USCA1 Opinion
March 31, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1720
RICHARD SILVA, ET AL.,
Plaintiffs, Appellees,
v.
PETER WITSCHEN, CITY OF EAST PROVIDENCE, ET AL.,
Defendants, Appellees,
STEPHEN LINDER,
Appellant.
____________________
ERRATA
The opinion of this Court issued on March 24, 1994, is amended as
follows:
On Page 13, Paragraph 2 on Line 3, please insert "sanction" after
"Rule 11".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1720
RICHARD SILVA, ET AL.,
Plaintiffs, Appellees,
v.
PETER WITSCHEN, CITY OF EAST PROVIDENCE, ET AL.,
Defendants, Appellees,
STEPHEN LINDER,
Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Stahl,
Circuit Judges.
______________
____________________
Edward Greer, Rhode Island Affiliate, American Civil Liberties
_____________ _________________________
Union, was on brief for appellant.
_____
William J. Conley, Jr., City Solicitor, for appellee City of East
______________________
Providence, Rhode Island.
____________________
March 24, 1994
____________________
CYR, Circuit Judge. Appellant Stephen Linder, Esquire,
CYR, Circuit Judge.
_____________
challenges the sanction imposed against him pursuant to Fed. R.
Civ. P. 11 for filing a groundless complaint against defendants-
appellees. After careful review, we affirm the district court
sanction order in all respects.
I
I
BACKGROUND
BACKGROUND
__________
In the fall of 1985, the City of East Providence, Rhode
Island, announced that an independent testing service would
administer a competitive examination for the position of Chief of
Police. A city ordinance empowered the City Manager, defendant-
appellee Peter Witschen, to fill the position from among the top
three performers on the examination. See Civil Service Ordinance
___
of East Providence, R.I. 11-66(c),(d). It was no secret that
some members of the City Council, including defendants-appellees
in this action, favored the appointment of defendant Anthony
DeCastro. DeCastro achieved the highest examination score and,
in January 1986, was appointed by the City Manager.
Following the appointment, a rift arose between Chief
DeCastro and the Fraternal Order of Police Union (Union). At a
public session of the City Council years later, it was disclosed
that several defendants had discussed beforehand with DeCastro
the likelihood that a competitive examination would be adminis-
tered and that DeCastro's test-taking skills were weak. Finally,
it was also disclosed at the City Council meeting that DeCastro
2
had attended a preparatory course in "executive development" on
his own time, for which he was reimbursed pursuant to a City
policy permitting reimbursement for "in-service training."
Present at the City Council meeting were several of the
plaintiffs, all disappointed applicants for the position, and
appellant Linder, counsel to the Union. Shortly after the City
Council meeting, two of the plaintiffs met briefly with Linder
and discussed factual grounds for a possible lawsuit in their
behalf. Thereafter, Linder conducted limited discussions with
other plaintiffs along similar lines.
On January 3, 1990, Linder initiated the present action
under 42 U.S.C. 1983 in the United States District Court for
the District of Rhode Island, charging deprivations of plaintiff-
s' due process right to a fair and impartial promotional examina-
tion as provided by the City ordinance, and of an alleged right
of "equal protection" to compete for the position. Although the
complaint pleaded relevant circumstances which the district court
later characterized as "suspicious," see supra pp. 2-3, it
___ _____
neither alleged nor asserted facts sufficient to support an
inference that the examination was either "rigged" to favor
DeCastro or administered or graded unfairly.
Prior to filing the complaint, Linder made a copy
available to the City Solicitor, who advised Linder that it was
"unjustified," and warned that the City was likely to demand
attorney fees for defending against it. Linder was not deterred.
Ultimately, the district court entered summary judgment
3
for all defendants on the ground that "the complaint made no
allegations of 'exam rigging,'" which was the essence of plain-
tiffs' claim. Silva v. Witschen, 745 F. Supp. 798, 803 (D. R.I.
_____ ________
1990).1 The defendants thereafter requested attorney fees,
either under 42 U.S.C. 1988 or as a sanction under Fed. R. Civ.
