United States Court of Appeals
For the First Circuit
No. 08-2116
NORTHWEST BYPASS GROUP; MORTON C. TUTTLE;
CAROLYN H. TUTTLE; LESLIE J. LUDTKE,
Plaintiffs,
v.
US ARMY CORPS OF ENGINEERS; US ARMY CORPS OF ENGINEERS, CHIEF;
US ARMY CORPS OF ENGINEERS, NEW ENGLAND DISTRICT COMMANDER,
Defendants,
CITY OF CONCORD,
Defendant, Appellee,
CONCORD HOSPITAL; ST. PAUL'S SCHOOL,
Intervenor Defendants, Appellees,
GORDON R. BLAKENEY, JR.,
Objector, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. John A. Woodcock, Jr.,* U.S. District Judge]
Before
Lynch, Chief Judge,
Farris,** and Boudin, Circuit Judges.
*
Of the District of Maine, sitting by designation.
**
Of the Ninth Circuit, sitting by designation.
Edmund J. Boutin with whom Jonathan M. Boutin, John L.
Altieri, Jr. and Boutin & Altieri, P.L.L.C. were on brief for
appellant.
E. Tupper Kinder with whom Nelson, Kinder, Mosseau & Saturley,
P.C. was on brief for appellee City of Concord.
June 16, 2009
BOUDIN, Circuit Judge. This is an appeal from the
district court's order sanctioning plaintiffs' counsel, Gordon R.
Blakeney, for vexatious conduct in filing against the City of
Concord, New Hampshire, motions seeking to disqualify its counsel
and to obtain sanctions. Those motions alleged that certain
communications between the city and two plaintiffs violated a
federal criminal obstruction-of-justice statute. The relevant
facts are as follows.
In the underlying federal-court suit, Blakeney
represented plaintiffs, including himself and his family, who had
challenged an Army Corps of Engineers permit authorizing the
construction of a bypass highway through a portion of Concord. Two
of the plaintiffs, Morton and Carolyn Tuttle, owned a designated
historical property, which had to be relocated because of the
construction. The city had been in discussions with the Tuttles
for over a decade in order to find a suitable relocation lot.
In July 2006, the city found a potential parcel of land
but because it was smaller than the Tuttles' lot, the city had
sought to obtain necessary variances from the City Zoning Board.
After the city failed in its effort, a city employee, Martha
Drukker, contacted the Tuttles on January 12, 2007, explaining to
them the Zoning Board's denial of the variances and suggesting that
the city might not investigate other possible lots in light of the
Tuttles' participation in a lawsuit against the city.
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Morton Tuttle demurred at the suggestion that he was
suing the city or that Blakeney was suing on his behalf. The city
then sent a letter to Blakeney on February 6, 2007, saying:
Recently, the Tuttles have stated that they
are not parties to, nor represented by you in
the lawsuit you have filed against the City
and the Army Corps of Engineers challenging
the issuance of the 404 Permit, and further
that they do not wish to be a part of such a
lawsuit. Under the circumstances, please
provide written clarification that you are
authorized to represent Mr. and Mrs. Tuttle in
this pending Federal Court litigation.
Blakeney then submitted a "right-to-know" request, N.H.
Rev. Stat. Ann. ch. 91-A (2007), for any communications between the
Tuttles and the city and, obtaining notes made by Drukker, Blakeney
then filed in his pending federal court bypass case a motion for
sanctions and a motion to disqualify the city's counsel. The city
opposed both motions, filed its own motion for sanctions and sought
attorneys' fees for what it charged was vexatious conduct by
Blakeney.
The district court denied Blakeney's motions but
postponed, until the bypass case was decided on the merits, the
question whether to sanction Blakeney’s filing of the motions.
Then, after granting summary judgment for the defendants on the
merits, the district court returned to the sanctions issue and
concluded, after a hearing based upon filings from both sides, that
Blakeney's motions had been "ill-founded," "frivolous," and
"without legal or factual foundation." The court ordered Blakeney
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to pay $7,520.50 in attorneys' fees to the City of Concord and two
other affected parties: Concord Hospital and St. Paul’s School.
