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| FindLaw: Laws: Cases and Codes: 9TH CIRCUIT COURT Opinions | |
Email a Link to This Case
http://laws.findlaw.com/9th/9835633.html
PACIFIC HARBOR CAPITAL, INC., Plaintiff-Appellee, v. No. 98-35633 CARNIVAL AIR LINES, INC., D.C. No. Defendant, CV-97-00924-MFM and OPINION JEFFREY M. HERMAN; STUART S. MERMELSTEIN, Movants-Appellants.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Submitted September 16, 19991
Portland, Oregon
Filed April 27, 2000
Before: Andrew J. Kleinfeld and William A. Fletcher,
Circuit Judges, and Nora Manella,2 District Judge.
Opinion by Judge Manella;
Partial Concurrence and Partial Dissent by Judge Kleinfeld
SUMMARY
The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________
Attorneys and Judges/Sanctions
The court of appeals vacated an order of the district court
in part and affirmed in part. The court held that a district court
may impose sanctions on an attorney who claims misunder-
standing about the effective date of a restraining order, even
if there is no finding that the attorney told the client that it
could or should violate the order.
When Carnival Airlines, Inc. defaulted on its payments to
appellee Pacific Harbor Capital, Inc. for the lease of an air-
plane and related equipment, Pacific Harbor sued in the Dis-
trict of Oregon.
Appellants Jeffrey Herman and Stuart Mermelstein repre-
sented Carnival. They applied ex parte to a Florida state court
for a temporary restraining order (TRO) prohibiting Pacific
Harbor from asserting any possessory rights or interest in the
airplane. Herman and Mermelstein did not notify Pacific Har-
bor, and failed to inform the court that the federal action was
pending, that Carnival had defaulted, or that the lease con-
tained a forum-selection provision designating Oregon as the
venue for any dispute. Pacific Harbor learned of the TRO and
removed the Florida action to the district court.
On Friday, July 11, 1997, Pacific Harbor moved for a TRO
to bar Carnival from continuing to fly the airplane. Local
counsel Keith Ketterling represented Carnival; Herman
appeared telephonically from Miami, Florida, where Carnival
and his law firm were located.
The district court granted the TRO as to the airplane and
two engines. The TRO prohibited Carnival from using the air-
plane, the engines, or their parts; it also required Pacific Har-
bor to post a $250,000 bond. Pacific Harbor posted a $2
million bond it had on hand, and obtained leave of court to
replace it on Monday, July 14 with a bond for $250,000. The
district court stated four times that the TRO was in effect as
of July 11; the order bore that date, and stated that it was
effective on service of a fax copy on defense counsel.
Carnival continued to use the airplane over the weekend.
On July 14, Pacific Harbor moved for contempt based on Car-
nival's violation of the TRO.
On Wednesday, July 16, the district court conducted a hear-
ing on the contempt motion. As of that date, Carnival had not
complied with the TRO. Herman and Mermelstein appeared
telephonically. Herman told the court that he had misunder-
stood when the TRO was to go into effect, and had thought
that the effective date was Monday, July 14; Ketterling
acknowledged that he had understood the TRO to be effective
as of July 11. The court expressed incredulity at Herman's
explanation.
Herman assured the district court that he was trying to have
the plane's engines delivered to Pacific Harbor, and that the
exchange could occur on Friday, July 18. The court scheduled
a show-cause hearing for July 18, making clear that the
engines were not to be used for any purpose, and ordering the
Florida attorneys to appear.
Herman did not appear at the July 18 hearing; Mermelstein
did. Carnival had still not complied with the TRO.
Mermelstein claimed that it was "an impossibility " for Car-
nival to comply promptly with the TRO, and that another
creditor was conspiring with Pacific Harbor to thwart Carni-
val's attempt to comply. A Carnival representative testified
that the two airplanes that were using Pacific Harbor's
engines had been in operation since the contempt hearing
transporting revenue passengers.
The district court questioned Mermelstein's credibility, and
held both him and Carnival in contempt. Based on Mermel-
stein's conduct, the court stated that it would enter an order
permanently banning him and his firm from pro hac vice
admission to the District of Oregon. The court also warned
Mermelstein that he was not to leave the district until Carnival
fully complied with the TRO, and that he would be arrested
for civil contempt if the engines and documentation were not
produced for Pacific Harbor's inspection by July 19.
On July 22, the district judge narrowed the order to bar
members of Mermelstein's law firm from appearing pro hac
vice in his court, and required members of the firm to attach
a copy of the sanctions order to any future pro hac vice appli-
cation submitted in the District of Oregon.
The district court explained that the amended order was
based on findings that Herman's representation about his
understanding of the effective date of the TRO was in bad
faith; that he and Mermelstein had effectively approved their
client's violation of the TRO; and the attorneys' failure to
advise the state court of the pending federal action and Carni-
val's default had been in bad faith. The court concluded that
defense counsel's arguments were frivolous, and had inter-
fered with the court's ability to maintain effective control
over its processes.
Carnival filed for bankruptcy protection, and Pacific Har-
bor's case was dismissed. Herman and Mermelstein sought
reconsideration of the sanctions order. In an affidavit, Herman
asserted that there had been a poor telephone connection dur-
ing the Friday telephonic TRO hearing, and that he had so
informed the district court. This was not borne out by the tran-
script of the proceedings.
The district court adopted a modified sanction order that
barred only Herman and Mermelstein from appearing before
it. The order required other members of their firm to attach
copies of the court's sanction orders to any application for pro
hac vice admission before the court. Citing its statements at
the July 11 hearing that the TRO was in effect as of that date,
the court found incredible Herman's claim that he understood
the effective to be July 14. Herman and Mermelstein
appealed.
[1] The district court issued sanctions under 28 U.S.C.
S 1927. Section 1927 authorizes sanctions against any lawyer
who wrongfully proliferates litigation once a case has com-
menced. [2] Imposition of sanctions under S 1927 requires a
finding of bad faith. [3] In addition, an attorney subject to dis-
cipline is entitled to procedural due process, including notice
and an opportunity to be heard.
