Pack v. Hoge Fenton Jones & Appeal, Inc. et al
Filing
47
Order by Hon. Samuel Conti granting (35) Motion for Sanctions in case 3:12-cv-04512-SC and awarding attorney fees in 3:12-cv-01413-SC.Associated Cases: 3:12-cv-04512-SC, 3:12-cv-04513-SC(sclc1, COURT STAFF) (Filed on 1/10/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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ROBERT PACK,
Plaintiff,
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v.
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HOGE FENTON JONES & APPEL, INC.,
et al.,
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Defendants.
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Case Nos. 12-cv-4512-SC
12-cv-4513-SC
ORDER GRANTING DEFENDANTS'
MOTION FOR RULE 11
SANCTIONS AND AWARDING
ATTORNEY FEES
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I.
INTRODUCTION
Plaintiff Robert Pack has filed two civil cases against Hoge
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Fenton Jones & Appel, Inc., a law firm that formerly represented
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him, and attorneys affiliated with the firm (collectively,
21
"Defendants").
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4513-SC (the "'13 Action").
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Action, but the Court has retained jurisdiction over the matter for
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the limited purpose of adjudicating Defendants' Motion for
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Sanctions pursuant to Federal Rule of Civil Procedure 11.
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Action Dkt. Nos. 40, 43 ("Dec. 7 Order").
27
briefed.
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("MFS Reply").
Case Nos. 12-cv-4512-SC (the "'12 Action"), 12-cvMr. Pack voluntarily dismissed the '12
'12
That motion is fully
'12 Action Dkt. Nos. 35 ("MFS"), 38 ("MFS Opp'n"), 39
The '13 action has been remanded to state court,
1
but the Court has also retained jurisdiction over that matter for
2
the purpose of assessing attorney fees.
3
the reasons set forth below, the Court GRANTS Defendants' Motion
4
for Sanctions in the '12 Action and awards Defendants sanctions in
5
the amount of $10,000.
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attorneys' fees in connection with the '13 Action.1
Dec. 7 Order at 8.
For
The Court also awards Defendants $5,000 in
7
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II.
BACKGROUND
The procedural history of the '12 and '13 Actions is somewhat
9
United States District Court
For the Northern District of California
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tortured.
Both cases arise out of an underlying federal action in
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which Defendants represented Mr. Pack, Pack v. McCausland, 01-cv-
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02685-VRW (N.D. Cal.) (the "underlying action").
13
dissatisfied with Defendants' representation in the underlying
14
action and, on January 14, 2011, filed an action for legal
15
malpractice, breach of fiduciary duty, and emotional distress
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against Defendants in Alameda County Superior Court.
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Dkt. No. 18 ("RJN") Ex. A.
Mr. Pack was
'12 Action
After Mr. Pack amended his complaint several times, the state
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court struck, with prejudice, his claim for emotional distress on
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July 27, 2011.
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struck Mr. Pack's prayer for punitive damages with prejudice.
22
Ex. E.
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court found:
RJN Ex. E.
On September 30, 2011, the Court also
RJN
As to Mr. Pack's prayer for punitive damages, the state
24
The facts alleged do not support the
conclusions that Defendants were guilty of
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1
Also pending before the Court is Defendants' motion for sanctions
in the '13 Action. '13 Action Dkt. No. 20. That motion is DENIED
as moot, as the Court is awarding Defendants attorney fees under
under 28 U.S.C. § 1447(c) in connection with Mr. Pack's improper
removal.
2
malice, oppression, or fraud.
The facts
alleged
show
negligent
conduct
during
Defendants'
representation
of
Plaintiff.
The allegations of omissions and affirmative
representations
made
by
Defendants
are
related and intertwined with the allegedly
negligent legal work, and not sufficient to
support
a
fraud
claim.
Plainitffs'
allegations do not show that Defendants
intended to harm Plaintiff, or that their
conduct was despicable and committed with
willful
and
conscious
disregard
of
Plaintiff's rights.
