Unpublished Disposition, 937 F.2d 613 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 613 (9th Cir. 1991)

Vernon STEWART, Patricia A. Stewart, Richard Lewis, et al.,Plaintiffs-Appellants,v.LONE STAR INDUSTRIES, INC., Intl Brotherhood of Teamsters,Chauffeurs, Bay Area Bldg Material Teamsters Local8, Defendants-Appellees.

No. 90-15937.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 1991.Decided July 16, 1991.

Before BRUNETTI, KOZINSKI and RYMER, Circuit Judges.


MEMORANDUM* 

Attorney Leslie Soroch O'Donnell appeals an order imposing Rule 11 sanctions against her for failing to dismiss seven of eleven plaintiffs in a suit alleging breach of a collective bargaining agreement. The district court granted Lone Star's motion for summary judgment on the ground that there was an insufficient showing to establish that seven of eleven plaintiffs would have had sufficient seniority rights to benefit from a breach, even if proved. It then concluded that plaintiffs' attorney violated Rule 11 by not dismissing the seven.

The district court first erred in failing to state any reason for its award. Even though we review sanctions under Rule 11 for abuse of discretion, Cooter & Gell v. Hartmarx Corp., --- U.S. ----, ----, 110 S. Ct. 2447, 2461, 110 L. Ed. 2d 359, 381 (1990), absent findings of fact and some explanation of reasons, there is little to defer to.

Although it quoted the Rule, the court made no finding that any pleading filed by O'Donnell was filed without reasonable inquiry and without adequate basis in law or fact, or for purposes of harassment. Instead it appears to have granted Lone Star's motion for sanctions for the same reason it ruled in its favor on summary judgment, that O'Donnell "failed 'to make a showing sufficient to establish' that the seven Plaintiffs in question would have had sufficient seniority rights [to benefit from the claim]. Rather, plaintiffs rely on speculation which actual events have proved unfounded." This is not the proper standard for Rule 11: Rule 11 requires that at the time of signing, a pleading be well grounded in fact "to the best of the signer's knowledge, information, and belief formed after reasonable inquiry." Fed. R. Civ. P. 11. Counsel's falling short of the showing required to overcome a motion for summary judgment is not the same thing as failing to make reasonable inquiry at the time a pleading or paper is filed.

Further, the district court apparently found that O'Donnell violated Rule 11 by failing to do something it thought she should have done--dismissing seven of the eleven plaintiffs. However, Rule 11 does not apply to failures to sign papers; it applies only to the affirmative act of signing a paper that is not well founded, without reasonable inquiry. Cf. Townsend v. Holman Consulting Corp., 914 F.2d 1136, 1143-45 (9th Cir. 1990) (en banc) (filing amended pleading continuing to assert frivolous claim against certain defendants sanctionable).

It is impossible to tell from the order what paper O'Donnell improperly certified. There is no indication that the complaint was the culprit. Although it could have been plaintiffs' opposition to Lone Star's motion for summary judgment, the court did not say so.1  That leaves only conduct in general, and while the court may have inherent power to sanction under some circumstances not present in this case, Chambers v. Nasco, Inc., 59 U.S.L.W. 4595 (U.S. June 6, 1991), it must make specific findings as to the exact conduct that violates the Federal Rules. In re Yagman, 796 F.2d 1165, 1188 (9th Cir.) amended, 803 F.2d 1085 (1986). Having not done so, its order imposing sanctions cannot stand.

REVERSED.

KOZINSKI, Circuit Judge, dissenting:

My colleagues accuse the district judge of a multitude of errors and omissions; they declare themselves unable to discern the basis of his ruling. But it is pretty clear what the district judge did here and why he did it; it is only through a crabbed and myopic reading of the district court's order that my colleagues can reach a contrary conclusion. To my mind, this is a close case that could go either way; but we have a responsibility to ask and answer the right question. We do the district judge an injustice when we reverse on grounds that are not fairly supported by the record.

The majority first accuses the district court of "failing to state any reason for its award." Majority at 2. This is simply not so. The district judge explained precisely why he imposed sanctions and he did so twice. He stated on March 7, 1990, that " [p]laintiffs' attorney, Leslie S. O'Donnell, violated Rule 11 by not dismissing seven ... Plaintiffs."1  On June 14, the district judge said that "plaintiffs' counsel persisted in pursuing those claims even after their deficiencies were brought to her attention by letter from Lone Star's counsel."2  We may not agree that this is a sufficient reason for imposing sanctions, but it is neither accurate nor fair to say the district judge failed to explain why he was doing what he did.

