United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR United States Magistrate Judge.
and their attorney have made numerous factual allegations in
the course of this litigation that are simply beyond the
pale. They have no evidence to support these fantastical
allegations, and their reasons for making them are non
sequiturs. I find that by making these unsupported
allegations, Plaintiffs and their attorney, Arash Kashanian,
have abused the judicial process and made a mockery of these
proceedings. They should be sanctioned. I recommend that the
Court award Defendant Garcia attorney fees in the total
amount of $12, 055, pursuant to 43 U.S.C. § 1988, 28
U.S.C. § 1927, and the Court's inherent authority,
plus interest pursuant to 28 U.S.C. § 1961, with half to
be paid by Plaintiffs and half by Mr. Kashanian personally.
hard to believe, but this all started as a simple dispute
between Plaintiffs and their landlord. An avalanche of
litigation ensued: an eviction case in Santa Fe County
Magistrate Court and three separate appeals therefrom; three
criminal complaints against Plaintiffs for misdemeanor
harassment of the landlord; seven civil lawsuits,
this federal action. Plaintiffs have incurred adverse rulings
at virtually every turn. Gerard complained to the Judicial
Standards Commission about Judge Sena, who ruled against her
in the eviction case; the Commission dismissed the complaint.
[Doc. 8] at 20; [Doc. 8-1] at 31. Gerard or her attorney
filed at least four complaints against the landlord's
attorney with the Disciplinary Board; the Board has taken no
action on those complaints. [Doc. 8] at 42. Gerard made a
claim against the landlord's homeowner's insurance
policy; the claim was denied. Id. at 20, 54. Gerard
filed a tort-claims notice alleging that the criminal charges
brought against her and Plaintiff Ross were wrongful; that
claim was denied. Id. at 29; [Doc. 8-1] at 76.
Gerard complained to the State Attorney General about Judge
Sena; the Attorney General's office declined to
investigate. [Doc. 8] at 25; [Doc. 8-1] at 58.
surmise that there can be but one explanation for this series
of adverse outcomes: There exists “a massive conspiracy
. . . [which] involves almost the entirety of the Santa Fe
Judicial District Court [sic], the Santa Fe Magistrate Court,
the Santa Fe Sheriff's Department, and at the helm of the
Criminal Enterprise, the Attorney General for the State of
New Mexico.” [Doc. 8] at 2. They see “[t]his case
[a]s parallel to the 1973 Watergate scandal[.]”
Id. at 35. And this criminal conspiracy, they are
convinced, is collusion between the “Lesbian
Sisterhood” and “Nuestra
allege that the landlord had wanted to breach Gerard's
lease in order to get higher rent from someone else. They
contend that the landlord had no lawful way out of the lease,
so, with the help of several judges, she had Gerard
unlawfully evicted. Plaintiffs allege that the landlord and
the judges are all members of the “Lesbian
Sisterhood, ” whose purpose is “to ensure
that any lesbians [sic] rights are held above all
others.” Id. at 37. They allege that the Chief
Judge of the First Judicial District Court in Santa Fe and
her life partner are, respectively, the “titular
head” and “chief advisor” of the
“Lesbian Sisterhood, ” and that the
landlord is the “Secretary-Treasurer.”
Id. at 37. They assert that the Chief Judge and her
partner “are in charge of a massive legal slush fund .
. . in the seven figures, ” from which the
landlord's attorney has been paid. Id. at 20,
assert that once they began to fight the eviction and accuse
the judges of colluding with their landlord and her attorney,
another criminal organization got involved:
“Nuestra Familia.” They allege that the
State Attorney General, Defendant Balderas, is the
“consigliere” of “Nuestra
Familia” or “Cosa Nostra.”
Id. at 37, 44. They allege that Defendant Garcia,
the Sheriff of Santa Fe County, “acts as the
‘spiritual head' of the criminal ‘Nuestra
Familia' that operates in Santa Fe.”
Id. at 47. They allege that Defendant Pacheco, a
Captain in the Santa Fe County Sheriff's Office, is
Garcia's “henchman” and his “Jefe
de Calle.” Id. at 25. In fact, they
assert that “the entire county of Santa Fe is being run
as a crime syndicate resembling the ‘Cosa
Nostra' as portrayed in the Godfather
films, the Goodfellas movie, and . . . the
Sopranos HBO Series.” Id. at 37.
allege that Balderas wanted to prevent them from exposing the
“Lesbian Sisterhood's” corruption of
the Santa Fe courts. To that end, they allege, Balderas
directed Sheriff Garcia “to use any non-violent means
necessary to silence [Plaintiffs.]” Id. at 24.
Plaintiffs allege that Balderas directed Sheriff Garcia, who
directed Captain Pacheco, who in turn directed two
Sheriff's Deputies (Defendants Anna Montoya and Antonio
Gutierrez) to initiate the criminal charges against
Plaintiffs. Id. at 24-27. They further allege that
Garcia (and Balderas and the Chief Judge) directed Judge
Bevacqua-Young to sign off on two of the criminal complaints.
Id. at 52. They also assert that Gerard's demand
for $100, 000 (as compensation for these allegedly wrongful
criminal charges) was denied on Garcia's order. [Doc.
