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Fazzio v. Weber County

United States District Court, D. Utah

July 29, 2019

WEBER COUNTY et al., Defendants.

          Dustin B. Pead Magistrate Judge.



         Plaintiffs Michael Fazzio and Sherrie Fazzio (the Fazzios), who represent the interests of their minor child, I.F., sued Defendants Weber County, Acucom, Sandusky Newspaper, and the Standard Examiner. The Fazzios' suit centers around Defendants' involvement in the public dissemination of I.F.'s photograph, name, and putative criminal history. Following dismissal of the Fazzios' Second Amended Complaint, the court ordered the Fazzios' counsel, Brian K. Jackson, to show cause why sanctions should not be imposed.[1] Now before the court are three matters arising out of Jackson's conduct.

         First, there is Jackson's response to the order to show cause.[2] Having considered Jackson's response and the parties' filings, the court on its own initiative concludes Jackson violated Rule 11(b)(2) of the Federal Rules of Civil Procedure. To deter similar violations by Jackson and others, the court imposes a fine of $6, 650 and orders Jackson to complete the Utah State Bar's Ethics School.

         Second, there is Acucom's first motion for sanctions pursuant to 28 U.S.C. § 1927.[3] By including that motion in its reply to Jackson's response to the Order to Show Cause, Acucom violated DUCivR 7-1(b)(1)(A), which states, “[n]o motion . . . may be included in a response or reply memorandum. Such motions must be made in a separate document.” Accordingly, Acucom's first motion for sanctions is DENIED.

         Third, there is Acucom's second motion for sanctions pursuant to 28 U.S.C. § 1927 and pursuant to the court's inherent authority to impose sanctions.[4] For the reasons given below, that motion is DENIED.


         The parties engaged in extensive motion practice. The court denied Acucom's request for Rule 11 sanctions.

         Counsel Brian K. Jackson served and continues to serve as the sole legal representative of the Fazzios in this case.[5] On August 21, 2017, the Fazzios initiated this case by filing a Complaint.[6] A few months later, on November 14, 2017, the Fazzios filed an Amended Complaint.[7] Extensive motion practice followed.[8] Notably, the Fazzios, Weber County, Acucom, Sandusky Newspaper, and the Standard Examiner each filed dispositive motions.[9]

         Additionally, Acucom filed a motion for sanctions.[10] The court denied that motion, explaining, “[t]he Fazzios cite factual and legal authority for their claims and have not made arguments in direct contrast to a previous ruling.[11]

         The court dismissed the Amended Complaint while stressing Rule 11.

         On May 29, 2018, the court held a hearing to address the pending dispositive motions. The Fazzios' civil rights claim under 42 U.S.C. § 1983 provided the only possible basis for subject-matter jurisdiction, so the court focused first on the viability of that claim.[12]

         In an oral ruling delivered at the May 29 hearing, the court dismissed the § 1983 claim as insufficiently pled, and declined to exercise supplemental jurisdiction over the many state law claims asserted in the Amended Complaint.[13] The court explained to Jackson the difficulty of pleading a § 1983 claim and why his unusual § 1983 theories failed.[14] For instance, the court explained Jackson's due process theory failed because only the State of Utah, and not Weber County, can bring charges against a minor.[15] In rejecting Jackson's 14th Amendment theory, the court explained,

The Fazzios have not alleged any facts relating to Weber County's interference with the care, custody and control of IF. The Fazzios argue Weber County, quote, unilaterally and unlawfully, end quote, made the decision for the Fazzios whether to release information about the case to the public . . . . But I'll observe that the Fazzios have presented no legal or factual authority for the proposition that a governmental entity's decision to release juvenile arrest records implicates a protected parental right. And for that reason I [conclude] that that claim is not adequately pled.[16]

         Dismissal was without prejudice.[17] The court explained the decision of whether and how to proceed was for Jackson and his clients to make, elaborating,

I'm going to allow you to file an amended complaint if you wish. You don't have to, but you're welcome to. You and I will talk about a reasonable time period for putting that together and filing it. It can't be filed here unless there's a federal claim in support of that complaint.[18]

         The court also alerted Jackson of his Rule 11 obligations, cautioning,

Whatever you choose to do, if we're back here again and we're testing the viability of this complaint and your 1983 claim again fails for the reasons, especially if it's on the basis of any of the arguments that Weber County has already put forward in its papers, which I think are nearly completely legally right, and the law I think that [Weber County] set forward is a correct statement of the law, or if we're here on a new round of motions to dismiss by the other defendants drawn to the amended complaint, if, for example, one of them has identified a clear legal defect in the pleading or the cause of action asserted against one of them and you reassert that and there is no basis in law, then we begin to have a Rule 11 problem or an attorney's fees issue that I would very much like for us not to have to reach.[19]

         Jackson filed a Second Amended Complaint containing legal theories the court previously explained were unavailable.

