Kiobel v. Millson

suggests, no evidence in this record that shows, that

much less NSA invoked purpose concealing ac-

Glomar for the

tivities that violate Constitution illegal. agree

otherwise We with counsel parties

for all that we need not reach the

legality underlying Terrorist Sur- Program that question

veillance because

beyond scope of this FOIA action.

Accordingly, judgment of the Dis- AFFIRMED.

trict Court is KIOBEL, individually

Esther and on be husband,

half of her late Dr. Barinem

Kiobel, Bishop Augustine Nume John-

Miller, Wiwa, Charles Baridorn Israel

Pyakene Nwidor, Kendricks Dorle Anthony

Kwikpo, Witah-Kote, B. Vic Wifa, Kunenu,

tor B. Dumle J. Benson

Magnus Ikari, Legbara Tony Idigma, Nwinee, Kpobari Tusima,

Pius Plain

tiffs-Appellees,

Rory MILLSON, O. Thomas Rafferty,

G. Michael T.

Reynolds, Appellants,

Royal Company, Dutch Petroleum Shell

Transport Trading Company PLC, & Development Compa

Shell Petroleum

ny Nigeria, Ltd., Defendants.*

Docket No. 07-3903-cv. Appeals,

United States Court of

Second Circuit.

Argued: Jan.

Decided: Jan. *The Clerk listing parties of Court is directed to amend the above. caption official in this case to conform to the Dixon, (Douglas

Rowan D. Wilson J. brief), Cravath, Phillips, on the Noah J. LLP, York, NY, Swaine & Moore New for Appellants. JACOBS, Judge,

Before: Chief LEVAL, CABRANES, Circuit Judges. CABRANES, Judge:

JOSÉ A. Circuit appeal challenge In this we consider a Rule 11 imposition of sanctions under Procedure. of the Federal Rules of Civil in an action Appellants are defense counsel to the Alien Tort Statute brought pursuant (“ATS”), alleged U.S.C. for vio- customary lations of international law They review of an order of Nigeria. seek District Court for the the United States (Kimba Southern District of New York M. Wood, Judge), affirming the order of Chief magistrate judge, that sanctioned them making representations factual that al- legedly evidentiary support. Ap- lacked pellants challenge the order of the District First, they grounds. on two con- Court that a is not author- tend imposing an order ized to issue sanctions, and the District should Magistrate have therefore construed the “Opinion report and Order” as Judge’s under 28 U.S.C. and recommendation 636(b)(1)(B) subject to de novo review. Second, they argue that the on the Rule 11 sanctions based statements cannot be sustained plaintiffs identified light of the record as a matter of law supported those statements. evidence that on the first panel evenly divided appeal, raised in this with one ground concluding mag- panel member of istrate sanctions, judge another conclud- not, Whinston, and the third declin- ing A. do Nordberg (Stephen

Peter D’Avino, Robinson, light either view ing R. to endorse Carey R. Keino P.C., Fortunate- brief), ambiguity. post. Phil- statute’s See Berger Montague, & District PA., not decide whether the Plaintiff-Appellees. ly, we need adelphia, opposition the correct standard of re- defendants filed an to those ob- Judge applied jections. In that coun- Magistrate Judge’s opposition, determina- defense view the (1) stated, sel inter alia: “Now we have tion that Rule 11 sanctions were warranted case, agree appel- we learned that seven identified wit- this because support plaintiffs’ challenging [in lants’ second basis for the or- nesses are claims] (2) being paid testimony;” for their explained der of the District Court. As below, can be no doubt that the wit- greater “[T]here detail the record evidence giving testimony nesses are provide adequate [plain- does not an basis to im- (3) false;”1 pose tiffs’] Rule 11 counsel knows to be and appellants. sanctions Therefore, 29, February know that between rely solely “[W]e we on the second 2, 2004, April Berger 2004 and Mon- ground appellants advanced to resolve & $15,195 tague [plaintiffs’ appeal. this wired counsel] Republic Benin for the benefit of the BACKGROUND witnesses.” J.A. 344. On the basis statements, plaintiffs charged these de- putative This arises from a class appeal appellants fense counsel—who are the brought action under the ATS. The com- 11(b)(3) violating this matter —with Rule plaint charged corporate three affiliated Procedure, the Federal Rules of Civil al- entities with violations of law international leging that defense counsel’s statements for exploration their involvement in oil and evidentiary support. had no Pursuant development in Nigeria. See Kiobel v. 11, plaintiffs filed motion for the Co., Royal Dutch Petroleum imposition of against sanctions defense (S.D.N.Y.2006). F.Supp.2d 457 Plaintiffs motion, Opposing counsel. defense moved for pursuant class certification argued counsel that their statements were 23(c) of the Federal Rules of Civil supported by record evidence. Procedure, and the District Court referred motion to a for a Opinion and Septem- Order dated report recommendation 29, 2006, Magistrate ber Judge denied 636(b)(1)(B). Royal See Kiobel v. Dutch plaintiffs’ respect motion with to the first Co., 7618, Petroleum 02No. Civ. 2004 WL statement,2 having support found some 5719589, 2004 U.S. Dist. LEXIS 28812 record, init see Royal Kiobel v. Dutch (S.D.N.Y. 2004). 31, 31, Mar. On March Co., Petroleum 02No. Civ. 2006 WL 2004, Magistrate Judge Henry B. Pitman 2850252, *4, 2006 U.S. Dist. LEXIS deny recommended that the District Court (S.D.N.Y. 29, 2006), at *13 Sept. grant- but plaintiffs’ motion for class certification. respect ed the motion with to the second3 *14, Id. at 2004 U.S. Dist. LEXIS statements, **9-10, and third4 see id. at at *43. 11-12, 2006 U.S. Dist. LEXIS at objected *29,

Plaintiffs Magistrate respect *32-34. With to the second recommendation, Judge’s report statement, the Magistrate Judge imposed opposition 1. The next sentence of the read: "[T]here can be no doubt that the witnesses ques- "There will be giving testimony further into the that counsel knows to be tion of who give caused these witnesses to false." J.A. 344. obviously testimony." false J.A. 344. February 4. “[W]e know that between 2, 2004, 2. "Now we have April learned that seven of the Berger Montague 2004 and & $15,195 paid being identified witnesses are Republic for their wired to the Benin for the testimony.” J.A. 344. benefit of the witnesses.” J.A. 344. support logic in law or there- attorney who has no $5,000 sanction on each —and *12, an “abuse of discretion.” filing, see id. at fore constitutes opposition signed *36, give at but of fact can rise to the Dist. LEXIS A statement 2006 U.S. monetary when the of sanctions he declined because making allegation utterly lacking the third statement “particular (inter- counsel overstated “[although defendants’ support.” Storey, 347 F.3d omitted). money sent to benefit the amount marks quotation nal As de- Witnesses, amount of the below, [plaintiffs’] greater scribed in detail neither of (approximately small overstatement was Magistrate Judge the statements that the $3,000) materially change not and did Judge and the District held sanctionable statement,” *11, at nature of the id. law, this standard as a matter of meets 71421, at *34. The Dist. LEXIS U.S. they give therefore cannot rise to the plaintiffs also awarded Magistrate pursuant of sanctions to Rule imposition arising attorneys’ their fees one-third of 11. 11 mo- successful Rule partially from their “[T]here 1. can be no doubt that the **12-13, 2006 Dist. id. at U.S.

tion. See giving testimony 71421, witnesses at *37. LEXIS that counsel knows to be false.”5 appealed for defendants Counsel 29, 2006 Judge’s September Magistrate Judge The held that Magistrate Applying a support to the District Court. there was no whatsoever for de Order contrary “clearly erroneous or allegation deferential fense counsel’s that the Benin testimony of review under 28 U.S.C. gave plaintiffs’ to law” standard witnesses that 636(b)(1)(A), Kiobel, affirmed the District Court counsel knew to be false. See **9-10, in an unpub- 2850252, of sanctions at 2006 U.S. Dist. WL 10, August order dated 2007. See lished at *29. In defense of this LEXIS appeal statement, This followed. Sp.App. argue 37. defense counsel based on circumstantial evidence—includ

DISCUSSION ing payments the size of the to the wit depose just them imposing nesses and the rush review an order We the end of was rea for abuse of discretion. before sanctions —it L.L.C., See, plaintiffs’ sonable to infer that counsel e.g., Storey Holdings, v. Cello (2d Cir.2003). testimony likely so elicited was An knew 347 F.3d concretely, to be false. More defense “abuse of discretion” occurs when dis during deposi ruling point on an erro counsel to moments trict court its “base[s] clearly they directly plaintiffs’ tions when told neous view of the law or on a er evidence, testify certain assessment of the counsel that witnesses were roneous instance, falsely. 539. For ing a decision that cannot be located J.A. render[s] witness, that he had Ejiogu, decisions.” one testified range permissible within the (2d Blot, Nigeria not returned to since he fled in 534 F.3d Cir. Sims 2008) witness, (citations September but another quotation and internal omitted). John-Miller, Here, Ejiogu testified that subse the District marks quently Nigeria based returned to to meet with decision to Court’s 529-30, 621, plaintiffs’ counsel. Id. at challenged plaintiffs the statements testify falsely. interpretation is not Magistrate Judge plaintiffs’ Such 5. The counsel meaning as an accusation that compelled by plain read this statement of the text. instructing plaintiffs' witnesses to counsel was truth of their knowing prove counsel need not Benin witnesses also denied accusation, only “utterly it not counsel was though plaintiffs’ another even one lacking support.” Storey, in a housing together them “com- was Magistrate Judge As the acknowl- in Benin. Id. at 530. While there pound” id., many edged, see reasonable inferences might perhaps have been even reasons — testimony that and can be drawn from Shell good ones—for these contradictions inconsistencies, Nigeria worth those contradictions were held contract was that annual of that nearly counsel as ten times GDP apparent plaintiffs’ however, country. recognize, He to defense counsel. It was reason- failed to were in the circumstances for defendants’ that one of those reasonable inferences is able gave testimony that some of that the witness false counsel conclude false, testimony to be plaintiffs’ was counsel knew false because witnesses wildly plaintiffs’ but also that counsel were aware was so off-base. falsity. evidence, In light of this record it was point legally Magistrate

Defense counsel also to fourteen erroneous that the can statements of the Benin witnesses that to conclude statement “there obviously giving so false that be no doubt that the witnesses are contend were false,” testimony that plaintiffs’ counsel must have known of counsel knows to be 344, falsity. utterly strongest lacking support their The of these state- J.A. was ments came from a witness who testified and therefore sanctionable.

