Ross et al v. Balderas et al
ORDER by Circuit Judge Paul Kelly, Jr. adopting [234, 235, 236] the proposed findings and recommended disposition of the magistrate judge regarding attorney's fees for Defendants Hector Balderas, Robert Garcia, William Pacheco, Antonio Gutierrez , and Anna Montoya and adopting in part 238 the proposed findings and recommended disposition of the magistrate judge regarding attorney's fees for Defendant Robert Richards; overruling objections 241 246 by or on behalf of Plaintiff Andre w Ross and 247 248 those of his counsel; overruling in part 242 objections by Defendant Richards; granting 87 205 Defendant Balderas's Motion for Attorney's Fees; granting in part and denying in part 126 Defendant Garcia's Mo tion for Attorney's Fees; granting 155 201 Defendant Pacheco's Motion for Attorney Fees; granting 177 201 Defendant Gutierrez and Montoya's Motion for Attorney's Fees; denying 175 206 Defendant Richards's Motion for Attorney Fees; denying 193 195 Defendant Richards's Amended Motion to tax costs; denying 218 Plaintiff Ross's Motion for Leave to File Sur Reply as moot; denying 219 Plaintiff Ross's Motion for Sanctions. (rt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANDREW ROSS and SUSAN GERARD,
No. 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
-------------------------PAMELA REYNOLDS and ROBERT
ANDREW ROSS and SUSAN GERARD,
ORDER ON VARIOUS MOTIONS FOR ATTORNEY’S FEES AND SANCTIONS
THIS MATTER comes on for consideration of various pending motions filed by
Defendants Hector Balderas (Docs. 87 & 205), Robert Garcia (Doc. 126), William
Pacheco (Docs. 155 & 201), Antonio Gutierrez and Anna Montoya (Docs. 177 & 201),
Robert Richards (Docs. 175 & 206), and Plaintiff Andrew Ross (Doc. 219) regarding
attorney’s fees or sanctions. Upon consideration thereof, Defendants Balderas’s,
Pacheco’s, as well as Gutierrez and Montoya’s motions are well taken and should be
granted. Defendant Garcia’s motion is well taken in part and thus should be granted in
part and denied in part. Defendant Richards and Plaintiff Ross’s motions, however, are
not well taken and should be denied. The court also will deny Plaintiff Ross’s motion for
leave to file a sur-reply to Mr. Richards’s amended affidavit of costs. Doc. 218.
Plaintiffs Andrew Ross and Susan Gerard’s claims arise from a landlord-tenant
dispute in state court, where Plaintiffs incurred a series of adverse rulings. Thereafter,
Plaintiffs, through their attorney, Arash Kashanian, brought suit in federal court, filing an
89-page complaint with over 452 paragraphs. The complaint asserted claims against 30
defendants under 18 U.S.C. § 1964(c) and 42 U.S.C. § 1983, as well as sought injunctive
and declaratory relief. Defendants included ten active state court judges; a retired statecourt judge; the New Mexico Attorney General; several members of the Santa Fe County
Sheriff’s Department and the Santa Fe Police Department; the chief clerks of the Santa Fe
County Magistrate Court and First Judicial District Court; members of the New Mexico
Judicial Standards Commission and the Disciplinary Board; the claims manager for the
New Mexico Association of Counties; Plaintiffs’ former neighbor; Plaintiffs’ former
landlord; the landlord’s attorney, Robert Richards, and his paralegal; and Allstate
The complaint described three conspiracies, one characterized as a “Lesbian
Sisterhood,” another likened to the “Cosa Nostra,”1 and a third referred to as the
“Criminal Enterprise.” Filled with ad hominem attacks, the complaint alleged that the
“Lesbian Sisterhood” consists of lesbian judges who conspired together to cover up
judicial misconduct and “to ensure that any lesbian[’]s rights are held above all others.”
