Lake et al v. Fontes et al, No. 2:2022cv00677 - Document 133 (D. Ariz. 2023)
Court Description: ORDER granting in part and denying in part the Maricopa County Defendants' Application for Attorneys' Fees (Doc. 107 ). Plaintiffs' counsel Andrew D. Parker, the law firm of Parker Daniels Kibort LLC, Kurt B. Olsen, and the law firm o f Olsen Law PC, are held jointly and severally liable for the Maricopa County Defendants' attorneys' fees in the amount of $122,200.00. Alan M. Dershowitz is held jointly and severally liable with the aforementioned parties up to the a mount of $12,220.00. Payment shall be delivered to Maricopa County within 30 days of this Order. IT IS FURTHER ORDERED granting in part and denying in part the relief requested in the Application for Order to Show Cause (Doc. 108 ) filed by Mr. Dershowitz. IT IS FURTHER ORDERED that if any party appeals this Order or the Court's Order of December 1, 2022 (Doc. 106 ), the obligation to pay the above-described attorneys' fees is stayed pending resolution of all appeals. Signed by Judge John J Tuchi on 7/14/23. (SMF)
Download PDF
<![CDATA[
Lake et al v. Fontes et al Doc. 133 Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 1 of 26 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kari Lake, et al., Plaintiffs, 10 11 v. 12 Adrian Fontes, et al., 13 No. CV-22-00677-PHX-JJT ORDER Defendants. 14 15 In a prior Order (Doc. 106), the Court granted a Motion for Sanctions under Federal 16 Rule of Civil Procedure 11 and 28 U.S.C. § 1927 filed by Defendants Bill Gates, Clint 17 Hickman, Jack Sellers, Thomas Galvin, and Steve Gallardo in their official capacities as 18 members of the Maricopa County Board of Supervisors (hereinafter referred to collectively 19 as “Maricopa County Defendants”). At issue are two Applications relating to that Order. 20 The first is the Maricopa County Defendants’ Application for Attorneys’ Fees 21 (Doc. 107), to which counsel for Plaintiffs Kari Lake and Mark Finchem filed a Response 22 in opposition (Doc. 110) and Defendants filed a Reply in support (Doc. 112). The second 23 is the Application for Order to Show Cause (Doc. 108) filed by Alan Dershowitz as a non- 24 party respondent specially appearing through counsel. Mr. Dershowitz directed his 25 Application for Order to Show Cause to the Maricopa County Defendants, who filed a 26 Response in opposition thereto (Doc. 111). Mr. Dershowitz filed a Reply in support of his 27 Application (Doc. 113) along with supplemental evidence for the Court’s consideration 28 (Docs. 128, 130), as well as a Response to the Application for Attorneys’ Fees (Doc. 109). Dockets.Justia.com Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 2 of 26 1 On May 24, 2023, the Court heard argument on the Maricopa County Defendants’ 2 Application for Attorneys’ Fees and held an evidentiary hearing on Mr. Dershowitz’s 3 Application for Order to Show Cause. (Doc. 127, Transcript of Proceedings (“Tr.”).) The 4 Court took under advisement the issues raised in the Applications, which it now resolves. 5 I. BACKGROUND 6 Plaintiffs filed this lawsuit in late April 2022 to prohibit the use of electronic voting 7 machines in the 2022 midterm election in Arizona and to compel Defendants—election 8 officials at the state and county levels—to follow alternative procedures for collecting, 9 storing, counting, and tabulating votes. (Doc. 3, First Amended Complaint (“FAC”) ¶¶ 1, 10 153.) These alternative procedures included requiring voters to cast their votes on paper 11 ballots and ordering election administrators to count by hand every ballot cast. (Id. ¶ 153.) 12 On August 26, 2022, the Court granted Defendants’ Motions to Dismiss and dismissed 13 Plaintiffs’ FAC in its entirety. Lake v. Hobbs, 623 F. Supp. 3d 1015 (D. Ariz. 2022). 14 On August 10, 2022, the Maricopa County Defendants filed their Motion for 15 Sanctions. (Doc. 97.) They argued that Plaintiffs and their counsel made false allegations 16 about Arizona elections in violation of Rule 11(b)(3) and brought this case for the improper 17 purpose of “sow[ing] doubts about the reliability and trustworthiness of elections for their 18 own financial and political benefit” in violation of Rule 11(b)(1). (Id. at 8.) Defendants 19 argued that Plaintiffs’ counsel further violated Rules 11(b)(2) and (3) and 28 U.S.C. § 1927 20 by pursuing frivolous constitutional claims and untimely injunctive relief. In their Motion, 21 Defendants referred to Plaintiffs’ counsel generally and did not mention attorneys by name. 22 However, Defendants included as an exhibit a May 20, 2022 safe-harbor letter that they 23 addressed, mailed, and emailed to attorneys Andrew Parker, Kurt Olsen, and Alan 24 Dershowitz. (Doc. 97-1.) The letter referred to Plaintiffs as “your clients.” 25 Plaintiffs responded to the Maricopa County Defendants’ allegations in a detailed 26 Response. (Doc. 99.) The Response included on its cover page the names of Messrs. Parker, 27 Olsen, and Dershowitz, as well as two other attorneys from Mr. Parker’s firm, who were 28 -2- Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 3 of 26 1 collectively referred to as “Attorneys for Plaintiffs.” The last page of the Response bore 2 the electronic signatures of Messrs. Parker, Olsen, and Dershowitz. (Id. at 18.) 3 On December 1, 2022, the Court granted the Maricopa County Defendants’ Motion. 4 Lake v. Hobbs, --- F. Supp. 3d ----, 2022 WL 17351715 (D. Ariz. 2022). The Court’s Order 5 addressed the statements and claims at issue and the parties’ arguments regarding the same. 6 Analyzing the challenged assertions of fact, the Court found that certain allegations in 7 Plaintiffs’ FAC and statements in their Motion for Preliminary Injunction (“MPI”) rose to 8 the level of sanctionable, and others did not. The Court further found that Plaintiffs’ 9 speculative claims for likely unprecedented injunctive relief lacked an adequate basis in 10 law and fact. Given the public availability and wide circulation of information 11 contradicting or undermining Plaintiffs’ allegations, the Court concluded that the 12 reasonable pre-filing investigation required by Rule 11 was not done. The Court also found 13 that Plaintiffs’ counsel acted at least recklessly in pursuing such disruptive injunctive relief 14 in the run-up to the 2022 midterm election even after Defendants’ counsel had alerted them 15 to the inadequacy of their claims. In light of the existing record, however, the Court 16 declined to make a finding as to whether the case was brought for an improper purpose. 17 Accordingly, the Court concluded that sanctions against Plaintiffs’ counsel were 18 warranted under Rule 11 and section 1927 in the form of payment of the attorneys’ fees 19 reasonably incurred by the Maricopa County Defendants in defending this case. The Court 20 declined to sanction Plaintiffs themselves. The Court deferred determination of the precise 21 monetary sanction until it considered submissions regarding Defendants’ attorneys’ fees, 22 which the parties have since provided. The Court’s Order referred to Plaintiffs’ counsel 23 generally and did not mention attorneys by name. 24 On December 29, 2022, Mr. Dershowitz filed his Application for Order to Show 25 Cause. (Doc. 108.) Mr. Dershowitz requests the Court order the Maricopa County 26 Defendants “to show cause as to why an award of sanctions should be entered against 27 Mr. Dershowitz personally or his consulting firm.” (Id. at 1.) He requests the Court “deny 28 any such award given his limited involvement in this matter and his lack of any involvement -3- Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 4 of 26 1 in the issues raised by the Court in its Order granting sanctions.” (Id.) Mr. Dershowitz 2 submitted declarations describing his involvement in the case (id. at 10-13; Doc. 113-1) and 3 a brief declaration of Mr. Parker regarding the same (Doc. 113-2). Messrs. Dershowitz and 4 Parker provided further explanation of Mr. Dershowitz’s involvement during the evidentiary 5 hearing on May 24, 2023.1 Mr. Dershowitz thereafter provided a supplemental declaration 6 and further information for the Court to consider. (Docs. 128, 130.) 