FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY SNELLER; SHERRY MILLS
SNELLER,
Plaintiffs-Appellants,
No. 09-35056
v.
CITY OF BAINBRIDGE ISLAND, a D.C. No.
CV 07-5338 RBL
Washington municipal corporation;
OPINION
MEGHAN MCKNIGHT; BOB EARL;
DARLENE KORDONOWY,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
January 14, 2010—Seattle, Washington
Filed May 25, 2010
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Tallman
7489
7492 SNELLER v. CITY OF BAINBRIDGE ISLAND
COUNSEL
Edmund K. Kamai, Seattle, Washington, for the plaintiffs-
appellants.
Michael C. Walter, Seattle, Washington, for the defendants-
appellees.
OPINION
TASHIMA, Circuit Judge:
Plaintiffs-Appellants Jeffrey and Sherry Sneller (together,
the “Snellers”) appeal from a $24,000 sanction award to
Defendants-Appellees the City of Bainbridge Island (the
“City”), Meghan McKnight, Bob Earl, and Darlene Kordo-
nowy (collectively, “Defendants”) under Federal Rule of Civil
Procedure 11 and 28 U.S.C. § 1927. The Snellers argue that
imposition of the sanction was error because they effectively
withdrew any claims that violated Rule 11(b) during the safe
harbor period, before Defendants filed their motion for sanc-
tions. We agree and therefore reverse.1
BACKGROUND
This case arises from a land use dispute between the Snel-
lers and the City over the Snellers’ efforts to develop property
which included a wetland. The Snellers brought suit in federal
court against the City, several of its employees, and other
defendants no longer parties to this appeal.
1
The Snellers also argue that Defendants failed to comply with the pro-
cedural requirements of Rule 11, as set forth in Radcliffe v. Rainbow Con-
str. Co., 254 F.3d 772, 788-89 (9th Cir. 2001). Because we conclude that
the sanctions must be reversed, we need not rule on this question.
SNELLER v. CITY OF BAINBRIDGE ISLAND 7493
The City, alleging that certain claims were frivolous,
requested that those claims be dropped and that the individual
City employees be dismissed from the lawsuit. The City pre-
pared a motion for sanctions under Rule 11 and 28 U.S.C.
§ 1927 and served the motion on the Snellers’ attorney on
August 1, 2008. The motion specifically requested that the
Snellers drop their claim for violations of the Washington
State Constitution, their claim of civil conspiracy, and all
claims against the individual defendants. The City also moved
for partial summary judgment on the Snellers’ state constitu-
tional law and civil conspiracy claims, as well as all claims
against the individual defendants employed by the City.
Three days before the end of the safe harbor period, the
Snellers filed a motion to amend their complaint and submit-
ted a proposed Third Amended Complaint which omitted each
of the claims referenced in Defendants’ motion for sanctions.
The Third Amended Complaint, however, added two new
causes of action.
After the motion to amend was served on the Snellers and
the 21-day safe-harbor period required by Rule 11, see Fed.
R. Civ. P. 11(c)(2), had passed, the City filed the motion for
sanctions with the district court. On September 22, 2008, the
district court granted the City’s motion for partial summary
judgment, denied the Snellers’ motion to amend their com-
plaint, and granted the City’s motion for sanctions. The court
granted the sanction under both Rule 11 and § 1927 against
the Snellers and their counsel of record.
On October 27, 2008, the Snellers moved to dismiss with
prejudice their remaining federal claims and all claims against
the individual defendants. They also sought to dismiss with-
out prejudice their remaining state law claims. The district
court granted the Snellers’ motion to dismiss, and the Snellers
now appeal the imposition of sanctions under Rule 11 and 28
U.S.C. § 1927.
7494 SNELLER v. CITY OF BAINBRIDGE ISLAND
JURISDICTION
We have jurisdiction over the final decisions of the district
courts under 28 U.S.C. § 1291. Ordinarily, a voluntary dis-
missal without prejudice is not an appealable final judgment.
Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995). How-
ever, “when a party that has suffered an adverse partial judg-
ment subsequently dismisses remaining claims without
prejudice with the approval of the district court, and the
record reveals no evidence of intent to manipulate our appel-
late jurisdiction, the judgment entered after the district court
grants the motion to dismiss is final and appealable under 28
U.S.C. § 1291.” James v. Price Stern Sloan, Inc., 283 F.3d
1064, 1070 (9th Cir. 2002).
Here, the Snellers suffered an adverse partial judgment
when the district court granted the City’s motion for partial
summary judgment, there is no evidence that the Snellers
moved to dismiss the claims without prejudice in order to
manipulate appellate jurisdiction, and Defendants do not con-
tend otherwise. Instead, the Snellers’ reason for the dismissal,
that the remaining claims are state law claims and that any
future suit will be in state court, appears legitimate. See Am.
States Ins. Co. v. Dastar Corp., 318 F.3d 881, 888 (9th Cir.
2003) (noting that the plaintiff in James offered a legitimate
reason for dismissal). We therefore have jurisdiction over this
appeal pursuant to § 1291.
ANALYSIS
I.
We review the district court’s imposition of Rule 11 sanc-
tions for abuse of discretion. Detabali v. St. Luke’s Hosp., 482
F.3d 1199, 1203 (9th Cir. 2007). A district court abuses its
discretion when it applies the incorrect legal standard or bases
its ruling “on a clearly erroneous assessment of the evidence.”
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).
SNELLER v. CITY OF BAINBRIDGE ISLAND 7495
[1] Rule 11 authorizes a court to impose a sanction on any
attorney, law firm, or party that brings a claim for an
improper purpose or without support in law or evidence. Rule
11(c), however, provides a 21-day safe harbor period. Under
this provision, Rule 11 sanctions may not be imposed if the
challenged claim is withdrawn within 21 days after service of
the sanctions motion. Fed. R. Civ. P. 11(c)(2); see also Bar-
ber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998). The question
before this court is whether the Snellers’ challenged claims
were “withdrawn” for purposes of Rule 11 within the safe
harbor period.
[2] On August 1, 2008, Defendants served the Snellers
with a Rule 11 motion requesting that Plaintiffs dismiss their
claims for violations of the Washington State Constitution,
civil conspiracy, and all claims against the individual defen-
dants. The Snellers responded eighteen days later with a
Motion for Leave to Amend their complaint so as to satisfy
these requests. The Snellers’ proposed Third Amended Com-
plaint omitted each of the claims referenced in Defendants’
motion for sanctions. By filing the motion to amend within
the 21-day safe harbor period, the Snellers withdrew all of the
challenged claims as required by Rule 11.2 There is nothing
more that the Snellers were required to do in terms of with-
drawing the challenged claims. See Truesdell v. S. Cal. Per-
manente Med. Group, 293 F.3d 1146, 1153 (9th Cir. 2002)
(noting that amendment of a complaint cures a Rule 11
defect). Although the dissent suggests that there were several
other ways, besides a motion to amend, for the Snellers to
withdraw their offending claims, the availability of those
additional suggested methods, even if true, are irrelevant. All
that Rule 11 required is that the Snellers withdrew their
2
Although Defendants assert that the Snellers waived this argument by
not presenting it to the district court, the Snellers did inform the district
court that the amended complaint withdrew the challenged claims. This
was sufficient to preserve their argument that the motion to amend their
complaint within the safe harbor period made sanctions improper.
7496 SNELLER v. CITY OF BAINBRIDGE ISLAND
claims within the safe harbor period. As explained above,
they did.
Defendants contend that the Snellers did not withdraw their
challenged claims as required by Rule 11 because they did not
dismiss their claims with prejudice under Rule 41(a)(1)(A)(ii),
their proposed amendment to the complaint added new causes
of action, and they failed completely to excise the names of
one of the individual defendants from their Third Amended
Complaint.
