Opinion
No C 02-3382 VRW
March 16, 2004
ORDER
On December 24, 2003, the court suspended its December 22, 2003, order granting defendant General Dynamics (GD) its reasonable attorney fees and costs (Doc # 52) and requested further briefing. For the reasons stated below, the court REINSTATES its December 22, 2003, order and GRANTS GD its reasonable fees in the amount of $31,771.25, as well as its costs in the amount of $2,782.69.
I
Pro se plaintiff William Gilliam (Gilliam) filed the original complaint in this action on July 15, 2002, which included federal civil rights claims under 42 §§ 1983 and 1985. Doc # 1. After defendants GD and Sonoma County (the County) filed motions to dismiss (Docs ## 9, 19), the court dismissed Gilliam's original complaint on the basis that his federal causes of actions were time-barred (Doc # 31). On July 3, 2003, Gilliam filed an amended complaint that asserted federal causes of action based on essentially the same allegations as those contained in his original complaint. Doc #33. GD and the County again filed motions to dismiss (Docs ## 35, 39). GD also requested attorney fees under 42 U.S.C. § 1988(b), which permits such an award to a prevailing civil rights defendant if plaintiff's claims are unreasonable or vexatious. On November 17, 2003, the court granted defendants' motions to dismiss on the same grounds on which it had dismissed the original complaint. Doc #48. In that same order, the court also granted GD's request for attorney fees on the basis that Gilliam's amended complaint was groundless and without foundation. Because the court required further briefing before determining the appropriate amount of attorney fees to award, the court ordered that GD submit a supplemental memorandum by December 8, 2003. The court ordered that Gilliam submit any objections to GD's supplemental memorandum by December 22, 2003.GD submitted its supplemental documentation on December 8, 2003. See Docs ## 49, 50. As of 5:00 pm on December 22, 2003. the court had received nothing from Gilliam. The court thus issued an order awarding GD its reasonable attorney fees in the amount of $31,771.25, as well as its costs of $2,782.69, and ordering Gilliam to pay GD such fees and costs upon receipt of that order. Doc #51.
Gilliam, however, lodged his objections with the court at approximately 5:30 pm on December 22, 2003. Doc # 53. The court concluded that it would be preferable to consider Gilliam's objections to GD's supplemental filings (despite the fact that they were filed at the last minute), rather than keeping the order granting attorney fees in effect. Accordingly, the court suspended its December 22, 2003, order awarding GD its reasonable attorney fees and costs. Doc # 52. The court invited GD to submit a reply to Gilliam's objections by January 15, 2003, at which time the court would consider the matter submitted. The court received GD's reply on January 15, 2004. Doc # 59.
II
The court first addresses two preliminary matters before evaluating Gilliam's objections.
A
First, Gilliam requests that, pursuant to FRE 201, the court take judicial notice of an order to show cause issued by the Contra Costa superior court regarding a suit filed against Gilliam by his former girlfriend Joan Cooper. Doc #54. As such a court document is the proper subject of judicial notice, the court GRANTS Gilliam's request.
B
Second, Gilliam's objections to GD's supplemental documentation appear as a pending motion on the court's docket. Doc # 53. Such designation of Gilliam's documentation appears to be the result of clerical error, as the documentation is not in fact a motion. Accordingly, the court TERMINATES as an administrative matter Gilliam's improperly designated motion for attorney fees (Doc # 53).
III
Gilliam makes four main arguments in his response to GD's supplemental filings. First, Gilliam contends that the court may not grant an award of attorney fees without a finding that Gilliam "knowingly" filed a frivolous or unreasonable amended complaint. Pl Obj (Doc # 53) at 10:14-15:7. Second, Gilliam argues that an award of attorney fees would interfere with the Contra Costa court's order to show cause and that the court should therefore consider the matter in light of the Younger abstention doctrine. Id at 15:8-16:14. Third, Gilliam contends that GD should not recover attorney fees based on the doctrine of unclean hands. Id at 16:15-17:10. Finally, Gilliam argues that he has no present ability to pay attorney fees. Id at 17:11-18:14.