7 Mr. Dershowitz is a nationally-known attorney and professor of law emeritus at 8 Harvard Law School. He explained he has mostly retired from practicing law and teaching 9 and limits his role to “consultation on legal and constitutional issues.” (Doc. 108 at 10 ¶ 1.) 10 He came into this case through Michael Lindell, a business executive who retained 11 Mr. Dershowitz to represent him and his company against claims they defamed companies 12 that supply electronic voting machines. (See id. ¶ 2.) He explained: 13 My role was to serve as a consultant to [Mr. Lindell’s] primary legal team on First Amendment and related constitutional issues. I helped to develop the following argument: when a private company is hired by the government to perform a quintessential governmental function such as vote counting, it cannot refuse to provide relevant information about the workings of its machines on the ground of business secrets. 14 15 16 17 18 (Id.) After researching this issue in the defamation case brought by the voting machine 19 companies, he adapted his research to the facts of this case challenging the use of such 20 machines in Arizona. (See Tr. at 25:2–6.) He formulated Paragraph 8 of the FAC alleging 21 that voting machine companies “refuse to disclose their software and system components 22 and subject them to neutral expert evaluation.” (Id. at 29:20–23.) 23 Mr. Dershowitz maintains that his involvement in this case was limited to that 24 constitutional issue. He was paid for his time—which he approximates at three or four 25 hours—at his normal hourly rate. (Id. at 50:5–51:4.) He testified he had no input on the 26 decision to bring suit and has no opinion on whether voting machines are vulnerable to 27 1 28 The Court did not require Messrs. Dershowitz or Parker to testify under oath given their status as officers of the court. During the hearing, however, Mr. Dershowitz requested to give his statements under oath. (Tr. at 36:9–24.) Mr. Dershowitz’s counsel had no objection to his going under oath when asked, and he was duly sworn as a witness. (Id. at 38:3–12.) -4- Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 5 of 26 1 hacking, which was one of the central claims underlying this case. (Id. at 23:10–11, 2 24:17-19.) He was not retained to investigate the facts and contends he did not participate 3 in drafting the FAC other than as it related to voting machine companies’ alleged refusal 4 to disclose their software. (Doc. 108 at 11 ¶ 4.) Mr. Parker confirmed his firm retained 5 Mr. Dershowitz as an “of counsel consultant” to Plaintiffs’ legal team to provide “legal 6 counsel regarding constitutional issues.” (Doc. 113-2 ¶ 2.) He explained his firm has 7 worked with Mr. Dershowitz on previous matters. (Tr. at 51:22–25.) When retaining him 8 for this case, 9 10 11 12 we had him look at the case, we had him look at a draft. I sent a specific email about the retention and indicated that we would want him on the filings with us. He agreed to that. He indicated he would do it only as of counsel. I said I understood, just as we had done a number of times previously. (Id. at 52:4–7.) 13 Accordingly, Mr. Dershowitz’s signature block appeared on the Complaint 14 alongside those of Messrs. Parker and Olsen. (Doc. 1 at 55.) Mr. Dershowitz signed the 15 Complaint with an electronic signature under “Alan Dershowitz Consulting LLC,” listing 16 an address in Florida. He was listed as “Of Counsel for Plaintiffs,” while Messrs. Parker 17 and Olsen were listed as “Counsel.” Mr. Dershowitz’s signature block likewise appeared 18 on the FAC filed two weeks later. He was again listed as “of counsel” for Plaintiffs, but 19 this time with a Cambridge, Massachusetts address and without the name of his consulting 20 company. These edits to his signature block as it had appeared on the Complaint are 21 reflected in the redlined version of the FAC filed pursuant to LRCiv 15.1(b). (Doc. 4 at 22 55.) Messrs. Dershowitz and Parker confirmed that Mr. Dershowitz authorized his 23 signature on these filings as “of counsel” for Plaintiffs. (Docs. 113-1 ¶ 2, 113-2 ¶ 4.) 24 25 26 27 28 In a statement posted to her Twitter account soon after the Complaint was filed, Plaintiff Lake touted Mr. Dershowitz’s involvement in the lawsuit: I am listed as the Plaintiff along with AZ House Rep @RealMarkFinchem. Legal heavyweight Alan Dershowitz will be representing us. @AlanDersh is a Liberal Democrat. All voters will benefit from the removal of these machines. Defendants are @katiehobbs and Maricopa Co & Pima Co BOS. -5- Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 6 of 26 1 Kari Lake (@KariLake), Twitter (Apr. 24, 2022, 9:33 a.m.), https://perma.cc/97NS-6R5Q. 2 In a video posted to his web series, Mr. Lindell called Mr. Dershowitz’s involvement “one 3 of the surprises for the fake news media” and identified him as “one of the lead attorneys 4 on this.” The Lindell Report, Mike Lindell & Gubernatorial Candidate Kari Lake, Attorney 5 Alan Dershowitz on Injunction Filed in Arizona Regarding Electronic Voting Machines, 6 Frankspeech.com, at 15:40–55 (Apr. 22, 2022), https://frankspeech.com/video/mike- 7 lindell-gubernatorial-candidate-kari-lake-attorney-alan-dershowitz-injunction-filed.2 8 Mr. Dershowitz testified he was not contemporaneously aware of public statements 9 suggesting that he was a lead attorney for Plaintiffs, including by Mr. Lindell. (Tr. at 10 42:13-43:19.) 11 While the “of counsel” designation appeared on the Complaint and FAC, it was left 12 off numerous subsequent filings, including the MPI (Doc. 50), Responses to Defendants’ 13 Motions to Dismiss (Docs. 56, 58), and Replies in support of Plaintiffs’ MPI (Docs 63, 64). 14 These filings list Messrs. Parker, Olsen, and Dershowitz all as “Counsel for Plaintiffs.” 15 Mr. Parker averred that omission of the word “of” from these filings was “an administrative 16 oversight.” (Doc. 113-2 ¶ 3.) Mr. Dershowitz never moved to correct the filings and 17 suggested he did not review them. (See Tr. at 35:11–36:23, 41:18–43:19; Doc. 108 at 3–4, 18 11 ¶ 4; Doc. 113-1 ¶ 1.) Mr. Parker disputed the latter point, stating that not only did 19 Mr. Dershowitz authorize his signature on the filings—albeit only as “of counsel”—but 20 email communications showed that he included Mr. Dershowitz’s name only after Mr. Dershowitz sent an email saying, ‘Very Good.” “Excellent work.” “Yes, let’s go,” and I had assumed reviewed all of the filings that we sent to him. And, in fact, when it comes to the complaint or the first amended complaint, there are a number of edits that were made throughout and we counseled. He did an excellent job of counseling with us on the Constitutional issues that we had retained him for. 21 22 23 24 25 (Id. at 54:15–55:3.) 26 2 27 28 Pursuant to Federal Rule of Evidence 201(b), the Court takes judicial notice of these statements posted online to show “what was in the public realm at the time, not whether the contents of those [statements] were in fact true.” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010) (citation omitted); see also, e.g., Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir.) (taking judicial notice of tweets posted on President Trump’s Twitter account), vacated on other grounds, 138 S. Ct. 377 (2017). -6- Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 7 of 26 1 Despite his claimed status as a consultant, Mr. Dershowitz applied for admission to 2 practice in this Court pro hac vice. He testified he did so reluctantly, asserting in his 3 declaration that it was at Mr. Parker’s request (Doc. 108 at 11 ¶ 4) and at the evidentiary 4 hearing that the Clerk’s office had requested it first. (Tr. at 33:13–22.) In any event, on 5 May 10, 2022, Mr. Parker informed Mr. Dershowitz he would need to be admitted pro hac 6 vice. (Doc. 108 at 11 ¶ 4.) Mr. Parker explained at the evidentiary hearing: 7 8 9 10 11 12 13 14 I asked that Mr. Dershowitz complete the pro hac vice information. He did question why is that necessary if I’m not going to be handling proceedings. I indicated that, well, you’re on the pleadings and that’s part of our retention and so you need to do that. He then agreed. It took an extended period of time to get that accomplished and by May 18, . . . the Clerk issued an order removing him as counsel in the case, of counsel in the case. Mr. Dershowitz and I then worked through getting him—getting the proper papers completed. (Tr. at 52:24–53:10.) His pro hac vice motion was ultimately granted on June 15, 2022. 