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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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 For the Northern District of California United States District Court 9 ROBERT PACK, Plaintiff, 11 v. 12 13 14 HOGE FENTON JONES & APPEL, INC., et al., 15 Defendants. ) ) ) ) ) ) ) ) ) ) ) Case Nos. 12-cv-4512-SC 12-cv-4513-SC ORDER GRANTING DEFENDANTS' MOTION FOR RULE 11 SANCTIONS AND AWARDING ATTORNEY FEES 16 17 18 I. INTRODUCTION Plaintiff Robert Pack has filed two civil cases against Hoge 19 Fenton Jones & Appel, Inc., a law firm that formerly represented 20 him, and attorneys affiliated with the firm (collectively, 21 "Defendants"). 22 4513-SC (the "'13 Action"). 23 Action, but the Court has retained jurisdiction over the matter for 24 the limited purpose of adjudicating Defendants' Motion for 25 Sanctions pursuant to Federal Rule of Civil Procedure 11. 26 Action Dkt. Nos. 40, 43 ("Dec. 7 Order"). 27 briefed. 28 ("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. 6 attorneys' fees in connection with the '13 Action.1 Dec. 7 Order at 8. For The Court also awards Defendants $5,000 in 7 8 II. BACKGROUND The procedural history of the '12 and '13 Actions is somewhat 9 United States District Court For the Northern District of California 10 tortured. Both cases arise out of an underlying federal action in 11 which Defendants represented Mr. Pack, Pack v. McCausland, 01-cv- 12 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 16 against Defendants in Alameda County Superior Court. 17 Dkt. No. 18 ("RJN") Ex. A. Mr. Pack was '12 Action After Mr. Pack amended his complaint several times, the state 18 19 court struck, with prejudice, his claim for emotional distress on 20 July 27, 2011. 21 struck Mr. Pack's prayer for punitive damages with prejudice. 22 Ex. E. 23 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 25 26 27 28 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 . . . . 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 Id. 11 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 14 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 17 punitive damages and to revive his jury trial demand. 18 Mr. Pack's motion was denied on July 19, 2012. 19 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. 21 22 23 24 25 26 27 28 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 3 removed the case to federal court, where it was filed as the '13 4 action. 5 the '12 Action in federal court. 6 Compl."). 7 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"). 12 and '13 Action were later related and assigned to the undersigned. 13 '13 Action Dkt. No. 11. 14 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. 18 the motion, Mr. Pack filed an amended complaint, which asserted the 19 same claims as the original complaint. 20 ("'12 FAC"). 21 Rule 11 Sanctions. 22 Mr. Pack did not oppose the motion to dismiss and subsequently 23 filed a notice of voluntary dismissal. 24 Defendants also moved to remand the '13 Action and moved for Rule 25 11 sanctions and attorneys' fees in connection with Mr. Pack's 26 improper removal. 27 28 '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. 5 was objectively unreasonable, Defendants were entitled to attorney 6 fees. 7 attorney fee award pending supplemental briefing on the 8 reasonability of its fee request and on the issue of who should pay 9 -- 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 11 divest the Court of jurisdiction to hear the pending Motion for 12 Sanctions, but deferred ruling on that motion. Id. at 4. 13 Defendants have since filed supplemental briefing, as well as 14 supporting declarations, concerning attorney fees and other issues 15 raised by the December 7 Order. 16 Br."), 45-1 ("Krieg Decl."), 45-5 ("Lane Decl."), 45-8 ("Field 17 Decl."). '12 Action Dkt. Nos. 45 ("Supp. Mr. Pack declined to file a response. 18 19 III. DISCUSSION 20 A. Motion for Sanctions in the '12 Action 21 Under Rule 11 of the Federal Rules of Civil Procedure, the 22 Court may impose sanctions against a party or attorney when a 23 pleading is filed for an improper purpose, when the legal 24 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. 27 "The rule provides two independent bases for the imposition of 28 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 . . . 6 document is of no moment. 7 'reasonable [person]' against which conduct is tested is a 8 competent attorney admitted to practice before the district court." 9 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 15 '12 Action's RICO claim is frivolous. 16 '12 Action demonstrates that it was filed for an improper purpose: 17 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 19 improperly removed the '13 Action, about a month after the state 20 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 24 the '12 Action have merit or what diligence, if any, his counsel 25 performed prior to filing these claims. 26 these claims below. 27 28 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 6 Mr. Pack to avoid further problems resulting from their negligence. 7 See '12 FAC ¶¶ 70-97; RJN Exs. D ¶¶ 54-64, G ¶¶ 82-93. 8 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 11 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 14 dismissed fraud claim because it is based on new information 15 obtained through the depositions of Paul Breen and Samuel Goldstein 16 and because the state court only rejected his new fraud claim on 17 procedural grounds. 18 First, Mr. Pack never explains what new information was discovered 19 through the depositions, and the state court has already held that 20 Mr. Goldstein's deposition was "unrelated to any of the new [fraud] 21 claims [asserted] by [Mr. Pack]." 22 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 28 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 8 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 14 action against an attorney for a wrongful act or omission . . . 15 shall be commenced within one year after the plaintiff discovers . 16 . . 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 23 24 25 26 27 28 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 19 is engaged in . . . interstate or foreign commerce," as well as § 20 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." 25 to allege a "pattern" or a "racketeering activity" in either the 26 '12 Complaint or the '12 FAC. 27 104-127. 28 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 18 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. 14 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 4 parties bear their own legal cost, win or lose" and, absent 5 explicit authorization from Congress, courts should "keep the 6 American rule intact."5 7 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. 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 5 This amount 26 27 28 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). 15 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. 12 13 IT IS SO ORDERED. 14 15 16 Dated: January 10, 2013 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 16

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