Ross et al v. Balderas et al
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Stephan M. Vidmar to GRANT 155 Defendant William Pachecho's Motion for Attorney Fees and to GRANT 177 Defendants Antonio Gutierrez and Anna Montoya's Motion for Attorney Fees. Objections to PF&RD due by July 26, 2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. Fed. R. Civ. P. 6(d). (am)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANDREW ROSS and SUSAN GERARD,
No. 16-cv-1121 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, JOHN DOES 1–2,
MICHELLE PORTILLO, STEPHEN T. PACHECO,
JANE GAGNE, JOYCE BUSTOS, LYNN PICKARD,
PAMELA REYNOLDS, ROBIN MARTINEZ,
ROBERT RICHARDS, BRENDA WALL,
AUDREY MONTOYA, ALLSTATE INSURANCE, INC.,
A. ARROYO, and E. MONTIJO,
ANDREW ROSS and SUSAN GERARD,
All the claims and counterclaims have been dismissed. See [Docs. 8, 69, 76, 81, 91, 112, 121, 137, 144, 168, 169,
174, 188, 189]. All that remains are several motions for fees. See [Docs. 87, 126, 155, 158, 175, 177, 218, 219].
Plaintiff/Counter-defendant Gerard has passed away, and substitution of her estate was denied. [Doc. 232] at 2.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Plaintiffs and their attorney have made numerous factual allegations in the course of this
litigation that are simply beyond the pale. They have no evidence to support these fantastical
allegations, and their reasons for making them are non sequiturs. I find that by making these
unsupported allegations, Plaintiffs2 and their attorney, Arash Kashanian, have abused the judicial
process and should be sanctioned.
I recommend that the Court award Defendants
William Pacheco, Antonio Gutierrez, and Anna Montoya attorney fees in the total amount of
$12,529.05, pursuant to 43 U.S.C. § 1988, 28 U.S.C. § 1927, and the Court’s inherent authority,
plus interest pursuant to 28 U.S.C. § 1961, with half to be paid by Plaintiffs and half by
Mr. Kashanian personally.
It is hard to believe, but this all started as a simple dispute between Plaintiffs and their
landlord. An avalanche of litigation ensued: an eviction case3 in Santa Fe County Magistrate
Court and three separate appeals therefrom; three criminal complaints against Plaintiffs for
misdemeanor harassment of the landlord; seven civil lawsuits,4 and this federal action. Plaintiffs
have incurred adverse rulings at virtually every turn.
Gerard complained to the Judicial
Hereinafter, when I refer to Plaintiffs’ having made unsupported factual allegations, I include their attorney,
Mr. Kashanian. The fact that I include him bears mentioning here because one of the grounds for attorney fees,
§ 1927, requires findings as to the attorney specifically. My use of “Plaintiffs allege” rather than “Plaintiffs and
their attorney allege” is for convenience and brevity, not to remove Mr. Kashanian from the analysis.
One of Plaintiffs’ urgent grievances (and there are many) is that the case was not actually an eviction case. Rather,
it was stylized as a writ of restitution for non-payment of rent, which culminated in Gerard’s eviction. [Doc. 8]
at 11. Plaintiffs are convinced that it was improper to stylize the case as one for non-payment of rent and further
that so stylizing it was a purposeful end-run around the due process to which Gerard should have been entitled had
the case been properly stylized as one for eviction. Id. Herein, I refer to the case an “eviction case” (rather than a
nonpayment-of-rent-culminating-in-eviction case) purely for convenience.
Two of the suits were filed by the landlord for restraining orders against Plaintiffs, and five were filed by one of or
both Plaintiffs against the landlord; her attorney; Judge Sena, who ruled against them in the eviction case; their
neighbor whom they believe was spying on them; and others.
Standards Commission about Judge Sena, who ruled against her in the eviction case; the
Commission dismissed the complaint. [Doc. 8] at 20; [Doc. 8-1] at 31. Gerard or her attorney
filed at least four complaints against the landlord’s attorney with the Disciplinary Board; the
Board has taken no action on those complaints. [Doc. 8] at 42. Gerard made a claim against the
landlord’s homeowner’s insurance policy; the claim was denied. Id. at 20, 54. Gerard filed a
tort-claims notice alleging that the criminal charges brought against her and Plaintiff Ross were
wrongful; that claim was denied. Id. at 29; [Doc. 8-1] at 76. Gerard complained to the State
Attorney General about Judge Sena; the Attorney General’s office declined to investigate.