15 On May 20, 2022, counsel for the Maricopa County Defendants sent the safe-harbor 16 letter to Messrs. Parker, Olsen, and Dershowitz advising them of Defendants’ position that 17 this lawsuit was frivolous. (Doc. 97-1.) As noted, the letter referred to Plaintiffs as “your 18 clients.” It was addressed to Mr. Dershowitz at an address in Cambridge and also sent via 19 email. Mr. Dershowitz does not recall receiving the letter. (Tr. at 39:11–40:3.) After 20 receiving no response, Defendants’ counsel, Emily Craiger, sent a follow-up email 21 requesting a telephonic conference. (Doc. 97-2.) In a certification, Ms. Craiger stated that 22 “all Defendants’ counsel participated in a telephonic conference with Plaintiffs’ counsel.” 23 (Doc. 30 at 2.) When asked whether he recalled participating in this or any other telephonic 24 conferences in this matter, Mr. Dershowitz testified he did remember listening to one 25 conversation “in a very passive way,” but could not recall the subject matter. (Tr. at 40:22– 26 41:3.) At the July 21, 2022 hearing on the MPI and Motions to Dismiss, Mr. Parker 27 announced that Mr. Dershowitz, “counsel in this case, is also on the listen-only [telephone] 28 line.” (Doc. 98 at 12:14–15.) As noted, when the Maricopa County Defendants moved for -7- Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 8 of 26 1 sanctions, his signature appeared on Plaintiffs’ Response under “Attorneys for Plaintiffs.” 2 (Doc. 99 at 18.) According to him, this was “clearly . . . a mistake.” (Tr. at 31:13–20.) 3 Mr. Dershowitz testified he believes he only became aware he might be subject to 4 sanctions when media reports about the Court’s Sanctions Order named him among 5 Plaintiffs’ counsel. (Tr. at 42:13–43:19.) He testified that prior to that time, he believed the 6 “of counsel” designation adequately advised the Court of his limited role as a legal 7 consultant and delimited his ethical obligations accordingly. (Id. at 23:1–16.) He believed 8 this role to be distinct from that of “counsel,” who must conduct the reasonable pre-filing 9 inquiry required by Rule 11. (See id. at 25:11–24.) He testified: “I did not believe that 10 agreeing to be an ‘of counsel’ legal consultant places any obligation on me to evaluate 11 factual allegations.” (Doc. 108 at 12 ¶ 4.) He testified he did not rely on specific authority 12 supporting this use of the “of counsel” designation, but noted he and others have used it on 13 “many, many briefs” before. (Tr. at 23:1, 26:20–24; see also Doc. 131-1.) He added: 14 16 I never familiarized myself with the practice or the traditions of what of counsel means. I just operated on what I had been doing for almost ten years in the honest belief that that was the most candid way of communicating the actual role that I was intending to play and did play. 17 (Tr. at 26:20–24.) In a subsequent declaration, Mr. Dershowitz recalled he first used the 18 “of counsel” designation in a 1973 federal case in which he had a limited retainer 19 agreement. (Doc. 130-1 ¶ 1.) He recalled discussing the issue with both the lead attorney 20 in that case, United States Attorney Robert Fiske, and legal ethics scholar Monroe 21 Freedman, who agreed the “designation ‘of counsel’ seemed most appropriate under the 22 circumstances.” (Id.) He says he has since used the designation when he has “played a 23 limited and discrete role in researching and writing a pleading, without having done the 24 full investigation required of lead counsel, counsel of record, or counsel.” (Id. ¶ 2.) For all 25 of these reasons, Mr. Dershowitz maintains he should not be sanctioned in this case. 26 II. 15 LEGAL STANDARDS 27 The Court set forth the legal standards under Rule 11 and 28 U.S.C. § 1927 in its 28 Sanctions Order. Briefly, Rule 11(b) provides that by presenting a filing to the court, an -8- Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 9 of 26 1 attorney certifies that the filing is not being presented for an improper purpose and that the 2 legal and factual contentions are adequately supported. Rule 11(c)(1) provides: “If, after 3 notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has 4 been violated, the court may impose an appropriate sanction on any attorney, law firm, or 5 party that violated the rule or is responsible for the violation.” The “sanction imposed . . . 6 must be limited to what suffices to deter repetition of the conduct or comparable conduct 7 by others similarly situated,” and, if “imposed on motion and warranted for effective 8 deterrence,” may include payment of reasonable attorneys’ fees. Fed. R. Civ. P. 11(c)(4). 9 The purpose of imposing sanctions under Rule 11 is not “compensating the prevailing 10 party,” but “deterring, and if necessary punishing improper conduct.” United States ex rel. 11 Leno v. Summit Const. Co., 892 F.2d 788, 791 n.4 (9th Cir. 1989) (quoting Schwarzer, 12 Sanctions Under the New Federal Rule 11 – A Closer Look, 104 F.R.D. 181, 185 (1985)). 13 Section 1927 “authorizes the imposition of sanctions against any lawyer who 14 wrongfully proliferates litigation proceedings once a case has commenced.” Pac. Harbor 15 Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1117 (9th Cir. 2000). The Ninth 16 Circuit has recognized that the purpose of sanctions under section 1927 is either “to deter 17 attorney misconduct, or to compensate the victims of an attorney’s malfeasance.” Haynes 18 v. City & Cnty. of San Francisco, 688 F.3d 984, 988 (9th Cir. 2012) (citations omitted). 19 Under either authority, the imposition of sanctions is an extraordinary remedy to be 20 exercised with caution and restraint. In re Keegan Mgmt. Co., Secs. Litig., 78 F.3d 431, 21 436–37 (9th Cir. 1996). The Ninth Circuit has instructed that “[j]udges . . . should impose 22 sanctions on lawyers for their mode of advocacy only in the most egregious situations, lest 23 lawyers be deterred from vigorous representation of their clients.” United Nat’l Ins. Co. v. 24 R&D Latex Corp., 242 F.3d 1102, 1115 (9th Cir. 2001). The procedures by which sanctions 25 are imposed must comport with due process requirements. Tom Growney Equip., Inc. v. 26 Shelley Irr. Dev., Inc., 834 F.2d 833, 835–37 (9th Cir. 1987). 27 28 -9- Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 10 of 26 1 III. ANALYSIS 2 The Court first addresses the Maricopa County Defendants’ Application for 3 Attorneys’ Fees and determines the total amount of attorneys’ fees to be awarded in this 4 matter pursuant to the Sanctions Order. The Court then addresses the issues raised in 5 Mr. Dershowitz’s Application for Order to Show Cause and determines his share of 6 responsibility for the total fee award, if any. Application for Attorneys’ Fees 7 A. 8 The Maricopa County Defendants seek to recover a total of $139,950.00 in 9 attorneys’ fees incurred in defending this lawsuit in 2022. (Doc. 112 at 6.) To determine 10 whether the requested fees are reasonable, the Court applies the two-step “lodestar” 11 method. See Welch v. Met. Life Ins. Co., 480 F.3d 942, 945–46 (9th Cir. 2007). “First, the 12 court establishes a lodestar by multiplying the number of hours reasonably expended on 13 the litigation by a reasonable hourly rate,” excluding from the requested amount “any hours 14 that are ‘excessive, redundant, or otherwise unnecessary.’” Id. (quoting Hensley v. 15 Eckerhart, 461 U.S. 424, 434 (1983)). At the second step, “in rare and exceptional cases, 16 the district court may adjust the lodestar upward or downward using a multiplier based on 17 facts not subsumed in the initial lodestar calculation.” Id. 18 Defendants have provided the lodestar records for outside counsel Emily Craiger 19 (Doc. 107-3) and attorneys Thomas Liddy, Joseph La Rue, and Karen Hartman-Tellez of 20 the Maricopa County Attorney’s Office (“MCAO”) (Doc. 107-4), as well other 21 documentation required by Local Civil Rule 54.2 (Docs. 107-1, 107-2, and 107-5). In their 22 Response, Plaintiffs do not dispute the hourly rates claimed by Defendants’ counsel, which 23 the Court likewise finds reasonable. Rather, Plaintiffs argue that certain deficiencies in 24 counsel’s billing records justify reducing the number of compensable hours. Plaintiffs 25 identify certain time entries they contend are: (1) insufficiently specific; (2) for non- 26 recoverable clerical or administrative tasks; (3) duplicative; (4) excessive; or (5) erroneous. 