The Court's ruling is
without prejudice to Plaintiff's right to
seek leave to amend if facts are discovered
to support an allegation that Defendants
committed despicable conduct . . . .
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United States District Court
For the Northern District of California
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Id.
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4, 2012, noting that Mr. Pack had waived his request for a jury
12
trial.
On November 22, 2011, the state court set trial for September
RJN Ex. F.
On June 29, 2012, after the state court action had been
13
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pending for over eighteen months, Mr. Pack, through his new counsel
15
Russell A. Robinson, sought leave to amend his complaint for a
16
third time so as to assert claims for fraud/misrepresentation and
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punitive damages and to revive his jury trial demand.
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Mr. Pack's motion was denied on July 19, 2012.
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Court reasoned:
RJN Ex. G.
RJN Ex. I.
20
Plaintiff has not shown that his new claims
are based on evidence that was only recently
discovered, has not shown that he acted
diligently to discover the facts, and has
not shown that he acted promptly upon
discovery of the relevant facts. . . . .
The attempt to add a demand for jury trial
is simply improper. . . . . The declaration
of Russell A. Robinson is inaccurate with
respect to the nature of the amendments, and
does not provide an adequate explanation for
the failure to seek leave to amend sooner or
why the amendment is necessary.
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Id.
3
The
1
On August 28, 2012, about one month after this ruling and one
2
month before the state court action was set for trial, Mr. Pack
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removed the case to federal court, where it was filed as the '13
4
action.
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the '12 Action in federal court.
6
Compl.").
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asserted in the state court action, including claims for breach of
8
contract, fraud/negligent misrepresentation, a request for punitive
9
damages, and a demand for a jury trial.
'13 Action Dkt. No. 1.
On the same day, Mr. Pack filed
'12 Action Dkt. No. 1 ("'12
The '12 Action involves many of the claims previously
The only federal
Id.
United States District Court
For the Northern District of California
10
claim asserted in the '12 Action is for violations of the Racketeer
11
Influenced and Corrupt Organizations Act ("RICO").
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and '13 Action were later related and assigned to the undersigned.
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'13 Action Dkt. No. 11.
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Id.
The '12
On September 26, 2012, Defendants moved to dismiss the '12
15
Complaint, arguing, among other things, that Mr. Pack's claims
16
failed as a matter of law and were barred by the relevant statute
17
of limitations.
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the motion, Mr. Pack filed an amended complaint, which asserted the
19
same claims as the original complaint.
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("'12 FAC").
21
Rule 11 Sanctions.
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Mr. Pack did not oppose the motion to dismiss and subsequently
23
filed a notice of voluntary dismissal.
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Defendants also moved to remand the '13 Action and moved for Rule
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11 sanctions and attorneys' fees in connection with Mr. Pack's
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improper removal.
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'12 Action Dkt. No. 17.
Instead of responding to
'12 Action Dkt. No. 22
Defendants again moved to dismiss and also moved for
'12 Action Dkt. No. 28 ("MTD '12 Compl."); MFS.
'12 Action Dkt. No. 40.
'13 Action Dkt Nos. 12, 20.
On December 7, 2012, the Court issued an order on Defendants'
pending motions in the '12 and '13 Actions.
4
With respect to the
1
'13 Action, the Court granted Defendants' motion to remand,
2
reasoning that, in light of the plain language of 28 U.S.C. §
3
1441(a), a plaintiff has no right to remove to federal court.
4
7 Order at 4-5.
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was objectively unreasonable, Defendants were entitled to attorney
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fees.
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attorney fee award pending supplemental briefing on the
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reasonability of its fee request and on the issue of who should pay
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-- Mr. Pack, his counsel, or both.
Dec.
The Court found that, because Mr. Pack's removal
Id. at 5-6.
The Court deferred ruling on the amount of the
Id. at 7 n.6.
As to the '12
United States District Court
For the Northern District of California
10
Action, the Court found that Mr. Pack's voluntary dismissal did not
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divest the Court of jurisdiction to hear the pending Motion for
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Sanctions, but deferred ruling on that motion.