Doc. 8, ¶ 146. As for the “Cosa Nostra,” according to the complaint, “the entire county
of Santa Fe is being run as a crime syndicate,” id. ¶ 153, “whose acting consigliere is
[Attorney General] Balderas,” id. ¶ 151. The complaint further alleged that the “Lesbian
Sisterhood” and the “Cosa Nostra” acted in concert with the “Criminal Enterprise,” led by
Defendant Richards, to obstruct justice and deprive Plaintiffs of their rights in myriad
“Cosa Nostra,” or “Our Thing,” is a reference to the Mafia. Indeed, Plaintiffs further
likened this alleged conspiracy to the depictions of the Mafia “in the Godfather films, the
Goodfellas movie, and[,] more recently, the Sopranos HBO Series.” Doc. 8, ¶ 153. They
alleged it is known as “Nuestra Familia” in New Mexico. Id. ¶ 151.
ways. Plaintiff sought compensatory damages in the amount of $1.776 billion, in addition
to costs and attorney’s fees. Id. at 87, 89 (prayer for relief).
Plaintiffs’ complaint, though lengthy to a fault, see Fed. R. Civ. P. 8(a), and
steeped in a conspiratorial view of life, is notably silent as to a factual basis for these
claims, let alone a legal basis. And that silence has persisted notwithstanding the many
defense motions that have pointed out these defects. Not surprisingly, many of the
defendants filed motions to dismiss in lieu of answers, and Plaintiffs voluntarily
dismissed many defendants from the litigation. The remaining defendants prevailed on
motions for summary judgment or motions to dismiss.
As the substantive motions regarding the claims have all been disposed of, this
court turns to the parties’ disputes regarding the awards of attorney’s fees. The court
previously awarded attorney’s fees to the City Defendants (Montano, Arroyo, and
Montijo) upon proposed findings and a recommended disposition of the magistrate judge.
Doc. 249. The court now considers the objections to the magistrate judge’s proposed
findings and recommendations concerning the remaining attorney’s fees motions.
This court referred the issue of attorney’s fees to the magistrate judge upon formal
motions by various defendants. Doc. 191. The magistrate judge recommended that the
motions filed by Defendants Balderas, Garcia, Pacheco, Gutierrez, and Montoya be
granted or granted in part, but that Defendant Richards’s motions be denied. Docs. 234,
235, 236, 238. Upon timely objections to the magistrate’s recommendations, this court
reviews the matters underlying those objections de novo. 28 U.S.C. § 636(b)(1); Ocelot
Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir. 1988); see also Fed. R. Civ.
P. 54(d)(2)(D), 72(b)(3).
Plaintiff Ross’s and Mr. Kashanian’s Objections
In awarding fees against Plaintiff Ross, the magistrate judge focused his findings
on the lack of factual support for the allegations made by Plaintiffs Ross and Gerard,
concluding that the assertion and maintenance of the allegations was vexatious, wonton,
and an abuse of the judicial process. Plaintiff Ross filed pro se objections on July 19,
2017 (Doc. 241), and his attorney of record, Arash Kashanian, filed an objection on
Plaintiff Ross’s behalf on July 26, 2017 (Doc. 246).2 Plaintiff Ross objects to all
attorney’s fees against him personally. He repeats his claim that Defendant Balderas
engaged in conduct that violated his constitutional rights and those of his late-wife,
Plaintiff Gerard. Mr. Kashanian requests that the court rely upon Plaintiff Ross’s pro se
objections, or that Mr. Kashanian’s objection suffice as a blanket objection that will
preserve any issues. Doc. 246.
To properly object, however, objections must be specific and address the substance
of the magistrate judge’s recommended findings and proposed disposition. United States
v. One Parcel of Real Prop., with Bldgs., Appurtenances, Improvements, and Contents,
Mr. Kashanian has filed a motion to withdraw as attorney for Plaintiff Ross. Doc. 231.
That motion is under advisement. Under the circumstances, this court will consider the
objections made by Plaintiff Ross pro se as well as those made on his behalf by counsel.
Known As: 2121 E. 30th St., Tulsa, Okla., 73 F.3d 1057, 1061 (10th Cir. 1996). Plaintiff
Ross’s pro se objections are that Defendant Balderas has engaged in a pattern of violating
his and Gerard’s constitutional rights, and that through counsel Defendant Balderas has
been malicious in his opposition to Plaintiffs’ motions. Doc. 241. This simply does not
address the magistrate judge’s conclusion that the various Defendants are “prevailing
parties” who are entitled to attorney’s fees under 42 U.S.C. § 1988 and this court’s
inherent authority, because Plaintiffs’ suit is frivolous, lacking an arguable basis in law or
fact, see Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983); Blakely v. USAA Cas. Ins.
Co., 633 F.3d 944, 949–50 (10th Cir. 2011), as well as vexatious and wanton, see
Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991).
