United States District Court, D. New Mexico
Ross, pro se.
Kashanian, Albuquerque, New Mexico, for Plaintiff Andrew
Robles and Jordon George, Robles, Rael & Anaya, P.C.,
Albuquerque, New Mexico, for City Defendants Judah Ben
Montano, A. Arroyo & E Montijo.
ORDER GRANTING DEFENDANTS JUDAH BEN MONTANO, A.
ARROYO, AND E. MONTIJO'S (CITY DEFENDANTS') MOTION
FOR ATTORNEY'S FEES AND COSTS
MATTER comes on for consideration of Defendants Judah Ben
Montano, A. Arroyo, and E. Montijo's (“the City
Defendants”) Motion for Attorney's Fees and Costs
Under 42 U.S.C. § 1988, Court's Inherent Authority,
and 28 U.S.C. § 1927, filed March 2, 2017. Doc. 158.
Upon consideration thereof, the motion is well taken and
should be granted.
court referred the issue of attorney's fees to the
magistrate judge upon formal motions by various Defendants.
Doc. 191. Entering separate recommendations on the motions
for attorney's fees, the magistrate judge recommended
that attorney's fees be granted to the City Defendants
and indicated that the deadline for objection was July 26,
2017. Doc. 237.
magistrate judge focused his findings on the lack of factual
support for the allegations made by Plaintiffs Andrew Ross
and Susan Gerard, while acknowledging that the parties
addressed “the many, repeated legal shortcomings of
Plaintiffs' filings in this case.” Doc. 237 at 10.
This court recognizes that sanctions against an attorney are
not available under § 1988. Steinert v. Winn Grp.,
Inc., 440 F.3d 1214, 1222 (10th Cir. 2006). The court
also recognizes that sanctions under § 1927 apply to
multiplication of the proceedings, not the initiation of the
proceedings. Id. at 1224-26. Sanctions against
Plaintiffs' counsel of record, Arash Kashanian, are
warranted under the court's inherent authority not only
for his initiation and continuation of the proceedings, but
also his multiplication of the proceedings after the amended
complaint. For example, the court explained that official
capacity claims required a municipal custom or policy, yet
Mr. Kashanian persisted in filing a second amended complaint
with the same defect identified by the court previously.
See Doc. 188 at 4 (“Just as a client would not
expect a lawyer to advance indisputably meritless legal
theories in light of the pertinent facts, a lawyer should not
expect his adversaries to respond to a stream of amended
complaints that do not fix obvious problems.”). The
court is in complete agreement with the magistrate judge that
Mr. Kashanian demonstrated a complete lack of care in filing
and pursuing many claims in the lawsuit, which resulted in an
abuse of legal process justifying fees pursuant to the
court's inherent authority (as well as under § 1927
for actions taken after the complaint).
Ross filed pro se objections on July 19, 2017 (Doc. 241), and
Mr. Kashanian filed an objection on Plaintiff Ross's
behalf on July 26, 2017 (Doc. 246).Those are the only objections
timely filed. Plaintiff Ross's pro se objections focus
principally on the attorney's fees awarded Defendant
Hector Balderas. Doc. 241. Counsel urges the court to rely
upon his client's pro se objections, arguing that he has
a conflict in representing his client because he, too, has
been found responsible for attorney's fees. Doc. 246.
Alternatively, he lodges a blanket objection on behalf of his
client to any and all attorney's fees awarded.
timely objections to the magistrate judge's
recommendations, this court reviews the matters underlying
those objections de novo. See 28 U.S.C. §
636(b)(1); Ocelot Oil Corp. v. Sparrow Indus., 847
F.2d 1458, 1462 (10th Cir. 1988); see also
Fed.R.Civ.P. 54(d)(2)(D), 72(b)(3). However, objections must
be specific to preserve the issue for review. United
States v. One Parcel of Real Prop., With Bldgs.,
Appurtenances, Improvements, and Contents, Known As: 2121 E.
30th St., Tulsa, Okla., 73 F.3d 1057, 1061 (10th Cir.
1996). Insofar as Plaintiff Ross is concerned, the only
objection that is arguably specific pertains to Defendant
Balderas, not the City Defendants. Accordingly, review has
been waived. Alternatively, the objection is without merit.
Plaintiff Ross fares no better with the “blanket
objection” lodged by his attorney on his behalf. As for
Mr. Kashanian, he has not objected to the magistrate
judge's report and recommendation vis-a-vis
attorney's fees for these Defendants and therefore has
THEREFORE, IT IS ORDERED, ADJUDGED, and DECREED that:
(1) Plaintiff Andrew Ross's Objections to the Magistrate
Judge's Proposed Findings and Recommended Disposition,
filed July 19, 2017 (Doc. 241) are overruled.
(2) Counsel Arash Kashanian's Objection on Behalf of
Plaintiff Ross to the Magistrate Judge's Proposed
Findings and Recommended Disposition, filed July 26, 2017
(Doc. 246) is overruled.
(3) The Proposed Findings and Recommended Disposition of the
Magistrate Judge regarding Defendants Judah Ben Montano, A.
Arroyo, and E. Montijo, filed July 12, 2017 (Doc. 237) are
(4) Defendants Judah Ben Montano, A. Arroyo, and E.
Montijo's Motion for Attorney's Fees and Costs Under
42 U.S.C. § 1988, Court's Inherent Authority, and 28
U.S.C. § 1927, filed March 2, 2017 (Docs. 158 &
202), is granted. Defendants Montano, Arroyo, and Montijo are
awarded attorney's fees in the total amount of $17,
177.50, plus ...