United States District Court, D. New Mexico
January 10, 2017
ANDREW ROSS and SUSAN GERARD, Plaintiffs,
HECTOR BALDERAS, JR., ROBERT GARCIA, SARAH MICHAEL SINGLETON, FRANCIS J. MATHEW, RAYMOND Z. ORTIZ, DAVID K. THOMPSON, JENNIFER ATTREP, T. GLENN ELLINGTON, SYLVIA LAMAR, DONITA OLYMPIA SENA, DONNA BEVACQUA-YOUNG, PAT CASADOS, FRANK SEDILLO, WILLIAM PACHECO, ANTONIO GUTIERREZ, ANNA MONTOYA, JUDAH BEN MONTANO, JOHN DOES 1-2, MICHELLE PORTILLO, STEPHEN T. PACHECO, JANE GAGNE, JOYCE BUSTOS, LYNN PICKARD, PAMELA REYNOLDS, ROBIN MARTINEZ, ROBERT RICHARDS, BRENDA WALL, AUDREY MONTOYA, ALLSTATE INSURANCE, INC., A. ARROYO, and E. MONTIJO, Defendants, and PAMELA REYNOLDS, Counterclaimant,
ANDREW ROSS and SUSAN GERARD, Counter-defendants.
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE
MATTER is before me on Defendant Richards' two motions
for sanctions against Plaintiffs and their attorney. [Docs.
80, 86]. The motions are fully briefed. [Docs. 83, 84, 99,
101]. The Honorable Paul J. Kelly, United States Circuit
Judge, who is presiding in this case, referred the motions to
me for proposed findings and a recommended disposition.
See [Doc. 77] at 3. No hearing is necessary because
the motions can be decided on the briefing. Having considered
the relevant portions of the record, the briefing, and the
relevant law, I recommend that the motions be denied.
Richards failed to comply with Rule 11's safe harbor
provision, and therefore, his motion for sanctions under Rule
11 should be denied. Additionally, Defendant Richards fails
to show that he is entitled to attorney fees under 28 U.S.C.
§ 1927 as a pro se litigant (who is also an attorney).
Further, mileage is not recoverable as a cost under §
1927. Finally, Defendant Richards' invocation of the
Court's inherent authority to impose sanctions is waived
because he did not raise it until his reply to the second
motion. Any other relief requested in the briefing, which is
not specifically addressed herein, should be denied.
case arises from a landlord-tenant dispute. Apparently,
Plaintiffs (the tenants) have been involved in numerous
lawsuits related to the dispute. Defendant Richards is (or
was) the attorney for the landlord. On October 10, 2016,
Plaintiffs initiated this action, suing dozens of people
involved in the underlying lawsuits. Plaintiffs alleged a
vast and incredible criminal conspiracy, which they claimed
has harmed them. [Doc. 1].
November 12, 2016, Plaintiffs filed their Application for
Temporary Restraining Order and Motion for Preliminary
Injunction Pursuant to Federal Rules of Civil Procedure Rule
65(b)(1) Against Defendant Robert Richards [Doc. 41]
(“Application for TRO”). They alleged that
Richards “was a known associate of the ‘Gambino
Crime Family[.]'” [Doc. 41] at 3. They further
alleged that he was relocated to New Mexico under the Witness
Protection Program. Id. They alleged that he has
repeatedly threatened them with physical harm if they did not
abandon their legal claims. Id. They alleged that he
has caused their home be surveilled day and night.
Id. They alleged that he has “an arsenal of
weaponry.” Id. They further alleged that he
hired “a masked marauder on a Kawasaki
motorcycle” to break into Plaintiff Gerard's
vehicle and steal her hearing aids. [Doc. 41-3] at 2.
support their claims, Plaintiff Gerard submitted an affidavit
averring that Defendant Richards had caused a frivolous
complaint to be filed against her with her professional
licensing board. [Doc. 41-2] at 1. (Gerard is a mental health
therapist. [Doc. 1] at 2.) She further averred that Defendant
Richards sent “derogatory” letters to her
employer, sent “extortionary letters” to her
personally, bribed law enforcement to obtain her new address,
caused her residence at her new address to be surveilled
“constant[ly], ” and called her home and
Plaintiff Ross's (her husband) cell phone
“innumerable” times. [Doc. 41-2] at 1-2. Finally,
Plaintiff Gerard averred that she personally observed many
firearms and a crossbow at Defendant Richards' home
office during a visit when she was representing herself pro
se. Id. at 1. There is nothing that could be
construed as evidentiary support for the claims that
Defendant Richards has ever been connected to the mafia or
that he has ever been relocated under the Witness Protection
Program. See [Doc. 41], including [Docs. 41-1
the Application for TRO did not ask the Court to enjoin
Defendant Richards from further harassing
Plaintiffs. See [Doc. 41]. Rather, it asked
the Court to order Defendant Richards to “furnish . . .
