Lasar v. Ford Motor Company ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN MARK LASAR, 
Plaintiff-Appellee,
Nos. 03-35093
v.
03-35486
FORD MOTOR COMPANY,
Defendant-Appellant,  D.C. No.
CV-99-00177-DWM
and
OPINION
LAWRENCE SUTTER,
Appellant.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
May 5, 2004—Seattle, Washington
Filed March 3, 2005
Before: A. Wallace Tashima, Richard A. Paez, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Paez
2461
2464 LASAR v. FORD MOTOR CO.
COUNSEL
Theodore J. Boutrous, Jr., Los Angeles, California, for appel-
lant Lawrence Sutter.
Richard A. Derevan, Irvine, California, for appellant Ford
Motor Co.
LASAR v. FORD MOTOR CO. 2465
Michael D. Weisman, Boston, Massachusetts, for the appel-
lee.
OPINION
PAEZ, Circuit Judge:
While driving a Ford pick-up truck, plaintiff Mark Lasar
was involved in a rollover accident. Lasar subsequently
brought a products liability damages action against Ford
Motor Company. This appeal arises from sanctions that the
district court levied against Ford and its counsel, Lawrence
Sutter, for statements that Sutter made during his opening
statement to the jury that ultimately resulted in a mistrial.
In imposing sanctions, the district court determined that
Sutter violated two pretrial in limine orders prohibiting Ford
from introducing evidence that Lasar had been drinking
before the accident and had not been wearing his seatbelt at
the time of the accident. At the conclusion of a sanctions hear-
ing, the district court ordered Ford and Sutter to pay sanctions
to Lasar and to the District Court. The sanctions were
intended to reimburse Lasar for unnecessary expenses and
attorney’s fees, and to reimburse the district court for the
costs of empaneling the jury. The court also found Sutter in
contempt of court for deliberately violating the pretrial order
relating to alcohol use. Finally, the court revoked Sutter’s pro
hac vice status and permanently barred Sutter from appearing
pro hac vice in the Missoula Division of the United States
District Court for the District of Montana.
Ford and Sutter timely appealed the district court’s ruling.
We address four questions relating to the court’s imposition
of sanctions. First, did the district court provide adequate due
process? Second, did the court comply with the procedural
requirements of its local rules? Third, did Sutter violate the
2466 LASAR v. FORD MOTOR CO.
pretrial evidentiary rulings and fail to disclose a prior disci-
plinary matter in his pro hac vice application? Finally, were
the sanctions, and rulings relating to Sutter’s pro hac vice sta-
tus, an appropriate response to Sutter’s misconduct? With one
limited exception, we answer each question in the affirmative.
We affirm the district court’s ruling as to all sanctions except
the permanent ban on Sutter’s pro hac vice appearance before
that court, which we reverse.
We also must decide whether the settlement of the dispute
between Ford and Lasar while these appeals were pending
renders them moot, so that we lack jurisdiction. Although the
settlement agreement barred Ford from obtaining reimburse-
ment of the monetary sanctions it paid to Lasar, we conclude
that the agreement did not affect Ford’s right to seek reim-
bursement of the sanctions it paid to the district court. Simi-
larly, since Sutter was not a party to the settlement agreement,
we conclude that it could not affect his right to appeal the
sanctions award, the contempt citation or the pro hac vice rul-
ings.1
I.
Steven Lasar was severely injured when he was ejected
from his Ford Ranger during a rollover accident. Lasar filed
a products liability action against Ford alleging that Ford had
designed the Ranger’s door-latch mechanism defectively. The
district court granted pro hac vice status to Sutter, an attorney
from Ohio, to represent Ford at trial. Local Rule 83.3(e),
United States District Court for the District of Montana
(“Local Rules”). John Stephenson served as Sutter’s local co-
counsel.
Before the jury trial began, the magistrate judge issued two
1
Although Lasar does not have a personal stake in the outcome of this
appeal, he nonetheless filed a brief supporting affirmance of the district
court’s sanctions order. We appreciate the thorough briefing by all parties.
LASAR v. FORD MOTOR CO. 2467
in limine rulings. The first prohibited Ford from introducing
evidence that Lasar had consumed alcohol on the day of the
accident. The second prevented Ford from telling the jury that
Lasar was not wearing his seat belt at the time of the accident.
Ford challenged these rulings before the district judge, but the
district judge overruled both objections.
When the trial began, Sutter made two comments during
his opening statement that the district court ultimately deter-
mined were violations of the pretrial orders. Initially, Sutter
told the jury:
At about 5:00 that morning, Mr. Lasar got out of bed
and went hunting for the morning. Some time in the
afternoon, he met up with some of his friends and
spent the day playing pool, visiting some local estab-
lishments. Somewhere around 10:00 that night, he
made the decision to drive himself home. He got into
his car and he began his way back to his homestead.
Later in his opening statement, Sutter stated:
Now, inside the vehicle, something else was going
on; Lasar was what we call a free-floating body. His
body was banting about inside the car as it was roll-
ing over. And because of what happens during the
rollover, something all of us learned in high school
and most of us tried to forget, centrifugal force. All
that is, is something spinning around like a yo-yo on
a string; it wants to keep going outward.
Lasar’s attorney requested a sidebar at the conclusion of Sut-
ter’s opening statement, but the district court did not allow
Lasar to present his objection until the end of the day. When
the court permitted Lasar’s attorney to explain the objection,
Lasar’s attorney argued that Sutter’s reference to Lasar “visit-
ing some local establishments” and to Lasar’s “free-floating
body” violated the evidentiary rulings. Although Lasar’s
2468 LASAR v. FORD MOTOR CO.
attorney requested a curative instruction at a later point in the
trial, he also noted a dilemma: “how do we correct the prob-
lem without drawing attention to it?”
The district court immediately stated that both of Sutter’s
statements were “absolutely unacceptable violations of the
orders in limine . . . .” The court then informed Lasar’s attor-
ney that it would grant a mistrial and award Lasar his costs.