P. 11.
In due course, the district court conducted a lengthy
hearing to determine whether the fee request should be allowed on
_______
either ground. The amount of any fee award was not before the
court at the hearing. Following the hearing, the court denied
the request for an award under section 1988, on the ground that
the plaintiffs had not acted in bad faith. The court found,
however, that Linder was subject to sanction under Rule 11 for
filing a groundless complaint. The defendants later requested
fees and costs totalling almost $250,000, which the court reduced
to $75,349.96, approximately two-thirds of which was attributed
to the merits phase and one-third to the sanctions phase of the
district court litigation.
II
II
DISCUSSION
DISCUSSION
__________
All aspects of the Rule 11 sanctions decision are
reviewed for abuse of discretion. Cooter & Gell v. Hartmarx
______________ ________
Corp., 496 U.S. 384, 405 (1990); Metrocorps, Inc. v. Eastern
_____ _________________ _______
Mass. Junior Drum & Bugle Corps Ass'n, 912 F.2d 1, 2 (1st Cir.
_______________________________________
____________________
1The judgment on the merits is not challenged on appeal.
4
1990). As the party challenging the sanctions award, Linder
bears the formidable burden of establishing abuse of discretion.
See Navarro-Ayala v. Nunez, 968 F.2d 1421, 1425 (1st Cir. 1992).
___ _____________ _____
An abuse of discretion occurs only if "'a material factor deserv-
ing significant weight is ignored, . . . an improper factor is
relied upon, or . . . all proper and no improper factors are
assessed, but the court makes a serious mistake in weighing
them.'" Anderson v. Beatrice Foods Co., 900 F.2d 388, 394 (1st
________ __________________
Cir.) (quoting Fashion House, Inc. v. K Mart Corp., 892 F.2d
____________________ _____________
1076, 1081 (1st Cir. 1989)), cert. denied, 498 U.S. 891 (1990).
____ ______
A. Amended Rule 11
A. Amended Rule 11
_______________
On December 1, 1993, during the pendency of the present
appeal, an amended version of Rule 11 became effective, governing
"all proceedings in civil cases thereafter commenced and, insofar
_______
as just and practicable, all proceedings in civil cases then
__ ____ ___ ___________
pending." Order Amending Federal Rules of Civil Procedure, 113
S. Ct. CDLXXVIII (Apr. 22, 1993) (emphasis added).2 Linder
____________________
2The sanctions provision in the pre-amendment version of
Rule 11 stated:
If a pleading, motion, or other paper is signed in
violation of this rule, the court, upon motion or upon
its own initiative, shall impose upon the person who
_____
signed it, a represented party, or both, an appropriate
sanction, which may include an order to pay to the
other party or parties the amount of the reasonable
expenses incurred because of the filing of the plead-
ing, motion, or other paper, including a reasonable
attorney's fee.
Fed. R. Civ. P. 11 (1987) (emphasis added).
The relevant portion of the sanctions provision in the
5
therefore contends that amended Rule 11 applies on appeal in the
present case.
We need not decide whether a case pending on appeal
December 1, 1993 is subject to the amended rule. The promulga-
tion order precludes application of the amended rule even in
____________________
amended version reads as follows:
(c) Sanctions. If, after notice and a reasonable
Sanctions
opportunity to respond, the court determines that
subdivision (b) [Representations to Court] has been
violated, the court may, subject to the conditions
___
stated below, impose an appropriate sanction upon the
attorneys, law firms, or parties that have violated
subdivision (b) or are responsible for the violation.
(1) How Initiated.
How Initiated
______________
(a) By Motion. A motion for sanctions under
By Motion
__________
this rule . . . shall describe the specific con-
duct alleged to violate subdivision (b). It shall
be served as provided in Rule 5, but shall not be
_____ ___ __
filed with or presented to the court unless, with-
_____ ______ _____
in 21 days after service of the motion (or such
__ __ ____ _____ _______
other period as the court may prescribe), the
___
challenged paper, claim, defense, contention,
__________ _____
allegation, or denial is not withdrawn or appro-
__ ___ _________ __ ______
priately corrected. If warranted, the court may
________ _________
award to the part prevailing on the motion the
reasonable expenses and attorney's fees incurred
in presenting or opposing the motion.