[4] The district court instructed the parties during the Fri-
day hearing that the TRO was in effect immediately. Herman
failed to explain why he ignored the judge's repeated state-
ments that the TRO was in effect, or why he failed to seek
clarification from the judge or local counsel. Even assuming
that Herman had difficulty hearing the proceedings, his failure
to seek clarification on such a critical issue was reckless at
best.
[5] The district court had ample opportunity to evaluate the
legitimacy of counsel's justification for their client's contin-
ued non-compliance with the court's order and Herman's
claims of good faith. The findings warranted great deference.
The judge did not clearly err in finding that Herman lacked
credibility, or abuse his discretion in finding that his conduct
warranted sanctions.
[6] Mermelstein made his arguments, that compliance with
the TRO was impossible and a third party conspired with
Pacific Harbor to thwart Carnival's efforts to comply with the
TRO, a week after the TRO went into effect, and two days
after he assured the court that the engines would be returned
immediately. [7] Mermelstein had an opportunity during the
July 16 hearing to disclose any barriers to compliance that his
client faced. He raised no such concerns, assuring the court
that his client would comply with the order. Mermelstein thus
further delayed compliance and wasted judicial resources.
[8] The facts did not support Mermelstein's claim that Car-
nival's compliance with the order was an impossibility. Nor
did they support his claim that Carnival had been thwarted in
its attempt to comply. The judge was entitled to conclude that
Mermelstein's claims were baseless, and constituted misrep-
resentations made in bad faith.
[9] The appellants were given the opportunity to brief the
issue, to respond to the court's findings, and to demonstrate
that their conduct was not in bad faith. The judge witnessed
their sanctionable conduct, discussed their justifications for
violating a court order during two contempt proceedings, and
considered their written explanations. A separate hearing was
not required.
Judge Kleinfeld dissented in part, concluding that the
record did not justify the sanctions imposed on Carnival's
attorneys.
_________________________________________________________________
COUNSEL
Paul T. Fortino, Perkins Coie, Portland, Oregon, for plaintiff-
appellee Pacific Harbor Capital, Inc.
Jeffery M. Herman, Stuart S. Mermelstein, Miami, Florida,
for the appellants.
_________________________________________________________________
OPINION
MANELLA, District Judge:
Appellants Jeffrey M. Herman and Stuart S. Mermelstein
are attorneys with the law firm of Herman Grubman & Moore
in Miami, Florida. They appeal the district court's order
("Order dated June 3, 1998"), barring both attorneys from
appearing pro hac vice before Malcolm F. Marsh, District
Judge for the District of Oregon, and requiring any member
of their law firm to attach copies of Judge Marsh's sanction
order when petitioning for pro hac vice admission. We have
jurisdiction of this appeal of a post-judgment order under 28
U.S.C. S 1291, and we affirm in part and vacate in part.
I
FACTUAL AND PROCEDURAL BACKGROUND
Appellee Pacific Harbor Capital, Inc. ("Pacific Harbor")
leased an airplane and related equipment to defendant Carni-
val Airlines, Inc. ("Carnival"). Carnival fell behind on its pay-
ments, and on June 17, 1997 Pacific Harbor brought suit in
the District of Oregon for breach of the lease and recovery of
the airplane.
A few weeks later, on July 3, 1997, Carnival, through its
attorneys, appellants Herman and Mermelstein, filed for and
obtained a temporary restraining order ("TRO") from a Flor-
ida state court judge prohibiting Pacific Harbor from asserting
any possessory rights or interest in the airplane. Herman and
Mermelstein sought the Florida TRO ex parte, without
attempting to notify Pacific Harbor. The two attorneys also
failed to inform the Florida state court judge that the Oregon
action was pending, that their client, Carnival, was behind in
its lease payments, or that the lease had a forum selection
clause designating Oregon as the venue for any dispute.
Once Pacific Harbor learned of the Florida TRO, it
removed the case to federal court. On July 10, the Florida dis-
trict court dissolved the TRO and transferred the case to the
District of Oregon.
On Friday, July 11, Pacific Harbor moved for its own TRO
to preclude Carnival from continuing to fly the plane. Judge
Marsh, district judge for the District of Oregon, heard the
matter that afternoon. Carnival was represented by local coun-
sel, Keith Ketterling, and Herman, who appeared telephoni-
cally. Following argument, the district court granted the TRO
as to the airplane, two engines, and all logs, manuals, certifi-
cates, and technical data pertaining to the airplane and the
engines. The TRO prohibited Carnival from using Pacific
Harbor's airplane, engines, and parts and further required Car-
nival to assemble the airplane promptly at one of Carnival's
primary maintenance facilities in Fort Lauderdale, Florida.
The court required Pacific Harbor to post a bond of $250,000
as a condition of the TRO. Pacific Harbor's attorney had a
bond for $2,000,000 that he posted immediately and was
given permission to replace it the following Monday with a
bond for $250,000.
During the hearing on the application for the TRO, Judge
Marsh stated on four separate occasions that the TRO was
granted and was effective as of that date. The four statements
made by Judge Marsh included: 1) "I am going to enter the
TRO,"; 2) "[a]t this time I am going to sign this TRO,"; 3)
"the TRO is in effect,"; and 4) "I will direct that [the] TRO
is now in [e]ffect."3
The order granting the TRO was dated Friday, July 11,
1997 and stated that it was effective upon service by facsimile
on defendant's counsel in Miami, Florida. At no time during
the hearing did Herman express confusion over, or seek clari-
fication of, the effective date of the TRO.
Despite the court order, Carnival continued to use the plane
and engine for commercial purposes throughout the weekend
following issuance of the TRO. On Monday, July 14, plaintiff
filed a motion for contempt, citing Carnival's continued use
of the plane on Saturday, Sunday, and Monday and the con-
tinuing failure to return the engines and documentation as
ordered.4 On Wednesday, July 16, the district court conducted
a hearing on plaintiff's contempt motion. Messrs. Herman and
Mermelstein appeared telephonically. At the hearing, Herman
advised the court that he had misunderstood when the TRO
was to go into effect and was under the impression that the
TRO would not be effective until Monday, July 14. 5 When
returned to Fort Lauderdale.
5 Although the July 11 transcript shows that Judge Marsh specifically
noted that the $2,000,000 bond would be replaced on Monday with the
required $250,000 bond, and that the TRO was in effect as of Friday, Mr.
