Hutchinson, et al v. Hahn, et al

Filing 920101124

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

N o v e m b e r 24, 2010
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E T E N T H CIRCUIT
C l e r k of Court

T H O M A S R. HUTCHINSON; D E N N I S P. BULLARD; ROBERT J. B U L L A R D ; BARBARA L. L A W R E N Z ; RUTH ANN LIBBY; K A T H R Y N M. ROBINSON; JOHN M . SPANTON; C. CLAY ROBERTS, I I I , individually and as a former me mb e r of ROBERTS, MARRS & CARSON, P l a i n t i f f s - Appellants, and J O A N GODLOVE, Appellant, v. B O N N I E J. HAHN, Personal R e p r e s e n t a t i v e of the Estate of Robert H . Hahn, Deceased; BAMBERGER, F O R E M A N , OSWALD AND HAHN; B A M B E R G E R , FOREMAN, O S W A L D AND HAHN, L.L.P.; D A V I D P. KASPER; LOCKE R E Y N O L D S BOYD & WEISELL; L O C K E REYNOLDS LLP; M A R T H A N D A J. BECKWORTH; and ATKINSON, HASKINS, NELLIS, H O L E M A N , BRITTINGHAM, G L A D D & CARWILE; WALTER D. H A S K I N S , III; ATKINSON, H A S K I N S , HELLIS, HOLEMAN, B R I T T I N G H A M , GLADD & C A R W I L E , P.C.; KENNEDY N o . 09-5144 ( D . C . No. 4:05-CV-00453-TCK-PJC) ( N . D . Okla.)

G A L L E R I E S , INC., CINCINNATI M U S E U M ASSOCIATION; BUTLER I N S T I T U T E OF AMERICAN ART; E A R L E J. MAIMAN and T H O M P S O N HINE & FLORY, L.L.P, D e f e n d a n t s - Appellees.

O R D E R AND JUDGMENT * B e f o r e KELLY, GORSUCH, Circuit Judges, and MELGREN **, District J u d g e . *** P l a i n t i f f s - A p p e l l a n t s Thomas R. Hutchinson and his counsel, Joan Godlove, a p p e a l from the district court's monetary judgment running jointly and severally a g a i n s t them awarding $73,208.57 and $33,808.57 to various lawyer or law firm d e f e n d a n t s as sanctions resulting from the underlying lawsuit. IV Aplt. App. 8498 5 2 . On appeal, they contend that (1) the district court's sanction order should be s e t aside, (2) the district judge should recuse, and (3) the action should be

This order and judgment is not binding precedent, except under the d o c t r i n e s of law of the case, res judicata, and collateral estoppel. It may be cited, h o w e v e r , for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th C i r . R. 32.1. The Honorable Eric R. Melgren, U.S. District Court Judge, District of K a n s a s , sitting by designation. After examining the briefs and the appellate record, this three-judge p a n e l has determined unanimously that oral argument would not be of material a s s i s t a n c e in the determination of this appeal. See Fed. R. App. P. 34(a); 10th C i r . R. 34.1(G). The cause is therefore ordered submitted without oral argument.
-2*** **

*

t r a n s f e r r e d of another district within this circuit with directions to conduct an e v i d e n t i a r y hearing on Plaintiffs' motion for default judgment as a sanction. II A p l t . App. 252-254; Aplt. Br. at 25-26. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

Background The parties are familiar with the facts and the extensive procedural history a n d we need not restate that material here. Suffice it to say, the underlying l a w s u i t is part of a relentless and wholly unsuccessful effort to establish o w n e r s h i p of certain paintings of American Impressionist artist Theodore R o b i n s o n . See generally Hutchinson v. Pfeil, 223 F. App'x 765 (10th Cir. 2007) ( u n p u b l i s h e d ) (affirming district court's dismissal of the complaint and imposing s a n c t i o n s for frivolous appeal); see also Hutchinson v. Pfeil, 211 F.3d 1278 (10th C i r . 2000) (Table) (affirming district court's grant of summary judgment against p l a i n t i f f s because the claim was barred by laches and limitations); Hutchinson v. P f e i l , 105 F.3d 562 (10th Cir. 1997) (affirming district court's grant of summary j u d g me n t against plaintiffs because the claim was barred by laches); Hutchinson v . Spanierman, 190 F.3d 815 (7th Cir. 1999) (same). T h e effort began some thirty years ago and has continued largely unabated, mo s t recently with Ms. Godlove and her clients filing lawsuits against pastd e f e n d a n t s and new ones including lawyers and law firms that have prevailed
-3-