[Doc. 8] at 25; [Doc. 8-1] at 58.
Plaintiffs surmise that there can be but one explanation for this series of adverse
outcomes: There exists “a massive conspiracy . . . [which] involves almost the entirety of the
Santa Fe Judicial District Court [sic], the Santa Fe Magistrate Court, the Santa Fe Sheriff’s
Department, and at the helm of the Criminal Enterprise, the Attorney General for the State of
[Doc. 8] at 2.
They see “[t]his case [a]s parallel to the 1973 Watergate
scandal[.]” Id. at 35. And this criminal conspiracy, they are convinced, is collusion between the
“Lesbian Sisterhood” and “Nuestra Familia.”
Plaintiffs allege that their landlord had wanted to break the lease in order to get higher
rent from someone else. They contend that the landlord had no lawful way out of the lease, so
with the help of several judges, she had them unlawfully evicted. Plaintiffs allege that the
landlord and judges are all members of the “Lesbian Sisterhood,” whose purpose is “to ensure
that any lesbians [sic] rights are held above all others.” Id. at 37. Plaintiffs have alleged that the
Chief Judge of the First Judicial District Court and her life partner are, respectively, the “titular
head” and “chief advisor” of the “Lesbian Sisterhood,” and that the landlord is the
“Secretary-Treasurer.” Id. at 37. They assert that the Chief Judge and her partner “are in charge
of a massive legal slush fund . . . in the seven figures,” from which the landlord’s attorney has
been paid. Id. at 20, 36.
Plaintiffs assert that once they began to fight the eviction and accuse the judges of
colluding with the landlord and her attorney, another criminal organization got involved:
“Nuestra Familia.” Plaintiffs allege that the State Attorney General, Defendant Balderas, is the
“consigliere” of “Nuestra Familia” or “Cosa Nostra.” Id. at 37, 44. They allege that the Sheriff
of Santa Fe County, Defendant Garcia, “acts as the ‘spiritual head’ of the criminal ‘Nuestra
Familia.’” Id. at 47. They allege that a Captain in the Sheriff’s Office, Defendant Pacheco,5 is
Garcia’s “Jefe de Calle” and his “henchman.” Id. at 25. In fact, they assert that “the entire
county of Santa Fe is being run as a crime syndicate resembling the ‘Cosa Nostra’ as portrayed
in the Godfather films, the Goodfellas movie, and . . . the Sopranos HBO Series.” Id. at 37.
Plaintiffs allege that Balderas wanted to prevent them from exposing the “Lesbian
Sisterhood’s” corruption of the Santa Fe courts and to protect the landlord and the unlawful
eviction. To those ends, they allege, Balderas directed Sheriff Garcia “to use any non-violent
means necessary to silence [Plaintiffs,]” and identified Defendant Pacheco as a “pointman” for
the landlord and her attorney to utilize in their campaign against Plaintiffs. Id. at 12, 24, 49.
Plaintiffs allege that Balderas directed Sheriff Garcia, who directed Captain Pacheco, who in turn
directed two Sheriff’s Deputies, Defendants Anna Montoya and Antonio Gutierrez, to initiate the
criminal charges against Plaintiffs. Id. at 24–27. They further allege that Captain Pacheco and
My references to “Pachecho” are exclusively to Defendant Captain William Pacheco. I do not make any reference
to the other Defendant Pacheco (Stephen T. Pacheco, chief clerk of the First Judicial District Court) herein.
Deputies Montoya6 and Gutierrez took bribes from the landlord and her attorney. Id. at 50, 51,
67, 88. Finally, they allege that Pacheco was bribed by the landlord to thwart Plaintiffs’ effort to
serve their neighbor with a lawsuit for allegedly spying on them. Id. at 30–31, 67.
Plaintiffs filed their lawsuit in this Court on October 10, 2016. [Doc. 1]. They filed an
amended complaint on October 12, 2016. [Doc. 8]. They have sued dozens of the people they
allege are involved in the “Lesbian Sisterhood” and “Cosa Nostra,” including state court judges,
their clerks’ office staff members, law enforcement officers, attorneys from the Judicial
Standards Commission and the Disciplinary Board, the landlord, the landlord’s attorney, the
landlord’s homeowner’s insurance company, Plaintiffs’ former neighbor, and others. Plaintiffs
have asserted RICO claims, violations of their civil rights under 28 U.S.C. § 1983, and they
asked for injunctive relief and a declaratory judgment. [Doc. 8]. They asked this Court to refer
the matter to the United States Attorney for criminal prosecution. They further asked this Court
to intervene in the state court cases, including their criminal prosecutions, to reverse certain
unfavorable rulings. Id. Finally, Plaintiffs demanded $1.776 billion in damages. Id. at 87.