Before finally deciding the issue, however, the district court
offered Sutter and Stephenson an opportunity to respond. Sut-
ter, in response to the court’s concerns, argued that he had uti-
lized great care in preparing his opening statement, that his
reference to Lasar playing pool at some local establishments
was ambiguous, and that it was impossible to describe the
accident without discussing Lasar’s free-floating body.
Lasar’s attorney requested that the district court direct a ver-
dict in Lasar’s favor, but the district court rejected this option,
stating “Ford has a legitimate defense.”
The next morning, Lasar moved for a mistrial. After hear-
ing additional oral argument about Sutter’s opening statement,
the district court stated that it was “inconceivable” that Sutter
could argue “with a straight face” that he had not violated the
order regarding alcohol. The court determined that a curative
instruction would not “overcome the prejudice” of Sutter’s
opening statement. Accordingly, the court granted Lasar’s
motion for a mistrial and discharged the jury.
The court also notified the parties that it was prepared to
impose monetary sanctions based on “an intentional effort,
reckless and in bad faith . . . to ignore the court’s orders . . . .”
The court ordered Lasar’s attorneys to prepare an affidavit
detailing Lasar’s costs and attorney’s fees incurred over the
previous two weeks and to serve the affidavit on Ford and
Sutter by the end of the day. The court also orally notified the
parties that it would issue an order to show cause (“OSC”)
why Sutter should not be held in contempt and have his pro
LASAR v. FORD MOTOR CO. 2469
hac vice status revoked. Later that day, the district court
issued an OSC.
Two days later, the court held a sanctions hearing. At the
hearing, Stephenson, Sutter’s co-counsel, questioned Sutter.
During the course of his examination, Stephenson asked Sut-
ter, “Have you ever been found in contempt?” Sutter replied:
I was involved in a case approximately two years
ago called [Kaffeman] vs. Yellow Freight with a
judge in Cleveland, Ohio by the name of Patricia
Cleary who found me in contempt for attempting to
place on the record certain objections. After the trial,
I filed a motion with the Ohio Supreme Court to
have her recused from that litigation. The Ohio
Supreme Court reviewed the transcript in total and
issued an opinion exonerating me and indicating that
I had taken reasonable steps to put things on the
record and removing Judge Cleary from further
activity in that case.
On cross-examination, Sutter again testified that he “was
found in contempt” in the Kaffeman case.2 Lasar’s attorney
then attempted to introduce an Ohio Supreme Court opinion
in that case, which resulted in the disqualification of the trial
judge. See In re Disqualification of Cleary, 723 N.E.2d at
1108. Stephenson did not object, stating, “[w]e cited to the
Court[;] we have no objection.”
The court also questioned Sutter about the court’s rulings
in the Kaffeman case. For the third time, Sutter testified that
the judge in the Kaffeman case had “held me in contempt.”
The district court asked Sutter why he had not disclosed the
2
This case, Kaffeman v. Maclin, resulted in two published opinions: In
re Disqualification of Cleary, 723 N.E.2d 1106 (Ohio 2000), and Kaffe-
man v. Maclin, 781 N.E.2d 1050 (Ohio Ct. App. 2002), both of which we
discuss in greater detail in Section IV.B.
2470 LASAR v. FORD MOTOR CO.
contempt citation in his pro hac vice application. Sutter ini-
tially responded that under his reading of the Local Rules, he
“thought that the only thing I had to disclose was if I had been
sanctioned by a Bar Association or the local investigatory
body.” The court pointed out that the Local Rules require
attorneys applying for pro hac vice admission to disclose if
they have “ever been held in contempt, [or] otherwise disci-
plined by any court for disobedience to its rules or orders
. . . .” Local Rule 83.3(e)(3)(E). Sutter then explained:
Well, Your Honor, to be perfectly honest with you,
I told John Stephenson two days ago that I had never
been held in contempt, and I truly believe that to be
true. I have [sic] the copy of the . . . Patty Cleary [the
judge in Kaffeman] case faxed to me last night and
it says in that opinion that I was held in contempt,
and that’s the only reason that I said I was held in
contempt today. There was no such hearing like this,
there was nothing like this that occurred.
At the conclusion of the hearing, the district court informed
the parties that it intended to impose monetary sanctions, but
would take into account Sutter’s testimony and consider
whether to hold Sutter in contempt or “deprive him of his
right to appear in this court pro hac vice.”
Relying mainly on its inherent authority,3 the district court
imposed monetary sanctions, held Sutter in contempt, and
3
In imposing monetary sanctions, the district court relied on both its
inherent authority and Local Rule 83.14(b) and (c). Local Rule 83.14(b)
provides that “[a]n attorney may be subject to disciplinary action . . . for
[a] . . . violation of any court order.” Local Rule 83.14(c) specifies that
“[d]iscipline may consist of one or more of the following: (1) disbarment;
(2) suspension; (3) public censure; (4) private reprimand; (5) probation
with or without conditions; (6) restitution; (7) fines and/or assessment of
costs; and (8) referral to appropriate disciplinary authority.” The district
court did not rely on Local Rule 83.14 when it held Sutter in contempt and
revoked his pro hac vice status.
LASAR v. FORD MOTOR CO. 2471
revoked his pro hac vice status. Lasar v. Ford Motor Co., 239
F. Supp. 2d 1022, 1025-26 (D. Mont. 2003). The court
imposed monetary sanctions against Ford and Sutter because
Sutter “intentionally and in bad faith” violated the in limine
orders and monetary sanctions were “necessary to reimburse
Lasar and the Court [and] . . . to vindicate the Court’s author-
ity and to ensure that Ford, through its lawyers, will not disre-
gard or attempt to circumvent court orders in this or any other
case.” Id. at 1027, 1031. The court awarded $61,397.50 to
Lasar—assessed jointly and severally against Ford and Sutter
—and required Ford to pay $5,496.15 to the Clerk of Court
to reimburse the court for the cost of empaneling the jury. Id.
at 1028. Second, the court found Sutter in contempt because
of his violation of the order in limine prohibiting references
to Lasar’s use of alcohol.4 Although the district court’s order
is not precise, the contempt finding provided an alternative
basis for the imposition of compensatory monetary sanctions
against Sutter. Id. at 1031-32. Third, the district court revoked
Sutter’s pro hac vice status on the basis of Sutter’s violation
of both pretrial orders, his failure to disclose the contempt
citation in the Kaffeman case, and his dishonest testimony at
the sanctions hearing. Id. at 1034.
