Crawford v. Japan Airlines, et al

Filing 453

ORDER (1) DENYING PLAINTIFF JACK CRAWFORD'S MOTION FOR SANCTIONS AGAINST JAL DEFENDANTS, HACS, CARLSMITH BALL, CERTAIN CARLSMITH BALL ATTORNEYS AND CARL OSAKI 405 ; (2) DENYING DEFENDANT JAPAN AIRLINES' MOTION FOR THE COURT TO ISSUE AN OR DER REQUIRING PLAINTIFF JACK CRAWFORD TO SHOW HIS MEDICAL FITNESS TO LITIGATE 410 ; AND (3) GRANTING JAPAN AIRLINES' MOTION TO STRIKE PLAINTIFF JACK CRAWFORD'S SUPPLEMENTAL STATEMENT OF AUTHORITIES FILED PURSUANT TO LR7.8 IN SUPPORT OF PLAINTIFF JACK CRAWFORD'S MOTION FOR SANCTIONS AGAINST JAL DEFENDANTS, FILED FEBRUARY 28, 2013 416 . Signed by JUDGE LESLIE E. KOBAYASHI on 5/31/2013. [Order follows hearing held April 8, 2013 (Minutes: doc no. 431 ) and issu ance of April 30, 2013 minute order, doc no. 446 . (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
JAPAN AIRLINES; JALWAYS CO., )
LTD., a subsidiary of Japan
)
)
Airlines; HAWAII AVIATION
CONTRACT SERVICES, INC.; and )
)
DOES 1-10,
)
)
Defendants.
_____________________________ )
JACK CRAWFORD,

CIVIL NO. 03-00451 LEK-KSC

ORDER (1) DENYING PLAINTIFF JACK CRAWFORD’S MOTION FOR SANCTIONS
AGAINST JAL DEFENDANTS, HACS, CARLSMITH BALL, CERTAIN CARLSMITH
BALL ATTORNEYS AND CARL OSAKI; (2) DENYING DEFENDANT JAPAN
AIRLINES’ MOTION FOR THE COURT TO ISSUE AN ORDER REQUIRING
PLAINTIFF JACK CRAWFORD TO SHOW HIS MEDICAL FITNESS TO LITIGATE;
AND (3) GRANTING JAPAN AIRLINES’ MOTION TO STRIKE PLAINTIFF JACK
CRAWFORD’S SUPPLEMENTAL STATEMENT OF AUTHORITIES FILED PURSUANT
TO LR7.8 IN SUPPORT OF PLAINTIFF JACK CRAWFORD’S MOTION FOR
SANCTIONS AGAINST JAL DEFENDANTS, FILED FEBRUARY 28, 2013
Before the Court are the following motions:
(1) Plaintiff Jack Crawford’s (“Plaintiff”) Motion for Sanctions
Against JAL Defendants, HACS, Carlsmith Ball, Certain Carlsmith
Ball Attorneys, and Carl Osaki (“Plaintiff’s Motion”), filed on
January 18, 2013; (2) Defendant Japan Airlines’ (“JAL”) Motion
for Court to Issue An Order Requiring Plaintiff Jack Crawford to
Show His Medical Fitness to Litigate (“JAL Motion”), filed on
February 26, 2013; and (3) JAL’s Motion to Strike Plaintiff’s
Supplemental Statement of Authorities Filed Pursuant to LR7.8 in
Support of Plaintiff’s Motion for Sanctions (“Motion to Strike”),

filed on March 6, 2013.

Carl Osaki (“Osaki” or “HACS Counsel”),

counsel for Defendant Hawaii Aviation Contract Services (“HACS”),
and JAL filed their memoranda in opposition to Plaintiff’s Motion
on March 18, 2013, and Plaintiff filed his reply on March 29,
2013.

Sanctions target Andrew L. Pepper, Esq., (“Pepper”) filed

a Joinder in JAL and HACS’ oppositions to Plaintiff’s Motion on
March 22, 2013.

Plaintiff filed his memoranda in opposition to

the JAL Motion and Motion to Strike on March 20, 2013, and JAL
filed its replies on March 25, 2013.

HACS filed a Statement of

No Position regarding the JAL Motion on March 18, 2013.
The Court held a hearing on the motions on April 8,
2014.
Esq.

