McConnell vs Lassen County et al, No. 2:2005cv00909 - Document 310 (E.D. Cal. 2009)
Court Description: ORDER GRANTING 303 Motion for Attorney Fees signed by Judge Frank C. Damrell, Jr on 10/15/2009. (Suttles, J)
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McConnell vs Lassen County et al Doc. 310 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ----oo0oo---12 13 14 15 AMY McCONNELL and AMY McCONNELL on behalf of her four minor children, A.B., A.B. J.M. and J.M., NO. CIV. S-05-0909 FCD DAD Plaintiffs, 16 17 18 19 20 21 22 23 24 v. MEMORANDUM AND ORDER LASSEN COUNTY, CALIFORNIA; JAMES CHAPMAN, BOB PYLE, LLOYD KEIFER, BRIAN DAHLE and JACK HANSON, BOARD OF SUPERVISORS OF LASSEN COUNTY, CALIFORNIA; MARGARET CROSBY, DIRECTOR OF CHILD PROTECTIVE SERVICES, LASSEN COUNTY, TERRY CHAPMAN, LOEL GRIFFITH and DIRECTOR OF CALIFORNIA STATE DEPARTMENT OF SOCIAL SERVICES, Defendants. ----oo0oo---- 25 26 This matter comes before the court on defendants’ motion for 27 attorneys’ fees and costs, pursuant to 28 U.S.C. § 1927 and the 28 court’s inherent authority, for expenses incurred in relation to Dockets.Justia.com 1 a motion in limine. Plaintiffs oppose the motion. 2 reasons set forth below,1 defendants’ motion is GRANTED. BACKGROUND 3 4 For the This case arises out of the removal of plaintiff Amy 5 McConnell’s four minor children from her custody and their 6 placement in foster care, where at least one of the minor 7 children was sexually abused. 8 a complaint in this court, alleging, inter alia, claims under 42 9 U.S.C. § 1983 for violations of their Fourteenth Amendment rights On May 10, 2005, plaintiffs filed 10 to family integrity and due process. 11 issued a Memorandum and Order, granting in part and denying in 12 part defendants’ motions for summary judgment. 13 filed June 29, 2007.) 14 banc decision and various motions for reconsideration in light of 15 that decision, the court determined there were triable issues of 16 fact regarding plaintiffs’ § 1983 claims against defendant Terry 17 Chapman (“Chapman”) and defendant Lassen County. 18 On June 29, 2007, the court (Mem. & Order, After a stay pending a Ninth Circuit en In support of their opposition to defendants’ motion for 19 summary judgment brought in 2007, plaintiffs attempted to offer a 20 copy of a letter purportedly written by defendant Chapman. 21 its face, the document appeared to be an unqualified admission 22 that Chapman was responsible for the purported injuries to 23 plaintiffs. 24 plaintiffs failed to properly authenticate it or disclose its 25 source. On However, the court did not consider this document as Further, defendants presented expert declarations from a 26 27 28 1 Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(n). 2 1 forensic linguistics expert and a forensic document examiner, 2 both of whom opined the copy of the letter was not authored by 3 defendant Chapman and was not genuine. 4 Subsequently, in their Joint Pretrial Statement, plaintiffs 5 included this letter as a trial exhibit, and defendants provided 6 that they would be filing a motion in limine to exclude the 7 document “because it is unauthenticated and a fake.” 8 Joint Pretrial Conference Statement [Docket #288], filed Apr. 3, 9 2009, at 8.) (Third Am. On July 21, 2009, defendants filed their motion in 10 limine to exclude the letter and scheduled an evidentiary hearing 11 in relation to the motion. 12 to the motion. Plaintiffs filed a written opposition 13 On August 21, 2009, the court heard oral argument on 14 defendants’ motion in limine and was prepared to hear testimony 15 from witnesses. 16 offer the evidence at trial, bore the burden of establishing 17 authenticity, the court directed them to present their evidence. 18 Plaintiffs failed to call any witnesses or present any evidence. 19 Plaintiffs’ counsel first erroneously argued that because 20 defendants brought the motion to exclude, defendants also bore 21 the burden of establishing that the document was not authentic. 22 (Hr’g Tr. [Docket #302], filed Sept. 10, 2009, at 2.) 23 Plaintiffs’ counsel then submitted a proffer that if sworn to 24 testify, Treva Hearne (“Hearne”), co-counsel for the plaintiffs, 25 would submit evidence that she received three different copies2 26 of the letter at different times. Because plaintiffs, as the parties seeking to (Id. at 4-5.) In the first 27 2 28 Plaintiffs counsel admitted that it did not have the original document. (Id. at 13.) 