To the extent Plaintiff Ross raises other objections to the magistrate judge’s
recommendations, they are not specific enough to warrant review and are therefore
waived. Alternatively, they are also without merit. Plaintiff Ross fares no better with the
“blanket objection” advanced by his attorney on his behalf; it suffices to say that a
blanket objection is not sufficiently specific to focus review.
Mr. Kashanian also filed objections to the imposition of fees against him in his
capacity as Plaintiffs’ counsel of record, disputing the magistrate judge’s
recommendation that Defendants Balderas, Garcia, Pacheco, Gutierrez, and Montoya be
awarded attorney’s fees. Docs. 247–48.3 He argues that he did not violate 28 U.S.C.
This court elects to consider one of Mr. Kashanian’s filings (Doc. 248) notwithstanding
that it was filed approximately one minute past the objections deadline.
§ 1927, because filing a complaint and attempting to amend it did not multiply the
proceedings. He maintains that this is especially true as to Defendant Balderas, because
Mr. Kashanian did not oppose his motion to dismiss. Mr. Kashanian further contends that
his defense of his client to avoid attorney’s fees under 43 U.S.C. § 1988 cannot constitute
multiplying the proceedings and thus serve as a basis for sanctions against Mr. Kashanian
under 28 U.S.C. § 1927, because holding otherwise would create a conflict of interest.
He also maintains that there is no causal connection between his conduct and any alleged
multiplication of the proceedings, because Defendants’ actions (e.g., filing motions to
dismiss or for summary judgment) would have occurred regardless of any conduct on Mr.
Kashanian’s part. Additionally, Mr. Kashanian argues that this court does not have the
inherent authority to impose sanctions against an attorney personally for commencing
proceedings, even if the complaint is meritless. He further objects to the magistrate
judge’s characterization of what occurred, and questions why he should bear half of the
fees incurred absent a finding that the costs and fees were caused by sanctionable conduct
on the part of Mr. Kashanian.4
According to 28 U.S.C. § 1927, an 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
The court questions whether Mr. Kashanian has waived some of his objections for
failing to raise them in his responses to the motions for fees. It is axiomatic that “[i]ssues
raised for the first time in objections to the magistrate judge’s recommendation are
deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).
conduct.” Fees are appropriate “when 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 proceeding was unwarranted.” Steinert
v. Winn Grp., Inc., 440 F.3d 1214, 1221 (10th Cir. 2006) (second alteration in original)
(quoting Dominion Video Satellite, Inc. v. Echostar Satellite L.L.C., 430 F.3d 1269, 1278
(10th Cir. 2005)). Merely initiating proceedings by filing a complaint, however, does not
constitute multiplying the proceedings. Id. at 1225. Additional action must be taken for
§ 1927 to apply, such as attempting to preserve and advance claims beyond the complaint
by opposing motions to dismiss, expanding the scope of the claims by amending the
complaint, and the like. See id. at 1225–26. Further, care must be taken to avoid
construing § 1927 in a manner that “dampen[s] the legitimate zeal of an attorney in
representing his client.” Baca v. Berry, 806 F.3d 1262, 1278 (10th Cir. 2015) (quoting
Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987)).
Notwithstanding the applicability of § 1927, federal courts also have the inherent
authority to award attorney’s fees as sanctions. Chambers, 501 U.S. at 44–45; Farmer v.
Banco Popular of N. Am., 791 F.3d 1246, 1255 (10th Cir. 2015). Indeed, courts can
impose attorney-fee sanctions for bad-faith conduct in the litigation or abuse in the
judicial process. Farmer, 791 F.3d at 1255–56. Although a causal link between the
misconduct and fees is required, Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178,
1186–87 (2017), in rare cases a court can shift all of a party’s fees, id. 1187. For
example, “[i]f a plaintiff initiates a case in complete bad faith, so that every cost of
defense is attributable only to sanctioned behavior, the court may . . . make a blanket
award.” Id. at 1188.
