Coles v. Eagle et al
Filing
315
ORDER DENYING PLAINTIFF'S MOTIONS FOR NEW TRIAL, MISTRIAL, AND SANCTIONS 295 , 296 , 306 . Signed by JUDGE LESLIE E. KOBAYASHI on 7/1/2011. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electr onic 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 Modified on 7/1/2011: Mr. Coles served at address: HARRY J. COLES A1075332/Halawa Correctional Facility Mod 2-A-3/99-902 Moanalua Rd/Aiea HI 96701. (afc).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
JOSHUA EAGLE, ET AL.,
)
)
Defendants.
)
_____________________________ )
HARRY J. COLES,
CIVIL NO. 09-00167 LEK-BMK
ORDER DENYING PLAINTIFF’S MOTIONS
FOR NEW TRIAL, MISTRIAL, AND SANCTIONS
Before the Court are pro se Plaintiff Harry Coles’
(“Plaintiff”) Motion for Mistrial, Motion for New Trial (“Motion
for New Trial”), filed on May 16, 2011, Motion for Sanction under
Rule 11 (“Motion for Sanctions”), filed on May 16, 2011, and
Motion for Mistrial and Order for New Trial: Motion for Sanctions
and Pro Se “Damages” Fees (“Motion for Mistrial”), filed on
June 3, 2011.1
Defendants Joshua Eagle and Elton Robertson
(“Defendants”) filed memoranda in opposition to the Motion for
New Trial and Motion for Sanctions on May 31, 2011.
1
The Court
The Court construed the portion of this filing seeking
Rule 11 sanctions and other damages and fees as an improper reply
to Defendant’s Memorandum in Opposition to Plaintiff’s Motion for
Sanctions under Rule 11. [EO: Court Order Regarding Plaintiff’s
Motion for Mistrial and Order for New Trial: Motion for Sanctions
and Pro Se “Damages” Fees, and Motion for Sanctions, Rule 11,
Fed. R. Civ. P. and Pro Se Incurred Damages Due Fees, filed
6/7/11 (dkt. no. 307), at 2.] Thus, the Court will not consider
the portion of the Motion for Mistrial seeking sanctions and
other damages and fees.
did not permit Plaintiff to file reply memoranda.
[EO: Court
Order Regarding Plaintiff’s Motion for Sanctions Under Rule 11
and Plaintiff’s Motion for Mistrial and Motion for New Trial,
filed on 5/16/11 (dkt. no. 298).]
The Court finds these matters
suitable for disposition without a hearing pursuant to Rule
LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i.
After careful
consideration of the motions, supporting and opposing memoranda,
and the relevant legal authority, Plaintiff’s Motion for New
Trial, Motion for Sanctions, and Motion for Mistrial are HEREBY
DENIED for the reasons set forth below.
BACKGROUND
The parties and the Court are familiar with the factual and
legal history of this case, and the Court will only repeat the
history that is relevant to the instant motions.
This Court conducted a bench trial in this case from
May 3 to 6, 2011, and May 9, 2011.
During defense counsel’s
cross-examination of Plaintiff on May 5, 2011, she asked,
“[i]sn’t it correct that you were convicted in 2004 (sic) in
Alaska for stealing a vehicle; felony theft of an automobile?”2
[Tr. Trans., 5/5/11 – Day 3, filed 5/20/11 (dkt. no. 299), at
117.]
The Court prevented Plaintiff from answering the question
2
In 2002, Plaintiff was convicted for felony Vehicle Theft
in the First Degree in Alaska.
2
and reminded defense counsel of the Court’s pretrial Order
Granting in Part and Denying in Part Plaintiff’s Motion in Limine
(“Prior Convictions Order”)3 [filed 4/27/11 (dkt. no. 255)].
[Tr. Trans., 5/5/11 - Day 3, at 117.]
Later that day, the Court,
sua sponte, raised the issue of whether a mistrial was warranted
because defense counsel’s question violated the Prior Convictions
Order.
[Id. at 131-32.]
The Court ultimately decided against
declaring a mistrial and issued a limiting instruction to the
jury on May 6, 2011.
On May 9, 2011, the jury reached a verdict in favor of
Defendants and against Plaintiff by special verdict form.