[3] The Rule 11 safe harbor provision, by its plain lan-
guage, does not require that a party drop its claims with preju-
dice.3 All that Rule 11 requires is that the offending pleading
be withdrawn. Rule 11 also does not require that a party vol-
untarily dismiss its entire case under Rule 41(a)(1)(A)(ii)
where the motion for sanctions references only some of the
claims or parties set forth in a complaint. Filing a motion for
leave to amend the complaint under Rule 15 thus constitutes
effective withdrawal because it is the only procedure available
under the rules to withdraw individual challenged claims. See
Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d
683, 687-88 (9th Cir. 2005) (noting that Rule 15, rather than
Rule 41, controls the situation where a plaintiff desires to
eliminate some but not all of its claims).
[4] It is true that the Third Amended Complaint added two
new causes of action. However, for Rule 11 purposes, it
makes no difference that the proposed amended complaint
may have included additional offending claims. The Rule 11
motion is directed only at the claims made in the Second
Amended Complaint. Those yet-to-be-filed claims are not the
subject of this Rule 11 motion. The proper procedure for chal-
3
It is possible, for example, that a party may later develop subsequent
facts which would allow the party to reassert the claim in compliance with
Rule 11’s non-frivolousness requirement.
SNELLER v. CITY OF BAINBRIDGE ISLAND 7497
lenging any newly-alleged offending claims, if the amended
pleading is allowed, is to file a new Rule 11 motion.4
Finally, although the Third Amended Complaint mentions
City employee Meghan McKnight in describing the factual
context of the case, she is not named as a defendant in the
caption of the complaint, nor does her name appear in any of
the sections describing the Snellers’ causes of action, and the
Third Amended Complaint seeks no relief against her.
Because the Third Amended Complaint cannot be interpreted
as asserting a claim against McKnight or any of the other
individual defendants, the mere reference to McKnight in the
Third Amended Complaint is an insufficient basis to support
the sanction.
[5] At the end of the day, the Snellers did all that they were
required to do to withdraw the offending claims during the
safe harbor period. Because their motion was filed within the
21-day safe harbor period, the Snellers complied with Rule
11’s requirement that the challenged claim be “withdrawn or
appropriately corrected.” That was all that was required of
them in order to receive the benefit of the safe harbor provision.5
4
The dissent also implies that Rule 11 sanctions were proper because of
the Snellers’ discovery conduct. Diss. at 7503, 7505-06. Rule 11, however,
was not intended to, and does not, reach discovery conduct, even if sanc-
tionable. The proper way to sanction discovery misconduct is through the
procedures provided under Fed. R. Civ. P. 37, not under Rule 11. Neither
the City nor the court sua sponte ever instituted any proceedings under
Rule 37.
5
The dissent notes that “the motion to amend the complaint was noted
for four weeks after the close of the safe harbor period,” Diss. at 7504, and
criticizes the Snellers for not “not[ing] the motion during the safe harbor
period to ensure that the withdrawal actually occurred during that period.”
Diss. at 7505. Under Local Rule 7(d)(3) of the Western District of Wash-
ington, however, it could not have been noted any earlier because the rule
requires a minimum of three weeks’ notice.
7498 SNELLER v. CITY OF BAINBRIDGE ISLAND
II.
[6] Because the sanction cannot be upheld under Rule 11,
we must next examine whether it can be affirmed on the alter-
native basis on which the district court expressly relied, 28
U.S.C. § 1927, to support the imposition of the sanction. The
short answer is that it cannot. The sanction here was imposed
jointly on counsel and the client, but § 1927 authorizes sanc-
tions only upon counsel. See FTC v. Alaska Land Leasing,
Inc., 799 F.2d 507, 510 (9th Cir. 1986). Moreover, the district
court made no finding that counsel did, or acted with the pur-
pose to, “so multipl[y] the proceedings . . . unreasonably and
vexatiously,” 29 U.S.C. § 1927, or that counsel acted reck-
lessly or in bad faith. See B.K.B. v. Maui Police Dep’t, 276
F.3d 1091, 1107 (9th Cir. 2002). Thus, the alternative basis
for the sanction must also be reversed as unauthorized by the
statute.
