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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 and their attorney, Arash Kashanian, have abused the judicial process and made a mockery of these proceedings. Defendant Richards, for a fourth time, has moved for sanctions against Plaintiffs and Mr. Kashanian in the form of attorney's fees. In Proposed Findings and Recommended Dispositions issued concurrently herewith, I have recommended that Plaintiffs and Mr. Kashanian be ordered to pay the attorney's fees of several other Defendants, all of whom are represented by counsel. Defendant Richards, however, represents himself. As I have explained to Richards previously, pro se litigants-even if they are attorneys themselves-are not entitled to attorney's fees under 42 U.S.C. § 1988 or under 28 U.S.C. § 1927. For the same reasons, I recommend that the Court decline to award him attorney's fees under its inherent authority. Additionally, Richards fails to cite any authority for his novel argument that he should be awarded paralegal fees as a “cost.” Absent authority to support his position, the request should be denied. See Sorbo v. UPS, 432 F.3d 1169, 1179-80 (10th Cir. 2005) (explaining that the district court “has no discretion to award items as costs that are not set out in [28 U.S.C. §] 1920.”). Finally, under the egregious circumstances of this case, I recommend that the Court deny Plaintiffs' Motion for Rule 11 Sanctions against Defendant Richards. Simply put, even if Defendant Richards violated Rule 11, it would be unjust for Plaintiffs to take any award.

         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[2] 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, [3] 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 allege that attorneys with the Judicial Standards Commission, the Disciplinary Board, and the landlord's homeowner's insurance company are also part of this conspiracy. 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.” See, e.g., Id. at 37.

         Plaintiffs assert that the “Lesbian Sisterhood's” 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, Defendant Richards, has been paid. Id. at 20, 36.

         Plaintiffs assert that the State Attorney General, Defendant Balderas, is the “consigliere” of “Nuestra Familia” or “Cosa Nostra.” Id. at 37, 44. 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. They assert that Balderas ensures that everyone remains silent “in accord with the ‘Code de Omerta.'” Id. at 44. They allege that Balderas orchestrated some or all of the adverse court rulings, criminal prosecutions, and decisions by administrative bodies to take no action on Plaintiffs' assertions of corruption. Id. at 12, 16-18, 21, 23-27, 29, 33, 37, 44-47, 49, 52-55, 57-58, 66, 74-77, 79-83, 88. They further allege that Defendant Richards is connected to both the “Lesbian Sisterhood” and “Cosa Nostra.” E.g., Id. at 37. In fact, they allege Richards is “the lead conspirator of the Criminal Enterprise.” Id.

         Procedural History

         Plaintiffs filed their lawsuit in this Court on October 10, 2016. [Doc. 1]. They amended their complaint on October 12, 2016. [Doc. 8]. Besides Defendant Richards, they have sued dozens of people they allege are involved in the “Lesbian Sisterhood” and “Cosa Nostra, ” including state court judges, their clerks' office staff, members of law enforcement, the attorneys from the Judicial Standards Commission and the Disciplinary Board, the landlord, 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 ask for injunctive relief and a declaratory judgment. [Doc. 8]. They ask this Court to refer the matter to the United States Attorney for criminal prosecution. They further ask this Court to intervene in the state court cases, including their criminal prosecutions, to reverse certain unfavorable rulings. Id. Finally, Plaintiffs demand $1.776 billion in damages. Id. at 87.

         Early on, Plaintiffs moved for a temporary restraining order against Richards, [Doc. 41] (“Application for TRO”). They alleged that Richards “was a known associate of the ‘Gambino Crime Family[.]'” Id. 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 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.

         There has never been anything presented to this Court, nor any suggestion that anything ever could be presented, that would amount to evidentiary support for the claims that Defendant Richards is connected to the mafia or the Witness Protection Program. See [Doc. 41], including [Docs. 41-1 through 41-3]. Curiously, the Application for TRO did not ask the Court to enjoin Defendant Richards from further harassing Plaintiffs.[4] 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.

         The Honorable Paul J. Kelly, Jr., United States Circuit Judge, who is presiding in this case, 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 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.

         Defendant Richards filed his formal motion requesting attorney's fees under Rule 11 and § 1927. [Doc. 80]. After briefing was complete, Richards filed a “corrected” motion. [Doc. 86]. I recommended denying both motions because Richards had failed to comply with Rule 11's safe harbor provision. [Doc. 113] at 6-7. I further recommended that the Court deny any attorney's fees under § 1927 because Richards is proceeding pro se. Id. at 7-9. Finally, I recommended denying Richards' request for attorney's fees pursuant to the Court's inherent authority. I found that he waived that argument because he failed to raise it until the reply to his second motion. Id. at 9.

         On seeing my recommendations, Richards attempted to resuscitate the waived argument by “withdrawing” his first two motions. [Docs. 114, 119]. He filed a third motion for attorney's fees explicitly invoking the Court's inherent authority. [Doc. 127]. Over Richards' objections, Judge Kelly adopted my Proposed Findings and Recommended Disposition (“PF&RD”). [Doc. 174]. He found that Richards' attempts to withdraw his first two ...


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