Wasko v. Moore ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 24, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
PETER WASKO,
Plaintiff-Appellant,
v. No. 05-2184
RANDALL D. MOORE,
(D. New Mexico)
Defendant-Appellee.
(D.C. No. 03-CV-1026)
ORDER AND JUDGMENT *
Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Peter Wasko, proceeding pro se, filed a 42 U.S.C. § 1983 suit against
Randall D. Moore in federal district court. The district court dismissed the suit
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
and awarded sanctions to Mr. Moore pursuant to Fed. R. Civ. P. 11. On appeal,
we affirmed the dismissal of the suit, but vacated the Rule 11 sanctions and
remanded the case. Our order and judgment mandated that the district court issue
a show cause order and follow additional procedures before imposing sanctions.
The district court followed the prescribed procedures and awarded attorney fees to
Mr. Moore in the amount of $3,295.50.
In this appeal, Mr. Wasko challenges the district court’s order granting
Rule 11 sanctions. In addition, Mr. Moore has filed a motion for sanctions
pursuant to Fed. R. App. P. 38, contending that the appeal is frivolous, and has
requested that he be awarded damages and double costs associated with this
appeal. We affirm the award of Rule 11 sanctions, and we deny Mr. Moore’s
Rule 38 motion for costs incurred to defend this appeal.
I. BACKGROUND
We previously described the underlying facts of this suit in Wasko v.
Moore, 122 F. App’x 403 (2005) (unpublished). Mr. Wasko originally filed suit
in New Mexico state court, alleging that Mr. Moore damaged his automobile. Mr.
Wasko did not appear for trial, his case was dismissed, and he unsuccessfully
appealed his claim in state court. Mr. Wasko later filed a § 1983 suit against Mr.
Moore in federal district court for vehicle damages. The district court dismissed
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the case for lack of subject matter jurisdiction. “The court found that Mr. Wasko
was aware that there was no federal jurisdiction over this case due to his previous
attempt to bring similar claims in federal court, apparently referring to [Mr.
Wasko’s earlier § 1983 suit against his former attorney for malpractice, see
Wasko v. Silverberg, 103 F. App’x 332 (2004) (unpublished)].” Moore, 122 F.
App’x at 405. The district court also ordered, on its own initiative, Mr. Wasko to
pay Mr. Moore’s attorney fees of $3,295.50, pursuant to Fed. R. Civ. P. 11.
Mr. Wasko appealed, among other issues, the dismissal of his complaint
against Mr. Moore and the Rule 11 sanctions. We affirmed the dismissal for lack
of jurisdiction, concluding that (1) Mr. Moore was not a state actor, and (2) the
Rooker-Feldman doctrine barred Mr. Wasko’s federal claim because it was
inextricably intertwined with his claims rejected by New Mexico state courts.
Moore, 122 F. App’x at 405-06; see D.C. Ct. of Appeals v. Feldman, 460 U.S.
462, 486 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 415-16 (1923).
However, we vacated the order imposing Rule 11 sanctions and remanded
the case for the district court to follow prescribed procedures for imposing
sanctions: “‘issuance of a show cause order specifically describing the conduct
implicating the rule, followed by a reasonable opportunity for the party/attorney
so advised to demonstrate how [he] has not violated the rule.’ Hutchinson v.
Pfeil, 208 F.3d 1180, 1184 (10th Cir. 2000).” Moore, 122 F. App’x at 406. We
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ordered the district court on remand to “evaluate the reasonableness of the
attorney fees requested by defendant” and consider Mr. Wasko’s ability to pay;
we did not require a hearing on sanctions, provided Mr. Wasko was given the
opportunity to brief the issue. Id. at 407.
On remand, the district court issued an order to show cause (1) for Mr.
Wasko to explain why he did not violate Rule 11(b)(1), and to submit evidence
about his ability to pay, and (2) for Mr. Moore to submit time records supporting
the amount of $3,295.50 in attorney fees. The court held a hearing on the order to
show cause, and reviewed Mr. Wasko’s brief and Mr. Moore’s time records. On
June 6, 2005, the district court sanctioned Mr. Wasko pursuant to Rule 11 and
ordered him to pay $3,295.50 in attorney fees to Mr. Moore.
Mr. Wasko timely appealed the order imposing Rule 11 sanctions. In
August 2005, Mr. Moore filed a “Motion to Dismiss Appellant’s Frivolous
Appeal” pursuant to Rule 38 of the Federal Rules of Appellate Procedure. He
seeks damages and double costs incurred in the appeal.
II. DISCUSSION
On appeal, we separately consider Mr. Wasko’s challenge to the Rule 11
sanctions and Mr. Moore’s Rule 38 motion for additional sanctions.
A. District court’s order imposing Rule 11 sanctions
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Rule 11(b)(1) of the Federal Rules of Civil Procedure provides that any
attorney or party, by presenting a pleading or motion to the court, certifies that “it
is not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation.” A court may
“impose an appropriate sanction” upon the party if the court determines that Rule
11(b) has been violated. F ED . R. C IV . P. 11(c). We review a district court’s Rule
11 determination for an abuse of discretion. Hughes v. City of Fort Collins, 926
F.2d 986, 988 (10th Cir. 1991).
