Westwood Plaza North v. Theodor Bodnar , 889 F.3d 975 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE WESTWOOD PLAZA NORTH, No. 17-55655
Debtor,
D.C. No.
2:13-cv-00318-
SHMUEL ERDE, BRO
Plaintiff-Appellant,
v. ORDER AND
AMENDED
THEODOR NICKOLAS BODNAR; MARY OPINION
LOUISA BODNAR; TERRENCE W.
COONEY; JAMES WALDORF; JOHN
BRINK,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted to Motions Panel February 15, 2018
Filed April 9, 2018
Amended May 1, 2018
Before: Kim McLane Wardlaw, Ronald M. Gould,
and Paul J. Watford, Circuit Judges.
2 IN RE WESTWOOD PLAZA NORTH
Order;
Per Curiam Opinion
SUMMARY *
Sanctions
The motions panel filed a per curiam opinion granting in
part and denying in part appellees’ motion for an award of
sanctions against appellant following the panel’s partial
dismissal of the appeal for lack of jurisdiction and partial
summary affirmance of the district court’s post-judgment
orders in a bankruptcy case.
The motions panel held that the motion for sanctions
pursuant to Fed. R. App. P. 38 was timely because it was
filed within the time limits for filing a request for attorneys’
fees under 9th Cir. R. 39-1.6(a). Granting the sanctions
motion in part, the panel awarded appellees attorney’s fees
under Rule 38 for defending the appeal, which it concluded
was frivolous. The panel referred the determination of an
appropriate award of attorney’s fees as damages under Rule
38 to the Appellate Commissioner.
The motions panel denied in part the sanctions motion
with respect to appellees’ request for sanctions pursuant to
28 U.S.C. § 1927.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
IN RE WESTWOOD PLAZA NORTH 3
COUNSEL
Shmuel Erde, Beverly Hills, California, pro se Appellant.
Barry Z. Brodsky and Jodi L. Girten, Kaufman Dolowich &
Voluck LLP, Los Angeles, California, for Appellees.
ORDER
The per curiam opinion filed on April 9, 2018 is
amended as follows:
At slip op. page 6, lines 14–21, delete “See 28 U.S.C.
§ 1927 (sanctions for filings which unreasonably and
vexatiously multiply the proceedings); Wages v. I.R.S.,
915 F.2d 1230, 1235–36 (9th Cir. 1990) (sanctions under
28 U.S.C. § 1927 may be imposed on pro se litigant for bad
faith filings); Barnd v. City of Tacoma, 664 F.2d 1339, 1343
(9th Cir. 1982) (finding of bad faith or intentional
misconduct by counsel required for award of sanctions under
28 U.S.C. § 1927).”
An amended opinion is filed concurrently with this
order.
OPINION
PER CURIAM:
The court’s October 11, 2017 order dismissed in part this
appeal for lack of jurisdiction, and summarily affirmed in
part the district court’s post-judgment orders. Now before
the court is appellees’ motion for an award of sanctions
4 IN RE WESTWOOD PLAZA NORTH
against appellant pursuant to Federal Rule of Appellate
Procedure 38 and 28 U.S.C. § 1927. Appellees ask the court
to impose attorney’s fees, double costs, or both on Appellant
Shmuel Erde.
Rule 38 provides that “[i]f a court of appeals determines
that an appeal is frivolous, it may, after a separately filed
motion or notice from the court and reasonable opportunity
to respond, award just damages and single or double costs to
the appellee.” Rule 38 does not prescribe a time limit within
which to file such a motion. This court has not specifically
addressed the time limit for filing a motion seeking sanctions
pursuant to Rule 38 if the motion is brought after the court
issues a disposition on the merits of the appeal.
Because Rule 38 provides a basis for an award of
attorney’s fees, we find that a motion for sanctions pursuant
to Rule 38 should be filed within the time limits for filing a
request for attorney’s fees under Ninth Circuit Rule
39-1.6(a). See Blixseth v. Yellowstone Mountain Club, LLC,
854 F.3d 626, 630 (9th Cir. 2017) (award of “just damages”
under Rule 38 “may include attorney’s fees incurred in
defending against the frivolous issues or frivolous portions
of an appeal”); Vasseli v. Wells Fargo Bank (In re Vaselli),
5 F.3d 351, 353 (9th Cir. 1993) (Rule 38 empowers appellate
courts to award damages, attorney’s fees, and other expenses
incurred by an appellee in responding to a frivolous appeal).