Blakeney now appeals. Legal issues are reviewed de novo,
factual findings for clear error, and judgment calls under a
reasonableness standard. Baella-Silva v. Hulsey, 454 F.3d 5, 12
(1st Cir. 2006); Lichtenstein v. Consol. Servs. Group, Inc., 173
F.3d 17, 22-23 (1st Cir. 1999). Because the trial judge is close
to the scene, that judge has a lot of latitude in respect to
disciplinary actions. But we are conscious of the impact of
sanctions on attorneys and take our oversight role seriously.
Initially, the district judge proposed to apply sanctions
under Rule 11(b), Fed. R. Civ. P. 11(b), which inter alia applies
to filings made for "any improper purpose"; but the court accepted
Blakeney's contention that Rule 11 should not be invoked and issued
a new order resting upon 28 U.S.C. § 1927 (2006), which provides
that "[a]ny attorney . . . who so multiplies the proceedings in any
case unreasonably and vexatiously" may be required "personally" to
pay resulting excess costs, expenses, and attorneys' fees.
In its final order, the district court quoted our own
glosses on section 1927: that it applies when the lawyer displays
"a serious and studied disregard for the orderly process of
justice," Rossello-Gonzalez v. Acevedo-Vila, 483 F.3d 1, 7 (1st
Cir. 2007) (internal quotation marks omitted); must "be more severe
than mere negligence, inadvertence, or incompetence," Cruz v.
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Savage, 896 F.2d 626, 632 (1st Cir. 1990), but it does "not require
a finding of subjective bad faith," id. at 631-32, nor repeated
infractions. In re Ruben, 825 F.2d 977, 984 (6th Cir. 1987).
The district court repeated, as it had said in denying
Blakeney's original motions for sanctions and to disqualify city
counsel, that the allegations of criminal misconduct and
obstruction of justice were ill-founded, plainly groundless,
frivolous, far-fetched and lacked a valid premise. The sole
sanction was that Blakeney pay the city $5,072.50 for time spent in
opposing the motions and to pay the other two parties seeking
attorneys' fees $2,448.00 for the same purpose.
On appeal, Blakeney objects to language in the district
court's earlier Rule 11 order stating that "serious allegations of
criminal conduct against an opposing party . . . including the
suggestion of a referral by the court to the federal prosecutor,
should have been preceded by sober contemplation, convincing, if
not irrefutable evidence of criminality" and "certainty of the
applicable law." This standard, Blakeney contends, is legal error
infecting the court's sanctions order.
These quoted phrases, taken in the abstract, do overstate
what we think is required of lawyers charged with possible
misconduct. On less than certainty or irrefutable evidence of
criminality, a lawyer may well be free to raise concerns about
possibly wrongdoing or criminal conduct. But almost everything
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depends upon circumstances: how and in what terms charges are made,
against whom, with what degree of accuracy, with what support or
groundwork, and for what purpose.
The language that Blakeney criticizes was used in the
district court's earlier order, which was effectively supplanted by
the order now under review relying on section 1927. In describing
the basis for sanctions under the latter provision, the court
relied on case law and language from this court (summarized above),
including precepts that Blakeney himself acknowledges. This later
order is the proper starting point for our review and the district
court's decision is adequately supported by the circumstances.
The Drukker affidavit explains that she had been in
contact with the Tuttles over a long period in an effort to secure
a substitute site; that the city had bought one lot that the
Tuttles had rejected; that another was accepted by the Tuttles but
the needed variances were not secured; that public objections were
made that the city had already spent and done too much; and that
Drukker did no more than explain to the Tuttles that it was not
clear that the city would make yet another effort since they were
suing the city.