A
In its reply to Gilliam's objections, GD initially points out that Gilliam does not contest the reasonableness of GD's fee request. Instead, Gilliam "spends the bulk of his time attacking the [c]ourt's November 17, 2003, holding that GD was entitled to an award of its reasonable attorney fees and costs because Gilliam's amended complaint was meritless within the meaning of 28 U.S.C. § 1988(b)." GD Reply (Doc # 59) at 2:24-3:9.
In its November 17, 2003, order, the court clearly and explicitly granted GD's motion for attorney fees and costs. 11/17/03 Ord (Doc # 48) at 32:26-33:1, 37:24-25. The court only reserved decision on the issue of the amount of attorney fees to which GD is reasonably entitled. Id at 33:5-6. The court ordered supplemental briefing on this issue alone, and Gilliam was specifically directed to file any objections he had to GD's supplemental documentation regarding the reasonable amount of such fees. Id at 37:25-38:11. Given that Gilliam had had ample time to respond to the merits of GD's request for attorney fees (and in fact had responded to GD's motion for fees in his September 19, 2003, opposition brief), the court certainly did not need supplemental briefing from Gilliam on the issue whether to grant GD's request for such an award.
Gilliam does not seem to understand that, once the court has ruled on a motion, the issue has been decided and the matter is not open for further briefing and argument. The court has previously cautioned Gilliam that, should he believe the court's reasoning in an order is flawed, the proper method for addressing such perceived court error is to file a motion for leave to file a motion for reconsideration pursuant to Civ LR 7-9. Submitting filings that simply challenge the propriety or correctness of the court's previous ruling is improper. As the court has noted, Gilliam's status as a pro se plaintiff does not excuse him from compliance with the court's local rules. SeeKing v Atiyeh, 814 F.2d 565, 567 (9th Cir 1987). Even were lack of awareness of the local rules a valid excuse for not complying with them, see Swimmer v IRS, 811 F.2d 1343, 1344 (9th Cir 1987), such a rationale would not excuse Gilliam here: the court explicitly advised Gilliam of this procedure for reconsideration in its November 17, 2003, order. 11/17/03 Ord at 17:14-18:9. The court's November 17, 2003, order did not leave open the issue of whether an award of attorney fees is warranted in this case. Rather, the court left open the issue of what constitutes a reasonable award of such fees The court's decision to take supplemental briefing on the second issue obviously presupposes that the court has answered the question posed by the first issue in the affirmative. Should this logic not have been evident, Gilliam need only have looked to the language of the court's order, which clearly reads that "GD's motion for attorney fees pursuant to § 1988(b) (Doc # 39) is GRANTED." 11/17/03 Ord at 37:24-25. Because Gilliam failed to submit a motion for leave to file a motion for reconsideration, Gilliam's "objections" to GD's bill of costs should be overruled on this ground alone.
B
Nevertheless, in an abundance of caution, the court will consider the arguments Gilliam raises concerning the propriety of granting GD's request for attorney fees. The court begins with Gilliam's argument that such an award is not warranted unless the court finds that Gilliam "knowingly" filed a frivolous or groundless amended complaint and that Gilliam should be held to a lesser standard due to his status as a pro se litigant.Section 1988(b) authorizes a court in its discretion to award attorney fees to a prevailing defendant in a civil rights action brought under § 1983 or § 1985 if the action is "groundless or without foundation."Patton v County of Kings, 857 F.2d 1379, 1381 (9th Cir 1988). "The mere fact that a defendant prevails does not automatically support an award of fees." Id (citing Coverdell v Dep't of Social Health Services, 834 F.2d 758, 770 (9th Cir 1987)). Rather, a prevailing civil rights defendant should be awarded attorney fees only in cases in which the plaintiff's action is "unreasonable, frivolous, meritless or vexatious."Patton, 857 F.2d at 1381. Such standard is almost identical to the standard used in assessing whether to impose sanctions under FRCP 11(c). A party violates Rule 11 unless his pleadings "`to the best of his knowledge, information and belief, formed after reasonable inquiry, [are] well grounded in fact and [are] warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that [the pleadings are] not interposed for an improper purpose.'" Stewart v American Int'l Oil Gas Co, 845 F.2d 196, 201 (9th Cir 1988), quoting Huetting Schromm, Inc v Landscape Contractors Counc Nor Cal, 790 F.2d 1421, 1426 (9th Cir 1986). Contrary to Gilliam's assertions that frivolousness should be assessed by a subjective standard, "sanctions shall be assessed if the paper filed in district court * * * is frivolous, legally unreasonable, or without factual foundation, even though the paper was not filed in subjective bad faith " Zaldivar v City of Los Angeles, 780 F.2d 823, 831 (9th Cir 1986) (emphasis added). Sanctions cannot be avoided simply because a party "operates under the guise of a pure heart and an empty head." Smith v Ricks, 31 F.3d 1478, 1488 (9th Cir 1994) (citation omitted).
