1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRIS LANGER, Case No.: 18CV934-LAB (AGS)
12 Plaintiff, ORDER IMPOSING SANCTIONS 13 v. 14 BADGER CO., LLC, et al., 15 Defendants. 16 17 On February 14, the Court granted in part Defendants’ motion to dismiss. 18 The Court dismissed the first amended complaint without prejudice, and instructed 19 Plaintiff Chris Langer that if he thought he could amend successfully, he should 20 seek leave to do so by filing an ex parte motion. That order required Langer, before 21 continuing to litigate, to confirm that he was willing and able to return to Dave’s 22 Tavern, and that injunctive relief under the Americans with Disabilities Act was still 23 necessary to allow him to do so. (Docket no. 18 at 4:21–5:5.) Langer then brought 24 an interlocutory appeal of that non-final order. (See Docket no. 19.) 25 On February 28, the Court in a reasoned order that cited longstanding 26 binding precedent held that Langer’s improper interlocutory appeal did not deprive 27 it of jurisdiction. Because it appeared Dave’s Tavern, which is the focus of this 28 lawsuit, might have permanently moved or closed, Langer was again ordered to 1 confirm that the tavern was still in operation at the same address, such that he 2 could patronize it in the future if conditions in the parking lot were remedied. He 3 was ordered to do that within seven days (i.e., by March 6). He was also ordered, 4 within ten days of the date the order was docketed (i.e., by March 9), to file a 5 declaration stating that he did that, and that if conditions in the parking lot are 6 remedied, he could and would again visit Dave’s Tavern. If he discovered that he 7 could not or would not visit Dave’s Tavern again or that injunctive relief was 8 unnecessary or unavailable, he was not permitted to leave the Court hanging, but 9 was ordered to file a notice so stating. (Docket no. 22 at 3:27–28.) The order, citing 10 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977), held 11 that because mootness of a claim is jurisdictional, the Court was required to inquire 12 sua sponte if necessary, whenever a doubt arises as to its jurisdiction. The order 13 also pointed out that if it turned out Langer did not want to or could not patronize 14 Dave’s Tavern in the future, continuing to prosecute his claims for injunctive relief 15 would be frivolous and would amount to a serious breach. See Ass’n of Women 16 with Disabilities Advocating Access ex rel. Jackson v. Mouet, 2007 WL 173959, at 17 *4–7 (S.D. Cal., Jan. 11, 2007) (sanctioning counsel for continuing to seek 18 injunctive relief under the ADA against convenience store that had been closed for 19 two years). 20 Langer without explanation then filed a notice voluntarily dismissing his 21 interlocutory appeal. On March 11, the Ninth Circuit dismissed the appeal, and its 22 mandate issued. 23 Counsel for Langer filed nothing in response to this Court’s February 28 24 order, nor did they offer any excuse or reason for not doing so. On March 16, the 25 Court ordered his two attorneys of record, Russell Handy and Chris Carson,1 to 26 27 1 Handy and Carson are designated as lead counsel in the docket. Carson signed 28 1 show cause why they should not be sanctioned for disobeying the Court’s order. 2 They have filed a response (Docket no. 26, “Response”), and their behavior is 3 worse than the Court supposed it might be. 4 The Response, without explanation and without citing any authority, rejects 5 the Court’s holdings, characterizing them as mere arguments. The Response also 6 distorts the record and its timeline, apparently in an attempt to create the 7 appearance that counsel’s disobedience was the result of a good faith error. The 8 Response suggests that counsel were first aware on March 16 of their obligation 9 to comply with the February 28 order. (See Response at 3:6–7 (characterizing the 10 March 16 Order to Show cause as “discussing the notice of appeal, and making 11 an argument that the appeal was premature”)). In fact the February 28 order itself 12 explained at length why the notice of appeal did not deprive it of jurisdiction, and 13 why Langer was required to continue obeying the Court’s orders. (See Docket no. 14 22 at 1:27–3:2.) That Order’s holding was a decision of the Court, not a suggestion 15 or an invitation to debate. The March 16 Order to Show Cause referred to the 16 February 28 order, but added nothing new to it. 17 Furthermore, it is clear that counsel saw and read the February 28 order 18 because the Response says it was this order that prompted them to dismiss the 19 appeal, as a “courtesy” to the Court. (Response at 1:25–27, 3:6–13.) This voluntary 20 dismissal obviously could not have been prompted by anything in the March 16 21 order, which was issued much later. It is clear, in other words, that counsel knew 22 about the Court’s February 28 order and willfully disobeyed it. The Court’s holdings 23 are not mere arguments that counsel are free to reject at their pleasure. This is 24 / / / 25