(2) Nature of Sanction; Limitations. A sanction
Nature of Sanction; Limitations.
______ __ _________ ____________
imposed for violation of this rule shall be limit-
ed to what is sufficient to deter repetition of
such conduct or comparable conduct by others simi-
larly situated. . . . [T]he sanction may consist
of, or include, directives of a nonmonetary na-
ture, an order to pay a penalty into court, or, if
imposed on motion and warranted for effective
deterrence, an order directing payment to the
movant of some or all of the reasonable attorneys'
fees and other expenses incurred as a direct re-
sult of the violation.
Fed. R. Civ. P. 11 (Dec. 1, 1993) (emphasis added).
6
"cases then pending" insofar as it would be unjust or imprac-
______ __ _______
ticable to do so. Id. To remand for a district court determina-
_______ ___
tion under amended Rule 11 in these circumstances is not only
infeasible but would work an injustice to plaintiffs-appellees.
See Hashemi v. Campaigner Publications, Inc., 784 F.2d 1581, 1584
___ _______ _____________________________
(11th Cir. 1986) (finding no reason to test Rule 11 sanctions
under amendment to 1983 rule not in effect when sanctioned
conduct occurred) (decided under virtually identical terms of
1983 promulgation order: "shall govern . . . , insofar as just
_
and practicable, in proceedings then pending." Order Amending
Rules of Civil Procedure, 461 U.S. 1097 (1983)). Cf. Freund v.
___ ______
Fleetwood Enters., Inc., 956 F.2d 354, 363 (1st Cir. 1992)
________________________
(declining to apply amended Fed. R. Civ. P. 15(c) which would
work "manifest injustice");3 Agretti v. ANR Freight Sys., Inc.,
_______ _______________________
No. 89 C 5492, 1994 WL 46670, at *1 (N.D. Ill. Feb. 14, 1994)
(finding retrospective application of 1993 amended Rule 11
"neither just nor practicable"); In re Taxable Mun. Bond Sec.
______________________________
Litig., No. MDL 863, 1994 WL 34924, at *4 (E.D. La. Feb. 3, 1994)
______
____________________
3Freund rests upon the principle that "a court is to apply
______
the law in effect at the time it renders its decision, unless
doing so would result in manifest injustice or there is statutory
direction or legislative history to the contrary." Bradley v.
_______
Richmond Sch. Bd., 416 U.S. 696, 711 (1974). In the instant
_________________
case, such "statutory direction" derives from the Supreme Court's
power to prescribe rules of procedure. See generally 28 U.S.C.
___ _________
2071-2113. Section 2074(a) of Title 28 states that "the
Supreme Court shall not require the application of such [amended]
rule to further proceedings then pending to the extent that, in
__
the opinion of the court in which such proceedings are pending,
___ _______ __ ___ _____ __ _____ ____ ___________ ___ _______
the application of such rule in such proceedings would not be
feasible or would work injustice, in which event the former rule
applies." 28 U.S.C. 2074(a) (emphasis added).
7
(declining to apply 1993 amended rule where sanctioned conduct
occurred prior to Dec. 1, 1993 and pre-amendment standards had
been applied at sanctions hearing).4 This is particularly true
since Linder's sanctionable conduct was solely responsible for
the satellite proceedings relating to Rule 11 sanctions. More-
over, it would be impracticable, not only to undo the harm
actually occasioned defendants, but to review the district court
order under the altered standards established by amended Rule
____________________
4Linder argues that he would not have been sanctioned under
the amended rule, because he would have withdrawn the complaint
as allowed under the 21-day "safe harbor" provision. See Fed. R.
___
Civ. P. 11(c)(1)(A) (Dec. 1, 1993); supra note 2. Linder cannot
_____
have it both ways, however. His argument is based on the assump-
tion that he would have availed himself of a "safe harbor"
provision had he received notice of the particular deficiencies
__________
in the complaint. This retrospective appraisal ignores the
reality that Linder flatly disregarded a substantially equivalent
warning from the City Solicitor before the complaint was ever
filed. See supra p. 3-4. Thus, Linder's argument cannot prevail
___ _____
unless appellees failed to point out particular deficiencies in
the complaint. However, appellees' statement of relevant facts
on appeal represents, and Linder does not deny, that the City
Solicitor "informed [Linder] of the pleading deficiencies, and of
___ ________ ____________
the City's probable attempt to collect sanctions, before the
pleading was even filed." (Appellees' Br. at 16) (emphasis
added). Since Linder neither denies appellees' representation
nor included the relevant portions of the hearing transcript to
which appellees' statement of facts cites, see Fed. R. App. P.