CONCLUSION
While we agree with the district court that the Snellers and
their counsel’s conduct of this litigation in the district court
was less than exemplary and understand the district court’s
frustration; nonetheless, for the reasons we have explained,
the district court’s order imposing sanctions on the Snellers
and their counsel under Rule 11 and § 1927 must be and is
REVERSED.
TALLMAN, Circuit Judge, dissenting:
“[L]ess than exemplary” is a generous description of Jef-
frey and Sherry Mills Sneller’s behavior during the course of
this litigation. If there were ever a case in which sanctions
were appropriate, this is that case. The Snellers’ improper liti-
gation tactics spanned many months and cost the City of
SNELLER v. CITY OF BAINBRIDGE ISLAND 7499
Bainbridge Island (the “City”) tens of thousands of dollars in
unnecessary attorney fees.
After a land use dispute with the City, the Snellers filed suit
against the City, individual City employees, the Washington
State Department of Ecology, and several State employees.
The City argued that the suit against the individual City
employees was brought for an improper purpose and that sev-
eral of the Snellers’ claims were frivolous and unwarranted by
existing law.1
Mr. Sneller’s own words demonstrate beyond cavil that the
suit against the City employees was nothing more than a tacti-
cal maneuver designed to harass and intimidate public
employees. See Fed. R. Civ. P. 11(b)(1) (stating that an attor-
ney must not file a pleading with the court that is “presented
for any improper purpose, such as to harass, cause unneces-
sary delay, or needlessly increase the cost of litigation”). On
October 29, 2007, Mr. Sneller spoke at the Kitsap Alliance of
Property Owners meeting. The meeting was videotaped and
1
For example, the Snellers’ claim for violation of the Washington Con-
stitution has not been a colorable theory in Washington for decades. See
Brock v. Wash. State Dep’t of Corr., No. C08-5167RBL, 2009 WL
3429096, at *9 (W.D. Wash. Oct. 20, 2009) (“Washington courts have
consistently rejected invitations to establish a cause of action for damages
based upon constitutional violations without the aid of augmentative legis-
lation[.]” (internal quotation omitted)); Reid v. Pierce County, 961 P.2d
333, 342 (Wash. 1998) (stating that Washington courts do not recognize
a private cause of action for State constitutional violations); Spurrell v.
Bloch, 701 P.2d 529, 534-35 (Wash. Ct. App. 1985) (same); Sys. Amuse-
ment, Inc. v. State, 500 P.2d 1253, 1254-55 (Wash. Ct. App. 1972) (same).
The filing of these claims was clearly not warranted by existing law. See
Fed. R. Civ. P. 11(b)(2) (stating that “the claims, defenses, and other legal
contentions [in pleadings filed with the court must be] warranted by exist-
ing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law”). Thus, contrary to the
majority’s contention, no facts could ever be discovered that would allow
the Snellers to state a valid claim pursuant to the Washington Constitution.
See Maj. Op. at 7496 n.3.
7500 SNELLER v. CITY OF BAINBRIDGE ISLAND
aired locally on community public television under the title:
“Jeffrey Sneller: Man on Fire.” During his speech, Mr. Sneller
explained why he had brought suit against the City employ-
ees:
[M]unicipalities and government do have weak-
nesses. . . .
Their . . . weakness is individual staff members.
And we determined—we decided when we filed suit
against the City of Bainbridge that we were going to
those staff members that were responsible individu-
ally.
Now, you might say, well, what good is that?
What does that solve? Because, after all, their gov-
ernment is going to indemnify them and they have a
big war chest. Well, that is not necessarily the case.
These staff members apply for credit cards just like
all of us. They apply for home loans and they apply
for car loans. And when they have a lawsuit pending,
every time you fill out that application, it says, “Are
you a defendant in a lawsuit?” They better check that
box, because it’s going to be checked in any event
by the company issuing the credit.
If you have a two- or three-million-dollar lawsuit
pending against you as a defendant, you’re not going
to get a cell phone. So that was the approach we took.2
Tellingly, the Snellers do not argue on appeal that these
claims were appropriate or non-frivolous.