Finally, the district court concluded that Sutter would “no
longer be allowed to represent Ford in this case or any other
case in the Missoula Division of the Montana Federal District
Court.” Id.
The district court later denied Ford and Sutter’s motion for
reconsideration. In its order, the court clarified that “Sutter’s
failure to disclose his prior contempt sanction was not the rea-
son for holding him in contempt or for revoking his pro hac
vice status. Rather, it was additional evidence of his dishon-
esty, and it was considered as a result of his own testimony.”
4
The court did not rely on Sutter’s violation of the seat-belt related order
to support the contempt citation because the court determined that this vio-
lation could have been cured by a jury instruction. Id. at 1032 n.10.
2472 LASAR v. FORD MOTOR CO.
After Ford and Sutter filed their appeals, Ford settled
Lasar’s damages action and the district court dismissed the
case with prejudice. Ford and Sutter then filed a second
amended notice of appeal, which encompassed the court’s
order of dismissal.
II.
Initially, we must consider whether there is still a live case
or controversy in light of the settlement agreement and the
dismissal order. “[A] case is moot when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.” Powell v. McCormack, 395 U.S.
486, 496 (1969). To determine whether a case is moot, a court
must ask whether a change in the circumstances existing at
the beginning of the litigation has “forestalled any occasion
for meaningful relief” that the court could grant. West v. Sec’y
of the Dep’t of Transp., 206 F.3d 920, 925 n.4 (9th Cir. 2000)
(internal citation and quotation marks omitted).
[1] Although the district court’s order stated that “[n]othing
herein shall affect the appeal by Ford and its counsel,” the dis-
trict court could not create a case or controversy where none
existed. In both the district court’s order of dismissal and the
settlement agreement, Ford agreed, in the event of a success-
ful appeal, not to seek reimbursement from Lasar or his coun-
sel for the monetary sanctions that it had paid to them.
Accordingly, there is no longer a live controversy between
Ford and Lasar over the sanctions that Ford paid to Lasar. See
Riverhead Sav. Bank v. Nat’l Mortgage Equity Corp., 893
F.2d 1109, 1112 (9th Cir. 1990) (holding that settlement
mooted an appeal over fees payable directly to a party rather
than to the court). Any claim by Ford to reimbursement of the
$61,397.50 is therefore moot. And because Ford paid the
entire amount of the sanctions due to Lasar for which Ford
and Sutter were jointly and severally liable, Sutter has no
stake in an appeal arising out of these sanctions. Thus, we
LASAR v. FORD MOTOR CO. 2473
conclude that any challenge raised by Ford or Sutter related
to the $61,397.50 in sanctions awarded to Lasar is moot.
Ford retained its right, however, to challenge and seek
reimbursement of the $5,496.15 in sanctions that it paid to the
clerk of the district court. To the extent that Ford’s claim is
moot, it is moot only as to the $61,397.50 paid to Lasar;
Ford’s challenge to the $5,496.15 in compensatory sanctions
is still viable. Id. (“Because sanctions assessed against coun-
sel or a party and payable to the clerk of court . . . are not sub-
ject to revocation by the parties, they are reviewable on
appeal regardless of whether the parties settle.”). Indeed, the
district court’s dismissal order recognized that “nothing
herein shall preclude Ford from attempting to recover the jury
costs paid to the Court in the event the Appellate Court deter-
mines that the jury cost sanction was improperly imposed by
this Court.” Ford therefore has a stake in the outcome of our
evaluation of the legality of the monetary sanctions that were
made payable to the district court. This issue is not moot.
Finally, we note that the settlement of the underlying case
in no way moots Sutter’s interest in challenging the district
court’s contempt citation and the court’s revocation of his pro
hac vice status. Notably, such a “disciplinary action and con-
sequent disqualification may expose [Sutter] to further sanc-
tions by the bar and portends adverse effects upon counsel’s
careers and public image. . . . The controversy thus remains
live and demands consideration.” Kleiner v. First Nat’l Bank
of Atlanta, 751 F.2d 1193, 1200 n.14 (11th Cir. 1985).
Furthermore, because Sutter was not a party to the settle-
ment, that agreement should not foreclose his right to seek
appellate review. See Johnson v. Bd. of County Comm’rs for
Fremont, 85 F.3d 489, 493 (10th Cir. 1996) (holding that a
stipulation by the parties “has no effect on the attorneys’ right
to appeal because they were not parties to the stipulation”). A
contrary result would create conflicting incentives for attor-
neys. As one of our sister circuits has explained, a “refusal to
2474 LASAR v. FORD MOTOR CO.
grant jurisdiction over an appeal of sanctions after the under-
lying suit has been settled thrusts a personal conflict upon the
attorney—by settling a case in the client’s interest he may
have to forfeit a personal right to appeal the sanctions levied
against him.” Perkins v. Gen. Motors Corp., 965 F.2d 597,
600 (8th Cir. 1992).
[2] In sum, we agree with the prevailing view that “settle-
ment of an underlying case does not preclude appellate review
of an order disqualifying an attorney from further representa-
tion insofar as that order rests on grounds that could harm his
or her professional reputation.” Johnson, 85 F.3d at 492. We
proceed to the merits of Ford’s and Sutter’s appeals.
III.
