705 F.3d 418 (9th Cir. 2012), 11-35632, Mount Hope Church v. Bash Back!

Docket Nº:11-35632.
Citation:705 F.3d 418, 84 Fed.R.Serv.3d 159
Opinion Judge:GOULD, Circuit Judge:
Party Name:MOUNT HOPE CHURCH, Plaintiff-Appellant, v. BASH BACK!, Defendant, and Dkwatt@ Riseup. net; Riseup Networks, Regarding subpoena directed to Riseup Networks, Objectors-Appellees.
Attorney:Brian W. Raum, Dale Schowengerdt (argued), Holly L. Carmichael, Alliance Defense Fund, Scottsdale, AZ, for Plaintiff-Appellant. Devin T. Theriot-Orr (argued), Gibbs Houston Pauw, Seattle, WA, for Objector-Appellee Riseup Networks. Larry Hildes (argued), Law Office of Lawrence A. Hildes, Bellingha...
Judge Panel:Before: MARY M. SCHROEDER and RONALD M. GOULD, Circuit Judges, and JED S. RAKOFF, Senior District Judge.[*]
Case Date:November 26, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 418

705 F.3d 418 (9th Cir. 2012)

84 Fed.R.Serv.3d 159

MOUNT HOPE CHURCH, Plaintiff-Appellant,

v.

BASH BACK!, Defendant,

and

Dkwatt@ Riseup. net; Riseup Networks, Regarding subpoena directed to Riseup Networks, Objectors-Appellees.

No. 11-35632.

United States Court of Appeals, Ninth Circuit.

November 26, 2012

Argued and Submitted Aug. 27, 2012.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Brian W. Raum, Dale Schowengerdt (argued), Holly L. Carmichael, Alliance Defense Fund, Scottsdale, AZ, for Plaintiff-Appellant.

Devin T. Theriot-Orr (argued), Gibbs Houston Pauw, Seattle, WA, for Objector-Appellee Riseup Networks.

Larry Hildes (argued), Law Office of Lawrence A. Hildes, Bellingham, WA, for Objector-Appellee DKWatt@ Riseup. net.

Appeal from the United States District Court for the Western District of Washington, Richard A. Jones, District Judge, Presiding. D.C. No. 2:11-cv-00536-RAJ.

Before: MARY M. SCHROEDER and RONALD M. GOULD, Circuit Judges, and JED S. RAKOFF, Senior District Judge.[*]

OPINION

GOULD, Circuit Judge:

Mount Hope Church (" Mount Hope" or " the Church" ) appeals a sanction order granting attorneys' fees and costs to Appellees Riseup Networks (" Riseup" ) and Objector dkwatt@ riseup. net (" dkwatt" ) under Federal Rule of Civil Procedure 45(c)(1). The order, which followed the quashing of a subpoena seeking identifying information for seven email account holders, found that Mount Hope did not take reasonable steps to avoid imposing an undue burden on Appellees, who were non-parties to the underlying case, when it " shifted its justification for the subpoena multiple times" and " refus[ed] to engage with the applicable [First Amendment] legal standards" in a timely manner. Because there are few published federal court decisions on the meaning of Rule 45(c)(1)'s " undue burden" language as a basis for sanctions, and to place the sanction here in a broader perspective, we write to clarify the scope of that rule. Holding that Rule 45(c)(1) cannot properly support a sanction where the cost of complying with the subpoena is minimal and there is no showing that the subpoena was facially defective or issued in bad faith, we reverse.

I

This appeal concerns satellite litigation related to an action filed in the Western District of Michigan.

A

We start with an explanation of the underlying dispute. In November 2008, a subdivision of the national anarchist group Bash Back!, which has described itself as largely composed of gay, lesbian, transgendered, bisexual, and queer activists, disrupted a Sunday church service at Mount Hope in Lansing, Michigan. During the protest, which attracted about thirty participants, one group clad in

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black clothes and pink bandanas lined up outside the Church. Another group snuck into the service. While Church security guards were occupied with the protesters outside, the protesters inside initiated action designed to disrupt services in order to highlight the protesters' cause. Some chanted phrases like, " It's OK to be gay" and " Jesus was a homo" while flinging pamphlets, glitter, and condoms into the air. Others unfurled an eighteen-foot Bash Back! banner from the balcony and two women ran to the pulpit and kissed. The record is not entirely illuminating on the explicit motivations of Bash Back! against Mount Hope Church. However, the Church promoted anti-gay beliefs, and so Bash Back! was retaliating by " bashing back" at the Church.1

Thereafter, Mount Hope brought suit in the Western District of Michigan against Bash Back!, Bash Back! Lansing, and fourteen known participants under the federal Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248 (2006), and common law trespass. Unaware of the identities of many other protest participants, the Church also named several " John Doe" defendants. Mount Hope sought an injunction to prevent Bash Back! and its members from protesting at churches in the future.

