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Ross v. Balderas

United States District Court, D. New Mexico

August 11, 2017

ANDREW ROSS and SUSAN GERARD, Counter-Defendants.

          Andrew Ross, pro se.

          Arash Kashanian, Albuquerque, New Mexico, for Plaintiff Andrew Ross.

          Ari Biernoff, Assistant Attorney General (and Hector H. Balderas, New Mexico Attorney General), Santa Fe, New Mexico, for Defendant Hector H. Balderas.

          Michael Dickman, Santa Fe, New Mexico, for Defendants Robert Garcia, William Pacheco, Antonio Gutierrez, and Anna Montoya.

          Robert Richards, pro se.


         THIS MATTER comes on for consideration of various pending motions filed by Defendants Hector Balderas (Docs. 87 & 205), Robert Garcia (Doc. 126), William Pacheco (Docs. 155 & 201), Antonio Gutierrez and Anna Montoya (Docs. 177 & 201), Robert Richards (Docs. 175 & 206), and Plaintiff Andrew Ross (Doc. 219) regarding attorney's fees or sanctions. Upon consideration thereof, Defendants Balderas's, Pacheco's, as well as Gutierrez and Montoya's motions are well taken and should be granted. Defendant Garcia's motion is well taken in part and thus should be granted in part and denied in part. Defendant Richards and Plaintiff Ross's motions, however, are not well taken and should be denied. The court also will deny Plaintiff Ross's motion for leave to file a sur-reply to Mr. Richards's amended affidavit of costs. Doc. 218.


         Plaintiffs Andrew Ross and Susan Gerard's claims arise from a landlord-tenant dispute in state court, where Plaintiffs incurred a series of adverse rulings. Thereafter, Plaintiffs, through their attorney, Arash Kashanian, brought suit in federal court, filing an 89-page complaint with over 452 paragraphs. The complaint asserted claims against 30 defendants under 18 U.S.C. § 1964(c) and 42 U.S.C. § 1983, as well as sought injunctive and declaratory relief. Defendants included ten active state court judges; a retired state-court judge; the New Mexico Attorney General; several members of the Santa Fe County Sheriff's Department and the Santa Fe Police Department; the chief clerks of the Santa Fe County Magistrate Court and First Judicial District Court; members of the New Mexico Judicial Standards Commission and the Disciplinary Board; the claims manager for the New Mexico Association of Counties; Plaintiffs' former neighbor; Plaintiffs' former landlord; the landlord's attorney, Robert Richards, and his paralegal; and Allstate Insurance.

         The complaint described three conspiracies, one characterized as a “Lesbian Sisterhood, ” another likened to the “Cosa Nostra, ”[1] and a third referred to as the “Criminal Enterprise.” Filled with ad hominem attacks, the complaint alleged that the “Lesbian Sisterhood” consists of lesbian judges who conspired together to cover up judicial misconduct and “to ensure that any lesbian[']s rights are held above all others.” Doc. 8, ¶ 146. As for the “Cosa Nostra, ” according to the complaint, “the entire county of Santa Fe is being run as a crime syndicate, ” id. ¶ 153, “whose acting consigliere is [Attorney General] Balderas, ” id. ¶ 151. The complaint further alleged that the “Lesbian Sisterhood” and the “Cosa Nostra” acted in concert with the “Criminal Enterprise, ” led by Defendant Richards, to obstruct justice and deprive Plaintiffs of their rights in myriad ways. Plaintiff sought compensatory damages in the amount of $1.776 billion, in addition to costs and attorney's fees. Id. at 87, 89 (prayer for relief).

         Plaintiffs' complaint, though lengthy to a fault, see Fed.R.Civ.P. 8(a), and steeped in a conspiratorial view of life, is notably silent as to a factual basis for these claims, let alone a legal basis. And that silence has persisted notwithstanding the many defense motions that have pointed out these defects. Not surprisingly, many of the defendants filed motions to dismiss in lieu of answers, and Plaintiffs voluntarily dismissed many defendants from the litigation. The remaining defendants prevailed on motions for summary judgment or motions to dismiss.

