10-0 Appellees Reply Brief

June 12th, 2023

Filed (ECF) Appellees Tracy Caekaert and Camillia Mapley reply to response (motion to dismiss for lack of jurisdiction, motion for sanctions). Date of service: 06/12/2023. [12733813] [23-35329] (Shaffer, Ryan) [Entered: 06/12/2023 01:06 PM]

Excerpt:

APPELEES’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS FOR LACK OF APPELLATE JURISDICTION AND FOR SANCTIONS

COMES NOW, Plaintiffs/Appellees Tracy Caekaert and Camillia Mapley, by and through undersigned counsel, and hereby respectfully submit this Reply Brief in Support of Their Motion to Dismiss for Lack of Appellate Jurisdiction and for Sanctions.

DAVID V. HOOKER DOES NOT CONTROL THIS CASE

Appellant Philip Brumley, Esq.’s heavy reliance on David v. Hooker is misplaced. 560 F.2d 412 (9th Cir. 1977). David involved Rule 37 sanctions levied against a non-attorney for discovery violations. Id. at 414–15. In stark contrast, this case is about sanctions levied against an attorney under 28 U.S.C § 1927 because he chose to submit misleading statements to the district court on behalf of his client, WTPA. The difference between the cases matters. The David court reached its decision that Rule 37 sanctions were immediately appealable because, inter alia, Rule 37 did not include language that a party and its non-attorney officer were to be treated as identical entities. Id. at 417.

But here, Mr. Brumley is WTPA’s attorney, and he was acting on behalf of WTPA when he chose to submit misleading affidavits to the district court. As the Cunningham court noted, there is a distinction between a party’s attorney who is sanctioned for conduct on behalf of his client, like Mr. Brumley, and non-party witnesses:

Petitioner’s argument suffers from at least two flaws. It ignores the identity of interests between the attorney and client. Unlike witnesses, whose interests may differ substantially from the parties’, attorneys assume an ethical obligation to serve their clients’ interests. This obligation remains even where the attorney might have a personal interest in seeking vindication from the sanctions order. . . . The effective congruence of interests between clients and attorneys counsels against treating attorneys like other nonparties for purposes of appeal.

Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 206–07 (1999) (internal citations omitted) (citing cases). Justice Kennedy in his concurrence likewise noted that congruence of interest between a party and their attorneys was of critical importance: “In addition, if a contempt order is entered and there is no congruence of interests between the person subject to the order and a party to the underlying litigation, the order may be appealable.” Id. at 211.

Here, there is a complete congruence of interests between Mr. Brumley and WTPA. Mr. Brumley has been WTPA’s general counsel and acting on its behalf for 35 years, and he was doing so when he chose to submit a misleading affidavit to the district court in an effort to get the case against his client dismissed. In short, Mr. Brumley has an “identity of interest” with his client, WTPA.1 The Supreme Court already decided such relationship is categorically different than other non-party witnesses like the non-attorney officer in David, or the non-party expert witness in Sali. Sali v. Corona Reg’l Med. Ctr., 884 F.3d 1218 (9th Cir. 2018).2

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