that “Shell had a billion contract” $260 “[W]e know between Febru- Nigeria, notwithstanding that the Shell Pe- ary 29, April 2, 2004, 2004 and Ber- Development Company Nigeria troleum ger Montague $15,195 & wired pre-tax expenses only annual had $1 Republic the Benin for the benefit Nigeria’s gross annual billion domestic of the witnesses.” during product period the relevant time Kiobel, only was billion. 2006 WL reject Magistrate $30 We also 2850252, **7-8, at 2006 Dist. U.S. LEXIS Judge’s determination that there was a 71421, at Magistrate Judge *22-23. The evidentiary support lack of for defense disagreed, explaining may well be that allegation plaintiffs’ “[i]t counsel’s counsel $15,195 referring multi-year the witness was to a Republic “wired to the Benin contract; may or multi-decade the benefit of witness the witnesses.” J.A. 344. confusing currency; Magistrate Judge have been units of the The determined may confusing figure witness have been billion this “overstated the amount sent $3,000 may just and million or approximately twenty-five per the witness *8, cent,” wrong.”6 been Id. at 2006 U.S. Dist. and therefore in violation of Rule 11. Kobel, 2850252, *11, at LEXIS *23. The flaw in the 2006 WL at 2006 U.S. Magistrate Judge’s analysis is that defense Dist. LEXIS *32-33.7 The ed.1976) (17th "wrong” Dictionary 6. The distinction between national —is virtually identical to one of the definitions of Magistrate "false” is not examined in the "wrong” agreeing conforming Nevertheless, with or Judge’s opinion. it would be —"not facts; erroneous; incorrect,” to the „ id. at if, 11, calling remarkable under Rule an un- If the was correct "wrong” permissible, true statement but testimony may "wrong,” that the have been calling it "false” is sanctionable. Reference then it also have been "false.” dictionary to a shows that the first definition corresponding of "false” —"not to the truth or Magistrate Judge 7. The determined that mon- true,” reality; not Webster’s Third New Inter- etary perceived sanctions for this violation of $3,000 $15,195 error, Mag- in the have excluded from the supposed this source of view, alleged was the inclusion Judge’s was sent Benin wit istrate $5,000 $15,195 wire transfer figure an error does not nesses —such violate to the Benin wit- plaintiffs’ counsel Rule 11. “Rule 11 sanctions are a coercive included, $5,000 transfer That nesses. mechanism, judges, available to trial court “$3,000 Magistrate Judge, the view of upon ethical enforce standards attor pre-existing allocated to a ... [that was] them, neys appearing before being while to the Benin [wit- unrelated balance advocacy.” careful not to rein in zealous **10-11, 2006 Dist. Id. at U.S. nesses.” Farms, Cable, Pannonia Inc. v. USA Accordingly, the at *31. LEXIS (2d Cir.2005). F.3d As the Court Judge concluded that defense Magistrate held, Appeals for the First Circuit has counsel allegation plaintiffs’ counsel’s penalizes “Rule 11 neither overstatement $15,195 to the Benin witnesses wired overly reading nor authorizes an literal evidentiary support because de- lacked Navarro-Ayala each factual statement.” showing that fense counsel had evidence (1st Hemandez-Colon, $12,195 actually had been sent. Cir.1993) C.J.)\ (Breyer, see also Forrest Magistrate Judge’s Associates, determination Ltd. v. McLean Creek Sav. & First, at least two reasons. it is Ass’n, (4th flawed for Loan F.2d Cir. that defense counsel’s statement (“[Rule not clear 1987) 11 sanctions] do[ ] not extend evidence does not is false. The record errors, to isolated factual committed in $3,000 covered show that the faith, good long pleading so as the as a the Benin totally services unrelated to wit- ”). grounded whole remains ‘well in fact.’ $3,000 paid It shows that was nesses. nothing in the suggesting There is record balance, see id. at against preexisting intentionally that defense counsel inflated *11, 71421, *32, at 2006 U.S. Dist. LEXIS the amount wired to the Benin witnesses of that balance is not clear. but the source $3,000 or, by Magistrate Judge as the con $5,000 very It could well be that the entire cluded, had a materi overestimate payment pro- was connected with services statement, meaning al impact on in Nothing vided to the Benin witnesses. Kiobel, **11-12, 2006 WL at see contradicts that inference. In- the record 2006 U.S. Dist. LEXIS at *34. Ac deed, it is hard to condemn as unreason- cordingly, possible overstatement $5,000 pay- able the inference that allegedly plaintiffs’ the amount sent prior although comprising both ment — (insofar counsel to the Benin witnesses expenses made balance and future —was exists) any does not violate Rule 11. The single for a the maintenance of purpose: Magistrate Judge decision of the the Benin witnesses. Because this infer- an error of law. contrary constituted “utterly lacking support,” ence was not Storey, give F.3d at it cannot rise CONCLUSION to Rule sanctions.

Second, Regardless of whether the District if was liter- even the statement ie., Magis- ally Judge defense counsel should should have reviewed the false — warranted, however, perceived violation of Rule 11 did not Rule 11 were not be- this sanctions, monetary we nevertheless cause "the amount of the overstatement was result $3,000) injurious ruling (approximately and did not ma- review the because small judicial terially change effect that a determination of a Rule the nature of the statement.” **11-12, Kiobel, attorney's professional 2006 WL 11 violation has on though reputation. U.S. Dist. LEXIS at *34. Even my separate I in this infra, and offer own decision under a de novo Judge’s trate review, light standard of of the fact that this issue opinion. more deferential Circuit, in this case cannot imposition of sanctions in our there be is unsettled a matter of law because the state- stand as to district Judge merit Leval’s advice Rule 11. at issue do not violate ments reviewing magis- orders of judges, that August 2007 order Accordingly, sanctions under imposing trate Court, affirming Magis- District moot they try Rule 11 to make the issue 29, 2006 order Judge’s September trate of whether the by declaring “regardless sanctions, is RE- imposing of review is deferential or de standard VERSED. novo, judge] would district [the at 105. op. same Leval sanction[.]” infra CABRANES, Judge, JOSÉ A. Circuit right I am not certain that Leval is concurring: in the case “[i]t when he writes we are asked to consider appeal, On this uphold court would where judges, acting when whether if sanction review is deferential but would un pursuant to a district court’s reference it if novo that a withhold review is de 636(b),8 der 28 U.S.C. are authorized to ques- higher court will need to decide the sanctioning attorneys pursu issue orders said, I tion.” Id. That Leval and Rules of ant to Rule Federal provided have now some modest assistance only to Civil Procedure or are authorized editors of law re- to notes and comments make to district recommendations agenda, in search of an so we need views on whether Rule sanctions should be go concept mano a mano on the imposed. do not answer that We “dicta within dicta.” because, magis regardless this case 636(b)(1)(A), Pursuant to 28 U.S.C. judge’s authority, the Rule 11 sanc magistrate judges are authorized to re- tions at issue here cannot stand as a mat subject “pretrial solve order matter[s]” though ter of law. Even we are able to by judges for error. review district clear resolving the decide this case without grant authority Excluded from this of are question presented, threshold there re motions, dispositive such as motions “for guidance mains a need for on how a dis relief, injunctive judgment for on the trict court should review the determination pleadings, summary judgment, for to dis- magistrate judge that Rule 11 sanc a quash miss or an indictment or information Compare tions are warranted. Rates ..., suppress evidence in a criminal Inc., Telecom, Tech. Inc. v. Mediatrix No. case, permit to dismiss or to maintenance 1987787, *2, 05-CV-2755, 2007 WL 2007 action, (E.D.N.Y. a class to dismiss for failure U.S. Dist. LEXIS at *4 ..., 2007) involuntarily state a claim and to review), dis- (applying de novo June 636(b)(1)(A); § miss an action.” 28 U.S.C. with Lawrence v. Wilder Richman Sec. Beemiller, Inc., (D.Conn. v. see Williams Corp., F.Supp.2d 467 233 (2d Cir.2008) 2006) that clearly (concluding or con 265 (applying erroneous standard). trary to law Leval has list of motions set forth this subsection “non-exhaustive”). motions, matter, op. Dispositive offered his views on the Leval authority thority acting I do not address here the of a when with the consent of the see, 636(e)(3)-(4), e.g., parties, award when 28 U.S.C. I only provisions magis- acting pursuant parties related to a to the consent of the consider 636(c). magis- judge’s powers acting referral under 28 U.S.C. Because trate when substantially greater a district court. trate au- matters, concluded, other be submit- Rule motion cannot be and certain judge report by for a an order of a magistrate magistrate to a resolved ted recommendation, rather, the district court judge; magistrate judge “[a] novo. See 28 U.S.C. then reviews de report should ... issue a and recommen- 636(b)(1)(B). Supreme Court has by dation for de novo review the district statutory grant construed this support court.” Id. In further of this con- “ pretrial ‘nondispositive’ to mean clusion, the Sixth Circuit noted “Con- governed [are] matter[s] gress specifically magistrate withheld from “ 636(b)(1)(A)” ‘dispositive’ matter[s] jurisdiction contempt proceed- over 636(b)(1)(B).” by § covered Gomez [are] closely ... ings analogous are [which] States, 858, 873-74, 109 v. United 490 U.S. Rule sanctions.” Id. 998 n. 7. (1989); 2237, 104 L.Ed.2d 923 see S.Ct. Similarly, the Seventh Circuit held in 72(a) (“When pretrial Fed.R.Civ.P. also that, Alpem upon v. Lieb the referral of a dispositive party’s matter not claim sanctions, “magis- Rule motion to a or is referred defense judge lacked to do anything decide, judge to hear and other than make a recommendation.” 38 judge promptly required must conduct the (7th Cir.1994) (Easterbrook, F.3d and, appropriate, when issue a proceedings /.). Recognizing that “an award under (em- stating the written order decision.” conceptually Rule 11 is distinct from a added)). phasis merits,” decision on the that court found Although this has not determined Court them similar as an insofar award under granting whether an order sanc- 11 “requires party pay money one “dispositive” “nondispositive” tions is request to another” and “the denial of a claim, have. The other courts Sixth for sanctions has an effect similar to the held that Seventh Circuits have decisions request damages.” denial of a Id. at dispositive on Rule motions support 935. It also found for its analogy properly claim therefore not re- and are in the fact that “[a]wards sanctions ... judge. order of a solved separate pur- are treated as claims for Caster Service N. Bennett General poses appellate jurisdiction.” Id. On Co., Gordon the Sixth Circuit reasoned basis, the Seventh Circuit concluded “[n]othing Magis- in the [Federal sanctions, power to award “[t]he like expressly Act vests trates] damages, belongs to award jurisdiction judges with to enter orders Id.; judge.” the hands of the district see 11 imposing Rule sanctions” and “Rule Chicago also Retired Police Ass’n v. City 72(a) magistrate judge authorizes a en- (7th Cir.1996) 856, Chicago, 76 F.3d 869 ‘pretrial ter an order as to a matter (“The attorney subject fact that an ’ was the ... dispositive that is not of a ‘claim or request change ” of a sanctions does not 995, party.’ defense of a 976 F.2d 998 request fact that resolution of a sanctions (6th Cir.1992). Observing “magis- that the capable a dispositive being matter judge’s purported pur- trate order entered magistrate judge only referred to a 11 appellees’ suant to Rule motion resulted 636(b)(1)(B) 636(b)(3), where the money in an damages,” award of the Sixth judge must review the that “[n]othing Circuit concluded remained judge’s report and recommendations de therefore, judgment; but to execute the novo.”). purported dispositive this order was of the and, consequently, disposi- rely Rule 11 matter Plaintiffs on the Ninth Circuit’s de- ” such, America, tive of a ‘claim.’ Id. As that court cision in Maisonville v. F2 Inc. 86 changes in by subsequent diminished been support position their decision, law, prod- Rule 11 imposing orders and that