Next, my colleagues quote snippets from the district court's order and conclude that he imposed sanctions because plaintiffs' counsel "failed 'to make a showing sufficient to establish' that the seven Plaintiffs in question would have had sufficient seniority rights [to benefit from the claim]."3  This, the majority concludes, does not justify sanctions because it merely proves counsel failed to overcome summary judgment. But the district judge said much more: He noted that "plaintiffs rely on speculation which actual events have proved unfounded...."4  He also stated that " [a] reasonable inquiry in this case would have disclosed to plaintiffs' counsel that the plaintiffs [in question] could not have reaped any benefits from this litigation."5  Finally, he determined that " [a] reasonable inquiry by plaintiffs' counsel ... would have avoided the need for defendant's motion to dismiss as to those plaintiffs."6  Is all this chopped liver? It is unfair to accuse the district judge of ignoring the standards of Rule 11 or failing to make appropriate findings when he clearly did so.

Finally, the majority finds error in the fact that the district judge imposed sanctions for counsel's inaction--her failure to dismiss the seven plaintiffs, while Rule 11 permits sanctions only for certain type of actions--the signing of certain unfounded pleadings and papers. This is an issue as to which reasonable minds might differ but, in resolving it, we must give the district court's ruling a common-sense interpretation. Here Judge Vukasin granted defendant's motion for summary judgment as to the seven plaintiffs and sanctioned O'Donnell for their continued presence in the lawsuit in a single order, indeed on the same page of the order. The clear implication is that the court thought O'Donnell should not have filed an opposition to defendant's motion as to those plaintiffs. Although the order is not absolutely clear on this point, it is far from "impossible to tell" what paper the district court was referring to (as the majority states at 3).

So construed the district judge's ruling becomes fairly difficult to overturn. Seven plaintiffs in this action had insufficient seniority to enjoy the benefits of the collective bargaining agreement being sued upon. Their inclusion in the lawsuit was thus wholly unjustified. Defendants so advised attorney O'Donnell before she signed and filed an amended complaint;7  they again notified her, this time in writing, before she signed and filed an opposition to defendants' motion for summary judgment.8  O'Donnell's preparing, signing and filing of the opposition to defendant's summary judgment motion after she had been twice warned that the seven plaintiffs had no basis for seeking relief is a sufficient predicate for the imposition of sanctions.

Our holding in Stitt v. Williams, 919 F2d 516 (9th Cir 1990), is not to the contrary. We held in Stitt: "Sanctions are not appropriate where, as here, counsel opposes a summary judgment motion and: (1) there is a non-frivolous basis for opposing the motion, and (2) the non-frivolous basis constitutes more than an incidental part of the opposition." Id at 529. Stitt, however, involved frivolous and non-frivolous claims; in this case appellant refused to dismiss parties who should not have been joined in the first place. As to those seven plaintiffs, there was no nonfrivolous basis for opposing the motion. This case is much more like our en banc decision in Townsend v. Holman Consulting Corp., 929 F2d 1358, 1366-67 (9th Cir 1990), where we upheld the imposition of sanctions against a lawyer who failed to remove from an amended complaint certain defendants as to whom there was no cause of action. Similarly, O'Donnell was sanctioned for failure to remove the seven frivolous plaintiffs from her summary judgment motion.

If the majority disagrees with the district judge's reasons for imposing sanctions, it should say so. But by reversing Judge Vukasin for failing to justify his decision or ignoring the standards of Rule 11, my colleagues turn a blind eye to the record and needlessly impugn the reputation of the district judge.

I respectfully dissent.

 *

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

 1

Had it been, such a sanction would likely run afoul of our holding in Stitt v. Williams, 919 F.2d 516, 527 (9th Cir. 1990), that counsel did not violate Rule 11 by filing an opposition to a summary judgment motion instead of abandoning his clients' case

 1

Order Granting in Part and Denying in Part Defendants' Motions for Summary Judgment at 6-7

 2

Order Determining Amount of Sanctions at 2

 3

Majority at 2, quoting Summary Judgment Order a 6

 4

Id

 5

Amount of Sanctions Order at 2

 6

Id

 7

See letter to us from Leslie Soroch O'Donnell (June 13, 1991)

 8

Letter from Jeffrey J. Pargament [defense counsel] to Leslie Soroch O'Donnell, ER 29 (Dec 19, 1989)