[Dkt.
no. 291.]
The Clerk of Court entered the final judgment later
that day.
[Dkt. no. 292.]
I.
Motion for New Trial and Motion for Mistrial
In the Motion for New Trial, Plaintiff seeks a new
trial pursuant to Rule 59(b) of the Federal Rules of Civil
Procedure.
Plaintiff argues that he is entitled to a new trial
for the following reasons:
1.
2.
3.
Motion in Limine violation, prior convictions
from 2002 + 2004, AK.
The Courts (sic) refusal to issue subpoenas
and information requested and produced[.]
The Courts (sic) apparent bias in not
allowing complaints both confirmed before and
3
The Court’s order addressed other issues in addition to
the introduction of evidence and the questioning of witnesses
regarding Plaintiff’s prior convictions, but those other issues
are not relevant to the motions currently before this Court.
3
4.
5.
6.
7.
after 2005-2007, by investigation of internal
affairs, ethics commission and City and
County Police Commissions documented findings
of facts.
The Courts (sic) allowing in of Plaintiffs
(sic) prior Hawai`i convictions 2005 and
2007[.]
The Courts (sic) refusal to over ride (sic)
magistrates (sic) findings and
recommendations pretaining (sic) to sealed
documents for review of Court
determinations[.]
The Court (sic) refusal to allow Amended
Complaint, to add defendants and causes of
actions[.]
The Courts (sic) refusal to allow Plaintiff
to correct errors in his failing to sign and
date declaration/affidavit out lining (sic)
disputed facts in Plaintiffs (sic) Motion in
Opposition to Defs. Summary Judgment. and
(sic) Judges (sic) weighing of controverted
evidence introduce (sic) by Plaintiff and
disregarded by Court (sic) in exchange for
bias interpretation of bounderies (sic)
decided by Court (sic) in favor of
Defendants[.]
[Motion for New Trial at 1-2 (emphases in original).]
In the
alternative, Plaintiff requests “a final judgment ruling to allow
Plaintiff to appeal to 9th Cir (sic) Court of Appeals[.]”
[Id.
at 2.]
In the Motion for Mistrial, Plaintiff seeks a
declaration of a mistrial pursuant to Rule 59(b) of the Federal
Rules of Civil Procedure.
Plaintiff appears to argue that
defense counsel violated the Prior Convictions Order by referring
to Plaintiffs’ prior convictions in Alaska, and that said
violation warrants a new trial.
[Motion for Mistrial at 1.]
In their memorandum in opposition to the Motion for New
4
Trial, Defendants argue that none of Plaintiff’s grounds qualify
as “‘historically recognized’” bases for granting a new trial.
[Mem. in Opp. to Motion for New Trial at 5-6 (quoting Molski v.
M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007)).]
Defendants argue, moreover, that even if such grounds are
“historically recognized”, there is no evidence that the Court or
defense counsel prevented Plaintiff from “‘fully and fairly’”
presenting his case.
[Id. at 6 (quoting Wharf v. Burlington N.
R.R. Co., 60 F.3d 631, 637 (9th Cir. 1995)).]
Defendants devote particular attention to Plaintiff’s
Ground 1 for granting a new trial.
First, Defendants argue that
Plaintiff failed to allege or demonstrate prejudice suffered from
counsel’s alleged misconduct.
[Id. (some citations omitted)
(citing Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th
Cir. 1985)).]
Second, Defendants contend that defense counsel’s
singular reference to Plaintiff’s Alaska conviction was an
innocent mistake that did not “permeate [the] entire
proceeding[.]”
omitted).]
[Id. at 7 (citation and quotation marks
Third, Defendants argue that Plaintiff did not suffer
actual prejudice because Plaintiff’s claim involved allegations
of excessive use of force by police and not a claim of false
arrest.
[Id.]
Fourth, Defendants contend that, at the time
defense counsel posed the question, “the jury was already aware
that Plaintiff was a convicted felon.”
5
[Id. at 8.]
Finally,
Defendants argue that, even if the question caused prejudice, the
Court’s limiting instruction to the jury was sufficient to cure
any such prejudice.
II.
[Id. at 8-9.]
Motion for Sanctions
Plaintiff seeks sanctions against defense counsel
pursuant to Rule 11 of the Federal Rules of Civil Procedure.
