Unpublished Disposition, 935 F.2d 274 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1989)

Arnold J. KAPAN, U.S. Americans, Inc., Plaintiffs,andRoss L. Williams, Appellant,v.Nicholas E. TABLER, All Pro Championships, Inc., MichaelChesler, International Management Group, ChurchillDowns, Inc., Defendants-Appellees.

No. 90-55157.

United States Court of Appeals, Ninth Circuit.

Submitted June 3, 1991.* Decided June 7, 1991.

Before D.W. NELSON, O'SCANNLAIN and TROTT, Circuit Judges.


Ross Williams, former counsel for plaintiffs, appeals from the district court's imposition of sanctions against him under Rule 16(f). Appellees have made no appearance. We now reverse.

* Unable to cooperate with one another, appellant Williams and his client, Arnold J. Kapan, terminated their relationship on the eve of trial in the underlying action.1  Kapan replaced Williams with new counsel, but because of the lateness of the substitution, the district court was required to grant a continuance, which resulted in additional costs to the defendants. To compensate for these costs, the defendants petitioned the court for sanctions under Rule 16(f). That rule states in full:

If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b) (2) (B), (C), (D) [ (authorizing the imposition of specified sanctions) ]. In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 16(f).

On November 28, 1989, the court granted the petition for sanctions and ordered "that counsel fees and expenses in the amount of $6,147.20 be paid to defendants by plaintiffs ARNOLD J. KAPAN, U.S. AMERICANS, INC., and plaintiffs' prior attorney, Ross L. Williams, a professional law corporation, jointly and severally." Kapan v. Tabler, No. 88-3323 at 2 (C.D. Cal. Nov. 28, 1989). Williams now challenges that order.


* We have proper jurisdiction to entertain this appeal under the collateral order doctrine. See Riverhead Sav. Bank v. National Mortgage Equity Corp., 893 F.2d 1109, 1114 (9th Cir. 1990); Optyl Eyewear Fashion Int'l Corp. v. Style Cos., 760 F.2d 1045, 1047 n. 1 (9th Cir. 1985).

In general, " [w]e review the imposition of sanctions ... under an abuse of discretion standard." Ford v. Alfaro, 785 F.2d 835, 839 (9th Cir. 1986) (reversing imposition of sanctions under Fed. R. Civ. P. 16(f)). We have held, however, that "notice, an opportunity to prepare a defense, and a hearing are required before sanctioning counsel." Miranda v. Southern Pac. Transp. Co., 710 F.2d 516, 522 (9th Cir. 1983) (reversing imposition of sanctions under Local Rule 28 of the Central District of California). In fact, in Miranda,

we h [e]ld that the district court does not have the power to impose monetary sanctions against attorneys without affording them procedural due process as protective as that afforded by Fed. R. App. P. 46(c).13 

Id. at 523 & n. 13. Whether the district court has afforded an attorney these procedural protections is, therefore, a question of law that we review de novo.


We hold that the district court did not provide Williams with adequate notice or an adequate opportunity to be heard before imposing sanctions against him in this case. In their petition for sanctions, the defendants only requested the court "to order Plaintiff to pay the bills and costs for unnecessary appearances in the above-captioned matter." [ER 60 at 8]. Williams therefore had no reason to suspect that he too was a target of the petition, and in fact, when asked by the district court, counsel for the defendants admitted that "we never asked in our moving papers that the award be against prior counsel." [RT at 13]. Indeed, the court initially ruled from the bench that sanctions would only be imposed against "the party plaintiff" itself, and it was not until the plaintiffs new substitute counsel suggested that an award might also be appropriate against Williams that the court decided to impose sanctions against both the plaintiff and his former attorney.

Because the court only first entertained the notion of imposing sanctions against Williams at the sanctions hearing itself, Williams had no notice of the threat of sanctions and no reason to believe that he should be present at that hearing. Indeed, although he was served with a copy of the original Rule 16(f) petition, Williams was not served with any of the parties' subsequent documents--relating either to that petition or to any other matter in the case--because the parties apparently assumed that, after the substitution of counsel, he was no longer relevant to the litigation. Williams therefore did not appear at the sanctions hearing, and he therefore was deprived of an opportunity to defend himself.


For the foregoing reasons, we reverse that portion of the district court's order that imposes sanctions against appellant Williams. Because the basis for our holding is a procedural deficiency, we do not reach the merits of Williams's contention that his conduct did not warrant the imposition of sanctions. Whether the district court wishes to exercise its discretion to reimpose sanctions against Williams on a procedurally sound basis is a question we leave for the district court on remand.



Fed. R. App. P. 46(c) states:

A court of appeals may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested, take any appropriate disciplinary action against any attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with these rules or any rule of the court.


The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit 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 Ninth Circuit R. 36-3


The terms "Williams" and "Kapan" refer to both the individual and the corporate parties in this appeal