27 (Doc. 110 at 3–13.) The Court evaluates these arguments in turn. 28 - 10 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 11 of 26 1 1. Insufficient Specificity 2 Plaintiffs argue the following entries by Mr. La Rue are too vague: 5.0 hours on 3 June 1 for “[v]arious work on this matter”; 7.0 hours on June 20 for “[v]arious work on 4 this lawsuit”; and 11.3 hours on June 21 for “[d]raft work on several versions of Scott 5 Jarrett’s declaration; various phone confs re this matter; various other work re this matter.” 6 Defendants do not defend these specific entries in their Reply. “The party seeking fees 7 bears the burden of documenting the hours expended in the litigation and must submit 8 evidence supporting those hours . . . .” Welch, 480 F.3d at 945–46. “[C]ounsel . . . is not 9 required to record in great detail how each minute of his time was expended,” but “should 10 identify the general subject matter of his time expenditures.” Hensley, 461 U.S. at 437 n.12. 11 The challenged entries fail this test and therefore will be excluded. 12 Next, Plaintiffs identify several entries they argue should either be rejected or 13 reduced by 30% because they are block-billed—that is, they “include[e] various tasks 14 within one time entry without specifying the time spent on each task within an entry.” 15 Banas v. Volcano Corp., 47 F. Supp. 3d 957, 966 n.9 (N.D. Cal. 2014). Defendants counter 16 by distinguishing the facts of Banas and suggesting a court should make reductions for 17 block billing only “to the extent it cannot determine whether the compensation sought is 18 for hours reasonably related to the litigation of successful claims and claims closely related 19 to successful claims.” (Doc. 112 at 2–3.) But the rule applied in Banas was not so fact- 20 dependent. It reflects concerns not only about the relatedness of the claimed tasks, but also 21 the reasonableness of the time spent on them. “[B]lock billing makes it more difficult to 22 determine how much time was spent on particular activities.” Welch, 480 F.3d at 948. 23 For this reason, the Ninth Circuit has affirmed district courts’ authority to reduce 24 block-billed hours. Id. Accordingly, the Court will impose a 25% reduction on the 25 following block-billed entries by Ms. Craiger: 6.3 hours on May 18; 5.8 hours on May 31; 26 5.6 hours on June 15; 11.8 hours on June 17; and 8.4 hours on July 20. The Court will 27 impose the same reduction on Mr. La Rue’s 0.8-hour block-billed entry on August 9. 28 - 11 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 12 of 26 1 2. Administrative or Clerical Tasks 2 Plaintiffs label several of Mr. La Rue’s claimed tasks as administrative or clerical. 3 Defendants concede that because MCAO attorneys’ time is “tracked for internal budgeting 4 purposes . . . , time for ‘clerical-related’ activities are sometimes billed.” (Doc. 112 at 1 5 n.1) Thus, “Defendants take no position on whether these entries are appropriate for 6 inclusion in an award of attorneys’ fees under the circumstances of this matter.” (Id.) The 7 Court appreciates that the time-sensitive nature of this case required an all-hands-on-deck 8 approach. However, Plaintiffs are correct that “[c]lerical work is not compensable.” 9 Bellflower Unified Sch. Dist. v. Arnold, 586 F. Supp. 3d 1010, 1018 (C.D. Cal. 2022) 10 11 (collecting cases). The Court therefore will exclude the challenged clerical entries. 3. Duplication 12 Plaintiffs argue several of counsel’s entries reflect duplicative work. First, they 13 dispute the reasonableness of each of Defendants’ four attorneys billing approximately 9.0 14 hours for attending the consolidated merits hearing on July 21. They note that 15 Ms. Hartman-Tellez billed 9.0 hours but did not speak at the hearing. Plaintiffs cite to a 16 line of cases from the District of Oregon holding that “good ‘billing judgment’ requires 17 attorneys to not bill for more than two attorneys to review pleadings or to attend oral 18 argument.” Lemus v. Timberland Apts., LLC, 876 F. Supp. 2d 1169, 1179 (D. Or. 2012) 19 (citation omitted). Defendants contend “the staffing of four attorneys is entirely reasonable 20 and . . . comparable to the staffing by Plaintiffs’ counsel.” (Doc. 112 at 4.) In light of the 21 all-hands-on-deck approach made necessary by the accelerated nature of the proceedings 22 to that point, the Court concludes the hearing reasonably required the presence of all four 23 attorneys, each of whom may well have had delegated areas of responsibility necessitating 24 their personal availability to the team. The Court finds Defendants’ argument on this issue 25 more persuasive and therefore will not reduce the compensable hours. 26 Second, Plaintiffs identify several intra-defense team conferences with multiple 27 attorneys, which they suggest involved duplicative work. Plaintiffs point to no additional 28 evidence to support this suggestion, however, and the Court finds the observation it made - 12 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 13 of 26 1 immediately above regarding the division of labor equally applicable to this circumstance. 2 The Court therefore will allow the hours claimed for participation in these conferences. 3 4. Excessiveness 4 Plaintiffs argue that in light of counsel’s expertise in election law, counsel spent an 5 excessive amount of time researching basic election-law tenets. Defendants dispute this, 6 contending that while this case was “not extremely novel,” it nonetheless presented 7 “difficult constitutional and statutory questions concerning election administration.” 8 (Doc. 107 at 5.) They also contend the case required combing through “factual allegations 9 that had little to no basis in reality and were not relevant to elections in Arizona.” (Id.) 10 To the extent Plaintiffs challenge Ms. Craiger’s block-billed entries on May 18 and 11 June 15, the Court has already discounted them. The 2.2-hour entry by Ms. Craiger on 12 August 26 is block-billed but includes “review[ing] research re sanctions post-dismissal.” 13 The law on this issue is well settled and this entry therefore will be reduced by 25%. 14 Ms. Hartman-Tellez’s May 23, 25, 26, and 28 entries for a total of 9.6 hours for “[l]egal 15 research re constitutional claims” cannot be fully justified without further explanation and 16 will also be reduced by 25%. However, Ms. Hartman-Tellez’s July 17 entry for 1.2 hours 17 of “research re Daubert motions” and her July 14 entry for 2.1 hours for “[l]egal research 18 re sanctions” are sufficiently detailed and reasonable, and will be allowed in full. Finally, 19 Ms. Craiger’s July 13 and 14 entries for 11.5 hours to “[c]ontinue draft of Rule 11 Motion” 20 appear potentially excessive in light of the dozens of hours she and her colleagues billed 21 for other tasks relating to this motion and the predicate safe-harbor letter in mid-May. The 22 Court therefore will reduce these entries by 25%. 23 Finally, to the extent Plaintiffs challenge the approximately 200 hours counsel spent 24 “drafting,” “editing,” and “revising” filings, they fail to identify specific entries. See 25 Arizona v. Maricopa Cnty. Med. Soc., 578 F. Supp. 1262, 1264 (D. Ariz. 1984) (“The party 26 opposing the application must . . . submit specific and detailed objections.” (citing Nat. 27 Ass’n of Concerned Vets v. Sec’y of Defense, 675 F.2d 1319, 1338 (D.C. Cir. 1982)). 28 - 13 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 14 of 26 1 5. Discrepancies 2 Defendants have corrected several entries Plaintiffs showed to be incorrect and have 3 reduced their request accordingly. (See Doc. 112 at 1 n.1.) One challenged entry remains. 