Unpublished Disposition, 921 F.2d 279 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 921 F.2d 279 (9th Cir. 1988)

Nos. 88-15618, 89-15551.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and CANBY, Circuit Judges, and LEW,*  District Judge.

MEMORANDUM** 

Plaintiff/appellant David M. Chisholm appeals the district court's (i) denial of Chisholm's motion to remand this case to state court, (ii) dismissal of the intentional interference with prospective advantage claim for relief, (iii) grant of summary judgment in defendants' favor on the claim for relief under ERISA and for wrongful discharge, (iv) disqualification of attorney James Green as counsel for Chisholm, (v) denial of Chisholm's post judgment motions for a new trial and reconsideration of, vacation of, and relief from the summary judgment and disqualification orders, and (vi) award of attorney fees to defendants. Defendants/appellees AWI dba SCI Manufacturing (successor to Pousto Corporation) and SCI Systems, Inc. oppose and request attorney fees and costs on appeal. Defendants Mutual of New York and Cask Associates do not respond.

For the reasons discussed below, the Court affirms all of the district court's rulings, and denies appellee's request for attorney fees and costs on appeal.

BACKGROUND

Chisholm was employed by Pousto Corporation since January 14, 1980 in various capacities, with his primary responsibility being oversight of the company's accounting department. On March 28, 1986 Pousto Corporation was acquired by AWI/SCI. Pursuant to the acquisition, Chisholm received a written employment contract from the new management, which contract became effective immediately. Chisholm's employment contract provided for a term of three months at a salary of $2,500 every two weeks. Paragraph 4(b) of the employment contract provides:

This Agreement and Employee's employment by the Company hereunder may be terminated prior to the expiration of the Initial Term or any extended term hereof (i) by mutual agreement of the Employee and the Company; (ii) by the Company immediately for Cause; (iii) by the Company without Cause upon not less than sixty (60) days notice; (iv) by the Company upon the Disability of the Employee; and (v) upon the death of Employee.

The employment contract also provided dental insurance for Chisholm. The employment contract was presented to Chisholm by attorney James Green, who was an attorney for Pousto Corporation at the time. Chisholm signed the employment contract and worked for the new management subsequent to the acquisition. Subsequently, a long term need for Chisholm's services was eliminated due to centralization of the accounting functions at SCI System's headquarters in Alabama. On or about April 11, 1986 (approximately two weeks after the employment contract was executed), Chisholm was informed that he need not report to work on a day-to-day basis, but that he should remain available to consult and assist as needed for the balance of the term of his employment contract. Chisholm performed some services during the remaining term of the contract. Defendants then allowed the employment contract to lapse without renewal at the end of the three month term. Chisholm received his regular pay on a bi-weekly basis from April 11 to the end of the three month term. Chisholm does not contend that there are any sums due him under the terms of the employment contract.

In late October 1986, subsequent to leaving the employ of Pousto Corporation, Chisholm sought preauthorization of extensive dental work totalling $11,441. Chisholm sought to have the work paid for by Pousto Corporation's dental insurance plan administered by defendant Mutual of New York. As evidenced by a letter dated January 12, 1987 from William Nilva (service specialist for Mutual of New York) to Dr. Richard Forman (Chisholm's dentist), a letter dated April 8, 1987 from John Ross (counsel for Mutual of New York) to James Green (as attorney for Chisholm), and a letter dated April 16, 1987 from James Green to John Ross, defendants authorized the dental work and acknowledged and confirmed that Chisholm's dental claim would be covered. Nevertheless, Chisholm on April 10, 1987 filed a complaint in the San Francisco Superior Court, which complaint was never served, and filed an amended complaint on April 22, 1987, essentially alleging wrongful denial of dental benefits and wrongful discharge, against AWI/SCI/Pousto and Mutual of New York.1 

REMAND

Defendants removed the action to federal court. Chisholm moved to remand, which motion was denied. Chisholm now argues that the district court's denial of his motion to remand was erroneous because the case was not removed in a timely fashion in that the petition for removal was filed more than 30 days after defendants received notice of the action.

A district court order denying a motion to remand is subject to de novo review. Laws v. Calmat, 852 F.2d 430, 432 (9th Cir. 1988).

