March 31, 1994 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-1720
RICHARD SILVA, ET AL.,
Plaintiffs, Appellees,
v.
PETER WITSCHEN, CITY OF EAST PROVIDENCE, ET AL.,
Defendants, Appellees,
STEPHEN LINDER,
Appellant.
ERRATA
The opinion of this Court issued on March 24, 1994, is amended as follows:
On Page 13, Paragraph 2 on Line 3, please insert "sanction" after "Rule 11".
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Torruella, Cyr and Stahl,
Circuit Judges.
Edward Greer, Rhode Island Affiliate, American Civil Liberties
Union, was on brief for appellant.
William J. Conley, Jr., City Solicitor, for appellee City of East
Providence, Rhode Island.
March 24, 1994
CYR, Circuit Judge. Appellant Stephen Linder, Esquire, CYR, Circuit Judge.
challenges the sanction imposed against him pursuant to Fed. R.
Civ. P. 11 for filing a groundless complaint against defendants-
appellees. After careful review, we affirm the district court
sanction order in all respects.
I
BACKGROUND
In the fall of 1985, the City of East Providence, Rhode
Island, announced that an independent testing service would
administer a competitive examination for the position of Chief of
Police. A city ordinance empowered the City Manager, defendant-
appellee Peter Witschen, to fill the position from among the top
three performers on the examination. See Civil Service Ordinance
of East Providence, R.I. 11-66(c),(d). It was no secret that
some members of the City Council, including defendants-appellees
in this action, favored the appointment of defendant Anthony
DeCastro. DeCastro achieved the highest examination score and,
in January 1986, was appointed by the City Manager.
Following the appointment, a rift arose between Chief
DeCastro and the Fraternal Order of Police Union (Union). At a
public session of the City Council years later, it was disclosed
that several defendants had discussed beforehand with DeCastro
the likelihood that a competitive examination would be adminis-
tered and that DeCastro's test-taking skills were weak. Finally,
it was also disclosed at the City Council meeting that DeCastro
had attended a preparatory course in "executive development" on
his own time, for which he was reimbursed pursuant to a City
policy permitting reimbursement for "in-service training."
Present at the City Council meeting were several of the
plaintiffs, all disappointed applicants for the position, and
appellant Linder, counsel to the Union. Shortly after the City
Council meeting, two of the plaintiffs met briefly with Linder
and discussed factual grounds for a possible lawsuit in their
behalf. Thereafter, Linder conducted limited discussions with
other plaintiffs along similar lines.
On January 3, 1990, Linder initiated the present action
under 42 U.S.C. 1983 in the United States District Court for
the District of Rhode Island, charging deprivations of plaintiff-
s' due process right to a fair and impartial promotional examina-
tion as provided by the City ordinance, and of an alleged right
of "equal protection" to compete for the position. Although the
complaint pleaded relevant circumstances which the district court
later characterized as "suspicious," see supra pp. 2-3, it
neither alleged nor asserted facts sufficient to support an
inference that the examination was either "rigged" to favor
DeCastro or administered or graded unfairly.
Prior to filing the complaint, Linder made a copy
available to the City Solicitor, who advised Linder that it was
"unjustified," and warned that the City was likely to demand
attorney fees for defending against it. Linder was not deterred.
Ultimately, the district court entered summary judgment
for all defendants on the ground that "the complaint made no
allegations of 'exam rigging,'" which was the essence of plain-
tiffs' claim. Silva v. Witschen, 745 F. Supp. 798, 803 (D. R.I.
1990).1 The defendants thereafter requested attorney fees,
either under 42 U.S.C. 1988 or as a sanction under Fed. R. Civ.
P. 11.
In due course, the district court conducted a lengthy
hearing to determine whether the fee request should be allowed on
either ground. The amount of any fee award was not before the
court at the hearing. Following the hearing, the court denied
the request for an award under section 1988, on the ground that
the plaintiffs had not acted in bad faith. The court found,
however, that Linder was subject to sanction under Rule 11 for
filing a groundless complaint. The defendants later requested
fees and costs totalling almost $250,000, which the court reduced
to $75,349.96, approximately two-thirds of which was attributed
to the merits phase and one-third to the sanctions phase of the
district court litigation.