both his real name and the name he was born with in order for
Plaintiffs to investigate his past prior [sic] bad
acts.” Id. at 4. Defendant Richards responded
in opposition, arguing that the Application for TRO was
frivolous and requesting, among other things, that the Court
sanction Plaintiffs and their attorney. [Doc. 46] at 13, 15.
Kelly denied the Application for TRO on December 2, 2016.
[Doc. 77]. He found that Plaintiffs had completely failed to
address the governing standard, let alone show a clear and
unequivocal right to relief. Id. at 2. He further
found that Plaintiffs had no corroborating evidence of their
claims against Defendant Richards. Id. Finally,
Judge Kelly's order acknowledged Defendant Richards'
request for sanctions against Plaintiffs and their counsel
under Rule 11, and he referred those requests to me
“upon a formal motion.” Id. at 3.
Richards filed his formal motion for sanctions on December 4,
2016. [Doc. 80]. He argues that Plaintiffs and their attorney
filed the Application for TRO without good grounds to support
it, in order to harass him and to needlessly increase the
cost of litigation. Id. at 1. He requests about $10,
000 in sanctions and fees under Rule 11 and § 1927.
Id. at 3. He asks for this amount to reimburse him
for his fees and costs in responding to the motion,
id. at 1, and also to “deter repetition of the
conduct, ” id. at 2.
responded the next day, arguing that sanctions under Rule 11
would not be proper because Defendant Richards had failed to
comply with Rule 11's safe harbor provision. [Doc. 83] at
3-4 (citing Fed.R.Civ.P. 11(c)(2)). That is, Plaintiffs argue
that Defendant Richards did not serve them with a copy of his
motion for sanctions 21 days before filing it, as required by
Rule 11(c)(2). Id. at 4-5. That same day, December
6, 2016, Defendant Richards filed his reply, along with a
“Corrected” Motion for fees and sanctions. [Docs.
84, 86]. In both filings, Defendant Richards argues that
“the ‘safe harbor' provision is inapplicable
if the court sets another time to file a sanctions motion,
and that is exactly what the Court did when it ordered
[Richards to make his sanctions requests] upon a formal
motion.” [Doc. 84] at 2; see [Doc. 86] at 1.
He further argues that Plaintiffs were on notice of his
intent to seek sanctions when he requested sanctions in his
response to the Application for TRO, which was filed on
November 14, 2016 (i.e., more than 21 days before he filed
his motions for sanctions). Id. at 4. Finally, he
argues that Plaintiffs only dispute his request for sanctions
and not his request for attorney fees, id. at 1, the
implication being that Plaintiffs concede the attorney-fees
failed to timely respond to the “Corrected”
Motion. A response was due within 14 days after service of
the motion, or no later than December 20, 2016. D.N.M.LR-Civ.
7.4(a) (“A response must be filed within fourteen (14)
calendar days after service of the motion. . . . in
accordance with Fed. R. Civ. P 6(a) and (d) . . .”);
see Fed. R. Civ. P. 6(d) (allowing an extra three
days when service is made by certain methods that are
not applicable here) (effective Dec. 1, 2016).
Plaintiffs filed their untimely response on December 21,
2016. [Doc. 99]. Defendant Richards replied on December 27,
2016. [Doc. 101]. In his reply (to the
“Corrected” Motion), he requests-for the first
time-sanctions pursuant to the Court's inherent
authority, id. at 11, and he asserts new examples of
Plaintiffs' counsel's failure to follow the rules of
procedure, id. at 5-8.
under Rule 11 are not available because Defendant Richards
failed to comply with the safe harbor provision.
sympathetic to Defendant Richards' frustration.
Plaintiffs have never offered any evidentiary support for
their outlandish assertions that Defendant Richards has been
involved with the mafia or is running a criminal enterprise.