Letters were sent to defendants via certified mail on April 16, 1987 advising defendants of the number of the case and date filed, but were not accompanied by a copy of the complaint. Another letter was sent to Mutual of New York dated April 29, 1987 with a copy of the amended complaint, which letter and complaint were received by Mutual of New York on May 4, 1987. The complaint was not served prior to that date. Mutual of New York provided a copy of the amended complaint to the other defendants who agreed to remove the action to federal court. The petition for removal was filed on June 3, 1987. Chisholm moved to remand the case to superior court. By order dated August 17, 1987, the district court denied that motion.

28 U.S.C. § 1446(b) provides, "The notice of removal of any civil action shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based."

A split of authority exists interpreting the language of Sec. 1446(b) as to whether the time for removal begins to run upon receipt of the complaint alone or only upon proper service of the complaint. Thomason v. Republic Insurance Company, 630 F. Supp. 331 (E.D. Cal. 1986). Under either view, however, the instant action was timely removed because the petition for removal was filed within 30 days of receipt of the complaint by defendants. No authority exists for the proposition that the petition for removal must be filed within 30 days of the time a defendant is first advised of the existence of the litigation. No authority exists because a defendant cannot be expected to determine whether an action is removable until he receives and is able to read the complaint.

DISMISSAL OF INTERFERENCE WITH PROSPECTIVE ECONOMIC

ADVANTAGE CLAIM

The amended complaint asserted claims for (1) declaratory relief, (2) breach of insurance contract, (3) breach of an implied covenant of good faith and fair dealing, (4) wrongful discharge, (5) intentional interference with prospective economic advantage ("IIPEA"), and (6) breach of statutory duties under California Insurance Code Sec. 790.03. On July 27, 1987, defendants moved to dismiss all these claims except the wrongful discharge claim on the ground that they were preempted by ERISA. By order dated September 9, 1987, the district court granted defendant's motion thereby dismissing counts 1, 2, 3, 5 and 6 of the complaint, and granted Chisholm leave to amend to assert claims actionable under ERISA. Chisholm subsequently filed another amended complaint asserting claims for (1) relief under ERISA, (2) wrongful discharge, (3) IIPEA, and (4) breach of statutory duties under California Insurance Code Sec. 790.03. The third and fourth claims had previously been dismissed on the ground that they were preempted by ERISA. Defendants again moved to dismiss counts 3 and 4 with prejudice, and their motion was granted by order dated December 7, 1987. Chisholm only appeals the dismissal of the IIPEA claim.

The decision to grant a motion to dismiss, and conclusion of law regarding preemption of state law claims, are subject to de novo review. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983); Johnson v. District 2 Marine Engineers Beneficial Association, 857 F.2d 514, 517 (9th Cir. 1988).

The IIPEA claim alleges that AWI/SCI (not Mutual of New York) was aware of Chisholm's employment with Pousto and intentionally caused Chisholm to be terminated from Pousto without cause thereby causing Chisholm to lose the benefits of his employment. It is clear that "all suits brought by beneficiaries or participants asserting improper processing of claims under ERISA-covered plans" are governed by ERISA. Pilot Life Insurance Company v. Dedeaux, 481 U.S. 41, 56, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987). Chisholm argues that the IIPEA claim in the instant case is not based on the denial of the dental benefit claim, but rather is based on interference with Chisholm's employment with Pousto and the loss of wages and other benefits of employment, and that this type of claim is not preempted by ERISA. However, as the district court pointed out in the first dismissal order, that portion of the IIPEA claim that seeks recovery of insurance benefits is clearly preempted by ERISA, and the remainder is subsumed by the wrongful discharge claim. In addition, AWI/SCI could not interfere with Chisholm's employment with Pousto because Pousto was wholly owned by AWI/SCI and thus could not interfere with Chisholm's employment with itself; in other words, Chisholm does not allege that any third party interfered with his employment. See, DeHorney v. Bank of America National Trust and Savings Association, 879 F.2d 459, 464-65 (9th Cir. 1989). The IIPEA claim was properly dismissed.