Herman, according to his affidavit, advised his client to the contrary:
The Carnival representative told me that flights had already been
scheduled requiring the use of this aircraft during the weekend.
I explained that Pacific Harbor's counsel stated that the bond
would not be placed until Monday and the order stated that the
temporary restraining order would take effect upon the posting of
the bond. Accordingly, I explained that it probably would not
technically be a violation of the temporary restraining order to fly
the aircraft during the weekend, but there were certain risks
inherent in doing so.
Pacific Harbor's attorney made no representation "that the bond would
not be posted until Monday." To the contrary, plaintiff's counsel made
clear his readiness to post the $2,000,000 bond that Friday, and the court
questioned by Judge Marsh, Carnival's local counsel, Ketter-
ling, acknowledged that he had understood the TRO to be
effective as of the date of the motion hearing, Friday, July 11.
The judge made clear he did not believe Herman's explanation.6
As of Wednesday, July 16, Carnival still had not complied
with the terms of the TRO. The two engines and the docu-
mentation pertaining to the aircraft had not been delivered to
Fort Lauderdale. However, Herman assured the court that he
was trying to get the engines to Fort Lauderdale and stated
"[w]e can do the exchange [of the engines] on Friday." The
court found Carnival in contempt of the court's TRO as to the
airplane and scheduled a show cause hearing for Friday, July
18, concerning the engines and airplane documentation.
Pacific Harbor's attorney requested that "the Court make it
perfectly clear in its order that the engines are not to be used
for any purpose." The court did so. The court also ordered the
Florida attorneys to appear personally for the Friday hearing,
along with Carnival's CEO or the person directly responsible
for compliance with the TRO.
Herman did not appear at the Friday, July 18 show cause
hearing, but Mermelstein did. Tom Fay, chief pilot for Carni-
val and manager of its A300 fleet, was also present. A week
after the TRO had been granted and despite Herman's previ-
ous assurances to the court, Carnival still had not complied
with the TRO. Neither the two engines nor the airplane docu-
mentation had been returned to Pacific Harbor. At the Friday
hearing, Mermelstein argued that it was "an impossibility" for
Carnival to comply with the terms of the TRO, and that a
third company, Babcock & Brown, was conspiring with
Pacific Harbor to "thwart" Carnival's efforts to comply with
the TRO.7
Carnival's chief pilot, Mr. Fay, confirmed that the two air-
planes to which Pacific Harbor's engines were attached had
been in use since the Wednesday contempt hearing to fly rev-
enue passengers from New York to Los Angeles, San Juan
and the Bahamas. Judge Marsh thereupon questioned Mer-
melstein's credibility, held both Mermelstein and Carnival Air
in contempt, and disqualified Mermelstein from appearing in
his court. Judge Marsh orally advised Mermelstein that based
on his conduct, the judge would enter an order permanently
banning Mermelstein and his firm from pro hac vice admis-
sion to the District of Oregon. In addition, the court warned
Mermelstein and Fay that they were not to leave the District
of Oregon until the TRO was fully complied with, and that
they would be arrested on civil contempt charges if the
engines and documentation were not produced for Pacific
Harbor's inspection by Saturday morning, July 19, 1997.8
On July 22, the district court issued a written order memo-
rializing and narrowing the sanctions. Relying on Local Rule
110-2(b) and the court's inherent power, Judge Marsh barred
members of appellants' firm from appearing pro hac vice in
his court, and required appellants and other members of their
firm to attach a copy of the sanctions order to any future pro
hac vice application submitted in the District of Oregon. In
explaining the order, Judge Marsh noted that he found defense
counsel Herman's representation concerning his understand-
ing of the effective date of the TRO to have been made in bad
faith. (The judge had made clear at the July 16 hearing that
he found Herman's explanation incredible.) The court further
found that Herman and Mermelstein had effectively sanc-
tioned their client's violation of his court order. (Herman
admitted having advised Carnival it could continue to fly the
planes over the weekend; Mermelstein claimed Carnival's
compliance with the court order had been an "impossibility"
-- a representation later shown to be untrue.) Finally, the
court found Herman and Mermelstein's failure to advise the
Dade County court of the pending federal case in Oregon and
to advise the Florida court of their client's default on lease
payments to have been in bad faith. The court concluded that
defense counsel's "frivolous arguments and misrepresenta-
tions" were more than mere technical violations -- they had
interfered with the court's ability to maintain effective control
over court processes.
The underlying case was dismissed without prejudice April
13, 1998, after Carnival filed for Chapter 11 protection. On
April 17, appellants filed a motion for reconsideration of the
sanctions order and supported their motion with argument,
affidavits, and other exhibits. In an affidavit supporting the
motion, Herman for the first time stated that there had been
a poor telephone connection during the Friday telephonic
TRO hearing, and claimed that during the hearing he had
informed the court that he was having difficulty hearing some
of the proceedings.9
On June 3, 1998, after considering these arguments, the
court adopted a modified sanction order that barred only Her-
man and Mermelstein from appearing before him. The order
further required other members of appellants' firm to attach
copies of the July 1997 and the June 1998 orders to any appli-
cation for pro hac vice admission before him.10 Judge Marsh
based the sanction on appellants' failure to notify the Florida
state court of the pending action in Oregon district court, Her-
man's advice to his client in contravention of the TRO, and
Mermelstein's bad faith arguments alleging that compliance
with the TRO was impossible. Given the judge's statement at
the Friday hearing that the TRO was "in effect " and Herman's
failure to seek clarification either from the judge at the hear-
ing or from his local counsel, Judge Marsh found Herman's
claim that he understood the TRO would not go into effect
until the following Monday to be incredible. This appeal fol-
lows.
II
STANDARD OF REVIEW
The district court's entry of sanctions is reviewed for an
abuse of discretion. Chambers v. NASCO, Inc., 501 U.S. 32,
55 (1991); In re Keegan Management Co., Sec. Litig., 78 F.3d
431, 436 (9th Cir. 1996). We will reverse a district court's
factual findings as to whether an attorney acted recklessly or
in bad faith only if they are clearly erroneous. Kanarek v.
Hatch, 827 F.2d 1389, 1391 (9th Cir. 1987).