judges can issue the relevant (9th F.2d 748 Cir. it was legal sanctions. uct of the context 1990). Maisonville, panel of the In written, provide a counter- does not sound that Rule 11 sanc Ninth Circuit reasoned position of the Sixth and argument to the therefore, “nondispositive,” tions were Seventh Circuits. general have the

magistrate judges did persuaded by reasoning I am under Rule sanctions holding that a and Seventh Circuits Sixth persuaded by logic, I this am not judge is not authorized to issue however, subsequent events have because I imposing an order sanctions.10 legal context which altered relevant In reach this conclusion because a Rule ruled. Maison panel the Ninth Circuit ville, sanctions, sanctioned it arises in though motion for attorney filing under Rule 11 for plaintiffs action, underlying of an is the the context magis to reconsider the a frivolous motion equivalent independent of an functional judge’s of Rule 37 sanctions trate denial (cit- Williams, at 265 claim. 527 F.3d Cf. discovery abuses. against defendants Prods. ing Vogel v. United States Office noted, Ninth in Maisonville As the Circuit (6th Cir.2001)). Co., 258 F.3d 514-17 “motion for reconsideration [at issue] com- point, Supreme On this Court has “[discovery motion” and was a for Rule 11 sanctions to a pared motion fall of Rule 11.” motions within the ambit charge as each criminal insofar Maisonville, ruling after the separate independent proceeding is “a to exclude sanctions Rule was amended part original law that is not arising discovery disputes. from See Fed. Corp., v. Hartmarx action.” Cooter & Gell (“This 11(d) apply rule does not R.Civ.P. 384, 396, 496 U.S. S.Ct. discovery requests, disclosures and re (1990) (internal quotation L.Ed.2d 359 sponses, objections and motions under omitted). Relying part on this marks 37.”).9 In through light Rules 26 of this authority, previously recog- our Court has I change scope of Rule am nized that “the of sanctions is skeptical ruling Ninth Circuit’s independent collateral to and issue greater remains sound. As I describe in reason, underlying case” and for that below, discovery disputes detail are within subject “even when a district court lacks statutory authority magistrate the core jurisdiction underlying matter over an ac- judges, surprising and it is not that Con tion, possesses jurisdiction to im- still gress grant magis and the courts would pose arising underlying from the regu broader over the case.” Nance & Co. v. Estate discovery. Accordingly, lation of I believe Schlaifer (2d Cir.1999). Warhol, significance of Maisonville has refers, discovery Judge Leval 9. Sanctions for abuses are now im- at 99. The cases to which posed pursuant however, to Rule 37 of the Federal involve sanctions of Civil Procedure. Rules 11 it was amended abuses Rule before Rule in 1993 or involve sanctions under argues my Leval "focus on the Here, we consider whether Alpem ... decisions in Bennett and ... is have the circuits, arbitrary ... seven includ- [because] 11, and I need not under the current Rule ours, ing considered whether comment on the empowered pre-2000 were under the op. judges to sanctions under Rule 37. statute to award sanctions.” Leval infra

87 That a motion for Rule 11 sanctions nized this distinction in our treatment of gives proceedings rise to 11 separate Rule orders on appeal. Under our precedents, distinct from underlying action is of Rule 11 sanc that, tions on an apparent attorney immediately from the fact majori appeal- cases, pursuant able to the ty of 11 collateral order doc proceedings Rule do not MacDraw, trine. See Inc. v. CIT Group parties involve the same as the underlying Fin., Inc., Equip. 73 F.3d 1258 n. 4 previously action. It has been recognized (2d Cir.1996); Morley Ciba-Geigy 11 primarily that Rule concerned with (2d Corp., Cir.1995); 66 F.3d 22 1n. See, lawyers. the conduct of e.g., Cooter & Commc’n, see also Agee v. Paramount Gell, (“[A] at 110 U.S. S.Ct. 2447 Inc., (2d Cir.1997) (hold 114 F.3d requires Rule sanction ... the determi ing that attorneys appealing fee awards nation of ... whether the attorney has against them appeal must in their own and, so, judicial process, abused the if what names). appropriate.”); sanction would be Panno Farms, Cable, nia Inc. v. USA I also agree with the Sixth and Seventh (2d Cir.2005) (“Rule 650, 652 11 sanctions Circuits that the resolution of a motion for mechanism, are a coercive available to trial sanctions is analogous although — court judges, to enforce surely ethical standards not identical—to action for dam- upon attorneys them, appearing ages before insofar as the remedy desired is a being while careful monetary not to rein in zealous award to the movant. As noted above, advocacy.”). generally grounds See Fed.R.Civ.P. for a Rule 11 motion (“The advisory are independent committee’s note rule the merits of the un- derlying litigation, principle attorneys arising retains the instead from the duty of candor pro litigants se have an to the court. obligation Accordingly, to the a Rule 11 court motion can be to refrain from conduct that considered the frus 1.”). equivalent functional of an action pressing trates the aims of Rule Accordingly, a “claim” for the breach duty Rule 11 set generally sanctions are imposed forth in the rule. When court deter- attorneys, litigants. generally See mines duty this has been Fed R. P. 11 breached advisory Civ. committee’s (“The and that a monetary warranted, award is Although Congress mag- has conferred on presiding of when with the consent judges authority punish 636(e)(3)-(4), istrate parties, broader to acts 28 U.S.C. this Cir.1990). 636(e)(2). circumstance, (2d recognize In such limited I that some then, may persuade take actions of the reasons which me that “dispositive” independent magistrate judges statutory lack authority that are of This, however, statuto- might claim. is a narrow to sanctions under Rule ry general to the exception principle apply also sanctions judges dispose of under Rule 37. magistrate may In the context of Rule referral, however, claims there acting persuasive and these are not when reasons solely expand exception, magistrate judge’s to this because of a statutory, no basis action, institutional, to 11 sanc- and by judicial authority include Rule historical over Second, Indeed, Rule discovery proceedings. the observation that it is tions. independent of a effectively scope magistrate judge’s broad sanctions au- they usually require thority discovery disputes claims because over that pro- damages party pay party authority to another vides the source of his to impose one exceptions discovery fails to account for some sanctions for the violation of or- rule, general but neverthe- helpful Conducting pretrial discovery remains ders. notes, the order has proceedings component less. As Leval been a core imposing direct the in civil judge’s sanctions role cases publish position the fact that sanctions offender since created the See Federal imposed, judge. Magistrate educational magistrate have been attend classes, 90-578, leave before or seek of the court Act of Pub.L. No. 82 Stat. (codified further actions. at 28 filing op. Leval amended U.S.C. infra Nevertheless, seq.). 631 et com- damages presiding are a When over mat- however, remedy discovery, mon of Rule unrelated to violations ters surely judge’s fact is authority relevant to consider- is often more case, are an ation of whether 11 sanctions circumscribed. In this for example, claim. independent plaintiffs’ motion certification for class was judge to the magistrate referred for a disposition A determination that of a recommendation; report and the disposi- must Rule motion be made a district unquestionably tion of that was motion au- judge disparagement is not beyond of a authority judge thority preside 636(b)(1)(A). under 28 U.S.C. This lim- properly In- over matters before them. ited over motions for class certi- deed, coercive authority is entrusted fication is not comparable the broad magistrate judges for within their matters judge of a magistrate over dis- authority. statutory why magis- That is covery matters. I Accordingly, see noth- anomalous ing recognition mag- discovery sanctions for violations orders. judge’s sanctioning authority istrate in the Hoar, E. Thomas Inc. v. Sara Lee discovery, pursuant context of to Rules 26 Corp., example, we held that “[m]one- respect but not with motions tary pursuant to Rule 37 for brought under Rule 11 where the authori- noncompliance usu- orders ty magistrate is far more nar- ally are committed the discretion of the row. magistrate [judge], by the dis- reviewable ‘clearly

trict court under the erroneous or Leval believes contrary to law’ judges’ powers standard.” 900 F.2d limited issue criminal discussion, acting by judge, our does not affect which is limit- referral a district rather authority magistrate judges upon parties. ed to the when than consent of the citations contempt my argu- ply undermines presumption the- historic in favor of op. Congress continuing judge-made ment. Leval at 105. law absent clear infra congressional otherwise, powers conferred additional on intent see Mid- lantic thus, Jersey Nat’l Bank v. New judges Alpem, Dep’t after Bennett and Protection, view, Environmental undermining U.S. significance his (1986) 106 S.Ct. 88 L.Ed.2d 859 I opinions. those believe that the reason- (“The statutory normal rule of construc- ing sound, in these cases remains even if tion is that if Congress intends for legisla- one construes citations for criminal con- change tion to interpretation judi- being tempt “dispositive” as of a claim. In cially concept, created it makes that intent 2000, Congress conferred contempt limited specific.”), then we can and should inter- powers magistrate judges on under 28 pret Congress’s grant decision 2000 to 636(e). U.S.C. See Federal Im- Courts only limited contempt powers as an implic- provement Act of Pub.L. No. 106- it ratification of the earlier Sixth and Sev- section, 114 Stat. 2410. Under this enth holdings Circuits’ that magistrate magistrate judges have power limited to authority do have the impose punish contempt occurring acts of in then- Rule 11 sanctions.13 Knowing the deci- 636(e)(2), but presence, must refer the sions in Bennett Alpem, Congress judge matter to the district if the act does readily could have included the magistrate’s not occur in the presence, impose Rule sanctions in 2000 when it 636(e)(6)(B)(ii).12 Supreme Because the amended provide 636 to for limited con- in 1990 in Court Cooter & Gell reasoned tempt powers. Because chose to contempt that criminal charges and Rule only confer contempt limited powers on similar, 11 sanctions were Judge Leval magistrate judges, assume, we pur- should argues that we should read the 2000 statu- general suant to the principles of statutory tory grant of limited criminal contempt construction, that Congress intended to authority including authority impose withhold the authority additional impose Rule 11 sanctions. We cannot I bootstrap, sanctions. submit, the minimal grant magistrate judges punish misconduct correctly Leval observes that eyes occurs before their into a plenary magistrate judges have considerable coer- power to litigants hold attorneys cive authority they impose when contempt contempt impose citations, Rule 11 94-95, sanctions. To op. Leval but this infra do so would Congress’s undermine deci- fact does not question present- answer the grant magistrate ed, sion to judges certain especially when one the re- considers powers and withhold others. Further- power. strictions this Section more, 636(e)(6)(B) general would contravene princi- that, explicitly provides if the ples of statutory interpretation. If ap-we contumacious conduct does not occur in assumes, emphasize again I Congress granted 13. This reasonably, I believe that the contempt powers narrow when the Maisonville, logic of which was decided in acting by referral and broader 1990, did not survive the 1993 amendments powers acting when the with the split and thus that there was no parties. consent of the we Because here con- among the circuits as to whether magistrate judges sider whether could sanctions under the Rule Rule 11 sanctions when discovery. 11 for actions not related to referral, acting by any powers Congress granted acting when is, view, parties my with the consent of the entirely inquiry- irrelevant to the current reasons, conclude the issue For these I would judge’s presence, magistrate