SUMMARY JUDGMENT

On July 14, 1988, defendants filed a motion for summary judgment on the only remaining claims, i.e. count 1 for relief under ERISA and count 2 for wrongful discharge. Chisholm opposed and moved to continue the summary judgment hearing and compel discovery and resolve other discovery disputes so that Chisholm could obtain discovery necessary to oppose the summary judgment motion. The district court took the matter under submission without oral argument due to the district judge's illness and granted the motion by order entered August 31, 1988.

The decision to grant a motion for summary judgment is subject to de novo review. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983). The denial of a motion for additional discovery under Fed. R. Civ. P. 56(f) is reviewed only for abuse of discretion. Landmark Development Corporation v. Chambers Corporation, 752 F.2d 369, 373 (9th Cir. 1985).

Chisholm argues that the district court's decision must be reversed because the district court did not entertain oral argument. This argument is meritless in view of Fed. R. Civ. P. 78 which provides that to expedite its business a district court may make provision by rule or order for the submission and determination of motions without oral hearing.

Chisholm next argues that the district court's decision must be reversed because the district court failed to continue the hearing so that Chisholm could obtain discovery necessary to present a defense. Fed. R. Civ. P. 56(f) provides,

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Chisholm argues that he did not have the opportunity to depose Mutual of New York service specialist William Nilva prior to the entry of summary judgment because Mr. Nilva failed to appear at his deposition noticed for June 30, 1988. Chisholm also argues that certain unspecified documents of AWI, SCI Systems and Pousto were needed to respond to the motion. A party opposing summary judgment is required to provide "specific facts" showing that a genuine issue of material fact for trial exists, or explain why he cannot immediately do so. Fed. R. Civ. P. 56(e), (f). A Rule 56(f) request must demonstrate how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact. The nonmovant may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts. United States v. $5,644,540.00 in U.S. Currency, 799 F.2d 1357, 1363 (9th Cir. 1986). In addition, a Rule 56(f) motion is not justified if the party seeking further discovery has been dilatory in conducting discovery. See, Landmark Development Corporation v. Chambers Corporation, 752 F.2d 369, 372-373 (9th Cir. 1985). Here, Mutual of New York confirmed dental coverage for Chisholm in a letter dated January 12, 1987 from Mutual of New York service specialist William Nilva to Chisholm's dentist Dr. Richard Forman, and in another letter dated April 8, 1987 from counsel for Mutual of New York John Ross to Chisholm's attorney James Green. Mr. Green acknowledged that coverage confirmation in a letter from Mr. Green to Mr. Ross dated April 16, 1987. Chisholm does not specify what evidence he desired to elicit from Mr. Nilva which would raise a question of fact as to whether a denial of coverage occurred; indeed, Mr. Nilva's deposition testimony could not raise a genuine issue of fact in view of the letters confirming and acknowledging confirmation of coverage. In addition, Chisholm's lack of diligence in pursuing discovery is evidenced by the fact that he did not serve notice of Mr. Nilva's deposition until June 17, 1988, just 13 days before the discovery cutoff and over a year since the commencement of the case. With respect to the documents allegedly required, Chisholm fails to specify how any such documents could raise a genuine issue of material fact relating to an employment contract which expressly provided that the employment could be terminated without cause. The district court did not abuse its discretion in denying Chisholm's motion for additional discovery and a continuation of the hearing on the summary judgment motion.

Chisholm finally argues that the district court erred in granting the motion in that genuine questions of material facts were present which precluded entry of summary judgment. With respect to the ERISA claim, the district court found as follows:

Here, the facts clearly show that plaintiff's insurance claim was not denied. Plaintiff sought preauthorization for this work in October, 1986, after his employment with Pousto Corporation had terminated. Apparently, there was some concern by [Mutual of New York] over whether plaintiff was still eligible for coverage, because his claim was not filed until after he had been terminated. However, the letter of [Mutual of New York] counsel John J. Ross to John [sic] Paul Green, dated April 8, 1987, clearly indicates that SCI and [Mutual of New York] agreed to compensate plaintiff for his dental work up to the full amount of coverage under the policy. This fact is confirmed by a letter from James Green to John J. Ross dated April 16, 1987. Defendants approved his request for benefits, extended the time for plaintiff to get the dental work done, and provided a full year's worth ($11,000) of benefits to him. Plaintiff simply has presented no evidence that his claim for benefits was wrongfully denied. Accordingly, defendants' motion for summary judgment as to Count One is granted.

