In Re: W.A.R. LLP ( 2014 )

FILED
UNITED STATES DISTRICT COURT Nov 2 5 201“
DISTRICT OF COLUMBIA Clerk, U.S. District and
Bankruptcy Courts
In re: W.A.R. LLP Case No. 12-mc-306 (RCL)
Bankruptcy Debtor
MEMORANDUM OPINION
Appellants to this matter, Wade Robertson (“Robertson”) and W.A.R. LLP (“W.A.R.”),
seek de novo review of a Bankruptcy Petition, Bankr. Case No. 11-044. This case is one of
several matters filed by Robertson and W.A.R., objecting to, appealing, or seeking review of the
underlying bankruptcy decision. The Court has previously ordered appellants to show cause why
they should not be enjoined from further filings in the instant case, further appeals from the
underlying bankruptcy case, and from filing new related matters in this Court. For the reasons
discussed below, appellants are enjoined fi'om further filings in the instant case and related Case
No. 11-1574, except for a Notice of Appeal to the Court of Appeals for the District of Columbia
Circuit regarding the Court’s Order in this matter. Appellants are also enjoined from filing
further appeals from the underlying bankruptcy case, Bankr. Case No. 11-044, and from filing
new related matters in this Court.
I. BACKGROUND
The instant bankruptcy case and request for de novo review is an offshoot of previous
litigation in this Court between the founding partners of the debtor partnership W.A.R.,
Robertson and William Cartinhour (“Cartinhour”). Robertson v. Cartinhour, Case No. 09-1642.
Judge Ellen Huvelle entered judgment in that litigation on February 25, 2011. Judgment, ECF
No. 165. Robertson initiated that litigation in April 2009, filing a complaint against Cartinhour
seeking a declaratory judgment regarding an agreement to “hold harmless” for any claims
Cartinhour might have related to the partnership. Complaint, ECF No. 1. Cartinhour
countersued, alleging that Robertson had fraudulently induced him to invest in the partnership.
Counterclaim, ECF No. 2. A jury trial took place in February 2011. The jury awarded
Cartinhour $3.5 million in compensatory damages for his countersuit and $3.5 million in
punitive damages for Robertson’s breach of fiduciary duty and legal malpractice. Judgment,
ECF No. 165. .
In November 2010, Robertson filed a similar suit in the Southern District of New York, ..
Robertson v. Cartinhour, Civil No. 10-8442, addressing the same factual dispute as the case
before Judge Huvelle.l The new suit caused Cartinhour to file a motion for an anti-filing
injunction in the pending declaratory judgment case. Emergency Motion for Permanent
Injunction, No. 09-1642, ECF No. 128. Judge Huvelle denied the motion on December 30,
2010, but noted that Robertson had engaged in a variety of frivolous filings. Order, ECF No.
147. The New York case, after transfer to this Court, was later dismissed on the basis of res
judicata, judicial estoppel, and failure to state a claim. Mem. Op., Case No. 11-1919, ECF No.
95.
Additionally, while the declaratory judgment case was ongoing, an outside W.A.R.
creditor filed an involuntary Chapter 7 bankruptcy petition in the Western District of Tennessee
against W.A.R. Bankruptcy Petition No. 10-32530. This bankruptcy petition is the foundation
for the suit subject to the instant petition for de novo review. After determining that the DC.
1 This case was later transferred to the DC. District Court, Case No. 11-1919. Robertson appears to have
also filed another case with similar factual background in the Superior Court of California, Santa Clara County, Case
No. 113-cv—256559, seeking damages against Cartinhour in the amount of $3.8 million. Opp’n to Mot. to Enlarge
Time to File Bankruptcy Appeal Briefs, Ex. A., Case No. 12-cv—1794, ECF No. 23.
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7083. The Circuit entered judgment affirming this Court’s rulings in Case Nos. 11-1574 and 12-
306 on November 6, 2014. In re W.A.R. LLP,_.USCA Case Nos. 12—7083 and 12-7084.