the Rule 11 of motion for judge. the resolution referred to the district must be “dispositive” determination sanctions is Judge Le- Finally, unpersuasive I find judge magistrate that can be referred to a be- the similarities argument val’s 636(b) recom- for a and report under con- and criminal Rule tween de only, which then reviewed mendation is subjecting make would tempt citations district by judge. novo the illogi- scrutiny differing levels of them to If it is true op. at 102. cal. Leval LEVAL, Judge, infra PIERRE Circuit 11 sanctions bear similarities that Rule concurring: citations, it likewise criminal briefing appeal, par- the In their this other actions are similar to true the Congress gave whether dispute ties by the subject to novo review that are de the judge the magistrate power pleadings judge. Examination district (with consequence monetary sanction the is, to Rule 11 motion response only that the sanction could be overturned to review- functionally analogous example, finding of clear error or abuse on a conformity with Rules ing pleadings discretion) Congress withheld or whether (and applicable) and 10 where (with the consequence the and Rules Procedure the Federal of Civil no judge was to do empowered of motions also the evaluation analogous sanction, sub- more than recommend the 12 of Rules of the Federal by novo confirmation the district ject to de rules re- Procedure. Each of these Civil court). clearly an- question That is not the suf- quires magistrate judges to assess rule, any and has by statute or swered validity pleadings. the Un- ficiency among generated considerable discussion 8, 9, der Rules panel. Judge members of Ca- this only advisory report judge may issue an vigorously has asserted that branes subject by to de novo review the district judge authorized law was 636(b)(1)(A); recommend, impose, see judge. See 28 U.S.C. and not Beemiller, Inc., I initially persuaded Because was 527 F.3d at 265. sanction. reasons, deeper Judge Cabranes’s and on requires Rule 11 also that a I con- disagree find that with his digging could rea- judge pleadings, assess the one end, moot- question clusion. In the suited to judge son that is better appeal ed for this because we overturn necessity propriety determine all sanctions on different basis. We possible it is Accordingly, sanctions. explains agreement, Cabranes construe Rule sanctions as “similar” court, for the that the sanc- opinion in his mat- non-dispositive dispositive both no vacated there was tion must be because And therein the flaw ters. lies jus- adequate basis counsel’s conduct that, imposi- argument Leval’s because tify imposition. its deemed tion of Rule sanctions can be function, they must be “similar” to another a dif- appeal Because we decide this on as that subject to the same level of review basis, simply ignore we ferent could Instead, function. must assess other we question, burying our considerable mooted hand, level of review for Rule 11 sanctions analysis. the other research and On of that terms and on day the basis Rule’s own a court to decide some need statutory prescrip- question. Especially the basis of the known because superficial proved complex more than Congress. tions of has many suggests, and of The section of the Act inspection specifying because powers § of an points require under- significant 636(b)(1)(A) Section broadly empowers standing gradual of the evolution of the magistrate judges to “hear and determine” au- statute and the existing interpretive any pretrial designated by matter to them thorities, of gradual growth magis- and the court, the district with the of a exception our con- judge power, publication of trate specified of matters.2 list As for the mat- may views whatever flicting helpful be list, falling ters within this excepted eventually ques- court needs to decide magistrate judge’s extent of the powers is my Accordingly, I set forth view of tion. to take evidence and submit recommenda- question, sets Cabranes tions to the court. See U.S.C. his, airing for whatever benefit the of forth 636(b)(1)(B). § The explicitly matters ex- may our debate confer if and when the by cluded the Act from need be question resolved.1 judges’ power to hear and determine are seeking judgment plead-

motions on the summary ings, judgment, A. dismissal of charges, authority criminal an to maintain whether, in we face is en- class, action on behalf a for dismissal Act, acting Magistrate Judge the Federal claim, involuntary failure to state § seq., Congress 631 et author- 28 U.S.C. (all an being dismissal of action of these magistrate judges sanctions ized dispose litigant’s motions that would of a for violations the Federal Rules Civil claims), as well as motions injunctive for provide The Act Procedure. does not suppress relief and to crimi- evidence in a Accordingly, direct answer. it is neces- 636(b)(1)(A). nal Id. case. Section provisions 636(b)(3) search its determine sary to then adds a catchall provision what, anything, they if reveal about Con- that magistrate may assigned be complicat- intentions. The “such additional duties as are not inconsis- gress’s task is tent with the Constitution and laws of the fact that ed amended United States.” time, significantly Act over most important Congressional implement magis- The list of matters excluded from powers reappraisal stature and judges’ broadly power stated to hear Judges. Magistrate See Federal Courts and determine does not impo- mention the 106-518, Act of Improvement Pub.L. sition of sanctions. Nor is the (2000) (ad- Stat. 2412-13 prohibited to magistrate dressing “Magistrate Judge Contempt Au- any judges by provision other of law. A thority”). reading literal of the Act would corn- thus defendant, agree 1. I amendment suppress Jacobs that made evi- case, Federal Rules or the to the of Civil Procedure dence in criminal or to to dismiss governing usefully dispel statute could inter- action, permit maintenance class pretive disagreement Congress’s as to inten- upon dismiss for failure to state a claim obviate tion and further confusion. granted, can be which relief and to involun- tarily judge dismiss an action. A 636(b)(1)(A)provides: 2. Section may any pretrial court reconsider matter judge judge designate magistrate [A] (A) subparagraph under this it has where any pretrial to hear and determine matter magistrate judge's been shown or- court, pending except before the motion clearly contrary erroneous to law. der is or relief, injunctive judgment for on the 636(b)(1)(A). 28 U.S.C. pleadings, summary judgment, to dis- quash or an indictment information miss 873-74, 104 L.Ed.2d 923 109 S.Ct. the conclusion pel (1989); Williams, 527 at 264-65.3 sanctions. F.3d empowered Courts, however, not read the list framework, de- courts have Within this literally. Where exercise exclusions that, explic- powers cided in addition judicial power would be an unmentioned magistrate judges by itly withheld from powers statu- character so similar 636(b)(1)(A), magistrate judges torily withheld from to judges to “determine” not extend does to be difficult understand it would that court, rulings that remand a to state case a drawn distinc- would have why Congress Williams, 266, at de- 527 F.3d that enter ruled tion, have that Con- generally courts Gray, fault Callier 167 F.3d judgment, v. the to withhold unmen- intended also gress 977, (6th Cir.1999), deny a motion 981 that Beemiller, v. See power. tioned Williams inter- to a district court order for certify (2d Cir.2008) (not- Inc., 259, F.3d 265 527 Banking v. locutory appeal, Vitols Citizens that the list of exclusions ing Co., (6th Cir.1993), 984 F.2d 169-70 “non-exhaustive”). 636(b)(1)(A) is Be- agency an sub- deny enforcement of many of withheld from powers cause the Frazier, poena, N.L.R.B. 636(b)(1)(A) in- judges by magistrate (3d Cir.1992), deny and a motion 818 of the suit of a the determination or volve proceed pauperis, to Woods v. forma to party’s right or of a maintain the claim Cir.1990). (6th F.2d Dahlberg, 894 187 action, generally claim in the courts States, 490 Gomez v. United U.S. rulings which would concluded other (1989), S.Ct. L.Ed.2d 923 the same of of a disposing have the effect Court, Supreme departing still further (or defense) a also claim of were party’s statute, reading from ruled literal by Congress to be excluded from intended jury that the selection of the in a criminal judges. of powers magistrate the Courts case, the func- among which is not listed employ imprecise therefore sometimes magistrate judge tions a is not authorized shorthand, referring rulings to over perform, “dispositive” to and which is magistrate granted au- which claim, party’s of a is not within nonetheless thority party’s as “nondispositive” claims, magistrate judge’s powers. Id. at 875- to in the class rulings withheld approached 2237. The party’s claims. See S.Ct. Court “dispositive” as States, 858, 868, tracing question by history 490 U.S. Con- Gomez v. United procedures by prescribed in Rule rule are tailored 3. This shorthand is reflected 72 of the Federal Rules of Civil Procedure. Rule to has whether specify powers matter, does not undertake to only to or has to rule on the magistrate judges possess and which do to the As some recommend district court. commentary recog- not. As the nizes, to the Rule 636(b)(1)(A), by by powers withheld by § The that function is fulfilled courts, interpretation dispo- not involve do regulate by function served is defense, party's claim while sition of a proceedings procedures to be be- followed many rulings magis- time within same magistrate judges, with- fore both matters judge’s powers something trate determine power judge's to hear and claiming, only way a party is to make (which determine the Rule refers as mat- terminology 72's to construe sense of Rule is dispositive party's ters “not claim or "nondispositive” "dispositive” terms defense”) and for matters withheld upon distinguishing as between matters 636(b)(1)(A) (which rule refers to as empowered judge is which the motions”). "dispositive See Fed.R.Civ.P. rule, and matters as which the advisory It is & committee’s note. clear this judge recommend. has the terminology literally. taken The not to be pow in the the Act over incremental increases ments to time to see what gress’s a series of through of these officers light they changes ers shed in Congress’s (while statutory gradually up amendments confidence in re- titular designation their grading increasing flected in duties and powers Commissioner, Magistrate, Magis to them the Act. provi- entrusted 865-71, 109 Judge). Id. at S.Ct. likely to Congress’s sions most reveal in- gradu Congress’s The Court noted respect sanctioning tentions with increasing confidence in ally portions power are those of the Act that judges, and it then asked whether these powers magistrate define the were Congress’s confidence suffi indicia disciplinary other and coercive support the conclusion Con cient remedies for misbehavior. The most rele- general grant intended its authori gress (e), vant provision subsection 28 U.S.C. jury to include in a criminal ty selection 636(e), dealing § contempt with the power. 869-72, at 2237. Not Id. 109 S.Ct. case. 2000, 636(e) § Prior to expressly withheld require to Congress continued ing power the im- to parties of the as a to prerequisite consent pose Upon contempts. the occurrence magistrate judge’s try to a authorization conduct, the provided contumacious statute cases, 870-71, at see id. S.Ct. jury judges that magistrate certify were to the jury and that selection was enor judge, facts to a district who would then a mously important for the conduct of fair hear the evidence determine whether trial, 873,109 see id. at S.Ct. criminal punish to the eontemnor.4 concluded that should not the Court magistrate construed to authorize be however, in a new enactment trials, juries to select in criminal at judges captioned, “Magistrate Judge Contempt defendant, absent the consent of least Authority,” repealed the old sub- 872, 109 at S.Ct. 2237. id. (e), replacing section it with a new subsec- (e), grants tion According approach, magistrate to this becomes judges amend- pertinent inspect Congress’s independent considerable authority over (e), version, pre-2000 tify judge Subsection in its stat- to a the facts of the district court ed: or cause upon serve to be served any person brought whose behavior is into proceeding magistrate, any aIn before a requir- under this section an order following shall acts or conduct consti- ing appear person judge such before a contempt tute a of the district court for the upon day that court certain to show cause sitting: magistrate district wherein why adjudged contempt he should not be (1) any disobedience or resistance lawful judge of the facts so reason certified. A order, writ; (2) process, or misbehavior thereupon, of the district court shall ain hearing proceeding, or other or so near manner, summary hear the evidence as to same; place thereof as to obstruct and, complained conduct (3) the act or if it produce, having failure to after been so, punishment, punish to warrant document; is such as any pertinent ordered to do (4) person in the same such manner and to the having appear refusal after been or, contempt same extent as committed subp[o]enaed upon appearing, refusal to court, witness, judge before a of the or commit such take the oath or affirmation as or, affirmation, person upon applicable having conditions taken the oath or law; process defiance of the according case of refusal to be examined or (5) any presence or misconduct act district court in the other or conduct which if com- judge judge of that court. mitted before a court Act, 90-578, Magistrates contempt would such Federal Pub.L. No. constitute court. (1968), Upon any such act 1113-1428 commission of or 82 Stat. codi- conduct, 636(e). magistrate shall forthwith cer- at 28 U.S.C. fied Rules, the new under the Federal both criminal adjudications, contempt 636(e)(4) its expressly stated civil, as follows: contempt authority grant of civil (2) (cid:127) 636(e), §to subparagraph A new “shall not be construed consent cases “Summary criminal con- captioned magistrate authority of to limit the gave magistrate authority,” tempt judge any to order punish power “the summari- statute, the Federal Rules of other both, imprisonment, or by fine or ly Procedure, Federal or the Rules Civil contempt of the of such such While these of Criminal Procedure.” judge constituting misbe- mag- confer on explicitly words do any person havior power istrate judge’s presence.” sanctions, express they seem to Con- (cid:127) (3), subparagraph captioned A new understanding gress’s contempt criminal authori- “Additional power. pas- judges possess that This consent and misdemeanor ty in civil effect, fact sage says, in “The that we cases,” magistrate judges the gave expressly civil confer hearing” notice and power “upon judges should not be imprisonment, or by fine “punish, pow- taken lack imply both, contempt constituting criminal impose er to sanctions.” mag- or resistance to the disobedience writ, ... process, lawful judge’s istrate Improvement Act of See Federal Courts command,” in all civil cases over 2000, or at 28 Pub.L. 106-518 codified magistrate judge presides 636(e). the which U.S.C. parties of the under the consent with short, passing in the amend- 636(c), and misdemeanor criminal ments, very much Congress expressed by magistrate judges with cases heard magistrate judges, in enhanced trust of the defendant under 18 the consent punitive granting pow- them considerable § 3401. U.S.C. ers, absolutely which been previously had