A review of the declarations and other evidence submitted in support of Chisholm's opposition to the summary judgment motion reveals that the district court was correct in determining that Chisholm "simply has presented no evidence that his claim for benefits was wrongfully denied." On appeal Chisholm has again presented no evidence of a denial of his claim. With respect to the wrongful discharge claim, the district court found as follows:

Under p 4(a) of [the employment contract], plaintiff's employment terminated on the third monthly anniversary of the contract's effective date unless extended by mutual agreement of the parties. Paragraph 4(b) provided that plaintiff's employment could be terminated prior to the expiration of the agreement's initial term, inter alia, (i) by mutual agreement; (ii) immediately by Pousto for cause; or (iii) by Pousto without cause upon not less than 60 days notice.

Plaintiff contends that he was wrongfully terminated because Pousto terminated his employment without cause. The uncontested facts disprove this argument for several reasons. First, plaintiff has admitted in deposition testimony that he received full compensation for the entire initial three-month term of the agreement.... There was no term or condition, either express or implied, that required Pousto to employ plaintiff beyond the agreement's three-month term. Paragraph 4(a) expressly provided that the employment relationship terminated three months after the agreement's effective date unless extended by mutual agreement of the parties. Plaintiff has presented no evidence that the parties entered into any mutual agreement to extend plaintiff's employment beyond the contract's three-month term.

Second, even if this Court considers defendant Pousto's notification to plaintiff on April 11, 1986, that he need not report to work on a day-to-day basis for the remainder of the three-month term of the employment agreement to be termination without cause, this termination complied with the terms of the contract. Subparagraph 4(b) (iii) permitted Pousto to terminate plaintiff without cause provided he was given more than 60 days notice. Plaintiff received more than 60 days notice of his termination, as he continued to receive full compensation under the contract until June 28, 1986. Accordingly, the Court finds that the undisputed facts show that Pousto did not breach of [sic] any of the employment agreement's terms, and therefore plaintiff was not wrongfully terminated.

Again, the declarations and other evidence submitted in support of Chisholm's opposition to the summary judgment motion reveals that the district court was correct in determining that Chisholm "presented no evidence that the parties entered into any mutual agreement to extend plaintiff's employment beyond the contract's three-month term," and Chisholm has presented no such evidence on appeal. Accordingly, the district court's decision on this issue should be affirmed.

DISQUALIFICATION OF MR. GREEN

As stated above, Chisholm initially retained Mr. Green to represent him in this matter. Concurrently with the motion for summary judgment defendants moved to disqualify Mr. Green as attorney for Chisholm on the ground of conflict of interest in that Mr. Green previously represented Pousto. The district court granted that motion. Chisholm now argues that said grant was erroneous in that (1) defendants' delay in bringing the motion to disqualify constituted a waiver, and (2) disqualification was not warranted under the applicable authority.

This Court will not reverse an order disqualifying an attorney absent an abuse of discretion. The test for disqualification is whether the former representation is "substantially related" to the current representation. The rule prevents attorneys from accepting representation adverse to a former client if the later case bears a substantial connection to the earlier one. Substantiality is present if the factual contexts of the two representations are similar or related. If there is a reasonable probability that confidences were disclosed which could be used against a client in later, adverse representation, a substantial relation between the two cases is presumed. In addition, it matters not whether confidences were in fact imparted to the lawyer by the client; the substantial relationship between the two representations is itself sufficient to disqualify. However, the former client may expressly or impliedly waive his objection and consent to the adverse representation by failing to object within a reasonable time. Trone v. Smith, 621 F.2d 994, 998-999 (9th Cir. 1980); Trust Corporation of America v. Piper Aircraft Corporation, 701 F.2d 85, 87-88 (9th Cir. 1983).

