Peabody v. Maud Van Cortland Hill Schroll Trust
| Decision Date | 23 January 1990 |
| Docket Number | No. 88-2796,88-2796 |
| Citation | 892 F.2d 772 |
| Parties | George PEABODY; Citizens Right of Way Dedication at Pukoo Committee, Plaintiffs-Appellees, v. MAUD VAN CORTLAND HILL SCHROLL TRUST, Defendant, and James M. Dombroski, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark Herrmann, Steinhart & Falconer, and John H. Boone, San Francisco, Cal., for defendant-appellant.
William W. Ramos-Saunders, Bickerton, Ramos-Saunders & Dang, and Boyce R. Brown, Jr., Honolulu, Hawaii, for plaintiffs-appellees.
Appeal from the United States District Court for the District of Hawaii.
Before GOODWIN, Chief Judge, HUG, and TANG, Circuit Judges.
After a failed attempt to remove a case to federal court, Attorney Dombroski filed a second removal petition, presenting arguments the district court had previously rejected. The district court again ruled that the case belonged in state court, and imposed sanctions on the attorney. Dombroski appeals the sanctions.
The underlying action involved a claimed public right of access to Pukoo Lagoon, located on the southeastern shore of the island of Molokai. The lagoon was formerly a fishpond used by native Hawaiians to catch and breed fish. In the 1970s, the then-owner of Pukoo fishpond, Canadian-Hawaiian Developers ("CHD"), decided to dredge and fill the fishpond to convert it into a cloverleaf-shaped lagoon and beach for the hotel and condominium resort CHD was constructing at the site.
Pursuant to 33 U.S.C. § 403 (1982), a dredging permit from the United States Army Corps of Engineers ("the Corps") was required. The Corps issued a permit conditioned on CHD's allowance of "the full and free use by the public of all navigable waters at or adjacent to the structure or work authorized by this permit." CHD completed the offshore dredging work, and later dredged the fishpond itself (for which no permit was needed) to create Pukoo Lagoon.
In 1980, the Maud Van Cortland Hill Schroll Trust ("the Trust"), defendant below, bought Pukoo Lagoon and cancelled the resort development plans. The Trust also obtained zoning downgrades for the property for the asserted purpose of preserving Pukoo Lagoon.
In September of 1983, plaintiffs/appellees George Peabody, a commercial charter boat operator, and Citizens Right of Way Dedication at Pukoo Committee (referred to collectively as "Peabody") sued the Trust in Hawaii state court. Peabody alleged three causes of action, all of which sought public access to the Trust's property.
Only Count I is relevant to this appeal. Count I alleged certain rights of access over water into the interior waters of Pukoo Lagoon. It stated in pertinent part:
7. The dredging and [filling] which created Pukoo Lagoon also resulted in the waters within the lagoon becoming navigable waters to which the public has a right of full and free use. Exhibit 3 hereto is an opinion letter from the Chief Counsel, U.S. Army Corps of Engineers, Honolulu District confirming that the waters within Pukoo Lagoon are navigable waters to which the public is entitled to full and free use by virtue of subparagraph (k) of dredging permit DA Permit No. 969.
* * *
* * *
9. [The Trust,] as successor in interest of [CHD], is subject to the terms and conditions of DA Permit 969.
10. Plaintiffs are entitled to an injunction directing [the Trust] to cease and desist its denial of full [and] free use of Pukoo Lagoon's waters by the public.
In December of 1983, the Trust removed the action to the federal district court, alleging federal question jurisdiction. For reasons not explained, the case lay fallow in federal court for some three and one-half years. Trial was set for June 23, 1987. On June 10, Peabody moved to remand to state court.
In his Motion to Remand, Peabody asserted that Count I involved a contractual issue only. He argued that "[t]he fact that parties include the language of federal law in their contract does not transmute the [alleged] breach into one 'arising under' the laws of the United States, even though an interpretation of the language of the contract will involve an interpretation of language that is also a federal statute." On July 10, 1987, the district court granted Peabody's Motion to Remand, and decided the original grounds for removal had been shown to be inapplicable to the case.
The Hawaii state court set trial for March 28, 1988. Peabody filed a First Amended Complaint on January 11, 1988, adding neither new claims nor new parties. During the following two months, Dombroski filed in the Hawaii court a series of some seven motions for the Trust, three of which were denied, and four of which were never ruled upon. He also filed a Petition for an Extraordinary Writ with the Hawaii Supreme Court, which was summarily denied. On March 14, 1988, fourteen days before the state court trial date, Dombroski filed a Third Party Complaint in the state court against several United States Government parties, and filed a second Petition for Removal with the federal district court.
On April 22, 1988, Peabody filed his second Motion to Remand, together with a Motion for Sanctions. The district judge heard oral argument on the motions, and on May 9, 1988, entered his Order Granting Motions to Strike Third Party Complaint, to Remand Case to State Court and to Impose Sanctions ("Order Granting Remand"). The court imposed the sanctions requested by Peabody, ordering Dombroski to pay to Peabody the fees incurred as a result of the improper removal, and suspending him from the practice of law for a period of not more than six months, pending the report of an ad hoc Committee on Discipline. The monetary sanctions were imposed against Dombroski alone, and the court specified that the Trust was not to pay any portion of them.
