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In re Westwood Plaza North

United States Court of Appeals, Ninth Circuit

April 9, 2018

In re Westwood Plaza North, Debtor,
v.
Theodor Nickolas Bodnar; Mary Louisa Bodnar; Terrence W. Cooney; James Waldorf; John Brink, Defendants-Appellees. Shmuel Erde, Plaintiff-Appellant,

          Submitted to Motions Panel February 15, 2018

          Appeal 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

          Shmuel Erde, Beverly Hills, California, pro se Appellant.

          Barry 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.

          SUMMARY[*]

         Sanctions

         The 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.

         The 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.

         The motions panel denied in part the sanctions motion with respect to appellees' request for sanctions pursuant to 28 U.S.C. § 1927.

          OPINION

          PER CURIAM.

         The 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.

         Rule 38 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 the appeal.

         Because 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 ...


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