Ford and Sutter initially argue that the district court vio-
lated principles of due process when it imposed monetary
sanctions, held Sutter in contempt and revoked Sutter’s pro
hac vice status. Because the decision to impose sanctions
under its inherent authority is within the sound discretion of
the district court, we will not overturn its decision unless the
court committed an error of law or the court’s factual determi-
nations were clearly erroneous. Weissman v. Quail Lodge
Inc., 179 F.3d 1194, 1197-98 (9th Cir. 1999). Under this stan-
dard, we review de novo issues of law, including whether the
district court provided adequate process before imposing
sanctions. Thomas, Head & Greisen Employees Trust v.
Buster, 95 F.3d 1449, 1458 (9th Cir. 1996).
A.
[3] We first consider whether the district court provided
Ford and Sutter with adequate procedural due process before
imposing sanctions. As this court recently reaffirmed, notice
and an opportunity to be heard are indispensable prerequisites
for the types of sanctions5 imposed by the district court. Cole
5
The due process requirements for contempt citations and monetary
sanctions are similar. F.J. Hanshaw Enters., Inc. v. Emerald River Dev.,
LASAR v. FORD MOTOR CO. 2475
v. United States Dist. Court, 366 F.3d 813, 821 (9th Cir.
2004) (“for the court to sanction an attorney, procedural due
process requires notice and an opportunity to be heard”); see
also Weissman, 179 F.3d at 1198. In particular, “[i]t is axiom-
atic that procedural due process requires notice of the grounds
for, and possible types of, sanctions.” Cole, 366 F.3d at 821.
Notice and an opportunity to be heard “are essential in view
of the heightened potential for abuse posed by the contempt
power[,]” and “[t]he provision of [these procedural protec-
tions] accords with our historic notions of elementary fair-
ness.” Taylor v. Hayes, 418 U.S. 488, 500 (1974). These
minimal procedural requirements give an attorney an opportu-
nity to argue that his actions were an acceptable means of rep-
resenting his client, to present mitigating circumstances, or to
apologize to the court for his conduct. See id. at 499. Thus,
Ford and Sutter were entitled to notice and an opportunity to
be heard before the district court imposed sanctions.
[4] Ford and Sutter claim a right to more than notice and
an opportunity to be heard. They argue that they were entitled
to the full panoply of procedural protections that are normally
reserved for defendants charged with a criminal offense, such
as an independent prosecutor, proof beyond a reasonable
doubt, and a jury trial. When monetary sanctions or a con-
tempt citation are criminal in nature, these additional protec-
tions may be required. Bagwell, 512 U.S. at 826. In contrast,
civil sanctions may be imposed so long as the court provides
adequate notice and an opportunity to be heard. Id. at 827.
[5] In the context of a sentence of imprisonment for con-
temptuous conduct, the Supreme Court has long distinguished
Inc., 244 F.3d 1128, 1137 (9th Cir. 2001) (“Although contempt and sanc-
tions are not identical, the principles the Supreme Court articulated for
cases of contempt in Int’l Union, United Mine Workers of Am. v. Bagwell,
512 U.S. 821[ ] (1994), guide our determination of what procedural pro-
tections are necessary in imposing sanctions under a court’s inherent pow-
ers.”).
2476 LASAR v. FORD MOTOR CO.
criminal contempts from civil contempts by looking to the
“character and purpose” of the sentence. See Gompers v.
Bucks Stove & Range Co., 221 U.S. 418, 441 (1911). Con-
finement for contempt is criminal if it is “punitive” and for
the purpose of “vindicat[ing] the authority of the court.” Id.
In contrast, contempt is civil if it is “remedial” and “for the
benefit of the complainant.” Id. A civil contemnor “carries the
keys of his prison in his own pocket” because civil contempt
is “intended to be remedial by coercing the defendant to do
what he had refused to do.” Id. at 442 (internal quotation
marks omitted). By contrast, imprisonment for a definite
period of time, regardless of the contemnor’s future actions,
is criminal because the contemnor is “furnished no key.” Id.
As the Supreme Court also has explained, “[t]his dichotomy
between coercive and punitive imprisonment has been
extended to the fine context.” Bagwell, 512 U.S. at 829. Thus,
“[w]here a fine is not compensatory, it is civil only if the con-
temnor is afforded an opportunity to purge.” Id.
[6] Although the monetary sanctions imposed by the dis-
trict court in this case have some attributes of criminal sanc-
tions, they ultimately qualify as civil sanctions that need be
preceded only by adequate notice and an opportunity to be
heard. It is true that Ford and Sutter did not hold the keys to
their cells, for they had no way of avoiding the monetary
sanctions, the contempt finding, or the revocation of Sutter’s
pro hac vice status. The monetary sanctions imposed, how-
ever, were compensatory in nature because they were
designed to compensate Lasar for unnecessary costs and attor-
ney’s fees and to reimburse the district court for the jury costs
incurred as a result of the mistrial. It is well-established that
compensatory fines are civil sanctions in the context of con-
tempt proceedings. See Bagwell, 512 U.S. at 829 (“A con-
tempt fine . . . is considered civil and remedial if it . . .
‘compensate[s] the complainant for losses sustained.’ ” (quot-
ing United States v. Mine Workers of Am., 330 U.S. 258, 303-
04 (1947))). Indeed, a court’s decision to assess costs has
“never . . . been considered [a] criminal” sanction. Id. at 833.
 LASAR v. FORD MOTOR CO. 2477
We recognize that the Supreme Court has tended to classify
fines paid to the court as punitive fines, while fines payable
to another party are remedial. See Hicks ex rel. Feiock v.
Feiock, 485 U.S. 624, 632 (1988). We have recognized, how-
ever, that while the identity of the party who receives the fine
is an important indicator of whether the fine is criminal or
civil, this factor is not determinative. F.J. Hanshaw Enters.,
Inc., 244 F.3d at 1138 n.7. For example, we have held that a
fine payable to an opposing party was punitive because it was
not designed “to compensate [the opposing party] for any
actual or estimated harm.” Bingman v. Ward, 100 F.3d 653,
656 (9th Cir. 1996).
