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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 should be sanctioned. I recommend that the Court award Defendant Balderas attorney fees in the amount of $4, 864 pursuant to 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 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. Plaintiffs 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 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 accuse him of committing, inter alia, racketeering, mail fraud, extortion, and obstruction of justice. See generally id.

         Plaintiffs filed their lawsuit in this Court on October 10, 2016. [Doc. 1]. They amended their complaint on October 12, 2016. [Doc. 8]. 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 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 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 rulings unfavorable to them. Id. Finally, Plaintiffs demand $1.776 billion in damages. Id. at 87.

         Balderas moved to dismiss on November 8, 2016. [Doc. 29]. He amended his motion on November 10, 2016. [Doc. 31]. The Honorable Paul J. Kelly, Jr., United States Circuit Judge, who is presiding in this case, granted the motion to dismiss. [Doc. 69]. Plaintiffs filed a motion to reconsider. [Doc. 70]. Judge Kelly denied the motion on January 6, 2017. [Doc. 112] at 1-3. 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].

         Balderas has moved 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. 87]. Balderas argues that the Amended Complaint was vexatious and frivolous and that any reasonable attorney would have known that it had no legal or factual support. Id. Judge Kelly referred the motion to me for proposed findings and a recommended disposition. [Doc. 191]. The motion is fully briefed. [Docs. 102, 115, 205, 221]. 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.

         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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