United States District Court, D. New Mexico
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. ...