[7] Although we have never had occasion to consider
whether a sanction for bad faith conduct,6 payable to a district
court, that was tailored to reimburse the court for its expenses,
can qualify as a compensatory civil sanction, the Seventh Cir-
cuit’s decision in United States v. Dowell is instructive. 257
F.3d 694 (7th Cir. 2001). There, the district court had required
a lawyer to pay a fine equal to the cost of empaneling a jury
that the court sustained when the lawyer failed to appear in
court on the first day of trial. Id. at 696-97. The Seventh Cir-
cuit held that, although the fine was payable to the district
court, the fine was a compensatory civil sanction because “it
compensates the court and the government for actual losses
sustained as a result of [the lawyer’s] refusal to appear at trial.
6
In Zambrano v. City of Tustin, we held that a district court could not
award sanctions payable to the court “to compensate the judicial branch
for being badly used by counsel.” 885 F.2d 1473, 1475-76 (9th Cir. 1989)
(internal quotation marks omitted). The basis for the court’s sanctions
order was counsel’s negligent failure to obtain admission to the bar of the
Central District of California. We specifically did not address the question
of whether willful conduct would justify a narrowly tailored sanctions
award that was intended to reimburse the court for unnecessary expenses.
Id. at 1478. Here, the compensatory sanctions ordered payable to the dis-
trict court were based on Sutter’s bad faith violation of the in limine
alcohol-related order. Thus, Zambrano does not foreclose the result we
reach today.
2478 LASAR v. FORD MOTOR CO.
[The lawyer’s] recalcitrance imposed real loss; impaneling a
jury costs money, and the district court tailored its sanction to
compensate for these actual costs.” Id. at 699-700. As the
Seventh Circuit explained, the Supreme Court’s decision in
Hicks involved a contempt for “an individual’s failure to pay
court-ordered child support payments, and the Court did not
contemplate a situation where the court to which the fine was
ordered to be paid was in effect the injured complainant.” Id.
at 700.
[8] We agree with the Dowell court’s approach. In the
instant case, the district court, after finding that Sutter deliber-
ately violated the pretrial in limine orders, carefully limited
the sanctions that were payable to the court to an amount
“necessary to reimburse . . . the Court” for the costs related
to empaneling the jury. Lasar, 239 F. Supp. 2d at 1031.
Accordingly, this monetary sanction levied against Ford was
compensatory and civil in nature, and need only be preceded
by notice and an opportunity to be heard.
[9] As for the contempt citation and the revocation of Sut-
ter’s pro hac vice status, neither one resulted in a sentence of
imprisonment. Moreover, although the contempt citation pro-
vided an alternative basis for the substantial monetary sanc-
tions, those sanctions were compensatory in nature. We can
find no precedent that supports Ford and Sutter’s position that
these types of sanctions, which do not result in fines or
imprisonment, can qualify as criminal sanctions that necessi-
tate full-blown criminal trials. See, e.g., Hicks, 485 U.S. at
632 (discussing the necessity of criminal procedural protec-
tions when the contempt punishment is either punitive impris-
onment or punitive fines). To the contrary, we have held that
a district court need only provide notice and an opportunity to
be heard before revoking an attorney’s pro hac vice status,
and we have specified that the “opportunity to be heard does
not require an oral or evidentiary hearing on the issue.” Pac.
Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d
1112, 1118 (9th Cir. 2000). Indeed, we have held that “[t]he
LASAR v. FORD MOTOR CO. 2479
opportunity to brief the issue fully satisfies due process
requirements.” Id. If due process does not require an evidenti-
ary hearing, it cannot require the greater procedural protec-
tions that normally accompany criminal trials.
[10] Our position is consistent with that of the Third Cir-
cuit, which has held that “a full scale hearing is not required
in every case” in which an attorney’s pro hac vice status is
subject to revocation. See Johnson v. Trueblood, 629 F.2d
302, 304 (3d Cir. 1980). Similarly, in finding that the proce-
dures leading up to a criminal “petty contempt” finding failed
to satisfy due process requirements, the Supreme Court has
instructed that:
before an attorney is finally adjudicated in contempt
and sentenced after trial for conduct during trial, he
should have reasonable notice of the specific charges
and opportunity to be heard in his own behalf. This
is not to say, however, that a full-scale trial is appro-
priate. Usually, the events have occurred before the
judge’s own eyes, and a reporter’s transcript is avail-
able.
Taylor, 418 U.S. at 498-99. Here, the district judge witnessed
Sutter’s opening statement and could refer back to notes of
the trial to refresh his memory. Sutter also was afforded an
opportunity to explain his conduct before the district court
imposed sanctions and ruled on the OSC. So long as the court
did not impose serious criminal penalties, due process did not
require the district court to conduct a full-blown trial. See F.J.
Hanshaw Enters., Inc., 244 F.3d at 1138 (explaining that con-
tempt which occurs in the court’s presence can be punished
at a later time after providing notice and an opportunity to be
heard and that a full criminal jury trial is only required if seri-
ous criminal penalties are imposed).7 Thus, Ford and Sutter
7
We have not established a “precise limit for a ‘serious’ sanction enti-
tling an individual to a jury trial.” Id. at 1139 n.10. We have noted, how-
2480 LASAR v. FORD MOTOR CO.
were entitled only to notice and an opportunity to be heard
before sanctions were imposed.8
B.
The district court provided notice and an opportunity to be
heard before imposing any sanctions. At the conclusion of the
hearing on Lasar’s motion for a mistrial, the court notified the
parties that sanctions were warranted. The court specifically
directed Lasar to prepare an affidavit detailing his fees and
costs over the previous two weeks and to serve the affidavit
on Stephenson and Sutter by the end of the day. The court
also stated that it was “going to issue a show cause order for
Mr. Sutter to show cause why he should not be held in con-
tempt . . . [and] why he should not have his right to appear
here pro hoc [sic] vice withdrawn from the Court and that he
be barred from further participation in this case.” Later that
day, the district court issued the OSC notifying the parties of
the potential monetary sanctions, contempt citation, and revo-
cation of Sutter’s pro hac vice status. Thus, Sutter and Ford
had notice that these sanctions could be imposed, and the
sanctions hearing provided Sutter and Ford with an opportu-
nity to contest the imposition of sanctions.9
ever, that the Supreme Court has implied that “$5,000, at least in 1989
dollars, is the cutoff for a serious fine warranting a jury trial.” Id. (citing
Blanton v. City of N. Las Vegas, 489 U.S. 538, 544 (1989)). Although the
monetary sanction imposed on Ford exceeded this threshold, it was not a
criminal sanction because it was compensatory. As explained in the text,
compensatory monetary sanctions, as opposed to criminal fines, need only
be preceded by notice and an opportunity to be heard.