Id. at 4.
13
Defendants have since filed supplemental briefing, as well as
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supporting declarations, concerning attorney fees and other issues
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raised by the December 7 Order.
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Br."), 45-1 ("Krieg Decl."), 45-5 ("Lane Decl."), 45-8 ("Field
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Decl.").
'12 Action Dkt. Nos. 45 ("Supp.
Mr. Pack declined to file a response.
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III. DISCUSSION
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A.
Motion for Sanctions in the '12 Action
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Under Rule 11 of the Federal Rules of Civil Procedure, the
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Court may impose sanctions against a party or attorney when a
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pleading is filed for an improper purpose, when the legal
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contentions are not warranted by existing law or a nonfrivolous
25
argument for the extension of existing law, or when the factual
26
contentions lack evidentiary support.
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"The rule provides two independent bases for the imposition of
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sanctions: [1] if a pleading is frivolous and [2] if it has been
5
Fed. R. Civ. P. 11(b)-(c).
1
filed for an improper purpose."
2
v. City of Thousand Oaks, 915 F.2d 1301, 1305 (9th Cir. 1990).
3
standard governing both bases is objective.
4
Inc. v. Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003).
5
subjective intent of the pleader . . .
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document is of no moment.
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'reasonable [person]' against which conduct is tested is a
8
competent attorney admitted to practice before the district court."
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Zaldivar v. City of L.A., 780 F.2d 823, 830 (9th Cir. 1986).
United States District Court
For the Northern District of California
10
Westlake N. Property Owners Ass'n
The
G.C. & K.B. Invs.,
"[T]he
to file a meritorious
The standard is reasonableness.
The
The Court finds that Rule 11 sanctions are appropriate here
11
because the claims asserted in the '12 Action are frivolous.
12
discussed below, the fraud claim asserted in the '12 Action has
13
already been rejected by the state court, the other state law
14
claims asserted in the '12 Action are clearly time-barred, and the
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'12 Action's RICO claim is frivolous.
16
'12 Action demonstrates that it was filed for an improper purpose:
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avoiding the state court's adverse rulings through forum shopping.
18
Mr. Pack filed '12 Action on August 28, 2012, the same day that he
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improperly removed the '13 Action, about a month after the state
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court denied his motion for leave to amend, and about a month
21
before the state court action was set for trial.
22
no alternative explanation for the timing of the '12 Action.
23
does he offer a coherent explanation of why the claims asserted in
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the '12 Action have merit or what diligence, if any, his counsel
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performed prior to filing these claims.
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these claims below.
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As
Further, the timing of the
Mr. Pack offers
Nor
The Court reviews each of
Mr. Pack's fraud claim is substantially similar to the claims
he tried to assert in state court.
6
Compare '12 FAC ¶¶ 70-97 with
is that Defendants misrepresented their level of experience with
3
federal practice; that Mr. Pack relied on these misrepresentations;
4
that Defendants' legal representation in the underlying action was
5
deficient; and that Defendants abandoned their representation of
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Mr. Pack to avoid further problems resulting from their negligence.
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See '12 FAC ¶¶ 70-97; RJN Exs. D ¶¶ 54-64, G ¶¶ 82-93.
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court rejected these claims on numerous occasions, dismissing a
9
fraud-based claim asserted in Mr. Pack's second amended complaint
10
United States District Court
RJN Exs. D ¶¶ 54-64, G ¶¶ 82-93.
2
For the Northern District of California
1
with prejudice and, after discovery, denying Mr. Pack's motion to
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amend his complaint to assert a new claim for fraud.
12
E, I.
13
The gravamen of these allegations
The state
See RJN Exs.
Mr. Pack suggests that he may now re-assert his previously
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dismissed fraud claim because it is based on new information
15
obtained through the depositions of Paul Breen and Samuel Goldstein
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and because the state court only rejected his new fraud claim on
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procedural grounds.