Appearing on behalf of Plaintiff was Michael Jay Green,
Appearing on behalf of JAL, Carlsmith Ball, LLP and Certain

Carlsmith Ball Attorneys were Steven Egesdal, Esq, and William
Harstad, Esq.

Appearing on behalf of HACS was Carl Osaki, Esq.

Andrew Pepper, Esq., appeared on behalf of himself.

After

careful consideration of the motions, the arguments of counsel,
and the relevant legal authority, Plaintiff’s Motion is hereby
DENIED, the JAL Motion is hereby DENIED, and the Motion to Strike
is hereby GRANTED for the reasons that follow.

With respect to

Plaintiff’s Motion, the Court finds that Defendants are the
prevailing parties, and entitled to their fees pursuant to Fed.
R. Civ. P. 11(c)(2).
I.

Plaintiffs’ Motion

2

Plaintiff argues that JAL, HACS, and their counsel have
defended this wrongful termination action for ten years on the
grounds that the Japan Civil Aviation Bureau (“JCAB”) revoked
Plaintiff’s pilot credentials and that Plaintiff was necessarily
terminated as a consequence.

He now asserts that JCAB has

“verified” that his pilot credentials were never revoked, and
that defense counsel engaged in vexatious, bad faith motions
practice in defending this action.

Plaintiff asks the Court to

“impose appropriately severe sanctions under Rule 11 of the
Federal Rules of Civil Procedure, 28 U.S.C. § 1927 and the
Court’s inherent authority to sanction bad faith litigation, and
also refer the responsible attorneys to the Hawai‘i State Bar and
the Bar of this Court for appropriate disciplinary action.”
[Mem. in Supp. of Plaintiff’s Mot. at 2-4.]
According to Plaintiff, on July 8, 1993, JCAB issued
him Japan Pilot’s certificate No. 4265 (“JCAB ATP Certificate”),
which qualified him as a Japan Airline Transport Pilot with
multi-engine turbine class privileges and a DC-10 instrument type
rating under the laws of Japan.

He claims that, together with

his first class medical, valid visas, and radio operator’s
license, Plaintiff’s JCAB ATP Certificate and DC-10 qualification
satisfied all “certification and qualification” requirements of
Section 2.08 of the Crew Contract.

3

He states that he worked as a

JAZ crewmember,1 and also piloted regularly scheduled passenger
flights for JAL.

[Id. at 5-6 (citing Crawford Aff. at ¶¶ 2-23,

64).]
Plaintiff asserts that Defendants terminated his
employment on December 26, 2001.

In the letters that JAL and

HACS wrote terminating Plaintiff, Defendants expressly state that
the reason for his termination is the “loss” and “cancellation”
of his pilot credentials on account of the JCAB purportedly
“revoking” them.

[Id. at 8 (citing Crawford Aff., Exh. D

(12/26/01 JAL Letter), Exh. E. (12/26/01 HACS Letter)).]
Plaintiff maintains that, in this action and in related
proceedings, Defendants and their attorneys expressly asserted
that, because the JCAB had cancelled and revoked Plaintiff’s JCAB
pilot credentials, Plaintiff had “lost his wings.”

[Id. at 9-

10.]
Plaintiff now presents letters from JCAB and the
Federal Aviation Administration (“FAA”), dated May 9 and June 6,
2012, respectively, which purportedly verify that his JCAB pilot
certificate, his JCAB ATP qualification, and his DC-10
qualification and type rating are all current and valid, and have
never been revoked.

[Id. at 12-13 (citing Crawford Aff., Exh. A

1

Plaintiff worked as a pilot crewmember on flights operated
by Defendant Japan Air Charter Co., Ltd., an affiliate of
Defendant Japan Airlines, which operated under the airline
designator “JAZ.”
4

(JCAB and FAA Letters)).]
Plaintiff points to case filings signed by current and
former JAL counsel Matthew M. Matsunaga, Esq., Anna M.
Elento-Sneed, Esq., and Steven Egesdal, Esq., as demonstrating
bad faith.

He claims that JAL’s law firm, Carlsmith Ball, LLP,

and its current and former attorneys continued to allege that
Plaintiff was terminated because he had lost his Japan pilot’s
certificate and DC-l0 type rating - knowing such assertion was
false - and that they pursued a course of deliberate delay, with
a series of motions and threatened motions seeking dismissal on
the basis that his claims were preempted or barred.

