UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10974
PIEDAD GONZALES,
Plaintiff
VERSUS
BRIAN C. ENGLAND, Garland Police Officer, Badge No. 267,
Defendant - Appellee
VERSUS
DOUGLAS R. LARSON,
Movant - Appellant
VERSUS
CITY OF GARLAND, TEXAS,
Movant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
No. 3:96-CV-2673
July 15, 2002
Before KING, Chief Judge, PARKER and CLEMENT, Circuit Judges.
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PER CURIAM:*
Movant-appellant Douglas C. Larson (“Larson”), the attorney
for the plaintiff in the underlying lawsuit, appeals from a
sanctions order issued against him by the magistrate judge and
affirmed by the district court. The magistrate judge sanctioned
Larson because she determined that Larson acted in bad faith in
subpoenaing one of the defendant’s attorneys to testify in the
underlying lawsuit. Finding that the issuance of the sanctions
order was an abuse of discretion, we REVERSE.
I. INTRODUCTION
The sanctions issue springs from the actions taken by Larson
in representing his client, Piedad Gonzales, during the course of
the underlying lawsuit. Thus, we briefly summarize the facts of
the underlying case.
Piedad Gonzales sued Defendant-Appellee Brian C. England
(“England”), a Garland City Police Officer, for civil rights
violations arising from the stop of her vehicle and subsequent
arrest. She claimed that England improperly stopped her vehicle
based on a computer report from an undetermined and unverified
source that the vehicle she was driving had been stolen.
During pre-trial proceedings, Larson, on behalf of his client,
filed a motion for sanctions in the district court against England
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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and England’s attorney, Ronald Jones. Larson claimed that Jones
was not producing all of the fields of relevant information
available through the police department’s computer records and was
thus engaged in a “cover-up” of England’s actions. The district
court denied the motion.
On September 30, 1998, James Jordan entered an appearance as
lead attorney for England. Ronald Jones, the previous lead
counsel, subsequently played a less significant role in
representing England.1 On October 20, 1998, Larson designated
Jones as a potential trial witness pursuant to Fed. R. Civ. P. 26.
The disclosure filed with the district court stated that “Mr.
Jones, as a Garland City Attorney and as England’s lawyer, covered
up evidence that England’s computer did not show that there was a
basis to arrest or stop the plaintiff.” England also designated
Jones as a potential witness based on his knowledge about the
disposition of the traffic ticket that Gonzalez was issued on the
1
The parties contest whether Ronald Jones remained on the case
as an attorney after James Jordan entered the case as lead counsel.
The record shows that Jones did not appear as counsel of record on
the pleadings after Jordan entered the case in September 1998.
However, there is other evidence in the record to suggest that
Jones remained on as co-counsel to England throughout the rest of
the case. Indeed, Larson’s questioning of Jones at trial indicates
that Larson still considered Jones to be one of England’s lawyers
at the time he issued the subpoena. In any event, the magistrate
judge clearly found that Jones was one of England’s attorneys at
the time Larson subpoenaed Jones to testify and that Larson knew
Jones was still an attorney in the case. There is ample evidence
to support this finding and thus our decision in this case operates
on the presumption that Larson subpoenaed one of his opposing
lawyers to testify at trial.
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day of the arrest.
The trial was set for June 5, 2000. On May 25, 2000, Larson
issued the trial subpoena for Jones to obtain Jones’ trial
testimony. The subpoena was served on Saturday, June 3, 2000. On
the day of trial, England moved to quash the Jones trial subpoena
and also moved for sanctions. However, the district court ruled
that Jones could testify and Jones did testify during the trial.
After the jury returned its verdict in favor of the defendant
and final judgment was entered, Gonzales responded to the motion to
quash and for sanctions, arguing that it should be denied. England
then moved to withdraw the motion without prejudice. The district
court granted the motion.
England and the City of Garland subsequently refiled the
motion for sanctions. The district court referred the matter to
the magistrate judge pursuant to 28 U.S.C. § 636(b). After holding
a hearing, the magistrate ruled that Larson’s conduct in
subpoenaing Jones to testify was made in bad faith. The magistrate
sanctioned Larson by ordering him to pay $15,000 in attorneys fees
and costs to England and the City of Garland. Larson filed
objections to the magistrate’s findings with the district court.
The district court affirmed the magistrate judge’s sanctions order
under a “clearly erroneous” standard of review and ordered Larson
to pay the movants an additional $7,920 in attorneys fees. Larson
appeals from this ruling.
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II. STANDARD OF REVIEW
The magistrate judge issued its sanctions order pursuant to a
court’s inherent authority to punish conduct which abuses the
judicial process. Chambers v. NASCO, Inc., 501 U.S. 532, 543-45
(1991). We review such an imposition of sanctions for abuse of
discretion. Natural Gas Pipeline v. Energy Gathering, Inc., 2 F.3d
1397, 1411 (5th Cir. 1993).