Antonio Gutierrez, and Sheriff Garcia) had not answered the Amended Complaint by
November 8, 2016, Plaintiffs moved for default judgments against them in the amount of
$10 million each. [Docs. 37, 38, 40]. However, Plaintiffs had not requested entry of default by
the Court Clerk as required by Fed. R. Civ. P. 55(a). The Honorable Paul J. Kelly, Jr., United
States Circuit Judge, who is presiding in this case, denied the motions for default judgment on
My references to “Montoya” are exclusively to Defendant Deputy Anna Montoya. I make no reference to the
other Montoya defendant (Audrey Montoya, Plaintiffs’ former neighbor) herein.
November 29, 2016. [Doc. 68]. He did so for several reasons: Plaintiffs had not secured an
entry of default; the Sheriff’s Office Defendants had answered on November 15, 2016; Plaintiffs
had identified no prejudice in the seven-day delay; and because of the Court’s preference to
decide cases on the merits. Id.
Pacheco moved for summary judgment on January 11, 2017. [Doc. 118]. When briefing
was complete, [Docs. 128, 132, 133], Judge Kelly granted the motion on February 15, 2017,
Gutierrez and Montoya moved for summary judgment on January 11, 2017.
[Doc. 142]. When briefing was complete, [Docs. 152, 156], Judge Kelly granted the motion on
March 16, 2017, [Doc. 144]. Final judgment was entered on April 18, 2017. [Doc. 190].
Plaintiffs appealed, [Doc. 197], but the appeal was dismissed for lack of prosecution on June 13,
2017, [Doc. 229].
Pacheco (in his own motion) and Gutierrez and Montoya (in their joint motion) move for
sanctions against Plaintiffs and their counsel pursuant to 43 U.S.C. § 1988, 28 U.S.C. § 1927,
and the Court’s inherent authority. [Docs. 155, 177]. Pacheco, Gutierrez, and Montoya argue
that they should be awarded their attorney fees because the entire course of this litigation has
been “entirely unfounded—factually and legally.” [Doc. 155] at 1; [Doc. 177] at 1. They argue
that Plaintiffs’ counsel, Mr. Kashanian, unreasonably and vexatiously multiplied the proceedings
by continuing to prosecute the claims when he knew or should have known that that the lawsuit
was completely frivolous. [Doc. 155] at 1; [Doc. 177] at 1. Judge Kelly referred the motions to
me for proposed findings and a recommended disposition. [Doc. 191]. The motions are fully
briefed. [Docs. 165, 170, 185, 201, 220]. No hearing is necessary because the motions can be
decided on the briefing. Having considered the relevant portions of the record, the briefing, and
the relevant law, I recommend that the motions be granted.
Standard for Awarding Fees under § 1988
“A prevailing defendant may recover an attorney’s fee only where the suit was vexatious,
frivolous, or brought to harass or embarrass the defendant.” Hensley v. Eckerhart, 461 U.S. 424,
429 n.2 (1983). “A complaint is frivolous where it lacks an arguable basis either in law or in
fact.” Blakely v. USAA Cas. Ins. Co., 633 F.3d 944, 949–50 (10th Cir. 2011) (alterations and
internal quotation marks omitted).
Standard for Awarding Fees under § 1927
“Any attorney . . . 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.” § 1927. Fees are appropriate
“where an attorney acts recklessly or with indifference to the law[;] is cavalier or bent on
misleading the court; intentionally acts without a plausible basis; or when the entire course of the
proceedings was unwarranted.” Steinert v. Winn Group, Inc., 440 F.3d 1214, 1221 (10th Cir.
2006) (internal brackets omitted) (quoting Dominion Video Satellite, Inc. v. Echostar Satellite
L.L.C., 430 F.3d 1268, 1278 (10th Cir. 2005)). Sanctions under § 1927 do not require a finding
of bad faith, but an attorney’s subjective good faith cannot save him from sanctions either.
Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987). “Although subjective good faith on
the part of a [pro se party] may in some instances excuse otherwise unreasonable conduct,
[courts] are entitled to demand that an attorney exhibit some judgment.
objectively unreasonable conduct by an attorney would be to state that one who acts with
‘an empty head and a pure heart’ is not responsible for the consequences.” Braley v.
Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (en banc) (emphasis added). “So any conduct
that, ‘viewed objectively, manifests either intentional or reckless disregard of the attorney’s
duties to the court,’ is sanctionable.” Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1202
(10th Cir. 2008) (quoting Braley, 832 F.2d at 1512).
[The Tenth Circuit has] repeatedly expressed [its] concern
with the unnecessary burdens, both on the courts and on those who
petition them for justice, that result from unreasonable,
irresponsible and vexatious conduct of attorneys as well as parties.
The power to assess costs, expenses, and attorney’s fees against an
attorney personally in the appropriate case is an essential tool to
protect both litigants and the ability of the federal courts to decide
cases expeditiously and fairly.
Braley, 832 F.2d at 1512 (internal citation omitted). Section “1927 permits a court to insist that
the attorney bear the costs of his own lack of care.” Braley, 832 F.2d at 1512.
The Court must ensure that § 1927 not be used in a fashion that would “dampen the
legitimate zeal of an attorney in representing his client.” Braley, 832 F.2d at 1512. Therefore,
“the power to assess costs against an attorney under § 1927 . . . is a power which must be strictly
construed and utilized only in instances evidencing a serious and standard disregard for the
orderly process of justice.” Id. (citations and quotations omitted).
Standard for Awarding Fees under the Court’s Inherent Authority
“It has long been understood that certain implied powers must necessarily result to our
Courts of justice from the nature of their institution, powers which cannot be dispensed with in a
Court, because they are necessary to the exercise of all others.” Chambers v. NASCO, Inc., 501
U.S. 32, 43 (1991) (internal quotation marks omitted). “Among these indefeasible powers is a
court’s ‘ability to fashion an appropriate sanction for conduct which abuses the judicial
process.’” Farmer v. Banco Popular of N. Amer., 791 F.3d 1246, 1255 (10th Cir. 2015) (quoting
Chambers, 501 U.S. at 44–45).
“[T]he inherent power of a court can be invoked even if
procedural rules exist which sanction the same conduct.” Id. at 49.
A court has inherent power to impose sanctions in order to “protect the integrity of its
proceedings.” Chambers, 501 U.S. at 58 (Scalia, J., dissenting)). Similarly, a court has inherent
power to impose “a sanction for abuse of the judicial process, or, in other words, for bad faith
conduct in litigation.” Farmer v. Banco Popular of N. Am., 791 F.3d 1246, 1256 (10th Cir.
2015) (internal quotation marks omitted). The Supreme Court has described the “narrowly
defined circumstances [in which] federal courts have inherent power to assess attorney’s fees
against counsel” as involving actions taken “in bad faith, vexatiously, wantonly, or for
oppressive reasons.”7 Chambers, 501 U.S. at 45–46 (internal quotation marks omitted).
The purposes of imposing sanctions include “ensur[ing] that . . . abuses [of the judicial
system are] not repeated[,] vindicat[ing] [the Court] itself[,] and compensat[ing the other side].”
Id. at 56–57.
“Because of their very potency, inherent powers must be exercised with restraint and
discretion.” Id. at 44. Advance notice that the court is considering sanctions and an opportunity
to respond in opposition is, of course, required. Resolution Trust Corp. v. Dabney, 73 F.3d 262,
268 (10th Cir. 1995). Such “opportunity to be heard does not require an oral or evidentiary
hearing on the issue; the opportunity to fully brief the issue is sufficient to satisfy due process
requirements.” Id.; Sun River Energy, Inc. v. Nelson, 800 F.3d 1219, 1230 (10th Cir. 2015).
Vexatious conduct is conduct “without reasonable or probable cause or excuse[.]” vexatious, Black’s Law
Dictionary (8th ed. 2004). A vexatious suit is “[a] lawsuit instituted maliciously and without good cause.” Id.
Wanton is defined as “[u]nreasonably or maliciously risking harm while being utterly indifferent to the
I find that Defendants Pacheco, Gutierrez, and Montoya are prevailing parties under
§1988. I further find that this lawsuit was frivolous and vexatious. The claims against them lack
any arguable basis in fact. They are entitled to attorney fees under § 1988.