He claims

that Carlsmith Ball has also engaged in a “pattern and practice
of threatening Plaintiff and his attorneys with retribution if
they did not abandon this action.”

[Id. at 14.]

According to

Plaintiff, all of Defendants’ Rule 12(c) and Rule 56 motions were
made with defense counsels’ actual or constructive knowledge that
JCAB had never acted in any way against Plaintiff’s pilot
credentials.

[Id. at 17.]

Plaintiff argues that Ms. Elento-Sneed violated Rule
11(b)(3) and (4) when she signed JAL’s Answer to the Complaint
indicating that Plaintiff “lost” his JCAB qualification, and that
Rule 11(c) authorizes sanctions against JAL as well, because
Defendants and their counsel knew that “their ‘license
revocation’ story was spurious and fictitious.”

5

[Id. at 25.]

Plaintiff next argues that the Court should impose
sanctions on Carlsmith Ball, Mr. Pepper, Mr. Egesdal, Mr.
Matsunaga, and HACS Counsel pursuant to 28 U.S.C. § 1927.

He

argues that Carlsmith Ball made successive, frivolous motions to
dismiss in an intentional effort to delay resolution on the
merits for as long as possible, and that Defendants’ motions have
been rejected by the Ninth Circuit on appeal.

Last, Plaintiff

seeks sanctions pursuant to the Court’s inherent authority.

[Id.

at 31-36.]
A.

JAL Opposition
In its opposition, which covers JAL, Carlsmith Ball,

and its current and former attorneys named in Plaintiff’s Motion,
JAL argues that Plaintiff is improperly using a Rule 11 motion as
a vehicle to test the legal sufficiency of his claims.

According

to JAL: (1) Plaintiff’s pilot disqualification is irrelevant in
these proceedings; and (2) Plaintiff points to no Court ruling,
motion he made or opposed, or discovery he served or answered,
where his disqualification was an issue.

JAL states that his

sole remaining claim is for wrongful discharge under California
law, and, based on this Court’s affirmed ruling, he cannot
amend the Complaint.

Specifically, his remaining claim is based

on allegations that he was fired for writing an internal letter
to one supervisor about another supervisor’s interpretation of
JAL’s policy on pilots taking sick leave, maintaining route

6

manuals, and hauling oversize luggage.

JAL argues that the

remaining issues require the fact-finder to consider whether
pilot qualifications (regulated by Japan law under which he was
disqualified) are preempted, and if not preempted, does Plaintiff
meet all requirements for a California wrongful termination
claim.

According to JAL, regardless of whether Plaintiff had a

license, he lost his “pilot-in-command qualification.”
in Opp. to Plaintiff’s Mot. at 2-3.]

[JAL Mem.

JAL argues that Plaintiff’s

Motion is frivolous and that it should be awarded its fees and
costs under Rule 11.

[Id. at 3.]

With respect to § 1927, JAL argues that there is no
evidence of subjective bad faith, and that Plaintiff cannot use
the statute to sidestep Rule 11’s safe harbor provision.

It

claims that its motions were not frivolous, but were granted by
the presiding district judge.

It further argues that § 1927 does

not apply to law firms or parties, only to attorneys.

JAL argues

that there is no basis to invoke the Court’s inherent powers
because there is no bad faith.
B.

[Id. at 19-30.]

HACS Counsel Opposition
HACS Counsel, Mr. Osaki, also argues that Plaintiff’s

Motion is frivolous, and that it does not identify any pleading
filed by HACS that allegedly violated Rule 11, or identify how
HACS has litigated unreasonably or vexatiously.

He notes that

every motion and paper presented by HACS was part of a successful

7

effort to transfer the action to this district, and move
Plaintiff’s claims to arbitration.

HACS Counsel also argues that

Plaintiff did not comply with Rule 11’s safe harbor provision
because: (1) the motion does not describe the specific conduct of
HACS that is alleged to violate Rule 11; and (2) Plaintiff
provided no map to a safe harbor, nor would his counsel
communicate with HACS Counsel regarding Plaintiff’s Motion.
[HACS Mem. in Opp. to Plaintiff’s Mot. at 5-10.]
HACS Counsel emphasizes that Plaintiff failed his line
check in December 2001 after already performing unsatisfactorily
in several line monitoring flights, and that JAL determined that
it was not possible to retrain Plaintiff to competently fly.