Plaintiff appears to argue that defense counsel violated the
Prior Convictions Order by asking Plaintiff about his “prior
convictions in Alaska” during trial, and that said violation
warrants an award of monetary sanctions under Rule 11.
[Motion
for Sanctions at 1 (internal quotation marks omitted).]
Plaintiff claims that defense counsel’s question “caused
credability (sic) damage irreparable by a special instruction of
the Court.”
[Id.]
Defendants oppose Plaintiff’s request for sanctions
with three arguments.
First, Defendants contend that defense
counsel neither acted in bad faith nor willfully violated the
Prior Convictions Order when she asked Plaintiff about his Alaska
conviction.
Rather, Defendants claim that defense counsel
“believed that Plaintiff had ‘opened the door’ to the excluded
evidence of his convictions by his multiple references to his
prior contact with the police.”
Sanctions at 6.]
[Mem. in Opp. to Motion for
In support of this argument, Defendants cite
two different instances in which Plaintiff, as a testifying
6
witness, referenced his experience with police.
Trans., 5/5/11 – Day 3, at 103:3-6 & 104:2-12).]
[Id. (citing Tr.
Defendants
note, moreover, that defense counsel objected to such testimony
and advised the Court that Plaintiff was “‘opening the door’”.4
[Id. (quoting Tr. Trans., 5/5/11 – Day 3, at 104:5-7).]
Defendants further state that, after the Court informed defense
counsel that the door to the Alaska conviction had not been
opened, she “immediately ceased all questions regarding
Plaintiff’s prior record and all questions regarding Plaintiff’s
prior contacts with police in Alaska.”
[Id. at 7 (emphasis
omitted) (citing Tr. Trans., 5/5/11 – Day 3, at 117:2-12).]
Defendants further note that, although Plaintiff subsequently
testified to his prior contacts with Alaska police, defense
counsel did not revisit the issue of his Alaska arrest.
[Id.
(citing Tr. Trans., 5/5/11 – Day 3, at 162:19 to 163:12).]
Second, Defendants argue that the Court’s admonishment
of defense counsel in open court “was more than sufficient, as
evidenced by the fact that there were no further violations by
counsel, especially in light of Plaintiff’s continued testimony
regarding his police contacts and [Unauthorized Use of a
Propelled Vehicle] in Alaska after the afore-referenced
admonition.”
[Id. at 8 (emphasis omitted).]
4
Defendants claim
Defense counsel actually stated: “If he wants to go into
his history, that’s going to be opening some doors, Your Honor.”
[Tr. Trans., 5/5/11 – Day 3, at 104.]
7
that the Court’s admonishment “was sufficient to ‘carry out the
conduct of its business’ and ‘preserve the integrity of the court
docket or the sanctity of the federal rules.’”
[Id. (quoting
Zambrano v. City of Tustin, 885 F.2d 1473, 1479-80 (9th Cir.
1989)).]
Finally, Defendants argue that a monetary sanction
would be contrary to “‘principles of right and justice’” given
Plaintiff’s willful violation of the Court’s Order Granting
Defendants’ Motion in Limine No. 1 (“Disciplinary Record Order”),
[filed 4/25/11 (dkt. no. 242),] which limited testimony on
Defendant Eagle’s disciplinary record.
Zambrano, 885 F.2d at 1479-80).]
[Id. at 9 (quoting
Defendants argue that Plaintiff
“blatantly” violated the Disciplinary Record Order by
“spontaneously and willfully pointing to a large stack of papers
in the presence of the jury and stating, ‘This is 350 pages of
the disciplinary reports that have been investigated and
confirmed.’”
[Id. at 9-10 (emphasis in Mem. in Opp. to Motion
for Sanctions) (quoting Tr. Trans., 5/5/11 – Day 3, at 65:16 to
66:16).]
DISCUSSION
I.
Motion for New Trial and Motion for Mistrial
In the Motion for New Trial, Plaintiff alleges seven
grounds for granting a new trial.
Ground 1 appears to concern
defense counsel’s violation of the Prior Convictions Order by
8
asking Plaintiff a question at trial about his 2002 conviction in
Alaska for felony Vehicle Theft in the First Degree.
