United States District Court, W.D. Washington, Seattle
SANDRA L. FERGUSON, Plaintiff,
BRIAN J. WAID AND THE WAID MARITAL COMMUNITY, Defendants.
ORDER GRANTING DEFENDANT'S MOTION FOR
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
Court has previously dismissed all of Plaintiffs claims as
based on communications with the Washington State Bar
Association that were privileged under Washington Rules for
Enforcement of Lawyer Conduct 2.12 and protected by the
Noerr-Pennington doctrine and Washington's
Anti-SLAPP statute. Dkt. #39 at 3. This matter now comes
before the Court on Defendant Brian J. Waid's Motion for
Rule 11 Sanctions (Dkt. #25), and to address Defendant's
prior requests for statutory fees.
Rule 11 Sanctions
brings the instant Motion because "[a] reasonable
inquiry would have revealed that [Plaintiffs] claims were
legally and factually baseless." Dkt. #25 at 1-2.
Defendant argues that "the Complaint asserts claims that
are a reiteration of those previously rejected and found
frivolous in Caruso v. Washington State Bar
Association, No. C17-00003 RSM (W.D. Wash. Filed Jan. 3,
2017)." Id. at 2. Defendant sets forth the
procedural history of that case, which the Court need not
reiterate. Id. at 3-5. Plaintiff Sandra Ferguson was
a plaintiff in that case, attempted to bring nearly identical
claims against Mr. Waid after previously suing the Washington
State Bar Association, and the Court rejected that request.
has appealed that case to the Ninth Circuit.
Ninth Circuit has set forth the considerations for Rule 11
An attorney is subject to Rule 11 sanctions, among other
reasons, when he presents to the court "claims,
defenses, and other legal contentions . . . [not] warranted
by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the
establishment of new law[.]" Fed.R.Civ.P. 11(b)(2).
When, as here, a "complaint is the primary focus of Rule
11 proceedings, a district court must conduct a two-prong
inquiry to determine (1) whether the complaint is legally or
factually baseless from an objective perspective, and (2) if
the attorney has conducted a reasonable and competent inquiry
before signing and filing it." Christian v. Mattel,
Inc., 286 F.3d 1118, 1127 (9th Cir. 2002) (internal
quotations and citation omitted). As shorthand for this test,
we use the word "frivolous" "to denote a
filing that is both baseless and made
without a reasonable and competent inquiry." Moore
v. Keegan Mgmt. Co (In re Keegan Mgmt. Co., Sec. Litig),
78 F.3d 431, 434 (9th Cir. 1996).
Holgate v. Baldwin, 425 F.3d 671, 675-76 (9th Cir.
2005). A district court is vested with discretion whether or
not to enter Rule 11 sanctions. See Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110
L.Ed.2d 359 (1990). "Rule 11 is an extraordinary remedy,
one to be exercised with extreme caution." Operating
Eng'rs. Pension Trust v. A-C Co., 859 F.2d 1336,
1345 (9th Cir. 1988).
argues that Plaintiff, an attorney licensed in this state,
has violated Rule 11 in two ways. First, because "Mr.
Waid had a duty to respond to inquiries from the WSBA
regarding its investigation of Ms. Ferguson, and Ms. Ferguson
has no objectively reasonable basis to sue Mr. Waid based on
his fulfillment of the duties imposed by the [Washington
Rules of Professional Conduct] and [Washington Rules for
Enforcement of Lawyer Conduct]." Dkt. #25 at 8.
Defendant argues that "Ms. Ferguson's pending
Complaint is therefore baseless and made without reasonable
and competent inquiry..." Id.
also argues that Plaintiff has violated Rule 11 by asserting
claims previously rejected by this Court. Defendant cites
Knipe v. United States, 151 F.R.D. 24, 25 (N.D.N.Y.
1993), qff'd, 19 F.3d 72, 77 (2d Cir. 1994) for
the proposition that "[w]hen an attorney advances
legally groundless arguments, and has previously advanced the
same arguments in other lawsuits without success, Rule 11
sanctions are appropriate." Dkt. #25 at 8 n.34. In
Knipe, plaintiffs filed a complaint challenging the
enforcement authority of the Federal Aviation Administration
("FAA"). 151 F.R.D. at 25. The court found that
plaintiffs' counsel violated Rule 11 because the suit
advanced legally baseless arguments already rejected in two
previous lawsuits counsel had filed, and appeared to be a
"back door attempt to further his personal agenda
against the FAA." Id. at 25-26. As Defendants
point out, the plaintiffs in Knipe had previously
filed a case based on the same set of facts, but under a
different legal theory. The Knipe court found that
Rule 11 sanctions were appropriate because plaintiffs'
counsel was pursuing the same previously rejected arguments
under a different cause of action, and because "at no
time prior to the dismissal of the first action did
plaintiffs' counsel advance this newfound theory of
liability, nor did he ever seek to amend the first complaint
to include this novel approach." 151 F.R.D. at 26. The
Court concluded that "[t]hese facts, along with the fact
that counsel's arguments have been repeatedly rejected by
district courts and circuit courts alike, lead the court to
conclude that the instant complaint was filed with an
improper purpose." Id.
compares Knipe to the present case:
Ms. Ferguson never advanced her "new-found" legal
theory of intentional discrimination or moved to add Mr. Waid
as a defendant prior to dismissal of the
Caruso/Ferguson complaint even though she had
knowledge of the underlying facts. Ms. Ferguson, as pro
se counsel, moved to vacate the prior judgment and amend
the complaint after dismissal; however, the court rejected
her proposed second amended complaint. In filing her motion
to vacate and amend, Ms. Ferguson sought to add the same
claims and factual allegations she asserts in the present
matter. Like the pending Complaint, the "rejected"
proposed amended complaint in Caruso/Ferguson
included Mr. Waid as a defendant based on his communications
to the WSBA related to its investigation of Ms. Ferguson.
This Court denied Ms. Ferguson's motion to amend, noting
that "even if it were procedurally proper to review the
evidence and argument presented by Ms. Ferguson, such
would likely not be sufficient to change the outcome of this
case for the reasons articulated by Defendants in their
Response." Caruso/Ferguson, No. C17-00003, Dkt.
no. 57, at 4 (reported at 2017 WL 3236606, at *2 (emphasis
added). The dismissal of the Caruso/Ferguson
complaint with prejudice, the sanctioning of Ms.
Ferguson's attorney for filing the
Caruso/Ferguson complaint, and the Court's
denial of Ms. Ferguson's motion to amend that complaint
were, or should have been, warnings to Ms. Ferguson to not
file the pending Complaint. Like the counsel in
Knipe, Ms. Ferguson's filing of the pending
Complaint after it was rejected as deficient by this Court
demonstrates that she filed it for an improper purpose in
violation of Rule 11.
Dkt. #26 at 10-11. Defendant also points out that Plaintiff
has appealed both the dismissal of her complaint and the
denial of her motion to amend in the Caruso/Ferguson
case, and that this should stand as further evidence that the
instant separate lawsuit on the same facts was brought
without reasonable and competent inquiry. Id. at 11.
has failed to file any opposition to this Motion.
"Except for motions for summary judgment, if a party
fails to file papers in opposition to a motion, such failure
may be considered by the court as ...