8
Lasar contends that Ford and Sutter should be judicially estopped from
arguing that the sanctions were criminal because of representations made
by Sutter in subsequent pro hac vice applications. We do not address this
argument because we conclude that the sanctions were not criminal in
nature. And because we have no need to examine the papers presented by
Lasar to support his assessment, we deny the request that we strike por-
tions of Lasar’s brief and award other forms of relief.
9
After Ford and Sutter received the OSC, they had two days to prepare
for the sanctions hearing. They do not contend that this period of time was
insufficient to prepare a meaningful response.
LASAR v. FORD MOTOR CO. 2481
Ford and Sutter argue that the notice was inadequate
because they were not informed that the court was consider-
ing sanctioning Sutter for failing to disclose the Kaffeman
disciplinary matter on his pro hac vice application. Initially,
we note that the monetary sanction and the contempt citation
were not imposed because of this omission. Even for the revo-
cation of pro hac vice status, the omission was only “addi-
tional evidence of [Sutter’s] dishonesty.”
Second, it was Sutter, not the district court, who raised the
Kaffeman decision. The first mention of the Kaffeman case
occurred when Sutter, responding to a question from his
co-counsel, stated that he had been held “in contempt” by
Judge Cleary in the Kaffeman case. As the district court
explained, the Kaffeman decision “was considered as a result
of [Sutter’s] own testimony.” We decline to fault the district
court for carefully considering all of Sutter’s testimony and
for being familiar with the court’s pro hac vice requirements.
[11] We agree, however, with Sutter that the district court’s
lifetime ban on Sutter appearing pro hac vice in the Missoula
Division on behalf of Ford or any other client without giving
adequate notice and an opportunity to respond was an abuse
of discretion. The district court never notified the parties that
it was considering a lifetime ban on Sutter appearing pro hac
vice in the Missoula Division.10 Due process required the dis-
trict court to notify the parties of the types of sanctions that
it was contemplating. See Cole, 366 F.3d at 821. Accordingly,
10
Because, by definition, pro hac vice status is granted on a case-by-
case basis, a lifetime ban makes little sense. That is, every time an applica-
tion is submitted for approval, the court will have the opportunity to
review the applicant’s suitability to appear pro hac vice. We also note an
ambiguity in the district court’s order prohibiting Sutter from “represent[-
ing] Ford in this case or any other case in the Missoula Division . . . .”
Lasar, 239 F. Supp. at 1034. It is unclear whether “represent Ford” modi-
fies “any other case,” as well as “in this case,” or whether “any other case”
includes cases in which Sutter represents a client other than Ford. Because
we vacate the lifetime ban, we need not address this issue. ‘
2482 LASAR v. FORD MOTOR CO.
we reverse the district court’s imposition of a lifetime pro hac
vice ban on Sutter because it violated Sutter’s due process
right to notice.
IV.
Ford and Sutter also contend that in revoking Sutter’s pro
hac vice status, the district court did not comply with the pro-
cedures for disciplining attorneys established by the Local
Rules. See Local Rule 8.14. According to Ford and Sutter, the
court could not discipline Sutter for omitting information
from his pro hac vice application without first referring the
matter to the Chief Judge of the District to appoint an investi-
gator and independent counsel to prosecute the alleged viola-
tion. And revocation could be ordered only upon clear and
convincing evidence that Lasar wilfully violated the disclo-
sure requirements.
Ford and Sutter, however, ignore two important provisos in
the Local Rules. First, Local Rule 83.14(a) provides that
“[n]othing contained in this Rule shall be construed to limit
or deny the Court such powers as are necessary to maintain
control over proceedings before it, such as contempt power.”
Second, this rule clarifies that “[n]othing in this section pre-
cludes the Court or any judge of the Court from assessing
sanctions for violations of local practice and procedure rules
or other applicable statutes and rules.” Local Rule 83.14(b).
Thus, Rule 83.14 preserves the presiding judge’s inherent
authority to impose sanctions and to hold an attorney in con-
tempt, while providing a procedure for referring disciplinary
matters to the Chief Judge if the presiding judge decides such
a procedure is appropriate. This comports with the Supreme
Court’s position that “the inherent power of a court can be
invoked even if procedural rules exist which sanction the
same conduct.” Chambers v. Nasco, Inc., 501 U.S. 32, 49
(1991). Accordingly, the district court did not violate the
LASAR v. FORD MOTOR CO. 2483
Local Rules when it revoked Sutter’s pro hac vice status with-
out referring the matter to the Chief Judge.11
V.
We next consider whether the district court improperly
determined that Sutter violated the orders in limine or that
Sutter failed to disclose a prior contempt citation.
A.
Ford and Sutter argue that the district court erred when it
held that Sutter had, during his opening statement, violated
the in limine order prohibiting references to alcohol use by
Lasar. We disagree.
