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 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.
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 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.
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.
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.
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.
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.
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.
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 ...