Eisenberg v. University of New Mexico
| Decision Date | 25 June 1991 |
| Docket Number | No. 90-2056,90-2056 |
| Citation | 936 F.2d 1131 |
| Parties | , 33 Fed. R. Evid. Serv. 330 David EISENBERG, Plaintiff, v. UNIVERSITY OF NEW MEXICO; Ken Johns; Jerry Apodaca; Frank Borman, Col.; George J. Maloof; Robert L. Sanchez; John D. Paez, Dr.; Gerald May; Phillip M. Alarid, Defendants, and Siegried Hecker, Dr., Defendant-Appellee, Jocelyn M. Torres, Attorney-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ray Twohig, Albuquerque, N.M., for plaintiff-appellant.
Lynn Isaacson and James J. Mason, of Mason, Rosebrough & Isaacson, Gallup, N.M., for defendants-appellees.
Before McKAY, SETH and SEYMOUR, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
Appellant Jocelyn Torres appeals the district court's memorandum opinion and order of February 28, 1990, finding her in violation of Fed.R.Civ.P. 11 1 and imposing a fine of $250.00 to be paid to the clerk of the district court. "[A]n appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court's Rule 11 determination." Cooter & Gell v. Hartmarx Corp., --- U.S. ----, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990); see also Hughes v. City of Fort Collins, 926 F.2d 986, 988 (10th Cir.1991).
Ms. Torres, the attorney representing the plaintiff in the underlying case, filed a motion for new trial following a jury verdict against her client. In her motion, she alleged that Judge Edwin L. Mechem's law clerk had engaged in prejudicial ex parte conduct in regard to sending requested exhibits to the jury during deliberations. Ms. Torres attached her own affidavit to the motion, further alleging that during jury instruction discussions between respective counsel and the law clerk in the judge's conference room, this same law clerk indicated that she was being represented by a member of defense counsel's law firm. The motion for new trial was denied, and no appeal was taken. Judge Mechem subsequently issued an order to show cause as to why Ms. Torres should not be sanctioned under Rule 11 for failure to conduct an adequate inquiry into the truth and accuracy of her statement regarding the law clerk's involvement with defense counsel's law firm. After issuing the order, Judge Mechem recused himself from the show cause proceedings, and Judge James Parker was assigned to hear the case.
Prior to the show cause hearing, counsel for Ms. Torres sent a letter to Judge Parker requesting the court to consider conducting a settlement conference. Attached to this correspondence was a second affidavit signed by Ms. Torres in which she not only set forth the circumstances of the first remarks by the law clerk, but further alleged that during a court recess, the law clerk had made a second remark to the effect that she was being represented by a member of defense counsel's law firm.
At a hearing on January 26, 1990, Judge Parker heard testimony from Ms. Torres, the law clerk, both defense counsel, the court reporter, and Ms. Torres' attorney. He subsequently issued a decision finding no violation of Rule 11 as to the first affidavit. However, following this decision, Judge Parker issued a second show cause order regarding the allegation in the second affidavit. Ms. Torres submitted a written response to this second show cause order attaching affidavits of the plaintiff, plaintiff's wife, and several of plaintiff's friends with whom plaintiff allegedly discussed this remark.
Without conducting a second hearing, Judge Parker concluded that no such statement had been made by the law clerk, and, because Ms. Torres failed to make adequate inquiry into the factual accuracy of the statement, her actions were sanctionable pursuant to Rule 11. Judge Parker ordered a fine in the amount of $250.00 to be paid to the clerk of the court. Ms. Torres challenges this sanction on the grounds that (1) the offending affidavit was not formally filed with the court and is therefore outside the scope of Rule 11, (2) the offending affidavit was part of settlement negotiations and therefore excluded from consideration for Rule 11 sanctions under Fed.R.Evid. 408, (3) Ms. Torres was denied due process when a second hearing was not conducted prior to imposition of sanctions, and (4) because the court imposed a fine as a punitive sanction, Ms. Torres should have been afforded the due process mandated for criminal contempt proceedings in Fed.R.Crim.P. 42(b). We affirm.