III
DISCUSSION
[1] The district court issued sanctions pursuant to its inher-
ent powers, 28 U.S.C. S 1927. Section 1927 authorizes the
imposition of sanctions against any lawyer who wrongfully
proliferates litigation proceedings once a case has com-
menced. See Cunningham v. County of Los Angeles , 879 F.2d
481, 490 (9th Cir. 1988).
[2] The imposition of sanctions underS 1927 requires a
finding of bad faith. In re Keegan Management Co., Securi-
ties Litig., 78 F.3d 431, 436 (9th Cir. 1996)."We assess an
attorney's bad faith under a subjective standard. Knowing or
reckless conduct meets this standard." MGIC Indem. Corp. v.
Moore, 952 F.2d 1120, 1121-22 (9th Cir. 1991) (reversal of
sanctions required where district court's "observations were
as consistent with negligence as with bad faith"); see also
Estate of Blas v. Winkler, 792 F.2d 858, 861 (9th Cir. 1986)
(observing that a finding of bad faith is crucial, because a friv-
olous argument by itself is insufficient to support an award of
sanctions under S 1927). However, "[a] district court's failure
to make express findings [of bad faith] does not require a
remand if `a complete understanding of the issues may be had
[from the record] without the aid of separate findings.' "
Optyl Eyewear Fashion Int'l. Corp. v. Style Co., 760 F.2d
1045, 1051 (9th Cir. 1985) (quoting Swanson v. Levy, 509
F.2d 859, 861 (9th Cir. 1975)); see also Baldwin Hardware
Corp. v. Franksu Enter. Corp., 78 F.3d 550 (Fed. Cir. 1996)
(affirming S 1927 disciplinary and monetary sanctions, issued
sua sponte, barring attorney from pro hac vice admission
before court and requiring attorney to attach sanction order to
any application for pro hac vice admission in the district;
although court did not use words "bad faith" in imposing
sanctions, record supported finding that court deemed firm's
actions underlying sanctions to be at least reckless).
[3] In addition, "an attorney subject to discipline is entitled
to procedural due process, including notice and an opportu-
nity to be heard." Weissman v. Quail Lodge Inc., 179 F.3d
1194, 1198 (9th Cir. 1999). However, an opportunity to be
heard does not require an oral or evidentiary hearing on the
issue. See Baldwin Hardware, 78 F.3d at 562 (finding no due
process violation for sanctions issued sua sponte after seven-
week trial, where attorney had notice of court's displeasure
and opportunity to respond during trial and after court pro-
posed sanctions; no separate hearing on sanctions required).
The opportunity to brief the issue fully satisfies due process
requirements. Resolution Trust Corp. v. Dabney, 73 F.3d 262,
268 (10th Cir. 1995); see also Toombs v. Leone , 777 F.2d
465, 472 (9th Cir. 1985) ("Due process . . . requires that par-
ties subject to sanctions have `sufficient opportunity to dem-
onstrate that their conduct was not undertaken recklessly or
willfully.' ").11
Here, the district court made explicit findings of bad faith
based on: 1) counsels' failure to inform a Florida state court
of the pending, previously filed federal action; 2) Herman's
advising his client that it could continue to fly the plane after
entry of the TRO; and 3) Mermelstein's bad faith arguments
made during the second contempt hearing. Judge Marsh held
that these misrepresentations and bad faith arguments violated
the rules of conduct and interfered with his ability to maintain
effective control over court processes. Although appellants
argue to the contrary, we find neither clear error nor abuse of
discretion in Judge Marsh's assessment of counsels' conduct.
1. Herman
[4] As to Herman, the district court found that his justifica-
tions for advising his client that the TRO would not be in
effect until Monday, July 14 -- first asserting that he did not
understand the court's repeated declarations that the TRO was
in effect immediately, and later claiming a poor phone con-
nection -- lacked credibility. We cannot disagree. The record
shows that the court instructed the parties on four separate
occasions during the Friday hearing that the TRO was in
effect immediately. As Judge Marsh noted, Herman failed to
explain why he ignored the judge's repeated statements that
the TRO was in effect, or why he failed to seek clarification
from either the judge or his local counsel, who clearly under-
stood the TRO to be in effect Friday. Even assuming Herman
had had difficulty hearing the proceedings, his failure to seek
clarification on such a critical issue was, as the court
observed, "highly reckless at best." Cf . MGIC Indem. Corp.,
952 F.2d at 1122 (knowing or reckless conduct meetsS1927
standard for bad faith).
[5] Having conducted a hearing concerning the TRO and
two subsequent contempt proceedings, Judge Marsh had
ample opportunity to evaluate the legitimacy of counsels' jus-
tifications for their client's continued non-compliance with
the court's order and Herman's claims of good faith. We defer
to Judge Marsh's findings of fact and assessments of coun-
sels' credibility. See Primus Automotive Fin. Servs., Inc. v.
Batarse, 115 F.3d 644, 649 (9th Cir. 1997) ("The district
court has `broad fact-finding powers' with respect to sanc-
tions, and its findings warrant `great deference'.") (quoting
Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1366
(9th Cir. 1990)). Accordingly, we find Judge Marsh did not
clearly err in finding Herman lacked credibility or abuse his
discretion in finding his conduct warranted sanctions.12
2. Mermelstein
[6] As to Mermelstein, the court found that his arguments
that compliance with the TRO was impossible and that a third
party had conspired with Pacific Harbor to thwart Carnival's
efforts to comply with the TRO were made in bad faith. Mer-
melstein made these arguments during the July 18 hearing, a
week after the TRO went into effect and two days after he,
personally, had assured the court that the engines would be
returned to Fort Lauderdale immediately.
[7] Moreover, the court found that Mermelstein had
breached his duty of candor to the court, and had unreason-
ably multiplied the proceedings in this matter. As this court
has observed, "an attorney does not simply act as an advocate
for his client; he is also an officer of the court. As such, an
attorney has a duty of good faith and candor in dealing with
the judiciary." United States v. Associated Convalescent
Enters. Inc., 766 F.2d 1342, 1346 (9th Cir. 1985) (affirming
S 1927 sanctions). Mermelstein had an opportunity during the
July 16 hearing to disclose to the court any alleged barriers to
compliance that his client faced. He raised no such concerns,
instead assuring the court that his client would belatedly com-
ply with the court's order. Thus, Mermelstein further delayed
compliance with the court's order and wasted judicial
resources. See Wages v. Internal Revenue Serv. , 915 F.2d
1230 (9th Cir. 1989) (affirming award of S 1927 sanctions
against pro se litigant based on finding of bad faith in multi-
plying proceedings).