4 Plaintiffs challenge Ms. Craiger’s entry of 0.6 hours on June 7 for a meeting with Mr. La 5 Rue and Ms. Hartman-Tellez, which appears only on Ms. Craiger’s records. It is plausible 6 the other two attorneys simply neglected to bill for the meeting. The Court will allow it. 7 6. Other Issues 8 The Court has identified several other entries to be excluded. Ms. Craiger and 9 Ms. Hartman-Tellez each claimed 0.7 hours on September 16 for tasks relating to the 10 pending appeal in this matter, but this Court’s fee-award will be limited to the litigation 11 before it. The Court will also exclude Ms. Craiger’s entries totaling 2.5 hours in October 12 regarding correspondence with Plaintiffs’ experts because no explanation has been given 13 as to the relevance of these tasks to defending this lawsuit, which by then had been 14 dismissed. 15 7. Summation 16 Incorporating these reductions results in a lodestar of $122,200. The Court finds no 17 basis to conclude this amount is unreasonable or compelling grounds to adjust the lodestar 18 upward or downward. See LRCiv 54.2(c)(3); Kerr v. Screen Extras Guild, Inc., 526 F.2d 19 67, 70 (9th Cir. 1975). It therefore will award attorneys’ fees in this amount. 20 B. 21 Mr. Dershowitz maintains he should bear no responsibility for the attorneys’ fees 22 awarded to the Maricopa County Defendants because he did not violate Rule 11 or 23 28 U.S.C. § 1927 and “has not done anything improper that sanctions would serve to ‘deter’ 24 in this matter.” (Doc. 113 at 6.) Having considered all of the parties’ arguments and 25 evidence bearing on these issues, the Court now determines whether Mr. Dershowitz’s 26 involvement in this matter subjects him to sanctions under Rule 11 and section 1927, and 27 what sanctions, if any, are warranted under the circumstances. Application for Order to Show Cause 28 - 14 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 15 of 26 1 1. Rule 11 2 The first question is whether Mr. Dershowitz may be sanctioned under Rule 11. 3 Mr. Dershowitz maintains he cannot be sanctioned because he did not violate the rule. He 4 argues that his use of the “of counsel” designation appropriately identified his limited role 5 and effectively exempted him from the Rule 11 requirements imposed on Plaintiffs’ 6 “counsel.” As Mr. Dershowitz has conceded, there is a dearth of formal legal authority 7 supporting this proposition. (See Tr. at 63:11–13.) The Maricopa County Defendants argue 8 that the plain language of the rule contradicts it. The Court turns first to the text. 9 Rule 11(a) provides that “[e]very pleading, written motion, and other paper must be 10 signed by at least one attorney of record in the attorney’s name—or by a party personally 11 if the party is unrepresented.” As noted, Rule 11(b) provides that by presenting a filing to 12 the court, “an attorney or unrepresented party certifies that to the best of the person’s 13 knowledge, information, and belief, formed after an inquiry reasonable under the 14 circumstances”: (1) the filing is “not being presented for any improper purpose”; (2) the 15 “legal contentions are warranted by existing law or by a nonfrivolous argument for 16 extending, modifying, or reversing existing law or for establishing new law”; and (3) “the 17 factual contentions have evidentiary support or, if specifically so identified, will likely have 18 evidentiary support after a reasonable opportunity for further investigation or discovery.” 19 Rule 11(b) expressly includes the act of signing a filing in its definition of 20 “presenting” a filing. That part of the rule recognizes only two categories of signers: 21 attorneys and unrepresented parties, who are equally subject to its requirements. Rule 11(c) 22 authorizes the court to impose sanctions where those requirements have not been met. The 23 list of sanctionable parties in Rule 11(c)(1) is broadened to include “any attorney, law firm, 24 or party that violated the rule or is responsible for the violation.” Although Rule 11(a) only 25 requires one attorney of record to sign a filing, no provision of Rule 11 expressly limits the 26 court’s authority to sanction multiple attorneys if each of them voluntarily signed an 27 inadequate filing or is otherwise responsible for the violation. Nor does the text of the rule 28 qualify the import of a signature based on the designation used by the signer. - 15 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 16 of 26 1 The act of signing thus lies at the heart of Rule 11. The Supreme Court has noted 2 that “the purpose of Rule 11 as a whole is to bring home to the individual signer his 3 personal, nondelegable responsibility.” Pavelic & LeFlore v. Marvel Ent. Grp., 493 U.S. 4 120, 126 (1989). In Pavelic, the Court considered whether a prior version of the rule 5 authorized the imposition of sanctions “not only against the individual attorney who signed, 6 but also against that attorney’s law firm.” Id. at 121. The Court held it did not, noting the 7 importance of the nondelegable nature of the requirement it imposes: 8 9 10 11 12 13 14 The signing attorney cannot leave it to some trusted subordinate, or to one of his partners, to satisfy himself that the filed paper is factually and legally responsible; by signing he represents not merely the fact that it is so, but also the fact that he personally has applied his own judgment. . . . [J]ust as the court expects the signer personally—and not some nameless person within his law firm—to validate the truth and legal reasonableness of the papers filed, so also it will visit upon him personally—and not his law firm—its retribution for failing in that responsibility. The message thereby conveyed to the attorney, that this is not a “team effort” but in the last analysis yours alone, is precisely the point of Rule 11. 15 16 Id. at 125–27 (emphasis in original). 17 The Court again emphasized the importance of signatures for Rule 11 purposes in 18 Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., which considered 19 whether the prior version of the rule applied to represented parties who sign filings 20 alongside their counsel. 498 U.S. 533, 544–48 (1991). The Court held it unambiguously 21 did. Id. The Court found it irrelevant whether such signatures were voluntary, as the plain 22 text of the rule applied not only to required signatures “but also to signatures that are not 23 required but nevertheless present.” Id. at 543. The Court rejected the argument “that a 24 represented party is free to sign frivolous or vexatious documents with impunity because 25 its signature on a document carries with it no additional risk of sanctions.” Id. at 544–46. 26 The Court held that such a “risk free” construction of the rule was at odds with the rule’s 27 purpose and lacked support in the text. Id. The Court stated that “[t]he essence of Rule 11 28 - 16 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 17 of 26 1 is that signing is no longer a meaningless act; it denotes merit. A signature sends a message 2 to the district court that this document is to be taken seriously.” Id. at 546. 3 The Advisory Committee amended Rule 11 in the wake of these decisions, 4 removing the restrictions on sanctioning a law firm—which, “[a]bsent exceptional 5 circumstances, . . . must be held jointly responsible for a violation committed by its partner, 6 associate, or employee”—and clarifying that monetary sanctions for meritless legal 7 contentions may not be imposed against a represented party. See Fed. R. Civ. P. 11(c)(1), 8 (c)(5)(A). But these amendments did not lessen the import of an attorney’s signature. The 9 Committee maintained that “[t]he person signing, filing, submitting, or advocating a 10 document has a nondelegable responsibility to the court, and in most situations is the person 11 to be sanctioned for a violation.” Fed. R. Civ. P. 11 Advisory Comm.’s Note (1993). 