2
It is difficult to imagine what facts could be obtained during discovery
to justify what, based on Mr. Sneller’s malignant admission, is clearly an
improper purpose for naming the City employees in their individual capac-
ity.
SNELLER v. CITY OF BAINBRIDGE ISLAND 7501
The City repeatedly tried to convince the Snellers to with-
draw the improper claims, and the Snellers refused time and
time again. The City also extended every professional cour-
tesy to give them adequate time to respond and to accommo-
date a change in counsel. Months went by without a response
from the Snellers. The record demonstrates that the City
repeatedly requested dismissal of the improper claims in writ-
ing on January 17, March 18, June 4, July 1, and July 11,
2008, before serving the Snellers with the motion for sanc-
tions under Federal Rule of Civil Procedure (“Rule”) 11 on
July 31, 2008. Pursuant to Rule 11’s “safe harbor” provision,3
the City did not file the motion with the court at that time. On
the eighteenth day of the safe harbor period, the Snellers
responded by filing a motion to amend the complaint remov-
ing the claims listed by the City but also adding new claims,
which was noted for four weeks after the close of the safe har-
bor period. Strangely, the Snellers still opposed the City’s
motion for partial summary judgment related to the offending
claims. The next day, the Snellers propounded new discovery
requests related to the same claims that were ostensibly with-
drawn in the proposed amended complaint.
On August 20, 2008, the City again wrote to the Snellers
asking them to drop the “frivolous and malicious” claims
against the City. In response, the Snellers’ counsel asked the
City to “have something drawn up” that he could discuss with
the Snellers. Tired of waiting, the City provided a Stipulation
and Order of Dismissal, which was sent on August 21, 2008,
indicating that if it was not signed and filed by noon on
August 22, 2008, the City would file its Rule 11 motion. No
response was received; therefore, the City filed its motion for
3
A motion under Rule 11 “must not be filed or be presented to the court
if the challenged paper, claim, defense, contention, or denial is withdrawn
or appropriately corrected within 21 days after service.” Fed. R. Civ. P.
11(c)(2). This twenty-one-day window is commonly known as the “safe
harbor” period. See Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 789
(9th Cir. 2001).
7502 SNELLER v. CITY OF BAINBRIDGE ISLAND
sanctions with the district court as promised. The district court
granted the City’s motion for sanctions and awarded costs and
attorney fees of $24,000 to the City.
With this background in mind, I turn to the legal questions
raised by the Snellers’ appeal.
I
“[A]n appellate court should apply an abuse-of-discretion
standard in reviewing all aspects of a district court’s Rule 11
determination.” Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 405 (1990) (emphasis added) (noting that distinguishing
between legal and factual conclusions in the Rule 11 context
is particularly difficult and concluding that a unitary abuse of
discretion standard of review was therefore proper). A district
court abuses its discretion when it applies the incorrect legal
standard or its “application of the correct legal standard was
(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in
inferences that may be drawn from the facts in the record.’ ”
United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)
(quoting Anderson v. City of Bessemer City, 470 U.S. 564,
577 (1985)).
II
A
My colleagues craft the Snellers’ argument on appeal far
more cogently than was articulated by the Snellers them-
selves. In fact, the successful argument on appeal is not found
in the “Statement of the Issue,” and is only discussed in a sin-
gle paragraph at the end of the opening brief. More impor-
tantly, the Snellers never properly raised the question whether
the filing of the Rule 11 motion was procedurally proper
before the district court. Therefore, the argument is waived,
and we should not consider it on appeal. See United States v.
Childs, 944 F.2d 491, 495 (9th Cir. 1991) (“As a general rule,
SNELLER v. CITY OF BAINBRIDGE ISLAND 7503
an issue not presented to the trial court cannot be raised for
the first time on appeal.” (quoting United States v. Whitten,
706 F.2d 1000, 1012 (9th Cir. 1983), abrogated on other
grounds by United States v. Perez, 116 F.3d 840, 842 (9th Cir.
1997) (en banc))).