The Court
construes Grounds 2 through 7 as concerning the following pretrial decisions: the magistrate judge’s refusal to issue
subpoenas, [Minutes - EP: Status Conference Re Subpoenas for
Trial, filed 4/22/11 (dkt. no. 238),] (Ground 2); the Court’s
Disciplinary Record Order limiting testimony on Defendant Eagle’s
disciplinary record (Ground 3); the Court’s Prior Convictions
Order insofar as it rejected Plaintiff’s request that Defendants
be barred from raising his 2005 and 2007 Hawai`i convictions at
trial (Ground 4); the Court’s Order Denying Plaintiff’s Motion
for Review of Nondispositive Matter, [filed 3/30/11 (dkt. no.
199),] (Ground 5); the Court’s denial of Plaintiffs’ motion
seeking reconsideration of the Court’s order denying Plaintiff’s
motion to amend his Complaint, [Order Regarding Plaintiff’s
Motion for Reconsideration, filed 4/29/11 (dkt. no. 264),]
(Ground 6); and United States District Judge David Alan Ezra’s
Order Denying Motion to Cure and Correct Deficiency in
Declaration Opposing Summary Judgment, [filed 12/21/10 (dkt. no.
132),] (Ground 7).
Similar to Ground 1 in his Motion for New Trial,
Plaintiff argues in the Motion for Mistrial that defense
counsel’s violation of the Prior Convictions Order warrants a
declaration of mistrial.
Plaintiff contends that the violation
9
“tainted the jury” and was “impossible to overcome”.
[Motion for
Mistrial at 1 (internal quotation marks omitted).]
Defendants argue that none of Plaintiff’s grounds
qualify as “historically recognized” bases for granting a new
trial and that his request for such relief should therefore be
rejected.
Defendants contend, moreover, that even if such
grounds existed, Plaintiff failed to demonstrate how either
counsel or the Court prevented him from fully and fairly
presenting his case.
Finally, Defendants argue that, even if the
violation of the Prior Convictions Order caused prejudice, the
Court’s limiting instruction to the jury was sufficient to cure
any harm resulting from such prejudice.
Rule 59(a)(1) of the Federal Rules of Civil Procedure
provides, in pertinent part:
The court may, on motion, grant a new trial on all
or some of the issues — and to any party — as
follows:
(A) after a jury trial, for any reason for
which a new trial has heretofore been granted
in an action at law in federal court[.]
As explained by the Ninth Circuit in Molski v. M.J. Cable, Inc.:
“Rule 59 does not specify the grounds on which a
motion for a new trial may be granted.” Zhang v.
Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th
Cir. 2003). Rather, the court is “bound by those
grounds that have been historically recognized.”
Id. Historically recognized grounds include, but
are not limited to, claims “that the verdict is
against the weight of the evidence, that the
damages are excessive, or that, for other reasons,
the trial was not fair to the party moving.”
10
Montgomery Ward & Co. v. Duncan, 311 U.S. 243,
251, 61 S. Ct. 189, 85 L. Ed. 147 (1940). We have
held that “[t]he trial court may grant a new trial
only if the verdict is contrary to the clear
weight of the evidence, is based upon false or
perjurious evidence, or to prevent a miscarriage
of justice.” Passantino v. Johnson & Johnson
Consumer Prods., 212 F.3d 493, 510 n.15 (9th Cir.
2000).
481 F.3d 724, 729 (9th Cir. 2007) (alteration in original).
As explained by the Ninth Circuit in Wharf v.
Burlington Northern Railroad Co.:
A new trial is properly granted where a party can:
(1) prove by clear and convincing evidence
that the verdict was obtained through fraud,
misrepresentation, or other misconduct [and]
(2) establish that the conduct complained of
prevented the losing party from fully and
fairly presenting his case or defense.
60 F.3d 631, 637 (9th Cir. 1995) (alteration in original)
(quoting Jones v. Aero/Chem Corp., 921 F.2d 875, 878-79 (9th Cir.
1990)).
“To warrant reversal on grounds of attorney misconduct,
the flavor of the misconduct must sufficiently permeate an entire
proceeding to provide conviction that the jury was influenced by
passion and prejudice in reaching its verdict.”