Initially, Ms. Torres argues that because the offending affidavit was not formally filed, it should be precluded from consideration under the scope of Rule 11. In the dissent to a recent decision of the Supreme Court, Justice Kennedy questioned the majority's inclusion of an affidavit, submitted to the court for in camera review, among the " 'pleadings, motions, or other papers' " scope of Rule 11. Business Guides, Inc. v. Chromatic Communications Enters., Inc., --- U.S. ----, 111 S.Ct. 922, 939, 112 L.Ed.2d 1140 (1991). However, it was just such an affidavit, signed by a represented litigant and submitted to the court for its consideration, that was the subject of this Supreme Court majority decision. "[T]he meaning of the Rule seems plain: a party who signs a pleading or other paper without first conducting a reasonable inquiry shall be sanctioned." Id. 111 S.Ct. at 928 (emphasis added). Although Ms. Torres' affidavit was not formally "filed" in the court file, it was nonetheless submitted with the intention that the court, as factfinder, rely upon the truth and accuracy of the statements contained therein. Consideration of papers outside the pleadings is not inappropriate when determining the existence of a Rule 11 violation. See Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 596 n. 10 (7th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990).
The focus of Rule 11 is narrow. It relates to the time of signing of a document and imposes an affirmative duty on each attorney and each party, represented or pro se, to conduct a reasonable inquiry into the validity and accuracy of a document before it is signed. Business Guides, Inc., 111 S.Ct. at 930-31. "A signature sends a message to the district court that this document is to be taken seriously." Id. at 930. Thus, we conclude that Ms. Torres' affidavit was a signed, certified document, submitted to the court, and within the scope of "other papers" appropriate for consideration under Rule 11.
We next address the question of whether the affidavit, submitted to the court in support of a request for a settlement conference, should be excluded from Rule 11 consideration pursuant to Fed.R.Evid. 408. 2 We will not disturb the district court's decision to consider evidence unless there is indication of "manifest error." See Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 561 F.2d 1365, 1372 (10th Cir.1977), cert. dismissed, 434 U.S. 1052, 98 S.Ct. 905, 54 L.Ed.2d 805 (1978).
The rule sets forth some limitations upon its applicability. The purpose of the rule is to promote nonjudicial settlement of disputes. "[T]he Committee recast the Rule so that admissions of liability or opinions given during compromise negotiations continue inadmissible, but evidence of unqualified factual assertions is admissible." Fed.R.Evid. 408 notes of committee on the judiciary, House Report No. 93-650; see also Bradbury v. Phillips Petroleum Co., 815 F.2d 1356, 1363 (10th Cir.1987).
Ms. Torres offered the affidavit to the court, as factfinder, in support of her allegations of impropriety on the part of the law clerk. She cannot do this with the intent that the court rely on the truth and accuracy of her factual assertion and then, when taken to task, claim that the court's reliance was prejudicial. We conclude that Ms. Torres waived any claim to Rule 408 protection by her own submission of the affidavit to the court. In addition, we hold that Ms. Torres' affidavit falls under the exception set forth in Rule 408 for "evidence offered for another purpose" and, as such, is completely admissible for purposes of determining a Rule 11 violation.
The advisory committee's note to Rule 11 states that a court's decision to impose Rule 11 sanctions "obviously must comport with due process requirements." Ms. Torres argues that the district court's failure to conduct a second hearing denied her due process. "Due process is a flexible concept, and the particular procedural protections vary, depending upon all the circumstances." Braley v. Campbell, 832 F.2d 1504, 1514 (10th Cir.1987) (citations omitted). A party facing possible imposition of sanctions has a "due process right to 'notice that such sanctions are being considered by the court and a subsequent opportunity to respond.' " White v. General Motors Corp., 908 F.2d 675, 686 (10th Cir.1990) (quoting Braley, 832 F.2d at 1514). The Ninth Circuit stated the reasons for these procedural protections as:
(1) the attorneys will have an opportunity to prepare a defense and to explain their questionable conduct at a hearing; (2) the judge will have time to consider the severity and propriety of the proposed sanction in light of the attorneys' explanation for their conduct; and (3) the facts supporting the sanction will appear in the record, facilitating appellate review.
Miranda v. Southern Pac. Transp. Co., 710 F.2d 516, 522-23 (9th Cir.1983).
An attorney who files court papers, without adequate inquiry into the factual basis of the statements contained therein, cannot claim lack of notice "of the standards of conduct that the rule itself provides." Donaldson v. Clark, 819 F.2d 1551, 1560 (11th Cir.1987). We recognize that, at the time of submission of the offending affidavit, Ms. Torres had stepped...
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