Furthermore, Mr. Kashanian’s assertion and prosecution of such claims was vexatious
and wanton. His conduct throughout this litigation has unreasonably multiplied the proceedings.
Mr. Kashanian has failed to exercise a minimally acceptable level of judgment. His conduct,
viewed objectively, manifests a reckless, if not intentional, disregard for his duties to the Court.
Pursuant to § 1927, Mr. Kashanian should be required to “bear the costs of his own lack of care.”
Braley, 832 F.2d at 1512.
Lastly, Plaintiffs’ and Mr. Kashanian’s conduct during this litigation constitutes an abuse
of the judicial process. Therefore, independent of either § 1988 or § 1927, I find that the Court
should award attorney fees to Defendants Pacheco, Gutierrez, and Montoya against Plaintiffs and
Mr. Kashanian, personally, pursuant to its own inherent authority.
I focus my findings herein on the preposterous and unsupported “factual” allegations
asserted and maintained by Plaintiffs. For example, Plaintiffs alleged (and continue to maintain)
that Defendant Pacheco is a “Jefe de Calle” in “the criminal ‘Nuestra Familia’ that operates in
Santa Fe,” [Doc. 8] at 25, 47, and that Defendants Gutierrez and Montoya initiated criminal
charges against Plaintiffs on Pacheco’s order, in furtherance of the “Criminal Enterprise.” E.g.,
id. at 25.
Let me be clear. I am not recommending that Plaintiffs and Mr. Kashanian be sanctioned
because they make controversial allegations (e.g., that Pacheco, Gutierrez, and Montoya are part
of “Nuestra Familia”). I am recommending that they be sanctioned because they make such
allegations (and many others just as preposterous) without any shred of factual support.
Plaintiffs attempt to explain why their allegations were not frivolous because, as they see
it, the allegations were supported. [Doc. 165] at 2, 3 (incorporating by reference the arguments
made in [Doc. 138] at 4–6). They maintain that “the circumstantial evidence” amounts to
sufficient support. [Doc. 138] at 4. Specifically, they doggedly characterize the deputies’ calling
them on five occasions and ordering them to stop contacting the landlord as “rampant and brazen
extortion.” Id. at 4; see [Doc. 220] at 7. They insist that the deputies “had absolutely no basis to
silence Plaintiffs [i.e., to tell Plaintiffs to stop contacting the landlord], and had no reason to
repeatedly make efforts to silence them as if they were on a vendetta.” [Doc. 138] at 5; see
[Doc. 220] at 7.
Based on the deputies’ orders and the subsequent criminal charges for
harassment of the landlord, they make the following conclusion:
[W]hat do you call an organization’s behavior that freely extorts
and silences individuals with no legitimate authority to permit such
behavior such as what [the deputies] did to the Plaintiffs? It is in
fact mafia-like behavior. And what do you call the leader of such
an organization who allows for such behavior, despite being made
aware of it multiple times? It is fair to say that this individual
could be called the “spiritual head” of such an organization
behaving in a mafia-like way. And that is exactly what the
Amended Complaint in the instant matter alleges. The Amended
Complaint never stated that Garcia was running an actual criminal
organization; only that his department was acting like a criminal
organization in this particular context.
[Doc. 138] at 6.
First, Plaintiffs’ statement that they never alleged an actual criminal organization is
spurious. E.g., [Doc. 8] at 25 (“Garcia retaliated by directing William Pacheco, Garcia’s ‘Jefe de
Calle[,’] to silence [Plaintiffs] in furtherance of the Criminal Enterprise.”).
Second, and more to the point here, the problem with these allegations is that Plaintiffs
look at these events (i.e., the deputies’ orders to stop contacting the landlord and the criminal
charges for harassment of the landlord) and leap to the literally incredible conclusion that
Pacheco, Gutierrez, and Montoya are involved in “Nuestra Familia,” and that the criminal
charges were part of a vast criminal conspiracy to cover up the allegedly wrongful nature of their
eviction. This logical leap—and others like it8—causes serious concerns because it moves
beyond the bounds of reasonableness or even plausibility.
It is paranoid, bordering on
These allegations are but a few of many that demonstrate the objectively
unreasonable, vexatious, and wanton nature of facts alleged in the Amended Complaint and the
entire course of Plaintiffs’—and their counsel’s—conduct before this Court.