Doe ex rel.
Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1270 (9th Cir. 2000)
(citations and internal quotation marks omitted).
Court have
also applied this standard to motions for mistrial based on
attorney misconduct.
See, e.g., Molony v. Crook Cnty., Nos.
09-35624, 09-36005, & 09-36089, 2011 WL 2116464, at *1 (9th Cir.
May 27, 2011) (citation omitted); Trovan, Ltd. v. Pfizer, Inc.,
11
No. CV-98-00094 LGB MCX, 2000 WL 709149, at *30 (C.D. Cal.
May 24, 2000) (citations omitted); see also Blount, Inc. v.
Trilink Saw Chain, LLC, No. 06-CV-767-BR, 2009 WL 1884625, at *1
(D. Or. June 30, 2009) (citation omitted).
This Court finds no support for Plaintiff’s arguments
that Grounds 2 through 7 warrant a new trial.
None of the pre-
trial decisions identified by Plaintiff constitute
“[h]istorically recognized grounds”, see Molski, 481 F.3d at 729
(citation omitted), or suggest a “miscarriage of justice”, see
Passantino, 212 F.3d at 510 n.15 (citation omitted).
Moreover,
they offer no indication that “the verdict is contrary to the
clear weight of the evidence” or “is based upon false or
perjurious evidence[.]”
Id. (citation omitted).
Accordingly,
the Court FINDS that Grounds 2 through 7 fail to demonstrate that
Plaintiff is entitled to a new trial.
Ground 1, on the other hand, does appear to raise a
“historical recognized” basis for new trial: attorney misconduct.
In Wharf, the Ninth Circuit found that a defense attorney’s
deceptive behavior – knowingly misleading the plaintiff, court,
and jury by introducing into evidence and arguing to the jury
information known to be incorrect5 – warranted a new trial on the
5
As further explained by the Ninth Circuit in Wharf:
Burlington’s counsel misled the court and
jury by failing to disclose Wharf’s termination to
(continued...)
12
issue of damages.
60 F.3d at 637.
As explained by the Ninth
Circuit, the defense attorney’s conduct “prevented Wharf’s claim
from being fully and fairly presented”:
Burlington’s counsel misled Wharf into
arguing, and misled the jury into believing, that
Wharf’s only income loss would be from his
inability to do road work, or that Wharf could
mitigate his damages through yard work. If Wharf
had known he had been fired, he could have asked
for additional damages from the jury.
Id. at 638.
In the Prior Convictions Order, this Court concluded
that Plaintiff’s 2002 Alaska conviction for felony Vehicle Theft
in the First Degree was “not admissible in evidence, and the
parties shall not refer to, seek to introduce evidence regarding,
nor question any witness about Plaintiff’s 2002 conviction[.]”
[Prior Convictions Order at 5.]
The Court cautioned Plaintiff,
however, “that if he should testify, ask a question of any
5
(...continued)
Wharf and the court and by arguing in closing that
“Wharf still has his job,” when counsel knew
otherwise. The parties had agreed to stipulate
that Wharf continued to be employed by the
railroad. Wharf believed the stipulated fact to
be true. Burlington knew that Wharf believed he
would continue to be employed and that a decision
had been made to terminate him. The stipulated
fact was false. Burlington’s counsel nevertheless
allowed the court to read the stipulation to the
jury. Compounding the misconduct, Burlington’s
counsel took advantage of Wharf’s ignorance by
arguing the false position to the jury.
60 F.3d at 637 (footnote omitted).
13
witness, or seek to introduce evidence regarding Plaintiff’s 2002
conviction . . . he may be found to have waived his objections
and created a basis for Defendants to be permitted to ask
questions or to introduce evidence regarding th[is] matter[].”6
[Id.]
Even assuming, arguendo, that defense counsel’s
violation of the Prior Convictions Order constitutes “misconduct”
under Wharf, Plaintiff has identified no evidence, let alone
“clear and convincing evidence”, that “the verdict was obtained
through . . . [such] misconduct[.]”
(citation omitted).
See Wharf, 60 F.3d at 637
Moreover, Plaintiff has failed to establish
that the violation “prevented [him] from fully and fairly
presenting his case or defense.”
See id. (citation omitted).