He

notes that an unsatisfactory rating means that a pilot’s
qualifications are lost.
C.

[Id. at 18-22.]

Pepper Joinder
Mr. Pepper joins in the oppositions filed by JAL and

HACS Counsel, and makes additional arguments as they relate to
his personal involvement in the case.

He notes that he did not

sign any pleadings at issue, and was not afforded a safe harbor,
so he is not subject to Rule 11 sanctions.

He also argues that

he is not accused of any wrongdoing, and cannot be the subject of
sanctions pursuant to § 1927.

[Pepper Mem. in Opp. to

Plaintiff’s Mot. at 2-3, 7-8.]
D.

Plaintiff’s Reply and Errata

8

In his reply, Plaintiff argues that he maintained the
qualifications required by his contract, and that the effect of
the failed check ride was not a JCAB revocation of his license
and DC-10 type-rating.

[Reply in Supp. of Plaintiff’s Mot. at

3.]
He argues with respect to § 1927 that JAL and its
counsel have pursued a calculated strategy to avoid litigating
the merits of Plaintiff’s complaint.

Plaintiff maintains that

Carlsmith Ball should be sanctioned under the statute because it
pursued a strategy of coordinated bad faith litigation.

[Id. at

15-19.]
II.

JAL Motion
JAL seeks an order requiring Plaintiff to show his

medical fitness to litigate in this matter.

It states that in

June 2008, Plaintiff told the Court that he was too ill to
litigate, and since the Court stayed the case on July 1, 2008,
the docket sheet for this action does not show that he has told
the Court about any improvement in his health status or any
change in his ability to litigate.

It notes that in January

2011, the Court administratively closed this case.

JAL argues

that Plaintiff should be required to show the Court that he now
is well enough to litigate, before the Court allows Plaintiff to
resume prosecution of his case.

[JAL Mot. at 1.]

states that:

9

JAL also

a June 25, 2008 letter from Crawford’s physician
stated to this Court: “I have again instructed Mr.
Crawford not to respond to the court due to his
current medical infirmities and medical
conditions, nor to travel or involve himself in
any sort of legal dialog and proceedings, until
such time my diagnosis changes and Mr. Crawford is
no longer suffers [sic] from severe depression.”
[Mem. in Supp. of JAL Mot. at 5 n.2.]
JAL argues that, “given Crawford’s unknown medical
status, the Court’s order should require him to substantiate that
whatever health condition prevented him from litigating in 2008
has ended, or diminished sufficiently, such that he now is able
to litigate (including, inter alia, participating in motions
practice, document discovery, and depositions as this case moves
forward).”
A.

[Id. at 5.]
Plaintiff’s Opposition
In his opposition, Plaintiff states that the JAL Motion

is unsupported by any legal authority, and that there is no
indication that the Court has authority to enter such an order.
He argues that there is no requirement that a litigant
demonstrate medical fitness to litigate.

He acknowledges that he

“suffered from a stress-related condition and could not continue
to represent himself.”

[Mem. in Opp. to JAL Motion at 3.]

He

states that he is now represented by counsel “under altogether
different circumstances”.
B.

[Id.]

JAL’s Reply
In JAL’s reply, it first notes that Plaintiff’s
10

opposition is untimely.

It next argues that the Court has broad

power to impose a stay, which includes the ability to lift the
stay once imposed.

It states that courts can stay proceedings

based on illness of a party, or party’s counsel, and that a court
can condition a stay, or lifting of a stay, on proof from a party
seeking a stay for health reasons.

JAL also asserts that:

Indeed, it should raise a red flag that Crawford
will not provide a simple letter from his
physician that he is well enough to litigate.
Crawford did so when he wanted to stop litigating
in 2008. The tacit message is that he wants to be
able to play the “sick card” again. He wants to
have it both ways. He wants to litigate when he
sees some advantage, and if he sees some
disadvantage, he wants to seek refuge behind a
physician’s letter. The Court should preempt that
gamesmanship with a properly fashioned order.
[Reply to JAL Mot. at 8.]
JAL argues that, under the Court’s broad authority to
control its docket, and the equities of this case, that it should
grant the JAL Motion.

[Id. at 10.]

