FILED
NOV 16 2018
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIKKI POOSHS, No. 16-15429
Plaintiff, D.C. No. 4:04-cv-01221-PJH
and
MEMORANDUM*
GILBERT L. PURCELL, Counsel for
plaintiff Nikki Pooshs,
Appellant,
v.
PHILIP MORRIS USA, INC. and R.J.
REYNOLDS TOBACCO COMPANY,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Submitted November 13, 2018*
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: THOMAS, Chief Judge, GRABER, Circuit Judge, and KOBAYASHI,**
District Judge.
Plaintiff Nikki Pooshs’s counsel, Appellant Gilbert L. Purcell appeals from
the district judge’s March 7, 2016 Order Imposing Sanctions on Plaintiff’s Counsel
for Misconduct During Trial (“Sanctions Order”). The sole issue on appeal is
whether Appellant’s procedural due process rights were violated. Because a
district judge’s imposition of sanctions under its inherent authority is a
discretionary decision, we will reverse only where there was an error of law or a
clearly erroneous factual determination. We review de novo the question of
whether Appellant was afforded due process before the issuance of the Sanctions
Order. Lasar v. Ford Motor Co., 399 F.3d 1101, 1109 (9th Cir. 2005).
Due process required that Appellant receive the following before the district
court imposed a monetary sanction against him: 1) notice of the grounds for the
sanction and the potential type of sanctions that may be imposed; and 2) an
opportunity to be heard. Id. at 1109-10. The district court repeatedly warned
Appellant during the trial that he was violating prior district court orders.
Appellant had ample opportunity to stop violating the orders, but chose not to do
so. In addition, Appellant was verbally warned during the trial that his continued
***
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
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violations would result in sanctions, specifically, that his continued violations
would result in monetary sanctions and a referral to the state bar association.
Although the court did not hold a hearing before it imposed sanctions
against Appellant, the court was not required to hold one. See Pac. Harbor Capital,
Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000) (stating that
“an opportunity to be heard does not require an oral or evidentiary hearing on the
issue” of attorney discipline (citation omitted)). Appellant had ample time to brief
the sanctions issue before the district court filed the Sanctions Order, but chose not
to do so. Approximately one month elapsed between the district court’s verbal
warning about the imposition of sanctions and the filing of the Sanctions Order.
Thus, Appellant had a sufficient opportunity to be heard. See id. (“The
opportunity to brief the issue fully satisfies due process requirements.” (citation
omitted)).
We therefore hold that the district court’s imposition of sanctions against
Appellant did not violate his right to due process.
AFFIRMED.
3