Moreover, Judge Marsh found Mermelstein's argument that
his client's compliance with the TRO had been "impossible"
to be unsupported by the facts and insufficient to explain Car-
nival's continued use of the engines for commercial flights. In
short, Judge Marsh concluded that Mermelstein had made
misrepresentations to the court in bad faith.13
[8] We defer to Judge Marsh's findings of fact and assess-
ments of counsels' credibility. It is undisputed that the facts
did not support Mermelstein's claim that Carnival's compli-
ance with the court order was "an impossibility. " Nor did they
support his claim that Carnival had been "thwarted" in its
attempt to comply. On the facts before him, Judge Marsh was
entitled to conclude that Mermelstein's claims were baseless
and constituted misrepresentations made in bad faith, which
interfered with the court's ability to enforce its orders.
3. Due Process
[9] Appellants also allege that they were denied procedural
due process, viz., notice and an opportunity to be heard. Here,
as in Baldwin, supra, the court issued sanctions sua sponte,
several days after the second contempt hearing at which Judge
Marsh expressed his displeasure with Mermelstein's conduct
and indicated that he intended to issue an order prospectively
barring Mermelstein and members of his firm from appearing
pro hac vice in the district. Although appellants were given
notice of sanctions, they were not allowed, at that time, to
offer explanations for their conduct. However, appellants sub-
sequently filed a motion for reconsideration of the sanctions
and supported their motion with argument, affidavits, and
other exhibits. Judge Marsh considered appellants' arguments
and modified his original order accordingly.14 Thus, appel-
lants were given the opportunity to fully brief the issue, to
respond to the court's findings, and to demonstrate that their
conduct was not undertaken in bad faith. Where, as here, the
judge witnessed appellants' sanctionable conduct, discussed
appellants' justifications for violating a court order during two
contempt proceedings, and considered their written explana-
tions for misconduct, a separate hearing was not required. We
reject appellants' due process challenge to the order for sanc-
tions.
IV
CONCLUSION
For the reasons set forth above, we find no abuse of discre-
tion and affirm the district court's imposition of sanctions
against appellants.
AFFIRMED in part AND VACATED in part.
_________________________________________________________________
KLEINFELD, Circuit Judge, concurring and dissenting:
The district judge was properly and understandably frus-
trated that Carnival held onto the engines they had not paid
for and continued to fly the planes in violation of the court's
order. But I do not think the record justifies the harsh sanc-
tions imposed on Carnival's lawyers. Their client did wrong,
but all they did was defend their client, hopelessly because of
their client's misconduct, but not so abusively as to justify the
sanctions imposed on them. Lawyers from time to time get
saddled with a client whose litigation conduct embarrasses
them. Their ethical duty to advocate the client's cause occa-
sionally interferes with their ability to perceive that they
ought to be embarrassed, and rightfully prevents them from
being too prissy about resigning from the case as soon as the
client threatens to embarrass them. The lawyers cannot be
held responsible for what they cannot control. "[A]ny sanc-
tions imposed against [the lawyer] should be based solely on
his `own improper conduct without considering the conduct of
the parties or any other attorney.' "1
I concur in footnote 8, vacating the judge's order that Mr.
Mermelstein had to stay within the city limits and keep the
U.S. Marshal informed of his whereabouts over the weekend,
so that he could be put in jail if his client did not return the
engines. This is like a bail order for a person who has been
indicted but released under strict conditions. No matter how
defiant Carnival was, Mr. Mermelstein had the right to go
home to Florida, visit a friend in Seattle, or do whatever else
he liked over the weekend, without telling the U.S. Marshal
where he was. A judge may not hold a lawyer's body as
security for his client's compliance with an order. For the rest,
I respectfully dissent.
Once the lawyer tells his client about the court order and
tells his client that the client ought to comply, the lawyer has
performed his duty, and cannot be sanctioned if the client
does not comply. If a lawyer does not know that the court has
ordered his client to do something, he cannot be sanctioned
for failing to tell his client. For Mr. Mermelstein, especially,
I can see no basis for any sanction at all, yet his reputation is
permanently besmirched. For Mr. Herman, the sanctions are
not justified by the record.
Herman was sanctioned for "bad faith" in asserting that he
understood the court order to go into effect Monday. The
judge did not make a finding that Herman told his client that
it could or should violate the court order. Rather, he expressly
stated in his order denying reconsideration of sanctions that
"the transcript of the contempt hearing . . . fails to establish
that former defense counsel actually advised defendant to
continue using the engines." Herman was on the phone, not
physically present at the hearing. There was extensive discus-
sion of how much the bond would have to be on the order.
The judge said that he would specify a surety bond of
$250,000 and, according to the transcript, "Upon submission
of that to the court the TRO is in [e]ffect. " The plaintiff's law-
yer, Mr. Fortino, said he had a $2 million surety bond. He
then asked for permission to file the $2 million bond and "re-
place it on Monday" with a $250,000 bond. The judge closed
the hearing by saying "I will expect that [the ] TRO is now in
effect." He followed that remark by saying "And the bond
will be replaced Monday morning," and would need to be
submitted to a different judge for approval and signature at
that time.
This record does not furnish a basis for the district court's
"bad faith" finding. Mr. Herman tried to explain at the sanc-
tions hearing that he thought the TRO would not be signed
until the bond was placed on Monday. But the judge repeat-
edly cut him off and would not let him finish what he was
saying. Mr. Herman, who was participating by telephone,
thought the plaintiff's lawyer had a $2 million bond with him,
the court had ordered $250,000, and the court would sign the
TRO when the $250,000 bond was submitted Monday. There
is every reason to believe that Mr. Herman had an honest mis-
understanding, and no substantial basis in the record for the
proposition that he was lying.