Mr. Kashanian’s objections to the imposition of attorney’s fees against him
personally under both § 1927 and this court’s inherent power are overruled.5 This court
agrees with the magistrate judge that Mr. Kashanian unreasonably multiplied the
proceedings after filing the complaint. For example, when Defendant Garcia moved for
summary judgment contesting the allegations contained in the complaint and providing
proof to the contrary, Plaintiffs completely failed to respond (as required by federal and
local rule) with a concise statement of material facts that were in dispute. Doc. 103; see
also Doc. 126 at 6, ¶¶ 12–14. Accordingly, all material facts urged by Defendant Garcia
were deemed admitted. Doc. 121 at 2. This pattern was repeated in Mr. Kashanian’s
responses to other motions for summary judgment based on qualified immunity (Docs.
132 & 152) with the same result. Docs. 144 at 3, 168 at 2–3. Thus, Mr. Kashanian
continued to prosecute his claims with no factual support for the overwhelming majority
of the allegations contained in the amended complaint — an issue that did not appear to
be lost on Mr. Kashanian, as evidenced by his repeated assertions of Plaintiffs’ intent to
amend the complaint (e.g., Doc. 74, ¶ 10; Doc. 100 at 5). To be sure, Mr. Kashanian
The magistrate judge also recommended that attorney’s fees be awarded in this case
pursuant to 43 U.S.C. § 1988, which allows a prevailing defendant to recover attorney’s
fees “only where the suit was vexatious, frivolous, or brought to harass or embarrass the
defendant.” Hensley, 461 U.S. at 429 n.2. Of course, § 1988 is unavailable against
attorneys. Steinert, 440 F.3d at 1222. Accordingly, the court need only address whether
the imposition of attorney’s fees against Mr. Kashanian personally is warranted under 28
U.S.C. § 1927 and this court’s inherent power.
attempted early termination of the proceedings, but on terms unacceptable to certain
Mr. Kashanian also challenges the award of attorney’s fees to Defendant Balderas
under § 1927 because he only filed the complaint and did not oppose Defendant
Balderas’s motion to dismiss. If that was all there was to it, he might have a point. See
Steinert, 440 F.3d at 1225. But Mr. Kashanian filed a motion to reconsider dismissal of
Defendant Balderas, incorrectly asserting that this court miscalculated the deadline for his
response to Defendant Balderas’s motion to dismiss and alternatively requesting the
opportunity to be heard (Doc. 70) — something very different from acquiescing to a
dismissal. As the court noted, Mr. Kashanian’s timeliness argument was contradicted by
the historical facts. Doc. 112 at 2. Mr. Kashanian then filed an untimely response to
Defendant Balderas’s motion, conceding dismissal of Balderas as a defendant but
opposing his arguments that the Plaintiffs’ constitutional challenges to two New Mexico
statutes should be dismissed. Doc. 74 at 5, ¶ 9. Defendant Balderas reasonably felt
compelled to respond to both filings (Doc. 89) and this court found Mr. Kashanian’s
arguments to be without merit (Doc. 112). Because this court finds that Mr. Kashanian
unreasonably multiplied the proceedings against Defendant Balderas as well, an award of
attorney’s fees is proper under § 1927.
It bears noting that Mr. Kashanian takes particular issue with the magistrate
judge’s reliance on his brief filed in opposition to Defendant Balderas’s motion for
attorney’s fees, arguing that “[t]o defend [his] client from [§] 1988 attorney’s fees, [he]
had to argue that there was a basis to file the matter.” Doc. 247 at 13. To hold that this is
grounds for sanctions under § 1927, he argues, would create a conflict of interest. See id.
Of course, Mr. Kashanian has a duty to advocate for his clients. But that duty does not
encompass a requirement to initiate and press every claim suggested by clients, no matter
how unhinged. It is not Mr. Kashanian’s advocacy for his clients that warrants the
imposition of attorney’s fees against him, but his lack of judgment in initiating and
prosecuting claims that lack a colorable basis. Moreover, Mr. Kashanian’s premise, that
an award of attorney’s fees would create a conflict between attorney and client, was not
raised in response to Defendant Balderas’s motion seeking attorney fees from Mr.
Kashanian. See Doc. 102 at 11–14.
Even without § 1927, this court would award attorney’s fees against Mr.
Kashanian under its inherent authority. The magistrate judge’s finding that Mr.
Kashanian’s actions in this litigation constitute an abuse of the judicial process and were
conducted in bad faith is fully supported by the record. Cf. Farmer, 791 F.3d at 1255–56.
Although the abuse of process does not end with the complaint, the case was initiated in
bad faith, such that every cost incurred by the defendants is attributable only to
sanctioned behavior. Cf. Goodyear Tire, 137 S. Ct. at 1188. A blanket award of all
attorney’s fees is therefore proper under this court’s inherent authority. See id.