3 1 instance, the copy of the letter was received through the mail by 2 an unidentified sender. 3 copy of the letter was mailed by a social worker who had been 4 terminated by Lassen County with no accompanying documents. 5 the third instance, Debbie Henson (“Henson”), an alleged 6 recipient of the letter, mailed or faxed the copy of the letter 7 to Hearne. 8 that she had never seen the document prior to 2007 when it was 9 produced in connection with separate litigation against Lassen (Id. at 8.) (Id. at 6.) In the second instance, the In However, Henson testified under oath 10 County. 11 plaintiffs’ counsel conceded that plaintiffs did not have a 12 knowledgeable witness that defendant Chapman signed, wrote, or 13 sent the letter or that the alleged recipients received it. 14 at 13-14.)3 15 letter and represented that the letter would not be used at trial 16 for any purpose. 17 (See id. at 10-11.) As such, the court noted and (Id. Subsequently, plaintiffs’ counsel withdrew the (Id. at 17.)4 Through this motion, defendants seek attorneys’ fees and 18 costs in the amount of $20,084.98 that were incurred in 19 connection to the motion in limine and the current motion for 20 attorneys’ fees. Defendants’ counsel presents evidence that 21 3 22 23 24 25 26 27 28 For the first time, plaintiffs’ counsel then attempted to argue that the letter would be introduced in order to demonstrate that Lassen County CPS “was so dysfunctional that these are the kinds of things [forgeries] that are occurring.” (Id. at 16.) The court noted that such a theory would present admission problems pursuant to Rule 403. (Id.) 4 Defendants subsequently solicited the testimony of Terry Chapman. Plaintiffs’ counsel objected to the presentation of any evidence after it had withdrawn the letter. After plaintiffs’ counsel further clarified that they would not be offering the letter for any purpose and that the letter “will not see the light of day,” the court concluded the hearing. (Id. at 24-27.) 4 1 $11,698.50 in attorneys’ fees were incurred for preparing the 2 motion in limine, preparing witnesses for the motion in limine, 3 and attending hearing on the motion in limine. 4 Kathleen J. Williams in Supp. of Motion for Fees and Costs 5 (“Williams Decl.”), filed Sept. 15, 2009.) 6 expended $6,571.48 in expert fees and costs. 7 $1,815.00 was incurred in attorneys’ fees related to the motion 8 for fees. 9 10 (Decl. of Further, defendants (Id.) Finally, (Id.)5 ANALYSIS Section 1927 allows the court to award fees against “any 11 attorney . . . who so multiplies the proceedings in any case 12 unreasonably and vexatiously.” 13 any statute, but applies to any civil suit in federal court. 14 Hyde v. Midland Credit Mgmt., Inc., 567 F.3d 1137, 1141 (9th Cir. 15 2009). 16 against offending attorneys.” 17 Leasing, Inc., 799 F.2d 507, 510 (9th Cir. 1986) (noting that § 18 1927 does not authorize recovery from a party, but “only from an 19 attorney or otherwise admitted representative of a party”) 20 (emphasis in original) (internal quotations and citations 21 omitted). 22 This section is not specific to Further, the statute “explicitly provides for remedies Id.; F.T.C. v. Alaska Land Attorneys fees under § 1927 are appropriate if an attorney's 23 conduct is in bad faith; recklessness satisfies this standard. 24 B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1107 (9th Cir. 2002); 25 26 27 28 5 Plaintiff has objected to any and all sanctions, but has offered no analysis as to the reasonableness of defendants’ computation of fees and costs. The court nevertheless has reviewed defendants’ counsel’s billing rates and cost reports and finds them reasonable. 5 1 Barber v. Miller, 146 F.3d 707, 711 (9th Cir. 1998) (“An award of 2 sanctions under 28 U.S.C. § 1927 or the district court’s inherent 3 authority requires a finding of recklessness or bad faith.”). 4 The Ninth Circuit has also required a finding of subjective bad 5 faith, “which is present when an attorney knowingly or recklessly 6 raises a frivolous argument, or argues a meritorious claim for 7 the purpose of harassing an opponent.” 8 original) (quoting In re Keegan Mgmt. Co., Sec. Lit., 78 F.3d 9 431, 436 (9th Cir. 1996)). Id. (emphasis in Moreover, the Ninth Circuit has 10 cautioned that “[s]anctions should be reserved for the ‘rare and 11 exceptional case where the action is clearly frivolous, legally 12 unreasonable or without legal foundation, or brought for an 13 improper purpose.’” 