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stating that the non-moving party "must be sufficiently aware of the conversion and receive a reasonable opportunity to present responsive evidence" before a court may convert a Rule 12(b) motion into a motion for summary judgment under Rule 56
Summary of this case from Howell v. Leprino Foods Co.Opinion
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2)
D.C. No. CV-88-01708-WHO
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Northern District of California, William H. Orrick, Jr., District Judge, Presiding.
Before PREGERSON, NOONAN, and KLEINFELD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
The Flanagans have an extensive history of losing their claims and attempting improperly to relitigate them! It is now the law of the case that "the Flanagans and Coyle acted in bad faith." "[T]he Flanagans' claims were not supported by any evidence whatsoever." "[T]he Flanagans and Coyle vexatiously multiplied the proceedings by continuing to litigate claims that were completely lacking in factual support." "The district judge was rightfully exasperated by the Flanagans' use of the factual complexity as an excuse to dance back and forth between federal and state courts." "The case at bar involves an entirely unjustified attempt by the Flanagans to evade their own agreement, incorporated in a court order and judgment, to submit disputes and enforcement proceedings regarding their settlement to the federal district court." "Filing in state court ... was unreasonable in light of the federal district court's explicit retention of jurisdiction." "[T]he record exposes their state court filing as patently unreasonable."
Flanagan v. Arnaiz, No. 923988 (Cal.Super.Ct. Sept. 19, 1990); Flanagan v. Arnaiz, No. A060765 (Cal.Ct.App. Jan. 6, 1994); Flanagan v. Arnaiz, No. C 88-1708 WHO (N.D.Cal. Aug. 29, 1994); Flanagan v. Arnaiz, No. 94-16965 (9th Cir. Apr. 4, 1996); Flanagan v. Arnaiz, No. C88-1708 WHO (N.D.Cal. Jul. 19, 1996); Flanagan v. Arnaiz, 143 F.3d 540 (9th Cir.1998); Flanagan v. Arnaiz, No. C88-1708 WHO (N.D.Cal.1998) (summary judgment); Flanagan v. Arnaiz, Nos. 97-17217, 98-15969, 98-16007 (9th Cir. June 2, 1999).
Flanagan v. Arnaiz, Nos. 97-17217, 98-15969, 98-16007 (9th Cir. June 2, 1999).
Id.
Id.
Flanagan v. Arnaiz, 143 F.3d 540, 543 (9th Cir.1998) (quoting the district court).
Id.
Flanagan v. Arnaiz, No.94-16965 (9th Cir. Apr. 4, 1996).
Id.
The district court sanctioned Bruce Flanagan of Tracy, California, acting as his own attorney, for trying to reopen the state action and for continuing to make unsupported arguments in the Opposition Memorandum. He appeals. We review the district court's award of sanctions for abuse of discretion and affirm.
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1177 (9th Cir.1996).
Flanagan argues that California law does not give preclusive effect to statute of limitations dismissals. That is irrelevant. It is well-established that federal, not state, law determines the preclusive effect of a federal court judgment.
See, e.g., Blonder-Tongue Laboratories v. University of Illinois Found., 402 U.S. 313, 324 n.12 (1971); Fireman's Fund Ins. Co. v. Int'l Market Place, 773 F.2d 1068, 1069 (9th Cir.1985); Restatement (Second) of Judgments § 87 (1982).
Flanagan also argues that because he had done "intensive research," he "believed its Superior Court Motion was warranted by existing law." We have expressly rejected this kind of "pure heart, empty head" defense to Rule 11 Sanctions.
See, e.g., Smith v. Ricks, 31 F.3d 1478, 1488 (9th Cir.1994).
Flanagan argues that the doctrine of res judicata only bars relitigation of identical facts and issues. That is patently wrong. As a general rule, statute of limitations dismissals are, in fact, given complete preclusive effect. Rule 41(b) of the Federal Rules of Civil Procedure said so. "A dismissal ... other than a dismissal for lack of jurisdiction, or for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits." We have said so. In Ellingson v. Burlington Northern, Inc., we held that "[a] judgment based on the statute of limitations is 'on the merits." ' Virtually every other circuit has said so. Wright & Moore's Federal Practice said so. "A dismissal for failure to comply with a statute of limitations is a final adjudication on the merits...."