26 27 well as in the Opposition to the Motion to Dismiss. Handy took the lead in later proceedings. A third attorney also appeared and signed pleadings, but appears to 28 1 true regardless of whether the Court explains its decisions. But it is particularly true 2 here, where the Court cited and relied on longstanding binding authority. 3 If counsel had believed the Court made an error, they could have sought 4 reconsideration or seek relief from the Ninth Circuit. See Ruby v. Secretary of U.S. 5 Navy, 365 F.2d 385, 389 (9th Cir. 1966) (“In the rare instance where the district 6 court proceeds with a case under the mistaken belief that a notice of appeal is 7 inoperative, the appellant may apply to the court of appeals for a writ of 8 prohibition.”)2 They cannot, however, sit in judgment on the Court’s order 9 themselves, nor can they flout it with impunity. 10 Counsel have also raised California’s “shelter in place” order as an 11 explanation for their disobedience, and argue that their office is “completely shut 12 down” and everyone is “scrambling” to postpone hearings. (Response at 3:15–26.) 13 This is implausible, both because California issued no such order until well after 14 the deadline had passed, and also because they and their firm were still actively 15 litigating and filing documents at that time. In fact, they continue at present to 16 litigate cases in this District. A search of this Court’s dockets shows that from 17 March 16 until today, Handy has filed over twenty new complaints, and the firm is 18 actively litigating or settling many of these cases. The suggestion that COVID-19 19 is somehow to blame is clearly untrue. 20 Langer has also filed a late motion for leave to amend, which Defendants 21 oppose. The briefing on this motion sheds further light on Plaintiff’s counsel’s 22 disobedience. The motion concedes that Dave’s Tavern is closed, but seeks leave 23 to file an amended complaint suing the owners of the new bar, the Vinyl Draft 24 Classic Rock Sports Bar, which has taken its place. Langer has never been to this 25 bar, which is now closed because of government restrictions and which may not 26 27 2 Counsel were aware of Ruby, because the Court’s February 28 order cited it, and 28 1 reopen. Though the proposed amended complaint fails to invoke the Court’s 2 jurisdiction, the Court will rule on the motion for leave to amend in a separate order. 3 More seriously, Defendants’ opposition shows that they told Langer’s 4 counsel over a year ago that Dave’s Tavern had closed (see Docket no. 27-4 5 (email of June 5, 2019 to Phyl Grace)), and Langer continued litigating this case.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRIS LANGER, Case No.: 18CV934-LAB (AGS)
12 Plaintiff, ORDER IMPOSING SANCTIONS 13 v. 14 BADGER CO., LLC, et al., 15 Defendants. 16 17 On February 14, the Court granted in part Defendants’ motion to dismiss. 18 The Court dismissed the first amended complaint without prejudice, and instructed 19 Plaintiff Chris Langer that if he thought he could amend successfully, he should 20 seek leave to do so by filing an ex parte motion. That order required Langer, before 21 continuing to litigate, to confirm that he was willing and able to return to Dave’s 22 Tavern, and that injunctive relief under the Americans with Disabilities Act was still 23 necessary to allow him to do so. (Docket no. 18 at 4:21–5:5.) Langer then brought 24 an interlocutory appeal of that non-final order. (See Docket no. 19.) 