III. DISCUSSION
After considering the arguments of each party and the record
evidence, we find that the magistrate abused her discretion in
determining that Larson’s conduct was taken in bad faith. We do so
for several reasons.
First, our primary concern in this case is to make sure the
district court was not ambushed at the last minute by Larson’s
request to call Jones as a witness. Our review of the record
indicates that the district court was not blind-sided by this
request. Larson notified the district court early in the pre-trial
proceedings in a response to England’s summary judgment motion that
he believed Jones was not providing him with important documents
relevant to plaintiff’s case. He specifically listed Jones as a
trial witness and explained that Jones would be called to testify
concerning the alleged cover-up. More importantly, the record
shows that Larson specifically informed the district court at the
pre-trial conference that he intended to call Jones to the stand to
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question him about the alleged missing computer-generated
information. Larson subsequently stuck to that line of questioning
during the trial.
Jones’ trial testimony demonstrates that Larson did not make
much headway in trying to prove that Jones was involved in a
coverup. However, Larson’s questioning of Jones did raise a
plausible point concerning whether all computer information related
to the incident which was available from Mesquite was turned over
to the plaintiff. The fact that Larson was not ultimately
successful in his questioning of Jones does not mean that Larson
acted in bad faith in questioning a witness concerning an issue
that was relevant to the plaintiff’s case.
The district court had all the necessary information before it
at the time of trial to determine whether Jones should be allowed
to testify. The district court decided that Jones could testify.
Thus, the sanctions issue should have become moot at that point in
time. We fail to see why the sanctions issue was referred to the
magistrate for a ruling after the district court - knowing all the
relevant circumstances surrounding the issuance of the trial
subpoena - had already determined that Jones could properly
testify.2
2
Larson also raises the issue of whether the magistrate had
the authority under 28 U.S.C. § 636 to issue the sanctions order or
was limited to filing a report and recommendation so the district
court could conduct a de novo review. While we agree that very
serious questions exist as to whether the magistrate had the
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Second, as previously mentioned, it is undisputed that Jones
was designated by both parties as a trial witness. England argues
that Larson’s issuance of the subpoena to Jones on the eve of trial
hampered England’s ability to prepare for trial. This argument
misses the point. Of course, the subpoena required England’s
counsel to do extra work, but England cannot claim to be unfairly
surprised by the subpoena of a witness which both sides had
designated as a trial witness.
England strains its own credibility in arguing that Larson
should be sanctioned for subpoenaing a witness that England himself
had listed on his witness list. Because England had designated
Jones as a trial witness, England could have properly called Jones
to the stand during his own case in chief without unfairly
surprising the plaintiff. To paraphrase, what is fair for the
goose is also fair for the gander.
England also claims that his ability to conduct his trial
defense was harmed because Jones was not able to stay in the
courtroom on the first day of the trial after the invocation of
“The Rule.” This argument is also a red herring.
It is true that Jones was unable to stay in the courtroom
during the first day of trial due to the invocation of “The Rule”
and thus Jones was impeded in his ability to assist Jordan in
authority to enter the sanctions order, we need not resolve this
matter because of our determination that Larson’s conduct does not
constitute “bad faith” as a matter of law.
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trying the case. However, if Jones was truly needed in the
courtroom to aid in the defense, it stands to reason that lead
counsel Jordan would have asked for an exception to “The Rule” so
that Jones could stay in the courtroom. It is telling that he
never made this request to the district court. Thus, England’s
contention that Jones’ exclusion from the courtroom prejudiced his
case falls flat. Any alleged problems which arose from Jones being
removed from the courtroom due to the invocation of “The Rule”
should have been taken up with the district court at the time of
trial.
We also cannot accept the magistrate judge’s justification for
discounting the fact that Larson had listed Jones as a witness in
the pre-trial disclosures. According to the magistrate judge, it
is a common practice for attorneys to designate their opposing
counsel as witnesses out of an abundance of caution even though the
attorneys do not truly intend to call their opposing counsel to the
stand. Thus, the magistrate reasoned that Larson’s designation of
Jones as a witness in pre-trial disclosures should not have alerted
England to the fact that Larson intended to call Jones as a
witness. In our view, the magistrate’s observation and rationale
are simply incorrect. Larson’s designation of Jones as a witness
on the pre-trial disclosures put England on notice that Jones was
“fair game” and could be properly called as a witness.
Finally, we note that Larson’s unrefuted testimony is that he
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consulted outside counsel as to the propriety of calling Jones as
a witness. The outside counsel advised Larson that it would be
appropriate to subpoena Jones for trial. This fact cuts against
any finding that Larson engaged in “bad faith” conduct.
IV. CONCLUSION
For these reasons, the district court order affirming the
magistrate’s sanctions order and ordering Larson to pay a total
monetary sanction in the amount of $22,920 is hereby REVERSED.
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