Partington v. Gedan

Decision Date08 January 1991
Docket NumberNo. 87-2375,87-2375
Citation923 F.2d 686
Parties, 18 Fed.R.Serv.3d 391 Earle A. PARTINGTON, Plaintiff-Appellant, v. Joseph M. GEDAN; Howard T. Chang, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Earle A. Partington, Partington & Foley, Honolulu, Hawaii, pro se.

Steven S. Michaels, Deputy Atty. Gen., Honolulu, Hawaii, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before GOODWIN, Chief Judge, and WALLACE, HUG, SCHROEDER, POOLE, NELSON, HALL, BRUNETTI, LEAVY, FERNANDEZ, and RYMER, Circuit Judges.

PER CURIAM:

In part of our opinion in Partington v. Gedan, 880 F.2d 116(9th Cir.1989)(Partington I ), we imposed sanctions on Gedan and Chang.We did so based upon three prior cases which held that the Federal Rules of Civil Procedure, including Rule 11, were incorporated into our Circuit Rules. 9th Cir.R. 1-1(old Rule 5).1SeeIn re Mooney, 841 F.2d 1003, 1005(9th Cir.1988);Rockwell International Credit Corp. v. United States Aircraft Insurance Group, 823 F.2d 302, 304-05(9th Cir.1987);In re Curl, 803 F.2d 1004, 1007(9th Cir.1986).We therefore imposed sanctions on Gedan and Chang pursuant to Rule 11 as, in effect, part of our Circuit Rules.SeePartington I, 880 F.2d at 130 & n. 8.

The Supreme Court vacated Partington I, and remanded for further consideration in light of Cooter & Gell v. Hartmarx Corp., --- U.S. ----, 110 S.Ct. 2447, 110 L.Ed.2d 359(1990)(Cooter & Gell ).SeeGedan v. Partington, --- U.S. ----, 110 S.Ct. 3265, 111 L.Ed.2d 776(1990).On remand, we reaffirmed and adopted our earlier opinion.Partington v. Gedan, 914 F.2d 1349, 1350(9th Cir.1990)(Partington II ).We first acknowledged the Cooter & Gell holding that Rule 11 does not apply to appellate proceedings.Id. at 1349, citingCooter & Gell, 110 S.Ct. at 2461-62.We emphasized, however, that in Partington I we did not sanction Gedan and Chang on the basis of Rule 11 alone, but "only insofar as Rule 11 had been incorporated into Circuit Rule 1-1(old Circuit Rule 5)."Id. at 1350.

In imposing sanctions on Gedan and Chang, we followed our holding in In re Curl.In that case, we imposed sanctions on Curl pursuant to Rule 5's incorporation of Rule 11, for bringing an appeal that should never have been brought and for filing a frivolous brief in the court of appeals.In re Curl, 803 F.2d at 1007.Because Cooter & Gell "does not prohibit the incorporation of Rule 11 into a circuit's local rules,"we held that it did not overrule the holding of In re Curl.Partington II, 914 F.2d at 1350.As a result, the panel held it was bound to follow our precedent, and did so in reaffirming the award of sanctions against Gedan and Chang.Seeid. at 1350.

Now in our en banc capacity, we overrule In re Curl, Rockwell, and Mooney to the extent they authorize sanctions on appeal under Rule 11.The Supreme Court has recently stated that Rule 11 should not "require payment for any activities outside the context of district court proceedings."Cooter & Gell, 110 S.Ct. at 2461.We now apply this rationale and hold that Circuit Rule 1-1 cannot incorporate Rule 11 by reference.Accordingly, Rule 11 sanctions may no longer be imposed in our circuit on appeal pursuant to the In re Curl incorporation theory.

In accordance with this holding, we vacate the portion of our opinion in Partington II that reaffirms our ability to impose sanctions on appeal pursuant to the incorporation of Rule 11 into our circuit rules.We have no reason to pass on the remainder of the Partington II decision.

REVERSED AND VACATED IN PART.

*The en banc court unanimously finds this case suitable for decision without oral argument.Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4.

1The rule states,

The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, whenever relevant, are adopted as part of the rules of this court.In cases where the Federal Rules of Appellate Procedure(FRAP) and the Rules of the United States Court of Appeals for the Ninth Circuit(Circuit Rules) are silent as to a particular matter of appellate practice, any relevant rule of the Supreme Court of the United States shall be applied.

