Earle A. Partington v. Joseph M. Gedan Howard T. Chang

914 F.2d 1349 17 Fed.R.Serv.3d 1245 Earle A. PARTINGTON, Plaintiff-Appellant, v. Joseph M. GEDAN; Howard T. Chang, Defendants-Appellees. No. 87-2375. United States Court of Appeals, Ninth Circuit. Sept. 19, 1990. Order Directing Rehearing En Banc Nov. 1, 1990. Earle A. Partington, Honolulu, Hawaii, pro se. Steven S. Michaels, Deputy Atty. Gen., Honolulu, Hawaii, for defendants-appellees. On Remand from the United States Supreme Court. Before WALLACE, REINHARDT and NOONAN, Circuit Judges. PER CURIAM: 1 This case was originally reported as Partington v. Gedan, 880 F.2d 116 (9th Cir.1989). The Supreme Court, in a summary disposition, vacated that decision and remanded for further consideration in light of Cooter & Gell v. Hartmarx Corp., --- U.S. ----, 110 S.Ct. 2447 , 110 L.Ed.2d 359 (1990) (Cooter & Gell ). See Gedan v. Partington, --- U.S. ----, 110 S.Ct. 3265 , 111 L.Ed.2d 776 (1990). In vacating our earlier decision, the Supreme Court was apparently concerned that our decision to grant Partington's motion for sanctions pursuant to Federal Rule of Civil Procedure 11 at the appellate level, see 880 F.2d at 130-31 , conflicted with the Supreme Court's holding in Cooter…

This case was originally reported as Partington v. Gedan, 880 F.2d 116 (9th Cir.1989). The Supreme Court, in a summary disposition, vacated that decision and remanded for further consideration in light of Cooter & Gell v. Hartmarx Corp., — U.S. -, 110 S.Ct. 2447 , 110 L.Ed.2d 359 (1990) (Cooter & Gell). See Gedan v. Partington, — U.S. -, 110 S.Ct. 3265 , 111 L.Ed.2d 776 (1990). In vacating our earlier decision, the Supreme Court was apparently concerned that our decision to grant Partington’s motion for sanctions pursuant to Federal Rule of Civil Procedure 11 at the appellate level, see 880 F.2d at 130-31 , conflicted' with the Supreme Court’s holding in Cooter & Gell that Rule 11 does not apply to appellate proceedings. See Cooter & Gell, 110 S.Ct. at 2461-62. Our earlier decision, however, does not create such a conflict.

In this appeal, we did not purport to sanction the appellees, Gedan and Chang, pursuant to Rule 11 alone. Rather, we imposed sanctions under our Circuit Rules which incorporated Rule 11. We were bound to do so because in three earlier cases we held that we have incorporated the Federal Rules of Civil Procedure into our Circuit Rules, 9th Cir. Rule 1-1 (old…

dissenting:

In its unyielding determination to hold Rule 11 applicable to proceedings in our court, the majority ignores the Supreme Court precedent that occasioned this remand and distorts our Circuit Rules. I share the majority’s disapproval of Gedan and Chang’s abuse of the legal process, see Partington v. Gedan, 880 F.2d 116, 148 (9th Cir.1989) (“Partington /”) (Reinhardt, J., concurring and dissenting); by the same token, however, I cannot condone my colleagues’ refusal to follow the law.

In Cooter & Gell v. Hartmarx Corp., — U.S. -, 110 S.Ct. 2447 , 110 L.Ed.2d 359 (1990), the Supreme Court unanimously held that Fed.R.Civ.P. 11 does not apply to conduct in the courts of appeals. Seventeen days after it decided Cooter & Gell, the Supreme Court vacated our prior decision in this case for reconsideration in light of that decision. Contrast Lewis v. Adamson, — U.S. -, 110 S.Ct. 3287 , 111 L.Ed.2d 795 (1990) (denying petition for writ of certiorari in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988) (en banc)). When last this case was here, the majority imposed Rule 11 sanctions on appellees Ge-dan and Chang for their frivolous request for costs and attorneys’ fees, Partington…