Blixseth v. Yellowstone Mountain Club, No. 12-35986 (9th Cir. 2017)
Annotate this CaseThe court filed an order denying Appellant Blixseth's counsel's motion and amended motion for reconsideration of the Commissioner's orders awarding attorneys' fees and non-taxable costs; denying requests for recusal, appointment of a new panel, conversion of the matter to a criminal proceeding, transfer of the matter to the U.S. Attorney, and holding of the awards in abeyance; and denying counsel's suggestion for reconsideration. The court concluded that the Commissioner correctly declined to award attorneys' fees and non-taxable costs under Federal Rule of Appellate Procedure 38 against Blixseth and his attorney Michael J.Flynn for preparing appellees' statements regarding Blixseth's pro se response and Flynn's response to the court's order to show cause against Blixseth and Flynn ("fees-on-fees"), and correctly awarded fees and costs under 28 U.S.C. 1927 against Flynn for preparing the statements regarding Flynn's response. The court also concluded that Rule 38 is a damage provision authorizing award of "just damages;" the award of fees and costs under Rule 38 thus must be limited to appellees' direct fees and costs for defending against the frivolous appeal, and may not include the fees and costs incurred regarding the imposition of sanctions; and section 1927 is a fee-shifting provision allowing an award of fees-on-fees.
Court Description: Bankruptcy / Sanctions. The panel filed an order: (1) denying appellant’s counsel’s motion and amended motion for reconsideration of the Appellate Commissioner’s orders awarding attorneys’ fees and non-taxable costs under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927 in a bankruptcy case; (2) denying requests for recusal, appointment of a new panel, conversion of the matter to a criminal proceeding, transfer of the matter to the United States Attorney, and holding of the awards in abeyance; and (3) denying, on behalf of the court, counsel’s suggestion for reconsideration en banc. The panel had ordered appellant and his counsel to pay appellees’ attorneys’ fees and costs in defending against the appeal under Rule 38; ordered counsel to pay appellees’ attorneys’ fees and costs in defending against the appeal under § 1927; and referred to the Appellate Commissioner the determination of an appropriate amount of attorneys’ fees and costs. The Appellate Commissioner entered orders awarding fees and costs. Denying counsel’s motion and amended motion for reconsideration of the Appellate Commissioner’s orders, the panel held that the Commissioner correctly declined to award fees-on-fees under Rule 38 for the preparation of appellees’ statements regarding appellant’s pro se response and counsel’s response to the court’s order to show cause against BLIXSETH V. YELLOWSTONE MOUNTAIN CLUB 3 them, and correctly awarded fees and costs under § 1927 against counsel for preparing the statements regarding counsel’s response. The panel held that because Rule 38 is a damage provision authorizing an award of “just damages,” an award of fees and costs under Rule 38 must be limited to appellees’ direct fees and costs for defending against the frivolous appeal, and may not include the fees and costs incurred regarding the imposition of sanctions. Agreeing with the Eleventh Circuit, the panel held that, unlike Rule 38, § 1927 is a fee-shifting provision allowing an award of fees-on-fees.
This opinion or order relates to an opinion or order originally issued on February 18, 2014.
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