Here, Mr. Green formerly represented Pousto and in fact was involved in the negotiation and execution of plaintiff's employment contract with Pousto. This action is based on Chisholm's employment with Pousto. Thus the former and latter representations are more than substantially related; they are identical in that they involve the precise same employment contract. Chisholm argues that Mr. Green never represented either AWI or SCI; however, the fact that AWI/SCI acquired Pousto after Mr. Green's representation does not change the fact that Mr. Green formerly represented Pousto with respect to the employment contract and subsequently represented Chisholm with respect to that same contract. With respect to waiver, Mr. Green began representing Chisholm in April of 1987, but defendants did not move to disqualify until July of 1988. The district court found there was no undue delay because the nature and extent of Mr. Green's involvement in discussions relating to the employment contract first came to light during Chisholm's deposition on May 27, 1988 and June 7, 1988. This decision was not an abuse of the district court's discretion.

POST JUDGMENT MOTIONS

Subsequent to the entry of summary judgment in defendants' favor and the disqualification of Mr. Green, Mr. Green filed on Chisholm's behalf motions for reconsideration of, vacation of, and relief from the summary judgment and disqualification of Mr. Green and for a new trial. The district court denied those motions without prejudice on the ground that the motions were advanced through the previously disqualified Mr. Green. Chisholm did not renew those motions, but elected to pursue this appeal instead. A district court's decision to deny post judgment motions such as these is reviewed for abuse of discretion. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985). The district court did not abuse its discretion here.

DISTRICT COURT AWARD OF ATTORNEY FEES

The district court awarded attorney fees in the amount of $113,241.85 to AWI and SCI and in the amount of $27,367.50 to Mutual of New York. Chisholm argues that this award was erroneous. The Court is concerned about the appropriateness, the amount and the scope of the award. Accordingly, the matter is remanded to the district court for reconsideration of this issue.

Appropriateness of the Award

A court may award reasonable attorney fees and costs to either party in an action under ERISA by a plan participant, beneficiary or fiduciary to recover benefits or to enforce or clarify rights under an employer welfare benefit plan. 29 U.S.C. § 1132(g) (1). This Court will only disturb such an award upon a showing of abuse of discretion. The following factors should be considered in determining whether to award attorney fees under ERISA: (1) the degree of the opposing party's culpability or bad faith; (2) the ability of the opposing party to satisfy an award of fees; (3) whether award of fees against the opposing party would deter others from acting in similar circumstances; (4) whether the party requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties' positions. Carpenters Southern California Administrative Corporation v. Russell, 726 F.2d 1410, 1415 (9th Cir. 1984); Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980).

Degree of culpability. Chisholm sought by this lawsuit to recover dental benefits which Chisholm was never denied and which were expressly approved. The district court found that Chisholm "elected to pursue a personal vendetta against the defendants instead of having his teeth fixed." With respect to the wrongful termination claim, the employment contract provided that Chisholm's employment terminated three months after its effective date unless extended by mutual consent of the parties. Chisholm was paid in full for the entire term and the agreement was not extended. In addition, the employment contract permitted Pousto to terminate Chisholm without cause upon 60 days notice. Chisholm was terminated April 11, 1986 and was paid in full through June 28, 1986. Based on these facts, the district court found that Chisholm's conduct was highly culpable.

Ability to satisfy award. Chisholm was employed by Pousto from January 1980 to June 1986 at an annual salary of $65,000, and had sufficient personal resources to allow him to avoid working until March of 1988, at which time he began working at his brother's trucking company handling various financial and administrative matters. At the time the fees were awarded Chisholm was still working for this trucking company. The district court found that Chisholm had the ability to satisfy the award.

Based on the evidence presented, the Court finds it unclear whether Chisholm in fact has the ability to satisfy the award. The transcript of Chisholm's deposition and the district court order granting attorney fees indicate that Chisholm was earning $65,000 per year at Pousto when he was terminated in June 1986 and that Chisholm did not work again until March 1988. According to these documents, Chisholm began working for his brother's trucking company in March 1988, receiving $1,000 worth of ownership in the company per month as compensation. At the time of the deposition, Chisholm indicated he was using personal cash to meet ordinary living expenses. These facts seem to indicate that Chisholm may not be able to satisfy the award of $140,000 in attorney fees.