II
DISCUSSION
All aspects of the Rule 11 sanctions decision are
reviewed for abuse of discretion. Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 405 (1990); Metrocorps, Inc. v. Eastern
Mass. Junior Drum & Bugle Corps Ass'n, 912 F.2d 1, 2 (1st Cir.
1The judgment on the merits is not challenged on appeal.
1990). As the party challenging the sanctions award, Linder
bears the formidable burden of establishing abuse of discretion.
See Navarro-Ayala v. Nunez, 968 F.2d 1421, 1425 (1st Cir. 1992).
An abuse of discretion occurs only if "'a material factor deserv-
ing significant weight is ignored, . . . an improper factor is
relied upon, or . . . all proper and no improper factors are
assessed, but the court makes a serious mistake in weighing
them.'" Anderson v. Beatrice Foods Co., 900 F.2d 388, 394 (1st
Cir.) (quoting Fashion House, Inc. v. K Mart Corp., 892 F.2d
1076, 1081 (1st Cir. 1989)), cert. denied, 498 U.S. 891 (1990).
A. Amended Rule 11
On December 1, 1993, during the pendency of the present
appeal, an amended version of Rule 11 became effective, governing
"all proceedings in civil cases thereafter commenced and, insofar
as just and practicable, all proceedings in civil cases then
pending." Order Amending Federal Rules of Civil Procedure, 113
S. Ct. CDLXXVIII (Apr. 22, 1993) (emphasis added).2 Linder
2The sanctions provision in the pre-amendment version of Rule 11 stated:
If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who
signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the plead- ing, motion, or other paper, including a reasonable attorney's fee.
Fed. R. Civ. P. 11 (1987) (emphasis added).
The relevant portion of the sanctions provision in the
therefore contends that amended Rule 11 applies on appeal in the
present case.
We need not decide whether a case pending on appeal
December 1, 1993 is subject to the amended rule. The promulga-
tion order precludes application of the amended rule even in
amended version reads as follows:
(c) Sanctions. If, after notice and a reasonable Sanctions opportunity to respond, the court determines that subdivision (b) [Representations to Court] has been violated, the court may, subject to the conditions
stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.
(1) How Initiated. How Initiated
(a) By Motion. A motion for sanctions under By Motion
this rule . . . shall describe the specific con- duct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be
filed with or presented to the court unless, with-
in 21 days after service of the motion (or such
other period as the court may prescribe), the
challenged paper, claim, defense, contention,
allegation, or denial is not withdrawn or appro-
priately corrected. If warranted, the court may
award to the part prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion.
(2) Nature of Sanction; Limitations. A sanction Nature of Sanction; Limitations.
imposed for violation of this rule shall be limit- ed to what is sufficient to deter repetition of such conduct or comparable conduct by others simi- larly situated. . . . [T]he sanction may consist of, or include, directives of a nonmonetary na- ture, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct re- sult of the violation.
Fed. R. Civ. P. 11 (Dec. 1, 1993) (emphasis added).
"cases then pending" insofar as it would be unjust or imprac-
ticable to do so. Id. To remand for a district court determina-
tion under amended Rule 11 in these circumstances is not only
infeasible but would work an injustice to plaintiffs-appellees.
See Hashemi v. Campaigner Publications, Inc., 784 F.2d 1581, 1584
(11th Cir. 1986) (finding no reason to test Rule 11 sanctions
under amendment to 1983 rule not in effect when sanctioned
conduct occurred) (decided under virtually identical terms of
1983 promulgation order: "shall govern . . . , insofar as just
and practicable, in proceedings then pending." Order Amending
Rules of Civil Procedure, 461 U.S. 1097 (1983)). Cf. Freund v.
Fleetwood Enters., Inc., 956 F.2d 354, 363 (1st Cir. 1992)
(declining to apply amended Fed. R. Civ. P. 15(c) which would
work "manifest injustice");3 Agretti v. ANR Freight Sys., Inc.,
No. 89 C 5492, 1994 WL 46670, at *1 (N.D. Ill. Feb. 14, 1994)
(finding retrospective application of 1993 amended Rule 11
"neither just nor practicable"); In re Taxable Mun. Bond Sec.