12 The Ninth Circuit has recognized an attorney’s signature is “tantamount to a 13 warranty that the complaint is well grounded in fact and ‘existing law’ (or proposes a good 14 faith extension of the law) and that it is not filed for an improper purpose.” Christian v. 15 Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002). In Holgate v. Baldwin, the Ninth Circuit 16 rejected the notion that an attorney who later withdraws from a case is protected from 17 sanctions. 425 F.3d 671, 677 (9th Cir. 2005). “The signing requirement in Rule 11 makes 18 clear that any attorney who, at any time, certified to the court that a pleading complies with 19 Rule 11 is subject to the rule, even if the attorney later withdraws from the case.” Id. 20 Thus, courts have sanctioned attorneys who sign filings violative of Rule 11 21 notwithstanding their limited involvement in investigating or drafting them. For example, in 22 Jenkins v. Methodist Hospitals of Dallas, Inc., the Fifth Circuit affirmed sanctions against an 23 attorney who signed a brief drafted primarily by his associate and cite-checked by two other 24 partners, and which he merely proofread and signed. 478 F.3d 255, 264–66 (5th Cir. 2007). 25 The district court sanctioned him with a public remand because the brief contained an 26 inflammatory factual misstatement. Id. The signing attorney did not contest that his signature 27 on the brief made him responsible for its contents, but rather argued on the merits that an 28 “isolated factual error should not be the basis of Rule 11 sanctions”—an argument the Fifth - 17 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 18 of 26 1 Circuit rejected. Id. at 265. In Val-Land Farms, Inc. v. Third National Bank in Knoxville, the 2 Sixth Circuit affirmed sanctions against both local counsel and out-of-state counsel, 3 cautioning that “[t]he lawyers who sign materials submitted to federal courts have the 4 responsibility to determine that those materials comply with Rule 11. If . . . local counsel 5 signed [the] complaint relying entirely on the representations of [outside counsel], so much 6 the worse for them.” 937 F.2d 1110, 1118 (6th Cir. 1991). 7 That is not to say a signer’s personal obligations under Rule 11 “preclude the signer 8 from any reliance on information from other persons.” Garr v. U.S. Healthcare, Inc., 9 22 F.3d 1274, 1278 (3d Cir. 1994). “In relying on another lawyer, however, counsel must 10 acquire knowledge of facts sufficient to enable him to certify that the paper is well- 11 grounded in fact.” Unioil, Inc. v. E.F. Hutton & Co., Inc., 809 F.2d 548, 558 (9th Cir. 1986) 12 (cleaned up and citation omitted), overruled on other grounds by Townsend v. Holman 13 Consulting Corp., 929 F.2d 1358 (9th Cir. 1990). Thus, in In re Kunstler, the Fourth Circuit 14 affirmed sanctions against nationally-known civil rights attorney William Kunstler for 15 signing a complaint that was baseless—if well-publicized—despite his reliance on another 16 attorney “to prepare and file it.” 914 F.2d 505, 514 (4th Cir. 1990), cert. denied, 111 S. Ct. 17 1607 (1991). Far from absolving Mr. Kunstler of responsibility, the court found his 18 delegation of responsibility was itself improper. Id. The Court held: “Having failed in his 19 responsibility, Mr. Kunstler may not now be heard to protest that he does not share in any 20 violations of Rule 11 which are evident on the face of the complaint.” Id. 21 Recently in King v. Whitmer, the Sixth Circuit considered a sanctions award against 22 multiple attorneys with varying degrees of involvement in a largely baseless lawsuit to 23 overturn the results of Michigan’s 2020 presidential election. --- F.4th ----, 2023 WL 24 4145049 (6th Cir. June 23, 2023). Three attorneys had signed the operative complaint and 25 five others were listed as “of counsel” but did not sign. Id. at *1. The district court 26 sanctioned all of them. Id. at *2. On appeal, three of the attorneys listed as “of counsel” 27 argued their involvement in the case was “too minimal to warrant sanctions.” Id. at *3. The 28 Sixth Circuit agreed as to two of those attorneys but not the third. Id. at *12. The district - 18 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 19 of 26 1 court had sanctioned one of them merely because her name was listed on the complaint, 2 which she had not signed. Id. The Sixth Circuit reversed, deeming this a finding of 3 “responsib[ility] more as a matter of form than as a matter of real responsibility.” Id. 4 However, the Sixth Circuit affirmed sanctions against the third attorney, Lin Wood, 5 who was also listed as “of counsel” on the complaint, which he did not sign. Id. at *13. 6 Mr. Wood had claimed “that someone placed his name on the complaint without his 7 consent and that he knew nothing about this case until he ‘saw something in the newspaper 8 about being sanctioned.’” Id. The district court found him not credible. Id. The Sixth 9 Circuit found no error in this conclusion, noting he had claimed elsewhere that he 10 “represented plaintiffs” in a challenge to the 2020 election in Michigan; he tweeted about 11 the case at the time it was filed; and a lead attorney in the case “‘did specifically ask 12 Mr. Wood for his permission’ to put his name on the complaint,” which another attorney 13 stated was “spearheaded” by him. Id. The Sixth Circuit rejected Mr. Wood’s argument that 14 the district court was “required to undertake ‘an individual analysis’ of his conduct before 15 it could sanction him.” Id. (citing NPF Franchising, LLC v. SY Dawgs, LLC, 37 F.4th 369, 16 380–81 (6th Cir. 2022)). The court therefore affirmed sanctions against him, except to the 17 extent he was taxed for the fees of a group of defendants who had never sought sanctions 18 against him. Id. Evaluating the monetary sanctions imposed, the Sixth Circuit largely 19 affirmed based on the frivolous allegations in the complaint, but reduced the amount based 20 on its conclusion that several of the plaintiffs’ claims were non-frivolous. Id. at *9–14.3 21 22 3 23 24 25 26 27 28 Plaintiffs in this case made clear from the outset that, unlike the King plaintiffs, they were not seeking to overturn the 2020 presidential election. (FAC ¶ 8.) Still, there is at least one notable parallel between these lawsuits. In King, the Sixth Circuit found many of the plaintiffs’ allegations about the Dominion voting machines used in Michigan to be sanctionable because they had no basis in fact. 2023 WL 4145049, at *4–5. The court noted many of the allegations “concerned different kinds of systems than the one Michigan used.” Id. at 5. Like Arizona, Michigan “used a hand-marked ballot system—which one of the plaintiff’s own exhibits, an article by Dr. Andrew Appel, said is ‘the only practical technology for contestable, strongly defensible voting systems.’” Id. The court noted the plaintiffs’ allegations regarding the undetectability of vote manipulation were undermined by the fact that “hand-marked ballots obviously can be recounted (and thus audited) by hand.” Id. The same problems plagued many of Plaintiffs’ allegations in this case. - 19 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 20 of 26 1 In short, the text of Rule 11 and the weight of authority are against Mr. Dershowitz’s 2 position. The Court already concluded that Plaintiffs’ FAC and MPI lacked an adequate 3 basis in law and fact. Whether Mr. Dershowitz signed, or intended to sign, those filings as 4 “counsel” or “attorney” or “of counsel,” he signed them. And he effectively conceded that 5 he authorized his signature on these filings without investigating whether they were legally 6 and factually sound. If there was any doubt this brought him within the ambit of Rule 11, 7 the evidence detailed above demonstrates that all parties involved understood the value of 8 his signature. It was an agreed-upon part of his retention. It led opposing counsel and the 9 public to believe he represented Plaintiffs in this matter—a notion furthered by Plaintiff 10 Lake and Mr. Lindell themselves. Mr. Dershowitz did not do anything to dispel this notion 11 until after the Maricopa County Defendants moved for sanctions. Further, he participated 12 in at least one telephonic conference with opposing counsel; his telephonic presence was 13 announced at the one hearing on the merits; and, according to Mr. Parker, he reviewed and 14 provided