The majority suggests that Mr. Herman ought to have clari-
fied what the judge meant about when the bond would be
effective, immediately or on Monday. Perhaps so. But a law-
yer has little reason to ask a judge what he meant when he
thinks he understood the judge, the judge has repeatedly told
him to be silent, and the lawyer thinks the judge has already
given him as favorable an answer as he is likely to get. As for
clarifying it with local counsel, we do not know the content
of the privileged communications between local and out of
town counsel. Even assuming that it would have been prudent
to ask the judge whether the bond was in effect as of the time
of the hearing or would go into effect when a judge approved
and signed the bond on Monday, failure to exercise all the
prudence desirable is not sanctionable as misconduct under
the inherent powers of the court.2 At worst failure to clarify
was a mistake rather than defiance of a court order and bad
faith. Such a mistake cannot under controlling law support a
sanction.3
Mr. Herman says in his affidavit that they had a poor tele-
phone connection and he had trouble hearing what the judge
said, and he thought Mr. Fortino and the judge were saying
"place" the bond Monday instead of "replace " the bond Mon-
day. His statement is corroborated because the transcript in
the record is expressly labeled "draft," suggesting that the
court reporter had trouble understanding all of what was said.
Most importantly, the judge's own syntax was ambiguous as
to when the order went into effect. He said "I will expect that
the TRO is now in [e]ffect."4 If he wanted to issue an order
that was in effect, he could have said "The TRO is now in
effect" without the qualification "I will expect that." The
judge's syntax, and his reference to having another judge sign
approval of the bond on Monday, opened the door to good
faith misunderstanding, and the record does not furnish any
substantial reason to doubt that the misunderstanding was in
bad faith.
Despite the ambiguity, Mr. Herman did not tell his client
that it could violate the order. Herman says in his affidavit
that he told his client that "it probably would not technically
be a violation of the temporary restraining order to fly the air-
craft during the weekend" (emphasis added) because the order
would technically go into effect when the bond was placed
Monday, "but there were certain risks inherent in doing so."5
That hedged restrained opinion is simply not the same as tell-
ing a client to go ahead and violate a court order. Lawyers
often properly tell their client in their judgment, the client
would not technically be in violation of the law in pursuing
a desired course of action, but that there are legal risks in
doing so, because often the facts and the law do not allow for
greater certainty. In a dramatic courtroom confrontation, the
judge asked Carnival's representative if the lawyers told him
they could fly the planes, but Carnival's man said the chief
executive officer, not the lawyers, told him that. The chief
executive officer filed an affidavit saying that "at no time" did
anyone from Mr. Herman's firm advise Carnival to continue
flying, and that it was a business decision based on logistical
problems with complying with the court order. As mentioned
above, the judge expressly stated in his order denying recon-
sideration of sanctions that "the transcript of the contempt
hearing . . . fails to establish that former defense counsel actu-
ally advised defendant to continue using the engines."
Thus what we have is no finding that Herman told his client
to disobey the court's order, and an unsupported finding that
Herman spoke in bad faith about what he understood. What
mattered is whether Mr. Herman told his client that it could
continue to use the planes or engines in violation of the order.
The judge had to concede that there was no basis for finding
that he did. At worst he misunderstood the word "replace" as
"place" and gave his client hedged advice that flying until
Monday, when Mr. Herman thought the order would go into
effect, would be risky but might not be contempt of court
because the bond had not yet been placed. That is not bad
faith.
For Mr. Mermelstein, I can see no basis whatsoever for the
harsh sanctions imposed on him. He was placed under what
amounted to conditions of bail, publicly humiliated, and dis-
barred from the District of Oregon, at least before this judge,
because in response to the judge's request for "an update on
what the status of things are," Mr. Mermelstein said Carnival
had been "thwarted" from complying with the court's order
by practical concerns that made compliance "impossible," so
Carnival needed more time to comply.
Mr. Mermelstein explained that some parts were on planes
that another creditor had an interest in, and that creditor's sei-
zure of planes had prevented or would prevent Carnival from
returning the parts pursuant to the court's order. The judge
asked Carnival's management representative what the planes
were being used for, learned that they were in revenue ser-
vice, and the judge said "this has just been a ridiculous viola-
tion of my--you two gentlemen are very close to having me
call the marshals and put you away, both of you. " The judge
asked the management representative whether he knew about
the court's order, and he said he had. Mr. Mermelstein inter-
jected that "Carnival was in an untenable position. They could
not return the aircraft."
Then the judge asked the management representative what
his lawyers advised, "because this is whether this man [Mr.
Mermelstein] goes to jail or not." The management represen-
tative said that his understanding was that they were not in
violation of the court order, but this understanding came from
the chief executive officer (who swore that it was a business
decision, and had not been the advice of counsel), and did not
attribute any such advice to counsel. Then the judge called on
local counsel, saying "this man [Mr. Mermelstein] is disquali-
fied and he will never be admitted to this court. " The judge
then said he was "tempted" to put Mr. Mermelstein and the
management representative in custody "until all of the perfor-
mance required by this has been completed," but then par-
tially relented, introduced Mr. Mermelstein to the deputy
United States Marshal and told him to stay within the City of
Portland and tell the Marshal where he was going to be. He
then, in open court, said "Mr. Mermelstein, now you should
really spend a little time examining how you got in the frame
of mind that you are in. If a client means that much to you,
that you will go to the extremes you have gone to, then you
should reassess how you evaluate clients and how you evalu-
ate your life. You are an embarrassment to the profession
today."
"Evaluate your life"? "Custody"? "Extremes"? Keep the
marshal advised of his whereabouts like a person indicted for
a felony and released on bail under especially close supervi-
sion? All this was for being asked to give a status report, and
disappointing the judge with a report that his client had found
compliance "impossible." Had Mr. Mermelstein had a sharper
feeling for his own interest, and less concern for his client, he
would doubtless have kept his mouth shut and let his client
take the full brunt of the court's wrath. The wrath appears to
have been deserved, because the client had not complied with
the court's order. But like a good lawyer, Mr. Mermelstein
spoke up for his client without protecting himself. And for
this, his career is permanently scarred with a harsh sanction
reflecting on his integrity. No sanction was justified.