a g a i n s t them. See, e.g., Hutchinson v. Carter, 33 P.3d 958 (Okla. Ct. Civ. App. 2 0 0 1 ) ; see also Hutchinson v. Hahn, No. 05-CV-453-TCK(PJC), 2008 WL 1 9 9 5 4 0 6 at *3-*4 (N.D. Okla. May 6, 2008) (listing cases). 1 Like this lawsuit, c l a i ms raised include civil RICO, attorney deceit and fraud on the court. At the h e a r i n g on the motions for sanctions, the district court reviewed the proceedings i n state and federal courts around the country and stated "[i]t has to be stopped a n d it will be stopped." IV Aplt. App. 1058. We agree. T h e district court granted various motions for sanctions filed by D e f e n d a n t s , I Aplt. App. 138-142, 201-204, and (1) dismissed the Plaintiffs' a me n d e d complaint with prejudice as both vexatious and frivolous, (2) p e r ma n e n t l y enjoined Ms. Godlove from filing any civil lawsuit in the Northern D i s t r i c t of Oklahoma containing the same or similar claims asserted in this l a w s u i t or its predecessors, (3) required Ms. Godlove to disclose these sanctions i n any like civil lawsuit filed elsewhere, (4) declared Plaintiff Hutchinson and Ms. G o d l o v e jointly and severally liable for attorney's fees and costs in defending a g a i n s t the lawsuit, including pursuing sanctions, and (5) referred the matter to t h e district court's admissions and grievances committee to determine whether M s . Godlove should be barred from practicing in the Northern District. Hutchinson v. Hahn, No. 05-CV-453-TCK(PJC), 2007 WL 2572224, at *11 (Sept. Plaintiff Hutchinson and Ms. Godlove prevailed in one appeal concerning p r o c e d u r a l objections to sanctions imposed by the district court. Hutchinson v. P f e i l , 208 F.3d 1180 (10th Cir. 2000).
-41

4 , 2007). The district court then adopted, over objection, the magistrate judge's r e p o r t and recommendation as to the amount of the fees reflected in the judgment. Hutchinson v. Hahn, No. 05-CV-453-TCK(PJC), 2008 WL 1995406 (N.D. Okla. M a y 6, 2008). It also denied reconsideration. IV R. 996-997. We review a sanction award of attorney's fees and costs under an abuse of d i s c r e t i o n standard. Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991) (inherent p o w e r ) ; Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (Rule 11); R e s o l u t i o n Trust Corp. v. Dabney, 73 F.3d 262, 265 (10th Cir. 1995) (28 U.S.C. § 1927). We have recognized that § 1927 is designed to compensate the victims o f abusive litigation practice, as opposed to Rule 11 which focuses on deterrence a n d punishment. Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1205 (10th C i r . 2008). Accordingly, certain procedural protections required in Rule 11 do n o t apply to sanctions under § 1927, which deals with multiplying proceedings a p a r t from filing the complaint. Steinert v. Winn Group, Inc., 440 F.3d 1214, 1 2 2 4 - 2 5 (10th Cir. 2006). A. A b s o l u t e Immunity. P l a i n t i f f and Ms. Godlove first argue that absolute immunity for litigation s t a t e me n t s pertains to defamation and does not extend to allegations of fraud. Ball Corp. v. Xidex Corp., 967 F.2d 1440, 1444 (10th Cir. 1992); Robinson v. V o l k s w a g e n w e r k AG, 940 F.2d 1369, 1373-74 (10th Cir. 1991). They contend t h a t the district court uncritically adopted the statements of Defendants' counsel
-5-