         As the substantive motions regarding the claims have all been disposed of, this court turns to the parties' disputes regarding the awards of attorney's fees. The court previously awarded attorney's fees to the City Defendants (Montano, Arroyo, and Montijo) upon proposed findings and a recommended disposition of the magistrate judge. Doc. 249. The court now considers the objections to the magistrate judge's proposed findings and recommendations concerning the remaining attorney's fees motions.


         This court referred the issue of attorney's fees to the magistrate judge upon formal motions by various defendants. Doc. 191. The magistrate judge recommended that the motions filed by Defendants Balderas, Garcia, Pacheco, Gutierrez, and Montoya be granted or granted in part, but that Defendant Richards's motions be denied. Docs. 234, 235, 236, 238. Upon timely objections to the magistrate's recommendations, this court reviews the matters underlying those objections de novo. 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).

         A. Plaintiff Ross's and Mr. Kashanian's Objections

         In awarding fees against Plaintiff Ross, the magistrate judge focused his findings on the lack of factual support for the allegations made by Plaintiffs Ross and Gerard, concluding that the assertion and maintenance of the allegations was vexatious, wonton, and an abuse of the judicial process. Plaintiff Ross filed pro se objections on July 19, 2017 (Doc. 241), and his attorney of record, Arash Kashanian, filed an objection on Plaintiff Ross's behalf on July 26, 2017 (Doc. 246).[2] Plaintiff Ross objects to all attorney's fees against him personally. He repeats his claim that Defendant Balderas engaged in conduct that violated his constitutional rights and those of his late-wife, Plaintiff Gerard. Mr. Kashanian requests that the court rely upon Plaintiff Ross's pro se objections, or that Mr. Kashanian's objection suffice as a blanket objection that will preserve any issues. Doc. 246.

         To properly object, however, objections must be specific and address the substance of the magistrate judge's recommended findings and proposed disposition. 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). Plaintiff Ross's pro se objections are that Defendant Balderas has engaged in a pattern of violating his and Gerard's constitutional rights, and that through counsel Defendant Balderas has been malicious in his opposition to Plaintiffs' motions. Doc. 241. This simply does not address the magistrate judge's conclusion that the various Defendants are “prevailing parties” who are entitled to attorney's fees under 42 U.S.C. § 1988 and this court's inherent authority, because Plaintiffs' suit is frivolous, lacking an arguable basis in law or fact, see Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983); Blakely v. USAA Cas. Ins. Co., 633 F.3d 944, 949-50 (10th Cir. 2011), as well as vexatious and wanton, see Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991).

         To the extent Plaintiff Ross raises other objections to the magistrate judge's recommendations, they are not specific enough to warrant review and are therefore waived. Alternatively, they are also without merit. Plaintiff Ross fares no better with the “blanket objection” advanced by his attorney on his behalf; it suffices to say that a blanket objection is not sufficiently specific to focus review.

         Mr. Kashanian also filed objections to the imposition of fees against him in his capacity as Plaintiffs' counsel of record, disputing the magistrate judge's recommendation that Defendants Balderas, Garcia, Pacheco, Gutierrez, and Montoya be awarded attorney's fees. Docs. 247-48.[3] He argues that he did not violate 28 U.S.C. § 1927, because filing a complaint and attempting to amend it did not multiply the proceedings. He maintains that this is especially true as to Defendant Balderas, because Mr. Kashanian did not oppose his motion to dismiss. Mr. Kashanian further contends that his defense of his client to avoid attorney's fees under 43 U.S.C. § 1988 cannot constitute multiplying the proceedings and thus serve as a basis for sanctions against Mr. Kashanian under 28 U.S.C. § 1927, because holding otherwise would create a conflict of interest. He also maintains that there is no causal connection between his conduct and any alleged multiplication of the proceedings, because Defendants' actions (e.g., filing motions to dismiss or for summary judgment) would have occurred regardless of any conduct on Mr. Kashanian's part. Additionally, Mr. Kashanian argues that this court does not have the inherent authority to impose sanctions against an attorney personally for commencing proceedings, even if the complaint is meritless. He further objects to the magistrate judge's characterization of what occurred, and questions why he should bear half of the fees incurred absent a finding that the costs and fees were caused by sanctionable conduct on the part of Mr. Kashanian.[4]

