Unpublished Disposition, 894 F.2d 409 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 409 (9th Cir. 1988)

FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, Plaintiff-Appellee,v.James H. JORDAN, Defendant-Appellant.

No. 89-35127.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1990.Decided Jan. 19, 1990.

Before EUGENE A. WRIGHT, TANG and CANBY, Circuit Judges.


We consider the district court's dismissal of appellant's motions for sanctions and damages for breach of a settlement agreement on grounds that they were untimely. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.


James H. Jordan, an Oregon lawyer, was the executive vice president of State Federal Savings and Loan Association of Corvallis (State Federal). Late in 1985, he petitioned in bankruptcy. In May of the following year, the Federal Savings and Loan Insurance Corporation, as receiver for State Federal, brought an adversary proceeding objecting to dischargeability of Jordan's debt. The suit against him also alleged fraud.

That suit was one of five which involved the demise of State Federal. It was consolidated with suits against other officers and directors, and a settlement agreement was reached in June 1988 with all parties involved in those cases. Jordan prepared an order, pursuant to which the district court dismissed the suit against him without costs and with prejudice. The order of dismissal was filed July 22, 1988.

Jordan contends that FSLIC breached the agreement on July 26, 1988. On September 30, 1988, he moved in district court for sanctions, damages, contempt, and an injunction. FSLIC then moved to strike his motions. In January 1989, the court granted the motion to strike Jordan's motions for damages and sanctions on grounds that they were untimely. The court struck all other motions for lack of jurisdiction.


Jordan argues that the district court erred when it dismissed as untimely his motions for sanctions and damages for breach of the settlement agreement. He also argues that the court had jurisdiction to consider his other motions. FSLIC counters that the court did not have jurisdiction to hear any of the motions because it had dismissed the case with prejudice and did not expressly retain jurisdiction to enforce the settlement agreement. Alternatively, FSLIC argues that the court acted within its discretion to dismiss the motions as untimely. We turn first to the motion for sanctions.

First we decide whether the court had jurisdiction of the motion for sanctions following a voluntary dismissal under Fed. R. Civ. P. 42(a) (1). Voluntary dismissal of an action does not deprive the court of jurisdiction to consider a motion for sanctions under Fed. R. Civ. P. 11. Greenberg v. Sala, 822 F.2d 882, 885 (9th Cir. 1987). The court had jurisdiction to hear the motion.

Did the court act within its discretion in striking the motion as untimely? The decision whether the Rule 11 motion was timely was within the discretion of the trial judge. Community Elec. Serv. v. National Elec. Contractors Ass'n, Inc., 869 F.2d 1235, 1242 (9th Cir.), cert. denied, 110 S. Ct. 236 (1989). The motion for sanctions was made on September 30, 70 days after the underlying case had been dismissed.

In determining the timeliness of the motion for Rule 11 sanctions, the court followed the lead of the Eighth Circuit and applied a local rule limiting the time within which a party may petition the court for attorney's fees. See Lupo v. R. Rowland & Co., 857 F.2d 482, 484 (8th Cir. 1988), cert. denied, 109 S. Ct. 2101 (1989) (Rule 11 motion for sanctions was timely when made within the 21-day limit prescribed for filing for attorney's fees under local rule). Under Oregon District Court Local Rule 265-4, petitions for fees must be filed within 30 days after entry of judgment. Because Jordan's motion for sanctions exceeded the 30-day limit established for attorney's fees, the court deemed it to be untimely.

The law in this circuit supports the use of local rules in determining the timeliness of motions for Rule 11 sanctions. See Community Electric, 869 F.2d at 1242. In Community Electric, we affirmed the district court's determination that a motion for Rule 11 sanctions was timely when filed within the 30-day limit imposed on requests for attorney's fees under the local rule. Id. Conversely, motions filed beyond the local rule period are untimely. It was within the court's discretion to determine that Jordan's motion was untimely because it was filed long after the period allowed for requesting fees.

II. Damages for Breach of Settlement Agreement

We must also address both jurisdiction and timeliness in considering Jordan's motion for damages for breach of the settlement agreement. We address de novo the question of jurisdiction, but accept the court's findings of fact unless they are clearly erroneous. In re Suchy, 786 F.2d 900, 901 (9th Cir. 1985).

We have held that a district court has the inherent power to enforce a settlement agreement in an action pending before it. TNT Marketing, Inc. v. Agresti, 796 F.2d 276, 278 (9th Cir. 1986); Suchy, 786 F.2d at 902-03. In these cases, the underlying action had been dismissed, but we upheld the court's jurisdiction to enforce the related settlement agreement. TNT, 796 F.2d at 278; Suchy, 786 F.2d at 902-03. That enforcement power included the authority to award damages for failure to comply with the agreement. TNT, 796 F.2d at 278. In this case the court retained jurisdiction to enforce the agreement.1 

We must determine whether the court erred in granting FSLIC's motion to strike on the ground that Jordan's motion was untimely. We review for abuse of discretion a decision as to timeliness of an action to enforce a settlement agreement. Sudeikis v. Chicago Transit Auth., 774 F.2d 766, 769 (7th Cir. 1985); see also In re Gypsum, 565 F.2d 1123, 1128 (9th Cir. 1977) (class action applying abuse of discretion standard to court's disallowance of late claim against settlement fund). We do not substitute our judgment for that of the district court, but will reverse only if we are left with the "definite and firm conviction that [it] committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Barona Group of the Capitan Grande Band of Mission Indians v. American Mgmt. & Amusement, 840 F.2d 1394, 1408 (9th Cir. 1987), cert. dismissed, 109 S. Ct. 7 (1988).

Although the court did not elaborate, it did find that Jordan's explanations for his delay in filing until 66 days after the breach were not acceptable reasons for his tardiness. Nothing in this record persuades us that the court committed a clear error in judgment, and we conclude that it did not abuse its discretion in granting FSLIC's motion to strike.2 

Finally, we affirm the court's dismissal of Jordan's other motions.3  To the extent these requested additional sanctions under Rule 11 or involved enforcing the settlement agreement, they fall within the motion to strike as untimely. To the extent they addressed claims and parties not before the court in this action to enforce the settlement agreement, the court lacked jurisdiction to consider them. Because none of Jordan's substantive motions survived for the court's consideration on the merits, his motions for the appointment of a special master and for continued discovery were also properly denied.



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 Circuit Rule 36-3


FSLIC argues that the court did not retain jurisdiction because it did not expressly incorporate the settlement agreement into its final judgment. We acknowledge that there is conflict among the circuits as to whether a court retains enforcement jurisdiction without such incorporation. See United States v. Sparks, 685 F.2d 1128, 1131 n. 3 (9th Cir. 1982). We need not determine whether this court imposes such a requirement. The district court found that the order dismissing Jordan's claims was " [b]ased upon the stipulation of the parties," and reasonably interpreted that as incorporating the settlement agreement into the order of dismissal


Our affirmance here relates only to the motion to enforce. Jordan did not pursue other avenues available to him, including filing a new action to enforce the agreement or moving to vacate the dismissal under Fed. R. Civ. P. 60(b) (6)


In addition to the motions for Rule 11 sanctions and damages, Jordan also moved to:

(1) add the Federal Home Loan Bank Board as a party;

(2) declare the board and FSLIC in contempt of court;

(3) enjoin the board and FSLIC from continuing their statutory obligations;

(4) dismiss all pending FSLIC actions;

(5) award costs and damages to all other defendants in related actions;

(6) appoint a special master; and

(7) continue discovery.