Submitted to Motions Panel February 15, 2018
from the United States District Court for the Central
District of California D.C. No. 2:13-cv-00318-BRO Philip S.
Gutierrez, District Judge, Presiding
Erde, Beverly Hills, California, pro se Appellant.
Z. Brodsky and Jodi L. Girten, Kaufman Dolowich & Voluck
LLP, Los Angeles, California, for Appellees.
Before: Kim McLane Wardlaw, Ronald M. Gould, and Paul J.
Watford, Circuit Judges.
motions panel filed a per curiam opinion granting in part and
denying in part appellees' motion for an award of
sanctions against appellant following the panel's partial
dismissal of the appeal for lack of jurisdiction and partial
summary affirmance of the district court's post-judgment
orders in a bankruptcy case.
motions panel held that the motion for sanctions pursuant to
Fed. R. App. P. 38 was timely because it was filed within the
time limits for filing a request for attorneys' fees
under 9th Cir. R. 39-1.6(a). Granting the sanctions motion in
part, the panel awarded appellees attorney's fees under
Rule 38 for defending the appeal, which it concluded was
frivolous. The panel referred the determination of an
appropriate award of attorney's fees as damages under
Rule 38 to the Appellate Commissioner.
motions panel denied in part the sanctions motion with
respect to appellees' request for sanctions pursuant to
28 U.S.C. § 1927.
court's October 11, 2017 order dismissed in part this
appeal for lack of jurisdiction, and summarily affirmed in
part the district court's post-judgment orders. Now
before the court is appellees' motion for an award of
sanctions against appellant pursuant to Federal Rule of
Appellate Procedure 38 and 28 U.S.C. § 1927. Appellees
ask the court to impose attorney's fees, double costs, or
both on Appellant Shmuel Erde.
provides that "[i]f a court of appeals determines that
an appeal is frivolous, it may, after a separately filed
motion or notice from the court and reasonable opportunity to
respond, award just damages and single or double costs to the
appellee." Rule 38 does not prescribe a time limit
within which to file such a motion. This court has not
specifically addressed the time limit for filing a motion
seeking sanctions pursuant to Rule 38 if the motion is
brought after the court issues a disposition on the merits of
Rule 38 provides a basis for an award of attorney's fees,
we find that a motion for sanctions pursuant to Rule 38
should be filed within the time limits for filing a request
for attorney's fees under Ninth Circuit Rule 39-1.6(a).
See Blixseth v. Yellowstone Mountain Club, LLC, 854
F.3d 626, 630 (9th Cir. 2017) (award of "just
damages" under Rule 38 "may include attorney's
fees incurred in defending against the frivolous issues or
frivolous portions of an appeal"); Vasseli v. Wells
Fargo Bank (In re Vaselli), 5 F.3d 351, 353 (9th Cir.
1993) (Rule 38 empowers appellate courts to award damages,
attorney's fees, and other expenses incurred by an
appellee in responding to a frivolous appeal). Ninth Circuit
Rule 39-1.6(a) provides that, absent a statutory provision to
the contrary, a request for attorney's fees shall ...