(cid:127) (4), subparagraph captioned A new sure, contempt power withheld. To be the authority in con- contempt civil “Civil power is not the full conferred on them cases,” gave and misdemeanor sent judge appointed possessed by a district the magistrate judges full coercive (5) Subparagraph III. of the Article authority of contempt “civil the district 636(e) new limits on the extent imposes categories in the same of cases court” punishment magistrate judge may im- (3). by subparagraph covered magistrate the pose contempt, for (cid:127) adjudica- contempt For all criminal judge’s contempt power extends con- (5)

tions, subparagraph gave a new presence the tempts committed outside judges sentencing authori- magistrate in magistrate judge only cases where specified by ty range within the have parties litigation to the consented (im- code for Class C misdemeanors disposition by of the case up thirty days, or a prisonment Nonetheless, judge. under the new enact- $5,000, both, up to see 18 fine of ment, magistrate judges were the first 3581(b)(8),3571(b)(6)). §§ U.S.C. power impose time entrusted with (cid:127) contempt criminal convictions for and to Finally, highly significant for our by imprison- a term of punish contempts in the statute’s refer-

purposes, power considerably more of ment —a awe- question ence than power impose some noncrimi- judges to al species holding contempt. as a nal sanction for violation of Federal The as the in some cir- approach courts, Rules—as well taken numerous rea- compliance coerce with a cumstances to soning by analogy, to find that certain contempt order. judicial order civil powers by Congress withheld were when had enough amendments, Congress’s Prior in common explicitly powers, withheld arguments there were on both reasonable might suggested well have that the pre- strong argument A question. sides implicitly version of Act against finding sanctioning power denied that, Thus, sanctioning would have been notwith the Sixth power. statute Cir- statute, literal standing cuit, terms of when it considered the strong out a staked stance that magistrate judges concluded are against powers by the exercise similar sanctions, empowered Congress categorically judges. gave “Congress as one of its reasons that magistrate judges to exer refused to allow specifically withheld from powers. though cise Even jurisdiction contempt proceed- over consequential punish is far less sanction ings.” v. Bennett Gen. Caster Serv. N. holding contempt, ment than a Co., (6th Gordon 998 n. 7 can and im involve a criminal conviction Cir.1992). (either coercive), punitive or prisonment The opposing argument the sanc- the similarities between the two forms of —that tioning power by Congress was has, conferred Supreme order Court great. fact, pre-20000 expressly noted the similarities. relied the liter- —would Corp., al See Cooler & Gell Hartmarx terms statute. Section 384, 396, 636(b)(1)(A) U.S. 110 S.Ct. 110 L.Ed.2d granted powers, broad except (1990). 359 Both criminal sanctions and express as specifically excluded. The ex- orders, collateral contempts judicial to clusions did not mention sanctions. More- adjudication the of the claims and defenses over, commonly the imposed most forms of parties, pun which are to intended any dispose sanctions do not underlying ish misconduct committed in defiance of claims. A not dispose sanction that does authority by person the court’s a who is of a litigant’s arguably claim or defense is subject can ruling; to the court’s both also not to express so the exclusions of similar employed compensate victim of be to the 636(b)(1)(A) that it should be deemed expense the for loss misconduct suf Thus, by implication. excluded this circuit fered it. Sanctions also have reason magistrate judges ruled in that 1990 had in contempt much common with civil or power impose to sanction discov- ders, imposed as the sanction can to be ery violations under Rule 37 of Federal compel compliance judicial commands Procedure, long Rules of Civil so as the comply. intransigent after refusal to The particular sanction did not determine a similarities orders between of sanction Hoar, claim. Thomas E. Inc. v. See Sara that contempt are so substantial a sanc (2d Cir.1990).5 Corp., Lee 525 imposed tion under the Federal Rules of lighter, passed can as a Seven circuits on Civil Procedure be viewed empow- consequential gener- less form of the same whether were power, required ques- Congress's emphatic If I had been to rule on the reason of (without regard withholding power all pre-2000 tion law to hold under Hoar), strong my probably very similarity I and the between sanc- circuit's decision in contempt. Congress withheld tions and would have ruled as, prior to the Just power. confirm prior impose sanctions ered to amendments, express seven, Congress’s including Five of amendments. judges contempt powers magistrate own, withholding concluded our (so impose strong support judges authorized could magistrate were sanction, form of long particular as the also to Congress intended argument claim, of a of dismissal as a sanction sanction, such grant power withhold party’s effectively dispose did not judges contempt powers defense).6 circuits concluded Two claim con- supports the powerfully in 2000 now authorized.7 not so they were confer intended to Congress clusion an case. event, pre- of how the It is regardless sanctioning power. any fortiori construed, after conviction have been a criminal impose 2000 Act should power expressly the statute very amended imprisonment and a sentence range on confer pow- than the more awesome substantially nothing re- little or contempt powers, If sanction. a noncriminal er to that the amended argument mained of the on Congress conferred by implication be construed statute should criminal convictions power impose a mone- power to withhold put contemnors contempt, and to reading of the A literal tary sanction. Congress’s interpret we jail, why would authorizations, lim- statute, with its broad noncriminal sanc- the issue of silence on exclusions, communicates by explicit ited power? implicit denial of tions as an of denial of suggestion no Congress’s it correct to describe Nor is And the Federal Rules. sanction question as “si- on the present stance in the mode em- by analogy, reasoning explicitly Gomez, Congress did lence.” While strongly to now tends ployed imposed this case are Hosp., the Rule 11 sanctions Douglas Phinney v. Wentworth Accordingly, (1st Cir.1999) ("Motions non-dispositive. for sanc F.3d 11 sanctions jurisdiction to order Rule had alleged discovery premised violations tions properly reviewed the court and the district excepted under 28 U.S.C. specifically are not error.”); Ocelot and, magistrate’s order for clear 636(b)(1)(A) general, are not of Indus., F.2d Corp. Sparrow Oil genre motions. as the enumerated the same Cir.1988) (10th clearly (“Discovery is therefore, hold, motions ordi that such We matter, magistrates thus have pretrial nondisposi narily be classified as should discovery Cir.) authority order sanc Hoar, (2d general tive.”); F.2d at 525 900 however, so, They may if those not do tions. ("Monetary pursuant to Rule 37 for sanctions eight dispositive mo within the sanctions fall usually discovery noncompliance with orders (A).”). excepted in subsection tions magis of the committed to the discretion are trate, by under the district court reviewable Cir.) ("[T]his Bennett, (6th contrary 'clearly or to law’ F.2d at 998 erroneous 976 standard.”); dispositive the Rule Boiler of purported Merritt v. Int'l Bhd. order was and, makers, 1013, (5th a consequently, dispositive Cir. 1016-17 11 matter dispos 1981) (“[T]he a magistrate possessed party. the au a Because this was ‘claim’ of matter, 72(b), 636(b)(1)(A) § to en Fed.R.Civ.P. thority 28 U.S.C. itive under report a discovery magistrate judge in this have issued non-dispositive should ter ordersL case, by with a for de novo review in connection and recommendation fees and costs omitted)); (footnote Alpern discovery].”); v. compel Grimes court.” the district motion (7th Cir.1994) ("A Francisco, (9th Lieb, Cir. F.2d 240 F.3d 935 951 38 San 1991) ("The dispute sanc authority magistrates judge may im refer a about magistrate judge a recommenda by 28 is established tions to a pose sanctions 636(b)(3), 636(b)(1)(B) but by or recognized our deci tion under U.S.C. 636 America, Inc., judge may make a decision sions.”); not 902 v. F2 Maisonville effect.”). ("[W]e (9th 1990) independent with find that 748 Cir. F.2d speak ery obligation or an power, obligation it did abuse of grant or withhold by And its that the Rule ll.8 I not see subject. imposed statement do how we on the contempt authority- justify of civil in express grant ruling the Second Circuit could monetary “shall not be construed that a today consent cases sanction abuse authority of a dispositive, limit the 11 is of Rule and therefore be- communicates an under- order sanctions” yond magistrate judges, part Congress standing on disavowing holding without our prior possess do that authori- magistrate judges magistrate judges empow- Hoar that are ty- impose a monetary ered to sanction.

