Ross et al v. Balderas et al

Filing 174

ORDER by Circuit Judge Paul Kelly, Jr.adopting 113 the Magistrate Judge's Report and Recommendations and overruling 125 Defendant's (Robert Richards) objections; denying 80 Defendant Richards's Motion and 86 Corrected Motion for Attorney Fees and Sanctions; denying 127 Defendant Richards's Motion for Sanctions Pursuant to the Court's Inherent Power; denying 105 Plaintiffs' Motion for Rule 11 Sanctions. (rt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ANDREW ROSS and SUSAN GERARD,
Plaintiffs,
No.

vs.

1:16-cv-01121 PJK/SMV

HECTOR BALDERAS, Jr., ROBERT
GARCIA, SARAH MICHAEL
SINGLETON, FRANCIS J. MATHEW,
RAYMOND Z. ORTIZ, DAVID K.
THOMPSON, JENNIFER ATTREP, T.
GLENN ELLINGTON, SYLVIA
LAMAR, DONITA OLYMPIA SENA,
DONNA BEVACQUA-YOUNG, PAT
CASADOS, FRANK SEDILLO,
WILLIAM PACHECO, ANTONIO
GUTIERREZ, ANNA MONTOYA,
JUDAH BEN MONTANO, A. ARROYO,
E. MONTIJO, MICHELLE PORTILLO,
STEPHEN T. PACHECO, JANE
GAGNE, JOYCE BUSTOS, LYNN
PICKARD, PAMELA REYNOLDS,
ROBIN MARTINEZ, ROBERT
RICHARDS, BRENDA WALL,
AUDREY MONTOYA, and ALLSTATE
INSURANCE, INC.,
Defendants.

ORDER ON VARIOUS MOTIONS FILED BY DEFENDANT ROBERT RICHARDS
AND PLAINTIFFS ANDREW ROSS AND SUSAN GERARD REGARDING
SANCTIONS

THIS MATTER comes on for consideration of various pending motions filed by
Defendant Robert Richards and Plaintiffs Andrew Ross and Susan Gerard regarding
sanctions. Upon consideration thereof, the motions are not well taken and should be
denied.
First, the court considers Defendant Robert Richards’s Objections to the
Magistrate Judge’s Proposed Findings and Recommended Disposition, filed January 19,
2017. Doc. 125. This court referred the issue of sanctions (arising from Plaintiffs’
unsuccessful request for preliminary injunctive relief) to the magistrate judge upon a
formal motion by Defendant Richards. Doc. 77. Defendant Richards then filed two
motions for attorneys’ fees and sanctions. Docs. 80, 86. The magistrate judge
recommended that Defendant Richards’s motions be denied. Doc. 113.
When a party objects to the magistrate’s recommendations, this court reviews the
matters underlying those objections de novo. See Ocelot Oil Corp. v. Sparrow Indus.,
847 F.2d 1458, 1462 (10th Cir. 1988). Defendant Richards argues that no case law
supports the magistrate judge’s finding that, under Fed. R. Civ. P. 11, Plaintiffs must have
had an opportunity to withdraw or correct the challenged filings. He argues that this
court’s requirement that he file a formal motion for sanctions obviated the need for such a
prerequisite. According to Defendant Richards, a pro-se attorney may be awarded
attorney’s fees as part of a sanctions award regardless of whether he has incurred such
fees. He further objects to the magistrate judge’s finding that he waived his argument that
the court should award sanctions pursuant to its inherent authority by not raising it until
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his reply brief. The court rejects these objections for substantially the same reasons
provided the magistrate judge’s proposed findings and recommended disposition and will
adopt those proposed findings and recommended disposition.
Second, the court considers Defendant Richards’s notices of withdrawal of his
motions for attorney’s fees and sanctions, filed January 10 and 11, 2017. Docs. 114, 119.
“Withdrawal requires consent of all other parties or approval of the Court.” D.N.M. LRCiv. 7.7. Plaintiffs, however, have not consented to the withdrawals, e.g., Doc. 117, and
the court declines to approve Defendant Richards’s attempt to withdraw the motions that
were the basis of the magistrate judge’s proposed findings and disposition and Defendant
Richards’s subsequent objections. Defendant Richards has his ruling and cannot erase it.
The notices of withdrawal are ineffective.
Third, on the same note, the court considers Defendant Robert Richards’s Motion
for Sanctions Pursuant to the Court’s Inherent Powers, filed January 20, 2017. Doc. 127.
The court will adopt the proposed findings and recommended disposition of the
magistrate judge, who concluded Defendant Richards has waived his inherent-authority
argument. Defendant Richards cannot resuscitate this argument given the magistrate’s
conclusion that it was procedurally barred in the earlier proceedings conducted by the
magistrate judge. Accordingly, his motion is denied.
Fourth, and finally, the court considers Plaintiffs Ross and Gerard’s Motion for
Rule 11 Sanctions Against Defendant Richards, filed December 30, 2016. Doc. 105.
Plaintiffs contend that Defendant Richards failed to comply with Rule 11 and its safe
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harbor provision when Defendant Richards filed his initial motion for sanctions.
Although the failure to comply with Rule 11 contributed to the denial of Defendant
Richards’s motions for sanctions, his arguments (including non-Rule 11 positions) were
not frivolous given the stage of the proceedings. Fed. R. Civ. P. 11(b)(2). Thus,
Plaintiffs’ motion is denied.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, and DECREED that:
(1) Defendant Robert Richards’s Objections to the Magistrate Judge’s Proposed
Findings and Recommended Disposition, filed January 19, 2017 (Doc. 125) are
overruled.
(2) The Proposed Findings and Recommended Disposition of the Magistrate
Judge, filed January 10, 2017 (Doc. 113) are adopted.
(3) Defendant Robert Richards’s Motion for Attorney Fees and Sanctions, filed
December 4, 2016 (Doc. 80), and Defendant Robert Richards’s Corrected Motion for
Attorney Fees and Sanctions December 6, 2016 (Doc. 86), may not be withdrawn and are
denied.
(4) Defendant Robert Richards’s Motion for Sanctions Pursuant to the Court’s
Inherent Powers, filed January 20, 2017 (Doc. 127) is denied.
(5) Plaintiffs Ross and Gerard’s Motion for Rule 11 Sanctions Against Defendant
Robert Richards, filed December 30, 2016 (Doc. 105) is denied.

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DATED this 20th day of March 2017, at Santa Fe, New Mexico.
_______________________
United States Circuit Judge
Sitting by Designation
Counsel:
Arash “Asher” Kashanian, Albuquerque, New Mexico, for Plaintiffs.
Robert Richards, Santa Fe, New Mexico, pro se.

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