Unpublished Disposition, 841 F.2d 1129 (9th Cir. 1988)

MEMORANDUM^* 

Nolan appeals the dismissal of and grant of summary judgment as to his unamended complaint. Nolan alleges that prior Hawaii state guardianship proceedings violated his constitutional rights under the First, Fourth, Seventh, and Fourteenth Amendments and under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961, et seq. ("RICO"). The state court proceedings determined that Nolan was unfit to act as the guardian of Mrs. Mitchell and Mrs. Richardson, and held Nolan liable for the misuse of over $500,000. Nolan initially appealed the Hawaii state court judgment, but then abandoned his appeal.

Nolan then filed suit in United States District Court for the District of Hawaii, alleging violations of his First, Fourth, Seventh, and Fourteenth Amendment rights and alleging a conspiracy under RICO. Federal District Court Judge Fong dismissed Nolan's claims as barred by res judicata principles and because the defendants' actions were entitled to sovereign immunity. Nolan took no appeal of that judgment. He then filed the present action. District Court Judge Aguilar dismissed for failure to state a claim, and he granted summary judgment and sanctions against Nolan and his counsel.

The Res Judicata Effect of the Prior Federal Court Judgment

The question whether claim or issue preclusion applies to bar this suit is a mixed question of law and fact, that this court reviews de novo. Little v. United States, 794 F.2d 484, 487 (9th Cir. 1986). However this court has held that the application of the doctrine of res judicata, if available, is reviewed for abuse of discretion. Garrett v. City and County of San Francisco, 818 F.2d 1515, 1520 (9th Cir. 1987).

The prior federal court judgment in Hawaii precludes all of Nolan's claims in this action. Regardless of whether the Hawaii district court correctly decided all of the issues in the prior proceeding, Nolan's failure to appeal that judgment precludes any relitigation of those issues. See Allen v. McCurry, 449 U.S. 90, 94 (1980). Nolan had a full and fair opportunity to litigate the conspiracy and all other issues in the prior federal court proceeding. He is not entitled to another. There is no reason to doubt "the quality, extensiveness, or fairness of procedures followed" in the federal court litigation. Cf. Haring v. Prosise, 462 U.S. 306, 318 (1983) (prior state court judgment is entitled to preclusive effect in federal court).

The principles enunciated in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) operate to bar suit against the San Jose defendants, who arguably are not subject to the claim preclusive effects of the prior federal court judgment. Because the facts supporting the San Jose defendants' enforcement of the Hawaii state court judgment "are inextricably intertwined with the state court's denial in a judicial proceeding of [Nolan's claims]" Id. at 482-84 n. 16, sustaining the claims against the San Jose defendants would require a reinvestigation and redetermination of the federal and Hawaii state court judgments. These issues are therefore precluded from relitigation. See id.

Although the district court in effect refused to allow Nolan the opportunity to amend his complaint because the complaint was dismissed, the inability to amend does not constitute reversible error. Because issue and claim preclusion bar this action, no other additional facts could be pled that would cure the defects in Nolan's complaint. This circuit does not allow futile amendments. Klamath Lake Pharmaceutical Assoc. v. Klamath Medical Service Bureau, 701 F.2d 1276, 1293 (9th Cir.) cert. denied, 464 U.S. 822 (1983); see also Garrett, 818 F.2d at 1519.

The Imposition of Sanctions

Whether specific conduct violates Rule 11 is a legal question which must be reviewed de novo. Golden Eagle Distr. Corp. v. Burroughs Corp., 801 F.2d 1531, 1538 (9th Cir. 1986). The factual determinations concerning the conduct are reviewed under a clearly erroneous standard, and the appropriateness of the sanctions imposed are reviewed for abuse of discretion. See id.

" ' [W]here it is patently clear that a claim has absolutely no chance of success under the existing precedents, and where no reasonable argument can be advanced to extend, modify or reverse the law as it stands, Rule 11 has been violated.' " Id. at 1538 (quoting Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir. 1985)). In this case it was clear that Nolan had no chance of success, given the preclusive effects of the prior federal court decision. Based on the record below as developed by Judge Kimura and as adopted by the district court, the imposition of sanctions for Nolan's abuse of the judicial process and for bringing frivolous claims was appropriate.