The underlying case is currently pending in Hawaii state court. Dombroski appeals the sanctions against him. We have jurisdiction under 28 U.S.C. § 1291 (1982) to review the imposition of sanctions because the order appealed from is a final order and the appeal was timely. Any review of the underlying remand order, however, is barred. 28 U.S.C. § 1447(d) (1982).
Dombroski's central argument is that sanctions against him were not warranted because his Petition for Removal was properly supported by law. If we were assiduously to address his argument, we would be required impermissibly to review an order remanding a case to state court. 28 U.S.C. § 1447(d); Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977). However, where, as here, a motion is sanctioned for being frivolous, effective review of the sanctions requires examination of the moving party's "good faith belief in the merit of a legal argument." Zaldivar v. City of Los Angeles, 780 F.2d 823, 830-31 (9th Cir.1986).
Peabody's position--that we simply cannot examine the legal basis of the removal petition because that would constitute reviewing a remand order--would effectively block any appellate review of sanction awards related to removal petitions. In Lemos v. Fencl, 828 F.2d 616 (9th Cir.1987), we considered two arguments challenging a sanction award for a frivolous removal. The first was that the petition for removal was valid as a matter of law. This question, we said, could not be decided because a district court remand of a case to state court is not reviewable by the court of appeals. 828 F.2d at 617. The second argument was that the petition did not violate Rule 11 because it was not frivolous. In evaluating this argument, we did examine the legal argument on which the appellee had based his Petition for Removal. See id. at 618-19. We did not pass on whether the appellee's position in his Petition was correct--which would have amounted to a review of the district court's remand order--but our examination allowed us to conclude that the argument was neither "frivolous ... [nor] legally unreasonable." Id. at 619.
This fine line is not one we need walk in the context of this case because we find the arguments Dombroski made in the Trust's Petition for Removal had been rejected previously by the district court. A second presentation of the same, previously rejected, theory to the same court fairly defines "frivolous." Unless Dombroski can show some relevant change subsequent to the first remand, the sanctions award was proper.
Dombroski alleges that such a change occurred. He claims that Peabody's Motion for Partial Summary Judgment made clear that Peabody was relying on a federal claim rather than a state claim, and therefore the circumstances had changed sufficiently to allow the Trust a second bite at the federal-forum apple. Peabody counters with two points: (1) the Petition for Removal was frivolous because Peabody's Motion for Partial Summary Judgment represented no change in his pleading, and (2) even if it did, the Petition was untimely. Although Peabody's second point is unavailing, his first is dispositive.
A petition for removal must be brought within 30 days after the receipt by the defendant of a copy of "an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b) (1982). Dombroski claims his March 14, 1988, Petition for Removal was timely because it was filed within 30 days of Peabody's Motion for Partial Summary Judgment as to Count I in the Hawaii court, which is the paper he claims provides the substantive basis of his Petition. However, Peabody had filed a practically identical motion on June 10, 1987, in federal court. Even if it were true that the later, state court Motion for Partial Summary Judgment constituted a paper that indicated the case was removable, Peabody argues,...
To continue reading
Request your trial
-
Fore Stars, Ltd. v. City of Las Vegas
...is an intervening change in the law.59 Fore Stars and Seventy Acres disagree, leveraging the Ninth Circuit's reasoning in Peabody v. Maud van Cortland Hill Schroll Tr. to assert that § 1446(b)(3) does not permit defendants to rely on appellate decisions for removal purposes.60 Ninth Circuit......
-
Gibson v. Chryler Corp.
...or fees is not the same thing as a direct ruling on the propriety of a remand. Id. at 619; see also Peabody v. Maud Van Cortland Hill Schroll Trust, 892 F.2d 772, 775 (9th Cir. 1990). We have said that in evaluating the propriety of an award of attorneys' fees, we must give "some considerat......
-
Verduzco v. Ford Motor Co., Case No. 1: 13-cv-01437-LJO-BAM
...(finding that the "eve of trial removal served to delay timely litigation of this matter")); see also, Peabody v. Maud Van Cortland Hill Schrol Trust, 892 F.2d 772, 777 (9th Cir.1989) (holding that a removal made for the transparent purpose of delaying an impending trial "demonstrates a fla......
-
Castillo-Villagra v. I.N.S.
...no reason to apply a different standard to an agency's determination to take administrative notice. Peabody v. Maud Van Cortland Hill Schroll Trust, 892 F.2d 772, 777-78 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3216, 110 L.Ed.2d 663 (1990).5 In evaluating whether discretion was......
-
Case Gets Crated and Barreled Back to State Court: A Paper Filed In State Court Has More Weight Than One Filed In Federal Court At Least For Removal
...however, observed that the Ninth Circuit has spoken most explicitly on the subject in Peabody v. Maud Van Cortland Hill Schroll Trust, 892 F.2d 772, 775 (9th Cir. 1989). In Peabody, the Ninth Circuit concluded that a motion for summary judgment filed in federal court did not open § 1446(b)'......