809 F.2d 584 (9th Cir. 1987), 84-2602, Golden Eagle Distributing Corp. v. Burroughs Corp.

Docket Nº84-2602.
Citation809 F.2d 584
Party NameGOLDEN EAGLE DISTRIBUTING CORPORATION, Plaintiff-Appellee, v. BURROUGHS CORPORATION, Defendant, and Appeal of KIRKLAND & ELLIS.
Case DateFebruary 03, 1987
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 584

809 F.2d 584 (9th Cir. 1987)

GOLDEN EAGLE DISTRIBUTING CORPORATION, Plaintiff-Appellee,

v.

BURROUGHS CORPORATION, Defendant,

and

Appeal of KIRKLAND & ELLIS.

No. 84-2602.

United States Court of Appeals, Ninth Circuit

February 3, 1987

Morrison & Foerster, James J. Brosnahan, San Francisco, Cal., for appellant.

Perez, McNabb & Cook, Jeffrey Alan Miller, Orinda, Cal., for plaintiff-appellee.

NOONAN, Circuit Judge, with whom SNEED, ANDERSON, HALL, and KOZINSKI, Circuit Judges, join dissenting from the denial of a sua sponte request for en banc hearing:

This case is not ordinary in the attention with which it has been watched by the profession. Judge Schwarzer has written a leading article on Rule 11, "Sanctions Under the New Federal Rule 11--A Closer Look," 104 F.R.D. 181 (1985). Beyond the normal respect to be accorded the actions of a district judge, acknowledgment is owed to a pioneer authority on the Rule. We should also take into account that district

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courts, more than appellate courts, are plagued by misrepresentations. We face them on occasion, but common report has it that some trial lawyers are much less scrupulous with trial judges, who do not have the staff or time an appellate tribunal has to unmask misrepresentation. When an outstanding district judge has said, "Enough. I'll deal with misrepresentation under Rule 11," this court should at least have responded to what he has actually done.

Denial of rehearing en banc does not foreclose the opportunity to point out where the opinion distorts what the district court did, to underline certain difficulties the opinion creates, and finally to point out alternative avenues that the opinion does not cut off.

I. Distortions

First. The opinion imposes upon the analysis of Judge Schwarzer a new and different framework. The term "argument-identification" is coined by the opinion and presented as what Judge Schwarzer was seeking. 801 F.2d 1531, 1539-40. A distinction is made between the merits of the case and its manner of presentation by Kirkland, Ellis. Id., p. 1539. The misrepresentations of Kirkland, Ellis are palliated because a brief could have been written without misrepresentations. Id., p. 1535. The opinion so substantially recasts the case that Judge Schwarzer's reasons and action are obscured.

The opinion is mistaken in its analysis of the action of the district court. The opinion says that the district judge sanctioned the Kirkland, Ellis brief after the judge had "looked not to the merits of the position originally taken by the plaintiff, but to the manner in which the position was advocated." Id., p. 1535. But this account does not do justice to the district judge. The district judge had in front of him a brief which did three things. The brief flatly misrepresented Minnesota law as having definitively decided the issue of forum non conveniens in a way favorable to the defendant. The brief insinuated that federal law on the same issue was definitively established the way the defendant would have liked. The brief set out California law without qualification and without mention of later authority which for purposes of the present opinion is assumed to have been "directly contrary." The court sanctioned Kirkland, Ellis for these three statements of law, each of which was not "warranted." The truth or falsity of a statement is not merely a matter of "the manner" in which a position is presented. A false statement presented as a true statement is simply a misstatement. It is not warranted. It should be sanctionable.

Second. The opinion substitutes extreme hypotheticals for the case at hand. It imagines close cases where a judge might sanction a lawyer because the judge disagrees with his argument. Id. p. 1540. But close cases exist that test the workability of any rule, civil or criminal. They are not a reason for repealing the rule. Here, on the opinion's own admission, the case was not close. Kirkland, Ellis failed to cite "directly contrary" authority.