As the court detailed in its last order, ample grounds exist for finding that Gilliam's amended complaint is objectively frivolous. Gilliam may have been justified the first time he argued that his claims were not time-barred, which was in opposition to the first round of motions to dismiss; the court need not assess whether Gilliam's arguments in that regard were objectively reasonable. Rather, the relevant considerations are Gilliam's decisions to file an amended complaint containing essentially the same federal claims the court had just dismissed and to justify those claims on arguments the court had already rejected. The court made clear in its May 2003 order that Gilliam's federal civil rights claims were time-barred and that Gilliam could file an amended complaint only if he could assert claims that were not time-barred. Gilliam's amended complaint was filed in direct contravention of this order because the claims it asserted were the same time-barred claims the court had previously dismissed. Moreover, Gilliam relied on arguments the court had previously found unpersuasive, and Gilliam attempted to coerce the court into reconsidering such arguments. Whether Gilliam's decisions to do this were made in subjective good faith is irrelevant. Gilliam's decisions to file such a complaint and to justify the claims in such manner are difficult to justify on any plausible ground and are, therefore, objectively unreasonable.
Gilliam's contention that his status as a pro se plaintiff entitles him to be held to a subjective standard is also without merit. The Ninth Circuit has found that sanctions are available against "an attorney or an unrepresented party" if the decision to file the paper is objectively unreasonable, "even though the paper was not filed in subjective bad faith." Zaldivar, 780 F.2d at 831 (emphasis added). It is true that the standard for objective frivolousness "is applied with particular strictness in cases where the plaintiff proceeds pro se." Miller v Los Angeles County Board of Education, 827 F.2d 617, 620 (9th Cir 1987). But such a strict approach does not mean that the court must abandon its adherence to standards of objective reasonability. In this case, the court is quite aware that Gilliam is a pro se litigant. Even taking this fact into consideration, the court finds that the filing of an amended complaint that asserts claims previously dismissed by the court is objectively unreasonable. It does not take a law degree or professional training to know that filings that do not conform with the court's previous orders should not be submitted. The court also notes with interest that Gilliam in fact has obtained a law degree and professional experience clerking for licensed attorneys. See Decl William Gilliam (Gilliam Decl; Doc # 55) at 1 ¶¶ 5, 6. In light of the fact that Gilliam is obviously no stranger to the legal world, his arguments that the court should hold him to a lenient standard ring hollow.
The court next turns to Gilliam's argument that the court should refrain from granting an award of attorney fees based on the abstention doctrine set forth in Younger v Harris, 401 U.S. 37 (1971). On the basis of the Contra Costa court's order to show cause with regards to the Cooper case, Gilliam contends that the three-factor test in Younger counsels in favor of federal court abstention from decision on the attorney fee issue. Younger affirmed the "`longstanding public policy against federal court interference with state court proceedings,' such that `the normal thing to do when federal courts are asked to enjoin pending [criminal] proceedings in state courts is not to issue such injunctions.' " Green v City of Tuscon, 255 F.3d 1086, 1094 (9th Cir 2001), quoting Younger . 401 US at 43, 45. The three-factor Younger test leading to federal court abstention is not triggered unless the relief requested from the federal court would "interfere directly with the state court proceedings." Green, 255 F.3d at 1096. The "`mere potential for conflict in the results of adjudications'" does not constitute the type of interference that triggers the Younger doctrine. Id at 1097, quoting Colorado River Water Conservation Dist v United States, 424 U.S. 800, 816 (1976). Nor does the presence of "parallel state and federal litigation" trigger the doctrine, since "the possibility of duplicative litigation is a price of federalism * * *." Green, 255 F.3d at 1098.