Nor do they suggest that any such evidence exists. However,
Rule 11 and the case law interpreting it are explicit: The
Court may not grant a motion for Rule 11 sanctions where the
movant has failed to follow the safe harbor provision.
Fed.R.Civ.P. 11(c)(2); Roth v. Green, 466 F.3d 1179,
1191-93 (10th Cir. 2006). I am not persuaded by Defendant
Richards' argument that Judge Kelly's order relieved
him of having to comply with the safe harbor provision
because the order “set another time” for filing
the motion. See [Doc. 84] at 2; [Doc. 86] at 1.
Defendant Richards misreads the rule. The language he relies
upon refers, not to the filing of the motion, but rather, to
the deadline for the non-movant to “withdraw or
appropriately correct” the “challenged paper . .
.” The Rule reads:
(2) Motion for Sanctions. A motion for sanctions
must be made separately from any other motion and must
describe the specific conduct that allegedly violates Rule
11(b). The motion must be served under Rule 5, but it must
not be filed or be presented to the court if the challenged
paper, claim, defense, contention, or denial is withdrawn or
appropriately corrected within 21 days after service or
within another time the court sets. If warranted, the court
may award to the prevailing party the reasonable expenses,
including attorney's fees, incurred for the motion.
Fed. R. Civ. P. 11(c)(2) (emphasis added). The opportunity to
withdraw or correct the challenged paper is an explicit
prerequisite to the filing of the motion for sanctions.
Id. Importantly, that opportunity to cure cannot be
initiated by notice or a letter or anything less than service
of a copy of the actual motion. Roth, 466 F.3d at
1191-92. Because Defendant Richards failed to serve a copy of
the motion for sanctions at least 21 days prior to the filing
of the motion, his request for sanctions under Rule 11 should
and costs under § 1927 should be denied.
Richards also asks for attorney fees and costs under §
1927. However, Defendant Richards proceeds pro
se. As the movant, he bears the burden of showing that he is
entitled to relief. He cites no authority that would allow
the Court to award him attorney fees when he is a pro se
litigant (even though he is also an attorney). Granted, I am
aware of no authority explicitly precluding the
award of attorney fees to a pro se litigant in the §
1927 context. However, there is abundant authority precluding
the award of attorney fees to pro se litigants in other
contexts. See Kay v. Ehrler, 499 U.S. 432, 435
(1991) (holding that a pro se party cannot obtain attorney
fees in a 42 U.S.C. § 1988 case, even if that pro se
party is himself an attorney); Demarest v.
Manspeaker, 948 F.2d 655, 655 (10th Cir. 1991) (holding
that a pro se litigant is not entitled to attorney fees under
the Equal Access to Justice Act); Corrigan v. United
States, 27 F.3d 436, 438-39 (9th Cir. 1994) (holding
that the tax code authorizing payment of attorney fees does
not apply to a pro se litigant); Zucker v. Westinghouse
Elec., 374 F.3d 221, 227, 230 (3rd Cir. 2004) (rejecting
a claim for attorney fees by an attorney who represented
himself in a shareholder derivative suit); see generally
McNeil v. United States, 508 U.S. 106, 113 n.10 (1993)
(recognizing “a systemic interest in having a party
represented by independent counsel even when the party is a
party must first incur attorney fees before he or
she is entitled to an attorney-fee award.” UFCW
Local 880-Retail Food v. Newmont Mining Corp., 352 F.
App'x 232, 238 (10th Cir. 2009) (emphasis added) (holding
that a pro se objector may not receive attorney fees for his
time and effort in contesting the amount of attorney fees
awarded to class counsel because, as a pro se litigant, he
has not “incurred” attorney fees). Pro se parties
do not incur attorney fees. Id. I find that even
though Defendant Richards is an attorney, he has not
“incurred” attorney fees within the meaning of
§ 1927 because he is not subject to paying such fees to
himself. See id. The fact that he spent his time on
the matter, and happens to be an attorney, does not change my
mind because every pro se litigant spends his time on his
broadly, I find persuasive the Supreme Court's policy
reasoning in Kay (which addressed attorney fees
under § 1988). The Court explained that restricting
attorney-fee awards to litigants who had hired independent
attorneys would encourage them to do so and thereby increase
the quality of litigation. See 499 U.S. at 435-36.
