(PS) McMahon v. Whitney

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 RYAN MCMAHON, Case No. 2:23-cv-1972-KJM-JDP (PS) 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JOHN WHITNEY, et al., 15 Defendants. [17] 18 Plaintiff, initially represented by counsel but now proceeding pro se, brought this case 19 alleging that his personnel records at the Vallejo Police Department were breached and released 20 to a local newspaper. ECF No. 1. Pending are his motions to strike, ECF No. 52, and for 21 sanctions, ECF No. 56. The motion to strike seeks to strike documents that defendant John 22 Whitney’s former counsel filed in an opposition to plaintiff’s motion to disqualify counsel. ECF 23 No. 52; see ECF No. 66. Plaintiff argues that these documents were privileged insofar as they are 24 confidential personnel records and include attorney-client communications between plaintiff and 25 Whitney’s former counsel, Alison Berry Wilkinson, who previously represented plaintiff in a 26 separate matter. The relevant documents have already been sealed by the district judge’s order, 27 ECF No. 43. The motion to sanction seeks sanctions against defendant Whitney and Ms. [28] 1 Wilkinson for filing those documents in the first instance. ECF No. 56. For the reasons stated 2 below, I deny the motion to strike and recommend that the motion for sanctions be denied. 3 Motion to Strike 4 The documents at issue have been sealed by the district judge. ECF No. 43. 5 Nevertheless, plaintiff contends that the court should strike the relevant documents under Rule 6 12(f). That rule provides that “[t]he court may strike from a pleading an insufficient defense or 7 any redundant, immaterial, impertinent, or scandalous matter.” The function of this rule “is to 8 avoid the expenditure of time and money that must arise from litigating spurious issues by 9 dispensing with those issues prior to trial . . . .” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 10 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)). 11 A request to strike documents that have already been sealed invites needless litigation rather than 12 avoids it. Moreover, the documents were submitted in an opposition to a motion that has already 13 been resolved. ECF Nos. 28, 31, 43, & 66. Thus, striking them would have no practical effect on 14 the litigation. The motion to strike is denied. 15 Motion for Sanctions 16 Plaintiff also seeks sanctions against defendant Whitney and his attorney, Allison Berry 17 Wilkinson, for filing the privileged documents under Rule 11, 28 U.S.C. § 1927 , and for violation 18 of the court’s standing order at ECF No. 3-1. I recommend that no sanctions issue. 19 A. Rule 11 20 Rule 11 of the Federal Rules of Civil Procedure provides, among other things, that a party 21 may be sanctioned for presenting pleadings “for any improper purpose, such as to harass, cause 22 unnecessary delay, or needlessly increase the cost of litigation.” Fed. R. Civ. P. 11(b)(1). 23 Sanctions under this rule can only be obtained after the moving party complies with the rule’s 24 safe harbor provision, however. See Islamic Shura Council of S. Cal. v. FBI, 757 F.3d 870 , 872 25 (9th Cir. 2014) (“A motion for sanctions may not be filed, however, unless there is strict 26 compliance with Rule 11's safe harbor provision.”). The safe harbor provision provides that the 27 motion for sanctions must be served on the offending party twenty-one days before the motion is 28 filed with the court. Id. The provision also protects an offending party that withdraws or corrects 1 the pleading at issue during the twenty-one-day period. Id. at 872-73 . Here, the challenged 2 documents were sealed, and thus the issue was addressed, before plaintiff filed his motion for 3 sanctions. The documents were sealed on January 14, 2014, and plaintiff’s motion for sanctions 4 was filed on March 6, 2024. Even assuming plaintiff complied with the pre-filing notice 5 requirement, there was nothing for defendant Whitney or his counsel to correct at the time of the 6 motion. Plaintiff’s request for sanctions under this rule should be denied. 7 B. 28 U.S.C. § 1927 [8] 28 U.S.C. § 1927 provides that: 9 Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the 10 proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, 11 expenses, and attorneys’ fees incurred because of such conduct. 12 Sanctions under this provision are unwarranted here because there is no evidence that defendant 13 Whitney or his counsel multiplied these proceedings “unreasonably and vexatiously.” The 14 documents at issue were filed in an opposition to plaintiff’s motion and, when plaintiff indicated 15 his intent to challenge their inclusion, defendant did not contest the sealing. ECF No. 38 at 6. 16 Once the documents were sealed, no further litigation on the subject was necessary. Plaintiff has 17 chosen to pursue litigation on the subject and cannot reasonably complain or argue that defendant 18 “multiplied” the proceedings. 19 C. Standing Order 20 Finally, no sanctions should be awarded based on the standing order and the court’s 21 inherent authority to sanction. A court may exercise its inherent power to sanction “when a party 22 has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, delaying or disrupting 23 litigation, or has taken actions in the litigation for an improper purpose.” Fink v. Gomez, 239 24 F.3d 989, 992 (9th Cir. 2001) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 45-47, n.10 (1991)). 25 Here, there is no evidence that defendant Whitney or his counsel acted in bad faith. In her 26 declaration, Ms. Wilkinson states that she did not believe that the standing order applied because 27 the documents at issue were not covered by a protective order and had not affirmatively been 28 designated as confidential. ECF No. 64-1 at 3. She explains that since plaintiff had not 1 | affirmatively designated the documents as confidential, she did not believe that standing order’s 2 | provision requiring advance notice prior to filing the documents at issue was applicable.! Id. 3 | Even if the legal analysis that led defendant to submit the offending materials was flawed or ran 4 | afoul of the standing order—though I do not reach or decide either question here—the record 5 | does not show that Ms. Wilkinson acted in bad faith, wantonly, or for an improper purpose. See 6 | Fink, 239 F.3d at 993. Plaintiffs motion for sanctions should be denied. 7 Accordingly, it is ORDERED that plaintiff's motion to strike, ECF No. 52, is DENIED. 8 Further, it is RECOMMENDED that plaintiff's motion for sanctions, ECF No. 56, be 9 | DENIED. 10 These findings and recommendations are submitted to the United States District Judge 11 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(). Within fourteen days 12 | after being served with these findings and recommendations, any party may file written 13 | objections with the court and serve a copy on all parties. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 | objections shall be served and filed within fourteen days after service of the objections. The 16 | parties are advised that failure to file objections within the specified time may waive the right to 17 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 18 | v. Vist, 951 F.2d 1153 (9th Cir. 1991). [19] 20 IT IS SO ORDERED. 21 ( - Dated: _ January 28, 2025 ow—— 22 JEREMY D,. PETERSON 54 UNITED STATES MAGISTRATE JUDGE [25] 26 | . . . □ The court’s standing order provides that “[i]f a party plans to make a filing that includes 27 || material an opposing party has identified as confidential and potentially subject to sealing, the filing party shall provide the opposing party with sufficient notice in advance of filing to allow 28 | for the seeking of an order of sealing or redaction from the court.” ECF No. 3-1 at 6.