Litig., No. MDL 863, 1994 WL 34924, at *4 (E.D. La. Feb. 3, 1994)
3Freund rests upon the principle that "a court is to apply
the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v.
Richmond Sch. Bd., 416 U.S. 696, 711 (1974). In the instant
case, such "statutory direction" derives from the Supreme Court's power to prescribe rules of procedure. See generally 28 U.S.C.
2071-2113. Section 2074(a) of Title 28 states that "the Supreme Court shall not require the application of such [amended] rule to further proceedings then pending to the extent that, in
the opinion of the court in which such proceedings are pending,
the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies." 28 U.S.C. 2074(a) (emphasis added).
(declining to apply 1993 amended rule where sanctioned conduct
occurred prior to Dec. 1, 1993 and pre-amendment standards had
been applied at sanctions hearing).4 This is particularly true
since Linder's sanctionable conduct was solely responsible for
the satellite proceedings relating to Rule 11 sanctions. More-
over, it would be impracticable, not only to undo the harm
actually occasioned defendants, but to review the district court
order under the altered standards established by amended Rule
4Linder argues that he would not have been sanctioned under the amended rule, because he would have withdrawn the complaint as allowed under the 21-day "safe harbor" provision. See Fed. R.
Civ. P. 11(c)(1)(A) (Dec. 1, 1993); supra note 2. Linder cannot
have it both ways, however. His argument is based on the assump- tion that he would have availed himself of a "safe harbor" provision had he received notice of the particular deficiencies
in the complaint. This retrospective appraisal ignores the reality that Linder flatly disregarded a substantially equivalent warning from the City Solicitor before the complaint was ever filed. See supra p. 3-4. Thus, Linder's argument cannot prevail
unless appellees failed to point out particular deficiencies in the complaint. However, appellees' statement of relevant facts on appeal represents, and Linder does not deny, that the City Solicitor "informed [Linder] of the pleading deficiencies, and of
the City's probable attempt to collect sanctions, before the pleading was even filed." (Appellees' Br. at 16) (emphasis added). Since Linder neither denies appellees' representation nor included the relevant portions of the hearing transcript to which appellees' statement of facts cites, see Fed. R. App. P.
10(b), 11(a) (appellant bears burden of including material items in appellate record), we will not indulge an assumption fore- closed by the record before us. It would be unjust to permit yet a second "safe harbor" refuge for Linder to escape responsibility
for the expense occasioned an innocent party which forewarned him that the complaint was unjustified. Furthermore, even if the cost and expense occasioned by Linder's sanctionable conduct were to be disregarded, it would be unjust to permit these satellite proceedings to be further extended by remanding to the district court to afford Linder the opportunity to "withdraw" a groundless complaint previously dismissed on the merits.
11.5 See Hashemi, 784 F.2d at 1583-84 (rejecting claim, under
virtually identical 1983 promulgation order, that amended Rule 11
standards should apply "because the case was pending on appeal by
the plaintiff at the time the Rule became effective"); cf.
Freund, 956 F.2d at 363 (refusing to apply amended rule which
would work "manifest injustice"). Since an unwarranted remand
would otherwise be necessary in these already protracted satel-
lite proceedings, at inordinate delay and expense to innocent
parties, we review the district court sanction order under the
pre-amendment Rule 11 standards in force at the time the sanc-
tioned conduct occurred.
B. Appropriateness of Rule 11 Sanctions
Prior to December 1, 1993, Rule 11 mandated sanctions
for interposing a filing either for an improper purpose or under
5For example, deterrence was the primary purpose served by Rule 11 sanctions prior to December 1, 1983. See Cooter & Gell,
496 U.S. at 393. Yet "courts . . . ha[d] noted that compensatory and punitive purposes also [we]re served by sanctions [under old Rule 11]." Charles A. Wright & Arthur Miller, 5A Federal Prac-
tice and Procedure 1336 at 100-101 (1990); Anderson, 900 F.2d
at 394-95. Under amended Rule 11, however, "the purpose of . . . sanctions is to deter rather than to compensate . . . ." Fed. R.