III. Motion to Strike
JAL moves the Court to strike Plaintiff’s Supplemental
Statement of Authorities, filed on February 28, 2013.

It argues

that Plaintiff’s filing is not supported by Local Rule LR7.8.
A.

Plaintiff’s Opposition
In his opposition, Plaintiff argues that he is in

compliance with Local Rule LR7.8 because his filing provides the
relevant language of the two additional authorities Plaintiff
11

intends to rely on during the April 8, 2013 hearing.

He claims

that it “provides a short contextual paragraph for each of the
two authorities, essentially giving all parties a courtesy ‘heads
up’ as to how the authorities will be utilized.”

[Mem. in Opp.

to Motion to Strike at 2.]
B.

JAL’s Reply
In its reply, JAL notes that Plaintiff’s opposition was

filed two days late, and asks the Court to disregard the
opposition and grant its motion.

It argues that Plaintiff’s

purported “authorities” are Federal Rules, and that there is no
need to provide “copies” of these rules to the Court or opposing
counsel.

Rather, Plaintiff intended to add argument to his

sanctions motion, which violates Local Rules LR7.4 and LR7.5(a).
[Reply in Supp. of Mot. to Strike at 4.]
DISCUSSION
I.

Motion to Strike
Plaintiff purports to have filed his supplemental brief

pursuant to Local Rule LR7.8, which provides in pertinent part:
A party who intends to rely at a hearing on
authorities not included in either the brief or
memorandum of law . . . should provide to the
court and opposing counsel copies of the
authorities at the earliest possible time prior to
the hearing.
JAL argues that Plaintiff provides no copies of any
“authorities not included in . . . [his] memorandum of law” for

12

the sanctions motion.

Instead, Plaintiff uses the filing to

augment his sanctions motion, in violation of Local Rule LR7.4,
which provides: “No further or supplemental briefing shall be
submitted without leave of court.”

The Court agrees and

therefore HEREBY STRIKES Plaintiff’s supplemental filing, and
GRANTS JAL’s Motion to Strike.
II.

JAL Motion
JAL seeks a court order requiring Plaintiff to show his

medical fitness to litigate this matter pursuant to the Court’s
inherent authority to manage its docket.

The Court finds that

such an order is not necessary and the request is HEREBY DENIED.
A district court has the power to stay proceedings as
part of its inherent power to “control the disposition of the
cases on its docket with economy of time and effort for itself,
for counsel, and for litigants.”
248, 254 (1936).

Landis v. N. Am. Co., 299 U.S.

In determining whether to stay an action,

courts must weigh competing interests that will be affected by
the granting or refusal to grant a stay.
F.2d 265, 268 (9th Cir. 1962).

CMAX, Inc. v. Hall, 300

Among these competing interests

are (1) the possible damage which may result from the granting of
a stay; (2) the hardship or inequity which a party may suffer in
being required to go forward; and (3) the orderly course of
justice measured in terms of simplifying or complicating of
issues, proof, and questions of law which could be expected to

13

result from a stay.

Id. (citing Landis, 299 U.S. at 254–55).

“[T]he same court that imposes a stay of litigation has
the inherent power and discretion to lift the stay.”

Canady v.

Erbe Elektromedizin GmbH, 271 F. Supp. 2d 64, 74 (D.D.C. 2002).
“When circumstances have changed such that the court’s reasons
for imposing the stay no longer exist or are inappropriate, the
court may lift the stay.”

Id.

Although the Court finds that the order requested by
JAL is not necessary in the instant matter, as discussed at the
April 8, 2013 hearing, the Court orders that this case be reopened and HEREBY lifts the stay in this matter.
III. Plaintiff’s Motion
A.

Plaintiff’s Request for Sanctions
The Court first addresses Plaintiff’s request for

sanctions pursuant to Rule 11.
1.