         According to 28 U.S.C. § 1927, an 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.” Fees are appropriate “when 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 proceeding was unwarranted.” Steinert v. Winn Grp., Inc., 440 F.3d 1214, 1221 (10th Cir. 2006) (second alteration in original) (quoting Dominion Video Satellite, Inc. v. Echostar Satellite L.L.C., 430 F.3d 1269, 1278 (10th Cir. 2005)). Merely initiating proceedings by filing a complaint, however, does not constitute multiplying the proceedings. Id. at 1225. Additional action must be taken for § 1927 to apply, such as attempting to preserve and advance claims beyond the complaint by opposing motions to dismiss, expanding the scope of the claims by amending the complaint, and the like. See id. at 1225-26. Further, care must be taken to avoid construing § 1927 in a manner that “dampen[s] the legitimate zeal of an attorney in representing his client.” Baca v. Berry, 806 F.3d 1262, 1278 (10th Cir. 2015) (quoting Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987)).

         Notwithstanding the applicability of § 1927, federal courts also have the inherent authority to award attorney's fees as sanctions. Chambers, 501 U.S. at 44-45; Farmer v. Banco Popular of N. Am., 791 F.3d 1246, 1255 (10th Cir. 2015). Indeed, courts can impose attorney-fee sanctions for bad-faith conduct in the litigation or abuse in the judicial process. Farmer, 791 F.3d at 1255-56. Although a causal link between the misconduct and fees is required, Goodyear Tire & Rubber Co. v. Haeger, 137 S.Ct. 1178, 1186-87 (2017), in rare cases a court can shift all of a party's fees, id. 1187. For example, “[i]f a plaintiff initiates a case in complete bad faith, so that every cost of defense is attributable only to sanctioned behavior, the court may . . . make a blanket award.” Id. at 1188.

         Mr. Kashanian's objections to the imposition of attorney's fees against him personally under both § 1927 and this court's inherent power are overruled.[5] This court agrees with the magistrate judge that Mr. Kashanian unreasonably multiplied the proceedings after filing the complaint. For example, when Defendant Garcia moved for summary judgment contesting the allegations contained in the complaint and providing proof to the contrary, Plaintiffs completely failed to respond (as required by federal and local rule) with a concise statement of material facts that were in dispute. Doc. 103; see also Doc. 126 at 6, ¶¶ 12-14. Accordingly, all material facts urged by Defendant Garcia were deemed admitted. Doc. 121 at 2. This pattern was repeated in Mr. Kashanian's responses to other motions for summary judgment based on qualified immunity (Docs. 132 & 152) with the same result. Docs. 144 at 3, 168 at 2-3. Thus, Mr. Kashanian continued to prosecute his claims with no factual support for the overwhelming majority of the allegations contained in the amended complaint - an issue that did not appear to be lost on Mr. Kashanian, as evidenced by his repeated assertions of Plaintiffs' intent to amend the complaint (e.g., Doc. 74, ¶ 10; Doc. 100 at 5). To be sure, Mr. Kashanian attempted early termination of the proceedings, but on terms unacceptable to certain defendants.

         Mr. Kashanian also challenges the award of attorney's fees to Defendant Balderas under § 1927 because he only filed the complaint and did not oppose Defendant Balderas's motion to dismiss. If that was all there was to it, he might have a point. See Steinert, 440 F.3d at 1225. But Mr. Kashanian filed a motion to reconsider dismissal of Defendant Balderas, incorrectly asserting that this court miscalculated the deadline for his response to Defendant Balderas's motion to dismiss and alternatively requesting the opportunity to be heard (Doc. 70) - something very different from acquiescing to a dismissal. As the court noted, Mr. Kashanian's timeliness argument was contradicted by the historical facts. Doc. 112 at 2. Mr. Kashanian then filed an untimely response to Defendant Balderas's motion, conceding dismissal of Balderas as a defendant but opposing his arguments that the Plaintiffs' constitutional challenges to two New Mexico statutes should be dismissed. Doc. 74 at 5, ΒΆ 9. Defendant Balderas reasonably felt compelled to respond to both ...

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