Civ. P. 11 advisory committee's note (emphasis added). Thus, under amended Rule 11, "if a monetary sanction is imposed, it should ordinarily be paid into court as a penalty," id., though
the court may award monetary sanctions to a party in "unusual circumstances," id. Although sanctions were mandatory under old
Rule 11, Lancellotti v. Fay, 909 F.2d 15, 19 (1st Cir. 1990), but
are discretionary under the amended rule, Fed. R. Civ. P. 11(c) (Dec. 1, 1993) (if court finds a violation, "the court may . . .
impose an appropriate sanction" (emphasis added)), in these circumstances we believe it would be a gross injustice to deprive defendants-appellees of compensation for the costs caused by Linder's reckless disregard for the requirements of Rule 11 despite the City's advance warning.
circumstances in which a competent attorney, on objectively
reasonable inquiry, could not have believed that the filing was
grounded in fact and warranted either by existing law or by a
good-faith argument for the extension, modification or reversal
of existing law. Lancellotti v. Fay, 909 F.2d 15, 19 (1st Cir.
1990).
1. Legal Basis for Action
Linder "concedes" that the complaint violated Rule 11,
in that he failed to make the objectively reasonable legal
inquiry required under our case law. He argues, however, that
Leatherman v. Tarrant County Narcotics Intelligence and Coordina-
tion Unit, U.S. , 113 S. Ct. 1160 (1993), struck down the
heightened pleading requirement previously espoused by this court
in section 1983 actions.6 Since Leatherman should be given
retroactive effect, see Harper v. Virginia Dep't of Taxation,
U.S. , , 113 S. Ct. 2510, 2516-17 (1993) (general rule of
retroactivity in civil cases), Linder contends that sanctions
were improperly imposed. This argument is a red herring.
The district court order neither mentioned nor applied
a heightened pleading standard, nor did it cite to any case
involving a heightened pleading requirement. See Silva, 745 F.
Supp. at 801. Rather, the court determined that there was no
6In Leatherman, the Court rejected the Fifth Circuit's "more
demanding rule for pleading a complaint under section 1983 than for pleading other kinds of claims for relief." 113 S. Ct. at 1162-63.
legal basis whatever for Linder's reliance on a federally pro-
tected property interest, in principal part because plaintiffs
made no allegation of "exam-rigging." See Burns v. Sullivan, 619
F.2d 99, 104 (1st Cir.), cert. denied, 449 U.S. 893 (1980).7
Compare Silva, 745 F. Supp. at 803, with Hermes v. Hein, 511 F.
Supp. 123, 125 (N.D. Ill. 1980) (complaint alleging exam-rigging
states 1983 claim in circumstances where unwavering custom and
policy is to promote applicant achieving highest score). The
court concluded that the only protected property interest at
issue was plaintiffs' due process right to compete fairly for the
position of Chief of Police,8 and since they had alleged no
facts evidencing such a deprivation the action was groundless as
a matter of law. Silva, 745 F. Supp. at 805. Neither before the
district court, nor on appeal, has Linder raised doubt as to the
soundness of the district court ruling that the complaint failed
to state a cause of action.
7As the district court observed:
Like the City Manager in Burns, City Manager Witschen
had discretion to make an appointment "after interview and investigation," from among "the names of the three persons standing highest on the appropriate list." Since the City Manager could appoint any one of the top three certified candidates, none of these candidates had a clearly defined property interest in promotion to Chief of Police.
Silva, 745 F. Supp. at 803.
8The court rejected the claim that plaintiffs were deprived of "equal protection" by the dissimilar treatment accorded DeCastro, citing Di Piro v. Taft, 584 F.2d 1, 3 (1st Cir. 1978),
cert. denied, 440 U.S. 914 (1979). See Silva, 745 F. Supp. at
805 (finding no evidence of intentional discrimination).
2. Improper Purpose
The district court further found that Linder attempted
by bringing the present action to intimidate "the City into
terminating DeCastro . . . . [thus] using this case to further an
improper objective." Silva v. Witschen, C.A. No. 90-0005L, slip
op. at 18-19 (D. R.I. Nov. 5, 1992) (order imposing sanctions).