Since filing the Amended Complaint, Plaintiffs have not backed away from the allegation
that criminal charges were brought against them because Pacheco, Gutierrez, and Montoya were
Here are several more examples. It is important to appreciate that this is not a complete list. These are merely a
few examples. First, Plaintiffs characterize the Disciplinary Board’s action on a complaint against Plaintiffs’
counsel as a “clear [message] that [the Board] was out for blood as part of an inquisition against Plaintiffs’ counsel.”
[Doc. 102] at 21. Second, when Plaintiffs sued their former neighbor (for allegedly spying on them at the behest of
the landlord), the neighbor’s attorney ended up reporting Plaintiffs’ counsel to the Disciplinary Board. The
complaining attorney was an associate attorney at a Santa Fe law firm. The associate attorney’s complaint was
submitted via email, and he carbon copied one of the partners at the firm. Plaintiffs argue that the partner would not
have had “any interest whatsoever in a bar complaint filed by one of [his] associates. That is, unless [the partner]
was directing the matter to punish Plaintiffs’ counsel for having the audacity to attack the Santa Fe power structure.”
Id. at 17–18. Third, Plaintiffs demand $1.776 billion in damages, with which they see no problem because the
number “was merely symbolic[.]” [Doc. 102] at 13. Fourth, Plaintiffs allege that Balderas offered “protection” to
the “Criminal Enterprise.” [Doc. 8] at 16. Fifth, they allege that Defendant Montano (a Lieutenant with the Santa
Fe Police Department) was Balderas’s “Jefe de Calle.” Id. at 18. Sixth, they allege that Balderas was also
orchestrating the adverse rulings in at least one civil case. Id. at 29–30, 33. Seventh, they allege that Balderas
“connected” the landlord and her attorney with certain Sheriff’s deputies. Id. at 49. Eighth, they allege that
Balderas “protect[s] the corrupt institution” that is the Santa Fe Magistrate Court, which issued the original eviction
order against Plaintiffs. Id. at 44. Ninth, they allege that Balderas “sought and received silence” from the Judicial
Standards Commission in response to Plaintiffs’ complaint about Judge Sena. Id. at 45. Tenth, they allege that in
August of 2016, Plaintiff Gerard observed Pacheco talking to the landlord. Thereafter, Mr. Kashanian called
Pacheco and confronted him, at which point Pacheco hung up the phone. Plaintiffs and Mr. Kashanian argue that
these two events support their wild conspiracy allegations. [Doc. 220] at 4–6. Eleventh, Plaintiffs and
Mr. Kashanian blame the Sheriff’s Office for the apparent suicide of Plaintiff Gerard in March of 2017. Id. at 4;
involved in “Nuestra Familia” and, thus, wanted to “silence” Plaintiffs and preserve the
allegedly unlawful eviction. See, e.g., [Doc. 220] at 3–4 (as to Pacheco), 6–7 (as to Gutierrez
and Montoya). I am not moved by Mr. Kashanian’s eleventh hour qualification that “[t]he
Amended Complaint never stated that Garcia was running an actual criminal organization; only
that his department was acting like a criminal organization[.]” [Doc. 138] at 6 (emphases in
original). This trivial and disingenuous distinction misses the boat. Plaintiffs and Mr. Kashanian
persist in arguing that their “massive conspiracy” theory “is what Plaintiffs had [come up with]
to explain the circumstantial evidence that was before them.” Id. at 4. The fact that they
continue to argue that the eviction and the series of adverse outcomes constitute “circumstantial
evidence” to support the absurd allegations of Pacheco, Gutierrez, and Montoya’s role in a
“Criminal Enterprise” evidences Plaintiffs’ and Mr. Kashanian’s lack of basic discernment. See
Andrus v. Gas Co., 1990-NMCA-049, ¶ 14, 110 N.M. 593 (“[The use of circumstantial evidence
is] limited by is limited by the rule that inferences drawn must be reasonable. . . . A reasonable
inference cannot be based on supposition or conjecture.”).
I could go on, but the need for sanctions is obvious. I decline to indulge Plaintiffs’ and
Mr. Kashanian’s fantasies any further. In a sincere effort to deter further misuse of the judicial
process by Plaintiffs and Mr. Kashanian, to deter them from making further vexatious, reckless,
and wanton allegations, and to compensate Defendant Garcia for his counsel’s time, I will
recommend that attorney fees be awarded.