Finally, question analysis I that the be note should differ- un- impose sanctions does, fact, ent for sanction which Rules of Civil Procedure der the Federal suit or claim prevent dismiss a or de- scarcely open this circuit. As seems Hoar, being fense from See advanced. above, imposi- held in noted we Hoar that (“[T]he imposition F.2d at 525 of certain is, monetary tion of a sanction—that under Rule in some instanc- dispose party’s not of a sanction that does es, be ‘case-dispositive,’ considered “nondispositive” claim or defense—is requiring (citing Moore, de novo review.” matter therefore “committed and is Sinclair, Jr., Lucas & Moore’s Federal magistrate [judge], re- discretion ¶ (2d 72.03, ed.1989))). Practice at 72-24 by viewable the district court under the circumstances, In such the sanction would contrary or law1stan- ‘clearly erroneous same rulings have the effect as the ex- Hoar, dard.” F.2d at 525. 636(b)(1)(A), pressly by § excluded or rulings It true that would so similar is of course the sanction be to those as to Oil, by implicitly was reason discov- be excluded. imposed Hoar See Ocelot ery (noting was done under Rule F.2d abuse and generally than but that a distinc- to impose rather is authorized sanctions, crucial Rule that a ruling tion without a difference. The but sanc- striking of a pleadings prejudice is whether tion ef- dispose party’s fectively involuntary sanction that does of a constitutes dismissal (such monetary claim as a sanc- and is implicitly or defense action therefore exclud- tion) 636(b)(1)(A)). nearly Analyzing considered ed should be more the ef- “dispositive” particular imposed Con- analogous orders fects of the sanction gress expressly magistrate judge, withheld from to determine whether punitive dispositive or to the and coercive nondispositive expressly claim, granted approach imple- that best 636(e). in Congress’s § the new A ments intent. See Charles i.e., monetary Wright, one not Alan Arthur that does R. Miller & Richard sanction — Marcus, dispose party’s of a claim or defense—is L. Federal and Practice Proce- ed.1997) (3d (advo- 3068.2, disposi- § no more less similar to dure and no the 636(b)(1)(A) § § rulings by cating tive withheld a “textured of view” judges from it the court the “requires go beyond whether was label of an the action imposed by impact reason abuse of a discov- and consider of the taken motion, plain- requiring 8. The of a sanction with a leaves the claims witness, $100, attorney, party pay or a or a of tiff and the defenses the defendant unaffect- regardless imposed by of whether reason ed. or of abuse abuse in connection monetary damages, of it is mon with an award case to whether on the determine judges power withheld dispositive”). 636(b)(1)(A). in The by Sixth Circuit that, argu- I while reasonable conclude judges that magistrate Bennett also noted advanced on both could have been ments exercising expressly were forbidden from when question prior sides numerous contempt power. the There are truly was silent on governing statute the decisions, why citation to those reasons authority of magistrate of question the the properly made cannot in 1992 sanctions, Congress since impose judges today. of govern analysis question our the amendments, all the indica- passed very support conclusion strongly tions is that Ben important most reason that, in a sanction exception Alpern nett were decided under defense, or disposes of a claim form statute, byit Congress old amended before judges to im- empowers magistrate § 636 judges granting magistrate significant con Furthermore, we since pose sanctions. tempt with powers previously which had monetary in Hoar in 1990 decided held, stated Congress and before dispositive are not and are there- 636(e)(4) express that the of civil grant judges fore entrusted to “shall be construed contempt powers 636(b)(1)(A), has question been re- to limit the purposes of this circuit’s law. solved time, to order sanctions.” At Certainly change governing legis- no in the magis opaque statute was as to whether lation since our decision Hoar could In trate could judges sanctions. with- support conclusion any Congressional the absence of clear that power. drew guidance, Alpem the Bennett and courts analogies powers expressly searched B. granted or withheld. Sanctions were more Judge I turn to examine Cabranes’s ar- nearly analogous money dam awards of that, upon to see it can be guments how (which ages magis were not authorized to materials, examination the same we trate judges referrals come to such different conclusions. 636(b)(1)(A)) to any power magis than arguments advances numerous Cabranes trate were at the time to authorized support magis- his conclusion that further opinion exercise. And Bennett lack sanc- noted analogy contempt, which Con view, my In of his arguments tions. each gress expressly also had withheld. on a depends misperception the facts rules law. of various however, Today, the revision following very pertinent analogies begins noting Cabranes substantially changed. little rea- There is the “Sixth and Circuits Ben [in Seventh son believe the Sixth and Seventh Cir- v. N. nett General Caster Service Gor Co., Lieb, cuits if would reach same result Alpern don F.2d 933,] considered the anew under F.3d have held that decisions place, dispositive a claim amended statute. the first Rule motions are longer opaque, statute no much less properly and are therefore not resolved is silent; magistrate Congress’s a new judge.” order of Ante at 85. observation 636(e)(4) to that Con- goes powerfully suggests He describe those decisions. cases, gress to exer- judges both courts concluded that intends sanctioning power. very cise reasons award sanctions shares features com- disposes defense, a the Sixth and Seventh Cir- tion that claim or persuaded that (such monetary of a sanction sanction imposition penalty) cuits that as that dispositive apply nondispositive not do so in the be considered does is should has equally contempts, Congress category pow- to which is therefore within the (within limits) clearly placed magistrate judge by ers conferred on a now 636(b)(1)(A). See, Fi- category. e.g., authorized Lawrence v. nondispositive, Wil- similarity Corp., sanctions and der Richman Sec. nally, F.Supp.2d between (D.Conn.2006); is far for fur- 232-33 v. contempts stronger, Magee reasons Paul Co., below, similarity than the explained ther Revere Ins. 178 F.R.D. Life (E.D.N.Y.1998); money Stevedoring between sanctions and awards of Co. Weeks v. Builders, Inc., plaintiffs Raymond resolution claim. Int’l damages F.R.D. (S.D.N.Y.1997); At time of the and Seventh Cir- Sixth 303-04 Laser Med. Found, decisions, analogy cuit to both con- Research Soviet Air- Aeroflot lines, 5747(PKL), damages argued and awards of 93 Civ tempts WL (S.D.N.Y. 24,1994). that *2 Congress favor the conclusion had at Oct. power. the sanction Now the

withheld Judge argues Cabranes that the deci- similarity stronger much analogy—the circuits, including ours, sions five argues, adjudications forcefully — upheld magistrate that have judge authori- case, an a indeed as fortiori ty they to sanction are irrelevant because judges intends exercise involved under sanctioning power.9 for relating Rule 37 misbehavior to discov- problem Judge ery, A further Ca- while this a sanction case involves imposed focus on the Sixth and Seventh which branes’s relates to motions, Alpem pleading, in Bennett and is other papers. Circuit decisions He selection those two that his cases contends sanctions under Rule 37 for above, circuits, discovery As seven arbitrary. completely noted misbehavior are dif- ours, magis- including considered whether ferent sanctions under Rule 11. judges were under the empowered Judge thus the sur- Cabranes advances award pre-2000 statute sanctions. proposition Congress silently, prising Judge is correct two While Cabranes intentions, leaving without a clue of those not, they five circuits concluded that were guess it to au- left us intended circuits concluded that thorize to exercise power, long as possess sanctioning did so sanctioning power under was not imposed the sanction one which discovery, related not abuses but disposed of a claim defense in the un- exercise under Rule 11 sanctioning derlying action.10 relating pleadings for abuses and mo- Furthermore, court In explanation, Judge numerous district tions. Cabranes “[Cjoercive decisions, writes, Judge Cabranes disre- is entrusted that, within gards, similarly ruled while matters authority. sanc- magistrate judge may statutory why their That interpreting substantially Jacobs describes were has been so Cabranes's ''follow[ing] modified. view the Sixth and Seventh For the ex- Circuits." at 106. reasons Infra above, First, Second, Fifth, longer possible plained either is no 10. See decisions of the follow, Ninth, Circuits, reject, or to Sixth and Seventh and Tenth listed in footnote supra. Circuit decisions because the statute “dispositive” party’s to im- of a claim.11 Not have the ered magistrate judges discovery- of invoked, sanctions for violations the pose a of discussion or even word orders____[T]he magis- of a scope broad mentioned, scope magis- a “the broad of authority discovery judge’s over trate judge’s authority discovery over dis- trate the of his ... source disputes provides putes.” for the vio- authority impose sanctions to The same true of other is numerous discovery orders.” Ante lation of up of decisions circuit and district courts support argument is for this There no authority magistrate judges the of rule, holding If statute, judicial opinion. or any the anything, to demonstrate award sanctions. No I have it seems to decision Judge con- of what Cabranes opposite justifies magistrate judge’s found a author tends. ity discovery Rule 37 sanctions magistrate judge’s on the basis of a broad Hoar the decision said place,

