United States District Court, D. New Mexico
“Asher” Kashanian, Albuquerque, New Mexico, for
Richards, Santa Fe, New Mexico, pro se.
ORDER ON VARIOUS MOTIONS FILED BY DEFENDANT ROBERT
RICHARDS AND PLAINTIFFS ANDREW ROSS AND SUSAN GERARD
MATTER comes on for consideration of various pending motions
filed by Defendant Robert Richards and Plaintiffs Andrew Ross
and Susan Gerard regarding sanctions. Upon consideration
thereof, the motions are not well taken and should be denied.
the court considers Defendant Robert Richards's
Objections to the Magistrate Judge's Proposed Findings
and Recommended Disposition, filed January 19, 2017. Doc.
125. This court referred the issue of sanctions (arising from
Plaintiffs' unsuccessful request for preliminary
injunctive relief) to the magistrate judge upon a formal
motion by Defendant Richards. Doc. 77. Defendant Richards
then filed two motions for attorneys' fees and sanctions.
Docs. 80, 86. The magistrate judge recommended that Defendant
Richards's motions be denied. Doc. 113.
party objects to the magistrate's recommendations, this
court reviews the matters underlying those objections de
novo. See Ocelot Oil Corp. v. Sparrow Indus., 847
F.2d 1458, 1462 (10th Cir. 1988). Defendant Richards argues
that no case law supports the magistrate judge's finding
that, under Fed.R.Civ.P. 11, Plaintiffs must have had an
opportunity to withdraw or correct the challenged filings. He
argues that this court's requirement that he file a
formal motion for sanctions obviated the need for such a
prerequisite. According to Defendant Richards, a pro-se
attorney may be awarded attorney's fees as part of a
sanctions award regardless of whether he has incurred such
fees. He further objects to the magistrate judge's
finding that he waived his argument that the court should
award sanctions pursuant to its inherent authority by not
raising it until his reply brief. The court rejects these
objections for substantially the same reasons provided the
magistrate judge's proposed findings and recommended
disposition and will adopt those proposed findings and
the court considers Defendant Richards's notices of
withdrawal of his motions for attorney's fees and
sanctions, filed January 10 and 11, 2017. Docs. 114, 119.
“Withdrawal requires consent of all other parties or
approval of the Court.” D.N.M. LR-Civ. 7.7. Plaintiffs,
however, have not consented to the withdrawals,
e.g., Doc. 117, and the court declines to approve
Defendant Richards's attempt to withdraw the motions that
were the basis of the magistrate judge's proposed
findings and disposition and Defendant Richards's
subsequent objections. Defendant Richards has his ruling and
cannot erase it. The notices of withdrawal are ineffective.
on the same note, the court considers Defendant Robert
Richards's Motion for Sanctions Pursuant to the
Court's Inherent Powers, filed January 20, 2017. Doc.
127. The court will adopt the proposed findings and
recommended disposition of the magistrate judge, who
concluded Defendant Richards has waived his
inherent-authority argument. Defendant Richards cannot
resuscitate this argument given the magistrate's
conclusion that it was procedurally barred in the earlier
proceedings conducted by the magistrate judge. Accordingly,
his motion is denied.
and finally, the court considers Plaintiffs Ross and
Gerard's Motion for Rule 11 Sanctions Against Defendant
Richards, filed December 30, 2016. Doc. 105. Plaintiffs
contend that Defendant Richards failed to comply with Rule 11
and its safe harbor provision when Defendant Richards filed
his initial motion for sanctions. Although the failure to
comply with Rule 11 contributed to the denial of Defendant
Richards's motions for sanctions, his arguments
(including non-Rule 11 positions) were not frivolous given
the stage of the proceedings. Fed.R.Civ.P. 11(b)(2). Thus,
Plaintiffs' motion is denied.
THEREFORE, IT IS ORDERED, ADJUDGED, and DECREED that:
Defendant Robert Richards's Objections to the Magistrate
Judge's Proposed Findings and Recommended Disposition,
filed January 19, 2017 (Doc. 125) are overruled.
Proposed Findings and Recommended Disposition of the
Magistrate Judge, filed January 10, 2017 (Doc. 113) are
Defendant Robert Richards's Motion for Attorney Fees and
Sanctions, filed December 4, 2016 (Doc. 80), and Defendant
Robert Richards's Corrected Motion for Attorney Fees and
Sanctions December 6, 2016 (Doc. 86), may not be withdrawn
and are denied.
Defendant Robert Richards's Motion for Sanctions Pursuant
to the Court's Inherent Powers, filed January 20, 2017
(Doc. 127) is denied.
Plaintiffs Ross and Gerard's Motion for Rule 11 Sanctions
Against Defendant Robert Richards, filed ...