Unlike the plaintiff in Wharf, who showed that attorney
misconduct directly affected the damages portion of the trial,
Plaintiff does not state with any specificity how defense
counsel’s violation undermined his ability to fully and fairly
present his case.
Further, even assuming, arguendo, that defense
6
As discussed supra, Section II., Defendants contend that
defense counsel’s inquiry about the Alaska conviction was based
on her belief “that Plaintiff had ‘opened the door’ to the
excluded evidence . . . by his multiple references to his prior
contact with the police.” [Mem. in Opp. to Motion for Sanctions
at 6.] The Court found that Plaintiff did not open the door and
that defense counsel’s question was in clear violation of the
Prior Convictions Order. [Tr. Trans., 5/5/11 – Day 3, at 134.]
14
counsel’s violation prejudiced Plaintiff, such prejudice was
cured by the Court’s limiting instruction.
As explained by the
Ninth Circuit, “[a] timely instruction from the judge usually
cures the prejudicial impact of evidence unless it is highly
prejudicial or the instruction is clearly inadequate.”
B.K.B. v.
Maui Police Dep’t, 276 F.3d 1091, 1105 (9th Cir. 2002) (citations
and quotation marks omitted).
Moreover, issuing a cautionary
limiting instruction is preferred to declaring a mistrial when an
attorney makes an inappropriate or prejudicial remark unless the
remark is so prejudicial that a cautionary instruction is
unlikely to cure it.
Wyatt v. Horkley Self-Serve, Inc., 325 Fed.
Appx. 488, 491 (9th Cir. 2009).
In the instant case, immediately
following the violation, the Court declared defense counsel’s
question regarding the Alaska conviction inadmissible and
instructed Plaintiff not to respond.
3, at 117.]
[Tr. Trans., 5/5/11 – Day
At the commencement of proceedings on May 6, 2011,
the Court issued a limiting instruction advising the jury that:
counsel’s and the pro se Plaintiff’s questions are not evidence;
and, where the Court directed the witness not to respond to the
question, the jury should not consider the questions in reviewing
the evidence.
In examining a similar request for a new trial, the
United States District Court for the Eastern District of
California found that, where a question in violation of a limine
15
order “was not answered, the objection was sustained, the
question was withdrawn by counsel, the jury was admonished to
disregard the questions . . . and the motion to strike was
granted[,]” the losing party suffered no prejudice and a new
trial was unwarranted.
United States Fid. & Guar. Co. v. Lee
Invs. LLC, 551 F. Supp. 2d 1114, 1144-45 (E.D. Cal. 2008).
While
the question in the instant case was neither withdrawn nor
stricken, the Court’s actions had a comparable effect: the Court
stopped Plaintiff from answering the question and instructed
defense counsel to abandon such questioning; defense counsel did
abandon that line of questioning; and the Court admonished the
jury with a limiting instruction.
The Court cannot find that defense counsel’s violation
of Prior Convictions Order constitutes misconduct that
“sufficiently permeate[d] an entire proceeding to provide
conviction that the jury was influenced by passion and prejudice
in reaching its verdict.”
See Doe ex rel. Rudy-Glanzer v.
Glanzer, 232 F.3d 1258, 1270 (9th Cir. 2000) (citations and
internal quotation marks omitted).
Moreover, the Court finds
that the limiting instruction cured any prejudicial impact that
might have resulted from the violation.
The Court therefore
FINDS that Plaintiff is not entitled to a new trial or a
declaration of mistrial as a result of defense counsel’s
violation of the Prior Convictions Order.
16
The Court further FINDS that Plaintiff’s request for a
“final judgment ruling . . . to appeal to 9th Cir (sic) Court of
Appeals” is moot.
[Motion for New Trial at 2.]
The Clerk of
Court entered the final judgment in this case on May 9, 2011.
The Court observes, moreover, the Plaintiff has already filed a
notice of appeal indicating his intention to appeal “the final
judgment entered in this action on date of entry of judgement
(sic).”
[Notice of Appeal, filed 6/7/11 (dkt. no. 308).7]
Accordingly, Plaintiff’s Motion for New Trial and
Motion for Mistrial are DENIED.
II.
