United States District Court, D. New Mexico
Ross, pro se.
Kashanian, Albuquerque, New Mexico, for Plaintiff Andrew
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.
Richards, pro se.
ORDER ON VARIOUS MOTIONS FOR ATTORNEY'S FEES AND
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.
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.
complaint described three conspiracies, one characterized as
a “Lesbian Sisterhood, ” another likened to the
“Cosa Nostra, ” 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).
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.
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.
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.
Plaintiff Ross's and Mr. Kashanian's
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). 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.
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).
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
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. 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.
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)).
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.
Kashanian's objections to the imposition of
attorney's fees against him personally under both §
1927 and this court's inherent power are
overruled. 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.
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, ¶ 9. Defendant Balderas
reasonably felt compelled to respond to both ...