         After the May 29 hearing, the court published a docket text order, stating, “[p]laintiffs may file an amended complaint within 30 days and do not need to first seek leave to amend.”[20] Perhaps out of an abundance of caution, Jackson nonetheless filed a “Motion to Reopen Case, ” attaching a proposed Second Amended Complaint (SAC).[21] He drafted and attached the proposed SAC prior to requesting or obtaining a transcript of the May 29 hearing.[22] Consistent with its prior docket text order, the court granted Jackson's request.[23] Another round of motion practice ensued.[24]

         A second motion hearing was held on January 15, 2019.[25] At that hearing, the court dismissed the SAC and notified Jackson that it appeared he violated Rule 11.[26] In an oral ruling delivered at the hearing, the court stated that it appeared that a reasonable inquiry would have alerted Jackson that the Fazzios' § 1983 claims under the First Amendment, Fourth Amendment, Fifth Amendment Double Jeopardy Clause, Sixth Amendment, and Eight Amendment were not supported by existing law or by a nonfrivolous argument for extending, modifying or reversing current law or for establishing new law.[27] For example, the court observed,

The Fazzios also assert a Fourth Amendment right to child rearing claim . . . . I previously dismissed that claim at the [May 29] hearing. And the observation I made then remains true today. Quote: The Fazzios have presented no legal or factual authority for the proposition that a governmental entity's decision to release juvenile arrest records implicates a protected parental right, at least a constitutional one . . . . And because that claim remains inadequately pled it is dismissed.[28]

         For perceived Rule 11 violations, the court ordered Jackson to show cause why sanctions should not be imposed.[29]


         Rule 11 sanctions analysis proceeds in two-step process.[30] First, a court considers whether a pleading violates Rule 11.[31] If a pleading violates Rule, the court proceeds to the second step, where it considers a number factors to determine the appropriate sanction.[32] The court begins its analysis at the first step.


         I. On its own initiative, the court sanctions Brian K. Jackson for his Rule 11(b)(2) violation.

         An attorney is under an obligation to “stop, look, and listen before signing a document subject to Rule 11.”[33] Rule 11(b)(2) obligates an attorney to conduct “an inquiry reasonable under the circumstances” to ensure the submitted pleading's “claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”[34] A violation of Rule 11(b)(2) occurs when an attorney fails to heed a judge's previous warning that an argument lacks merit.[35] A violation of Rule 11(b)(2) also occurs when an attorney advances argument in the face of a well-established rule and contrary to the presiding court's prior ruling.[36]

         A. While on actual notice of the Rule 11(b)(2) standard, Jackson repeatedly violated that standard.

         Prior to filing the SAC, Jackson twice received notice of the Rule 11(b)(2) standard from this court. He first received notice via a published order denying Acucom's motion for Rule 11 sanctions on April 6, 2018.[37] He again received notice in person at the May 29, 2018 hearing.[38]Despite repeated warnings, Jackson advanced several frivolous legal arguments in the SAC. Two examples illuminate the frivolity of Jackson's § 1983 arguments.

         First, Jackson renewed a frivolous Fourth Amendment right to child rearing claim. For the exact reason it had previously dismissed that claim in the Amended Complaint, the court again dismissed the claim in the SAC.[39] Although Jackson explains he reasserted “each constitutional and federal law violation” based on his understanding of the intent behind the court's dismissal of the Amended Complaint without prejudice, [40] nowhere in his response to the order to show cause does he respond to the court's concerns about renewing the frivolous Fourth Amendment claim.

         Second, Jackson fails to identify legal support for his Double Jeopardy theory. He theorizes Weber County violated the Double Jeopardy Clause by mistakenly publishing information about charges that were previously resolved.[41] In his view, a false publication of a criminal charge is legally equivalent to a bona fide criminal charge, at least under the Double Jeopardy Clause.[42] He conceives and then defends this theory in the face of clear and established legal authority that Weber County cannot criminally charge a minor.[43] He defends this theory even in the face of his own factual allegations. As the court observed at the January 31 hearing,