Although Linder admits to a "dual motive," he argues that Rule 11
sanctions may not be imposed for commencing an action for an
"improper purpose" if there was also a proper motive, in this
case vindicating plaintiffs' rights. The district court found
that
Linder, who was also the attorney for the Union, was wearing two hats here. Although he purported to represent the plaintiffs in this case, all his actions were calculated to
achieve the goal of the Union, the ouster of
DeCastro. While plaintiffs honestly believed in their cause of action, Linder was using their lawsuit as a bargaining chip to pres- sure the City on behalf of the Union to ter- minate DeCastro as Chief of Police.
Id. at 19 (emphasis added).
Linder's contention that his conduct is not sanctiona-
ble because he intended to protect plaintiffs' legal rights is
yet another red herring. We are aware of no authority or other
basis for the view that an attorney who files a groundless
complaint, for an improper purpose and without reasonable inqui-
ry, see Fed. R. Civ. P. 11, is exonerated from sanctions because
he was simply asserting groundless nonexistent legal claims in
behalf of his clients. Cf. Lieb v. Topstone Indus., Inc., 788
F.2d 151, 157 (3d Cir. 1986) ("[P]leader may not escape liability
because he did not intend to bring about additional delay or
expense. If reasonable preparatory steps would have avoided
those consequences, sanctions are appropriate."). Accordingly,
we uphold the district court finding of improper motive. Cf. Mir
v. Little Co. of Mary Hosp., 844 F.2d 646, 653 (9th Cir. 1988)
(using litigation to force party to grant privileges previously
denied is "improper purpose").
C. Appropriateness, Nature and Severity of Sanctions
1. Rule 11 Hearing
The procedure for determining whether a sanction should be
imposed and, if so, its nature and severity, is left in the first
instance to the trial court's sound discretion. Linder contends
that the district court abused its discretion, see Cooter & Gell,
496 U.S. at 405, by unnecessarily convening a hearing on the
request for Rule 11 sanctions. See also Fed. R. Civ. P. 11
advisory committee's note (sanctions procedure depends on circum-
stances and severity of sanction under consideration); Muthig v.
Brant Point Nantucket, Inc., 838 F.2d 600, 607 (1st Cir. 1988)
(similar). He argues that there was no reason to conduct a Rule
11 hearing once the court found no legal basis for the complaint,
see Silva, 745 F. Supp. at 803, since sanctions were mandatory
under the pre-amendment version of Rule 11, Jensen v. Frank, 912
F.2d 517, 524 n.6 (1st Cir. 1990).
Linder once again mischaracterizes the proceedings
below. The grant of summary judgment against plaintiffs did not
preordain the imposition of any Rule 11 sanction against Linder.
Rather, the hearing was necessary to determine whether Linder had
violated Rule 11 and, if so, to determine an appropriate sanc-
tion. Additionally, defendants requested a fee award against
plaintiffs under 42 U.S.C. 1988 as well, which the court consi-
dered at the same hearing and later denied. The claim that the
district court abused its discretion by conducting a hearing to
resolve defendants' fee requests under Rule 11 and section 1988
is frivolous.
Linder has fallen far short of a showing of abuse of
discretion.9 Rule 11 contemplates "giv[ing] effect to [its]
central goal of deterrence," Cooter & Gell, 496 U.S. at 405,
while avoiding unnecessary satellite litigation; the proper
balance is left to the reasoned discretion of the district court,
id. Cf. Fashion House, 892 F.2d at 1082 (district court is in
best position to determine appropriate remedy). The hearing was
necessary for two reasons: to determine whether there was a
proper basis for assessing attorney fees against plaintiffs under
42 U.S.C. 1988, and whether Linder's filing of the groundless
complaint warranted imposition of a Rule 11 sanction. Silva,
slip op. at 2-3 (Nov. 5, 1992); Silva, 745 F. Supp. at 806.