It was at this point that Morton Tuttle expressed
surprise that Blakeney was suing the city on their behalf and the
city undertook to determine whether he was their lawyer. Nothing
in Drukker's account provides the remotest basis for a charge that
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Drukker--who happens not to be a lawyer--or anyone else was seeking
criminally to obstruct justice. A public charge of obstruction of
justice in court papers seeking action by the court was
irresponsible and likely to cause further unnecessary litigation
burdening the court and other parties.
Of course, Blakeney likely did not know the full
background of Drukker's contact (and may not agree with her
version). Yet the charge in court papers should not have been made
until he had made an adequate investigation and found a realistic
basis on which to make such a claim. Nothing we have seen
establishes that he made such an investigation, let alone that he
uncovered evidence that justified this charge. In the district
court, he expressed qualified regret at what had happened.
The district judge was not required to find bad faith and
did not do so; the sanction was not punitive, merely recouping for
the defendants costs that should not have been inflicted on them;
and the costs themselves were modest by the standards of modern
litigation. This is a far cry from sanctions resting on findings
of bad faith which can easily subject lawyers to bar discipline and
mar a professional career. Cf. Jensen v. Phillips Screw Co., 546
F.3d 59, 64 (1st Cir. 2008) (Boudin, J., concurring).
Blakeney says that it is hindsight to rely on the Drukker
affidavit since he was unaware of her assertions at the time he
filed. He cites to case law that makes clear that a lawyer should
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be judged by what he knows at the time that he acts. E.g., Cruz,
896 F.2d at 631. But this hardly excuses a lawyer who acts without
adequate information and without making an adequate effort to
secure it. Alvarado-Morales v. Digital Equip. Corp., 843 F.2d 613,
618 (1st Cir. 1988). This is not hindsight: he had to know when he
filed the motion the extent of his own investigation--or lack
thereof.
Blakeney did file a right-to-know request and secured
handwritten notes made by Drukker of her conversation with the
Tuttles, but the notes are consistent with the later affidavit.
They refer to the possibility that the city may not make new
efforts "with the lawsuit ongoing," to a letter from Blakeney, and
to Morton Tuttle's response that "Mr. Blakeney is not representing
them, they have no contract w/ him or have paid him. They said
they are not suing the City or anyone else."
This is hardly the stuff of a criminal obstruction of
justice charge. If anything, the notes should have given Blakeney
even more pause. He asserts that he consulted with other lawyers
and was told that the court "would probably want to be apprised of
the challenge to his representation"; but the charges went far
beyond that and by this time the city had apparently accepted
Blakeney's representation that he did represent the Tuttles.
He did send a draft of his sanctions motion to the city
two days before filing it and says that he received no reply. But
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Blakeney still had no basis for charging Drukker with criminal
conduct. Nevertheless, he moved to sanction the city for "bad
faith tactics constituting obstruction of justice," devoting a
number of paragraphs to unqualified accusations of criminal
conduct. To quote only the summary:
The City's foregoing unfair and bad faith acts
also constitute an attempt to corruptly
obstruct, influence, or impede this judicial
proceeding, as well as the Tuttles's
participation in it, in violation of: Title
18; United States Code, Section 1512(c)(2);
Title 18; United States Code, Section
1512(d)(1); Title 18; United States Code,
Section 1513(b)(1); and/or Title 18; United
States Code, Section 1513(e).
Based in part on this supposed misconduct, Blakeney
sought appropriate relief which "could include" (he asserted) a
finding that the city had "corruptly and/or in bad faith attempted
to obstruct . . . judicial proceedings"; injunctive relief against
the project; compensatory damages to the Tuttles; a fine, award of
attorneys' fees, or both; and "a possible referral to the U.S.
Attorney or the FBI . . . ."
Zeal is be expected in litigation but not of this kind.
The district court did not rest its decision on an error of law or
clearly err in fact finding, nor did it abuse its discretion in
concluding that Blakeney stepped over the line. But we deny the
city's request for separate attorneys' fees on this appeal;
Blakeney's arguments are unpersuasive but they are fair arguments
and made solely in order to secure a reversal.
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The district court's sanctions order is affirmed; the
request for attorneys' fees on the appeal is denied.
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