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Ross v. Balderas

United States District Court, D. New Mexico

January 10, 2017

ANDREW ROSS and SUSAN GERARD, Plaintiffs,
v.
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,
v.
ANDREW ROSS and SUSAN GERARD, Counter-defendants.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         Defendant 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.

         Background

         This 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].

         On 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.

         To 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 through 41-3].

         Curiously, the Application for TRO did not ask the Court to enjoin Defendant Richards from further harassing Plaintiffs.[2] 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.

         Judge 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.

         Defendant 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.

         Plaintiffs 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 issue.

         Plaintiffs 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.

         Sanctions under Rule 11 are not available because Defendant Richards failed to comply with the safe harbor provision.

         I am 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. ...


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