Deter frivolous suits. Defendants were required to litigate nonexisting issues, contend with unsupported pleadings and motions, and conduct needless discovery. The district court found that an award of attorney fees in this case would deter plaintiff, his counsel, and others similarly situated from pursuing such frivolous litigation.

Beneficiaries, significant legal question. The district court found the question of whether the party requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA to be irrelevant in this case. The Court disagrees. Defendant's position did not benefit participants or beneficiaries of an ERISA plan, and this action did not resolve a significant legal question. This factor weighs against an award of attorney fees in this case and should have been considered in the district court's analysis.

Relative merit of positions. Chisholm's position in this matter was substantially without merit.

Upon reviewing these factors and the evidence presented, the Court is concerned about the analysis employed by the district court in determining to award attorney fees. On remand, the district court should consider whether its award is appropriate in light of this Court's analysis.

Amount of the Attorney Fee Award

The factors to consider in determining the amount of attorney fees to award are set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). The factors are (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill required to perform the legal service properly; (4) the preclusion of other employment due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) award in similar cases. The district court considered these factors, and the documentation submitted by defendants, in determining the amount to award.

Upon reviewing these factors and the evidence submitted, the Court finds the amount of the award excessive. The fact that Chisholm's claims were essentially frivolous suggests that several of the factors weigh toward a lesser award: the action did not warrant much time and labor; the legal issues were not novel or difficult; a great level of skill was not required to perform the legal service properly; and the likelihood of success in the case indicates that it was not undesirable, but rather quite desirable. Accordingly, the district court should reevaluate the amount of the award in light of this analysis.

Scope of the Award

As noted above, reasonable attorney fees and costs may be awarded to either party in certain actions under ERISA. Such an award is not available in this case for fees incurred defending claims unrelated to the ERISA claim. The district court's award appears to cover fees involving unrelated claims, however, including the wrongful discharge and disqualification of attorney matters. On remand, the district court is to determine whether its award covered fees involving claims unrelated to the ERISA claim. If it does, the district court must adjust its award to exclude costs incurred in defending claims unrelated to the ERISA claim.

ATTORNEY FEES ON APPEAL

Defendants request an award of attorney fees and costs on appeal under ERISA, 29 U.S.C. § 1132(g), and double attorney fees and costs as a sanction for bringing a frivolous appeal under 28 U.S.C. § 1912, Fed. R. App. P. 38 and 39, and Circuit Rule 39-1.6.

Circuit Rule 39-1.6 provides, "... A party who intends to request attorneys fees on appeal shall include in its opening brief a short statement of the authority pursuant to which the request will be made." Defendants did so here.

28 U.S.C. § 1912 provides, "Where a judgment is affirmed by the Supreme Court or a court of appeals, the court in its discretion may adjudge to the prevailing party just damages for his delay, and single or double costs." Defendants have prevailed on this appeal.

29 U.S.C. § 1132(g) (1) provides, "In any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." This section was intended to grant the district courts power to award attorney fees rather than the appellate courts.

Fed. R. App. P. 38 provides, "If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee." Here, Chisholm filed his papers pro se and is obviously unfamiliar with the substantive and procedural law at issue here. Thus, the Court concludes that an award of attorney fees on appeal is not warranted.

Fed. R. App. P. 39(a) provides that "if a judgment is affirmed or reversed in part, ... costs shall be allowed only as ordered by the court." Again, in view of the fact that Chisholm is appearing pro se, this Court denies defendants' request for costs on appeal.

CONCLUSION

The district court's orders regarding the motion to remand, interference with prospective economic advantage, summary judgment, attorney disqualification and post-judgment motions as discussed above are affirmed. The district court's order awarding attorney fees is remanded for reconsideration consistent with this opinion. Defendant's request for attorney fees and costs on appeal is denied.

AFFIRMED AND REMANDED FOR RECONSIDERATION OF THE ATTORNEY FEES AWARD.

 *

The Honorable Ronald S.W. Lew, United States District Judge for the Central District of California, sitting by designation

 **

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 Cir.R. 36-3

 1

Chisholm also named Cask Associates as a defendant; what role Cask played in this matter is not clear, but appears that Cask was never served with the complaint