In the first authority discovery experience er It nothing simply kind. examined the dealing than in with and pleadings orders be consid- matters whether sanction should 636(b)(l)(A)’s "discovery opinion plies, fact 11. focused on rested on the magistrate judges desig- grant disputes statutory are within the core authori- by magistrate deter- ty judges.'' nated district court to hear and Id. the any pretrial "except matter for certain mine Yet the conclusion that court's the sanction dispositive which] enumerated motions [as imposed nondispositive way was in no was may only proposed findings fact he submit that it the connected the fact arose out of for de and recommendations” determination discovery many context. Like other Hoar, court. F.2d at novo the district courts that have ruled that omitted). (quotation Observing marks (so empowered long are sanctions concerning discovery general- that "[m]atters effectively dispose ” as the sanction does not 'nondispositive,' ly the court are considered claim), Circuit Ninth reasoned that "[m]onetary went on sanc- to conclude monetary sanction was within the pursuant noncompliance Rule 37 tions judge’s power dispositive: because it was not discovery usually with orders are committed 636(b)(1)(A) lists [S]ection those motions magistrate, reviewable discretion may by magis- which not be determined 'clearly court under errone- listed, Accordingly, any trate. motion not contrary ous or to law' standard.” Id. The analogous a motion nor listed in this inquiry particular entire was into whether the category, non-dispositive falls within the imposed disposing had the sanction effect of group which a matters caution, The court went on to claim. determine. Rule 11 are not sanctions treatise, citing Moore sanction matters, group dispositive listed which, example, pleadings strikes imposed nor do the here have prejudice would have effect of involuntari- an effect similar to those motions consid- ly dismissing the action and would thus be dispositive. ered accordingly magis- dispositive beyond the Maisonville, (citations F.2d at 747-48 Hoar, judge's power. trate 900 F.2d at 525. omitted). Furthermore, Judge attempt Judge attempt similar to distin- Cabranes’s Cabranes's Maisonville, guish up- continuing pertinence discredit the of Maison- judge's ground discovery disputes held a of sanc- ville on the unpersuasive statutory magis- for the tions under Rule "within core explains, judges” simply an same reason. As Cabranes invention without ruling statutory thing judge Maison- there were as basis. If such discovery statutory discovery, was ville a Rule 11 sanction for a "core” authorization for violation, distinguished peripheral statutory Rule 11 was amended in 1993 from au- motions, arising relating pleadings to exclude sanctions thorization this, Judge concept disputes. presumably at 85-86. reference to Ante From some Cabranes Circuit’s would be in some statute. Ca- concludes the Ninth found sound, because, longer decision he im- branes cites is no none. denying judges magistrate sanctioning These look to whether motions. decisions by the imposed power the sanction over matters under If Rule 11. in a claim or disposes fact defense judge anything opposite. it All demonstrates (in dispositive it and case would be which subject sorts of to 11 are motions Rule judge’s authority), beyond by routinely district to judges referred whether, sanction, monetary it like a or magistrate judges under the broad author- remedy that penalty does not imposes 636(b)(1)(A). 11(b) ity of specifies (in of a claim or defense which dispose as to such a or answering paper motion it is and falls within nondispositive case “[b]y presenting that to ... [it] the court magistrate judges powers conferred on attorney an ... that ... ... certifies 636(b)(1)(A)). 12 Wright, See Miller legal contentions are warrant- [made it] 3068.2, (noting & Marcus at ...; by existing ed [and] law the factual “distinguishfed] between dis courts have evidentiary it] contentions have [made dispositive covery sanctions that are 11(c) support....” provides And Rule for not”). that are do the decisions those Nor sanctions for of that obligation. abuse courts, which Alpem of the Bennett and contend, Judge can Cabranes does nor judges that magistrate lacked the held 636(b)(1)(A), he the face of mag- Rule 11 power pre-2000 impose to sanc judges istrate without au- “statutory tions, suggest that a Rule sanction is thority” to Judge handle those motions. If “dispositive” discovery than sanc more Cabranes that magistrate judges is correct tion, magis or that authorization sanctioning have “for power matters within judges depends a sanction trate statutory authority,” their then it follows obligations on whether involved abuse sanctioning have over relating to discovery or statements 11(b) abuses of connection with motions, papers. and other pleadings, motions them. entrusted to aware, Judge far as I am Cabranes is So suggest judge the first Perhaps Judge ar- principal Cabranes’s might granted magis Congress gument is that the of a sanction authority judges the to award sanc trate equivalent under Rule 11 is the “functional abuse in tions Rule 37 for connec an independent claim” which should denying them tion while dispositive. therefore be considered Ante authority sanctions under Rule that, points at 88. He in a out different context, “the Supreme Court has com- 13“ pared a Rule 11 motion for sanctions to Judge Cabranes’s observation that “co- charge criminal insofar as each authority ercive is entrusted separate independent is ‘a proceeding judges statutory matters within their at authority,” particularly part original law that is not puz- ante is ” Gell, scarcely argument This is action.’ zling. (quoting Id. Cooter & explains judges magis- competence we Cabranes further that his think of the areas, perception disposition "that the of a Rule in different but to rule Congress motion made whether entrusted must be them with [sanctions] power. judge magistrate judge] point to [and not a is not a Cabranes does not statute, anything disparagement in the before or its after amendment, legislative preside properly history, over matters before or in its Indeed, suggests distinguish intended them. coercive is entrusted magistrate judge’s authority to within their between a for matters statutory authority.” at 88. sanction 37 and her lack au- Ante This obser- under Rule puzzling, thority Rule 11. vation for the not what sanction under 102 2447). magistrate judge’s the authorized He notes within 110 S.Ct.

U.S. at a equally is Each is also true of powers). “the of sanctions imposition further that (and Judge from in independent holding contempt Cabranes to and an issue collateral case,” that has (quoting dispute Congress author- underlying the id. does Schlaifer Warhol, F.3d magistrate judges punish 194 to con- Nance v. Estate ized & Co. of Cir.1999)); (2d pos- that a court Judge stresses tempts).14 While Cabranes impose to sanctions authority delegated the to jurisdiction contempt that sesses underlying though action complete the than arising magistrate judges from is less to lack ultimately determined authority judges, be the of district contempt ac- jurisdiction over that subject matter au- dispute contempt he cannot that the is sanctions tion; an that thority explicitly given that has the appealable; and that independently magistrate judges all fea- to shares the dif- to Rule sanctions are often parties underlying independence tures of from the underlying the parties the ferent from points to as Judge action that Cabranes matter, attorney the it is often since authority lack magistrate judges that proof imposed. Ante whom a Rule sanction impose Rule sanctions. Whatever at 86-87. argument might prior force this have had 636(e) Congress’s giv- amendment of as accu- dispute I have no

