United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S SECOND MOTION FOR
PUNITIVE SANCTIONS AGAINST DEFENDANTS FOR FRIVOLOUS AND
VEXATIOUS MOTIONS (ECF NO. 81)
Sam Consiglio, Jr. is a civil detainee proceeding pro
se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
before the Court is Plaintiff's second motion for
punitive sanctions against Defendants Ahlin and Price for
frivolous and vexatious motions, filed on June 24, 2019. (ECF
No. 81.) Although Defendants have not had an opportunity to
respond to Plaintiff's second motion for sanctions, the
Court finds that a response is unnecessary and deems
Plaintiff's motion submitted for decision. Local Rule
second motion for sanctions, Plaintiff moves the Court for
imposition of punitive sanctions of the Court's choice
against Defendants pursuant to Federal Rule of Civil
Procedure 11, 28 U.S.C. § 1927, and the Court's
inherent authority to impose sanctions for bad faith.
Plaintiff argues that Defendants' motion for a protective
order, or, in the alternative, request for a stay of deadline
for response to Plaintiff's motions to compel to enlarge
time for discovery, and to impose sanctions is frivolous,
vexatious, lacks any legal basis, and was filed in order to
delay this action and to satisfy Defendants' malicious
Plaintiff seeks imposition of sanctions against Defendants
pursuant to Federal Rule of Civil Procedure 11. “Under
Federal Rule of Civil Procedure 11, sanctions may be imposed
if a party or their attorney submits a pleading to the court
which is submitted for an improper purpose, is frivolous, has
no evidentiary support, or is not warranted by the
evidence.” Washington v. Young, No.
2:16-cv-1341 JAM DB P, 2019 WL 950252, at *2 (E.D. Cal. Feb.
27, 2019). “Rule 11 is an extraordinary remedy, one to
be exercised with extreme caution.” Operating
Eng'rs Pension Trust v. A-C Co., 859 F.2d 1336m 1345
(9th Cir. 1988).
places “stringent notice and filing requirements on
parties seeking sanctions.” Holgate v.
Baldwin, 425 F.3d 671, 677 (9th Cir. 2005). Rule 11
contains a “safe harbor” provision, which is
strictly enforced. Id. at 678. In order to comply
with Rule 11's “safe harbor” provision,
Plaintiff was required to serve his Rule 11 motion for
sanctions on the Defendants with a demand for retraction of
the allegedly offending motion, and then to allow Defendants
at least twenty-one days to retract the pleading before
filing his Rule 11 motion with the Court. See Radcliffe
v. Rainbow Const. Co., 254 F.3d 772, 788-89 (9th Cir.
2001). Plaintiff did not follow this procedure.
12, 2019, Defendants filed their motion for protective order,
or, in the alternative, request for stay of deadline for
response to motions to compel, to enlarge time for discovery,
and to impose sanctions. (ECF No. 79.) Plaintiff filed the
instant second motion for Rule 11 sanctions on June 24, 2019,
less than 21 days later. (ECF No. 81.) Therefore, Plaintiff
could not have complied with Rule 11's “safe
harbor” provision. Consequently, Plaintiff's
request for an award of sanctions pursuant to Rule 11 must be
Plaintiff also seeks imposition of sanctions against
Defendants pursuant to 28 U.S.C. § 1927 or pursuant to
the Court's inherent authority. 28 U.S.C. § 1927
authorizes the imposition of sanctions against “[a]ny
attorney … who so multiplies the proceedings in any
case unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses, and
attorneys' fees reasonably incurred because of such
conduct.” However, while the “imposition of Rule
11 sanctions … requires only a showing of objectively
unreasonable conduct[, ]” Miller v. Cardinale (In
re DeVille), 361 F.3d 539, 548 (quoting Fellheimer,
Eichen & Braverman v. Charter Technologies, 57 F.3d
1215, 1225 (3d Cir. 1995), “[a]n award of sanctions
under 28 U.S.C. § 1927 or the district court's
inherent authority requires a finding of recklessness or bad
faith[, ]” Barber v. Miller, 146 F.3d 707, 711
(9th Cir. 1998). In this case, Plaintiff argues that the
Defendants' motion for protective order was brought in
bad faith because Defendants' arguments that the pending
motion for judgment on the pleadings will dispose of the
entire action and that the U.S. Supreme Court's decision
in Packingham v. North Carolina, 528 U.S., 137 S.Ct.
1730 (2017), is not applicable to this action are frivolous.
the Court finds that Defendants did not knowingly raise any
frivolous arguments in its motion for protective order.
Further, even presuming that Defendants' arguments in its
motion for protective order were frivolous, Plaintiff has
still failed to establish that Defendants raised the
arguments in bad faith because the record contains no
evidence that Defendants filed their motion in order to
harass or vex Plaintiff. See Estate of Blas v.
Winkler, 792 F.2d 858, 861 (9th Cir. 1986) (observing
that a finding of bad faith is crucial, because a frivolous
argument by itself is insufficient to support an award of
sanctions under § 1927). Therefore, Plaintiffs request
for an award of sanctions pursuant to § 1927 or the
Court's inherent authority must be denied.
Plaintiffs second motion for punitive sanctions against
Defendants for frivolous and vexatious ...