i n awarding sanctions when sanctions should have been awarded against the D e f e n d a n t s for fraud on the court. Aplt. Br. at 17. We disagree--the basis for t h e court's sanctions ruling is that Plaintiff and Ms. Godlove persisted in filing ( a n d then pursuing) claims that have been repeatedly rejected by courts and that a r e foreclosed by clear precedent. See Hutchinson, 2007 WL 2572224, at *7. We h a v e previously rejected Plaintiffs' arguments that reliance upon adverse d e c i s i o n s by other courts is somehow improper. Hutchinson v. Pfeil, 223 F. A p p ' x at 767-68. We characterized appeal of that issue as frivolous. Id. Although Plaintiff and Ms. Godlove seem unwilling to make the distinction, a l a w y e r may zealously represent his or her client by advocating defenses that will d o o m a plaintiff's case without committing fraud on the court. B. F a c t u a l Basis for Slander. P l a i n t i f f and Ms. Godlove next argue that the district court's finding that t h e Plaintiffs' pleadings contain slanderous allegations lacks support. They c o n t e n d that the district court should have held a full evidentiary hearing. While t h e district court did refer to this case as "an attorney-slandering-suing monster," I V Aplt. App. 1058, and remarked that various attorneys and federal judges had b e e n slandered during this litigation, IV Aplt. App. 1061, slander is not the basis o f the sanctions. It is the dogged refusal of Ms. Godlove and her clients to a c c e p t , let alone follow, the rulings of the courts, thereby initiating groundless s u i t s and multiplying proceedings, given materially indistinguishable facts.
-6-

M s . Godlove reminds us that findings of fact in one case are usually not a d mi s s i b l e to establish the truth in another. Aplt. Reply Br. at 16-17; Fed. R. E v i d . 201(b) (judicially noticed facts must not be subject to reasonable dispute); U n i t e d States v. Boyd, 289 F.3d 1254, 1258 (10th Cir. 2002). But a court may t a k e judicial notice of its own records as well of those of other courts, particularly i n closely-related cases. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. C o r p . , 605 F.2d 1169, 1172 (10th Cir. 1979). Although Ms. Godlove blames r u l i n g s against her on the attorneys who opposed her and "misled" the court, IV R . 1057, such a theory is untenable. Were that the law, the adversary system c o u l d not function. C. E v i d e n t i a r y Hearing. Plaintiff and Ms. Godlove argue that the district court should have c o n d u c t e d an evidentiary hearing on the motion for sanctions culminating in its o r d e r . The district court held a hearing and gave Ms. Godlove ample time to a d d r e s s the court, and denied the Plaintiffs' motion for sanctions. IV Aplt. App. 1 0 0 0 - 1 0 6 9 ; see id. 1063-64; Hutchinson, 2007 WL 2572224 at *11. Thereafter, P l a i n t i f f s filed a motion to reopen arguing that additional evidence was necessary t o support Defendants' motions for sanctions and that the district court should h a v e heard arguments and received evidence on the Plaintiffs' motion for s a n c t i o n s . III Aplt. App. 665-66. The motion was referred to and denied by the ma g i s t r a t e judge. Id. at 726. The magistrate judge then conducted an evidentiary
-7-

h e a r i n g on the amount of sanctions and carefully weighed the factors in White v. G e n ' l Motors Corp., 908 F.2d 675, 683-85 (10th Cir. 1990), concerning Rule 11 s a n c t i o n s . Hutchinson v. Hahn, 2008 WL 1995406 at *8-*11. He reported that M s . Godlove did not contest the reasonableness of the fees or her ability to pay or t h a t of Plaintiff Hutchinson, but rather contended that fees were improper because t h e y were incurred in attempting to defraud the court. Id. at *8. P l a i n t i f f and Ms. Godlove rely upon Fullmer v. Harper, 517 F.2d 20 (10th C i r . 1975) (per curiam), which allowed an interlocutory appeal of the denial of a mo t i o n to disqualify counsel. The Tenth Circuit remanded for an evidentiary h e a r i n g given the lack of an adequate record. Id. at 21. Plaintiff and Ms. G o d l o v e also suggest that it was the Defendants' burden to put on evidence to p r o v e that the complaint was frivolous. Aplt. Br. at 12. This case easily could be d e c i d e d on the papers given the years of litigation which produced a paper trail. See Clinton v. Jones, 520 U.S. 681, 708 (1997) (frivolous and vexatious litigation i s often terminated by a motion to dismiss or summary judgment with sanctions as a deterrent); see also Williams v. Madden, 9 Fed. App'x 996, 997 (10th Cir. 2001) ( u n p u b l i s h e d ) (affirming the district court's dismissal of a complaint as frivolous b e c a u s e it was "virtually identical" to three previously dismissed complaints); F i t z g e r a l d v. First East Seventh Str. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2 0 0 0 ) (per curiam) (affirming the district court's sua sponte dismissal of a c o mp l a i n t as frivolous because it merely reasserted claims that had previously
-8-