Mr. Kashanian contends there is no basis to impose attorney’s fees against counsel
for filing a case, regardless of the factual basis supporting the claims. But a federal court
has the inherent power “to discipline attorneys who appear before it.” Chambers, 501
U.S. at 43; see also Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1320 (11th Cir.
2002). Mr. Kashanian offers no compelling reason why the exercise of this inherent
authority cannot include awarding attorney’s fees against an attorney personally, nor can
this court envision one.
This conclusion is underscored by rules governing the conduct of attorneys in
federal court. Specifically, Rule 11 requires that all attorneys in federal court certify, by
signing the pleadings and other papers filed, 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 any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;
(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; [and]
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for further litigation or discovery[.]
Fed. R. Civ. P. 11(b). “Rule 11 requires sanctions against attorneys who file signed
pleadings, motions or other papers in district court which are not well grounded in fact,
are not warranted by existing law or a good faith argument for its extension, or are filed
for an improper purpose.” Adamson v. Bowen, 855 F.2d 668, 672 (10th Cir. 1988).
Mr. Kashanian signed a complaint ostensibly based in fact, but in reality grounded
in implausible conjecture that lacks even a shred of evidentiary support.6 Further, even a
This is true even under the deferential standard by which all reasonable inferences are
drawn in favor of the non-moving party. See White v. Gen. Motors Corp., Inc., 908 F.2d
675, 680 (10th Cir. 1990).
cursory review of the pertinent case law uncovers fatal flaws to Plaintiffs’ complaint.
The complaint asserts claims against judicial officers in their official capacities
notwithstanding judicial immunity, and against public officials in their official capacities
without any regard to the long-established governing legal standards for such claims.
And this says nothing about the complaint’s deficiencies as to the assertion of other
claims, such as the failure to plead interference with interstate commerce, a required
element for a claim under 18 U.S.C. § 1964(c). Moss v. Morgan Stanley Inc., 719 F.2d 5,
17 (2d Cir. 1983); see also Dummar v. Lummis, 543 F.3d 614, 620–21 (10th Cir. 2008).
In short, the complaint evinces nearly a complete absence of legal research with respect to
the elements underlying Plaintiffs’ claims. This pattern persisted throughout the
litigation. For example, Mr. Kashanian filed a motion for injunctive relief (Doc. 41)
without so much as addressing the relevant requirements, let alone integrating the facts
with the law. Doc. 77.
Perhaps most troubling, however, are the manifestations of homophobia contained
in the complaint. Such statements include:
“The [Lesbian] Sisterhood’s most prominent members consist of judicial officers,
attorneys, court employees, and others in the justice system to ensure that any
lesbian[’]s rights are held above all others. [Defendant Singleton’s] favoritism of
lesbians is so strong that she will violate laws and trample upon citizen’s civil
rights to protect lesbians far above and beyond the rest of the New Mexico
citizenry.” Doc. 8, ¶ 146.
Defendants Singleton and Pickard “act as the faces and voices of lesbian activism
in the state of New Mexico. . . . Singleton issued sua sponte, with no case before
her — an Order to Show Cause directing the Santa Fe County Clerk, Geraldine
Salazar, to issue marriage licenses allowing same-sex couples to wed, or appear
before Singleton and explain why not.” Id. ¶ 147.
Defendants “Singleton and Pickard are in charge of a massive legal slush fund,
donated by members and supporters of the Sisterhood, in the seven figures to
support lesbian-related litigation, advocacy, and other causes related to lesbian
rights . . . .” Id. ¶ 148.
“It is well known that the lesbian community has gained substantial presence,
clout, and power throughout the state of New Mexico, and in particular, the city of
Santa Fe. [Defendant] Richards, through his tireless work for lesbians, has become
a foil for the Sisterhood that have come to garner powerful positions in official
positions throughout New Mexico.” Id. ¶ 166.
And there are others. Mr. Kashanian’s conduct in filing a complaint containing these
allegations (and defending them) is unprofessional, at odds with the governing standards
for practicing attorneys to which he is subject, and, given the absence of evidentiary
support for the alleged bias, done for no discernable purpose other than to further
invidious discrimination. See Rule 16-300 NMRA (indicating that, absent legitimate
advocacy, “a lawyer shall refrain from intentionally manifesting, by words or conduct,
bias or prejudice based on . . . sexual orientation”).