Although Hawaii contends that this court lacks jurisdiction to review the amount of fees awarded, the procedural history of these proceedings can be distinguished from that of cases requiring a separate notice of appeal. Here the request for an award of attorneys fees as a sanction under Fed. R. Civ. P. 11 was made as part of the original motion to dismiss. The issue was briefed and argued before the order dismissing the complaint and awarding costs and fees was granted. Thus, Nolan properly appealed from the order awarding costs and fees when he appealed the order dismissing his motion for reconsideration. In the cases upon which Hawaii relies, a motion for an award of attorneys fees under 42 U.S.C. § 1988 was brought after the court granted a motion for summary judgment and resolved the issues on the merits.

This court reviews an award of attorneys fees for abuse of discretion. Kessler v. Associates Fin. Service Co. of Hawaii, Inc., 639 F.2d 498, 499 (9th Cir. 1981). Although a district court's failure to consider the factors outlined in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) cert. denied, 425 U.S. 951 (1976) in determining the amount of an award constitutes an abuse of discretion, this court does not require a detailed review of every factor in order to uphold the award. Harris v. McCarthy, 790 F.2d 753, 758 (9th Cir. 1986). After reviewing the evidence, the district court followed the relevant Kerr factors without explicitly citing to Kerr, and applied those factors when determining the reasonableness of the amount requested by Hawaii. Therefore, no evidence exists that the district court abused its discretion in its award of fees.

Sanctions on Appeal

This court can award attorneys fees as a penalty for frivolous appeals. Fed. R. App. P. 38; 28 U.S.C. § 1912; see also Int'l Union of Bricklayers & Allied Craftsmen Local No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1406 (9th Cir. 1985). "An appeal is frivolous when the result is obvious or the arguments advanced are wholly without merit." In re Peoro, 793 F.2d 1048, 1052 (9th Cir. 1986). In its brief, Hawaii requested an award of double costs and attorney's fees for defending a frivolous appeal. Nolan had the opportunity to respond to this request in its reply brief and at oral argument.

Nolan continued to advance meritless jurisdictional, res judicata and immunity arguments. Some penalty should attach to taking up the court's time with meritless contentions and for requiring Hawaii to shoulder the costs of opposing this appeal. "One of the purposes of sanctions is to encourage attorneys to be reflective about the issues they present for review." Bricklayers, 752 F.2d at 1406. " 'Counsel must realize that the decision to appeal should be a considered one, ... not a knee-jerk-reaction to every unfavorable ruling.' " DeWitt v. Western Pacific Railroad, Co., 719 F.2d 1448, 1451 (9th Cir. 1983) (citations omitted).

This court has imposed sanctions against a party and his or her counsel for a frivolous appeal. See, Bricklayers, 752 F.2d at 1407, n. 8 (court of appeals has inherent power to sanction appellant and counsel jointly and severally; attorney and client are in the best position to determine who caused the appeal to be taken); Larson v. Commissioner, 765 F.2d 939 (9th Cir. 1985); McConnell v. Critchlow, 661 F.2d 116 (9th Cir. 1981) (where claims are barred by statute of limitations, frivolous appeal warranted attorneys fees sanction, imposed jointly and severally against appellant and attorney); Kendrick v. Zanides, 609 F. Supp. 1162 (N.D. Cal. 1985) (liability for Rule 11 sanctions imposed jointly and severally). The result in this case is obviously governed by the res judicata effect of the prior court judgments. Double costs and attorneys fees on appeal are awarded to appellees against Nolan and his appellate counsel, jointly and severally. For purposes of this case, the amount of attorney's fees shall be determined by affidavits of the appellees, which shall be filed within thirty days, and by any opposition thereto, which may be filed by appellant within twenty days thereafter.

AFFIRMED