Skinner v. Safeco Insurance Co., (10th Cir. 2004)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

SAFECO INSURANCE POLICY,

with Charles and Shannon Skinner,

CHARLES SKINNER and SHANNON

SKINNER, a married couple, and

Derek Skinner, their minor son,

Respondents-

Counterplaintiffs-Appellees,

v.

SAFECO INSURANCE COMPANY,

Petitioner-Counterdefendant.

JEFFRIES AND RUGGE, P.C.,

and RIPLEY B. HARWOOD, Jointly

and Severally,

Attorneys-Appellants.

No.
name="1">03-2105

(D.C. No. CIV-02-1504 WJ/WWD)

(D. N.M.)

ORDER AND JUDGMENT
name="txt*">(*)

Before LUCERO, McKAY, and

TYMKOVICH, Circuit Judges.

Appellants Jeffries and Rugge, P.C., and Ripley B. Harwood, Esq.

("Counsel"), appeal the district court's order awarding sanctions against them

jointly and severally, under Fed. R. Civ. P. 11(b)(2), for removing a case to

federal court in an untimely fashion on behalf of their former client, Safeco

Insurance Company. In awarding sanctions, the district court held that Counsel's

"belief that the 30-day [removal] time limit" under 28 U.S.C. § 1446(b) "did not

begin to run until the state court ruled on Safeco's motion to dismiss . . . was

not

objectively reasonable." Aplt. App., Vol. II at 343. "Safeco simply does not

show how any reasonable attorney could believe that this case was removable

nine months after" it became clear that diversity jurisdiction existed. Id.

Our jurisdiction arises under 28 U.S.C. § 1291. On appeal, Counsel assert

the district court erred (1) in awarding sanctions, and (2) in construing Counsel's

state court motion to appoint a competent and disinterested umpire as "a lawsuit-initiating

legal complaint." Aplt. Opening Br. at 3.

Federal Rule 11 requires an attorney to certify that any paper he or she

submits to the court is not presented for any improper purpose, that it contains

claims either warranted by existing law or by an argument for a change in the

law, and that it makes factual allegations that have or are likely to have

evidentiary support. Fed. R. Civ. P. 11. "We review all aspects of the district

court's Rule 11 determination for abuse of discretion." Laurino v. Tate, 220 F.3d

1213, 1218 (10th Cir. 2000); see also Cooter & Gell v. Hartmarx Corp.,

496 U.S.

384, 405 (1990). Reversal is appropriate only if the district court "based its

ruling on an erroneous view of the law or on a clearly erroneous assessment of the

evidence." Hughes v. City of Fort Collins, 926 F.2d 986, 988 (10th Cir. 1991)

(quoting Cooter & Gell, 496 U.S. at 405).

Having reviewed the briefs, the record, and applicable law in light of the

above-mentioned standards, we cannot say that the district court's imposition of

sanctions amounts to an abuse of discretion. We therefore AFFIRM the

district

court's grant of sanctions for substantially the same reasons as stated in its

memorandum opinion and order dated March 31, 2003.

Entered for the Court

Carlos F. Lucero

Circuit Judge

FOOTNOTES

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*. After examining the briefs and appellate

record, this panel has determined

unanimously to grant the parties' request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.

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