While magistrate judges powers in ing observations, I racy do not under- of those a circuit where were they why Judge believes stand Cabranes authority to impose to have deemed not support argument his argument the has sanctions under authority lack sanctions none amendment a circuit under Rule 11. of the observations Each after has ruled do Judge separate Cabranes makes about the authority under independence 11 sanction from of Rule short, if contempts Rule 37. In underlying equally action is true (and within nondispositive Ca- 37 sanctions are sanction under Rule 37 authority, magistrate judges’ so are dispute does not Rule 37 sanc- branes nondispositive tions and thus Rule 11 sanctions.15 are deemed puzzlement magistrate judges authority to expresses Jacobs over make dis- positive dispositive de- '‘incoherence]” what he sees as in consider- determinations. clause, sufficiently listed in that ing "dispositive” terminations insofar a sanction order suits, civil immediately sufficiently relate to are determinations appealable to be but party’s pursuant demands relief nondispositive to within be pleaded, party's right 636(b). claims or of the to have judge's power at 85. Ante adjudicated by They the claim the court. do Regardless there is in- of whether theoretical relating not include collateral matters to mis- consistency holding be a sanction order to au- conduct and court’s vindication of its appealable immediately and within once thority. illogic inconsistency no There is magistrate judges, an order of Congress's withholding to de- no in this sanctions under Rule 11 is different right party's termine main- claim or regard summary holding from a in criminal court, tain the claim before while affirm- contempt, Congress explicitly empow- punish ing for misbehavior ered without de order court, proceedings. Every judicial the course of the by the which is novo review ruling something. The im- determinative immediately appealable. also See Matter Co., position very of a sanction is a different sort Eng'g U.S. 24 S.Ct. Christensen ruling party’s (1904). from one that determines a 48 L.Ed. 1072 (at long pleaded least as the claim so form inconsistency particular does this sanction does not determine Nor create claim). 636(b)(1)(A) Congress's party's right assert effort in to withhold to continue to Moreover, courses, see, “a asserting e.g., Rule 11 education LaVigna, 159 can the functional motion be considered requirement F.R.D. at or a that an of an a ‘claim’ equivalent pressing action litigant abusive seek leave of court before duty for the breach of the set forth the actions, see, filing further e.g., Colida that, rule,” fact as in on the “an based Inc., 8056(KMW), Nokia No. 07 Civ. damages remedy action ... the desired for 4449419, (S.D.N.Y. 29, Sept. WL at *2 movant,” monetary is a to the award ante 2008). 87, Judge at Cabranes overstates the de- short, gree similarity of an action for sanction some circum- between imposition an damages may of sanctions. stances or no little resemblance part A the of an significant purpose of to an money award of damages the imposition of sanctions is to vindicate the objective claim, a party’s of civil but it authority the court and of the rules of always great has resemblance to holding law, punish disrespect that Moreover, in contempt. that extent Accordingly authority. may a sanction be sanctioning orders do share common fea- even imposed though sought an tures damages, with awards of this is no See, aggrieved party. e.g., Morley v. more true sanctions awarded under (2d Ciba-Geigy 21, Corp., 66 F.3d 24-25 Rule 11 than of sanctions awarded Cir.1995) (affirming court’s sua 37, which we have ruled are within sanctions). sponte imposition of Rule 11 the of magistrate Ac- judges. may impose The court the sanction be- cordingly, imposition the un- sanctions aggrieved. cause court Further- der Rule 11 is far nearly analogous more more, it undoubtedly while true that a powers granted magistrate judges— does, may, frequently sanction order contempt power and the monetary compensate include a award to sanction under Rule 37—than it is to an person an aggrieved party for the in- damages award of in a suit damages. expense convenience and caused breach, indispens- offender’s that is not an argument Cabranes’s next is that part sanctioning able order. Because under “general statutory in- principles occasioning injury the sanction is to terpretation,” a “presumption in favor of court, 11(c)(4) provides, expressly continuing judge-made law absent clear may nonmonetary “The sanction include congressional requires intent otherwise” directives; pay penalty [or] order that “interpret Congress’s we decision sanctioning into court....” Thus a order 2000 to grant pow- limited contempt pay money involve direction to implicit ers as an ratification of the earlier court, see, e.g., LaVigna v. WABC Sixth holdings and Seventh Circuit[ ] Television, Inc., 432, 159 F.R.D. magistrate judges do not have authori- (S.D.N.Y.1995), a direction to the offender ty to issue Rule 11 sanctions.” at Ante sanction, see, to publish the fact of the e.g., I can no why. see reason As Ca- In re Liability Litig., Rezulin Prods. No. acknowledges, branes at the time Con- 2843(LAK), Civ. WL at *2 gress passed amendment, the 2000 there (S.D.N.Y. 2005); Brand, Mar. Patsy’s split question was a circuit on whether Inc., Realty, Inc. v. I.O.B. No. Civ. could sanctions 10175(JSM), 2002 WL at *10 (S.D.N.Y. 2002), under Rule with the Sixth and Seventh Jan. a direction to an No, saying Circuits attorney who while Ninth Circuit demonstrates insufficient governing Why knowledge Congress’s rules attend held Yes. would silence powers certain grant magistrate judges im- unexplained, constitute this and withhold others. holdings plicit endorsement holding No, rather than of said Ante 16Furthermore, since said Yes? contains three sub- argument This brief sees no indication whatsoever gave (1) Perhaps premises. stantial mistaken a difference between above, Judge important, as reviewed least judges under Rule by magistrate the extent of con- understates Cabranes looking to and Rule if we were Congress conferred tempt hold- Congress approval of the impute to 636(e). that, in I think it undeniable in courts, why impute we not ings of would prohibi- comparison prior blanket circuits holdings five approval of contempt authority, the 2000 tion of all of upheld very express significant a amendments sanctions, rather than judges impose to Congress’s in of confidence upgrading circuits that ruled holdings of the two and punitive to magistrate judges exercise otherwise? (2) contempt powers. Judge Ca- coercive my and misstates branes misunderstands a Judge argues, as Finally, Cabranes suggested I have argument. referring to my arguments of refutation authority of limited to Congress’s grant to contempt authority Congress’s grant of contempts magistrate judges impose to amend- magistrate judges in the 2000 hold plenary power converted “into was ments: attorneys in It is litigants contempt.” and ... minimal bootstrap authority We cannot indisputable contempt grant authority of plenary. conferred less than Nonethe- is less, (3) punish Judge misconduct that occurs before it is Finally, substantial. my hold eyes plenary power acceptance their into of Cabranes asserts that in litigants attorneys contempt argument Congress’s and “undermine would so cer- grant magistrate judges sanctions. To do decision to and This Congress’s powers decision tain withhold others.” would undermine if, 2000, Congress silently Congress extremely in Judge Cabranes contends that odd ground deemed on a disregarded Maisonville overruled should be understood to today Judge advanced for the first time ruling in amend- Ninth Circuit’s Maisonville Cabranes, and in the of the Ninth Cir- ing change in face of a 1993 the statute because precedent. on the cuit's continued reliance dis- Rule 11 to exclude sanctions related to covery. ruling of Ante at 89 n. 13. But the depend Moreover, Circuit did not on the fact Ninth imputation it is if the not as imposed the context that the sanction was in Congressional would from As arise silence. above, discovery. supra See note 12. Further- passing the amend- noted more, ments, 636(e)(4) my knowledge, this of Mai- Congress criticism new stated in the never been sonville has before advanced au- that its decision to civil confer commentator, any thority magistrate judges court or Maisonville in certain classes See, good e.g., still law the Ninth Circuit. of cases not be construed to limit "should Rivera-Gueirero, F.3d United States to order sanc- (9th Cir.2004) (analyzing a suggestion 1067-69 to im- tions.” Cabranes’s judge's "un- Congress "general principles pute to —under ”); approval der also v. Max- statutoiy Maisonville see Watson construction” — well, holding at *1 n. 1999 WL two of seven circuits to have 28, 1998) (af- (9th (unpublished) require Apr. question would Cir. addressed the also imposed by magis- imputation contrary firming Rule 11 sanctions intention 636(e)(4). Maisonville). Congress §in judge, citing expressed be intention trate It would Congress its argument simply assumes conclusion. since amended 636 to express- magis- prohibited If in had fact ly grant contempt powers to magistrate sanctions, imposing judges circuit judges our ruled the context the con- trying I somehow defend were discovery matter rule, would trary Judge Cabranes be cor- are authorized to money my argument rect that would “undermine sanctions, changed. all that has cir- In a grant magistrate Congress’s decision cuit that authorizes sanctions dis- certain and withhold oth- powers context, covery no argument reasonable reason, however, ers.” magistrate judges, although remains that arguments and I forth our Cabranes set by Congress im- expressly authorized Congress has not enacted clear pose contempts and found also to au- be My argu- or the provision way one other. impose money thorized to sanctions for do ments not seek to “undermine” Con- abuses, nonetheless lack power gress’s They to interpret decision. seek to award such sanctions for abuses relat- Congress’s intentions the absence of ing to pleadings motions. There is no congressional clear mandate. meaningful difference between sanctions conclusion, developments In the in the relating discovery to relat- sanctions during law the two decades seem to past ing pleadings to and motions. any me to have removed reasonable doubt magistrate judge may impose that a mon- After much discussion in a case in which ey sanctions Rule at least in a under resolved, question Judge the need not be magistrate such ours circuit as where Cabranes and I have set each forth our judges are to impose authorized arguments. If and when a case in arises discovery we abuse. Had faced this which a court needs to decide whether 1980s, question in Congress the when given magistrate judges has au- power contempt withheld sanctions, thority impose that perhaps judges yet and our court not had found court will our helpful find debate in an- to impose them authorized sanctions in a swering meantime, the In the question. matter, reasonably we could undecided, question because the remains way. have resolved the either judges district would be well advised Reasoning from of the broad authorization magistrate judge imposing review orders § any the absence of exclusion for sanctions both novo and under a de defer- sanctions, money fact and the that a sanc- ential standard. If the district court tion collateral and dispositive is is not that, regardless makes clear of whether suit, any claim or in defense the we could the standard of review is deferential or de reasonably concluded, have as did five cir- novo, sanction, would the same ours, including cuits that magistrate judge’s the issue judges impose money are authorized to moot, will be it will in as be the case Or, reasoning sanctions. from the fact which the court rejects district the sanc- that an award of a sanction is much like a only tion on either is standard. It contempt adjudication, which Congress case where the court uphold district would had magistrate judges, withheld from the sanction if review is deferential but disposes completely which of a discreet it if is de would withhold review novo controversy, reasonably could we have concluded, circuits, higher court will need decide as two did Con- question. altogether It gress sanctioning possible intended to withhold However, power from magistrate judges. day requiring decision will never come. (1968). JACOBS, 1107, 1113-14 Stat. Con- Judge, DENNIS Chief § give magistrate gress amended concurring: Now, contempt judges powers. limited panel, but splits our The issue summary criminal have necessary resolution authority anyone over their case, is the this 636(e)(2); § presence, under as well as sanctions under Rule authority, criminal contempt additional Rules of of the Federal Civil Procedure contempt authority civil and the full referred to them under 28 U.S.C. cases court, in any case referred them 636(b). magistrate judges Do parties (pursuant on consent of the them- authority to order Rule 11 sanctions 636(e)(3)-(4). 636(c)), under With re- selves, to make a recommendation however, specific di- spect to sanctions the district court? sanctions to Congress is still rection from absent. of Title 28 sets the metes Section 636 Against backdrop, Judge this is of Leval magistrate judge’s author- and bounds of a im the view ity. a matter When a district court refers sanctions, pose “lighter, less 636(b), consequential general form same magistrate judge’s extent species holding contempt.” Con generally on the matter is turns whether currence of Leval at 95. generally See “dispositive.” Williams hand, Cabranes, other is of view (2d Beemiller, Inc., 264-65 E. is limited to the Thomas Hoar Cir.2008). matters, nondispositive As to Judge Rule 37 context. Cabranes would rule, magistrate judge may as to but thus follow Sixth and Seventh Circuits matters, dispositive magistrate judge magistrate judge that a holding may do no than may do more recommend. Id. no more than Rule 11 recommend sanc turn, magis- court reviews a principle imposition tions'—on the mat- judge’s nondispositive trate order on dispositive of an sanctions is issue that is standard, clearly ters under a erroneous equivalent “the functional an indepen but reviews recommendation novo. its de dent claim.” Concurrence of Ca Id. Lieb, Alpern branes at 86. See v. 38 F.3d specifically does not deal Section 636 (7th 933, Cir.1994); 936 v. Bennett Gen. with sanctions.1 We have held in Thomas Co., Caster N. 976 F.2d Serv. Gordon Hoar, E. Corp., Inc. v. Sara Lee 900 F.2d curiam). 995, (6th Cir.1992) (per 998 (2d Cir.1990) 522, 525 Rule impose sanctions under This issue has divided district courts 37 in our Compare Federal Rules of Civil Procedure Circuit. Rates Tech. Inc Telecom, Inc., noncompliance for with discovery orders. v. Mediatrix No. 05-cv- (JSXAKT), 1987787, *2, As to the a magistrate related issue of 2755 2007 WL 48237, authority to con- Dist. *4 judge’s persons hold 2007 U.S. LEXIS at (E.D.N.Y. 2007) 29, Congress explicitly tempt, (applying withheld such June de novo review), Essen, authority Magistrates the initial Federal v. McAllan Von 517 90-578, 672, (S.D.N.Y.2007) 101, F.Supp.2d Act. See Pub.L. No. 82 (apply- 678 magistrate judge any word “sanction” is used in subsec- to order sanctions under (e)(4), statute, tion which sets out the civil other Civil Federal Rules of Proce- authority in consent dure, or the Federal Rules of Criminal Proce- paragraph cases then states: "This shall 636(e)(4). dure.” 28 U.S.C. not be construed to limit the

107 hand, holding standard of review the other clearly magis- erroneous On ing 11 concerning possess Rule sanc im- do “[o]rders because nondisposi pose ... are ... considered Rule 11 tions sanctions would create a tive”). Inc., Nokia No. See also Colida v. confusing body law as to what orders 8056(KMW)(HBP), 2008 WL 636(b), 07 Civ. dispositive are and the (S.D.N.Y. 29, n. 4 Sept. at *2 related of when a lower court’s 2008) (‘Whether are motions for sanctions appealable pursuant order is to the collat- non-dispositive currently dispositive eral order doctrine. For the reasons stat- point contested of law within the Second CABRANES, by Judge as ed well as the Circuit.”), 2009-1326, No. aff'd, 2009 WL (in Sixth Seventh Circuits Bennett and 2009) (Fed.Cir. cu (per Oct. 3172724 Alpem respectively), riam). split. The circuits themselves are 11 sanctions is equiva- Rule the functional Compare 38 936 Alpem, (imposi F.3d claim2; lent of an independent for that is dispositive), tion of Rule 11 sanctions reason, immediately Rule 11 sanctions are America, Inc., v. F2 with Maisonville in this pursuant reviewable Court Cir.1990) (9th (imposition of F.2d collateral order doctrine. Co. Sanko S.S. nondispositive). 11 sanctions is See (2d Galin, Cir.1987) v. Fay, F.2d also Lancellotti n. (Rule 11 sanction is a reviewable collateral Cir.1990) (1st (avoiding “vexing” order, a “conclusive ... determination or question whether Rule 11 sanctions separate from ... completely the merits by a magistrate judge properly dered effectively appeal [not] reviewable on dispositive or nondisposi characterized as judgment”). from a final If we follow tive). guidance is clear. The need proposed LEVAL’s holding, then sanctions could referred to a be However, our given earlier decision nondispositive Hoar, pur- E. and the 2000 Thomas amend- 636(b), §of poses yet any imposition of any attempt ments to to settle this sanctions be dispositive enough would now prob- issue would create more immediately be reviewable the col- lems. lateral order doctrine. This is incoherent. For example, pro- CABRANES poses distinguish Rule 11 sanctions from sum, my colleagues each of would Rule sanctions the basis the tradi- way. rewrite in a I re- different tionally scope “broad spectfully suggest that knot this needs discovery judge’s authority disputes,” over by Congress untied be the Supreme “provides the source his Court. for the sanctions violation discovery orders.” Concurrence of at But such using

Cabranes a broad

principle patrol the border between and Rule 37 sanctions can become classify

quixotic. misrepre- How does one (or not) regarding compliance

sentations obligations? Corp., separate independent proceeding Gell v. See Cooter & Hartmarx “a 396, 110 S.Ct. part original U.S. L.Ed.2d law is not action” (1990) (comparing to a (internal omitted)). quotation marks contempt charge criminal insofar as each notes person signing, filing, submit the claim has disposed been of in full. ting, advocating a document has a non Nothing remains but entry judg- delegable responsibility court, ment, or its equivalent. functional in most sanctions should be sanctioned for violation.”). result, As a a motion for the Although recognize I that these analo- imposition of Rule 11 sanctions on an at gies all analogies imperfect, —like —are torney is not a matter contested they are, submit, First, I persuasive. as parties action, but, to the underlying above, noted contempt proceedings are here, a claim pressed by party against also independent proceed- and collateral counsel for an opposing party. The fact ings for purposes appellate jurisdic- “parties” that the to a Rule 11 See, motion are Gell, e.g., tion. Cooter & U.S. distinct from underlying those ac 396, Nevertheless, 110 S.Ct. 2447. magis- tion separateness underscores the judges may trate summarily punish acts of claim from pressed those in the criminal contempt that occur in magis- Indeed, underlying action. recog we have judge’s presence.11 28 U.S.C.

Case Details

Case Name: Kiobel v. Millson

Court Name: Court of Appeals for the Second Circuit

Date Published: Jan 8, 2010

Citation: 592 F.3d 78

Docket Number: Docket 07-3903-cv

Court Abbreviation: 2d Cir.