It is important to note that the judge did not even suggest
that Mr. Mermelstein had anything to do with whether his cli-
ent returned the planes or engines in a timely way. Mr. Mer-
melstein was an associate,6 and Mr. Herman was the partner
who communicated with the client. The court's stated reason
for sanctioning Mr. Mermelstein was that the "bad faith argu-
ments former defense counsel raised during the hearing" were
"clearly frivolous." As a matter of law, using the word "im-
possible," in conjunction with an explanation of what he
meant by "impossible" (a high degree of commercial imprac-
ticality) could not furnish a proper basis for a sanction. A law-
yer has a duty to represent his client "zealously " and is
permitted and obligated to make such arguments for his client
as are arguable.7
Mr. Mermelstein's argument may have been unpersuasive
or meritless, but it was not frivolous. As Mr. Mermelstein
explained it, when one of the three planes containing parts
belonging to Pacific Harbor landed in Fort Lauderdale, it was
seized by another creditor before Pacific Harbor's parts could
be removed. Mr. Mermelstein argued that Carnival could not
comply with the order requiring Pacific Harbor's parts to be
returned to Fort Lauderdale if other creditors seized the other
two planes, as it did the first. The judge took issue with this
argument because Pacific Harbor did not attempt to bring the
planes to Fort Lauderdale and instead assumed that the other
creditor would seize the second and third planes as it did the
first. Until the planes were actually seized, the judge sug-
gested that compliance with the order was not yet impossible.
The judge was technically correct, but it was not frivolous for
Mr. Mermelstein to argue that Carnival correctly assumed that
the second and third planes would be seized just as the first
had. Instead of surrendering the planes to this almost certain
seizure, Carnival negotiated with both Pacific Harbor and its
other creditor to permit Pacific Harbor's parts to be removed
from the planes of the other creditors. While perhaps mis-
guided, because a party generally must obey a court order
despite impracticality, the argument was not frivolous.
Under its inherent powers, a court is justified in imposing
sanctions for "the attorney's willful abuse of the judicial
process, bad faith conduct during litigation, or filing
frivolous papers."8 "A finding of bad faith is warranted where
an attorney `knowingly or recklessly raises a frivolous argu-
ment . . . .' "9 The order stated, regarding Mr. Mermelstein,
that "my sanction order was primarily premised upon the bad
faith arguments former defense counsel raised during the
hearing." A trial judge needs the power and discretion to use
sanctions to punish and deter frivolous arguments that take up
considerable time for the court and cause significant expense
to adversaries.10 But this argument was neither frivolous nor
responsible for any cost or delay to anyone.11 It was a permis-
sible attempt to cushion the client against the full brunt of the
judge's expected anger when he learned that the client had
still not complied with the court order. Mr. Mermelstein was
performing the function we need lawyers to perform--making
sure the courts do not overlook facts or law in favor of their
clients. Courts need lawyers to do this and should not deter
the advocacy they need. A dose of pro se litigation quickly
reminds any judge of how much courts need lawyers to help
us avoid error. Lawyers should not be afraid to offer excuses
for their clients, or pressured to throw their clients to the
wolves. I have read the transcript many times, and all I can
get out of it is that the judge was so angry at the client's non-
compliance with his order that he punished the lawyer who
told him about it and who tried to offer an excuse for it. That
is an abuse of discretion./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[53]: rmove: not found
_______________________________________________________________
FOOTNOTES
1 Pursuant to Appellant's motion, the panel unanimously finds this case
suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 The Honorable Nora Manella, District Judge for the Central District of
California, sitting by designation.
3 During the July 16 hearing, Judge Marsh reviewed the draft transcript
from the July 11 TRO hearing with the parties and made corrections,
including replacing the word "expect" with "direct." The corrected sen-
tence read, "I will direct that [the] TRO is now in [e]ffect." This statement
was followed by the statement, "And the bond will be replaced Monday
morning." Judge Marsh recalled what he had said at the prior hearing and
corrected typing errors in the transcript only five days later. Given the
context and the use of the present verb tense, only the corrected sentence
made sense. Defendant's attorney had just asked permission to post the
bond and to replace it with a bond for a lesser amount on the following
Monday. Because both defendant's attorney and Judge Marsh discussed
replacing the bond on Monday, the logical conclusion was that the Judge
had directed the TRO to be in effect immediately, not that he expected it
to be in effect at some later date. This is the only language consistent with
Judge Marsh's other statements.
4 On Monday, July 14, Carnival did not fly the plane directly to Fort
granted him permission to do so and replace it with the $250,000 bond
Monday. If, as Herman asserted, the bond were not to be placed until
Monday, the TRO would not have been in effect, and his client's use of
the plane over the weekend would have been perfectly legal and not in the
least "risky."
6 As the court put it: "All right. Now Mr. Herman . . . . We are having
a little credibility problem here."7 Carnival was also in default on lease payments to Babcock & Brown,
which owned the two planes to which Pacific Harbor's engines were
attached. Mermelstein's "impossibility" argument amounted to a claim
that had Carnival flown the planes to Ft. Lauderdale, as ordered by the
court, they might have been seized by Babcock & Brown before the
engines could be removed. Mermelstein offered no evidence that Carnival
had been "thwarted" in its attempts to comply with the TRO. The uncon-
tradicted evidence was that Carnival had made no attempt to comply.
8 The court's statement that Mermelstein could "stay out of custody"
only on condition that he advise the Marshal of his whereabouts over the
weekend, and his threat to jail Mermelstein should his client not comply
with the court order, appear to have exceeded the court's power. Although
it is unclear whether the court would have made good on its threat to jail
counsel had his client not complied, conditioning a lawyer's freedom on
his client's compliance with a court order is improper. Accordingly, we
vacate that portion of the court's order.
9 No statement from Mr. Herman informing the court that he was having
difficulty hearing appears in the transcript from the July 11 TRO hearing.
10 Both appellants and appellees assume, without discussion, that the
court order barred appellants and members of their firm from appearing
in any district court in Oregon. While the transcript of the hearing supports
such an interpretation, the wording of the June 1997 order and the July
1998 order following appellants' motion for reconsideration does not. The
original June 22, 1997 order reads as follows:
[A]ttorneys Jeffrey Herman and Stuart Mermelstein and their law
firm Herman & Grubman are permanently and prospectively
barred from appearing before this court pro hac vice. Further,
said defense counsel must attach a copy of this order to any
future pro hac vice applications submitted in the District of Ore-
gon.