___
10(b), 11(a) (appellant bears burden of including material items
in appellate record), we will not indulge an assumption fore-
closed by the record before us. It would be unjust to permit yet
a second "safe harbor" refuge for Linder to escape responsibility
______
for the expense occasioned an innocent party which forewarned him
that the complaint was unjustified. Furthermore, even if the
cost and expense occasioned by Linder's sanctionable conduct were
to be disregarded, it would be unjust to permit these satellite
proceedings to be further extended by remanding to the district
court to afford Linder the opportunity to "withdraw" a groundless
complaint previously dismissed on the merits.
8
11.5 See Hashemi, 784 F.2d at 1583-84 (rejecting claim, under
___ _______
virtually identical 1983 promulgation order, that amended Rule 11
standards should apply "because the case was pending on appeal by
the plaintiff at the time the Rule became effective"); cf.
___
Freund, 956 F.2d at 363 (refusing to apply amended rule which
______
would work "manifest injustice"). Since an unwarranted remand
would otherwise be necessary in these already protracted satel-
lite proceedings, at inordinate delay and expense to innocent
parties, we review the district court sanction order under the
pre-amendment Rule 11 standards in force at the time the sanc-
tioned conduct occurred.
B. Appropriateness of Rule 11 Sanctions
B. Appropriateness of Rule 11 Sanctions
____________________________________
Prior to December 1, 1993, Rule 11 mandated sanctions
for interposing a filing either for an improper purpose or under
______ __
____________________
5For example, deterrence was the primary purpose served by
Rule 11 sanctions prior to December 1, 1983. See Cooter & Gell,
___ _____________
496 U.S. at 393. Yet "courts . . . ha[d] noted that compensatory
and punitive purposes also [we]re served by sanctions [under old
Rule 11]." Charles A. Wright & Arthur Miller, 5A Federal Prac-
_____________
tice and Procedure 1336 at 100-101 (1990); Anderson, 900 F.2d
___________________ ________
at 394-95. Under amended Rule 11, however, "the purpose of . . .
sanctions is to deter rather than to compensate . . . ." Fed. R.
______
Civ. P. 11 advisory committee's note (emphasis added). Thus,
under amended Rule 11, "if a monetary sanction is imposed, it
should ordinarily be paid into court as a penalty," id., though
___
the court may award monetary sanctions to a party in "unusual
circumstances," id. Although sanctions were mandatory under old
___
Rule 11, Lancellotti v. Fay, 909 F.2d 15, 19 (1st Cir. 1990), but
___________ ___
are discretionary under the amended rule, Fed. R. Civ. P. 11(c)
(Dec. 1, 1993) (if court finds a violation, "the court may . . .
___
impose an appropriate sanction" (emphasis added)), in these
circumstances we believe it would be a gross injustice to deprive
defendants-appellees of compensation for the costs caused by
Linder's reckless disregard for the requirements of Rule 11
despite the City's advance warning.
9
circumstances in which a competent attorney, on objectively
reasonable inquiry, could not have believed that the filing was
grounded in fact and warranted either by existing law or by a
___
good-faith argument for the extension, modification or reversal
of existing law. Lancellotti v. Fay, 909 F.2d 15, 19 (1st Cir.
___________ ___
1990).
1. Legal Basis for Action
1. Legal Basis for Action
______________________
Linder "concedes" that the complaint violated Rule 11,
in that he failed to make the objectively reasonable legal
inquiry required under our case law. He argues, however, that
Leatherman v. Tarrant County Narcotics Intelligence and Coordina-
__________ ___________________________________________________
tion Unit, ___ U.S. ___, 113 S. Ct. 1160 (1993), struck down the
_________
heightened pleading requirement previously espoused by this court
in section 1983 actions.6 Since Leatherman should be given
__________
retroactive effect, see Harper v. Virginia Dep't of Taxation, ___
___ ______ __________________________
U.S. ___, ___, 113 S. Ct. 2510, 2516-17 (1993) (general rule of
retroactivity in civil cases), Linder contends that sanctions
were improperly imposed. This argument is a red herring.