B

We next address the discovery dispute. Mount Hope contends that, during discovery in the underlying case, it made several attempts to glean the identities of the missing defendants. But all defendants apparently refused to name others present and participating at the protest. To get the information, Mount Hope obtained a subpoena duces tecum out of the Western District of Washington on February 22, 2011, seeking the names of seven anonymous e-mail account holders from Riseup, a Seattle-based online service provider.2 Because planning details for the protest were sent to those email accounts, the Church believed that the addresses belonged to missing defendants or, " at the very least, [to people who] knew who was there." 3 The subpoena's cover letter cited

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the anonymous speech decision in Doe v. 2TheMart.com Inc., 140 F.Supp.2d 1088 (W.D.Wash.2001), and stated that the subpoena was consistent with both that case and " discovery precedent throughout the Ninth Circuit."

Upon receiving the subpoena, Riseup notified the listed e-mail owners and told them that they could hire independent counsel and file a motion to quash. On March 8, 2011, Riseup's counsel sent a letter to Mount Hope objecting to the subpoena as vague, overbroad, unduly burdensome, and contrary to the First Amendment. Mount Hope responded on March 15. To answer Riseup's concern that delivering the subpoenaed information to an address in Scottsdale, Arizona, would be unduly burdensome, the Church's counsel gave a Seattle address. The Church also questioned whether Riseup had standing to raise the First Amendment rights of its users and sought to discuss the matter by phone. Riseup agreed to accept a call. The subsequent conversation did not lead to agreement of the parties, and Mount Hope filed a motion to compel discovery on March 23, 2011.

One e-mail account holder, dkwatt, as well as Riseup, opposed the motion to compel. Dkwatt also moved to quash the subpoena. The district court addressed the two motions jointly. In an order dated April 21, 2011, the district court granted the motion to quash and denied the motion to compel after finding that First Amendment balancing favored protection.4 Thus Bash Back! prevailed in the discovery dispute.

C

We come now to the sanction at issue on this appeal. After entry of the above-mentioned order, dkwatt and Riseup filed a motion for attorneys' fees and costs under Federal Rule of Civil Procedure 45(c)(1), alleging that they had suffered an undue burden in fighting the " baseless" subpoena. The district court agreed and on July 20, 2011, ordered Mount Hope to pay a total of $28,181.10 in sanctions, $10,637.10 to Riseup and $17,544.00 to dkwatt. The district court based its sanction order on three grounds: (1) that Mount Hope did not provide any non-speculative reason for the subpoena; (2) that Mount Hope shifted justification for the subpoena multiple times over the proceeding; and (3) that Mount Hope " inexplicabl[y]" failed to analyze the relevant case law in a timely fashion. The court did not find that the Church acted in bad faith and noted that the subpoena did not place a logistical burden on Riseup.

Mount Hope then sought and the court approved a supersedeas bond for $30,000, resulting in a stayed judgment. A week before the entry of the sanction order, on

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July 11, 2011, the Western District of Michigan entered a consent order in the underlying case. As part of that settlement, all of the identified defendants in the underlying lawsuit agreed to a permanent injunction preventing them from disrupting religious services anywhere in the United States. The defendants also agreed to pay Mount Hope $2,750 in damages. The federal district court in Michigan entered default judgment against the organizational defendants and closed the case.

II

We have jurisdiction to review the Washington district court's sanction order under 28 U.S.C. § 1291 because the decision to award attorneys' fees was final and followed the final judgment in the underlying lawsuit. See Gates v. Rowland, 39 F.3d 1439, 1450 (9th Cir.1994) (a fee award for costs related to the monitoring of compliance with a final consent decree is immediately appealable).5 Although an order imposing sanctions on a party during the course of an ongoing civil action is not normally an appealable order, Hill v. MacMillan/McGraw-Hill Sch. Co., 102 F.3d 422, 424 (9th Cir.1996), when the sanction order follows the final resolution on the merits and there is no ongoing adversarial proceeding, it is immediately appealable.

We review for abuse of discretion a district court's decision to award monetary sanctions for abuse of the discovery process. Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 813 (9th Cir.2003) (citing Dahl v. City of Huntington Beach, 84 F.3d 363, 367 (9th Cir.1996))...

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