Third. The opinion exaggerates the effect of Rule 11 as understood by Judge Schwarzer. The opinion says that according to his decision judges would have to "grade accuracy of advocacy in connection with every piece of paper filed in federal court." Id., p. 1540. His decision, the opinion says, imposes upon the district courts "the burden of evaluating under ethical standards the accuracy of all lawyers' arguments." Id., p. 1542. What the opinion does not acknowledge is that, as the sanctions of Rule 11 are mandatory, the burden already exists to "grade" or "evaluate" every piece of paper filed in federal court. Of course most of the time a judge does so only at the urging of a party; if a party does not object, a judge is not likely to be impelled to act even though Rule 11 is mandatory and the burden of evaluation is present. The difference between the opinion and Judge Schwarzer is not over how often the judge's duty to evaluate will in fact be exercised. The difference is that

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the opinion would have the judge able to evaluate only the frivolity of a paper; Judge Schwarzer would let the judge also impose sanctions for misrepresentation.

II. Difficulties

First. The opinion contradicts Rule 11. Rule 11 requires that a lawyer certify that what he files with the court is "warranted by existing law or a good faith argument for the extension, modification or reversal of existing law." In this case what Kirkland, Ellis had filed was a brief arguing for summary judgment because of the law of California, applicable under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The opinion assumes that the California cases which Kirkland, Ellis failed to cite were "directly contrary" to the argument it was making. P. 1536. But the opinion concludes that Kirkland, Ellis' failure was not a violation of Rule 11. Id., p. 1542.

How can a brief be warranted by existing law if its argument goes in the face of "directly contrary" authority from the highest court of the jurisdiction whose law is being argued? How can a brief be warranted to be "a good faith argument for the extension, modification, or reversal of existing law" when there is not the slightest indication that the brief is arguing for extension, modification or reversal?

To ask these questions is to answer them. An argument in the teeth of uncited and undistinguished contrary authority is not warranted by existing law. An argument that does not mention directly-contrary authority is not a good faith argument for its modification or reversal. The opinion contradicts the Rule. The opinion repeals the Rule's requirement that a brief be warranted by existing law or a good faith argument for the law's amendment or reversal.

The opinion puts the question as one of "argument identification," treating Kirkland, Ellis' failure as a failure to identify correctly its argument as one for extension of existing law. Id., pp. 1539-40. But Kirkland, Ellis' failure was far greater. Kirkland, Ellis made no argument at all for extending existing law. It simply misrepresented the law it cited.

Second. The opinion eliminates significant language from Rule 11. Not only does the opinion appear to exempt a whole class of legal papers from the operation of the Rule, it excises a key phrase from the Rule. The Rule requires that the lawyer certify that the pleading is "not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." The opinion restricts the Rule to a prohibition of frivolous pleadings. Id., p. 1540. Doing so the opinion uses a term--"frivolous"--not to be found in the Rule.

In its history of the Rule, the opinion treats as exhaustive what the Rule introduces with the words "such as" as merely exemplary--the purposes of harassment, delay, or needless expense. See Id., p. 1537. Obviously the Rule means to punish these improper purposes. But there would be no point to the Rule listing them by way of example if the Rule were restricted to punishing only them. The Rule mandates sanctions for any legal papers filed in federal court with any improper purpose. The opinion reads "any" out of the Rule.

The opinion fails to recognize that untruthful briefs are subject to sanctions under Rule 11. Eliminating from the Rule its condemnation of any improper purpose, the opinion treats as mere "salutary admonitions" Judge Schwarzer's requirement that a brief be, to the best of a lawyer's ability, truthful. Doing so, the opinion fails to acknowledge that to mislead the court is an improper purpose. An untruthful brief is, objectively, a brief whose purpose is to mislead the court. It is subject to sanctions under Rule 11.

A lawyer's signature on a paper filed in court is described by Rule 11 as "a certificate." What is a certificate? It is "a signed, written, or printed testimony to the truth of something." Webster's Third New International Dictionary, Meaning 1. Without focusing on the term "certificate,"

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the opinion itself appears to agree with this definition. The opinion...

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