Pan-Pacific and Low Ball Cable Television Company v. Pacific Union Company, a Corporation Tower House Associates John H. Beatty

Pan-Pacific and Low Ball Cable Television Company appeals from the district *596 court’s order imposing sanctions in the amount of $161,720.36, pursuant to Fed. R.Civ.P. 11. The issue of sanctions was before the district court on remand, following our reversal of the imposition of sanctions on Farrow, Schildhause & Wilson, the law firm representing Low Ball. See Pan-Pacific and Low Ball Cable Television v. Pacific Union, 919 F.2d 145 (9th Cir.1990).

I.

In remanding for further proceedings consistent with Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120 , 110 S.Ct. 456 , 107 L.Ed.2d 438 (1989), we noted that “upon remand, all the proper parties will be before the district court, should it wish to impose Rule 11 sanctions against someone other than the law firm.” Pan-Pacific, mem. disp. at 3. Low Ball now attacks the district court’s power to sanction it.

Low Ball argues that the district court’s initial decision to sanction the law firm divested that court of the power to sanction Low Ball on remand. Low Ball insists that the district court implicitly exonerated it by imposing sanctions only on the law firm, and that Pacific Union’s failure to appeal the implicit…

dissenting.

My dissent is occasioned by the timing of Pacific Union Company’s motion for sanctions. It is apparent that Pacific Union brought one motion to impose sane- *598 tions, and did so after it had obtained a judgment against Pan-Pacific and Low Ball Television Company. In that motion, Pacific Union argued convincingly that the Pan-Pacific suit was frivolous. It was awarded the total amount of the fees that had theretofore been incurred.

I believe this procedure is not authorized by Rule 11. The Rule directs that all papers be signed and the signature shall constitute a certification by the signer that, among other things, the paper is not filed for an improper purpose. If this requirement is not met, the court may impose an appropriate sanction.

Here, the court misused the power given it by Rule 11. It improperly reassessed the performance of opposing counsel and the overall merits of his client’s lawsuit at the time the case was over. The Rule does not ordinarily permit the parties to wait until the lawsuit is over, and then for the first time to seek to shift the cost of the lawsuit to the losing party by characterizing his client’s claim as frivolous. The proper…

987 F.2d 594 25 Fed.R.Serv.3d 461 PAN-PACIFIC AND LOW BALL CABLE TELEVISION COMPANY, Plaintiff-Appellant, v. PACIFIC UNION COMPANY, a corporation; Tower House Associates; John H. Beatty, Defendants-Appellees. No. 91-16764. United States Court of Appeals, Ninth Circuit. Submitted Feb. 4, 1993 * . Decided March 3, 1993. Jack Leavitt, Hayward, CA, for plaintiff-appellant. John L. Cooper, Ann G. Daniels, Farella, Braun & Martel, San Francisco, CA, for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before: FARRIS, POOLE, and WIGGINS, Circuit Judges. PER CURIAM: 1 Pan-Pacific and Low Ball Cable Television Company appeals from the district court's order imposing sanctions in the amount of $161,720.36, pursuant to Fed.R.Civ.P. 11. The issue of sanctions was before the district court on remand, following our reversal of the imposition of sanctions on Farrow, Schildhause & Wilson, the law firm representing Low Ball. See Pan-Pacific and Low Ball Cable Television v. Pacific Union, 919 F.2d 145 (9th Cir.1990). I. 2 In remanding for further proceedings consistent with Pavelic & LeFlore v. Marvel Entertainment Group, 493…