Consiglio v. Brown et al

Filing 82

ORDER DENYING Plaintiff's Second 81 Motion for Punitive Sanctions Against Defendants for Frivolous and Vexatious Motions signed by Magistrate Judge Stanley A. Boone on 6/25/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SAM CONSIGLIO, JR.,

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Plaintiff,
v.

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ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR PUNITIVE SANCTIONS
AGAINST DEFENDANTS FOR FRIVOLOUS
AND VEXATIOUS MOTIONS

EDMUND G. BROWN, et al.,

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Case No. 1:16-cv-01268-AWI-SAB (PC)

Defendants.

(ECF No. 81)

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Plaintiff Sam Consiglio, Jr. is a civil detainee proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.

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Currently before the Court is Plaintiff’s second motion for punitive sanctions against

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Defendants Ahlin and Price for frivolous and vexatious motions, filed on June 24, 2019. (ECF No.

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81.) Although Defendants have not had an opportunity to respond to Plaintiff’s second motion for

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sanctions, the Court finds that a response is unnecessary and deems Plaintiff’s motion submitted

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for decision. Local Rule 230(l).

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In his second motion for sanctions, Plaintiff moves the Court for imposition of punitive

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sanctions of the Court’s choice against Defendants pursuant to Federal Rule of Civil Procedure 11,

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28 U.S.C. § 1927, and the Court’s inherent authority to impose sanctions for bad faith. Plaintiff

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argues that Defendants’ motion for a protective order, or, in the alternative, request for a stay of

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deadline for response to Plaintiff’s motions to compel to enlarge time for discovery, and to impose
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sanctions is frivolous, vexatious, lacks any legal basis, and was filed in order to delay this action

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and to satisfy Defendants’ malicious motive.

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Initially, Plaintiff seeks imposition of sanctions against Defendants pursuant to Federal Rule

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of Civil Procedure 11. “Under Federal Rule of Civil Procedure 11, sanctions may be imposed if a

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party or their attorney submits a pleading to the court which is submitted for an improper purpose,

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is frivolous, has no evidentiary support, or is not warranted by the evidence.” Washington v.

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Young, No. 2:16-cv-1341 JAM DB P, 2019 WL 950252, at *2 (E.D. Cal. Feb. 27, 2019). “Rule

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11 is an extraordinary remedy, one to be exercised with extreme caution.” Operating Eng’rs

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Pension Trust v. A-C Co., 859 F.2d 1336m 1345 (9th Cir. 1988).

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Rule 11 places “stringent notice and filing requirements on parties seeking sanctions.”

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Holgate v. Baldwin, 425 F.3d 671, 677 (9th Cir. 2005). Rule 11 contains a “safe harbor” provision,

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which is strictly enforced. Id. at 678. In order to comply with Rule 11’s “safe harbor” provision,

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Plaintiff was required to serve his Rule 11 motion for sanctions on the Defendants with a demand

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for retraction of the allegedly offending motion, and then to allow Defendants at least twenty-one

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days to retract the pleading before filing his Rule 11 motion with the Court. See Radcliffe v.

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Rainbow Const. Co., 254 F.3d 772, 788-89 (9th Cir. 2001). Plaintiff did not follow this procedure.

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On June 12, 2019, Defendants filed their motion for protective order, or, in the alternative,

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request for stay of deadline for response to motions to compel, to enlarge time for discovery, and

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to impose sanctions. (ECF No. 79.) Plaintiff filed the instant second motion for Rule 11 sanctions

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on June 24, 2019, less than 21 days later. (ECF No. 81.) Therefore, Plaintiff could not have

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complied with Rule 11’s “safe harbor” provision. Consequently, Plaintiff’s request for an award

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of sanctions pursuant to Rule 11 must be denied.

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Next, Plaintiff also seeks imposition of sanctions against Defendants pursuant to 28 U.S.C.

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§ 1927 or pursuant to the Court’s inherent authority. 28 U.S.C. § 1927 authorizes the imposition

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of sanctions against “[a]ny attorney … who so multiplies the proceedings in any case unreasonably

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and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and

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attorneys’ fees reasonably incurred because of such conduct.” However, while the “imposition of

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Rule 11 sanctions … requires only a showing of objectively unreasonable conduct[,]” Miller v.
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Cardinale (In re DeVille), 361 F.3d 539, 548 (quoting Fellheimer, Eichen & Braverman v. Charter

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Technologies, 57 F.3d 1215, 1225 (3d Cir. 1995), “[a]n award of sanctions under 28 U.S.C. § 1927

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or the district court’s inherent authority requires a finding of recklessness or bad faith[,]” Barber v.

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Miller, 146 F.3d 707, 711 (9th Cir. 1998). In this case, Plaintiff argues that the Defendants’ motion

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for protective order was brought in bad faith because Defendants’ arguments that the pending

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motion for judgment on the pleadings will dispose of the entire action and that the U.S. Supreme

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Court’s decision in Packingham v. North Carolina, 528 U.S. ____, 137 S. Ct. 1730 (2017), is not

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applicable to this action are frivolous.

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However, the Court finds that Defendants did not knowingly raise any frivolous arguments

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in its motion for protective order. Further, even presuming that Defendants’ arguments in its

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motion for protective order were frivolous, Plaintiff has still failed to establish that Defendants

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raised the arguments in bad faith because the record contains no evidence that Defendants filed

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their motion in order to harass or vex Plaintiff. See Estate of Blas v. Winkler, 792 F.2d 858, 861

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(9th Cir. 1986) (observing that a finding of bad faith is crucial, because a frivolous argument by

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itself is insufficient to support an award of sanctions under § 1927). Therefore, Plaintiff’s request

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for an award of sanctions pursuant to § 1927 or the Court’s inherent authority must be denied.

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Accordingly, Plaintiff’s second motion for punitive sanctions against Defendants for
frivolous and vexatious motions, (ECF No. 81), is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

June 25, 2019
UNITED STATES MAGISTRATE JUDGE

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