b e e n dismissed as frivolous); Holloway v. Hornsby, 23 F.3d 944, 945 (5th Cir. 1 9 9 4 ) (affirming the district court's dismissal of a complaint as frivolous based o n the litigant's history of filing frivolous complaints); Moody v. Baker, 857 F.2d 2 5 6 , 257 (5th Cir. 1988) (per curiam) (same). Plaintiff and Ms. Godlove had n o t i c e and an opportunity to respond, and did respond, to the sanctions motions. I A p l t . App. 229, II Aplt. App. 437. Most telling, however, is that Plaintiff and M s . Godlove simply did not make any type of proffer at the hearing, nor have t h e y indicated how any such evidence would make a material difference. We find n o abuse of discretion by either the district court or the magistrate judge as to the p r o c e d u r e employed in handling all of the sanctions motions which obviously overlapped. D. Disqualification. P l a i n t i f f and Ms. Godlove argue that the district court should have granted t h e i r motion to recuse because of reliance on extra-judicial facts and statements s u g g e s t i n g a deep-seated antagonism toward them. Specifically, they suggest that t h e judge's comments about slander, his conclusion that the complaint was v e x a t i o u s and frivolous, and his sanction of dismissing the amended complaint ( w i t h o u t notice) at the hearing indicate recusal was essential. A judge is required to recuse when "his impartiality might reasonably be q u e s t i o n e d , " or "he has a personal bias or prejudice concerning a party." See 28 U . S . C . §§ 455(a), (b)(1). Adverse rulings almost never provide a basis for
-9-

r e c u s a l , nor do opinions formed or expressed by a judge based upon the record, " u n l e s s they display a deep-seated favoritism or antagonism that would make fair j u d g me n t impossible." See Liteky v. United States, 510 U.S. 540, 555 (1994). T h e district court's comments were based upon the case, not some extraj u d i c i a l source and regardless the remarks about slander are a fair comment on the p l e a d i n g s . Ms. Godlove has no hesitation about hitting hard and claiming that o p p o s i n g counsel are "intimately involved in a deliberately planned and carefully e x e c u t e d scheme to deceive every judge assigned to preside over and decide cases i n v o l v i n g paintings by Theodore Robinson," Aplt. App. at 275, see also id. at 2 6 3 - 2 7 3 (facts (accusations) set in statement of facts); it would be remarkable if s h e expected no push back. The district court could certainly, based upon the p l e a d i n g s and documentary evidence, conclude that the amended complaint was v e x a t i o u s and frivolous. As for the claim that the district court imposed the s a n c t i o n of dismissing the amended complaint without notice which evidences b i a s , the motions for sanctions asked for filing restrictions based upon the filing o f a frivolous complaint. I R. 138, 141, 201, 204. The whole tenor of these mo t i o n s is that the complaint in this case is frivolous because it contains claims p r e v i o u s l y rejected and other claims which have no basis in fact or law. We c a n n o t attribute bias to the district court's decision to dismiss the amended c o mp l a i n t . E. M o t i o n to Alter or Amend the Judgment.
- 10 -