[12] Sutter, by his own admission, carefully chose to tell
the jury that the accident occurred after Lasar “met up with
some of his friends and spent the day playing pool, visiting
some local establishments” and then “made the decision to
drive himself home.” As the district court emphasized,
“[w]hat this record does not show is the tone and inflection
of Mr. Sutter’s voice.” Even the record, however, suggests a
calculated attempt to introduce evidence that Lasar was drink-
ing before the accident. We cannot say that the district judge
clearly erred in finding that Sutter’s words conveyed the
unambiguous message that Lasar had been drinking at a bar
(or bars) and then made the dangerous and unlawful decision
to drive himself home while intoxicated. Thus, we cannot
conclude that the district court abused its discretion when it
determined that Sutter violated the order in limine. See United
States v. Avery, 295 F.3d 1158, 1181 (10th Cir. 2002) (stating
11
In fact, the judge presiding over this case is the Chief Judge of the
District of Montana. It is clear from the circumstances, however, that
Judge Malloy was acting in his capacity as the judge presiding over the
Lasar matter and not in his capacity as the Chief Judge of the district in
the sanctions proceeding.
2484 LASAR v. FORD MOTOR CO.
that a district court’s ruling on whether an attorney violated
an order in limine is reviewed for abuse of discretion).12
Moreover, in light of Sutter’s own statements about the delib-
erateness with which he crafted his opening statement, the
district court did not commit clear error in holding that this
was a deliberate bad faith violation.13 See Pac. Harbor Capi-
tal, Inc., 210 F.3d at 1117 (“We will reverse a district court’s
factual findings as to whether an attorney acted recklessly or
in bad faith only if they are clearly erroneous.”).
B.
Ford and Sutter also contend that the district court erred to
the extent it relied on the omission of the Kaffeman disciplin-
12
Although we have held that a district court’s decision whether to issue
an in limine order is an evidentiary ruling that we review for abuse of dis-
cretion, United States v. Komisaruk, 885 F.2d 490, 492 (9th Cir. 1989), we
have never considered what standard of review to apply to a district
court’s determination of whether a party or an attorney has violated an in
limine order. We agree with the Tenth Circuit’s holding in Avery that
whether a party has violated an in limine order is also an evidentiary rul-
ing that should be reviewed for abuse of discretion. 295 F.3d at 1181.
13
Ford’s counsel at oral argument challenged the district court’s deci-
sion to grant a mistrial. As we understand its position, Ford challenges the
mistrial ruling only insofar as it resulted in the imposition of monetary
sanctions on Ford. Assuming that this issue was properly raised in its
opening brief, we nevertheless conclude that the district court did not
abuse its discretion in granting Lasar’s request for a mistrial. See United
States v. Vincent, 758 F.2d 379, 380 (9th Cir. 1985) (“A district court’s
decision on a motion for mistrial is reviewed for abuse of discretion.”). A
mistrial was appropriate because the in limine order prohibiting references
to Lasar’s use of alcohol was “specific in its prohibition and the violation
[was] clear . . . .” Furthermore, the violation resulted in prejudice to Lasar.
See Pullman v. Land O’Lakes, Inc., 262 F.3d 759, 762 (8th Cir. 2001).
The district court considered the less drastic alternative of a curative
instruction, but concluded that this alternative would have brought only
more attention to the matter. See Zambrano, 885 F.2d at 1475 n.4 (warn-
ing that a district court should consider alternatives to declaring a mis-
trial); see also Seltzer v. Chesley, 512 F.2d 1030, 1035 (9th Cir. 1975)
(“curative instructions must not emphasize the error”).
LASAR v. FORD MOTOR CO. 2485
ary matter from Sutter’s pro hac vice application to justify the
imposition of sanctions. The Local Rules required Sutter to
disclose in his pro hac vice application whether he had “ever
been held in contempt, [or] otherwise disciplined by any court
for disobedience to its rules or orders . . . .” Local Rule
83.3(e)(3)(E). In the Kaffeman case, the presiding judge,
Judge Patricia A. Cleary, twice incarcerated Sutter for pur-
portedly violating her orders. In re Disqualification of Cleary,
723 N.E.2d at 1107. Judge Cleary, however, never journalized
the entry of a contempt order, and under Ohio law, an order
is not binding and cannot be appealed unless it is journalized.
State ex rel. Grove v. Nadel, 691 N.E.2d 275, 277 (Ohio
1998); Reese v. Proppe, 443 N.E.2d 992, 998 (Ohio Ct. App.
1981).
The significance of Judge Cleary’s confinement of Sutter is
also complicated by the Ohio Supreme Court’s disqualifica-
tion of Judge Cleary from the Kaffeman case and the Ohio
Court of Appeals’ decision granting Sutter’s client a new trial.
When the Ohio Supreme Court ruled on Sutter’s motion to
disqualify Judge Cleary, it stated that:
Judge Cleary’s courtroom demeanor and conduct
toward affiants impl[y] a hostile feeling or spirit of
ill will such that requires her disqualification . . . .
The brief portion of the record cited above shows
Judge Cleary referring to attorney Sutter’s incarcera-
tion as a “time out,” denying affiants’ seemingly rea-
sonable requests to record objections . . . , and
subjectively characterizing testimony . . . . These
actions cause me to conclude that Judge Cleary has
demonstrated a fixed anticipatory judgment that
requires her disqualification to avoid the appearance
of impropriety and restore the absolute confidence of
the parties in the fairness of these proceedings.
In re Disqualification of Cleary, 723 N.E.2d at 1107 (alter-
ation in original) (internal citations and quotation marks omit-
2486 LASAR v. FORD MOTOR CO.
ted). The Ohio Supreme Court’s reference to Sutter’s
“seemingly reasonable requests to record objections” implies
disapproval of Judge Cleary’s confinement of Sutter. The
Ohio Supreme Court, however, did not explicitly overturn
Judge Cleary’s discipline of Sutter.
The Ohio Court of Appeals also determined that:
The record in this case is replete with evidence of the
lower court’s bias against the defendants in this mat-
ter, which clearly prevented a fair and impartial pro-
ceeding. . . . Thus, the validity of the entire trial,
including the decisions made by the trial court on
evidentiary issues, has been drawn into question.
Because it is impossible to assess the prejudicial
effect of the trial judge’s conduct on the proceed-
ings, there is simply no way that any review of this
matter can render satisfaction that justice was done.
Accordingly, we conclude that the lower court
abused its discretion in denying the appellants a new
trial.
