Black v. Black

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 30, 2024
• Docket: 23-1377
• Status: Unpublished

Opinion

Appellate Case: 23-1377 Document: 67-1 Date Filed: 10/30/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 30, 2024 _________________________________ Christopher M. Wolpert Clerk of Court JOANNE BLACK,

Petitioner - Appellee,

v. No. 23-1377 (D.C. No. 1:22-CV-03098-DDD-NRN) BERNARD BLACK, (D. Colo.)

Respondent - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges. _________________________________

Mr. Black filed a notice of removal seeking to remove, based on diversity

jurisdiction, a motion filed by his sister, Joanne Black, in a case that has been in the

Denver Probate Court since 2012. At the probate court’s direction, Joanne Black

filed the motion in order to frame certain issues resulting from a remand by the

Colorado Court of Appeals. See Black v. Black, 482 P.3d 460, 488 (Colo. Ct. App.

2020).

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-1377 Document: 67-1 Date Filed: 10/30/2024 Page: 2

A magistrate judge issued an order to show cause why the matter should not be

remanded to the probate court for lack of subject matter jurisdiction and because of

certain procedural deficiencies. The order also directed Mr. Black, who is licensed to

practice law in New York, to show cause “why he should not be sanctioned or

referred for discipline to the appropriate disciplinary authorities for what appears to

be a frivolous and baseless attempt at removal for the purpose of interfering with an

ongoing state probate proceeding.” App. vol. 3 at 619 (internal quotation marks

omitted).

After the order to show cause was fully briefed, including a response from

Joanne Black opposing the removal, the magistrate judge recommended the matter be

remanded to the Denver Probate Court. The magistrate judge also recommended

Mr. Black be ordered to pay Joanne’s attorney fees and that he be referred to the

State Bar of New York.1 Mr. Black objected to the magistrate judge’s

recommendations, but the district court overruled the objections and remanded the

matter to the probate court. Mr. Black appealed the district court’s remand order and

award of sanctions, but we dismissed the appeal because (1) an order remanding for

lack of subject matter jurisdiction is not generally an appealable order, and (2) the

district court had not yet fixed the amount of monetary sanctions against Mr. Black.

1 Mr. Black appears pro se. We therefore liberally construe his pleadings, but we do not assume the role of advocate on his behalf. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 2 Appellate Case: 23-1377 Document: 67-1 Date Filed: 10/30/2024 Page: 3

See Black v. Black, No. 23-1155, 2023 WL 7439109, at *1, 2 (10th Cir. July 19,

2023).

On referral from the district court, the magistrate judge concluded that Joanne

Black’s claimed fees of $5,000 were reasonable—particularly in light of the 269

pages of briefing Mr. Black had filed in the matter. The magistrate judge

recommended a total award of $5,031.60, including costs, and Mr. Black objected to

the recommendation. The district court overruled those objections and ordered

Mr. Black to pay the award to his sister’s counsel. Mr. Black appealed; the district

court has ordered that it will not require Mr. Black to pay the award pending appeal.

Mr. Black contends the district court’s imposition of sanctions cannot stand

because federal subject matter jurisdiction did exist and his attempt to remove Joanne

Black’s motion was therefore proper, and the district court’s contrary conclusion was

legally erroneous. He also argues that he attempted to remove “a civil action” within

the meaning of 28 U.S.C. § 1446(b)(1) because Joanne Black’s motion in probate

court initiated an independent controversy.

Mr. Black further contends that it was improper to impose a bar referral

sanction in addition to a monetary award; that the district court failed to give him

adequate notice that in considering whether to impose sanctions, the court would

consider his conduct in other cases; that the district court misunderstood those other

cases; that the sanctions were punitive and therefore warranted “criminal-type

procedural protections,” Opening Br. at 20; and that it was improper to judge his

conduct in cases where he acted in a different legal capacity.

3 Appellate Case: 23-1377 Document: 67-1 Date Filed: 10/30/2024 Page: 4

We review the imposition of sanctions only for an abuse of discretion. Farmer

v. Banco Popular of N. Am., 791 F.3d 1246, 1256 (10th Cir. 2015). This is true

whether the sanction is “rooted in statute, rule or a court’s inherent authority.” Id.

“A district court abuses its discretion when it (1) fails to exercise meaningful

discretion, such as acting arbitrarily or not at all, (2) commits an error of law, such as

applying an incorrect legal standard or misapplying the correct legal standard, or

(3) relies on clearly erroneous factual findings.” Id.

Upon review of the record, the briefs, and the district court’s well-reasoned

orders, and in light of the appropriate review standards, we discern no reversible

error and therefore affirm the award of sanctions for substantially the reasons stated

by the district court. We grant Mr. Black’s motion to supplement the record. We

deny the untimely motions for leave to file amicus briefs.

Entered for the Court

Gregory A. Phillips Circuit Judge