25 On February 28, the Court in a reasoned order that cited longstanding 26 binding precedent held that Langer’s improper interlocutory appeal did not deprive 27 it of jurisdiction. Because it appeared Dave’s Tavern, which is the focus of this 28 lawsuit, might have permanently moved or closed, Langer was again ordered to 1 confirm that the tavern was still in operation at the same address, such that he 2 could patronize it in the future if conditions in the parking lot were remedied. He 3 was ordered to do that within seven days (i.e., by March 6). He was also ordered, 4 within ten days of the date the order was docketed (i.e., by March 9), to file a 5 declaration stating that he did that, and that if conditions in the parking lot are 6 remedied, he could and would again visit Dave’s Tavern. If he discovered that he 7 could not or would not visit Dave’s Tavern again or that injunctive relief was 8 unnecessary or unavailable, he was not permitted to leave the Court hanging, but 9 was ordered to file a notice so stating. (Docket no. 22 at 3:27–28.) The order, citing 10 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977), held 11 that because mootness of a claim is jurisdictional, the Court was required to inquire 12 sua sponte if necessary, whenever a doubt arises as to its jurisdiction. The order 13 also pointed out that if it turned out Langer did not want to or could not patronize 14 Dave’s Tavern in the future, continuing to prosecute his claims for injunctive relief 15 would be frivolous and would amount to a serious breach. See Ass’n of Women 16 with Disabilities Advocating Access ex rel. Jackson v. Mouet, 2007 WL 173959, at 17 *4–7 (S.D. Cal., Jan. 11, 2007) (sanctioning counsel for continuing to seek 18 injunctive relief under the ADA against convenience store that had been closed for 19 two years). 20 Langer without explanation then filed a notice voluntarily dismissing his 21 interlocutory appeal. On March 11, the Ninth Circuit dismissed the appeal, and its 22 mandate issued. 23 Counsel for Langer filed nothing in response to this Court’s February 28 24 order, nor did they offer any excuse or reason for not doing so. On March 16, the 25 Court ordered his two attorneys of record, Russell Handy and Chris Carson,1 to 26 27 1 Handy and Carson are designated as lead counsel in the docket. Carson signed 28 1 show cause why they should not be sanctioned for disobeying the Court’s order. 2 They have filed a response (Docket no. 26, “Response”), and their behavior is 3 worse than the Court supposed it might be. 4 The Response, without explanation and without citing any authority, rejects 5 the Court’s holdings, characterizing them as mere arguments. The Response also 6 distorts the record and its timeline, apparently in an attempt to create the 7 appearance that counsel’s disobedience was the result of a good faith error. The 8 Response suggests that counsel were first aware on March 16 of their obligation 9 to comply with the February 28 order. (See Response at 3:6–7 (characterizing the 10 March 16 Order to Show cause as “discussing the notice of appeal, and making 11 an argument that the appeal was premature”)). In fact the February 28 order itself 12 explained at length why the notice of appeal did not deprive it of jurisdiction, and 13 why Langer was required to continue obeying the Court’s orders. (See Docket no. 14 22 at 1:27–3:2.) That Order’s holding was a decision of the Court, not a suggestion 15 or an invitation to debate. The March 16 Order to Show Cause referred to the 16 February 28 order, but added nothing new to it. 17 Furthermore, it is clear that counsel saw and read the February 28 order 18 because the Response says it was this order that prompted them to dismiss the 19 appeal, as a “courtesy” to the Court. (Response at 1:25–27, 3:6–13.) This voluntary 20 dismissal obviously could not have been prompted by anything in the March 16 21 order, which was issued much later. It is clear, in other words, that counsel knew 22 about the Court’s February 28 order and willfully disobeyed it. The Court’s holdings 23 are not mere arguments that counsel are free to reject at their pleasure. This is 24 / / / 25
26 27 well as in the Opposition to the Motion to Dismiss. Handy took the lead in later proceedings. A third attorney also appeared and signed pleadings, but appears to 28 1 true regardless of whether the Court explains its decisions. But it is particularly true 2 here, where the Court cited and relied on longstanding binding authority. 3 If counsel had believed the Court made an error, they could have sought 4 reconsideration or seek relief from the Ninth Circuit. See Ruby v. Secretary of U.S. 5 Navy, 365 F.2d 385, 389 (9th Cir. 1966) (“In the rare instance where the district 6 court proceeds with a case under the mistaken belief that a notice of appeal is 7 inoperative, the appellant may apply to the court of appeals for a writ of 8 prohibition.”)2 They cannot, however, sit in judgment on the Court’s order 9 themselves, nor can they flout it with impunity. 