“The above-described conduct of plaintiff's counsel in this case supports a finding of bad faith.


                           MINUTE ORDER

Case No.: CV-98-3985 CAS (Shx)               April 15, 1999


Jim Holmes,                                       Carmelita Lee,
Deputy Clerk                                      Court Reporter


               FEES PURSUANT TO 28 U.S.C. § 1927


     The initial complaint filed in this action on May 21, 1998,
was 166 pages long, named over fifty defendants, and contained
twenty-four claims for relief arising out of plaintiff Michael
Pattinson's twenty-five year involvement with the Church of
Scientology.  On August 5, 1998, defendant Kendrick Moxon
(“Moxon”) served a motion for sanctions under Fed.  R.  Civ.  P.
11 on plaintiff's counsel, Graham Berry (“Berry”).  Pursuant to
Rule 11(c)(1)(A), plaintiff was allowed a twenty-one day period
to withdraw or amend his pleading.  Plaintiff subsequently filed
a first amended complaint on August 18, 1998.  The first amended
complaint consisted of 312 pages and included thirty claims for
relief.  Following the filing of the first amended complaint
Moxon filed a motion for Rule 11 sanctions with the Court.

     On September 28, 1998, this Court issued an order denying
Moxon's motion for sanctions and granting plaintiff leave to file
a second amended complaint.  The Court directed plaintiff to replead in
conformity with the Rule 8 requirement of a “simple,
concise and direct statement” of the facts upon which the claims
were based.  Plaintiff responded by filing a second amended
complaint on October 28, 1998.  The second amended complaint was
176 pages long, listed twenty-four claims for relief, and
contained many of the deficiencies of the previously filed
complaints.  At the same time, plaintiff's counsel requested
leave to file a “revised” second amended complaint, claiming that
word processing and other difficulties had made it impossible to
file a complaint in conformity with the Court's order.  The
“revised” second amended complaint filed on November 4, 1998, was
177 pages long and contained twenty-two claims for relief.  In
addition to filing the “revised” second amended complaint,
plaintiff's counsel filed a motion for leave to file a "radically
restructured, repleaded and reduced" third amended complaint.

     On November 17, 1998, Moxon filed a motion to dismiss the
second amended complaint, along with a renewed motion for Rule 11
sanctions.  In an order issued on January 21, 1999, this Court
granted Moxon's motion to dismiss the second amended complaint,
and allowed plaintiff leave to file a third amended complaint.
The Court also continued Moxon's renewed motion for Rule 11
sanctions, stating that it would be heard in conjunction with any
motion to dismiss the third amended complaint.

     Plaintiff filed a third amended complaint in this action on
February 9, 1999.  This complaint was seventy-four pages long,
and listed thirteen claims for relief.  Moxon filed a Motion to
Dismiss the Third Amended Complaint and Renewal of Request for
Sanctions on February 9, 1999.  On March 1, 1999, Moxon filed a
Motion for Costs, Expenses, and Attorneys' Fees Pursuant to 28
U.S.C. § 1927.  Plaintiff filed a notice of voluntary dismissal
of the case pursuant to Fed. R. Civ. P. 41(a) on March 19, 1999.
The motions pending before this Court are defendant Moxon's
motion for costs, expenses, and attorneys' fees, and his request
for sanctions.


     Moxon seeks costs, expenses, and attorneys' fees from Berry
pursuant to 28 U.S.C. § 1927.  Section 1927 provides that:

Any attorney ... who so multiplies the proceedings in any
     case unreasonably and vexatiously may be required by the
     court to satisfy personally the excess costs, expenses, and
     attorneys' fees reasonably incurred because of such conduct.

28 U.S.C. § 1927.  This section authorizes the imposition of
costs on attorneys responsible for the unnecessary multiplication
of proceedings.   The Ninth Circuit has held that section 1927
sanctions "must be supported by a finding of subjective bad
faith." New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1306
(9th Cir. 1989).  "Bad faith is present when an attorney
knowingly or recklessly raises a frivolous argument, or argues a
meritorious claim for the purpose of harassing an opponent."
Estate of Blas v. Winkler, 792 F.2d 858, 860 (9th Cir. 1986)
(citations omitted); see also West Coast Theater Corp. v. City of
Portland, 897 F.2d 1519, 1528 (9th Cir. 1990); Soules v.
Kauaians for Nukolii Campaign Comm., 849 F.2d 1176, 1185-86 (9th
Cir. 1988).  "Tactics undertaken with the intent to increase
expenses or delay may also support a finding of bad faith.  Even
if an attorney's arguments are meritorious, his conduct may be
sanctionable if in bad faith."  New Alaska Dev. Corp., 869 F.2d
at 1306.  An award under section 1927 is appropriate "where there
is no obvious violation of the technical rules, but where, within
the rules, the proceeding is conducted in bad faith for the
purpose of delay or increasing costs." Matter of Yagman, 796 F.2d
1165, 1187 (9th Cir. 1986).