W e review the district court's decision on a motion to alter or amend a j u d g me n t for an abuse of discretion. Price v. Wolford, 608 F.3d 698, 706 (10th C i r . 2010) (citation omitted). Plaintiff and Ms. Godlove argue that the district c o u r t failed to give adequate notice that filing of the complaint, let alone the a me n d e d complaint, was sanctionable conduct. See Fed. R. Civ. P. 11(c)(3); H u t c h i n s o n v. Pfeil, 208 F.3d at 1184. To the extent that Plaintiff and Ms. G o d l o v e are arguing that the filing of the amended complaint somehow mooted t h e motions for sanctions, Aplt. Br. at 24, we reject that argument as form over s u b s t a n c e . We have repeatedly held that a district court has the discretion to e n t e r narrow, carefully tailored filing restrictions to prevent repetitive and a b u s i v e filings, all after notice and an opportunity to respond. See Sieverding v. C o l o . Bar Ass'n, 469 F.3d 1340, 1343 (10th Cir. 2006); Stafford v. United States, 2 0 8 F.3d 1177, 1179 (10th Cir. 2000); Winslow v. Hunter (In re Winslow), 17 F . 3 d 314, 315-16 (10th Cir.1994) (per curiam); Tripati v. Beaman, 878 F.2d 351, 3 5 4 (10th Cir. 1989). The sanctions and restrictions were amply justified--the f a c t that Ms. Godlove cannot or will not accept prior rulings does not mitigate her c o n d u c t which has no doubt consumed countless hours of scarce judicial and p a r t y resources. We find no abuse of discretion here. AFFIRMED. W e cannot emphasize strongly enough to Ms. Godlove and the Plaintiff that t h i s litigation is at an end. The Defendants have requested filing restrictions and
- 11 -

s a n c t i o n s be imposed on Ms. Godlove and Plaintiff Hutchinson based upon a f r i v o l o u s appeal. Aplt. Br. 46-48. We agree that this appeal is frivolous and will h o l d Ms. Godlove and Plaintiff Hutchinson jointly and severally liable for double a p p e l l a t e costs. Fed. R. App. P. 38. The Defendants should file a bill of costs w i t h i n 14 days after entry of this order and judgment. Fed. R. App. P. 39. In addition, we will impose filing restrictions. Ms. Godlove and Plaintiff H u t c h i n s o n are restricted from filing any further appeal or original proceeding w i t h this court related to the subject matter of this appeal, or the underlying l a w s u i t or its predecessors, without providing the court: 1 . A list of all appeals or original proceedings filed, whether currently p e n d i n g or previously filed with this court, including the name, number, and c i t a t i o n , if applicable, of each case, and the current status or disposition of each a p p e a l or original proceeding; and 2 . An affidavit (signed by Ms. Godlove and Plaintiff Hutchinson) that r e c i t e s the issues to be presented, including a short discussion of the legal basis a s s e r t e d therefor, and describing with particularity the order being challenged. The affidavit must also certify, to the best of the their knowledge, that: · t h e claims raised are not the same or similar to claims already raised or a d j u d i c a t e d in prior proceedings; · t h e legal arguments raised are not frivolous or made in bad faith; that they a r e warranted by existing law or a good faith argument for the extension,
- 12 -

mo d i f i c a t i o n , or reversal of existing law; and · t h e appeal or original proceeding is not interposed for any improper p u r p o s e , such as delay or to needlessly increase the cost of litigation. T h e s e filings shall be submitted to the Clerk of the court, who shall forward t h e m for review to the Chief Judge or her designee, to determine whether to p e r mi t either to proceed with the appeal or original proceeding. Without such a u t h o r i z a t i o n , the matter will be dismissed. If the Chief Judge or her designee a u t h o r i z e s an appeal or original proceeding to proceed, an order shall be entered s o stating. W e shall provide Ms. Godlove or Mr. Hutchinson ten days from the date of t h i s order and judgment to file written objections to the imposition of double c o s t s or appellate filing restrictions. Objections shall be limited to ten pages. If t i me l y objections are not filed, the filing restrictions shall take effect twenty days f r o m the entry of this order and judgment. If timely objections are filed, these r e s t r i c t i o n s shall only take effect if this court overrules any objections. The court ma y modify these restrictions. The filing restrictions shall apply to any matter f i l e d after that time. Entered for the Court P a u l J. Kelly, Jr. C i r c u i t Judge

- 13 -