10 Counsel have also raised California’s “shelter in place” order as an 11 explanation for their disobedience, and argue that their office is “completely shut 12 down” and everyone is “scrambling” to postpone hearings. (Response at 3:15–26.) 13 This is implausible, both because California issued no such order until well after 14 the deadline had passed, and also because they and their firm were still actively 15 litigating and filing documents at that time. In fact, they continue at present to 16 litigate cases in this District. A search of this Court’s dockets shows that from 17 March 16 until today, Handy has filed over twenty new complaints, and the firm is 18 actively litigating or settling many of these cases. The suggestion that COVID-19 19 is somehow to blame is clearly untrue. 20 Langer has also filed a late motion for leave to amend, which Defendants 21 oppose. The briefing on this motion sheds further light on Plaintiff’s counsel’s 22 disobedience. The motion concedes that Dave’s Tavern is closed, but seeks leave 23 to file an amended complaint suing the owners of the new bar, the Vinyl Draft 24 Classic Rock Sports Bar, which has taken its place. Langer has never been to this 25 bar, which is now closed because of government restrictions and which may not 26 27 2 Counsel were aware of Ruby, because the Court’s February 28 order cited it, and 28 1 reopen. Though the proposed amended complaint fails to invoke the Court’s 2 jurisdiction, the Court will rule on the motion for leave to amend in a separate order. 3 More seriously, Defendants’ opposition shows that they told Langer’s 4 counsel over a year ago that Dave’s Tavern had closed (see Docket no. 27-4 5 (email of June 5, 2019 to Phyl Grace)), and Langer continued litigating this case. 6 Bearing in mind that Langer lives near the Tavern (see Docket no. 25-2, ¶ 2 7 (Langer’s declaration that he lives less than three miles from the Tavern)), he and 8 his counsel either knowingly avoided investigating, or else they knew that the 9 Tavern was closed and continued to press the injunctive relief claim anyway, 10 asking (among other things) that the Court order Dave Gligora, the Tavern’s owner, 11 to remove barriers inside the Tavern. (See, e.g., Docket no. 11 (First Amended 12 Complaint), ¶¶ 21–27, 28–30, 37–48.). Obviously, Gligora could not remediate any 13 ADA violations in an establishment he neither owned nor operated. Nor was 14 Langer suffering an ongoing injury by being denied access to the now-shuttered 15 Tavern. As the Court’s February 28 order pointed out, this is a serious ethical 16 breach. It is also a direct violation of the Court’s order forbidding them from 17 proceeding further until they confirmed that Dave’s Tavern was still open. 18 Furthermore, the pleadings specifically allege that Langer intended to return 19 to Dave’s Tavern and patronize it just as soon as barriers are removed. Counsel 20 knew or were willfully blind to the fact that this was false, yet they kept prosecuting 21 the ADA claim anyway. In fact, they continued to tell the Court Langer was going 22 to return to the tavern long after they knew he would not or could not. (See Docket 23 no. 14 (Opp’n to Mot. to Dismiss for Lack of Jurisdiction) at 14:10–16:16 (arguing 24 that Langer had standing to seek injunctive relief, because Langer intended to 25 return to Dave’s Tavern but that barriers there prevented him from doing so).) They 26 also used this falsehood as a basis for arguing that the Court could not decline 27 supplemental jurisdiction over Langer’s state law claim. (See id. at 16:17–20:17.) 28 At the very least, this amounts to a fraud on the Court. 1 Because this fraud may have been committed by the firm generally, rather 2 than by Handy or Carson in particular, it is beyond the scope of the Court’s Order 3 to Show Cause, and the Court is not sanctioning counsel for their firm’s 4 misconduct. That being said, because they served as counsel of record throughout 5 the case, they are responsible for knowing what was filed. 