The district court order neither mentioned nor applied
a heightened pleading standard, nor did it cite to any case
involving a heightened pleading requirement. See Silva, 745 F.
___ _____
Supp. at 801. Rather, the court determined that there was no
____________________
6In Leatherman, the Court rejected the Fifth Circuit's "more
__________
demanding rule for pleading a complaint under section 1983 than
for pleading other kinds of claims for relief." 113 S. Ct. at
1162-63.
10
legal basis whatever for Linder's reliance on a federally pro-
tected property interest, in principal part because plaintiffs
made no allegation of "exam-rigging." See Burns v. Sullivan, 619
___ _____ ________
F.2d 99, 104 (1st Cir.), cert. denied, 449 U.S. 893 (1980).7
____ ______
Compare Silva, 745 F. Supp. at 803, with Hermes v. Hein, 511 F.
_______ _____ ____ ______ ____
Supp. 123, 125 (N.D. Ill. 1980) (complaint alleging exam-rigging
states 1983 claim in circumstances where unwavering custom and
policy is to promote applicant achieving highest score). The
court concluded that the only protected property interest at
issue was plaintiffs' due process right to compete fairly for the
position of Chief of Police,8 and since they had alleged no
facts evidencing such a deprivation the action was groundless as
a matter of law. Silva, 745 F. Supp. at 805. Neither before the
_____
district court, nor on appeal, has Linder raised doubt as to the
soundness of the district court ruling that the complaint failed
to state a cause of action.
____________________
7As the district court observed:
Like the City Manager in Burns, City Manager Witschen
_____
had discretion to make an appointment "after interview
and investigation," from among "the names of the three
persons standing highest on the appropriate list."
Since the City Manager could appoint any one of the top
three certified candidates, none of these candidates
had a clearly defined property interest in promotion to
Chief of Police.
Silva, 745 F. Supp. at 803.
_____
8The court rejected the claim that plaintiffs were deprived
of "equal protection" by the dissimilar treatment accorded
DeCastro, citing Di Piro v. Taft, 584 F.2d 1, 3 (1st Cir. 1978),
_______ ____
cert. denied, 440 U.S. 914 (1979). See Silva, 745 F. Supp. at
____ ______ ___ _____
805 (finding no evidence of intentional discrimination).
11
2. Improper Purpose
2. Improper Purpose
________________
The district court further found that Linder attempted
by bringing the present action to intimidate "the City into
terminating DeCastro . . . . [thus] using this case to further an
improper objective." Silva v. Witschen, C.A. No. 90-0005L, slip
_____ ________
op. at 18-19 (D. R.I. Nov. 5, 1992) (order imposing sanctions).
Although Linder admits to a "dual motive," he argues that Rule 11
sanctions may not be imposed for commencing an action for an
"improper purpose" if there was also a proper motive, in this
case vindicating plaintiffs' rights. The district court found
that
Linder, who was also the attorney for the
Union, was wearing two hats here. Although
he purported to represent the plaintiffs in
this case, all his actions were calculated to
___ ___ _______ ____ __________ __
achieve the goal of the Union, the ouster of
_______ ___ ____ __ ___ _____
DeCastro. While plaintiffs honestly believed
in their cause of action, Linder was using
their lawsuit as a bargaining chip to pres-
sure the City on behalf of the Union to ter-
minate DeCastro as Chief of Police.
Id. at 19 (emphasis added).