Thus, among the matters at issue in the Rule 11 sanctions hearing
9Though hampered by the absence of a sanction-hearing tran- script, we have reviewed Linder's claims on the available appel- late record, see United States v. One Yacht Named Mercury, 527
F.2d 1112, 1113 (1st Cir. 1975) (despite incomplete record, appellate court reviews merits as record allows), cognizant that it was Linder's burden to ensure an adequate appellate record, see Navarro-Ayala, 968 F.2d at 1425; see also Fed. R. App. P.
10(b), 11(a) (requiring appellant to assemble requisite record).
were whether Linder: (1) brought the action for an improper
purpose and (2) after reasonable inquiry, could have formed a
reasonable belief that the complaint was well grounded in fact
and "warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law." Fed. R.
Civ. P. 11 (1987); see Lancellotti, 909 F.2d at 19. The court
found that "Linder failed to make a reasonable inquiry to deter-
mine that the complaint was well founded in fact . . . [and] even
more important [the] lawsuit was baseless as a matter of law."
Silva, slip op. at 17 (Nov. 5, 1992). See Unanue-Casal v.
Unanue-Casal, 898 F.2d 839, 841-42 (1st Cir. 1990) (Rule 11
sanctions against counsel warranted for filing frivolous removal
petition with "no plausible legal basis" and for "improper
purpose").10
2. Reasonableness of Sanctions
Linder's remaining claim is that the attorney fee award
is excessive. Compensatory sanctions under Rule 11 must be
10Linder claims that the district court did not need to address the "improper purpose" prong of Rule 11 once it had been determined that he had failed to make a "reasonable inquiry." We find no abuse of discretion. The appellate record provided by Linder, see supra note 9, does not indicate which issue was first
decided, why the hearing proceeded to the second issue, or even whether Linder preserved this claim by asserting it in timely fashion below. Moreover, the further inquiries as to the appro- priateness and severity of Rule 11 sanctions were significantly informed by the court's determination that not one but two grounds existed for sanctioning Linder. See Unanue-Casal, 898
F.2d at 841-42 (Rule 11 sanctions against counsel warranted by both prongs of rule).
reasonable in amount.11 Navarro-Ayala, 968 F.2d at 1427 (cit-
ing cases).
a. Merits Phase
The district court awarded the City12 $53,528.81 in
attorney fees and costs incurred during the merits phase of the
litigation by all defendants, representing approximately 487
hours devoted to legal services by counsel appearing for the five
individual defendants, and by the City Solicitor in behalf of the
City and the same five individual defendants in their official
capacities. Linder does not challenge the individual fee appli-
cations, but asserts that the aggregate hours were not reasonably
required because defendants did not take proper measures to
mitigate fees by delegating jointly-required in-court services
and submitting unitary filings to avoid unnecessary duplication
of services. See Navarro-Ayala, 968 F.2d at 1427 (compensatory
sanctions allowed only for costs reasonably incurred) citing
Thomas v. Capital Sec. Services, Inc., 836 F.2d 866, 879 (5th
Cir. 1988); see also Dubisky v. Owens, 849 F.2d 1034, 1037 (7th
11Another Linder claim that attorney fees are not allow- able under Rule 11 directly contradicts the express language of Fed. R. Civ. P. 11 ("an appropriate sanction . . . may include . . . a reasonable attorney's fee"). See also Mariani v. Doctors
Assocs., Inc., 983 F.2d 5, 8 (1st Cir. 1993); see generally
Charles A. Wright & Arthur R. Miller, 5A Federal Practice &
Procedure, 1336 at 113 (1990) ("attorneys' fees have become the
Rule 11 sanction of choice").
12The district court found that the City is the "only party interested in receiving sanctions," Silva, slip op. at 4 (May 6,
1993), because it had agreed to pay the defendants' counsel fees incurred in this action, id. Consequently, it ordered all
sanctions paid to the City.
Cir. 1988) (similar).