Ninth Circuit Rule 39-1.6(a) provides that, absent a statutory
provision to the contrary, a request for attorney’s fees shall
be filed no later than 14 days after the expiration of the
period within which a petition for rehearing may be filed, or
within 14 days after the Court’s disposition of a timely
petition for rehearing.
Applying Ninth Circuit Rule 39-1.6 deadlines to motions
made pursuant to Rule 38 is consistent with the practice of
IN RE WESTWOOD PLAZA NORTH 5
this court, and provides a clear deadline for litigants to seek
such relief in this circuit. See, e.g., In re Hunt, 238 F.3d
1098, 1101 n.2 (9th Cir. 2001) (noting that fees on appeal
under Rule 38 “should be sought by timely motion filed
under Ninth Cir. R. 39-1.6”); In re Marquam Investment
Corp., 959 F.2d 800 (9th Cir. 1992) (granting Rule 38
motion for sanctions filed 28 days after filing of opinion);
but see Sims v. Great-West Life Assurance Co., 941 F.2d
368, 372–73 (5th Cir. 1991) (holding that requests for
damages for frivolous appeals pursuant to Rule 38 must be
made within time limit for timely petition for rehearing
under Rule 40).
Appellees filed the motion for sanctions on October 26,
2017, within the time prescribed by Ninth Circuit Rule
39-1.6. See 9th Cir. R. 39-1.6(a). Having concluded that the
motion for sanctions is timely, we now turn to the merits of
the motion. We have considered the motion and appellant’s
opposition thereto, and grant in part the motion for sanctions.
Appellant’s motion to strike the motion for sanctions is
denied.
“An appeal is frivolous if the result is obvious or if the
claims of error are wholly without merit.” Malhiot v. S. Cal.
Retail Clerks Union, 735 F.2d 1133, 1137 (9th Cir. 1984).
The court may in its discretion impose Rule 38 sanctions for
a frivolous appeal against an appellant even if the appellant
is proceeding pro se. See Maisano v. United States, 908 F.2d
408, 411 (9th Cir. 1990) (awarding damages under Rule 38
against pro se litigant as sanction for frivolous appeal).
In the instant matter, appellant sought review of the
district court’s post-judgment orders denying his various
post-judgment motions, including motions for
disqualification of the district judge, to void judgment, and
for declaratory relief. The appeal of the district court’s
6 IN RE WESTWOOD PLAZA NORTH
orders was wholly without merit, and sought review of
multiple district court orders over which this court lacked
jurisdiction. Moreover, we note that the underlying district
court action and burdensome post-judgment motions are part
of appellant’s ongoing efforts to alter or amend a bankruptcy
court order entered on October 2, 1984, dismissing a Chapter
11 bankruptcy proceeding. Cf. Trohimovich v. Comm’r of
Internal Revenue, 776 F.2d 873, 875 (9th Cir. 1985)
(considering prior abusive conduct of litigants in the district
court in awarding sanctions) abrogated on other grounds by
Nordvik v. Comm’r Internal Revenue Serv., 67 F.3d 1489,
1493 (9th Cir. 1995); Wood v. McEwen, 644 F.2d 797, 802
(9th Cir. 1981) (per curiam) (imposing sanctions after
reviewing appellant’s prior conduct in the district court and
in filing multiple other cases). Accordingly, we exercise our
discretion under Rule 38 and grant in part appellees’
sanctions motion and award attorney’s fees under Rule 38
for defending this appeal.
We refer the determination of an appropriate award of
attorney’s fees as damages under Rule 38 to this court’s
Appellate Commissioner, who shall conduct whatever
proceedings he deems appropriate, and who shall have
authority to enter an order awarding fees. See 9th Cir. R.
39.1.6. The Appellate Commissioner’s order is subject to
reconsideration. Id.
Appellees did not file a timely bill of costs in this appeal.
See Fed. R. App. P. 39(d); 9th Cir. R. 39-1.1. Accordingly,
we deny in part the motion for sanctions under Rule 38 with
respect to appellees’ request for double costs for this appeal. 1
1
If a Rule 38 motion includes a request for an award of double costs,
the bill of costs underlying that request must be filed in this court in
IN RE WESTWOOD PLAZA NORTH 7
We deny in part the motion for sanctions with respect to
appellees’ request for sanctions pursuant to 28 U.S.C.
§ 1927.
Appellees filed the motion for sanctions both in this
appeal and in a related appeal, No. 16-55374. The motion
for sanctions in appeal No. 16-55374 will be addressed by
separate order in that docket.
GRANTED in part; DENIED in part.
compliance with the deadlines in Rule 39 and Circuit Rule 39-1. See
Fed. R. App. P. 39(d) (bill of costs must be filed within 14 days after
entry of judgment).