Glass v. Pfeffer

• Decision Date: 13 June 1988
• Docket Number: No. 85-2823,85-2823
• Citation: 849 F.2d 1261
• Parties: George A. GLASS, Jr. and Nona Glass, Plaintiffs, and Phelps-Chartered, Appellant, v. Ron PFEFFER, Walt Mosby, Joe Iarossi, Robert Robinson, Ray Vines, Jim Weckwerth, and James Gilchrist, Defendants, and Dean Forster, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1261

849 F.2d 1261

George A. GLASS, Jr. and Nona Glass, Plaintiffs, and Phelps-Chartered, Appellant, v. Ron PFEFFER, Walt Mosby, Joe Iarossi, Robert Robinson, Ray

Vines, Jim Weckwerth, and James Gilchrist, Defendants,

and

Dean Forster, Defendant-Appellee.

No. 85-2823.

United States Court of Appeals, Tenth Circuit.

June 13, 1988.

Margie J. Phelps of Phelps-Chartered, Topeka, Kan., for appellant Phelps-Chartered.

William E. Enright of Scott, Quinlan & Hecht, Topeka, Kan., for defendant-appellee Dean Forster.

Before LOGAN, McWILLIAMS and TIMBERS, ^* Circuit Judges.

LOGAN, Circuit Judge.

In an earlier appeal in this case, this court affirmed a judgment dismissing a civil rights action brought by plaintiffs Glass against defendant police officers. Glass v. Pfeffer, 657 F.2d 252 (10th Cir.1981) (Glass I ). Before that appeal was taken, the district court ordered plaintiffs and the law firm (Fred W. Phelps-Chartered) of their counsel, Fred W. Phelps, Jr., to pay $1400 in attorney's fees which one defendant, Dean Forster, incurred after his deposition was taken by plaintiffs. The district court ruled that Forster's deposition clearly demonstrated that he was not present at the time of the mistaken arrest that formed the basis of plaintiffs' complaint. The court found no excuse for plaintiffs' failure voluntarily to dismiss Forster from the action after taking that deposition.

In Glass I we held that the district court applied the proper test in awarding attorney's fees to defendant Forster. We said that Forster "was not involved in the incident giving rise to this arrest. Plaintiffs' claims of a conspiracy involving Forester [sic] are clearly without basis in fact." Id. at 257. However, we reversed the award against plaintiffs' counsel because the district court based its holding on 28 U.S.C. Sec. 1927, and a Supreme Court opinion issued soon after the district court's order held that the version of Sec. 1927 then in effect did not contemplate attorney's fees as a part of such costs. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). Yet we affirmed the district court's inherent power to award for attorney's fees against the law firm, and we remanded the case with the express statement that the district court "may assess attorneys' fees against plaintiffs' counsel personally, if it gives him the requisite notice and hearing and finds the requirements set forth in Roadway are met in this case." Glass I, 657 F.2d at 258.

On remand, then, the sole issue became whether attorney's fees should be assessed against plaintiffs' counsel. The court's hearings on this issue nevertheless mushroomed into a major trial about counsel's good faith and the legal propriety of leaving Forster a defendant in the case after the deposition. Phelps-Chartered called many witnesses, and filed numerous motions and other documents resulting in several rulings by the district court. Ultimately the court held the Phelps-Chartered firm responsible for Forster's attorney's fees in the amount of $7734.34, including the $1400.00 originally assessed.

As all other issues were resolved in Glass I, the instant appeal addresses only the propriety of the attorney's fee award and its amount. In essence, Phelps-Chartered raises four issues relating to the award: (1) whether any attorney's fee award was justified against plaintiffs' attorneys; (2) whether the amount awarded is sustainable; (3) whether the award was proper against Phelps-Chartered rather than Fred W. Phelps, Jr. or Fred W. Phelps-Chartered; and (4) whether the district judge should have recused himself.

I

This court's opinion in Glass I comprised the law of the case for the district court on remand. We found that the award of attorney's fees in favor of Forster was justified under the district court's inherent power, Glass I, 657 F.2d at 257-58, the only infirmity being in the notice and opportunity for hearing before making the award. Id. Thus, the sole issue on remand should have been whether fees were properly placed upon the attorney rather than upon plaintiffs alone. Normally such a hearing would address whether the attorney had a reasonable excuse or some explanation that would convince the court that the client or another person should be held responsible for the actions subject to sanction. Instead, the attorneys here attacked the court's findings of bad faith and abuse of process which underlay the award, arguing strenuously that Forster was properly retained in the case after they discovered that he was not present at the arrest. In particular, they argued that Forster was a proper defendant under 42 U.S.C. Sec. 1985(2) for conspiracy to interfere with access to or testimony in federal court.

We find that the district court properly rejected plaintiff's Sec. 1985(2) claim on both procedural and substantive grounds. Procedurally, we are satisfied that plaintiffs' lawsuit, against which the district court granted summary judgment, did not include a Sec. 1985(2) claim. Plaintiffs' complaint alleged no claim under Sec. 1985(2); it referred solely to 42 U.S.C. Secs. 1981, 1983 and 1985(3), I R. tab 1 at 3. Later proceedings before the district court's grant of summary judgment show that plaintiffs viewed their case against Forster solely as a Sec. 1985(3) conspiracy to deprive plaintiffs of "equal protection of the laws." Nowhere in these proceedings did plaintiffs state that their theory involved a Sec. 1985(2) conspiracy to interfere with federal court proceedings. See Response to Motion for Summary Judgment of the Defendant Forster, I R. tab 41 at 2 (claiming Sec. 1985(3) violation); VII R. at 36-37 (argument by plaintiffs' attorney that Forster was part of general conspiracy; Sec. 1985(2) or interference with federal courts not mentioned). Plaintiffs acted at their peril by not presenting their Sec. 1985(2) legal theory to the district court. See Denis v. Liberty Mutual Insurance Co., 791 F.2d 846, 848-49 (11th Cir.1986) ("Failure to raise [a] ... theory of relief in the first instance to the trial court generally is fatal"); see also Gilbert v. Medical Economics Co., 665 F.2d 305, 310 (10th Cir.1981). By failing to raise a Sec. 1985(2) legal theory before the district court, plaintiffs foreclosed themselves from arguing that theory on appeal or on remand, and plaintiffs' counsel cannot now rely on this theory to justify the actions before the district court.

Further, even ignoring the failure to present a Sec. 1985(2) claim to the district court, we hold that such a theory, on the facts alleged, was sufficiently lacking in substance that the court was justified in imposing the sanctions awarded here. Section 1985(2) consists of four clauses, each creating a distinct cause of action. This court has parsed the first clause, upon which plaintiffs base their claim, as follows: "If two or more persons conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, ...." Wright v. No Skiter, Inc., 774 F.2d 422, 425 (10th Cir.1985) (quoting Kimble v. D.J. McDuffy, 623 F.2d 1060, 1064 (5th Cir.1980), modified on other grounds, Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (5th Cir.1981) (en banc)), cert. denied, 454 U.S. 1110, 102 S.Ct. 687, 70 L.Ed.2d 651 (1981). ¹

In essence, plaintiff George Glass alleges that Forster visited with him shortly after police mistakenly entered his home and arrested him and that Forster conspired with other defendants in the case by drawing up a report falsely describing what George Glass said. Even if we accept plaintiffs' allegation that Forster lied in his report as part of a conspiracy, plaintiffs nonetheless fail to allege that these actions in any way intimidated or deterred them from subsequently pursuing this action in federal court. Absent the element of intimidation or deterrence, plaintiffs suffered no injury under Sec. 1985(2), and thus did not state a colorable Sec. 1985(2) claim. See Brown v. Chaffee, 612 F.2d 497, 502 (10th Cir.1979) (rejecting witness intimidation claim under Sec. 1985(2) because conspiracy was not one "directly affecting, in the context of this case, the act of testifying as a witness"); McLean v. International Harvester Co., 817 F.2d 1214, 1218 (5th Cir.1987) (following Brown ); Chahal v. Paine Webber, Inc., 725 F.2d 20, 23 (2d Cir.1984) (setting forth elements of witness intimidation claim under Sec. 1985(2); alleged conspiracy to intimidate or deter must cause injury to plaintiff); Malley-Duff & Associates, Inc. v. Crown Life Insurance Co., 792 F.2d 341, 355-56 (3d Cir.1986) (following Chahal ), aff'd sub nom. Agency Holding Corp. v. Malley-Duff & Associates, Inc., --- U.S. ----, 107 S.Ct. 2759, 93 L.Ed.2d 573 (1987); Miller v. Glen & Helen Aircraft, Inc., 777 F.2d 496, 498 (9th Cir.1985) (same). ²

We therefore affirm the district court's initial award of attorney's fees on remand. Further, we reject the contention that the district court failed to find subjective bad faith or its equivalent. The court, with ample support from the record, found that "plaintiffs' counsel willfully continued to advance groundless and patently frivolous litigation against defendant Forster," II R. tab 193 at 9, and that such conduct was "tantamount to bad faith." Such a finding is not clearly erroneous, Sterling Energy, Ltd. v. Friendly National Bank, 744 F.2d 1433, 1435-36 (10th Cir.1984), and describes conduct sufficiently grave to be sanctioned under the court's inherent power to control attorney conduct. Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980); see also Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir.1987) (en banc) ("Subjective good faith ought not to be an infinitely expansive safe harbor to protect an attorney who brings an action that a competent attorney could not under any conceivable...