14 115 F.3d 644, 649 (9th Cir. 1997) (quoting Operating Eng’rs 15 Pension Trust v. A-C Co., 859 F.2d 1336, 1344 (9th Cir. 1988)). 16 Primus Auto. Fin. Servs., Inc. v. Batarse, The court also has the inherent power to issue sanctions in 17 order “to protect the due and orderly administration of justice 18 and maintain the authority and dignity of the court.” 19 (internal quotations and citation omitted). 20 be issued when the party has acted “in bad faith, vexatiously, 21 wantonly, or for oppressive reasons” and may take the form of 22 attorneys’ fees. 23 “the court must make an explicit finding that counsel’s conduct 24 ‘constituted or was tantamount to bad faith.’” 25 Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980)). 26 finding of bad faith is supported by the same standard required 27 under § 1927. 28 ///// Id. Id. at 648 These sanctions may Before awarding such sanctions however, See id. 6 Id. (quoting A 1 In this case, plaintiffs’ counsel’s conduct was tantamount 2 to bad faith pursuant to § 1927. As a result of the court’s 3 summary judgment order, plaintiffs were on notice in June 2007 4 that the court had identified authentication problems with the 5 copy of the letter they sought to introduce. 6 continued to proffer the copy of the letter in question, 7 including it as an exhibit in numerous drafts of the Joint 8 Pretrial Conference Statement. 9 defendants vigorously opposed introduction of the document and However, plaintiffs Plaintiffs also knew that 10 had retained experts relating to authenticity. 11 defendants filed a motion in limine and requested an evidentiary 12 hearing. Plaintiffs’ counsel filed a brief in opposition to this 13 motion. However, despite ultimately acknowledging that they bore 14 the burden of establishing authenticity, plaintiffs failed to 15 offer any evidence or argument that supported authentication 16 under the Federal Rules of Evidence in either their briefing or 17 at the evidentiary hearing. 18 proffer provided no basis for admission. 19 notice of deficiencies, plaintiffs’ counsel insisted upon 20 litigating the admissibility of the document without any factual 21 or legal support. 22 Cir. 2001) (affirming the imposition of sanctions pursuant to § 23 1927 where counsel’s conduct unreasonably resulted in a hearing 24 on the motion and a three-day evidentiary hearing on follow-on 25 sanctions); see also Serritella v. Markum, 119 F.3d 506 (7th Cir. 26 1997) (affirming sanctions under Rule 11 where counsel raised 27 issues which had previously been decided against him). 28 ///// Accordingly, Importantly, plaintiffs’ counsel’s Yet, despite prior See Gomez v. Vernon, 255 F.3d 1118, 1135 (9th 7 1 Indeed, in its opposition to defendants’ motion for 2 attorneys’ fees, plaintiffs continue to argue, yet again without 3 citation to any legal authority, that the evidence should be 4 admitted based upon a finding that defendant Terry Chapman is 5 “not credible.” 6 document should provide sufficient evidence of authentication; if 7 the letter’s contents are verified as true, there is sufficient 8 evidence to believe the letter was written by Terry Chapman. 9 only do plaintiffs fail to support this argument with legal Plaintiffs further argue that the content of the Not 10 authority,6 plaintiffs mischaracterize the factual basis for this 11 assertion. 12 Chapman testified to facts that were reflected in the copy of the 13 letter. 14 reflects that Terry Chapman did not testify that everything in 15 the letter was a true statement. 16 present any evidence that the information contained in the letter 17 was something that only Terry Chapman could have known and thus, 18 the document must have been authored by him. 19 Plaintiffs assert that in his deposition, Terry However, a review of the relevant deposition testimony Further, plaintiffs failed to Plaintiffs’ counsel also contends that until Terry Chapman 20 was questioned about the letter, the obvious truth of its 21 creation would not be tested.7 However, plaintiffs’ counsel did 22 6 23 24 25 26 27 28 Further, this theory runs afoul of the principles served by authentication. In essence, it would allow the jury to consider the evidence relating to the merits prior to determining if the evidence is actually what a party purports it to be. 7 Plaintiffs’ argument also rings hollow as Terry Chapman had previously been deposed prior to the evidentiary hearing and plaintiffs failed to point to any deposition testimony to adequately support its opposition to defendants’ motion in limine. The testimony cited by plaintiff merely provided that while Terry Chapman identified the signature on the letter as his own, he denied writing the letter itself. This was consistent (continued...) 