FILED
NOT FOR PUBLICATION NOV 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICHARD W. LEWIS, No. 08-17314
Plaintiff-counter-defendant D.C. No. 3:99-cv-00386-LRH-
- Appellee, RAM
v.
MEMORANDUM *
TYRONE DUFF; LINDA DUFF,
Defendants-counter-claimants
- Appellants,
and
DAVID ANTONUCCIO; et al.,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted November 16, 2010 **
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
Tyrone and Linda Duff appeal pro se from the district court’s judgment
imposing monetary sanctions and entering a pre-filing review order against them
under its inherent power. We have jurisdiction under 28 U.S.C. § 1291. We review
for an abuse of discretion. F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc.,
244 F.3d 1128, 1135 (9th Cir. 2001); De Long v. Hennessey, 912 F.2d 1144, 1146
(9th Cir. 1990). We vacate and remand.
The district court did not clearly err by finding that the Duffs engaged in bad
faith conduct by willfully refusing to appear at hearings and by filing duplicative
and frivolous documents, and thus the court had the inherent power to sanction
them. See Gomez v. Vernon, 255 F.3d 1118, 1133-34 (9th Cir. 2001). The Duffs’
contentions that the district court lacked jurisdiction to sanction them or
jurisdiction over the action are without merit.
However, we vacate the $23,149.98 sanction imposed. The sanction was
criminal in nature, because it was intended to punish the Duffs for their conduct
and to vindicate the court’s authority, not solely to compensate plaintiff or coerce
the Duffs into compliance with a court order. See F.J. Hanshaw Enters., 244 F.3d
at 1137-38. The amount of the sanction was a “serious criminal penalt[y].” See id.
at 1138. Because the sanction was criminal in nature and the amount was a
2 08-17314
“serious” penalty, the Duffs were entitled to the full due process protections of a
criminal jury trial, see id., which they did not receive. On remand, the district
court may reinstitute criminal sanction proceedings so long as the Duffs are
provided the requisite protections. See id. at 1141-42. Alternatively, the district
court may impose a monetary sanction that is civil in nature or not “serious,”
without further proceedings, because the Duffs were previously given adequate
notice and an opportunity to be heard. See Lasar v. Ford Motor Co., 399 F.3d
1101, 1110-12 & n.7 (9th Cir. 2005).
We also vacate the entry of the pre-filing review order, because the district
court did not comply with the factors set forth in De Long. See 912 F.2d at 1147-
48. On remand, the district court may consider whether to impose a narrowly-
tailored pre-filing review order after expressly addressing the relevant factors.
The Duffs shall bear their own costs on appeal.
VACATED and REMANDED.
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