Motion for Sanctions
The Motion for Sanctions seeks an award of $5,000.00
for defense counsel’s violation of the Prior Convictions Order.
[Motion for Sanctions at 1 (citing Fed. R. Civ. P. 11).]
Plaintiff argues that defense counsel’s reference to his Alaska
conviction damaged his credibility and was not reparable by a
limiting instruction to the jury.
[Id.]
Defendants argue that defense counsel should not be
subject to sanctions because she did not act in bad faith or in
willful disobedience of the Court’s order.
7
Moreover, Defendants
The Court notes that the Ninth Circuit issued an order
stating that it was holding Plaintiff’s appeal in abeyance
because Plaintiff’s notice of appeal is ineffective until the
filing of the order disposing of the last outstanding motion
listed in Fed. R. App. P. 4(a)(4). [Ninth Circuit Order, filed
6/15/11 (dkt. no. 312), at 1.] Plaintiff also filed another
notice of appeal on June 16, 2011. [Dkt. no. 313.]
17
contend that the Court’s admonishment to defense counsel during
trial was sufficient to carry out the purpose of any proposed
sanction.
Finally, Defendants argue that, given Plaintiff’s
violations of the Disciplinary Record Order, which limited
testimony on Defendant Eagle’s disciplinary record, a sanction
against defense counsel would not be consistent with the
principles of fairness and justice.
As explained by the Ninth Circuit in Fink v. Gomez:
Three primary sources of authority enable
courts to sanction parties or their lawyers for
improper conduct: (1) Federal Rule of Civil
Procedure 11, which applies to signed writings
filed with the court, (2) 28 U.S.C. § 1927, which
is aimed at penalizing conduct that unreasonably
and vexatiously multiplies the proceedings, and
(3) the court’s inherent power.
239 F.3d 989, 991 (9th Cir. 2001).
Although Plaintiff seeks
sanctions pursuant to Rule 11, this case actually concerns
sanctions under the third source of authority: inherent power.
See Christian v. Mattel, Inc., 286 F.3d 1118, 1131 (9th Cir.
2002) (“Rule 11 sanctions are limited to ‘paper[s]’ signed in
violation of the rule.” (alteration in original)).
The Court
liberally construes the Motion for Sanctions as a motion under
the Court’s inherent powers because of Plaintiff’s status as a
pro se litigant.
Cf. Jackson v. Carey, 353 F.3d 750, 756-57 (9th
Cir. 2003) (“In civil rights cases where the plaintiff appears
pro se, the court must construe the pleadings liberally and must
afford plaintiff the benefit of any doubt.” (citation and
18
quotation marks omitted)).
“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 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
19
frivolousness, harassment, or an improper purpose.”
F.3d at 994.
Fink, 239
“[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 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).
As discussed supra Discussion Section I., the Prior
20
Convictions Order, inter alia, barred Defendants from referring
to or questioning any witnesses about Plaintiff’s 2002 Alaska
conviction.
The Court cautioned, however, that if Plaintiff
testified about or introduced evidence of said conviction, the
Court may find that he waived his objections regarding that
matter.
[Prior Convictions Order at 5.]
In the instant case, Defendants claim that Plaintiff
opened the door to the Alaska conviction through the following
testimony:
[MR. COLES:] So then finally I noticed the
blue lights. The outside blue lights, they
illuminate a low blue glow. To me, that was
nothing to worry about, because where I’m from, if
a cop is trying to get your attention, he puts on
his flashers and he hits his noise thing, “Whoop,”
you know. None of that happen. I just noticed
that there’s the low glow of the outside lights.
So, I’m like, “Oh, well maybe this is a
traffic stop.” So, because of the precautionary
measure I’m having with him being so close to my
rear, I said, “Let me turn off the main drag
here,” because it’s a two-lane highway. If it is
a stop, I don’t want to be stuck on a two-lane
highway. So, I don’t think that there’s anything
wrong with turning into the first available
parking lot I saw. It was lit, it was open, and
it would provide enough area for both cars to be
stopped. And from what -- what little bit of
knowledge I have, it would have been safe.
Now, whether or not that was in compliance
with the law or not, I don’t know. I -- I
proceeded up the driveway over the speed bumps.