My colleagues nonetheless conclude that the motion to
amend was sufficient to notify the district court that the Rule
11 motion was essentially moot. Maj. Op. at 7495 n.2. How-
ever, the Snellers never argued that the motion to amend the
complaint rendered the City’s filing of the motion for sanc-
tions with the court procedurally improper under Rule 11(c)(2).4
In fact, they acknowledged in their opposition to the motion
for sanctions that not all of the City’s objections were reme-
died by the proposed amended complaint.
Furthermore, the Snellers invited the district court to rule
on the Rule 11 motion on the merits in their proposed order
denying sanctions, stating the “motion and request for sanc-
tions pursuant to Fed. R. Civ. P. 11 is ripe for determination
and for an award of sanctions since the Defendants have
served their motion and waited the requisite 21 days before
filing this motion under the ‘safe harbor’ [provisions of] Rule
11.” If ruling on the motion was procedurally improper as the
majority now says, the motion was certainly not “ripe for
determination for an award of sanctions.” Thus, the Snellers
essentially invited any error that the district court might have
4
As noted above, they do not clearly make the argument here on appeal
either. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (stat-
ing that the court “will not ordinarily consider matters on appeal that are
not specifically and distinctly argued in appellant’s opening brief” (quot-
ing Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986))
(emphasis added)). The Snellers’ opening brief states only that their
response to the City’s motion was an “attempt[ ] to comply with the essen-
tial purpose of Rule 11,” that the Third Amended Complaint sought to
remove the offending claims and parties, and that it was filed four days
before the City filed its motion for sanctions. The procedural requirements
of Rule 11(c)(2) are not mentioned.
7504 SNELLER v. CITY OF BAINBRIDGE ISLAND
made in granting the motion for sanctions. See Perez, 116
F.3d at 845 (stating that invited errors involving the relin-
quishment of a known right are unreviewable on appeal).
B
On the merits, the district court properly exercised its dis-
cretion in determining on this record that the Snellers’ failed
to withdraw the offending claims within the meaning of Rule
11. First, the Snellers propounded discovery requests related
to the City’s affirmative defenses to the “withdrawn” claims
the day after they filed the motion to amend the complaint.
Had the claims actually been withdrawn there would have
been no need to conduct this discovery. The discovery request
also continued to list City employee Meghan McKnight as a
defendant, and multiple interrogatories requested information
about this “named City defendant” despite the fact that she
was supposedly no longer a defendant.5
Second, the amended complaint contained two new claims
against the City. These new claims placed the City in an
impossible position. The only way to ensure that the offend-
ing claims were removed from the case was to agree to the
amendment of the complaint; however, this would allow the
Snellers to bring new, potentially frivolous claims against the
City. Fighting these new claims would then cost the City even
more in attorney fees.
Third, the motion to amend the complaint was noted for
four weeks after the close of the safe harbor period. Clearly,
the City had no control over the district court’s decision to
5
I agree that the existence of these new discovery requests is not
grounds for sanctions under Rule 11. Maj. Op. at 7497 n.4. However, the
Snellers’ continued pursuit of discovery related to the allegedly withdrawn
claims and parties is certainly relevant to determining whether those
claims were truly withdrawn within the meaning of Rule 11. Continuing
to litigate the offending claims is not consistent with a good faith agree-
ment to drop them.
SNELLER v. CITY OF BAINBRIDGE ISLAND 7505
grant or deny the motion to amend. Therefore, the City would
have been forced to wait four extra weeks, while enduring
costly discovery and expending resources arguing the City’s
previously filed motion for partial summary judgment on the
offending claims, with no guarantee that the claims would
ultimately be withdrawn. In effect, the withdrawal was made
contingent on the Snellers actually pursuing the motion to
amend, the court ultimately accepting the Third Amended
Complaint in its present form, and the Snellers choosing not
to amend again.6
If the Snellers truly wished to withdraw the offending
claims, they could have noted the motion during the safe har-
bor period to ensure that the withdrawal actually occurred
during that period.7 Or they could have simply stipulated to
the City’s motion for partial summary judgment on the
offending claims. Instead, the Snellers objected to the motion
for partial summary judgment, arguing that the court should
6
The majority asserts that a motion to amend pursuant to Rule 15 is the
only means by which the Snellers could have removed the offending
claims at this point in the litigation. Maj. Op. at 7496. However, the Snel-
lers could have dismissed their claims against the City employees under
Rule 41. See Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d
683, 687 (9th Cir. 2005) (stating that Rule 41 has been interpreted “to
allow the dismissal of all claims against one defendant, so that a defendant
may be dismissed from the entire action”).
