Unpublished Disposition, 872 F.2d 426 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 872 F.2d 426 (9th Cir. 1987)

BANK OF ASTORIA, an Oregon corporation, Plaintiff-Appellee,v.Dolores HOBIZAL, successor to Lyle W. Blanton, personalrepresentative of the Estate of Ruth M. Remington,Deceased; Phyllis Ingram, Defendants,andJulia Ann Stewart, Defendant-Appellant.

No. 87-4452.

United States Court of Appeals, Ninth Circuit.

Submitted*  Feb. 28, 1989.Decided March 22, 1989.

Before MERRILL, EUGENE A. WRIGHT and BEEZER, Circuit Judges.


Julia Stewart (Stewart), one of several defendants in a mortgage foreclosure action initiated by the Bank of Astoria (Bank) in Oregon state court, appeals pro se the district court's imposition of Rule 11 sanctions against her. The Bank seeks sanctions on appeal. We affirm the district court and impose sanctions for this frivolous appeal from the district court's order.

On August 30, 1986, the Bank initiated a mortgage foreclosure action in an Oregon state court to foreclose property in Ruth M. Remington's estate. Delores Hobizal, the personal representative of the Estate, Phylis Ingram, Julia Stewart and Jesse Bower, Stewart's brother, are defendants challenging the foreclosure action. Bower petitioned for removal of the action to federal district court on the basis of federal question jurisdiction. On September 23, 1986, the district court determined that there was no federal question jurisdiction and accordingly remanded the action to the Oregon state court from which it had been removed.

On June 26, 1987, Stewart petitioned for removal of the same action to federal court on the grounds of diversity and federal question jurisdiction. The Bank moved for dismissal of Stewart's petition for removal, remand, and for Fed. R. Civ. P. 11 sanctions against Stewart on the grounds that her petition for removal was frivolous. On September 14, 1987, the magistrate to whom the matter had been referred issued findings and recommendations determining that: (1) there was no removal jurisdiction, and (2) since this case had already been removed and remanded once, Stewart was on notice that there was no removal jurisdiction and an award of sanctions against her was appropriate.

The district court adopted the magistrate's findings and recommendations, remanded the case to the Oregon State Circuit Court, and sanctioned Stewart in the amount of $1,072.00. Stewart timely appeals the district court's imposition of sanctions.

When, as here, the district court's legal conclusion that the facts constitute a violation of the Rule is challenged, we review a district court's imposition of Rule 11 sanctions de novo. Zaldivar v. City of Los Angeles, 780 F.2d 823, 828 (9th Cir. 1986).

Stewart contends that the district court erred in awarding Rule 11 sanctions against her.1  This contention lacks merit. Fed. R. Civ. P. 11 states that a party's or an attorney's signature constitutes a certificate that to the best of her knowledge, information and belief, after a reasonable inquiry, the paper she is filing is well grounded in fact and is warranted by existing law or a good faith extension, modification or reversal of existing law. Fed. R. Civ. P. 11; In re Disciplinary Action of Mooney, 841 F.2d 1003, 1005 (9th Cir. 1988). The applicability of Rule 11 is measured by an objective standard; subjective good faith is irrelevant. Mooney, 841 F.2d at 1005. "The key question in assessing frivolousness is whether a complaint states an arguable claim--not whether the pleader is correct in her perception of the law." Hudson v. Moore Business Forms, Inc., 836 F.2d 1156, 1159 (9th Cir. 1987). While Rule 11 applies to both represented and pro se litigants, courts may consider the special circumstances of litigants who are untutored in the law. See Fed. R. Civ. P. 11 advisory committee's notes; compare Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (pro se pleadings held to a less stringent standard than pleadings drafted by attorneys). Nonetheless, a district court may award Rule 11 sanctions against a pro se litigant for filing a frivolous claim. See Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1037 n. 13 (9th Cir. 1985).

Stewart's petition alleged diversity and federal question jurisdiction as grounds for removal. First, the basic law establishing the requirement of complete diversity where there are several plaintiffs or defendants is well established. See Mooney 841 F.2d at 1005. It is patently clear that complete diversity does not exist in this action. Stewart's claim of diversity jurisdiction was, objectively measured, frivolous.

Second, Stewart was on notice that there was no federal question jurisdiction because the district court denied her brother and codefendant's removal petition alleging federal question jurisdiction as a ground for removing this case.2  Accordingly, Stewart's filing of a second removal petition, alleging the same facts which the district court earlier had found did not confer federal question jurisdiction, was objectively frivolous. Because Stewart's removal petition had no basis in fact or in law, the district court did not err in sanctioning Stewart pursuant to Rule 11. See Mooney, 841 F.2d at 1005; Hewitt v. City of Stanton, 798 F.2d 1230, 1233 (9th Cir. 1986). The amount awarded by the district court was neither excessive nor an abuse of discretion. Id. We accordingly affirm the sanctions imposed by the district court.

The Bank contends that this appeal is frivolous and requests sanctions. We have stated that not every appellee who succeeds in preserving an award of sanctions is entitled to fees incurred in defending such an award on appeal. Orange Prod. Credit Ass'n v. Frontline Venture's, Ltd., 801 F.2d 1581, 1582 (9th Cir. 1986). However, we have stated that when a removal petition is clearly frivolous, a district court's imposition of Rule 11 sanctions is appropriate. Id. at 1583. Further, if the appeal from such an award is wholly without merit, sanctions on appeal may be granted. Id. We conclude that such sanctions are appropriate in this case. Id. The Bank has requested fees in the amount of $1,876.50. That amount is reasonable and we grant the same.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4


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


The Bank contends that Stewart's appeal to this court is precluded by her failure to object to the magistrate's findings and recommendations with the district court. This contention lacks merit. We recently held that failure to object to a magistrate's recommendations does not preclude appellate review. Greenhow v. Secretary of Health & Human Services, 863 F.2d 633, 636 (9th Cir. 1988)


Stewart and Bower both alleged federal question jurisdiction under the fifth, seventh and fourteenth amendments. Stewart raises for the first time on appeal that there is federal question jurisdiction because the allegedly wrongful foreclosure would occur on federally patented land. We decline to review this legal argument raised for the first time on appeal. See McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)