Even a skilled lawyer who represents himself is at a
disadvantage in contested litigation. Ethical considerations
may make it inappropriate for him to appear as a witness. He
is deprived of the judgment of an independent third party in
framing the theory of the case, evaluating alternative
methods of presenting the evidence, cross-examining hostile
witnesses, formulating legal arguments, and in making sure
that reason, rather than emotion, dictates the proper
tactical response to unforeseen developments in the
courtroom. The adage that “a lawyer who represents
himself has a fool for a client” is the product of
years of experience by seasoned litigators.
Id. at 437 (footnote omitted). Just as it makes
sense to encourage litigants to hire independent counsel to
prosecute their civil rights claims, it also makes sense to
encourage litigants to hire independent counsel in other
my finding that Defendant Richards fails to meet his burden
as the movant to show that he would be eligible for an
attorney fee award under § 1927 even though he proceeds
pro se, I am further persuaded that restricting attorney fee
awards to parties who have contracted with independent
counsel furthers the Court's interest in encouraging the
highest quality litigation possible. The request for attorney
fees under § 1927 should be denied.
costs' recoverable under 28 U.S.C. § 1927 include
only those enumerated in 28 U.S.C. § 1920.”
Resolution Trust Corp. v. Dabney, 73 F.3d 262, 267
(10th Cir. 1995). The only cost requested by Defendant
Richards is for mileage for his roundtrip from Santa Fe to
Albuquerque to attend a hearing. [Doc. 80] at 4. However, a
party's mileage for attending a hearing is not a
“cost” under § 1920. Accordingly, Defendant
Richards' request for mileage reimbursement under §
1927 should be denied.
Richards waived his invocation of the Court's inherent
authority to impose sanctions.
Richards asks the Court to sanction Plaintiffs and their
counsel under its inherent authority, but he does so only in
his reply to the “Corrected” Motion.
Compare [Docs. 80, 84, 86] (Defendant Richards'
filings, which do not mention inherent authority),
with [Doc. 101] at 11 (raising for the first time
inherent authority as a basis for sanctions). Accordingly,
the argument is waived. See, e.g., Gutierrez v.
Cobos, 841 F.3d 895, 902 (10th Cir. 2016) (“[A]
party waives issues and arguments raised for the first time
in a reply brief.”).
Richards failed to comply with Rule 11's safe harbor
provision, and therefore, his motion for sanctions under Rule
11 should be denied. Additionally, Defendant Richards fails
to show that he is entitled to attorney fees under §
1927 as a pro se litigant. Further, mileage is not
recoverable as a cost under § 1927. Finally, Defendant
Richards' invocation of the Court's inherent
authority to impose sanctions is waived because he did not
raise it until his reply to the second motion.
THEREFORE RESPECTFULLY RECOMMENDED that Defendant
Richards' motions for sanctions [Docs. 80, 86] be DENIED.
Further, the other requests for relief mentioned in the
briefing, which are not specifically addressed herein, should
PARTIES ARE FURTHER NOTIFIED THAT WITHIN FOURTEEN DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended
Disposition, they may file written objections with the Clerk
of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any written objections with the Clerk of
the District Court within the 14-day period if that party
wants to have appellate review of the proposed findings and
recommended disposition. See D.N.M.LR-Civ. 10.1. If
no objections are filed, no appellate review will be allowed.
 Many of the originally named parties
have been dismissed along with Ms. Reynolds'
counterclaims. [Docs. 8, 69, 76, 81, 91, 112]. All that
remains are Plaintiffs' claims against Defendants Robert
Garcia, William Pacheco, Antonio Gutierrez, Anna Montoya,
Judah Ben Montano, A. Arroyo, E. Montijo, and Robert
 In the “Information Sheet for
T.R.O., ” which is attached to the Application,
Plaintiffs list the relief sought as an order restraining
Defendant Richards or his agents from any contact with
Plaintiffs and from committing further criminal acts against
them. [Doc. 41-1] at 1.
 Sanctions under § 1927 would be
available only against Plaintiffs' counsel and not
against Plaintiffs themselves. See Steinert v. Winn Grp.,
Inc., 440 F.3d 1214, 1222 (10th Cir. 2006).
 Plaintiffs raised this issue in their
response to the “Corrected” Motion. [Doc. 99] at
13. Although the response was untimely, Defendant Richards
submitted a 20-page reply, in which he fails to offer any
argument or authority on the matter. See [Doc.