Rule 11 Sanctions

Federal Rule of Civil Procedure 11(b)
requires that parties present arguments that are
warranted by the law and non-frivolous:
By presenting to the court a pleading,
written motion, or other paper—whether
by signing, filing, submitting, or later
advocating it—an attorney or
unrepresented party certifies that to
the best of the person’s knowledge,
information, and belief, formed after an
inquiry reasonable under the
circumstances:
(1) it is not being presented for
14

any improper purpose, such as to
harass, cause unnecessary delay, or
needlessly increase the cost of
litigation; [and]
(2) the claims, defenses, and other
legal contentions are warranted by
existing law or by a nonfrivolous
argument for extending, modifying,
or reversing existing law or for
establishing new law. . . .
Rule 11 applies to all pleadings, written
motions and other papers presented to the court.
Fed. R. Civ. P. 11(a).
Rule 11 “subject[s] litigants to potential
sanctions for insisting upon a position after it
is no longer tenable. . . .” Fed. R. Civ. P. 11
advisory committee’s note (1993). In determining
whether a party has violated Rule 11, the court
applies an objective reasonableness standard.
Yagman v. Republic Ins., 987 F.2d 622, 628 (9th
Cir. 1993). A showing of subjective bad faith is
not required. See Smith v. Ricks, 31 F.3d 1478,
1488 (9th Cir. 1994) (noting that sanctions cannot
be avoided by the “empty head, pure heart”
defense); Zaldivar v. City of L.A., 780 F.2d 823,
831 (9th Cir. 1986), overruled on other grounds by
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384
(1990) (noting that the certification requirements
of Rule 11 are violated “if the paper filed . . .
is frivolous, legally unreasonable or without
factual foundation, even though . . . not filed in
subjective bad faith”).
Rey v. Countrywide Home Loans, Inc., Civil No. 11–00142 JMS/KSC,
2011 WL 4103704, at *2 (D. Hawai‘i Sept. 13, 2011).
Plaintiff clearly fails to meet the Rule 11 standard
here with respect to any of the specific filings identified in
his motion.

First, the Court notes that Plaintiff failed to

comply with Rule 11(c)(2)’s 21-day safe harbor provision.

15

The

purpose of the safe harbor provision is to allow offending
parties the opportunity to withdraw or correct the material
challenged and thereby escape sanctions.

Retail Flooring Dealers

of America, Inc. v. Beaulieu of America, LLC, 339 F.3d 1146, 1150
(9th Cir. 2003).

This provision is so strictly enforced that

sanctions are not to be awarded when the moving party fails to
comply, even if the underlying filing is frivolous.

Here,

counsel can no longer correct or withdraw any of the allegedly
frivolous contentions under the safe harbor provision, except for
JAL’s Answer.
Moreover, Plaintiff’s Motion and its exhibits
themselves do not describe the specific conduct by each filing
party that is alleged to violate Rule 11.

Further, as noted by

Mr. Pepper, he received an unfiled draft of Plaintiff’s Motion in
early December of 2012, with no note of explanation or request
for withdrawal or modification of any filing.

Mr. Green’s

response to Mr. Pepper’s inquiry does not provide proper notice
of the allegations or an adequate opportunity to cure the alleged
deficiencies.

Nor was HACS Counsel successful in receiving

information regarding the motion, despite multiple requests.

See

Holgate v. Baldwin, 425, F.3d 671, 679 (9th Cir. 2005).
Second, the Court wholly rejects Plaintiff’s theory
that statements that he lost his JCAB qualification or “lost his
wings” are frivolous for purposes of his request for Rule 11

16

sanctions.

Rather, based on the current record, any such

statements appear to be objectively reasonable and factually
supported.

For example, JAL’s Answer, filed in 2003, is

supported by a good faith basis, including a December 26, 2001
letter from JAL to HACS, which stated that Plaintiff “failed his
line checks on Dec. 13 and 15, 2001 . . . and lost his capacity
as a JCAB-qualified pilot.”

[Mem. in Supp. of Plaintiff’s Mot.,

Exhibit D (12/6/01 JAL Letter).]

Further, any such claim

regarding Plaintiff’s qualification to fly has not been fully
litigated – or even advanced beyond the initial pleading stage –
and the sanction requested by Plaintiff is entirely premature.
Plaintiff’s request for Rule 11 sanctions is both procedurally
defective and substantively specious, and is HEREBY DENIED.
2.

28 U.S.C. § 1927 Sanctions

Plaintiff also seeks sanctions against defense counsel
pursuant to 28 U.S.C. § 1927, which provides:
Any attorney or other person admitted to conduct
cases in any court of the United States or any
Territory thereof 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.
Sanctions imposed pursuant to 28 U.S.C. § 1927 “must be
supported by a finding of subjective bad faith,” and such “[b]ad
faith is present when an attorney knowingly or recklessly raises
a frivolous argument, or argues a meritorious claim for the
17

purpose of harassing an opponent.”