8-1] at 56, 76. To sum it up, Plaintiffs allege that Sheriff
Garcia is responsible for these criminal charges, which they
believe are unlawful, and for thwarting their attempt to be
compensated for having been criminally charged. They allege
not just that he is responsible, but that he took these
actions against them because he is the “spiritual
head” of “Nuestra Familia” in
Santa Fe. [Doc. 8] at 24- 27, 29, 47, 52.
filed their lawsuit in this Court on October 10, 2016. [Doc.
1]. They filed an amended complaint on October 12, 2016.
[Doc. 8]. They have sued dozens of the people they allege are
involved in the “Lesbian Sisterhood” and
“Cosa Nostra, ” including state court
judges, their clerks' office staff members, law
enforcement officers, attorneys from the Judicial Standards
Commission and the Disciplinary Board, the landlord, the
landlord's attorney, the landlord's homeowner's
insurance company, Plaintiffs' former neighbor, and
others. Plaintiffs have asserted RICO claims, violations of
their civil rights under 28 U.S.C. § 1983, and they
asked for injunctive relief and a declaratory judgment. [Doc.
8]. They asked this Court to refer the matter to the United
States Attorney for criminal prosecution. They further asked
this Court to intervene in the state court cases, including
their criminal prosecutions, to reverse certain unfavorable
rulings. Id. Finally, Plaintiffs demanded $1.776
billion in damages. Id. at 87.
Defendant Sheriff Garcia (and the other Defendant employees
of the Sheriff's Office) had not answered the Amended
Complaint by November 8, 2016, Plaintiffs moved for default
judgment against them in the amount of $10 million each.
[Doc. 39]. However, Plaintiffs had not requested entry of
default by the Court Clerk as required by Fed.R.Civ.P. 55(a).
The Honorable Paul J. Kelly, Jr., United States Circuit
Judge, who is presiding in this case, denied the motions for
default judgment on November 29, 2016. [Doc. 68]. He did so
for several reasons: Plaintiffs had not secured an entry of
default; Garcia had answered on November 15, 2016; Plaintiffs
had identified no prejudice in the seven-day delay; and
because of the Court's preference to decide cases on the
moved for summary judgment on December 14, 2016. [Doc. 88].
When briefing was complete, [Docs. 103, 106], Judge Kelly
granted the motion on January 13, 2017, [Doc. 121]. Final
judgment was entered on April 18, 2017. [Doc. 190].
Plaintiffs appealed, [Doc. 197], but the appeal was dismissed
for lack of prosecution on June 13, 2017, [Doc. 229].
moves for sanctions against Plaintiffs and their counsel
pursuant to 43 U.S.C. § 1988, 28 U.S.C. § 1927, and
the Court's inherent authority. [Doc. 126]. He argues
that he should be awarded his attorney fees because
Plaintiffs' lawsuit “was entirely unfounded-
factually and legally-and was frivolous.” Id.
at 1. Garcia argues that Plaintiffs' counsel, Mr.
Kashanian, unreasonably and vexatiously multiplied the
proceedings by continuing to prosecute the claims when he
knew or should have known that that the lawsuit was
completely frivolous. Id. Judge Kelly referred the
motion to me for proposed findings and a recommended
disposition. [Doc. 191]. The motion is fully briefed. [Docs.
126, 138, 141, 215]. No hearing is necessary because the
motion can be decided on the briefing. Having considered the
relevant portions of the record, the briefing, and the
relevant law, I recommend that the motion be granted in part
and denied in part.
for Awarding Fees under § 1988
prevailing defendant may recover an attorney's fee only
where the suit was vexatious, frivolous, or brought to harass
or embarrass the defendant.” Hensley v.
Eckerhart, 461 U.S. 424, 429 n.2 (1983). “A
complaint is frivolous where it lacks an arguable basis
either in law or in fact.” Blakely v. USAA Cas.
Ins. Co., 633 F.3d 944, 949-50 (10th Cir. 2011)
(alterations and internal quotation marks omitted).
for Awarding Fees under § 1927
attorney . . . 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.” § 1927. Fees are appropriate
“where an attorney acts recklessly or with indifference
to the law[;] is cavalier or bent on misleading the court;
intentionally acts without a plausible basis; or when the
entire course of the proceedings was unwarranted.”
Steinert v. Winn Group, Inc., 440 F.3d 1214, 1221
(10th Cir. 2006) (internal brackets omitted) (quoting
Dominion Video Satellite, Inc. v. Echostar Satellite
L.L.C., 430 F.3d 1268, 1278 (10th Cir. 2005)). Sanctions
under § 1927 do not require a finding of bad faith, but
an attorney's subjective good faith cannot save him from
sanctions either. Braley v. Campbell, 832 F.2d 1504,
1512 (10th Cir. 1987). “Although subjective good faith
on the part of a [pro se party] may in some instances excuse
otherwise unreasonable conduct, [courts] are entitled to
demand that an attorney exhibit some judgment. To excuse
objectively unreasonable conduct by an attorney would be to
state that one who acts with ‘an empty head and a pure
heart' is not responsible for the consequences.”
Braley v. Campbell, 832 ...