38 and 28 U.S.C. § 1927 was electronically filed and served via the Court’s CM/ECF system on:
Email: rgannon@lc.org Roger K. Gannon, Esq. ATTORNEY FOR DEFENDANT–APPELLANT KIM DAVIS
Email: court@lc.org Matthew D. Staver, Esq. ATTORNEY FOR DEFENDANT–APPELLANT KIM DAVIS
Email: ACDonahue@DonahueLawGroup.com A.C. Donahue, Esq. ATTORNEY FOR DEFENDANT–APPELLANT KIM DAVIS
/s/ Michael J. Gartland
Michael J. Gartland, Esq. ATTORNEY FOR PLAINTIFFS– APPELLANTS
J. Filiberto Sanitation, Inc. v. State of New Jersey Department of Environmental Protection and Board of Public Utilities Hunterdon County Municipal Utilities Authority, 857 F.2d 913, 3rd Cir. (1988)
Order Granting Plaintiffs' Motion For Summary Judgment and Denying Defendant's Motion For Summary Judgment, Chong v. City of Seattle, No. 17-2-05595-6 (Wash. Super. Mar. 28, 2018)
J. Filiberto Sanitation, Inc. v. State of New Jersey Department of Environmental Protection and Board of Public Utilities Hunterdon County Municipal Utilities Authority, 857 F.2d 913, 3rd Cir. (1988)
Order Granting Plaintiffs' Motion For Summary Judgment and Denying Defendant's Motion For Summary Judgment, Chong v. City of Seattle, No. 17-2-05595-6 (Wash. Super. Mar. 28, 2018)