Moore v. Keegan Mgmt. Co. (In

Re Keegan Mgmt. Co., Sec. Litig.), 78 F.3d 431, 436 (9th Cir.
1996).
“Thus, with § 1927 as with other sanctions provisions,
‘[d]istrict courts enjoy much discretion in determining whether
and how much sanctions are appropriate.’”

Haynes v. City & Cnty.

of San Francisco, 688 F.3d 984, 987 (9th Cir. 2012) (quoting
Trulis v. Barton, 107 F.3d 685, 694 (9th Cir. 1995)).
Plaintiff clearly fails to meet the more stringent
subjective bad faith standard in the instant case, and the Court,
exercising its discretion, finds that sanctions are not warranted
pursuant to 28 U.S.C. § 1927.

Plaintiff’s Motion is DENIED

insofar as it requests sanctions pursuant to 28 U.S.C. § 1927.
3.

Court’s Inherent Power to Sanction

“Inherent-power sanctions” must be preceded
by a finding of “bad faith or conduct tantamount
to bad faith.” Price v. Lehtinen (In re
Lehtinen), 564 F.3d 1052, 1061 (9th Cir. 2009)
(emphasis, citations and internal quotation marks
omitted); accord Scott v. Kruse (In re Fisher Fin.
& Inv. LLC), No. 09–60035, 2011 WL 1898225, at *1
(9th Cir. May 19, 2011). As explained by the
Ninth Circuit in Leon v. IDX Systems Corp.:
Under its “inherent powers,” a district
court may . . . award sanctions in the
form of attorneys’ fees against a party
or counsel who acts “in bad faith,
vexatiously, wantonly, or for oppressive
reasons.” Primus Auto. Fin. Servs.,
Inc. v. Batarse, 115 F.3d 644, 648 (9th
Cir. 1997) (discussing a sanction
against an attorney) (citation omitted).
Before awarding such sanctions, the
18

court must make an express finding that
the sanctioned party’s behavior
“constituted or was tantamount to bad
faith.” Id. (citation omitted). A
party “demonstrates bad faith by
delaying or disrupting the litigation or
hampering enforcement of a court order.”
Id. at 649 (internal quotation marks and
citation omitted). The bad faith
requirement ensures that the district
court’s exercise of its broad power is
properly restrained, and “preserves a
balance between protecting the court's
integrity and encouraging meritorious
arguments.” Id. Additionally, the
amount of monetary sanctions must be
“reasonable.” Brown v. Baden (In re
Yagman), 796 F.2d 1165, 1184 (9th Cir.),
as amended by 803 F.2d 1085 (1986)
(reviewing a Rule 11 sanction but
announcing a standard applicable to
other sanctions as well).
464 F.3d 951, 961 (9th Cir. 2006).
A court may also impose sanctions for
recklessness when such behavior is “combined with
an additional factor such as frivolousness,
harassment, or an improper purpose.” Fink [v.
Gomez], 239 F.3d [989,] 994 [(9th Cir. 2001)].
“[A]lthough recklessness, of itself, does not
justify the imposition of sanctions, sanctions
. . . . are justified ‘when a party acts for an
improper purpose—even if the act consists of
making a truthful statement or a non-frivolous
argument or objection .’” Gomez v. Vernon, 255
F.3d 1118, 1134 (9th Cir. 2001) (emphasis in
original) (quoting Fink, 239 F.3d at 992). The
Ninth Circuit has cautioned, however, that courts
may not issue inherent power sanctions for
“inadvertent” conduct such as “‘an oversight or
ordinary negligence’”. Fink, 239 F.3d at 993
(some citations and quotation marks omitted)
(quoting Zambrano v. City of Tustin, 885 F.2d
1473, 1483 (9th Cir. 1989)).
Although the Ninth Circuit has yet to address
the burden of proof required for an inherent
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powers sanctions award, it has analyzed several
sanctions cases under a “clear and convincing
evidence” standard. See, e.g., Lahiri v.
Universal Music & Video Distrib. Corp., 606 F.3d
1216, 1219 (9th Cir. 2010) (declining to address
the burden of proof issue because “clear and
convincing evidence” supported the district
court’s bad faith finding); In re Lehtinen, 564
F.3d at 1061 n.4 (same); F.J. Hanshaw Enters.,
Inc. v. Emerald River Dev., Inc., 244 F.3d 1128,
1143 n.11 (9th Cir. 2001) (same).
Coles v. Eagle, NO. CIV. 09-00167 LEK, 2011 WL 2610199, at *8 (D.
Hawai‘i July 1, 2011).
While we found no authority setting specific
time limits for the filing of a motion for
sanctions pursuant to our inherent authority, it
is generally well-established that “unreasonable
delay may render . . . a [sanctions] motion
untimely.” Brown v. Hawaii, No. 07 C 00556, 2009
WL 3365850, at *2 (D. Haw. Oct. 19, 2009) (quoting
Long v. Howard Univ., 561 F. Supp. 2d 85, 91
(D.D.C. 2008)); see also Brandt v. Vulcan, Inc.,
30 F.3d 752, 756 (7th Cir. 1994). “The timeliness
of a motion for sanctions depends on such factors
as when the movant learned of the discovery
violation, how long [she] waited before bringing
it to the court’s attention, and whether discovery
has been completed.” Long, 561 F. Supp. 2d at 91
(evaluating a Rule 37 sanctions motion).
Clark v. United States, No. 06–CV–00544, 2011 WL 66181, at *4 (D.
Hawai‘i Jan. 7, 2011).
For the reasons stated above, and because the Court
finds that sanctions are not warranted pursuant to its inherent
power, the Court DENIES Plaintiff’s Motion on this additional
ground.
B.