___
Linder's contention that his conduct is not sanctiona-
ble because he intended to protect plaintiffs' legal rights is
yet another red herring. We are aware of no authority or other
basis for the view that an attorney who files a groundless
complaint, for an improper purpose and without reasonable inqui-
ry, see Fed. R. Civ. P. 11, is exonerated from sanctions because
___
he was simply asserting groundless nonexistent legal claims in
behalf of his clients. Cf. Lieb v. Topstone Indus., Inc., 788
___ ____ ______________________
F.2d 151, 157 (3d Cir. 1986) ("[P]leader may not escape liability
12
because he did not intend to bring about additional delay or
expense. If reasonable preparatory steps would have avoided
those consequences, sanctions are appropriate."). Accordingly,
we uphold the district court finding of improper motive. Cf. Mir
___ ___
v. Little Co. of Mary Hosp., 844 F.2d 646, 653 (9th Cir. 1988)
_________________________
(using litigation to force party to grant privileges previously
denied is "improper purpose").
C. Appropriateness, Nature and Severity of Sanctions
C. Appropriateness, Nature and Severity of Sanctions
_________________________________________________
1. Rule 11 Hearing
1. Rule 11 Hearing
_______________
The procedure for determining whether a sanction should be
imposed and, if so, its nature and severity, is left in the first
instance to the trial court's sound discretion. Linder contends
that the district court abused its discretion, see Cooter & Gell,
___ _____________
496 U.S. at 405, by unnecessarily convening a hearing on the
request for Rule 11 sanctions. See also Fed. R. Civ. P. 11
___ ____
advisory committee's note (sanctions procedure depends on circum-
stances and severity of sanction under consideration); Muthig v.
______
Brant Point Nantucket, Inc., 838 F.2d 600, 607 (1st Cir. 1988)
____________________________
(similar). He argues that there was no reason to conduct a Rule
11 hearing once the court found no legal basis for the complaint,
see Silva, 745 F. Supp. at 803, since sanctions were mandatory
___ _____
under the pre-amendment version of Rule 11, Jensen v. Frank, 912
______ _____
F.2d 517, 524 n.6 (1st Cir. 1990).
Linder once again mischaracterizes the proceedings
below. The grant of summary judgment against plaintiffs did not
preordain the imposition of any Rule 11 sanction against Linder.
13
Rather, the hearing was necessary to determine whether Linder had
_______
violated Rule 11 and, if so, to determine an appropriate sanc-
________
tion. Additionally, defendants requested a fee award against
plaintiffs under 42 U.S.C. 1988 as well, which the court consi-
dered at the same hearing and later denied. The claim that the
district court abused its discretion by conducting a hearing to
resolve defendants' fee requests under Rule 11 and section 1988
is frivolous.
Linder has fallen far short of a showing of abuse of
discretion.9 Rule 11 contemplates "giv[ing] effect to [its]
central goal of deterrence," Cooter & Gell, 496 U.S. at 405,
______________
while avoiding unnecessary satellite litigation; the proper
balance is left to the reasoned discretion of the district court,
id. Cf. Fashion House, 892 F.2d at 1082 (district court is in
___ ___ _____________
best position to determine appropriate remedy). The hearing was
necessary for two reasons: to determine whether there was a
_______
proper basis for assessing attorney fees against plaintiffs under
42 U.S.C. 1988, and whether Linder's filing of the groundless
_______
complaint warranted imposition of a Rule 11 sanction. Silva,
_____
slip op. at 2-3 (Nov. 5, 1992); Silva, 745 F. Supp. at 806.
_____
Thus, among the matters at issue in the Rule 11 sanctions hearing
____________________
9Though hampered by the absence of a sanction-hearing tran-
script, we have reviewed Linder's claims on the available appel-
late record, see United States v. One Yacht Named Mercury, 527
___ _____________ ________________________
F.2d 1112, 1113 (1st Cir. 1975) (despite incomplete record,
appellate court reviews merits as record allows), cognizant that
it was Linder's burden to ensure an adequate appellate record,
see Navarro-Ayala, 968 F.2d at 1425; see also Fed. R. App. P.
___ _____________ ___ ____
10(b), 11(a) (requiring appellant to assemble requisite record).
14
were whether Linder: (1) brought the action for an improper
purpose and (2) after reasonable inquiry, could have formed a
reasonable belief that the complaint was well grounded in fact
__________ ______
and "warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law." Fed. R.
Civ. P. 11 (1987); see Lancellotti, 909 F.2d at 19. The court
___ ___________
found that "Linder failed to make a reasonable inquiry to deter-
mine that the complaint was well founded in fact . . . [and] even
more important [the] lawsuit was baseless as a matter of law."
