Kilborn v. Bakhir ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JASON KILBORN, 
Plaintiff-Appellant,
and
OLGA LUKASHEVSKY,
Plaintiff,  No. 03-1397
v.
IGOR BAKHIR,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonard D. Wexler, Senior District Judge, sitting by designation.
(CA-01-1123-A)
Submitted: July 3, 2003
Decided: July 22, 2003
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Jason Kilborn, Appellant Pro Se. David Edward Sher, SHER &
CUMMINGS, Arlington, Virginia, for Appellee.
2 KILBORN v. BAKHIR
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jason Kilborn appeals the district court’s order adopting the report
and recommendation of the magistrate judge in part and sanctioning
him the sum of $18,641.51. The sanction was intended to reimburse
Igor Bakhir for attorney’s fees and costs incurred by Bakhir in con-
nection with a suit Kilborn and Olga Lukashevsky filed against him
alleging illegal interception of electronic communications under 18
U.S.C. § 2707 (2000) and Virginia law. The sanction order was prem-
ised upon the district court’s inherent authority.
A court possesses the inherent power to sanction a party with an
assessment of attorney’s fees in three situations: (1) when a party’s
litigation efforts directly benefit others; (2) when there has been will-
ful disobedience of a court order; and (3) when a party has acted in
bad faith, vexatiously, wantonly, or for oppressive reasons. Chambers
v. NASCO, Inc., 501 U.S. 32, 44-46 (1991). With respect to the third
category, "if a court finds ‘that fraud has been practiced upon it, or
that a very temple of justice has been defiled,’ it may assess attor-
ney’s fees against the responsible party." Id. at 46 (quoting Universal
Oil Prods. Co. v. Root Refining Co., 328 U.S. 575, 580 (1946)). The
court may also assess attorney’s fees "when a party ‘shows bad faith
by delaying or disrupting the litigation or by hampering enforcement
of a court order.’" Id. (quoting Hutto v. Finney, 437 U.S. 678, 689
(1978)). "A court must . . . exercise caution in invoking its inherent
power, and it must comply with the mandates of due process, both in
determining that the requisite bad faith exists and in assessing fees."
Id. at 50. We review the district court’s imposition of sanctions under
its inherent powers for abuse of discretion. Id. at 55.
In a report and recommendation, the magistrate judge determined
Kilborn: (1) failed to file timely Rule 26(a) disclosures at the final
pretrial conference on January 17, 2002, as required by the September
KILBORN v. BAKHIR 3
4, 2001 scheduling order; (2) failed to appear for a hearing on
Bakhir’s motion for judgment on the pleadings that was noticed for
March 1, 2002; (3) failed to serve Bakhir with his response to the
motion for judgment on the pleadings and motion for Rule 11 sanc-
tions and cross-motion for voluntary dismissal filed on February 22,
2002; and (4) failed to be present at the hearing on the motion for
sanctions pursuant to the court’s inherent powers held on May 3,
2002. The magistrate judge recommended sanctioning Kilborn
$33,481.13 for the attorney’s fees and costs incurred by Bakhir. The
district court accepted the report and recommendation, except that it
reduced the amount of sanctions to $18,641.51.
The district court made no specific findings that Kilborn willfully
disobeyed a court order or that he filed suit or proceeded with the liti-
gation in bad faith, vexatiously, wantonly, or for oppressive reasons.
In the absence of such findings, we find it impossible to meaningfully
review the apparent conclusion that Kilborn’s actions rose to the level
warranting sanctions under the court’s inherent powers.* Accord-
*Without indicating a view on the merits, we observe that Kilborn
strenuously disputes that the conduct cited by the magistrate judge was
sufficiently egregious to warrant invocation of the district court’s inher-
ent sanction authority. In summary, Kilborn asserts with respect to the
four findings contained in the magistrate judge’s report and recommen-
dation that: (1) Chief District Judge Hilton specifically excused his
appearance at the pretrial conference held on January 17, 2002, and sug-
gested he simply fax the necessary information to the court regarding his
availability for trial, and that he filed the initial Rule 26(a) disclosures
and did not realize he was required to file additional disclosures at the
pretrial hearing; (2) his failure to appear at the hearing on the motion for
judgment on the pleadings was excusable because he assumed that his
motion to voluntarily dismiss the case would be approved; (3) as evi-
denced by his certificate of service, he did not fail to serve Bakhir with
his response to the motion for judgment on the pleadings and his cross-
motion for voluntary dismissal; and (4) his failure to appear at the May
3, 2002 hearing was not sanctionable because he did not receive notice
of the hearing until Monday, April 29, 2002, he was unable to make
arrangements to appear on such short notice because he lived approxi-
mately 1100 miles away and had conflicting work obligations, he filed
a timely response to the motion that was the subject of the hearing, and
he seasonably sought permission to appear at the hearing by telephone.
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ingly, we vacate the district court’s order and remand for further pro-
ceedings consistent with this opinion. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
VACATED AND REMANDED