Earle A. Partington v. Joseph M. Gedan Howard T. Chang

914 F.2d 1349

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 1, 1990
• Docket: 87-2375
• Status: Published

Opinions

PER CURIAM;

This case was originally reported as Partington v. Gedan, 880 F.2d 116 (9th Cir.1989). The Supreme Court, in a summary disposition, vacated that decision and remanded for further consideration in light of Cooter & Gell v. Hartmarx Corp., — U.S. -, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (Cooter & Gell). See Gedan v. Partington, — U.S. -, 110 S.Ct. 3265, 111 L.Ed.2d 776 (1990). In vacating our earlier decision, the Supreme Court was apparently concerned that our decision to grant Partington’s motion for sanctions pursuant to Federal Rule of Civil Procedure 11 at the appellate level, see 880 F.2d at 130-31, conflicted' with the Supreme Court’s holding in Cooter & Gell that Rule 11 does not apply to appellate proceedings. See Cooter & Gell, 110 S.Ct. at 2461-62. Our earlier decision, however, does not create such a conflict.

In this appeal, we did not purport to sanction the appellees, Gedan and Chang, pursuant to Rule 11 alone. Rather, we imposed sanctions under our Circuit Rules which incorporated Rule 11. We were bound to do so because in three earlier cases we held that we have incorporated the Federal Rules of Civil Procedure into our Circuit Rules, 9th Cir. Rule 1-1 (old Rule 5) and, therefore, we may impose sanctions pursuant to Rule 11 at the appellate level as, in effect, part of our Circuit Rules. In Re Mooney, 841 F.2d 1003, 1005 (9th Cir.1988) (“Fed.R.Civ.P. 11 is incorporated into the Rules of this court.”); Rockwell International Credit Corp. v. United States Aircraft Insurance Group, 823 F.2d 302, 304-05 (9th Cir.1987) (holding that we may sanction pursuant to Rule 11 since “[b]y Rule 5 of the Rules of this court, the Federal Rules of Civil Procedure, ‘whenever relevant,’ are part of the rules of this court”); In re Curl, 803 F.2d 1004, 1007 (9th Cir.1986) (sanction imposed pursuant to Rule 5’s incorporation of Rule 11 for brief filed in court of appeals).

Thus, in our original decision, we did not use Rule 11 as an independent basis for sanctioning Gedan and Chang. Rather, we sanctioned them pursuant to Rule 11 only insofar as Rule 11 had been incorporated into Circuit Rule 1-1 (old Circuit Rule 5). The reasoning of Cooter & Gell is therefore inapposite to our case because it does not prohibit the incorporation of Rule 11 into a circuit’s local rules and does not prohibit the use of those rules to sanction frivolous motions on appeal. Unless Circuit Rule 1-1 is amended, we are bound to follow our precedent which allows a sanction like the one imposed in this appeal. We therefore reaffirm and adopt our earlier opinion.