And I’m kind of like mesmerized. I am kind of
like, “Okay.” Because I’m -- this guy is hot. I
can tell. I can read the -- the facial
impressions that I am getting, like I don’t know
what this fool going to do. Excuse me.
And so when I do come to a stop, I just
gradually stop the car, and I begin to prepare
21
myself. Because it’s been my history, when a
white officer stops an African-American male -MS. FUKUI: Objection, Your Honor. If he
wants to go into his history, that’s going to be
opening some doors, Your Honor.
THE COURT: Well, so, your objection is
overruled.
BY MR. COLES:
Q.
It’s been my experience when a white officer
stops an African-American in a car, a male by
himself, that African-American male better be on
his toes. He better make sure all his Ts are
crossed and all his dots are dotted or whatever. .
. .
[Tr. Trans., 5/5/11 – Day 3, at 103-04.]
Defendants claim that
defense counsel “mistook this Court’s response [in this exchange]
as an acknowledgment of counsel’s contention that the door was
open.”
[Mem. in Supp. of Motion for Sanctions at 6 (footnote
omitted).]
Defense counsel’s assumption that Plaintiff opened the
door to testimony regarding his Alaska conviction was an error in
judgment.
As the Court explained at trial:
THE COURT: And you asked him this question
because he had a general statement that, you know,
he was aware, or he was concerned, or he had some
sort of state of mind because of his history and
his people’s history or African-American’s history
with law enforcement.
But then when he was asked to clarify that,
he was saying in general. He didn’t talk about
any prior convictions, especially not Alaska. And
you never asked permission to inquire into that
area. You just blurted it out in front of the
jury, and now it’s out there.
[Tr. Trans., 5/5/11 – Day 3, at 133-34.]
The Court publicly
admonished defense counsel for this mistake, stating: “[Y]ou know
22
you made that assumption [that the door was open] and you did
that clearly in violation of [the Prior Convictions Order].
Clearly in violation of this order.”
[Id. at 134.]
Further, the
Court stated, “there’s just no -- there’s no excuse for it[.]”
[Id.]
While the Court finds that defense counsel’s conduct
constituted an error in judgment, and that said error was in
violation of the Court’s Prior Convictions Order, the Court
cannot find that her conduct was in “bad faith” or was
“tantamount to bad faith”.
See In re Lehtinen, 564 F.3d at 1061
(emphasis, citations and internal quotation marks omitted).
bad faith requirement sets a high threshold[.]”
“The
Primus Auto.
Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997).
“A finding of bad faith is warranted where an attorney knowingly
or recklessly raises a frivolous argument, or argues a
meritorious claim for the purpose of harassing an opponent[,]”
“delay[s] or disrupt[s] the litigation or hamper[s] enforcement
of a court order.”
omitted).
Id. (citations and internal quotation marks
A violation of a limine order on the basis of a
mistaken assumption does not meet this threshold.
The Ninth
Circuit has held that “‘[a]ttorneys should not be disciplined by
financial reprisal for conduct attributable to mistake,
inadvertence or error of judgment.’”
Zambrano v. City of Tustin,
885 F.2d 1473, 1480 (9th Cir. 1989) (quoting In re Sutter, 543
23
F.2d 1030, 1035 (2d Cir. 1976)) (some internal quotation marks
omitted); see also id. at 1480 n.24 (noting that lectures in open
court are often sufficient responses to violations of court
rules).
Moreover, even assuming, arguendo, that defense
counsel’s question constituted “recklessness”, the Court finds
that defense counsel’s error in judgment was not the product of
an “improper purpose”.
emphasis omitted).
See Gomez, 255 F.3d at 1134 (citation and
Accordingly, Plaintiff’s Motion for Sanctions
is DENIED.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion for
Mistrial, Motion for New Trial, filed on May 16, 2011, Motion for
Sanction under Rule 11, filed on May 16, 2011, and Motion for
Mistrial and Order for New Trial: Motion for Sanctions and Pro Se
“Damages” Fees, filed on June 3, 2011, are HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 1, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
HARRY J. COLES V. JOSHUA EAGLE, ET AL; CIVIL NO. 09-00167 LEKBMK; ORDER DENYING PLAINTIFF’S MOTIONS FOR NEW TRIAL, MISTRIAL
AND SANCTIONS
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