Silva, slip op. at 17 (Nov. 5, 1992). See Unanue-Casal v.
_____ ___ ____________
Unanue-Casal, 898 F.2d 839, 841-42 (1st Cir. 1990) (Rule 11
____________
sanctions against counsel warranted for filing frivolous removal
petition with "no plausible legal basis" and for "improper
purpose").10
2. Reasonableness of Sanctions
2. Reasonableness of Sanctions
___________________________
Linder's remaining claim is that the attorney fee award
is excessive. Compensatory sanctions under Rule 11 must be
____________________
10Linder claims that the district court did not need to
address the "improper purpose" prong of Rule 11 once it had been
determined that he had failed to make a "reasonable inquiry." We
find no abuse of discretion. The appellate record provided by
Linder, see supra note 9, does not indicate which issue was first
___ _____
decided, why the hearing proceeded to the second issue, or even
whether Linder preserved this claim by asserting it in timely
fashion below. Moreover, the further inquiries as to the appro-
priateness and severity of Rule 11 sanctions were significantly
informed by the court's determination that not one but two
grounds existed for sanctioning Linder. See Unanue-Casal, 898
___ ____________
F.2d at 841-42 (Rule 11 sanctions against counsel warranted by
both prongs of rule).
15
reasonable in amount.11 Navarro-Ayala, 968 F.2d at 1427 (cit-
_____________
ing cases).
a. Merits Phase
a. Merits Phase
____________
The district court awarded the City12 $53,528.81 in
attorney fees and costs incurred during the merits phase of the
litigation by all defendants, representing approximately 487
hours devoted to legal services by counsel appearing for the five
individual defendants, and by the City Solicitor in behalf of the
City and the same five individual defendants in their official
capacities. Linder does not challenge the individual fee appli-
cations, but asserts that the aggregate hours were not reasonably
required because defendants did not take proper measures to
mitigate fees by delegating jointly-required in-court services
and submitting unitary filings to avoid unnecessary duplication
of services. See Navarro-Ayala, 968 F.2d at 1427 (compensatory
___ _____________
sanctions allowed only for costs reasonably incurred) citing
__________ ______
Thomas v. Capital Sec. Services, Inc., 836 F.2d 866, 879 (5th
______ _____________________________
Cir. 1988); see also Dubisky v. Owens, 849 F.2d 1034, 1037 (7th
___ ____ _______ _____
____________________
11Another Linder claim that attorney fees are not allow-
able under Rule 11 directly contradicts the express language
of Fed. R. Civ. P. 11 ("an appropriate sanction . . . may include
. . . a reasonable attorney's fee"). See also Mariani v. Doctors
___ ____ _______ _______
Assocs., Inc., 983 F.2d 5, 8 (1st Cir. 1993); see generally
______________ ___ _________
Charles A. Wright & Arthur R. Miller, 5A Federal Practice &
___________________
Procedure, 1336 at 113 (1990) ("attorneys' fees have become the
_________
Rule 11 sanction of choice").
12The district court found that the City is the "only party
interested in receiving sanctions," Silva, slip op. at 4 (May 6,
_____
1993), because it had agreed to pay the defendants' counsel fees
incurred in this action, id. Consequently, it ordered all
___
sanctions paid to the City.
16
Cir. 1988) (similar).
The district court rejected Linder's argument, finding
instead that "if plaintiffs' case had not been so utterly without
merit, this 'redundant' representation might have proved essen-
tial to these defendants," Silva, slip op. at 13 (May 6, 1993),
_____
and therefore that the employment of multiple attorneys during
the merits phrase was reasonably required. We agree that it was
______ ______
reasonable for the five defendants, in their individual capaci-
__________ _______
ties, to obtain representation by their own counsel while the
____
merits of plaintiffs' claims remained in litigation, since
counsel to the City represented the individual defendants in
their official capacities only. Linder points to no authority
________ __________
for the implicit assumption that reasonable mitigation efforts
require that the private interests of parties sued in their
individual capacities must go unrepresented. Cf. Mariani, 983
___ _______
F.2d at 8 n.5. Nor has he shown that the respective private
interests of these individual defendants during the merits phase
did not conflict to the point that mutual representation was
precluded.13 Cf. Brandt v. Schal Assoc., Inc., 960 F.2d at
___ ______ __________________
640, 648 (7th Cir. 1992) ("[w]e have little sympathy for the
litigant who fires a big gun, and when the adversary returns
fire, complains because he was only firing blanks").