Defendants’ Request for Fees
“If warranted, the court may award to the prevailing
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party the reasonable expenses, including attorney’s fees,
incurred for the motion.”

Fed. R. Civ. P. 11(c)(2).

The Court finds that Plaintiff failed to comply with
the procedural requirements of Rule 11 and that the Plaintiff’s
Motion is substantively without merit.

The Court therefore

concludes that Defendants, and any additional sanctions targets,
are the prevailing parties.

Accordingly, these responding

parties and counsel are entitled to their reasonable attorneys’
fees resulting directly from Plaintiff’s filing, in an amount
sufficient to deter repetition of such conduct.

Counsel shall

submit an appropriate motion for attorneys’ fees, in compliance
with Local Rule LR54.3, by June 24, 2013.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion for
Sanctions Against JAL Defendants, HACS, Certain Carlsmith Ball
Attorneys, and Carl Osaki, filed on January 18, 2013, is HEREBY
DENIED and the Court FINDS that Defendants are the prevailing
parties.

Counsel shall file any motions for attorneys’ fees by

June 24, 2013.

JAL’s Motion for Court to Issue An Order

Requiring Plaintiff Jack Crawford to Show His Medical Fitness to
Litigate, filed on February 22, 2013, is HEREBY DENIED.

JAL’s

Motion to Strike Plaintiff’s Supplemental Statement of
Authorities Filed Pursuant to LR7.8 in Support of Plaintiff’s
Motion for Sanctions, filed on March 6, 2013, is HEREBY GRANTED.
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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, MAY 31, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

CRAWFORD V. JAPAN AIRLINES, ET AL.; CIVIL NO. 03-00451 LEK-KSC;
ORDER (1) DENYING PLAINTIFF JACK CRAWFORD’S MOTION FOR SANCTIONS
AGAINST JAL DEFENDANTS, HACS, CARLSMITH BALL, CERTAIN CARLSMITH
BALL ATTORNEYS AND CARL OSAKI; (2) DENYING DEFENDANT JAPAN
AIRLINES’ MOTION FOR THE COURT TO ISSUE AN ORDER REQUIRING
PLAINTIFF JACK CRAWFORD TO SHOW HIS MEDICAL FITNESS TO LITIGATE;
AND (3) GRANTING JAPAN AIRLINES’ MOTION TO STRIKE PLAINTIFF JACK
CRAWFORD’S SUPPLEMENTAL STATEMENT OF AUTHORITIES FILED PURSUANT
TO LR7.8 IN SUPPORT OF PLAINTIFF JACK CRAWFORD’S MOTION FOR
SANCTIONS AGAINST JAL DEFENDANTS, FILED FEBRUARY 28, 2013

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