II. LEGAL STANDARD
Repeated frivolous and meritless filings will not be tolerated by this Court. “It is now
well established that a court may employ injunctive remedies to protect the integrity of the courts
and the orderly and expeditious administration of justice.” Urban v. United Nations, 768 F.2d
1497, 1500 (DC. Cir. 1985); Kaempfer v. Brown, 872 F.2d 496, *2 (DC. Cir. 1989). Any such
restrictions must be narrowly tailored to protect that interest “without unduly impair[ing] a
litigant’s right of access to the courts.” In re Powell, 851 F.2d 427, 431 (DC. Cir. 1988). The
constitutional right of access to the courts, however, is neither “absolute nor unconditional.”
Caldwell v. Obama, 6 F. Supp. 3d 31, 49 (D.D.C. 2013) (citing In re Green, 669 F.2d 779, 785
(DC. Cir. 1981)). '
' Three steps are required before the COurt may issue a filing injlinction. Powell, 851 F.2d
at 431; Caldwell, 6 F. Supp. 3d at 50. First, because a filing injunction concerns a potential
denial of due process rights, the Court must provide sufficient notice and the opportunity to be
heard. Caldwell, 6 F. Supp. 3d gt 50 (citing Powell, 851 F.2d at 431; Rodriguez v. Shulman, 844
F. Supp. 2d 1, 15 (D.D.C. 2012)). Second, the Court must develop a record for review “to
fithher ensure that the filer’s due process rights are not violated.” Id. (citing Powell, 851 F.2d at
431; Kaempfer, 872 F .2d at *3; Rodriguez, 844 F. Supp. 2d at 15). “[M]ere litigiousness does
not support the issuance of an injunction.” Powell, 851 F.2d at 434. The Court must consider
“both the number and content of the filings” when considering an injunction of this nature. Id;
Caldwell, 6 F. Supp. 3d at 50. Finally, the Court must “make substantive findings as to the
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Court, and Case No. 11-2082 in the District Court for the Western District of Tennessee.6 And
" third, lboking both to the “number and content of the filings” in these cases and the Court’s
findings as to the frivolous or harassing nature of the appellants’ actions within these cases, the
Court finds that a filing injunction is appropriate.7 9 _
Judge Huvelle first noted Robertson’s tendency to file a “barrage of motions” in her '-:
adjudication of the declaratory judgment case, Case No. 09-1642. Mem. Op., ECF No. 72;
Mem. Op, ECF No. 110. During the first fifteen months after filing the case, Robertson filed
fourteen motions, including a motion to quash a subpoena, Mot. to Quash Subpoena, ECF No.
43, and a motion to reconsider an order granting Cartinhour leavetto amend his counterclaims,
Mot. for Reconsideration re Order on Motion to Amend/COrrect, ECF No. 5d. The Court found
that these two motions were meritless and that they were filed recklessly and in bad faith, so as
to justify the award of attorneys’ fees against Robertson under 28 U.S.C. § 1927 (2012) on May
17, 2010. Mem. Op., ECF No. 110. '
In addition to numerous appellate filings with the Court of Appeals for the DC. Circuit,
Judge Huvelle had to rule on several-motions for recusal, motions for stay, motions for
reconsideration, and motions to quash. Due to emergency circumstances, the Court had to issue
a temporary restraining order and preliminary injunction ordering Robertson to stay away from
Cartinhour on January 15, 2010. Consent Order on Mot. on Temporary Restraining Order and
6 Robertson, W.A.R., and Clevenger have also been parties, plaintiffs, or appellants in Case Nos. 11-mc-283,
11-1349, 12-1794, and 12-1796 in the DC. District Court and Case Nos. 10-7016, 10-7017, 10-7033, 11-7026, 11-
7076, 12-7010, 12-7043, 12-7083, 12-7084 in the Court of Appeals for the District of Columbia Circuit. The Court,
however, does not consider these cases in its analysis because they are not pertinent to the question whether
plaintiffs have filed harassing or frivolous matters in this Court.
Robertson argues that the Court may not impute the misconduct of other attorneys or parties to the
individual against whom the Court is imposing the anti-filing injunction. Response to Show Cause Order, Case No.
12-mc-306, ECF No. 12. This argument is unpersuasive for three reasons. First, Robertson does not provide any
case law from our Circuit to support his argument. Second, Robertson does not provide any evidence that his
attorneys were acting in contravention of his wishes when they engaged in sanctionable conduct or that the Court
recognized any sort of separation between attorney and client for the purposes of the sanctions noted above. Finally,
the anti-filing injunction at issue is narrow and only limits the subject matter on which plaintiffs may file new
appeals or related matters.
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