feedback on at least the FAC. 15 Mr. Dershowitz also applied for, and was granted, permission to appear pro hac vice 16 on Plaintiffs’ behalf. This Court’s Local Rules permit pro hac vice admission “to appear 17 and participate in a particular case.” LRCiv 83.1(b)(2). Once admitted, an attorney “is 18 subject to the jurisdiction of the Court to the same extent as a member of the bar of this 19 Court.” Id. Mr. Dershowitz conceded he did not consult the rules. (Tr. at 34:22–35:5.) He 20 claims he only applied for admission pro hac vice because the Clerk’s office “demanded” 21 it. (Doc. 128 at 3.) This is unpersuasive. The Complaint filed on April 22, 2022— 22 necessarily before the Clerk’s office contacted him—indicated he would apply for 23 admission pro hac vice.4 (Doc. 1 at 55.) More credibly, Mr. Parker stated he was the one 24 who requested Mr. Dershowitz apply. He stated he did so for a straightforward reason: 25 [I]t’s my understanding, and I guess I could be mistaken but I don’t believe I am, that whether you’re counsel or of counsel, if you are on pleadings, 26 27 28 4 The Court takes judicial notice of the fact that Mr. Dershowitz has applied for admission pro hac vice in cases in the District of Minnesota involving Mr. Lindell. See Doc. 10, Lindell v. Pelosi, No. CV-22-00028-ECT-DJF (D. Minn. Jan. 14, 2022); Doc. 15, Lindell v. United States, No. CV-22-02290-ECT-DLM (D. Minn. Sept. 22, 2022). - 20 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 21 of 26 1 2 3 4 which Mr. Dershowitz was and which in writing we had confirmed he would be, whether counsel or of counsel, you need to be admitted to the jurisdiction because once you sign on to a pleading, I don’t know of a quasi-Rule 11 or 1927 or any other obligation. I understand that if you are signed on to pleadings—and this was my understanding—you need to be admitted in the jurisdiction. Pro hac vice is the way to do that. 5 6 (Tr. at 52:10–20.) Mr. Dershowitz was obligated to apply for pro hac vice admission for 7 the same reason he was subject to the requirements of Rule 11: He signed the filings. 8 Because those filings were inadequate, he violated Rule 11. 9 The cases cited by Mr. Dershowitz are not to the contrary. In McCarty v. Verizon 10 New England, Inc., the district court considered which of three attorneys to sanction for 11 the filing of an inadequate complaint. 772 F. Supp. 2d 362, 364–67 (D. Mass. 2011), aff’d 12 674 F.3d 119 (1st Cir. 2012). Most relevant here, the court declined to sanction an attorney 13 who was “of counsel” to the firm of the lead attorney. Id. To the extent Mr. Dershowitz 14 analogizes his use of the “of counsel” designation, he misses the mark. The attorney in 15 McCarty used the designation to identify his relationship to a law firm, which is the widely 16 accepted use of the term. The Arizona State Bar’s Committee on the Rules of Professional 17 Conduct has explained that while the term “is not precisely defined and encompasses a 18 variety of situations,” it connotes a “close, personal, continuous, and regular” relationship 19 between an attorney and a law firm. Arizona Op. 16-01 (2016), available at 20 https://perma.cc/S6LW-KKMP. The term does not cover “a relationship involving only an 21 individual case . . . ; an outside consultant; or only occasional collaborative efforts between 22 otherwise unrelated firms or lawyers.” Id. (citing Am. Bar. Ass’n Formal Op. 90-357 and 23 Arizona Op. 87-24). Here, Mr. Dershowitz used the term to identify his relationship with 24 Plaintiffs. This may not be novel in the sense that he and others have used it in prior cases, 25 but he has not identified any formal authority that condones it. In any event, the “of 26 counsel” designation was not dispositive in McCarty. There, the attorney averred he “had 27 no involvement, whatsoever, in th[e] action,” which was “filed erroneously under [his] 28 name.” McCarty, 772 F. Supp. 2d at 366. Mr. Dershowitz cannot claim the same here. - 21 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 22 of 26 1 In Mars v. Anderman, the district court determined sanctions were warranted for the 2 filing of a meritless complaint. 136 F.R.D. 351, 353 (E.D.N.Y. 1989). The court decided 3 to sanction only the plaintiff and not the attorney who filed his complaint or the attorney 4 who tried his case. Id. The court concluded the former attorney had not violated Rule 11 5 because it was not sufficiently clear, prior to trial, that the plaintiff’s claim was meritless. 6 Id. at 354. The court declined to sanction the latter attorney “because violation of Rule 11 7 mandates sanctions against only ‘the person who signed’ the paper in question.” Id. (citing 8 Oliveri v. Thompson, 803 F.2d 1265, 1274 (2d Cir. 1986)). Neither scenario occurred here. 9 Trout v. Garrett is also unavailing. In Garrett, the district court affirmed that 10 “[u]nder Rule 11 it is the signature of the attorney that certifies the legitimacy of the filing.” 11 780 F. Supp. 1396, 1428 (D.D.C. 1991). The court concluded that a filing reversing a 12 position long held by the defendant in protracted litigation was baseless and brought in bad 13 faith. Id. at 1420–28. The filing bore the signatures of three attorneys. Id. at 1428. The 14 signatures of two of those attorneys, however, were “apparently affixed” by the other. Id. 15 at 1428. The court declined to sanction those two attorneys because there was “no evidence 16 that [they] had enough knowledge of the history of this litigation to appreciate the 17 frivolousness of the representations made in the [filing].” Id. By contrast here, recognizing 18 the frivolousness of this lawsuit did not require a detailed understanding of its procedural 19 history. In any event, the Garrett court expressly noted that its decision not to sanction the 20 two attorneys was discretionary because it “could, under the law, proceed against [them] 21 as well.” Id. (citing Robinson v. Chicago, 868 F.2d 959 (7th Cir. 1989)). 22 Mr. Dershowitz maintains he did not intend to endorse Plaintiffs’ claims and at most 23 made an “honest mistake” about authorizing his signature as “of counsel.” (See, e.g., Doc. 24 113 at 2–3; Doc. 128 at 4.) As an initial matter, the Court observes that the effect of his 25 signature on the filings was to create the impression that he did endorse the claims made 26 therein. Further, to the extent he asserts he never reasonably expected to be subject to 27 sanctions related to those claims, the Maricopa County Defendants followed the notice 28 requirements under Rule 11(c). In any event, Mr. Dershowitz’s subjective intent is not - 22 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 23 of 26 1 controlling at this stage. As the Court previously noted, compliance with Rule 11 is largely 2 measured by an objective standard. See Smith v. Ricks, 31 F.3d 1478, 1488 (9th Cir. 1994). 3 Lastly, Mr. Dershowitz and those who have written on his behalf raise policy 4 reasons why Rule 11 should not apply, or should apply with lesser force, to govern 5 attorneys who sign filings as “of counsel” with the intent of denoting their limited 6 involvement in the issues raised therein. There is some merit to these points. The Court 7 recognizes the contributions to be made by attorneys with specific expertise who lack the 8 time or capacity to conduct the reasonable prefiling investigation Rule 11 requires. But an 9 attorney in this situation may make his or her limited contributions without signing the 10 pleadings. When an attorney makes the election to sign, his or her obligations under Rule 11 11 are not ambiguous and the Court must enforce them. See Bus. Guides, Inc., 498 U.S. at 12 549 (“Once we conclude that Rule 11 speaks to the matter at issue, our inquiry is 13 complete.”). Moreover, these policy arguments only go so far. A contrary ruling here could 14 diminish the significance of attorney signatures and cause courts to question whether they 15 can be relied upon with confidence. It would offer safe harbor to attorneys who designate 16 themselves “of counsel” no matter the inadequacy of the filings they sign. Taken to its 17 conclusion, it could undermine the purposes of Rule 11 “to deter baseless filings,” Cooter 18 & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990), and “to bring home to the individual 19 signer his personal, nondelegable responsibility.” Pavelic & LeFlore, 493 U.S. at 460. 