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Ross v. Balderas

United States District Court, D. New Mexico

July 12, 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.

         Plaintiffs 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[2] 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.

         Background

         It is hard to believe, but this all started as a simple dispute between Plaintiffs and their landlord. An avalanche of litigation ensued: an eviction case[3] 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, [4] and 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.

         Plaintiffs 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 Familia.”

         Plaintiffs 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, 36.

         Plaintiffs 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.

         Plaintiffs 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.

         Procedural History

         Plaintiffs 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.

         When 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 merits. Id.

         Garcia 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].

         Garcia 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.

         Standard for Awarding Fees under § 1988

         “A 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).

         Standard for Awarding Fees under § 1927

         “Any 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 ...


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