We will reverse the district court only if it “based its ruling on an erroneous
view of the law on a clearly erroneous assessment of the evidence.” Cooter &
Gell v. Hartmax Corp., 496 U.S. 384, 405 (1990). Although we liberally construe
Mr. Wasko’s pleadings, his status as a pro se litigant does not prohibit us from
imposing sanctions. See Haworth v. Royal, 347 F.3d 1189, 1192 (10th Cir. 2003).
Mr. Wasko argues on appeal that (1) this court actually vacated the Rule 11
sanctions in its earlier order and judgment; (2) the district court did not hold a
hearing on the sanctions; (3) Mr. Moore’s attorney failed to depose Mr. Wasko
regarding his ability to pay; (4) a district court cannot grant attorney fees; and (5)
Mr. Moore’s attorney did not follow procedural rules in submitting records of
fees. We are not persuaded. The district court properly followed the mandate of
this court’s order and judgment. It issued an order to show cause, provided Mr.
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Wasko an opportunity to brief why he did not violate Rule 11(b)(1), and reviewed
time records submitted by Mr. Moore. Further, the district court held a hearing
on the order to show cause and considered Mr. Wasko’s brief describing his
ability to pay. Accordingly, the district court did not abuse its discretion when it
granted the Rule 11 sanctions.
B. Mr. Moore’s Rule 38 motion for sanctions
“If a court of appeals determines that an appeal is frivolous, it may, after a
separately filed motion or notice from the court and a reasonable opportunity to
respond, award just damages and single or double costs to the appellee.” F ED . R.
A PP . P. 38. “An appeal is frivolous when the result is obvious, or the appellant’s
arguments of error are wholly without merit.” Braley v. Campbell, 832 F.2d
1504, 1510 (10th Cir. 1987) (internal quotation marks omitted); see also Toscano
v. Chandris, S.A., 934 F.2d 383, 387 (1st Cir. 1991) (“An appeal is frivolous
within the purview of Fed. R. App. P. 38 when the appellant’s legal position is
doomed to failure--and an objectively reasonable litigant should have realized as
much from the outset.”).
In his motion, Mr. Moore seeks further sanctions on Mr. Wasko’s appeal,
including damages and double costs that he incurred to defend against Mr.
Wasko’s appeal and to file the Rule 38 motion. Mr. Wasko’s appeal indeed lacks
any legal merit. He primarily maintains that the district court failed to hold a
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hearing on his Rule 11 sanctions. See Aplt’s Opening Br. at 4 ¶ 6. However, on
May 9, 2005, the district court did hold a hearing on the order to show cause;
indeed, Mr. Wasko attended and argued on his own behalf.
In Mr. Wasko’s response to the Rule 38 motion, he maintains that (1) Mr.
Moore’s counsel violated his due process and equal protection rights when
counsel did not depose him regarding his ability to pay $3,295.50, and (2) the
district court judge violated similar rights by entering Mr. Moore’s proposed Rule
11 order verbatim. As to any required deposition, the district court noted at its
hearing that Mr. Moore’s attorney “can . . . take a deposition in aid of execution
[of the order], and see if there is any way that you’re going to be able to squeeze
blood out of a turnip.” 1 Rec. vol. II, at 12 (Hr’g, dated May 9, 2005). The
district court further stated to Mr. Wasko at the hearing:
[Y]ou filed your lawsuit and continued to press it for an improper
purpose, to create unnecessarily delay and needlessly increase the cost
of litigation. And I will reserve judgment on a sanction under [Rule
11(c)] until I have determined your ability to pay any such sanction,
which will be a result of the deposition in aid of execution of this order.
Id. at 17-18; see id. at 16 (explaining to Mr. Wasko that Mr. Moore’s attorney is
“going to take your deposition . . . [a]nd then we’ll make a decision if you have
the ability to pay anything”).
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According to Mr. Wasko’s statement of financial status provided to the
district court, he is at least 88 years old, unemployed, cannot afford an attorney,
and obliged to rent out rooms in his home for income.
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The district court’s order granting Rule 11 sanctions later provided that
“[Mr. Moore] is allowed to submit discovery requests to [Mr. Wasko] and/or
depose [Mr. Wasko] in aid of execution” of the order. Id. vol. I, doc. 39, at 2
(Order Granting Rule 11 Sanctions, filed June 6, 2005). Though the district
court’s written order clearly did not require Mr. Moore to depose Mr. Wasko
about his ability to pay, the court’s earlier oral statements at the hearing arguably
left Mr. Wasko with an impression that he would be deposed prior to the
sanctions. In light of our discretion to award costs and Mr. Wasko’s confusion as
to when or if Mr. Moore’s counsel would depose him, we decline to impose Rule
38 sanctions. We nonetheless strongly admonish Mr. Wasko to refrain from
further frivolous filings.
III. CONCLUSION
Accordingly, we AFFIRM the district court’s Rule 11 sanctions and DENY
Mr. Moore’s motion pursuant to Rule 38.
Entered for the Court,
Robert H. Henry
Circuit Judge
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