In the case at bar, the court is hard-pressed to see on what basis theYounger doctrine would have any application. As GD points out in its reply brief, the court's basis for awarding attorney fees — Gilliam's unreasonable decision to file a complaint asserting claims the court had already dismissed — is unrelated to the contempt proceedings in state court. The court's decision to award fees did not require it to reach the merits of Gilliam's allegations against Cooper. Accordingly, the court rejects this argument as a basis for denying an award of attorney fees.
Gilliam's third argument in support of a denial of an attorney fee award is that GD cannot recover any relief from Gilliam on the basis of the "unclean hands" doctrine. "The defense of unclean hands arises from the maxim, `He who comes into Equity must come with clean hands.'"Kendall-Jackson Winery, LTD v Superior Court, 76 Cal App. 4th 970, 978 (1999). This means that a party must act fairly in the matter for which he seeks a remedy. Id. Additionally, "[t]he misconduct that brings the unclean hands doctrine into play must relate directly to the cause at issue. Past improper conduct or prior misconduct that only indirectly affects the problem before the court does not suffice." Heiner v KMart Corp, 84 Cal App. 4th 335, 345 n4 (emphasis added). None of the alleged bad acts Gilliam alleges — threats at a deposition in another case, claims of fraud in another case and failure to provide the court with all of the pages of a document — appear to be directly related to the petition for attorney fees in any way. The court therefore finds that the doctrine of unclean hands has no application here.
Gilliam's final argument in favor of denying the award for attorney fees is that he does not have the financial ability to pay such an award. As the court noted in its November 17, 2003, order, the court should consider the sanctioned party's ability to pay as one factor in its decision whether to grant an award of attorney fees, since an award "should not subject the plaintiff to financial ruin." Patton, 857 F.2d at 1382. The party's ability to pay, however, should not be the sole basis for a denial of an award. Id. And the party to be sanctioned "has the burden of coming forward with evidence of inability to pay." Gaskell v Weir, 10 F.3d 636, 629 (9th Cir 1993). The party's unsubstantiated declaration asserting that he has no ability to pay is insufficient in this regard. See id.
Here, the court noted initially that, if Gilliam had evidence that he would be unable to pay an attorney fee award, he should have presented this evidence in connection with his September 19, 2003, opposition to GD's motion for attorney fees. In any event, Gilliam has not met his burden here. Gilliam's only evidence of his inability to pay is his unsupported declaration stating that he lacks the ability to pay. Gilliam Decl at 2 ¶ 14. This declaration, which Gilliam fails to corroborate with any hard evidence such as financial statements, tax returns or papers from court proceedings, is not enough to meet Gilliam's burden. Even were it enough, Gilliam's declaration suggests that, as the recipient of a law degree and as a party to in settlement discussions that may lead to the recovery of substantial funds, Gilliam may have considerable ability to pay an award of attorney fees. Moreover, even if Gilliam had met his burden regarding inability to pay, his financial status would form the sole basis for not awarding 6D its attorney fees. As such, it would be insufficient grounds on which to base such a denial.
Accordingly, the court finds that none of Gilliam's arguments present a reason to reconsider its previous ruling concerning GD's entitlement to recover its reasonable attorney fees.
IV
Gilliam's response to GD's supplemental documentation nowhere addresses the issue with which the court is now concerned — the reasonability of GD's claimed hourly rate and claimed number of hours. The court, in its December 22, 2003, order, considered GD's arguments in its supplemental documentation concerning the reasonability of its claimed attorney fees and costs and decided that GD had sufficiently justified the amount of fees and costs it requested. As the court presently is satisfied that the amount of GD's claimed award is reasonable and outlined in detail in the December 22 order the reasons for its satisfaction, the court need not rehash that analysis here. The court, therefore, REINSTATES the ruling contained in its December 22, 2003, order and GRANTS CD's request for attorney fees in the amount of $31,711.25 and for costs in the amount of $2,782.69.
V
In sum, the court finds that none of Gilliam's arguments present a basis for reconsidering either the decision to grant GD its attorney fees or to approve GD's requested award as reasonable. Accordingly, the court REINSTATES its December 22, 2003, order granting GD its reasonable attorney fees and costs in the amount of $34,553.94. Gilliam is ORDERED to pay GD that amount upon receipt of this order.
The court also TERMINATES Gilliam's misnamed motion for attorney fees (Doc # 53) as an administrative matter.
IT IS SO ORDERED.