7
The majority misreads the Local Rules of the Western District of
Washington to support the Snellers’ timing in noting their motion to
amend. Maj. Op. at 7497 n.5 (reading Local Rule 7(d)(3) to allow the
motion to be noted no earlier than the third Friday after filing and service
of the motion). When the Snellers filed their motion to amend the com-
plaint, Local Rule 7(d)(3) applied only to nondispositive motions not
listed in Local Rule 7(d)(2). Local Rule 7(d)(2)(B) specifically provided
that a motion to amend pleadings could be noted “no earlier than seven
judicial days after filing.” Even under the seven day rule the Snellers
would have had to file the motion to amend earlier to ensure that the
motion could be heard during the safe harbor period. However, consider-
ing the fact that the City had been requesting the withdrawal of these
claims for at least six months, there was ample time to have done it.
7506 SNELLER v. CITY OF BAINBRIDGE ISLAND
instead allow them to amend the complaint, presumably
because this would allow them to bring two new claims into
the case even though discovery was about to close.
As the majority notes, the Snellers were not required to
undertake any of these suggested methods of withdrawing the
offending claims to avoid sanctions under Rule 11. See Maj.
Op. at 7495-96. However, they were required to actually with-
draw the claims to benefit from the safe harbor period. Con-
trary to the majority’s characterization of these litigation
tactics, the Snellers did not do “all that they were required to
do to withdraw the offending claims during the safe harbor
period.” See id. at 7497. The district court was certainly enti-
tled on the record before it to conclude that the Snellers were
continuing to litigate frivolous claims in bad faith.
The district court was well aware of all this when it made
its ruling. Moving to amend the complaint is not a magic bul-
let; the district court had an obligation to consider all the evi-
dence presented surrounding the Snellers’ alleged withdrawal,
including the Snellers’ recalcitrant behavior throughout the
course of the litigation, their continued baseless objection to
the partial summary judgment on the offending claims, the
new discovery requests related to the “withdrawn” claims,
and myriad other objections raised by the City through
months of correspondence, which were ignored by the Snel-
lers and their counsel. The court’s conclusion that the Snellers
had not properly withdrawn the offending claims within the
meaning of Rule 11 was, therefore, not illogical, implausible,
or without support in the record. See Hinkson, 585 F.3d at
1262. Thus, it was not an abuse of discretion to award sanc-
tions, and we should affirm the district court’s ruling.
III
Considering the history of improper behavior by the Snel-
lers in this action and the admissions Mr. Sneller made on the
local television channel which revealed the true motive for
SNELLER v. CITY OF BAINBRIDGE ISLAND 7507
plaintiffs’ intransigence, the district court’s determination that
the Snellers did not withdraw the offending claims within the
safe harbor period was amply supported by the record and
was not an abuse of discretion. Unfortunately, the City has
now lost even more time and money fighting this frivolous
appeal. Plaintiffs should not be able to employ these litigation
tactics to harass and intimidate defendants and then avoid the
consequences by moving to amend at the eleventh hour. The
rules must be enforced so that future parties will know that
such behavior is not tolerated in federal court. Otherwise Rule
1’s mandate that the Federal Rules of Civil Procedure “should
be construed and administered to secure the just, speedy, and
inexpensive determination of every action” is merely a tooth-
less aspirational goal.
Because my colleagues take a more charitable view of the
Snellers’ behavior than did the district judge who observed it
firsthand, I respectfully dissent.