FILED
NOT FOR PUBLICATION MAY 06 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAAFAT MOHAMMADKHANI, No. 11-15938
Plaintiff-Appellant, D.C. No. 2:07-cv-00095-KJD-LRL
RANDY RUMPH,
Appellant, MEMORANDUM *
v.
JAMES ANTHONY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent Dawson, District Judge, Presiding
Argued and Submitted February 15, 2013
San Francisco, California
Before: FARRIS and N.R. SMITH, Circuit Judges, and BURGESS, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Timothy M. Burgess, District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
Appellant Raafat Mohammadkhani and her attorney, Randy Rumph, appeal
the district court’s order awarding costs and attorney’s fees against
Mohammadkhani, and sanctioning Rumph by holding him jointly and severally
liable for the award. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review for abuse of discretion both the district court’s award of fees, Tutor-Saliba
Corp. v. City of Hailey, 452 F.3d 1055, 1059 (9th Cir. 2006), and its imposition of
sanctions, Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197 (9th Cir. 1999).
We are unable to determine whether the district court acted within its
discretion in awarding fees against Mohammadkhani because the court did not
clearly identify the legal and factual bases for the award. In civil rights cases, a
district court may award attorney’s fees to a prevailing defendant only in
exceptional circumstances where the plaintiff’s claims are frivolous, unreasonable,
or groundless. Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 418-22
(1978); Harris v. Maricopa Cnty. Super. Ct., 631 F.3d 963, 971 (9th Cir. 2011). A
claim is not frivolous in this context merely because the plaintiff did not prevail.
Christiansburg, 434 U.S. at 421-22. The more carefully a court must examine a
claim to establish its legal insufficiency, the less likely it is that the claim is
frivolous. See Hughes v. Rowe, 449 U.S. 5, 15-16 (1980). Consequently, a court’s
inability to determine that an action may be dismissed prior to trial, such as where
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a plaintiff survives a motion for summary judgment, suggests that the plaintiff’s
claim is not frivolous. See Sanchez v. City of Santa Ana, 936 F.2d 1029, 1041 (9th
Cir. 1990); Jensen v. Stangel, 762 F.2d 815, 818 (9th Cir. 1985).
Here, the district court found that Mohammadkhani’s claims were frivolous
based on the Ninth Circuit’s affirmation of the district court’s entry of judgment in
favor of the defendants. See Mohammadkhani v. Anthony, 347 F. App’x 286 (9th
Cir. 2009). However, the district court disposed of Mohammadkhani’s claims
only with the benefit of an entire trial record, and only after she survived several
dispositive motions and obtained a jury verdict in her favor. Under these
circumstances, the district court’s reliance on the fact that Mohammadkhani did not
prevail is insufficient to establish that her claims were frivolous.
The district court provided several other reasons for its award; however, the
additional reasons implicate sanctionable conduct, rather than frivolous claims. To
the extent the district court intended to sanction Mohammadkhani for her
misconduct during the litigation, it failed to state this intent or identify the legal
basis for the sanctions. Because the district court did not clearly indicate how it
exercised its discretion in awarding fees against Mohammadkhani, we remand for
further explanation. See Margolis v. Ryan, 140 F.3d 850, 854 (9th Cir. 1998).
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The district court similarly failed to explain its decision to hold Rumph
jointly and severally liable for the award. The applicable fee shifting statutes
authorize attorney’s fees only against parties, not counsel. See 42 U.S.C. §
2000e-5(k); 42 U.S.C. § 1988(b). Accordingly, the district court’s decision to hold
Rumph responsible for the award constitutes a sanction. Our review of an order
sanctioning an attorney focuses on “whether each of the [district court’s] factual
bases supports the imposition of sanctions under the legal authorities cited by the
district court.” Yagman v. Republic Ins., 987 F.2d 622, 627 (9th Cir. 1993). Here,
the district court sanctioned Rumph without mentioning sanctions and without
citing legal authority. Consequently, we vacate the order and remand for an
explanation of the legal and factual bases for district court’s order.
Mohammadkhani and Rumph request that this matter be reassigned to a new
judge on remand. Because the asserted reasons for the request are unsupported by
the record, their request is denied.
VACATED AND REMANDED.
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