9th Cir.R. 1-1(emphasis added).On December 12, 1990, our court eliminated the emphasized language.

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex
49 cases
  • Confederated Salish v. Simonich
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 15 Julio 1994
    ...Partington v. Gedan, 880 F.2d 116, 120 (9th Cir.1989) (internal quotation omitted), rev'd and vacated in part on other grounds, 923 F.2d 686 (9th Cir.1991). A district court order abstaining under Younger and dismissing the case ends the litigation. It is a final appealable order. Id. In co......
  • Harris v. Vasquez, 90-55402
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 15 Noviembre 1991
    ...motion to remand was filed in this court, it is unclear whether Rule 11 would permit us to impose sanctions. See Partington v. Gedan, 923 F.2d 686, 688 (9th Cir.1991) (en banc) ("Rule 11 sanctions may no longer be imposed in our circuit on appeal"). In any case, we do not believe the claim ......
  • Harris v. Vasquez
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 15 Noviembre 1991
    ...motion to remand was filed in this court, it is unclear whether Rule 11 would permit us to impose sanctions. See Partington v. Gedan, 923 F.2d 686, 688 (9th Cir.1991) (en banc) ("Rule 11 sanctions may no longer be imposed in our circuit on appeal"). In any case, we do not believe the claim ......
  • Roche v. Lincoln Property Co.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 30 Junio 2004
    ...Int'l Credit Corp. v. U.S. Aircraft Ins. Group, 823 F.2d 302 (9th Cir.1987) (same), overruled on other grounds by Partington v. Gedan, 923 F.2d 686 (9th Cir.1991); Hughes-Bechtol, Inc. v. West Virginia Bd. of Regents, 737 F.2d 540, 543-44 (6th Cir.1984) (same); Nuclear Eng'g Co. v. Scott, 6......
  • Get Started for Free
1 firm's commentaries
  • Sanctions and the Terrible, Horrible, No Good, Very Bad Appeal
    • United States
    • JD Supra United States
    • 10 Febrero 2017
    ...Rule 11 sanctions may no longer be imposed in our circuit on appeal pursuant to the In re Curl incorporation theory.” Partington v. Gedan, 923 F.2d 686, 688 (9th Cir. 1991). Rule 38 On appeal, the litigants' conduct is governed by Federal Rule of Appellate Procedure 38. Cooter, 496 U.S. at ......
3 books & journal articles
  • "A watchdog for the good of the order": the Ninth Circuit's en banc coordinator.
    • United States
    • Journal of Appellate Practice and Process Vol. 12 No. 1, March 2011
    • 22 Marzo 2011
    ...U.S. 1020 (1990), on remand, 914 F.2d 1349 (1990) (per curiam) (reaffirming and adopting earlier holding), reversed & vacated in part, 923 F.2d 686 (1991) (en banc) (per (163.) Memo. from Alfred T. Goodwin to Associates, Re: Midkiff v. Tom (Jan. 21, 1986) (addressing Midkiff v. Tom, 702......
  • Table of Cases
    • United States
    • Washington State Bar Association Washington Civil Procedure Deskbook (WSBA) Table of Cases
    • Invalid date
    ...(1976): 23.7(2)(f) Rockwell Int'l Credit Corp. v. U.S. Aircraft Ins. Grp., 823 F.2d 302 (9th Cir. 1987), overruled by Partington v. Gedan, 923 F.2d 686 (9th Cir. 1991): A.6(1)(b) Roe v. O'Donohue, 38 F.3d 298 (7th Cir. 1994), abrogated by Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,......
  • Appendix A
    • United States
    • Washington State Bar Association Washington Civil Procedure Deskbook (WSBA) Appendix A
    • Invalid date
    ...Int'l Credit Corp. v. U.S. Aircraft Ins. Grp., 823 F.2d 302, 304 (9th Cir. 1987), overruled on other grounds by Partington v. Gedan, 923 F.2d 686 (9th Cir. 1991). Astate is not deemed to be a "citizen." Thus, if a state is a proper party to a suit, the suit cannot be removed on the basis of......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT