Johnson v. Suthers
| Decision Date | 02 July 2012 |
| Docket Number | Civil Case No. 12-cv-00096-REB-MJW |
| Parties | ROBERT WAYNE JOHNSON, Plaintiff, v. JOHN SUTHERS, Attorney General of Colorado, individually and in his official capacity; JOHN HICKENLOOPER, Governor of Colorado, individually and in his official capacity; BILL RITTER, former Governor of Colorado, individually and in his official capacity; REGGIE BICHA, Executive Director, Colorado, Department of Human Services, individually and in his official capacity; KAREN BEYE, former Executive Director, Colorado, Department of Human Services, individually and in her official capacity; MARY ANN HICKS, Administrative Program Specialist, Colorado Division of Child Support Enforcement, individually; MARDI HOUSTON, Evaluation Specialist, Colorado Division of Child Support, individually; BOARD OF COUNTY COMMISSIONERS, EL PASO COUNTY, in their official capacities; BILL LOUIS, County Attorney of El Paso County, Colorado, individually and in his official capacity; RICHARD BENGTSSON, Director, El Paso County Department of Human Services, individually and in his official capacity; TONI HERMAN, El Paso County Department of Human Services, individually; LAURA DAVIDSON, former employee of Policy Studies, Inc., individually; CLAUDIA SMITH-SWAIN, former employee of Policy Studies, Inc., individually; JONICA BRUNNER, former employee of Policy Studies, Inc. and current employee of Young Williams, P.C., individually; MELISSA BALQUIN, former employee of Policy Studies, Inc. and current employee of Young Williams, P.C., individually; POLICY STUDIES, INC.; JEFF BALL, current employee of Young Williams, P.C., individually; and YOUNG WILLIAMS, P.C., Defendants. |
| Court | U.S. District Court — District of Colorado |
The matters before me are (1) the plaintiff's Motion for Sanctions Against Counsel for PSI Defendants [#71] filed May 23, 2012; and (2) the plaintiff's Motion To Disqualify United States Magistrate Judge Michael J. Watanabe and Strike Recommendation (ECF No. 66) [#76] filed June 5, 2012. The PSI defendants filed responses [#82 & #84] to both motions, and the plaintiff filed replies [#87 & #88]. I deny both motions.
In his motion for sanctions [#71], the plaintiff, Robert Wayne Johnson, seeks sanctions under FED. R. CIV. P. 11 against counsel for the defendants associated with defendant Policy Studies, Inc. (PSI). The plaintiff seeks sanctions "for misrepresentations made to the court for improper purposes and in violation of his procedural and substantive rights to due process and equal protection of the laws." Motion [#71], p. 2. In his motion Mr. Johnson contends the PSI defendants improperly sought a 60 day extension of time to respond to the complaint. He claims defendant Claudia Smith-Swain attempted to evade service of process and, apparently, concludesthat this is a basis for Rule 11 sanctions against counsel for the PSI defendants. Finally, Mr. Johnson seeks Rule 11 sanctions based on the fact that counsel for the PSI defendants submitted proposed orders with their motion to dismiss [#34] and an associated motion. Mr. Johnson claims these proposed orders were submitted with the corrupt purpose of attempting to persuade a magistrate judge improperly to issue a final ruling on a motion to dismiss.
FED. R. CIV. P. 11(b)(1) - (3). A finding of bad faith is not necessary to find a violation of the rule. Colorado Chiropractic Counsel v. Porter Memorial Hospital, 650 F.Supp. 231, 237 (D. Colo. 1986). The applicable standard is one of objective reasonableness; thus, counsel's subjective good faith belief in the soundness of his position is inadequate to shield him from liability. White v. General Motors Corp., 908 F.2d 675, 680 (10th Cir. 1990).
Mr. Johnson's motion for sanctions fails for both procedural and substantivereasons. Procedurally, there is no indication in the record that Mr. Johnson complied with the mandatory safe harbor provision of Rule 11(c)(2). The safe harbor provision requires a party who seeks Rule 11 sanctions to serve a copy of the motion for Rule 11 sanctions on the party accused of sanctionable behavior 21 days before the motion is filed. FED. R. CIV. P. 11(c)(2); Roth v. Green, 466 F.3d 1179, 1191 - 92 (10th Cir. 2006). Absent compliance with this requirement, a motion for Rule 11 sanctions must be denied. Id. at 1191 - 93. On this basis, Mr. Johnson's motion must be denied. In his reply, Mr. Johnson argues that he should be excused from compliance with the requirements of Rule 11(c)(2). Reply [#87], p. 6. Even if the court had the authority to excuse such compliance, Mr. Johnson's asserted bases for an excuse from such compliance are not persuasive.
Substantively, Mr. Johnson does not demonstrate in his motion an arguable basis for the imposition of sanctions. Mr. Johnson contends that the PSI defendants' motion [#10] for a 60 day extension of time to respond to the complaint was filed to create unnecessary delays, to harass Mr. Johnson, to increase the cost of litigation, and to increase the billable time for the lawyers representing the PSI defendants. He provides no factual basis for these contentions. Mr. Johnson argues also that the court unfairly granted that motion without awaiting a response. However, Mr. Johnson is not entitled to respond to every motion filed in this case. "Nothing in this rule precludes a judicial officer from ruling on a motion at any time after it is filed." D.C.COLO.LCivR 7.1.C.
Addressing the problems he encountered serving process on two of the individual defendants associated with PSI, Mr. Johnson contends that counsel for the PSI defendants made misrepresentations to the court concerning these two defendantsand the status of their legal representation. Nothing in Mr. Johnson's motion or reply provides a factual basis for his claim that counsel for the PSI defendants made sanctionable misrepresentations on this topic. Finally, Mr. Johnson argues that counsel for the PSI defendants violated Rule 11 when counsel submitted a proposed order with one or more motions to dismiss. According to Mr. Johnson, these proposed orders really were a subterfuge by which counsel sought to persuade the magistrate judge to issue a final ruling on the motions to dismiss, even though such a ruling would be beyond the authority of the magistrate judge. This contention is baseless. The submission of proposed orders, without more, cannot reasonably be seen as a sanctionable effort to entice a judge to issue rulings he does not have the authority to issue. In this case, of course, the magistrate judge has issued no such rulings.
In short, Mr. Johnson's motion for sanctions under Rule 11 must be denied because he failed to comply with the plain and mandatory requirements of Rule 11(c)(2). In addition, Mr. Johnson's motion for sanctions must be denied because he fails to demonstrate in his motion [#71] and reply [#87] any arguable basis for the imposition of Rule 11 sanctions.
In their response [#82], the PSI defendants seek an award of costs, including attorney fees, and other sanctions against Mr. Johnson, based on the fact that Mr. Johnson filed his motion for Rule 11 sanctions. I deny this request. However, Mr. Johnson is warned that the court will impose sanctions on him if he files additional motions for sanctions that lack an arguable basis.
In his motion to disqualify [#76], Mr. Johnson seeks an order disqualifying United States Magistrate Judge Michael J. Watanabe. At its inception, I referred this case toJudge Watanabe, and Judge Watanabe has handled many of the proceedings in this case. Mr. Johnson contends that Judge Watanabe must be disqualified because he forestalled pretrial activity for an improper purpose, accepted proposed orders addressing the PSI defendants' motions to dismiss, and allegedly was silent on various issues in this case.
Title 28 U.S.C. § 455 provides:
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