20 2. 28 U.S.C. § 1927 21 The same analysis does not hold under section 1927. There are important 22 distinctions between these authorities. First, whereas Rule 11 applies to the presentation of 23 a filing at any stage in the case, section 1927 focuses on “unnecessary filings and tactics 24 once a lawsuit has begun.” Keegan Mgmt., 78 F.3d at 435. “The filing of a complaint may 25 be sanctioned pursuant to Rule 11 or a court’s inherent power, but it may not be sanctioned 26 pursuant to § 1927.” Id. Second, whereas the Rule 11 inquiry is largely objective, 27 Townsend, 929 F.2d at 1362, “[s]anctions pursuant to section 1927 must be supported by 28 a finding of subjective bad faith.” Blixseth v. Yellowstone Mtn. Club, LLC, 796 F.3d 1004, - 23 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 24 of 26 1 1008 (9th Cir. 2015). “[T]he conduct [must] be more severe than mere negligence, 2 inadvertence, or incompetence.” Cruz v. Savage, 896 F.2d 626, 632 (1st Cir. 1990). 3 Here, the Court imposed sanctions under section 1927 based on a finding that 4 Plaintiffs’ counsel acted at least recklessly by seeking an untimely and disruptive 5 preliminary injunction based on Plaintiffs’ inadequately supported claims. Central to this 6 unnecessary multiplication of the proceedings was the MPI, which bore Mr. Dershowitz’s 7 signature, as did the subsequent briefing in support. As noted, his telephonic presence was 8 also announced at the hearing on the MPI. These facts arguably could support a finding 9 that he acted recklessly in lending his credibility to this unnecessary litigation. Thus, the 10 Maricopa County Defendants maintain he is subject to sanctions under the statute. 11 Although this issue presents a closer call, the Court finds sanctions against Mr. 12 Dershowitz are unwarranted under section 1927. First, because his involvement was 13 limited, it is questionable whether he is responsible for “multipl[ying] the proceedings.” 28 14 U.S.C. § 1927; see FM Indus., Inc. v. Citicorp Credit Servs., Inc., 614 F.3d 335, 340 (7th 15 Cir. 2010) (“[P]ersonal responsibility remains essential to an award of sanctions under 16 § 1927.”). Second, while Mr. Dershowitz’s signature on the MPI and subsequent filings 17 arguably toed the line of recklessness, the Court finds it fell closer to the side of negligence, 18 which is insufficient for section 1927 liability. See Cruz, 896 F.2d at 632. 19 3. Sanctions 20 The remaining issue is the appropriate sanction. The Court already concluded that 21 payment of the Maricopa County Defendants’ attorneys’ fees is warranted in this matter 22 and that the reasonable attorneys’ fees total $122,200. The question is whether this sanction 23 should apply equally to Mr. Dershowitz, or whether a different sanction is warranted. 24 As noted, Rule 11 sanctions “must be limited to what suffices to deter repetition of 25 the conduct or comparable conduct by others similarly situated.” Fed. R. Civ. P. 11(c)(4). 26 The rule therefore serves the goals of both “specific and general deterrence.” Cooter & 27 Gell, 496 U.S. at 404. In determining the appropriate sanctions, the Advisory Committee 28 suggested that a court consider: - 24 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 25 of 26 1 2 3 4 5 6 Whether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended to injure; what effect it had on the litigation process in time or expense; whether the responsible person is trained in the law; what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; [and] what amount is needed to deter similar activity by other litigants . . . . 7 8 Fed. R. Civ. P. 11, Advisory Comm.’s Note (1993). It made clear courts retain “significant 9 discretion in determining what sanctions, if any, should be imposed for a violation.” Id. 10 The Court has considered numerous factors weighing in favor of, and against, the 11 imposition of monetary sanctions here. Several of those factors weigh heavily. On the one 12 hand, Plaintiff Lake, Mr. Lindell, and, to a lesser extent, Mr. Parker, each highlighted 13 Mr. Dershowitz’s involvement in this case in an apparent effort to bolster their claims with his 14 national profile. His involvement was cemented by the presence of his authorized signature on 15 numerous filings, which he admittedly reviewed only briefly, if at all. Setting aside his effort 16 to delimit his Rule 11 responsibilities by designating himself “of counsel,” Mr. Dershowitz 17 signed these documents and thereby certified they were adequately supported. In this sense, 18 his conduct was both intentional and, ultimately, detrimental. Moreover, he disregarded not 19 only his responsibilities under Rule 11, but also this Court’s rules regarding pro hac vice 20 admission, which he admittedly did not consult. Failing to impose meaningful sanctions here 21 might very well encourage others to follow suit by lending their credibility to documents filed 22 in court without facing any real consequence if their certifications prove hollow or incomplete. 23 The need for general deterrence is therefore significant. 24 On the other hand, Mr. Dershowitz’s involvement in this case was indeed limited 25 and he made an effort—albeit a misguided one—to communicate his limited role. He did 26 so apparently after discussing the issue with other attorneys and scholars. He therefore 27 claims, with some credibility, to have committed nothing more than an “honest mistake.” 28 (See, e.g., Tr. at 26:5–8.) If he did wrong, he has apologized and avows he will not do so - 25 - Case 2:22-cv-00677-JJT Document 133 Filed 07/14/23 Page 26 of 26 1 again. (Id. at 29:1–3.) The Court also finds some credibility in his claim that he was not 2 contemporaneously aware that others held him out as having a substantial role in the case; 3 his public participation appears largely to have been engineered by others. Thus, the 4 specific deterrence concerns in this case are diminished and need not be vindicated by the 5 imposition of joint and several liability for the full fee award. Further, any monetary 6 sanction imposed should not be so significant as to dissuade other legal experts from 7 providing advice or assistance in litigation out of fear of sanctions, provided they abide by 8 the requirements of the rules in signing filings and entering appearances in those matters. 9 The general deterrence concerns posed by Mr. Dershowitz’s conduct do require 10 vindication, however. Attorneys must be reminded that their duties are not qualified in the 11 way he suggests and that courts are entitled to rely on their signatures as certifications their 12 filings are well-founded. The Court therefore will reduce Mr. Dershowitz’s share of 13 responsibility to ten percent of the total fee award, but not eliminate it entirely. 14 IT IS THEREFORE ORDERED granting in part and denying in part the 15 Maricopa County Defendants’ Application for Attorneys’ Fees (Doc. 107). Plaintiffs’ 16 counsel Andrew D. Parker, the law firm of Parker Daniels Kibort LLC, Kurt B. Olsen, and 17 the law firm of Olsen Law PC, are held jointly and severally liable for the Maricopa County 18 Defendants’ attorneys’ fees in the amount of $122,200.00. Alan M. Dershowitz is held 19 jointly and severally liable with the aforementioned parties up to the amount of $12,220.00. 20 Payment shall be delivered to Maricopa County within thirty (30) days of this Order. 21 IT IS FURTHER ORDERED granting in part and denying in part the relief 22 requested in the Application for Order to Show Cause (Doc. 108) filed by Mr. Dershowitz. 23 IT IS FURTHER ORDERED that if any party appeals this Order or the Court’s 24 Order of December 1, 2022 (Doc. 106), the obligation to pay the above-described 25 attorneys’ fees is stayed pending resolution of all appeals. 26 Dated this 14th day of July, 2023. 27 28 Honorable John J. Tuchi United States District Judge - 26 -
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