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First, Mr. Pack never explains what new information was discovered
19
through the depositions, and the state court has already held that
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Mr. Goldstein's deposition was "unrelated to any of the new [fraud]
21
claims [asserted] by [Mr. Pack]."
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in the '12 Action incorporates many of the allegations and theories
23
asserted in Mr. Pack's second amended complaint in state court.
24
Compare '12 SAC ¶¶ 79-84 with RJN Ex. D ¶¶ 55(a)-64.
25
not dispute that the state court dismissed these claims with
26
prejudice on substantive grounds.
27
arguing that forum shopping is acceptable, so long as it is used to
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avoid a procedural, rather than a substantive decision.
Opp'n at 2.
These arguments are unfounded.
Second, the fraud claim asserted
Mr. Pack does
Third, Mr. Pack appears to be
7
The Court
1
disagrees.
Under Mr. Pack's logic, no decision made on procedural
2
grounds would ever be final.2
The frivolous nature of the '12 Action is further underscored
3
4
by the fact that Mr. Pack's other state law claims for breach of
5
contract and breach of the covenant of good faith and fair dealing
6
("bad faith") are clearly time-barred.
7
Pack alleged that these claims are not time-barred because the
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parties entered into several tolling agreements which expired on
9
October 31, 2010, and because the relevant statute of limitations
United States District Court
10
For the Northern District of California
'12 Compl. ¶ 13.
In the '12 Complaint, Mr.
is four years.
But as Defendants pointed out in
11
their Motion to Dismiss the '12 Complaint, this is a clear
12
misstatement of California law.
13
section 340.6(a) of the California Code of Civil Procedure, "[a]n
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action against an attorney for a wrongful act or omission . . .
15
shall be commenced within one year after the plaintiff discovers .
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. . the facts constituting the wrongful act or omission, or four
17
years from the date of the wrongful act or omission, whichever
18
occurs first."
MTD '12 Compl. at 17.
Under
In this case, Mr. Pack was clearly aware of the Defendants'
19
20
allegedly wrongful acts by January 2011 -- when he filed his state
21
court action -- but he did not file the '12 Action until August
22
2012.
Further, since Mr. Pack alleges that Defendants terminated
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2
Mr. Pack also suggests that he was not forum shopping to avoid an
adverse state court ruling because the state court denied
Defendants' motion for summary judgment, which he describes as "the
single most critical -- biggest -- motion of the entire case."
Opp'n at 2. But the fact that Mr. Pack survived a motion for
summary judgment does not mean that he lacked an incentive to avoid
the state court's other adverse rulings. Indeed, if Mr. Pack was
so confident about his chances in state court, it is unclear why he
decided to (improperly) remove on the eve of trial.
8
1
their representation of him in 2006, the misconduct alleged must
2
have occurred more than four years prior to the filing of the '12
3
Action.
4
their Motion to Dismiss the '12 Complaint, Mr. Pack must have been
5
aware of it when he amended his pleading.
6
his claims for breach of contract and bad faith in the '12 FAC, he
7
reasserted them.
8
misstatement of the relevant statute of limitations.
9
Mr. Pack's conduct amounts to a clear violation of Rule 11(b)(2)
As Defendants raised the statute of limitations issue in
'12 FAC ¶¶ 98-107.
Instead of abandoning
He also reasserted his
Id. ¶ 13.
United States District Court
For the Northern District of California
10
since a reasonable inquiry would have shown that there was no legal
11
support for his claims.
12
as he does not address the issue in his opposition to Defendants'
13
Motion for Sanctions.
14
Mr. Pack apparently concedes this point,
The RICO claims asserted in the '12 Action are also frivolous.
15
Mr. Pack alleges violations of 18 U.S.C. § 1962(b), which makes it
16
unlawful "for or any person through a pattern of racketeering
17
activity or through collection of an unlawful debt to acquire or
18
maintain . . . any interest in or control of any enterprise which
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is engaged in . . . interstate or foreign commerce," as well as §
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1962(c), which makes it unlawful "for any person . . . associated
21
with any enterprise engaged in . . . interstate or foreign
22
commerce, to conduct or participate . . . in the conduct of such
23
enterprise's affairs through a pattern of racketeering activity or
24
collection of unlawful debt."