8 1 not call Terry Chapman as a witness at the evidentiary hearing. 2 Rather, it withdrew the letter without presenting any evidence 3 and prior to defense counsel’s direct examination of Chapman. 4 Plaintiffs have never provided evidence of the origins of 5 the letter, much less evidence, either direct or circumstantial, 6 that the letter was in the possession of any defendants or 7 authored by defendant Chapman. 8 Plaintiffs’ counsel’s adamance on pressing arguments that the 9 court has repeatedly found deficient, regarding evidence that 10 they have already withdrawn, is further evidence of counsel’s 11 recklessness and bad faith in pursuing the motion in limine. 12 Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (holding that 13 sanctions in the form of attorneys’ fees are justified in “making 14 the prevailing party whole for expenses caused by his opponent’s 15 obstinacy”). 16 Fed. R. Evid. 901(a).8 See Plaintiffs’ contention that defendants’ experts were 17 unnecessary is without merit. 18 that the copy of the letter was admissible until after oral 19 argument on the motion in limine and a proffer by plaintiffs’ Plaintiffs continued to assert 20 21 22 23 24 25 26 27 28 7 (...continued) with defendants’ expert opinions that the signature block was cut from a separate document and pasted onto a forged letter. 8 Plaintiffs also argue that the court refused to allow an offer of proof based upon admission as a business record or as an admission against interest. First, the transcript does not reflect such a refusal. Second, potential applicability of exceptions to the hearsay rule does not obviate the need for proper authentication or certification. Third, as plaintiffs could present no evidence regarding the source of the copy of the letter, it is incredulous that they now speculate they could lay a proper foundation that the letter was prepared in the ordinary course of business. 9 1 counsel.9 2 motion in limine, plaintiffs also raised a Daubert challenge to 3 the expert opinions, necessitating further preparation by 4 defendants and the court.10 5 find that defendants’ vigorous preparation of evidence to support 6 their arguments was either irrelevant or unnecessary. 7 Moreover, in their written opposition to defendants’ Under these facts, the court cannot Therefore, for the foregoing reasons, the court finds that 8 plaintiffs’ counsel’s conduct in pursuing the admission of the 9 copy of the letter after June 2007 was done in bad faith. 10 Plaintiffs’ counsel knowingly and recklessly raised a frivolous 11 argument, which the court had previously addressed, without 12 providing any legal or factual support. 13 imposes sanctions, pursuant to both § 1927 and the court’s 14 inherent power, against plaintiffs’ counsel in the amount of 15 $20,084.98. 16 17 The court therefore IT IS SO ORDERED. DATED: October 15, 2009 _______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 9 Again, the opposition to defendants’ current motion makes clear that, despite a dearth of legal or factual support, plaintiffs’ counsel still believes the copy of the letter is admissible. 10 Plaintiffs appear to argue that because they challenged the alleged experts as presenting “junk science,” they should not have to pay costs relating to their testimony. Because plaintiffs withdrew the letter, the court had no occasion to rule on the merits of the Daubert challenge. Plaintiffs’ conclusion that the mere advancement of a challenge should relieve them of sanctions is meritless, particularly where they were well aware of defendants’ preparations. Further, plaintiffs’ argument that expert testimony was unnecessary because it was clear to the trier of fact the documents were misaligned (and thus, likely fraudulent) is not well taken, particularly in light of their vigorous protestations that the copy of the letter is authentic. 10
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