Ellingson v. Burlington Northern, Inc., 653 F.2d 1327 (9th Cir.1981).
Id. at 1330 & n.3.
See Murphy v. Klein Tools, Inc., 935 F.2d 1127 (10th Cir.1991); Steve D. Thompson Trucking, Inc. v. Dorsey Trailers, Inc., 880 F.2d 818 (5th Cir.1989); Shoup v. Bell & Howell Co., 872 F.2d 1178 (4th Cir.1989); Smith v. City of Chicago, 820 F.2d 916 (7th Cir.1987); Rose v. Town of Harwich, 778 F.2d 77, 80 (1st Cir.1985); PRC Harris, Inc. v. Boeing Co., 700 F.2d 894 (2d Cir.1983); Knoll v. Springfield Township School Dist., 699 F.2d 137 (3d Cir.1983), vacated on other grounds, 471 U.S. 288 (1984); Nathan v. Rowan, 651 F.2d 1223, 1226 (6th Cir.1981); Myers v. Bull, 599 F.2d 863 (8th Cir.1979).
Wright & Moore's Federal Practice § 2373, at 89 (1999 Supp .);see Moore's Federal Practice, § 0.409[6], at III-164.
Flanagan then argues that the law is not so clear. Flanagan is right that in some circumstances, for some purposes, the law is not perfectly clear. But, that said, it was within the district court's discretion to view the law as perfectly clear as applied to this case. Flanagan knew the federal court had expressly and exclusively retained jurisdiction over this matter. Because the federal court was the only place he could sue, it was patently frivolous for him to argue that a federal dismissal on statute of limitations grounds does not bar a suit on those claims in state court. "When a reasonable investigation would reveal that a claim is barred by res judicata or collateral estoppel, ... Rule 11 sanctions may be imposed within the district court's discretion."
Classic Auto Refinishing v. Marino (In re Marino), 181 F.3d 1142 (9th Cir.1999).
Estate of Blue v. County of Los Angeles, 120 F.3d 982, 985 (9th Cir.1997).
Flanagan again argues that the district court did not have exclusive jurisdiction. For the reasons expressed in our May 6, 1998 opinion, we reject these arguments.
See Flanagan v. Arnaiz, 143 F.3d 540 (9th Cir.1998).
Flanagan argues that the district court must consider how big an award is necessary to deter the sanctioned conduct. For the reasons expressed in the companion case, we reject this argument as meritless on the facts of this case.
Flanagan argues that because the twenty-one day safe harbor provision of Rule 11 was not complied with, no sanctions can be given. We note, however, that the district judge gave Flanagan twenty-one days to withdraw from their meritless position, and expressly based the sanctions on the fact that Flanagan continued to advance the same unsupported arguments in their Opposition Memorandum to the sanctions. We hold that the district judge did not abuse his discretion in finding that the twenty-one day period had been satisfied.
Finally, Flanagan argues that Rule 11 sanctions may only be given for papers presented to the court imposing the sanction. A paper was presented here--the district judge imposed sanctions for the arguments advanced in the Opposition Memorandum. We note, as well, that any technical mistake by the district court was harmless, because it could easily have awarded the same sanctions under 28 U.S .C. § 1927 or its inherent power.
See Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991); Trulis v. Barton, 107 F.3d 685, 695 (9th Cir.1995).
District courts are entitled to great deference in determining both whether and to what extent to sanction attorneys. We hold that the district court did not abuse its discretion by sanctioning Flanagan for seeking to vacate the stay in the state action and for the arguments made in his Opposition Memorandum.
See Cooter & Gell v. Hartamarx Corp., 496 U.S. 384, 404 (1990).
AFFIRMED.