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to allege a "pattern" or a "racketeering activity" in either the
26
'12 Complaint or the '12 FAC.
27
104-127.
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nothing more than an improper attempt to transform a simple state-
Among other things, Mr. Pack failed
See '12 Compl. ¶¶ 95-101; '12 FAC ¶¶
In fact, Mr. Pack's entire '12 Action appears to be
9
1
law billing dispute into a federal claim for treble damages.
See
2
Mitchell v. Kaiser Found. Health Plan, Inc., C 09-05306 RS, 2010 WL
3
5387712, at *3 (N.D. Cal. Dec. 22, 2010) ("series of hospital
4
billing statements in relation to a single event cannot be
5
considered a 'pattern' of RICO activity").
Mr. Pack's opposition to Defendants' Motion for Sanctions does
6
7
not seriously address this point.
Instead, Mr. Pack merely cites
8
to the Eighth Circuit's opinion in Handeen v. Lemaire, 112 F.3d
9
1339 (8th Cir. 1997), for the unremarkable proposition that
United States District Court
For the Northern District of California
10
attorneys may be sued under RICO.
Opp'n at 3-4.
The Court does
11
not dispute that any number of professionals, including lawyers,
12
doctors, and tailors, may be named as defendants in a RICO action.
13
However, the pertinent question is generally whether those
14
defendants engaged in a pattern of racketeering activity.
15
has offered no plausible allegations of a pattern of racketeering
16
here.
17
readily distinguishable from the '12
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defendant was convicted of assaulting the plaintiff and the
19
plaintiff later filed a civil suit to recover damages.
20
1343.
21
defendant filed for bankruptcy in bad faith.
22
later filed suit against the defendant, his family, and his law
23
firm under the RICO statute, alleging that they had engaged in
24
racketeering activity to conceal the defendant's wages and inflate
25
his expenses in order to minimize the plaintiff's recovery through
26
the bankruptcy process.
27
granted the law firm's motion for summary judgment and the Eighth
28
Circuit reversed, finding that there was a triable issue of fact as
Mr. Pack
Further, contrary to Mr. Pack's assertion, Handeen is
Action.
In Handeen, the
112 F.3d at
When the plaintiff attempted to collect on the judgment, the
Id. at 1343-44.
10
Id.
The plaintiff
The district court
1
to whether the firm had participated in the racketeering scheme.
2
Id. at 1347, 1355.
3
support a finding that Defendants can be held liable under the RICO
4
statute for overbilling a client.
5
It is unclear how Handeen could possibly
While merely failing to state a claim generally does not
6
constitute sanctionable conduct, this case is unique.
First, "[a]
7
RICO cause of action by definition involves complex litigation and
8
high legal costs."
9
865 F.2d 676, 685 (5th Cir. 1989).
Chapman & Cole v. Itel Container Int'l
B.V.,
Accordingly, "an attorney's
United States District Court
For the Northern District of California
10
responsibility to conduct reasonable prefiling investigation is
11
particularly important in RICO claims."
12
Pack's attorney has offered no indication that he performed any
13
investigation prior to asserting RICO claims in the '12 Complaint
14
and the '12 FAC.
15
appears that Mr. Pack's RICO claim -- the only federal claim in the
16
'12 Action -- was merely asserted to avoid state court
17
jurisdiction.
18
jurisdiction based upon claims arising under the RICO statute); '12
19
FAC ¶ 1 (same).
20
despite having the benefit of several months of discovery in state
21
court.
22
action against Defendants had been pending for over eighteen
23
months.
24
have alerted Mr. Pack's attorney that a RICO claim could not be
25
sustained.
Id.
In this case, Mr.
Second, in light of the procedural history, it
See '12 Compl. ¶ 1 (asserting federal question
Third, Mr. Pack was unable to state a RICO claim
By the time Mr. Pack filed the '12 Action, his state court
Thus, a reasonable review of the law and the facts should
26
In sum, the Court finds that there are ample grounds to
27
conclude that the '12 Action was filed for an improper purpose and
28
that the claims asserted in the '12 Action are frivolous.
11
1
B.
Nature of Sanctions in the '12 Action
2
Having determined that Rule 11 sanctions are appropriate in
3
the '12 Action, the Court now considers the nature of the
4
appropriate sanction.
5
limited to what suffices to deter repetition of the conduct or
6
comparable conduct by others similarly situated."
7
11(c)(4).
8
order directing payment to the movant of part or all of the
9
reasonable attorney's fees and other expenses directly resulting
United States District Court
For the Northern District of California
10
11
Rule 11 provides that sanctions "must be
Fed. R. Civ. P.
Rule 11 also provides that the sanction may include "an
from the violation."
Id.
In the '12 Action, Defendants appear to be requesting
12
approximately $29,000 for the attorney fees incurred in filing the
13
Motion for Sanctions, the Motion to Dismiss the '12 Complaint, and
14
the Motion to Dismiss the '12 FAC.
15
Decl. Ex. B.; Field Decl. Ex. B.
16
to be a fee-shifting mechanism, and an award of $29,000 exceeds
17
what is necessary to deter the filing of baseless pleadings.
18
Calloway v. Marvel Entm't Grp., 9 F.3d 237, 241 (2d Cir. 1993).
19
more appropriate sanction would be $10,000.
20
record suggests that Mr. Pack is more or less blameworthy than his
21
counsel, Mr. Robinson, this Order will impose joint and several
22
liability for the amount assessed.
See Krieg Decl. Ex. B; Lane
However, Rule 11 was not intended
See
A
As nothing in the
23
C.
Attorneys' Fees in the '13 Action
24
In the December 7 Order, the Court determined that Mr. Pack's
25
removal in the '13 Action was objectively unreasonable and granted
26
Defendants' motion for attorney fees incurred in connection with
27
removal.
28
the amount of the fee award pending supplemental briefing.
Dec. 7 Order at 7.
However, the Court deferred ruling on
12
Id.
1
Defendants have since submitted supplemental briefing on the issue
2
and the Court finds that the matter is now appropriate for
3
determination.
4
Under 28 U.S.C. § 1447(c), "[a]n order remanding the case may
5
require payment of just costs and any actual expenses, including
6
attorney fees, incurred as a result of the removal."
7
this circuit generally calculate the award of attorneys' fees using
8
the lodestar method, whereby the court "multipl[ies] the number of
9
hours the prevailing party reasonably expended on the litigation by
Courts in
Ferland v. Conrad Credit Corp., 244
United States District Court
For the Northern District of California
10
a reasonable hourly rate."
11
F.3d 1145, 1149 n.4 (9th Cir. 2001) (quotations omitted).
12
party seeking an award of attorneys' fees bears the burden of
13
producing 'satisfactory evidence -- in addition to the attorney's
14
own affidavits -- that the requested rates are in line with those
15
prevailing in the community for similar services by lawyers of
16
reasonably comparable skill, experience and reputation.'"
17
v. Lawrence Livermore Nat. Sec., LLC, C 11-3930 CW, 2012 WL 160117,
18
at *1 (N.D. Cal. Jan. 18, 2012) (quoting Camacho v. Bridgeport
19
Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008)).
20
the appropriate number of hours to be included in a lodestar
21
calculation, the district court should exclude hours that are
22
excessive, redundant, or otherwise unnecessary."
23
Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quotations omitted).
24
"[T]he
Andrews
"In determining
McCown v. City of
In this case, Defendants request $20,396 in attorney fees in
25
connection with the '13 Action.
In support of their request,
26
Defendants have submitted declarations by three attorneys, a senior
27
partner, junior partner, and associate, who represented them in
28
13
1
this matter.3
2
the Defendants -- $450, $305, and $275 respectively for the senior
3
partner, junior partner, and associate -- are reasonable.
