Stone v. Wolff Properties LLC

135 F. App'x 56

Opinions

MEMORANDUM

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Nonparty attorney Richard J. Stone appeals the district court’s order sanctioning him sua sponte pursuant to Rule 11 of the Federal Rules of Civil Procedure. We reverse.

The Local Rules for the District of Oregon provide that the first paragraph of every motion (save a motion for a temporary restraining order) must certify that “[t]he parties made a good faith effort through personal or telephone conferences to resolve the dispute and have been unable to do so....” LR 7.1(a)(1)(A). In connection with a motion for summary judgment filed on behalf of his client, Stone certified that “the parties have made good faith efforts through meetings and telephone conferences to resolve the issues raised by this motion but have been unable to do so.” Following an order to show cause and a hearing, the district court determined that Stone’s certification “was without basis in fact” and cited him for violating Rule 11(b).

The district court clearly erred in finding that the certification lacked any basis in fact. Stone had, in fact, conferred with opposing counsel regarding possible resolution of the dispute, both before and shortly after the action was filed. It is true that the latest of these discussions occurred more than six months before Stone filed the motion for summary judgment in question, but Stone’s certification did not say that the conferences occurred shortly before the filing of the motion. LR 7.1(a) is silent on the subject of timing. Though the discussions took place long before the motion itself was prepared, it is not disputed that the discussions covered the same matters that were later raised and argued in the motion for summary judgment. The language of LR 7.1(a) requires only that counsel certify that an effort was made “to resolve the dispute” and although LR 7.1 is titled “Motions Practice — Generally,” the text of the rule does not specify that the contemplated motion must itself be discussed.¹

We do not dispute the district court’s interpretation of LR 7.1(a). Violation of a rule does not necessarily constitute violation of Rule 11, however. Though it may have been unreasonable for Stone to have thought that conferences from the distant past satisfied LR 7.1, it simply is not true that his statement was false or, taking his statement as a factual contention, that it did not have, in the words of Rule 11(b)(3), “evidentiary support.” The certification accurately reflected historical events.

Moreover, the circumstances here were such that it is implausible to conclude that Stone intended to deceive the court or presented his certification for an improper purpose, which could have constituted a violation of Rule 11(b)(1). Stone’s certification was served on counsel for the opposing party, who necessarily knew what discussions had taken place. As Stone was aware, that opposing attorney was capable of advising the court about when the discussions took place, as in fact he did. The district court might well have concluded at that point that Stone’s certification did not satisfy the requirements of LR 7.1(a)(1) and denied Stone’s summary judgment motion on that ground, as provided in LR 7.1(a)(2). A lawyer’s unreasonable interpretation of a rule can properly result in negative consequences. That is not the issue before us, however. Rule 11 does not authorize sanctions for all conduct of which a court might disapprove.

“[S]ua sponte sanctions will ordinarily be imposed only in situations that are akin to a contempt of court.” United Nat'l Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1116 (9th Cir.2001) (citation and internal quotation marks omitted). Stone’s conduct, though perhaps not laudable, was not so “egregious” as to be considered “beyond the pale.” See id. at 1116-18.

REVERSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1

. The dissenting opinion makes reference to a local rule from the Central District of California. We note, though, that the California rule, as quoted by the dissent, is considerably more specific than the rule at issue here in regard to both the timing and the substance of a pre-filing discussion. In particular, it makes explicit reference of action to be taken by counsel "contemplating the filing of [a] motion,” and requires that the attorneys "discuss thoroughly ... the substances of the contemplated motion.”