The district court rejected Linder's argument, finding
instead that "if plaintiffs' case had not been so utterly without
merit, this 'redundant' representation might have proved essen-
tial to these defendants," Silva, slip op. at 13 (May 6, 1993),
and therefore that the employment of multiple attorneys during
the merits phrase was reasonably required. We agree that it was
reasonable for the five defendants, in their individual capaci-
ties, to obtain representation by their own counsel while the
merits of plaintiffs' claims remained in litigation, since
counsel to the City represented the individual defendants in
their official capacities only. Linder points to no authority
for the implicit assumption that reasonable mitigation efforts
require that the private interests of parties sued in their
individual capacities must go unrepresented. Cf. Mariani, 983
F.2d at 8 n.5. Nor has he shown that the respective private
interests of these individual defendants during the merits phase
did not conflict to the point that mutual representation was
precluded.13 Cf. Brandt v. Schal Assoc., Inc., 960 F.2d at
640, 648 (7th Cir. 1992) ("[w]e have little sympathy for the
litigant who fires a big gun, and when the adversary returns
fire, complains because he was only firing blanks").
The court further found that "the total time spent by
13Although the district court did not describe their precise nature, Linder does not challenge its finding that there were potential conflicts of interest among the various individual defendants. Thus, Linder failed to demonstrate an abuse of discretion. See Navarro-Ayala, 968 F.2d at 1425.
each attorney on the merits was not excessive." Silva, slip op.
at 13 (Nov. 5, 1992). The court also disallowed all fees for
legal services, except those services directly rendered to the
City, after the point in time when it became clear that no
conflicts of interest precluded the individual defendants' joint
representation by counsel to the City. See Brandt, 960 F.2d at
649 (no failure to mitigate where sanctioned attorney's broad
complaint necessitated investment of extensive attorney time in
defense and district court carefully monitored procedure). A
party is required to mitigate expenses only insofar as is reason-
able. Our review of the record discloses no basis for supposing
that the district court abused its discretion by allowing a
$53,528.81 reimbursement to the City for legal services rendered
during the merits phase. See Navarro-Ayala, 968 F.2d at 1426
("When the district court settles upon a monetary sanction and
fixes a dollar amount, a reviewing tribunal should defer, within
broad limits, to the district court's exercise of its informed
discretion. Nevertheless, the court of appeals must be careful
not merely to 'rubber-stamp the decisions of the district
court.'") (citation omitted).
b. Sanctions Phase
The district court disallowed all fees requested in
relation to the sanctions phase of the litigation except for
those incurred by the City.14 The court found that counsel to
the individual defendants had been notified in advance that the
City no longer believed there existed any conflict of interest
precluding joint representation. Thus, the court allowed only
$21,821.15 in total fees and costs for 188 out of over 1500 hours
expended by all counsel representing defendants during the
sanctions phase. Linder does not challenge the reasonableness of
the fees incurred by the City in the sanctions phase.15
We therefore affirm the district court judgement.
Affirmed.
14The district court adjusted for the additional hearing time required on the section 1988 motion by allowing fees for only 50% of the total time expended by defendants' counsel at the sanctions hearing, a finding not challenged on appeal.
15Linder argues, however, apparently for the first time, that the district court abused its discretion by failing to take into account his financial ability to respond to the fee award. Even assuming this claim has been preserved, Linder presented no evidence concerning his financial condition, nor has he alleged financial inability to satisfy the sanction. Thus, there was no abuse of discretion. See White v. General Motors Corp., Inc.,
908 F.2d 675, 685 (10th Cir. 1990) ("[i]nability to pay what the court would otherwise regard as an appropriate sanction should be treated as reasonably akin to an affirmative defense, with the burden upon the parties being sanctioned to come forward with evidence of their financial status"), cert. denied, 498 U.S. 1069
(1991). We likewise reject Linder's claim that attorney fees reason- ably incurred in the sanctions phase may not be made the subject of a Rule 11 sanction. See Brandt, 960 F.2d at 651 (costs
incurred in litigating request for Rule 11 sanctions in district court recoverable as part of Rule 11 sanction); Robinson v. Dean
Witter Reynolds, Inc., 129 F.R.D. 15, 22 (D. Mass. 1989). Cf.
Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 949-50 (1st Cir.
1984) (reasonable fees and costs incurred in recovering attor- ney's fees under 1988 are reimbursable under 1988). Finally, although Linder argues that Rule 11 sanctions may chill civil rights actions, we cannot agree that a groundless civil rights action is any less appropriate a candidate for Rule 11 sanctions than other groundless actions.