Lodestar Amount of Fees
In general, “[t]o determine the reasonableness of a fee request, a court must begin by
calculating the so-called ‘lodestar amount’ of a fee, and a claimant is entitled to the presumption
that this lodestar amount reflects a ‘reasonable’ fee.” Robinson v. City of Edmond, 160 F.3d
1275, 1281 (10th Cir. 1998). The lodestar is “‘the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate,’ which produces a presumptively reasonable fee
that may in rare circumstances be adjusted to account for the presence of special circumstances.”
Anchondo v. Anderson, Crenshaw & Assoc., LLC, 616 F.3d 1098, 1102 (10th Cir. 2010)
(quoting Hensley, 461 U.S. at 433 (1983), and Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,
543–44 (2010)). “The party requesting attorney fees bears the burden of proving” the two
components used to calculate the fee award: (i) “the amount of hours spent on the case;” and
(ii) “the appropriate hourly rates.” United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d
1219, 1233 (10th Cir. 2000). Once the Court makes these two determinations, the fee “claimant
is entitled to the presumption that this lodestar amount reflects a ‘reasonable’ fee.” Robinson,
160 F.3d at 1281; see Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). The party
entitled to fees must provide the district court with sufficient information to evaluate prevailing
market rates. See Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006)).
I have reviewed defense counsel’s affidavit and time records.
Mr. Dickman requests an award of $12,059.05 for 66.1 hours of work performed on behalf of
Defendants Pacheco, Gutierrez, and Montoya between January 5, 2017, and April 19, 2017, at an
hourly rate of $175, plus gross receipts taxes.9 [Doc. 201] at 7; [Doc. 201-1] at 3.
Mr. Dickman is careful to explain that he is not seeking any fees that he sought on behalf of Defendant Garcia. If
he requested fees in Garcia’s motion, he is not requesting those same fees here. E.g., [Doc. 201] at 1.
Plaintiffs make no specific challenge to the amount of fees requested. Instead, Plaintiffs
generally complain that the amount requested is too high.10 [Doc. 220] at 12. I disagree. I find
that all of the work reflected in the time sheet was reasonable and necessary to the defense of
Pacheco, Gutierrez, and Montoya. See [Doc. 201-1]. Additionally, Plaintiffs do not object to
Mr. Dickman’s requested $175 hourly rate, and I find that such rate is reasonable. Lastly, under
28 U.S.C. § 1961, Pacheco, Gutierrez, and Montoya are entitled to interest on the award,
Transpower Constructors, Div. of Harrison Int’l Corp. v. Grand River Dam Auth., 905 F.2d
1413, 1423–24 (10th Cir. 1990) (applying § 1961 to awards of attorney fees), which begins to
accrue on the date that the Court quantifies the amount of the award, Midamerica Fed. Sav. &
Loan Ass’n v. Shearson/Amer. Express, Inc., 962 F.2d 1470, 1476 (10th Cir. 1992).
Plaintiffs’ fantastical claims are vexatious, wanton, and constitute an abuse of the judicial
process. Mr. Kashanian’s conduct throughout this litigation has unreasonably multiplied the
proceedings. He has failed to exercise a minimally acceptable level of professional judgment,
and his conduct, viewed objectively, manifests a reckless, if not intentional, disregard for his
duties to the Court. He and his clients should be sanctioned
IT IS THEREFORE RESPECTFULLY RECOMMENDED that Defendant
Pacheco’s Application for Award of Attorney’s Fees [Doc. 155] be GRANTED, that Defendant
Gutierrez’s and Defendant Montoya’s Application for Award of Attorney Fees [Doc. 177] be
GRANTED, and that Defendants William Pacheco, Antonio Gutierrez, and Anna Montoya be
The only specific challenge Plaintiffs make relates to the fees for responding to the motions for default judgment.
[Doc. 220] at 12. However, Defendants do not request those fees. [Doc. 201-1] (time sheets for requested fees,
which do not include any entries for responding to the motions for default judgment).
awarded attorney fees in the total amount of $12,529.05, pursuant to 43 U.S.C. § 1988, 28 U.S.C.
§ 1927, and the Court’s inherent authority, plus interest pursuant to 28 U.S.C. § 1961, with half
to be paid by Plaintiffs and half by Mr. Kashanian personally.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN FOURTEEN DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file
any written objections with the Clerk of the District Court within the 14-day period if that party
wants to have appellate review of the proposed findings and recommended disposition. See
D.N.M.LR-Civ. 10.1. If no objections are filed, no appellate review will be allowed.
STEPHAN M. VIDMAR
United States Magistrate Judge
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