I previously explained that Weber County is legally incapable of bringing criminal charges against juveniles . . . . In the face of controlling legal authority presented to the plaintiff and the Court's previous ruling and explanation of that authority the Fazzios continue to allege constitutional violations of the Fifth Amendment double jeopardy clause in Paragraphs 135 through 137 and various clauses under the Sixth Amendment to the U.S. Constitution in Paragraphs 151 through 153. These claims obviously fail because the minor child was not subjected to a second criminal prosecution. Indeed, the Fazzios themselves recognize as much in the complaint asserting, and here are a handful of allegations drawn from the complaint soon to be true, the plaintiff's own allegations. Paragraph 36, charges for minor children are civil in nature and not criminal charges, and a minor child cannot be convict a crime; Paragraph 39, IF did not have pending criminal charges against him on April 10th, 2017; and Paragraph 146, the information of which was also false as he was not arrested and booked on new criminal charges in an adult detention center and what was not being tried as an adult the charges of which were already resolved.[44]

         Jackson defends his Double Jeopardy Theory, even in the absence of legal authority. Although he cites various inapposite authorities, Jackson nowhere identifies opinions, minority opinions, or even law review articles supporting his theory.[45] Yet Jackson seems to try to pass off his theory as springing from existing law.[46] Even now in response to the order to show cause, Jackson persists Weber County may have somehow conspired with state authorities to charge I.F.[47] But as would be clear to any reasonable attorney, his theory lacks any legal support because Weber County did not, and legally could not, charge I.F.

         Lest there be any doubt, this court's Rule 11 concerns go well beyond the two examples just articulated.[48] Besides the frivolous Fourth Amendment right to child rearing claim, Jackson reasserted a frivolous Fourth Amendment privacy claim in the SAC.[49] Beyond the frivolous Double Jeopardy claim, Jackson advanced frivolous Cruel and Unusual Punishment and First Amendment claims.[50] The court need not further detail Jackson's repeated Rule 11(b)(2) violations, however, because the analysis above: demonstrates this Order is the result of deliberation; will assist in any appellate review; and enhances the deterrent effect of this Order.[51]

         B. Jackson does not articulate a persuasive explanation for his Rule 11(b)(2) violations.

         In his response to the show cause order, Jackson advances unpersuasive excuses. He first explains he did not have access to the May 29 hearing transcript prior to his submission of the SAC.[52] He incorrectly adds, “[t]he parties was [sic] also directed by the court not to take notes at the time of the ruling.”[53] True, Jackson did not have access to the May 29 hearing transcript, but only because he failed to timely request it. Jackson's first excuse is unpersuasive.

         Second, Jackson argues the court's order granting leave to amend created the impression that his claims were legally permissible.[54] He insists, “[i]f a claim was legally barred, Counsel would have assumed that those claims would have been dismissed without [sic] prejudice and unable to raise that claim again.”[55] This excuse too is unpersuasive.

         The court rarely dismisses claims with prejudice, and in fact must “freely” grant leave to amend “when justice so requires.”[56] Claims are dismissed without leave to amend only when the complaint fails to state a claim and there is just reason to deny amendment.[57] Lack of a just reason to deny amendment does not excuse a party of its Rule 11 obligations. For example, when a court determines that amendment is not “futile, ” that determination does not mean the court has signed off on the merits of a claim-only that the court is observing Rule 15(a).

         As a third excuse, Jackson attempts to reshape his Complaint and backtrack on his prior representations to this court. By way of background, the court previously grappled with Jackson's inconsistent allegations that Weber County “charged” and “arrested” I.F.”[58] At the May 29 hearing, Jackson orally represented that he did not intend to assert any factual allegations that I.F. was arrested.[59] Despite language in the SAC to the contrary, the court credited Jackson's representations.[60] But in his response to the order to show cause, Jackson discredits his own earlier representations, stating,

Even if Weber County cannot legally bring charges against a minor child, the issue and allegations were that Weber County factually did with its state power to arrest and in the definition of what an arrest is as to detention and issue new charges of the minor child, under the color of the law through abuse of its position with the Sheriff's office. If they did instead of another proper agency, then they acted under the color of the law and violates due process as it relates to procedure in properly charging a minor child.[61]

         Rather than persuade, Jackson's inconsistent representations exhume Rule 11 concerns partially put to rest.[62] An attorney that lobs factual allegations absent any evidentiary basis violates Rule 11(b)(3), which obligates an attorney to ensure “factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”[63]

         Jackson's apparent Rule 11 violation in his response to the order to show cause, or alternatively in the SAC, is worrisome. But rather than bog down this litigation in continuing Rule 11 proceedings with the issuance of a second order to show cause, [ ...

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