4
the hours expended on the motions in the '13 Action are excessive
5
and unnecessary in light of the simplicity of the issues presented.
6
Defendants' attorneys expended over 42 hours on Defendants' motion
7
to remand and another 27 hours on their motion for sanctions in
8
connection with Mr. Pack's improper removal.
9
B; Lane Decl. Ex. B.; Field Decl. Ex. B.
The Court finds that the hourly rates requested by
However,
See Krieg Decl. Ex.
However, as set forth in
United States District Court
For the Northern District of California
10
the December 7 Order, the legal issues involved in Mr. Pack's
11
improper removal are remarkably straightforward: The clear and
12
unambiguous language of 28 U.S.C. § 1441(a) barred Mr. Pack from
13
removing his state action to federal court.
14
on the straightforward application of a well-known, bright-line
15
rule, Defendants' attorneys should have expended no more than
16
eighteen hours on Defendants' motions, which would have amounted to
17
about $5,000 in attorneys' fees.4
Since this case turned
This leaves the issue of who should pay under 28 U.S.C. §
18
19
1447(c), Mr. Pack or his counsel.
20
the issue, see In re Crescent City Estates, LLC, 588 F.3d 822, 825
21
(4th Cir. 2009) (collecting cases), and the Ninth Circuit has yet
22
to address it.
23
party, not the attorney should be held liable under § 1447(c).
24
3
25
26
27
28
District courts are divided on
In Crescent City, the Fourth Circuit held that the
Id.
Defendants also request $2,053.81 in costs in connection with
their attorneys' Westlaw charges. This request is denied.
Defendants have failed to distinguish between the charges incurred
in the '12 and '13 Action. Further, these charges are excessive in
light of the simplicity of the legal issues involved in the '13
Action.
4
Assuming that the senior partner, junior partner, and associate
billed 1.5, 2.5, and 13.5 hours, respectively.
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1
The Court reasoned that the "American rule" -- which provides that
2
the prevailing litigant is ordinarily not entitled to collect
3
attorney fees from the loser -- "creates the presumption that
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parties bear their own legal cost, win or lose" and, absent
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explicit authorization from Congress, courts should "keep the
6
American rule intact."5
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reasoning persuasive.
fees in connection with Mr. Pack's improper removal.
United States District Court
10
For the Northern District of California
The Court finds this
Accordingly, the Court awards Defendants $5,000 in attorneys'
8
9
Id. at 825-826.
is to be assessed against Mr. Pack alone.
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///
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///
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///
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///
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///
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///
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///
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///
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///
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///
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///
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///
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5
This amount
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In contrast, Rule 11 sanctions may be imposed jointly and
severally as between a party and his counsel. See Fed. R. Civ. P.
11(c)(1) ("the court may impose an appropriate sanction on any
attorney, law firm, or party that violated the rule or is
responsible for the violation"); Kendrick v. Zanides, 609 F. Supp.
1162, 1173 (N.D. Cal. 1985) (imposing joint and several liability
on attorney and party).
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1
2
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant Hoge
3
Fenton Jones and Appel, Inc., Sblend Sblendorio, and Paul Breen's
4
motion for Rule 11 Sanctions in Case Number 12-cv-4512-SC and
5
sanctions Plaintiff Robert Pack and his attorney, Russell A.
6
Robinson in the amount of $10,000.
7
jointly and severally liable for the sanctions awarded and the
8
sanction is to be paid to Defendants.
9
4513-SC, the Court awards Defendants $5,000 in attorneys' fees in
Mr. Robinson and Mr. Pack are
As to Case Number 12-cv-
United States District Court
For the Northern District of California
10
connection with Mr. Pack's improper removal.
11
These attorneys' fees
shall be assessed against Mr. Pack only.
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13
IT IS SO ORDERED.
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Dated: January 10, 2013
UNITED STATES DISTRICT JUDGE
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