If the first sentence is read to bar appellants and members of their firm
from appearing in any district court in Oregon, the second sentence
becomes nonsensical. No attorney "permanently and prospectively barred
from appearing" in the District of Oregon would have occasion to submit
"any future pro hac vice applications " in that district.
The July 1998 order does not compel a different interpretation. After
finding his earlier order overbroad, Judge Marsh concluded:
Thus, my prior order is modified to bar only Jeffrey Herman and
Stuart Mermelstein from appearing before this court pro hac vice.
Other members of the firm may petition for pro hac vice admis-
sion, but must attach copies of this and my July, 1997 order to
any such application.
We interpret the term "this court" to refer to Judge Marsh's court, and the
judge's order to bar appellants Herman and Mermelstein from applying for
pro hac vice admission in cases before him, and requiring members of
their firm who do so to submit copies of the court order to bring to the
court's attention their membership in appellants' law firm.
11 "The usual method for resolving factual issues under S 1927 is by affi-
davit, North American Foreign Trading Corp. v. Zale Corp., 83 F.R.D.
293, 298 (S.D.N.Y. 1979). That would appear to be a perfectly adequate
mechanism in many instances for providing counsel with an opportunity
to be heard where the judge has effectively witnessed the offenses." Greg-
ory P. Joseph, Sanctions: The Federal Law of Litigation Abuse, p. 416-417
(2d ed. 1994).
12 The principal fact issue inS 1927 cases -- the state of mind of the
offender -- may perhaps best be described as a mixed question of law and
fact. It is one which "is informed by the district court's intimate familiarity
with the case, parties, and counsel, a familiarity[that an appellate court]
cannot have. Such a determination deserves substantial deference from a
reviewing court." O'Connell v. Champion Int'l Corp., 812 F.2d 393, 395
(8th Cir. 1987).
13 We do not find Judge Marsh's sanctions to have been based on Mer-
melstein's client's non-compliance, but on Mermelstein's misrepresenta-
tions to the court, made in an effort to justify his client's continuing
violation of the court order. Moreover, Mermelstein was no neophyte; he
had been practicing law since 1986. Judge Marsh questioned Mermelstein
concerning his eleven years of practice and was able to consider his legal
experience when evaluating Mermelstein's conduct before the court.
14 As noted above, the original July 1997 order barred Herman, Mermel-
stein, and members of their law firm from appearing before the court pro
hac vice. The modified June 1998 order merely barred Herman and Mer-
melstein from appearing before Judge Marsh and required other members
of the firm who applied for such admission to attach a copy of the sanction
order.
1 Primus Auto. Fin. Servs. v. Batarse, 115 F.3d 644 (9th Cir. 1997)(quot-
ing Martin v. Brown, 63 F.3d 1252, (3d Cir. 1995)).
2 See Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1198 (9th Cir.
1999) (stating that sanctions under the court's inherent power are justified
for "the attorney's wilful abuse of the judicial process, bad faith conduct
during litigation, or filing frivolous papers").
3 See In re Keegan Management Co., Sec. Litig., 78 F.3d 431, 436 (9th
Cir. 1996) (stating that a finding of bad faith requires knowing or reckless
conduct by an attorney); see also Mark Indus. Ltd. v. Sea Captains's
Choice, Inc., 50 F.3d 730, 732 (9th Cir. 1995) (stating that a clearly erro-
neous assessment of the evidence is an abuse of discretion).
4 The majority points out that the Judge corrected the draft transcript a
few days later, replacing "expect" with "direct." This cuts both ways. If
the court reporter honestly heard and transcribed it wrong, Herman should
not be sanctioned for making the same mistake as the court reporter. It is
also possible that the court reporter got it right and the judge misspoke,
as we all do sometimes.
5 The majority explains that if Herman believed that the bond was not
in effect until Monday, there would have been no risk to Carnival in flying
the planes over the weekend. They reason that because Herman acknowl-
edged some risk he must have known that the TRO was currently in effect.
But this is not a fair reading of the situation. An action that is "perfectly
legal" may still be "risky," particularly when the custody of an item worth
hundreds of thousands or even millions of dollars is in question. It is
entirely consistent with the record that Mr. Herman thought the order
would go into effect when the bond in the proper amount was approved
Monday, but that he might be mistaken or the court might regard it as
already in effect.
6 While Mr. Mermelstein was no "neophyte" it is still important to note
that he was not the lead attorney on the case and was merely an associate
at Mr. Herman's law firm.
7 See Or. Code of Prof. Resp., DR 7-101(A)(1), Representing a Client
Zealously ("A lawyer shall not intentionally: Fail to seek the lawful objec-
tives of the lawyer's client through reasonably available means permitted
by the law and these disciplinary rules . . . ."); DR 7-102(A)(2), Represent-
ing a Client Within the Bounds of the Law ("In the lawyer's representation
of a client . . . a lawyer shall not: . . . Knowingly advance a claim or
defense that is unwarranted under the law . . . .").
8 Weissman, 179 F.3d at 1198.
9 Primus Automotive Finan. Servs. v. Batarse, 115 F.3d 644 (9th Cir.
1997) (quoting In re Keegan Management, 78 F.3d at 436).
10 See id. at 648.
11 The majority cites United States v. Associated Convalescent Enters.,
Inc., 766 F.2d 1342 (9th Cir. 1985) and Wages v. Internal Revenue Serv.,
915 F.2d 1230 (9th Cir. 1989), in support of 28 U.S.C. S 1927 sanctions,
but they are not on point. In Associated Convalescent we held that sanc-
tions were not appropriate. See 766 F.2d at 1347. In Wages, we affirmed
sanctions because the sanctioned person repeatedly filed new papers in
bad faith after the court had ruled and made it clear that the ruling would
stay the same, as contrasted with Mr. Mermelstein's simple oral response
to the judge's request for a status report. See 915 F.2d at 1233. The statute
says that section 1927 sanctions are for one who "multiplies" the proceed-
ings. 28 U.S.C. S 1927. The judge scheduled the hearing at which Mr.
Mermelstein spoke regardless of any assurances of compliance with the
TRO and what Mr. Mermelstein said was immediately rejected with no
hearings or papers, so proceedings were not multiplied.
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