Kaffeman, 781 N.E.2d at 1053. Again, there is no express
statement overruling Judge Cleary’s confinement of Sutter,
but the court of appeals did find that the “entire trial . . . ha[d]
been drawn into question” by Judge Cleary’s bias. In light of
Judge Cleary’s failure to journalize her disciplinary actions,
and the reviewing court’s implicit disapproval of Judge Clea-
ry’s treatment of Sutter, it is doubtful that Judge Cleary prop-
erly found Sutter in contempt of court.
These facts, however, must be considered in the context of
Sutter’s repeated representations that he had in fact been held
in contempt. Sutter “assert[ed] [to the Ohio Supreme Court]
that the judge twice found affiant Sutter in contempt.” In re
Disqualification of Cleary, 723 N.E.2d at 1107. Sutter also
testified before the district court on both direct and cross-
examination that he had been held in contempt of court. Sutter
LASAR v. FORD MOTOR CO. 2487
only began to question the nature and significance of Judge
Cleary’s disciplinary action after the district court brought the
alleged omission from the pro hac vice application to Sutter’s
attention. At that point, Sutter explained, “I have [sic] the
copy of the . . . Patty Cleary case faxed to me last night and
it says in that opinion that I was held in contempt, and that’s
the only reason that I said I was held in contempt today. . . .
There was no finding of contempt.”
Ultimately, the question is whether Sutter failed to disclose
that he had “ever been held in contempt, [or] otherwise disci-
plined by any court for disobedience to its rules or orders
. . . .” Local Rule 83.3(e)(3)(E). In light of these events, Sutter
could reasonably have believed that he had never been held
in contempt because Judge Cleary never journalized a formal
contempt citation.14 Whether he in fact believed this to be the
case is questionable given his representations to the Ohio
Supreme Court and the district court that he had been held in
contempt.
[13] But Sutter and Ford seem to ignore that the Local
Rules required Sutter to disclose whether he had “otherwise
[been] disciplined by any court for disobedience to its rules or
orders.” Local Rule 83.3(e)(3)(E). We fail to understand how
any reasonable attorney could not view being incarcerated by
a judge as a disciplinary action. Nor did the subsequent hold-
ings of the Ohio Supreme Court and the Ohio Court of
Appeals relieve Sutter of the duty to disclose this matter to the
district court. The Local Rule asks if the attorney has “ever
been” disciplined, and does not provide an exception for
disciplinary orders that are overturned.
14
We decline Ford and Sutter’s request to take judicial notice of a Jour-
nal Entry by the Court of Common Pleas of Cuyahoga County, Ohio
because they are offering the factual findings contained in the order for the
purpose of proving the truth of the factual findings contained therein. See
Wyatt v. Terhune, 315 F.3d 1108, 1114 n.5 (9th Cir. 2003) (“Factual find-
ings in one case ordinarily are not admissible for their truth in another case
through judicial notice.”).
2488 LASAR v. FORD MOTOR CO.
[14] This approach does not render the Local Rule vague
or strike us as unfair. Any “person of ordinary intelligence
[would have] a reasonable opportunity to know” that disclo-
sure would be required in these circumstances. Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972); see also Parker
v. Levy, 417 U.S. 733, 756 (1974) (“One to whose conduct a
statute clearly applies may not successfully challenge it for
vagueness.”). We fail to see any ambiguity in the Local Rule:
any disciplinary matter must be disclosed, and there is no
exception for disciplinary orders that have been called into
question by an appellate court. Any potential unfairness that
could result from having to report such incidents is easily
cured by the attorney’s ability to explain the circumstances in
his pro hac vice application. Thus, we conclude that the dis-
trict court did not abuse its discretion in relying on this omis-
sion from Sutter’s pro hac vice application as added support
for the imposition of sanctions.
Additionally, we would not reverse the district court’s
imposition of monetary sanctions and the contempt finding in
this case even if Sutter had not violated the pro hac vice
admission requirements. The monetary sanctions and the con-
tempt citation were based solely on Sutter’s violation of the
in limine order. Although the revocation of Sutter’s pro hac
vice status was based in part on Sutter’s failure to disclose the
Kaffeman matter in his application, the district court stated
that this only provided additional evidence of Sutter’s dishon-
esty. We conclude that Sutter’s violation of the order in
limine relating to alcohol could, standing alone, support the
district court’s decision to revoke Sutter’s pro hac vice admis-
sion.
VI.
[15] Finally, Ford and Sutter argue that the sanctions were
overly harsh. In light of the hardship that Sutter’s bad-faith
violation of the order in limine caused to Lasar, the court, and
other litigants, we disagree.
LASAR v. FORD MOTOR CO. 2489
When a district court sanctions an attorney or a party based
on its inherent powers, “[a] primary aspect of [its] discretion
is the ability to fashion an appropriate sanction for conduct
which abuses the judicial process.” Chambers, 501 U.S. at 44-
45. The district court’s decision to require Ford to pay com-
pensatory sanctions to the court was well within the court’s
discretion, particularly because the payments were carefully
tailored to reimburse the court for those costs that were
incurred as a result of the mistrial.
[16] The contempt citation also was within the court’s dis-
cretion, for “[t]he power to punish for contempts is inherent
in all courts.” Ex parte Robinson, 86 U.S. 505, 510 (1873).
Finally, the district court’s revocation of Sutter’s pro hac vice
status falls within “the scope of the inherent power of the fed-
eral courts” because “a federal court has the power to control
admission to its bar and to discipline attorneys who appear
before it.” Chambers, 501 U.S. at 43. Accordingly, the district
court did not abuse its discretion in crafting these sanctions.
VII.
In sum, we affirm the district court’s formal sanctions order
including the imposition of monetary sanctions, the contempt
finding, and the revocation of Sutter’s pro hac vice admission.
However, we reverse the district court’s lifetime ban on Sutter
appearing pro hac vice in the Missoula Division.
Each party to bear its own costs.
AFFIRMED IN PART, REVERSED IN PART.