6 The only partially mitigating fact the Response mentions is that Carson relied 7 on the judgment of her supervisor, Handy. Both Carson and Handy are counsel of 8 record, and are each responsible for doing what the Court orders them to do. The 9 Response does not suggest otherwise. As a subordinate, Carson bears less 10 responsibility than does Handy, though her status does not absolve her. By way 11 of analogy,4 rule 5.2(a) of the California Rules of Professional Conduct requires 12 subordinate lawyers to comply with professional responsibilities regardless of 13 whether she acts at the direction of another lawyer. Under Rule 5.2(b), 14 subordinates are shielded from responsibility for their acts taken in reliance of a 15 supervisory lawyer’s reasonable resolution of an arguable question of professional 16 duty. Whether to obey or disobey the Court’s order was not an arguable question, 17 and Handy’s determination that the interlocutory notice of appeal deprived the 18 Court of jurisdiction was not reasonable. Even if it had been reasonable, it would 19 at most have suggested to Carson she was not obligated to comply with the Court’s 20 order, not that she should not. Counsel’s continued and unsupported assertions to 21 the contrary only compound their fault. Nevertheless, the Court recognizes that 22 23 24 3 The Opposition to the Motion to Dismiss was signed by a subordinate, not by 25 either Handy or Carson, although Handy’s name appears in the heading. It is not clear whether the subordinate had reason to believe he was signing a misleading 26 document, though it is clear that knowledge should be imputed to the firm. 27 4 The Court may rely on the California Rules of Professional Conduct as an informative guide. See Cochrane Firm, P.C. v. Cochran Firm Los Angles LLP, 641 28 1 Carson played a less active role in the later stages of this case than did Handy, 2 and the sanctions should reflect that. 3 The Court find that attorneys Russell Handy and Chris Carson intentionally 4 and willfully disobeyed its February 28 order. They did this in order to keep a claim 5 alive that they had reason to know had become moot, and to conceal the truth from 6 the Court and to thwart the Court’s own efforts to carry out its jurisdictional 7 obligations. The Response only compounds their misconduct, by refusing to take 8 responsibility for their disobedience, and attempting to shift blame onto the COVID- 9 19 pandemic and even the Court itself. It is also clear they either had actual or 10 constructive knowledge that Dave’s Tavern was closed, or were on inquiry notice 11 well before the Court’s February 28 order, and litigated in bad faith even after being 12 warned. They are therefore subject to sanctions. See Chambers v. NASCO, Inc., 13 501 U.S. 32, 43 (1991); Civil Local Rule 83.1. As a sanction for their disobedience, 14 Handy is ORDERED to pay $950 and Carson is ORDERED to pay $250. The Court 15 believes these sanctions are sufficient to deter future misconduct, but not more 16 severe than necessary. They must make payment by May 28, 2020. 17 This order is intended to vindicate the Court’s own orders by sanctioning 18 counsel’s willful and intentional disobedience to those orders. The Court is not 19 sanctioning them for other violations at this time. But it is apparent Langer’s 20 counsel acted willfully and in bad faith in continuing to litigate an ADA claim they 21 knew or had reason to believe was moot, thereby imposing costs on Defendants. 22 In particular, counsel’s misconduct unjustly imposed expenses on Dave Gligora, 23 who no longer operated the Tavern and who obviously had no power to comply 24 with any injunction. More generally, once the ADA claim became moot, there was 25 no longer any basis for supplemental jurisdiction. See Herman Family Revocable 26 Tr. v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001). 27 If Defendants wish, they may file an ex parte motion for costs and attorney’s 28 fees to compensate them for costs of defending this action, beginning when Langer 1 ||}or his counsel had reason to know that Dave’s Tavern had permanently closed or 2 moved. Such a motion must be filed by June 2, 2020. Any motion should be 3 || Supported by a detailed record of costs and fees over time. If possible, it should be 4 ||capable of being divided between the two Defendants. Any opposition is due by 5 || June 9, 2020. No reply should be filed without leave. If appropriate, the Court will 6 ||hold an evidentiary hearing, but otherwise the matter will be deemed submitted 7 ||once the briefing is filed. 8 If the parties would like assistance settling the issue of costs and fees, they 9 |}should contact the chambers of Magistrate Judge Andrew Schopler. The Court 10 || will address the motion for leave to amend in a separate order. 11 12 IT IS SO ORDERED. 13 || Dated: May 15, 2020 ‘4 Cand A Chum 15 Hon. Larry Alan Burns 16 Chief United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28