Willis v. City of Oakland

231 F.R.D. 597, 2005 U.S. Dist. LEXIS 27942, 2005 WL 2811764
CourtDistrict Court, N.D. California
DecidedOctober 27, 2005
DocketNo. C 04-2305 VRW
StatusPublished

This text of 231 F.R.D. 597 (Willis v. City of Oakland) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willis v. City of Oakland, 231 F.R.D. 597, 2005 U.S. Dist. LEXIS 27942, 2005 WL 2811764 (N.D. Cal. 2005).

Opinion

ORDER

WALKER, Chief Judge.

On July 26, 2005, the court entered an order finding that plaintiffs’ counsel John L Burris and Miles Washington should be sanctioned pursuant to 28 USC § 1927 and FRCP 11. Doc #36. The July 26, 2005, order is hereby VACATED. This order shall supersede the July 26, 2005 order.

For the reasons discussed below, the court SANCTIONS Messrs Burris and Washington pursuant to FRCP 11. The court OR[598]*598DERS Burris and Washington to pay $10,800 to the court on or before November 15, 2005.

I

On June 19, 2005, the court ordered Burris and Washington to show cause why they should not be sanctioned pursuant to FRCP 11 and 28 USC § 1927. Doc # 30 at 12-14 (the “OSC”). The parties are familiar with the facts underlying the OSC and thus the court need not fully recite them here. Suffice it to say the court concluded that the filing of plaintiffs’ complaint was predicated on an inadequate investigation and that this reckless behavior by Burris and Washington unreasonably and vexatiously multiplied the proceedings in this ease. Id.

Burris and Washington filed their individual responses to the OSC on June 30, 2005. Docs # 32 (Burris Resp); # 33 (Washington Resp). In an order entered July 26, 2005, the court concluded that Burris and Washington had unreasonably and vexatiously multiplied the proceedings in this ease in violation of 28 USC § 1927. Doc # 36 at 5. The court directed defendants to file their request for attorney fees and costs reasonably incurred in (1) drafting and filing their original answer, (2) researching, drafting and filing their motion for judgment on the pleadings and (3) attending the February 24, 2005, hearing. Id. Defendants submitted their request for attorney fees and costs on August 12,2005. Doc #38.

After reviewing the applicable law, the court concludes it cannot sanction the filing of the original complaint with an award of fees under § 1927. “The filing of a complaint may be sanctioned pursuant to Rule 11 or a court’s inherent authority, but it may not be sanctioned pursuant to § 1927.” In re Keegan Mgmt. Co., Securities Litigation, 78 F.3d 431, 435 (9th Cir.1996). This is so because § 1927 “applies only to unnecessary filings and tactics once a lawsuit has begun.” Id.; see also Zaldivar v. City of Los Angeles 780 F.2d 823, 831 (9th Cir.1986) (“[T]he multiplication of proceedings is punished, thus placing initial pleadings beyond [§ 1927’s] reach.”); Matter of Yagman, 796 F.2d 1165, 1187 (9th Cir.), amended, 803 F.2d 1085 (9th Cir.1986). Although the court is ultimately responsible for ensuring that the law is correctly applied in any case, the court notes that Burris and Washington failed to bring this point of law to the court’s attention in their responses to the OSC.

The court now turns to evaluating the propriety of Rule 11 sanctions for the conduct addressed in the July 26 order.

II

“Where, as here, the complaint is the primary focus of Rule 11 proceedings, a district court must conduct a two-prong inquiry to determine (1) whether the complaint is legally or factually ‘baseless’ from an objective perspective, and (2) if the attorney has conducted ‘a reasonable and competent inquiry’ before signing and filing it.” Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002) (quoting Buster v. Greisen, 104 F.3d 1186, 1190 (9th Cir.1997)). In other words, it is not enough that an attorney conducted an insufficient factual investigation before filing the complaint; the complaint must also be, from an objective perspective, legally or factually baseless. See In re Keegan, 78 F.3d at 434-35 (disapproving Unioil, Inc. v. E F Hutton and Co., 809 F.2d 548 (9th Cir.1986)). The inquiry whether the complaint is factually baseless can be stated thus: Would a reasonable attorney have believed plaintiffs complaint to be well-founded in fact based on what a reasonable attorney would have known at the time? See id. at 434.

With these legal principles in mind, the court turns to the responses to the OSC submitted by Burris and Washington.

A

The first two pages of Burris’s response read like a curriculum vitae rather than a response to an order to show cause. While the court does not doubt Burris’s past contributions to the California legal community, these accomplishments do not explain or mitigate Burris’s current behavior. Indeed, Burris’s years of experience and success serve to magnify the egregiousness of the conduct at issue in this case.

Turning to the relevant portions of Burris’ response, Burris claims that, initially, he and [599]*599plaintiffs “had a lengthy discussion about what happened to Gregory Lewis (the decedent) and any related legal claims.” Burris Resp at 3 ¶ 7. Burris claims that “during the meeting[,] plaintiffs gave [him] the names of potential witnesses.” Id. ¶ 8. Burris informs the court:

As is my customary practice, I hired a Private Investigator to follow up with the witnesses whose names were provided by the plaintiffs and to canvass the neighborhood for potential witnesses. The investigator was Harvey Yarbrough. Prior to filing the lawsuit, Mr Yarbrough provided me with an oral report with regard to the status of his investigation. I have been unable to contact Mr Yarbrough at this time regarding this case due to his retirement from private investigation.

Id. ¶ 9.

Burris’s response does not state whether Yarbrough confirmed or refuted plaintiffs’ account of events surrounding the death of Glen Willis. Indeed, Burris does not substantively inform the court regarding anything Yarbrough allegedly told Burris. The court does not know who Yarbrough investigated, what these persons witnessed and relayed to Yarbrough or whether Yarbrough relayed this information to Burris.

Next, Burris states that he contacted Protection and Advocacy Inc (PAI), a publicly funded organization that advocates for the mentally and physically impaired. Id. at 4 ¶ 10. Burris contacted PAI “seeking information about [cases] similarly related” to plaintiffs’ case. Id. Burris states that “[PAI] was somewhat helpful in assessing this case.” Id.

Based on these events alone, Burris asserts that he signed and filed plaintiffs’ complaint “based upon [his] understanding of the facts at the time.” Id. at 4 ¶ 11.

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231 F.R.D. 597, 2005 U.S. Dist. LEXIS 27942, 2005 WL 2811764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willis-v-city-of-oakland-cand-2005.