In the present case, the Court finds that the claims alleged
against Moxon were asserted in bad faith, and resulted in an
unnecessary multiplication of the proceedings for Moxon.  Each of
the successive amended complaints in this action fails to state
facts supporting a basis for liability against Moxon, an attorney
who has previously represented Scientology organizations.  A
review of the claims in the third amended complaint demonstrates
that plaintiff has failed to allege any facts that would support
a viable claim for relief against Moxon.  The complaint contains
a detailed description of plaintiff's involvement with the Church
of Scientology and various individual members of the Church.
Plaintiff alleges claims for fraud, unfair business practices,
breach of fiduciary duty, false imprisonment, intentional
infliction of emotional distress, interference with business
relations, negligence, breach of contract and breach of the
covenant of good faith and fair dealing, restitution, unjust
enrichment, and declaratory and injunctive relief.  All of these
claims arise out of plaintiff's lengthy involvement with
Scientology.  The complaint centers around plaintiff's
contentions that he was lured into Scientology by a number of
fraudulent representations, and suffered for over twenty-five
years as a result of continued misrepresentations.  Plaintiff
claims, for example, that defendants falsely represented that
they could "cure" homosexuality.  Plaintiff contends that his
reliance on these misrepresentations caused him to expend large
sums of money for Scientology treatments.  The complaint sets
forth detailed descriptions of alleged mistreatment by plaintiff
at the hands of Scientology members, including allegations that
plaintiff was forced to perform labor for the Church without
adequate compensation, and that Scientology members failed to
maintain the confidentiality of certain disclosures made during
his membership.  Plaintiff describes the negative effect of his
involvement with Scientology on his artistic career and personal
life, and requests restitution of the amount of money he paid to
Scientology during the course of his membership.

     The seventy-four page complaint contains detailed
allegations concerning plaintiff's involvement with Scientology,
but lacks specific allegations with respect to Moxon's liability.
For example, the complaint contains the allegation that
"[d]efendants, and particularly Defendant Moxon, in concert with
others, continue to engage in illegal, outrageous, oppressive,
tortious and harassing activities against those who they deem to
be 'enemies' of Scientology."  Third Amended Complaint, ¶ 53.1
Yet plaintiff fails to demonstrate that Moxon engaged in the
allegedly fraudulent conduct that led to plaintiff's continued
involvement with Scientology, and ultimately formed the basis for
the claims in this lawsuit.  The earlier, lengthier complaints
filed in this action similarly lack any factual basis for naming
Moxon as a defendant.


  1  Plaintiff alleges that Moxon has filed a retaliatory
lawsuit against him following the filing of the instant action.
However, even if plaintiff could state a claim against Moxon for
filing a retaliatory suit, the complaint at hand is devoid of any
allegations of malicious prosecution.

     Despite the fact that the complaints do not specify the
basis for Moxon's liability, Moxon was apparently the first party
served with the complaint.  Plaintiff eventually dismissed the
majority of the named defendants, and only served the complaint
on eight defendants.  See Declaration of Graham E. Berry as to
Service and Proofs of Service.  After several attempts by Moxon
to dismiss the complaint, plaintiff voluntarily dismissed the
complaint.  Thus, at least four separate versions of the
complaint were served on Moxon, each time requiring him to
formulate a response to the allegations contained therein.  The
record reflects that Berry continued to amend the complaint, yet
failed to provide any basis for Moxon's liability to plaintiff.
The above-described conduct of plaintiff's counsel in this case
supports a finding of bad faith.

     Section 1927 allows for the recovery of excess attorneys'
fees, costs, and expenses incurred as a direct result of the
conduct leading to the multiplication of proceedings- See United
States v. Associated Convalescent Enter., Inc., 766 F.2d 1342,
1347-48 (9th Cir. 1985).  On September 28, 1998, this Court
allowed plaintiff to amend the complaint, and ordered plaintiff
to file a “short and plain” statement of the claim.  The Court
finds that because Berry failed to comply with the Court's order
of September 28, 1998, filings after that date represent an
unreasonable multiplication of the proceedings with respect to
defendant Moxon.


     Alternatively, the Court finds that the repeated filing of
complaints naming Moxon without demonstrating any factual support
for the allegations violated Rule 11.  Federal Rule of Civil
Procedure 11 requires that all pleadings and other motions filed
with a court must be signed by an attorney or an unrepresented
party, certifying that "to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under
the circumstances": (1) the paper is not presented for an
improper purpose; (2) the claims have a valid legal basis; and
(3) there is factual support for the allegations.  Fed.  R.  Civ.
P.  11(b).  Pursuant to Rule 11, the court may impose sanctions
on attorneys or unrepresented parties for submitting papers that
are frivolous, legally unreasonable, baseless, or filed for an
improper purpose.  See Simpson v. Lear Astronics Corp., 77 F.3d
1170, 1177 (9th Cir. 1996).  The imposition of sanctions under
Rule 11 lies in the discretion of the court.  Fed. R. Civ. P.

     As the history of this case demonstrates, plaintiff's
counsel repeatedly filed complaints naming Moxon as a defendant,
yet failed to provide factual support for these claims, or show
the existence of a valid legal basis for these claims.  The Court
therefore finds that the award of attorneys' fees, costs, and
expenses to defendant Moxon would be warranted under Rule 11 in
the alternative.


     Moxon shall have up to and including May 3, 1999, to submit
documentation as to his reasonable attorneys' fees, costs, and
expenses incurred in responding to papers filed by plaintiff
after September 28, 1998.  The Court will consider Moxon's
efforts to mitigate expenses in determining the appropriate
amount of fees.  Plaintiff's counsel shall have up to and
including May 10, 1999, to file a response to Moxon's submission.
Thereafter, the matter will be submitted, and the Court will
issue a ruling thereon.


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