Further, Mr. Kashanian’s arguments regarding the imposition of attorney’s fees
against him personally overlook the fact that he never had to file this particular complaint
(or any complaint), nor did he have to continue in his representation of Plaintiffs. Instead,
Mr. Kashanian persisted. In light of his conduct, this court concludes that it has the
inherent authority to award attorney’s fees against Plaintiffs and Mr. Kashanian
Finally, this court determines that the magistrate judge’s recommended awards are
proper, because the Defendants would not have paid these fees but for the misconduct of
Plaintiffs and their counsel Mr. Kashanian in filing and maintaining a vexatious lawsuit
so lacking in evidentiary support.7 See Goodyear Tire, 137 S. Ct. at 1186–88, 1186 n.5.
In light of the foregoing, the recommendation that half of the fees be paid by Plaintiffs
and half by Mr. Kashanian is appropriate. Accordingly, this court adopts the magistrate
judge’s recommended awards as to Defendants Balderas, Garcia, Pacheco, Gutierrez, and
Montoya. Docs. 234–36.
Defendant Richards’s Objections
Defendant Richards raises several objections in response to the magistrate’s
proposed findings and recommendations that his motion for attorney’s fees and costs be
denied. He contends the recommended denial of attorney’s fees and costs as a sanction
would reward Plaintiff Ross and Mr. Kashanian for misconduct that has permeated the
instant litigation, and that the magistrate judge was incorrect in concluding that Defendant
Richards’s prior failure to argue for sanctions under this court’s inherent authority until
his reply regarding Plaintiffs’ application for a restraining order precludes his ability to
raise that argument now. Defendant Richards further asserts that the reasons underlying
the general rule against awarding attorney’s fees to pro se litigants are inapplicable, and
To the extent Mr. Kashanian argues that there is an absence of causation because
Plaintiffs would have filed this lawsuit with or without him, see, e.g., Doc. 248 at 20–21,
the argument is without merit. Such a rule would necessarily preclude the ability to
sanction attorneys for filing complaints that, as here, violate Rule 11 or are otherwise
initiated in bad faith or constitute an abuse of judicial process.
that this case presents one of the exceptional circumstances in which a court may exercise
its inherent authority to award fees to a pro se attorney. He further argues that paralegal
services he solicited are a cost and should be awarded. Finally, Defendant Richards
requests that this court reconsider its prior decision to deny attorney’s fees as a sanction
for then-Plaintiff Gerard’s application for a temporary restraining order, and also grant
attorney’s fees for his work in representing Defendant Pamela Reynolds.
After reviewing the magistrate judge’s proposed findings and recommendations,
Defendant Richards’s objections, and the pertinent law, this court concludes that this may
be one of the exceptional cases where a court should exercise its inherent authority and
award attorney’s fees to a pro se litigant. This court finds persuasive the Federal Circuit’s
decision in Pickholtz v. Rainbow Technologies, Inc., 284 F.3d 1365 (Fed. Cir. 2002).
There, the court reasoned that the Supreme Court has held that a federal court can impose
sanctions under its inherent authority, Chambers, 501 U.S. at 41–42, and there is “no
reason why in proper circumstances [attorney’s fees as sanctions] may not be applied in
favor of a pro se attorney under inherent power.” Pickholtz, 284 F.3d at 1377. “Failure
to do so . . . would place a pro se litigant at the mercy of an opponent who might engage
in otherwise sanctionable conduct, but not be liable for attorney fees to a pro se party.”
Id. Given the vexatious nature of this litigation and the sheer lack of evidentiary support,
this court would be hard pressed not to award at least some attorney’s fees as a sanction
under its inherent authority. And although the policies outlined in Kay v. Ehrler, 499
U.S. 432, 435–38 (1991), against awarding attorney’s fees to pro se litigants in 42 U.S.C.
§ 1988 cases are strong, in this particular case they might be better addressed by reducing
the amount of the award, not by denying fees outright.