The court further found that "the total time spent by
____________________
13Although the district court did not describe their precise
nature, Linder does not challenge its finding that there were
potential conflicts of interest among the various individual
defendants. Thus, Linder failed to demonstrate an abuse of
discretion. See Navarro-Ayala, 968 F.2d at 1425.
___ _____________
17
each attorney on the merits was not excessive." Silva, slip op.
_____
at 13 (Nov. 5, 1992). The court also disallowed all fees for
legal services, except those services directly rendered to the
City, after the point in time when it became clear that no
conflicts of interest precluded the individual defendants' joint
representation by counsel to the City. See Brandt, 960 F.2d at
___ ______
649 (no failure to mitigate where sanctioned attorney's broad
complaint necessitated investment of extensive attorney time in
defense and district court carefully monitored procedure). A
party is required to mitigate expenses only insofar as is reason-
able. Our review of the record discloses no basis for supposing
that the district court abused its discretion by allowing a
$53,528.81 reimbursement to the City for legal services rendered
during the merits phase. See Navarro-Ayala, 968 F.2d at 1426
___ _____________
("When the district court settles upon a monetary sanction and
fixes a dollar amount, a reviewing tribunal should defer, within
broad limits, to the district court's exercise of its informed
discretion. Nevertheless, the court of appeals must be careful
not merely to 'rubber-stamp the decisions of the district
court.'") (citation omitted).
b. Sanctions Phase
b. Sanctions Phase
_______________
The district court disallowed all fees requested in
relation to the sanctions phase of the litigation except for
18
those incurred by the City.14 The court found that counsel to
the individual defendants had been notified in advance that the
City no longer believed there existed any conflict of interest
precluding joint representation. Thus, the court allowed only
$21,821.15 in total fees and costs for 188 out of over 1500 hours
expended by all counsel representing defendants during the
sanctions phase. Linder does not challenge the reasonableness of
the fees incurred by the City in the sanctions phase.15
We therefore affirm the district court judgement.
Affirmed.
Affirmed.
________
____________________
14The district court adjusted for the additional hearing
time required on the section 1988 motion by allowing fees for
only 50% of the total time expended by defendants' counsel at the
sanctions hearing, a finding not challenged on appeal.
15Linder argues, however, apparently for the first time,
that the district court abused its discretion by failing to take
into account his financial ability to respond to the fee award.
Even assuming this claim has been preserved, Linder presented no
evidence concerning his financial condition, nor has he alleged
financial inability to satisfy the sanction. Thus, there was no
abuse of discretion. See White v. General Motors Corp., Inc.,
___ _____ ___________________________
908 F.2d 675, 685 (10th Cir. 1990) ("[i]nability to pay what the
court would otherwise regard as an appropriate sanction should be
treated as reasonably akin to an affirmative defense, with the
burden upon the parties being sanctioned to come forward with
evidence of their financial status"), cert. denied, 498 U.S. 1069
____ ______
(1991).
We likewise reject Linder's claim that attorney fees reason-
ably incurred in the sanctions phase may not be made the subject
of a Rule 11 sanction. See Brandt, 960 F.2d at 651 (costs
___ ______
incurred in litigating request for Rule 11 sanctions in district
court recoverable as part of Rule 11 sanction); Robinson v. Dean
________ ____
Witter Reynolds, Inc., 129 F.R.D. 15, 22 (D. Mass. 1989). Cf.
_____________________ ___
Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 949-50 (1st Cir.
___________________ ______
1984) (reasonable fees and costs incurred in recovering attor-
ney's fees under 1988 are reimbursable under 1988).
Finally, although Linder argues that Rule 11 sanctions may
chill civil rights actions, we cannot agree that a groundless
civil rights action is any less appropriate a candidate for Rule
11 sanctions than other groundless actions.
19