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 should be sanctioned. I
recommend that the Court award Defendants William Pacheco,
Antonio Gutierrez, and Anna Montoya attorney fees in the
total amount of $12, 529.05, 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
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 their landlord had wanted to break the 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 them unlawfully evicted.
Plaintiffs allege that the landlord and 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.
Plaintiffs have alleged that the Chief Judge of the First
Judicial District Court 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.
assert that once they began to fight the eviction and accuse
the judges of colluding with the landlord and her attorney,
another criminal organization got involved:
“Nuestra Familia.” Plaintiffs allege
that the State Attorney General, Defendant Balderas, is the
“consigliere” of “Nuestra
Familia” or “Cosa Nostra.”
Id. at 37, 44. They allege that the Sheriff of Santa
Fe County, Defendant Garcia, “acts as the
‘spiritual head' of the criminal ‘Nuestra
Familia.'” Id. at 47. They allege
that a Captain in the Sheriff's Office, Defendant
Pacheco,  is Garcia's “Jefe de
Calle” and his “henchman.”
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 and to protect the landlord and the
unlawful eviction. To those ends, they allege, Balderas
directed Sheriff Garcia “to use any non-violent means
necessary to silence [Plaintiffs, ]” and identified
Defendant Pacheco as a “pointman” for the
landlord and her attorney to utilize in their campaign
against Plaintiffs. Id. at 12, 24, 49. 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 Captain
Pacheco and Deputies Montoya and Gutierrez took bribes from
the landlord and her attorney. Id. at 50, 51, 67,
88. Finally, they allege that Pacheco was bribed by the
landlord to thwart Plaintiffs' effort to serve their
neighbor with a lawsuit for allegedly spying on them.
Id. at 30-31, 67.
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.
the Sheriff's Office Defendants (William Pacheco, Anna
Montoya, Antonio Gutierrez, and Sheriff Garcia) had not
answered the Amended Complaint by November 8, 2016,
Plaintiffs moved for default judgments against them in the
amount of $10 million each. [Docs. 37, 38, 40]. 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; the
Sheriff's Office Defendants 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.
moved for summary judgment on January 11, 2017. [Doc. 118].
When briefing was complete, [Docs. 128, 132, 133], Judge
Kelly granted the motion on February 15, 2017, [Doc. 144].
Gutierrez and Montoya moved for summary judgment on January
11, 2017. [Doc. 142]. When briefing was complete, [Docs. 152,
156], Judge Kelly granted the motion on March 16, 2017, [Doc.
144]. 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.
(in his own motion) and Gutierrez and Montoya (in their joint
motion) move 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. [Docs. 155,
177]. Pacheco, Gutierrez, and Montoya argue that they should
be awarded their attorney fees because the entire course of
this litigation has been “entirely unfounded-factually
and legally.” [Doc. 155] at 1; [Doc. 177] at 1. They
argue 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.
[Doc. 155] at 1; [Doc. 177] at 1. Judge Kelly referred the
motions to me for proposed findings and a recommended
disposition. [Doc. 191]. The motions are fully briefed.
[Docs. 165, 170, 185, 201, 220]. 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
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 ...