This court further agrees with Defendant Richards that the deficiencies with his
prior sanctions motions, which targeted then-Plaintiff Gerard’s application for a
temporary restraining order, do not preclude for all time his ability to obtain attorney’s
fees. Although this court declines Defendant Richards’s invitation to reconsider its
earlier decision to deny his motion for sanctions and agrees with the magistrate judge that
these fees are not recoverable (Doc. 238 at 9 n.6), that failed attempt would not prevent
Defendant Richards from obtaining fees due to Plaintiffs’ other conduct in this litigation.
This court rejects, however, Defendant Richards’s contention that his out-ofpocket paralegal fees are recoverable as costs. To obtain these fees, Defendant Richards
filed an Affidavit of Costs on May 1, 2017 (Doc. 193), and amended it on May 3, 2017
(Doc. 195). The magistrate judge construed this as a motion to tax costs and
recommended that it be denied on the grounds that nothing in the rules or in 28 U.S.C.
§ 1920 suggests that paralegal fees are recoverable as costs. Doc. 238 at 9–10.
Defendant Richards objects, arguing that costs are not strictly limited to what is listed in
§ 1920 and that Fed. R. Civ. P. 54(d)(1) provides a court with discretionary authority to
award paralegal fees if the court determines such fees are a cost. This court concludes
that Defendant Richards’s objections are without merit, because paralegal fees are not
recoverable as costs. Instead, such fees should be incorporated into the hourly rate for
attorney’s fees. See generally Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 374–75
(3d Cir. 2004).
This court further rejects Defendant Richards’s attempt to recoup attorney’s fees
for work he completed on behalf of Defendant Pamela Reynolds. There are several
reasons for this. In purporting to cite Defendant Reynolds’s motion for attorney’s fees
(Doc. 242 at 15), Defendant Richards cites his supplemental briefing for his motion for
attorney’s fees, which includes an affidavit where he mentions that he has completed a
total of $2,263.73 worth of work on Defendant Reynolds’s behalf (Doc. 206, Ex. A).
Defendant Reynolds never filed a motion for attorney’s fees, and with good reason. The
stipulation pertaining to her dismissal, apparently agreed to by Mr. Richards as her
counsel, provides that “[e]ach party will bear their own fees and costs incurred in this
matter.” Doc. 91 at 2. Neither she nor Mr. Richards is entitled to an award of attorney’s
fees on her behalf.
Next, this court considers the amount of any attorney’s fees it might award
Defendant Richards. In his objections, he asserts that he should be awarded attorney’s
fees in the amount of $21,139.89. Doc. 242 at 15. In support, he relies upon a bill to his
client, Defendant Brenda Wall, itemizing fees from October 31, 2016 through 2017. Doc.
206 at 13–20. But Defendant Wall was voluntarily dismissed on December 5, 2016 (Doc.
81), and has not filed a motion for attorney’s fees. Moreover, as noted by the magistrate
judge, the itemized bill includes fees previously denied regarding the preliminary
injunction. Doc. 238 at 9 n.6. As a prevailing party, Defendant Richards had the burden
to properly allocate a reasonable number of hours at a reasonable hourly rate. See Ellis v.
Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1202 (10th Cir. 1998). While the court
recognizes that Mr. Richards was engaged in joint representation, including representing
himself pro se, the record makes it clear that he is capable of allocating fees among those
clients. See Doc. 86 at 9 (fees billed to himself); Doc. 206 at 12 (Pamela Reynolds).
Given the state of the record, Mr. Richards has not met his burden. Accordingly, the
court declines to award attorney’s fees.
Plaintiff Ross’s Motions Regarding Attorney’s Fees and Sanctions
This court also considers Plaintiff Ross’s motion for leave to file a sur-reply to
Robert Richards’s amended affidavit of costs, filed May 26, 2017 (Doc. 218), and motion
for Rule 11 sanctions against Defendant Richards, filed May 26, 2017 (Doc. 219). These
motions fell within the scope of this court’s referral on attorney’s fees. Doc. 191. The
magistrate judge recommended that Plaintiff Ross’s motion for leave to file a sur-reply be
denied as moot in light of his recommendation that Defendant Richards’s motion be
denied. Doc. 238 at 11. He further recommended that Plaintiff Ross’s motion for
sanctions be denied on the basis that such an award would be unjust. Id. at 10.
