Unpublished Disposition, 872 F.2d 427 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 427 (9th Cir. 1989)

Wiley C. HERMAN Jr., Plaintiff-Appellant,v.UNITED STATES of America, et al, Defendants-Appellees.

No. 88-1539.

United States Court of Appeals, Ninth Circuit.

Submitted*  Feb. 22, 1989.Decided March 10, 1989.

Before GOODWIN, Chief Judge, and POOLE and BRUNETTI, Senior Circuit Judges.


Wiley C. Herman appeals the district court's denial of his motion to reconsider the denial of his motion to remand to state court his action seeking to prevent the IRS from attaching his wages. He also appeals the imposition of Rule 11 sanctions against him. We affirm.

After a case has been removed to federal court, a district court has authority to remand it anytime before final judgment, if it appears that the case was improvidently removed. 28 U.S.C. § 1447(c). Here, as Herman did not file his motion to remand until five months after the judgment became final, the district court had no authority to remand it. See 28 U.S.C. § 1447(c). Thus, the district court properly dismissed the motion for remand, and the motion for its reconsideration, as moot. See Aquirre v. S.S. Sohio Intrepid, 801 F.2d 1185, 1189 (9th Cir. 1986) (a case is moot when the court is without power to grant relief).

The district court did not abuse its discretion in imposing Rule 11 sanctions against Herman because the record supports the district court's conclusion that Herman was seeking to harass the named defendants and delay the collection of the taxes owed. See Zaldivar v. City of Los Angeles, 780 F.2d 823, 831 (9th Cir. 1986).

Finally, the United States', Harris' and Cancio's request for sanctions on appeal are also granted because the result is obvious and Herman's arguments are wholly without merit. See Fed. R. App. P. 38; Guttuso v. Pecorella, 733 F.2d 709 (9th Cir. 1984). Double costs are taxed for a frivolous appeal.



This case is suitable for submission without oral argument because the legal standard is established and the result is clear. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3