United States District Court, D. Montana, Helena Division
BILLIE L. REDDING, Plaintiff,
PROSIGHT SPECIALTY MANAGEMENT COMPANY, INC. aka MUTUAL MARINE OFFICE, INC. PROSIGHT SPECIALTY INSURANCE GROUP, INC. aka NYMAGIC, INC. and NEW YORK MARINE AND GENERAL INSURANCE COMPANY, Defendants.
ORDER IN RESPONSE TO NINTH CIRCUIT REMAND
Charles C. Lovell Judge
case, on February 27, 2015, the district court granted
summary judgment to Defendants New York Marine and General
Insurance Company, et al., (“NYM”) and
granted NYM's motion for fees and costs, imposing a $107,
867.54 sanction of fees and costs on Plaintiff's counsel,
Linda Deola and Brian Miller, for their filing of a frivolous
motion to disqualify opposing counsel and discovery
violations and violation of the district court's order,
which forced NYM to file a motion to compel discovery. (ECF
No. 304.) NYM had requested $236, 316.94 in fees and costs,
but the district court granted $107, 867.54.
Deola and Brian Miller are both partners in the law firm of
Morrison, Sherwood, Wilson & Deola, PLLP
(“MSWD”), and the Court will refer to them
collectively as “MSWD.”
on June 25, 2015, the district court granted NYM's second
motion for fees and costs under the Court's inherent
authority and 28 U.S.C. §1927, imposing a sanction of
fees and costs against Plaintiff's legal team: Linda
Deola, Brian Miller, Richard Layne,  and MSWD. (ECF No. 340.) NYM
had requested fees and costs in the amount of $1, 473, 428.90
(excluding the fees and costs relating to the prior
sanction), but the district court granted $515, 119.50 in
fees and costs. Deola, Miller, Layne and MSWD appealed from
the district court's imposition of the two sanctions.
appellate panel of the Ninth Circuit affirmed the district
court's imposition of both sanctions on June 9, 2017.
(ECF No. 347.) The panel found that ample evidence in the
record supported the district court's finding that a
frivolous motion had been filed and that discovery misconduct
had been committed and that ample evidence supported
the sanction against Deola and Miller of $107, 867.54.
panel found further that sufficient evidence in the record
supported the finding that MSWD acted in ‘bad
faith' or was ‘reckless' in the litigation of
their client's claim against NYM, but that there was
insufficient evidence in the record to support a finding of
bad faith or recklessness as to Richard Layne. Redding v.
Prosight Specialty Management Co., Inc., 692 Fed.Appx.
447 (Mem.) (June 9, 2017, 9th Cir.). As to the
dollar amount of this second sanction, the panel said that
“because the district court awarded sanctions of $515,
119.90 in attorneys' fees and costs based on Deola's,
Miller's, and Layne's conduct, we remand to
the district court to give it an opportunity to reassess the
appropriate amount of sanctions.” Id. at 448,
panel further clarified its remand instruction on August 16,
2017, when it denied the petition for rehearing and
instructed as follows:
The Court instructs the district court on remand to reassess
the sanctions amount in light of our decision and the Supreme
Court's recent opinion in Goodyear Tire & Rubber
Co. v. Haeger, 137 S.Ct. 1178 (2017).
(ECF No. 349.)
Court received the Mandate filed by the Ninth Circuit on
August 24, 2017, returning jurisdiction to this district
court to carry out its instructions. (ECF No. 351.) Just
hours after the Mandate was filed, MSWD filed several motions
and other documents. These motions and papers appeared to
violate the Rule of Mandate first described by the U.S.
Supreme Court in 1895. See In re Sanford Fork & Tool
Co., 160 U.S. 247, 255 (1895).
“Combined Motion for Relief from Judgment and to
Dismiss Sanctions as Satisfied and Moot” (ECF No. 352)
represents MSWD's attempt to take another bite at the
apple. They ask this Court to go beyond the remand
instructions to consider its multiple arguments in favor of
nullifying the entire sanction against MSWD,
introducing argument available to MSWD prior to final
judgment in this case. In addition, MSWD has filed an
“Alternative Motion for Discovery and an Evidentiary
Hearing” (ECF No. 363), and a “Motion for Leave
to File Under Seal” a settlement agreement from CV
14-33-BU-SEH (ECF No. 354).
motions by MSWD represent nothing more than a fishing
expedition, a delay tactic, and a distraction. Instead, what
this Court must focus on is what the Ninth Circuit has told
this Court to do on remand: this Court must reassess the
amount of the sanction in light of the reversal of the
sanction against Richard Layne and the Haeger case.
“The rule of mandate requires a lower court to act on
the mandate of an appellate court, without variance or
examination, only execution.” United States v.
Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir.
2006) (quoting In re Sanford Fork & Tool Co.,
160 U.S. 247, 255 (1895)). With clear remand instructions
such as were received by this court in this case, “a
district court is limited by [the Ninth Circuit's] remand
in situations where the scope of the remand is clear.”
United States v. Thrasher, 483 F.3d 977, 982
(9th Cir. 2007). Neither party has requested the
Ninth Circuit to expand the scope of the remand.
first, the Court reconsiders the sanction in light of the
fact that attorney Richard Layne must not be included among
the sanctioned counsel. This is not a difficult task.
Although Mr. Layne actively participated in Plaintiff
Redding's underlying state court case, Mr. Layne never
participated actively in the instant case other than to file
his appearance pro hac vice. Mr. Layne's name
does not appear on the First Amended Complaint filed in this
case in state court and removed to this Court on October 19,
2012 (ECF No. 1-1), or on the Amended Complaint filed on
October 25, 2012 (ECF No. 7). He never appeared at any
hearing. He never filed a motion or a brief (except a brief
in opposition to having sanctions imposed against him, which
activity is after the relevant period of the sanction).
Court knows virtually nothing about Mr. Layne, except that he
referred Ms. Redding's underlying claim to local counsel
Ms. Deola, and together the two counsel litigated and then
settled that claim in state court. Then he apparently served
some background function in ...