No objections have been filed with respect to the magistrate judge’s findings and
recommended dispositions as to these motions. Therefore, review has been waived. That
notwithstanding, the court also finds that the motion for leave to file a sur-reply is moot,
and that it would be unjust to award sanctions to Plaintiff Ross given the nature of the
allegations and the ensuing proceedings. Accordingly, this court adopts the magistrate
judge’s recommendation to deny both motions.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, and DECREED that:
(1) Plaintiff Andrew Ross’s Objections to the Magistrate Judge’s Proposed
Findings and Recommended Disposition, filed July 19, 2017 (Doc. 241) are overruled.
(2) Arash Kashanian’s Objection on Behalf of Andrew Ross to the Magistrate
Judge’s Proposed Findings and Recommended Disposition, filed July 26, 2017 (Doc.
246), and his own Objections to the Magistrate’s Recommendations, filed July 26, 2017
(Docs. 247, 248) are overruled.
(3) The Proposed Findings and Recommended Disposition of the Magistrate Judge
regarding Defendants Hector Balderas, Robert Garcia, William Pacheco, Antonio
Gutierrez, and Anna Montoya, filed July 12, 2017 (Docs. 234, 235, 236) are adopted.
(4) Defendant Robert Richards’s Objections to the Magistrate Judge’s Proposed
Findings and Recommended Disposition, filed July 19, 2017 (Doc. 242) are overruled,
except insofar as stated above.
(5) The Proposed Findings and Recommended Disposition of the Magistrate Judge
regarding Defendant Robert Richards, filed July 12, 2017 (Docs. 238) are adopted, except
insofar as the legal analysis as modified above.
(6) Defendant Hector Balderas’s Motion for Attorney’s Fees Under 43 U.S.C.
§ 1988, 28 U.S.C. § 1927 and the Court’s Inherent Authority, filed December 7, 2016
(Doc. 87), and supplemented on May 17, 2017 (Doc. 205) is granted. Defendant Balderas
is awarded attorney’s fees in the amount of $4,864, plus interest, with half to be paid by
Plaintiffs and half by their counsel, Mr. Kashanian, personally.
(7) Defendant Robert Garcia’s Application for Award of Attorney’s Fees, filed
January 19, 2017 (Doc. 126), is granted in part and denied in part. Defendant Garcia is
awarded attorney’s fees in the amount of $12,055, plus interest, with half to be paid by
Plaintiffs and half by their counsel, Mr. Kashanian, personally.
(8) Defendant William Pacheco’s Application for Award of Attorney’s Fees, filed
March 1, 2017 (Doc. 155), and supplemented on May 15, 2017 (Doc 201), is granted.
(9) Defendants Antonio Gutierrez and Anna Montoya’s Application for Award of
Attorney’s Fees, filed March 24, 2017 (Doc. 177), and supplemented on May 15, 2017
(Doc. 201), is granted. Defendants Pacheco, Gutierrez, and Montoya are awarded
attorney’s fees in the total amount of $12,529.05, plus interest, with half to be paid by
Plaintiffs and half by their counsel, Mr. Kashanian, personally.
(10) Defendant Robert Richards’s Motion for Attorney’s Fees and Costs Under 42
U.S.C. § 1988, the Court’s Inherent Authority and 28 U.S.C. § 1927, filed March 20,
2017 (Doc. 175), and supplemented on May 17, 2017 (Doc. 206), is denied.
(11) Defendant Robert Richards’s Affidavit of Costs, filed May 1, 2017 (Doc.
193), and amended May 3, 2017 (Doc. 195), seeking paralegal fees as costs, is denied.
(12) Plaintiff Andrew Ross’s Motion for Leave to File Sur-Reply to Robert
Richards’s Amended Affidavit of Costs, filed May 26, 2017 (Doc. 218) is denied as moot.
(13) Plaintiff Andrew Ross’s Motion for Rule 11 Sanctions Against Defendant
Robert Richards, filed May 26, 2017 (Doc. 219) is denied.
DATED this 11th day of August 2017, at Santa Fe, New Mexico.
United States Circuit Judge
Sitting by Designation
Andrew Ross, pro se.
Arash Kashanian, Albuquerque, New Mexico, for Plaintiff Andrew Ross.
Ari Biernoff, Assistant Attorney General (and Hector H. Balderas, New Mexico Attorney
General), Santa Fe, New Mexico, for Defendant Hector H. Balderas.
Michael Dickman, Santa Fe, New Mexico, for Defendants Robert Garcia, William
Pacheco, Antonio Gutierrez, and Anna Montoya.
Robert Richards, pro se.
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