Freddy Burton v. Infinity Capital Management

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDDY JOE BURTON; JAN PAUL No. 12-15618

KOCH,

Plaintiffs-Appellees, D.C. No.

2:11-cv-01129-

v. RCJ-PAL

INFINITY CAPITAL MANAGEMENT;

ANNE PANTELAS; SALVATORE C. OPINION

GUGINO,

Defendants-Appellants,

and

RONALD J. ISRAEL,

Defendant.

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, Chief District Judge, Presiding

Argued and Submitted

November 7, 2013—San Francisco, California

Filed June 4, 2014

2 BURTON V. INFINITY CAPITAL MANAGEMENT

Before: Sidney R. Thomas, Ronald Lee Gilman*,

and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Thomas;

Dissent by Judge Gilman

SUMMARY**

Quasi-Judicial Immunity

Affirming the district court’s denial of summary

judgment, the panel held that an attorney who prepared an

order to show cause for a judge was not entitled to absolute

quasi-judicial immunity on a claim of violation of the

automatic stay provision of the Bankruptcy Code.

Dissenting, Judge Gilman wrote that the attorney was

entitled to quasi-judicial immunity because he was in effect

acting as the judge’s law clerk.

COUNSEL

Kenneth R. Lund (argued) and Brian K. Terry, Thorndal,

Armstrong, Delk, Balkenbush & Eisinger, Las Vegas,

Nevada, for Defendant-Appellant Salvatore C. Gugino.

*

The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.

Court of Appeals for the Sixth Circuit, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BURTON V. INFINITY CAPITAL MANAGEMENT 3

Daniel R. McNutt (argued), Carbajal & McNutt, LLP, Las

Vegas, Nevada, for Defendants-Appellants Infinity Capital

Management and Anne Pantelas.

Jan Paul Koch (argued), Law Office of Jan Paul Koch, Las

Vegas, Nevada; Robert J. Kossack, Kossack Law Offices, Las

Vegas, Nevada, for Plaintiffs-Appellees Freddy Joe Burton

and Jan Paul Koch.

OPINION

THOMAS, Circuit Judge:

This case requires us to decide whether an attorney who

prepares an order to show cause for a judge is entitled to

absolute quasi-judicial immunity. We hold that he is not and

affirm the judgment of the district court.

I

Freddy Joe Burton (“Burton”) was injured in a bicycle-

automobile collision. He incurred $271,101.87 in related

medical expenses and loans and retained Jan Paul Koch

(“Koch”) to file a lawsuit on his behalf. Burton granted

certain creditors, including Valley Hospital Medical Center,

liens on his personal injury claim. Valley Hospital then sold

its account receivable to Infinity Capital Management

(“Infinity”), the president of which is Anne Pantelas

(“Pantelas”). Koch settled Burton’s personal injury claim for

$185,000.

Koch placed the settlement funds in his client trust fund

account and paid himself his attorney fee and costs. Koch

4 BURTON V. INFINITY CAPITAL MANAGEMENT

then recommended that Burton declare bankruptcy and hire

bankruptcy attorney David Crosby (“Crosby”). After paying

a retainer fee to Crosby and receiving his personal injury

settlement exemption, Burton had $104,088.10 left of his

settlement in the trust fund account.

That same month, Nancy Allf (“Allf”), who represented

Infinity at the time, told Koch that a state interpleader action

would resolve the interests of the lien holders more quickly

than the bankruptcy court. Infinity filed an interpleader

lawsuit in state court against all other similarly situated lien

holders making a claim upon Burton’s settlement. Neither

Burton nor Koch were named as parties in the state

interpleader case. The Honorable Ronald Israel (“Judge

Israel”) was assigned to the case. Salvatore Gugino

(“Gugino”) was substituted for Allf as Infinity’s attorney of

record.

Crosby filed Burton’s bankruptcy petition in bankruptcy

court. Four days later, Judge Israel held a status hearing on

the state interpleader case, and Koch attended that hearing at

Judge Israel’s request. At the hearing, Gugino appeared for

Infinity, and Steven Baker (“Baker”) appeared for one of the

defendants in the case. Judge Israel questioned Koch as to

why he had not interpled all of the funds that Burton had

received for his settlement to the court clerk as required by

Michel v. Eighth Judicial District Court ex rel. County of

Clark, 17 P.3d 1003 (Nev. 2001). Koch informed Judge

Israel that Burton had filed bankruptcy and he would be

depositing the remaining settlement funds with the

bankruptcy clerk. Those present at the hearing were confused

about the proper course to take given the bankruptcy

proceeding and the fact that Burton was neither a plaintiff nor

defendant in interpleader. Both Gugino and Baker voiced

BURTON V. INFINITY CAPITAL MANAGEMENT 5

concern about the interpleader case moving forward in light

of the bankruptcy. Judge Israel ordered the parties to appear

approximately two months later for a status hearing regarding

the state of the bankruptcy proceeding.

Three days before the status hearing, Gugino sent all

parties to the interpleader case and Koch a letter with a copy

of the minutes from the prior hearing and an update on the

bankruptcy case, including both an explanation of his initial

attempt to resolve the interpleader issue with the trustee and

confirmation that Koch had deposited the settlement funds

with the trustee.

Koch did not appear at the status hearing. At the hearing,

Gugino handed a copy of his letter to Judge Israel, and he

informed the court that Koch had deposited the settlement

funds with the bankruptcy trustee. Judge Israel responded, “I

ordered Mr. Koch to place all the funds in here. . . . I’m

going to issue an order to show cause. I want Mr. Koch to

appear and show – tell us why he didn’t deposit his attorney’s

fees into – pursuant to Michel. . . . I want him to personally

appear and tell why he hasn’t; otherwise, I’ll hold him in

contempt.” Neither Gugino nor Baker voiced any opposition

to Judge Israel in light of the bankruptcy. The following

colloquy then occurred:

MR. GUGINO: Well, the plaintiff in the case,

the injured party was – in addition to the – the

money that Mr. Koch was giving himself for

his attorney’s fees, he also paid Mr. Burton

16,500 under NRS 21.090. So.

MR. BAKER: Which is a fraudulent transfer.

6 BURTON V. INFINITY CAPITAL MANAGEMENT

THE COURT: So –

MR. GUGINO: I – I don’t know what to say.

THE COURT: – is – well, obviously the

bankruptcy court’s going to have to deal with

part of that, but who wants to prepare the

order?

MR. GUGINO: What day?

THE COURT: Mr. Gugino?

MR. GUGINO: I’ll prepare it, Your Honor.

THE COURT: Thirty days.

THE CLERK: Thirty days, we’ll set it for July

11th and that’ll be 9 a.m.

MR. GUGINO: Okay.

On that same day, Gugino prepared a proposed order to

show cause and sent it to all of the interpleader parties and

Koch. A cover letter stated that, unless Gugino heard from

them to the contrary, he would assume it met with their

approval and would submit it to the court for the judge’s

signature. The proposed order ordered Koch to appear “to

explain to [the court] why he should not be held in contempt

for failure to comply with Michel . . . as directed by [the

court].” That same day, Koch replied by sending Gugino a

fax objecting to the order and stating, “You are violating the

automatic stay provisions of 11 U.S.C. § 362.”

BURTON V. INFINITY CAPITAL MANAGEMENT 7

The following day, Koch sent Gugino a fax and a four-

page letter. The letter stated that the automatic stay prevented

proceedings directed toward the property of the bankruptcy

estate, threatened that he would file a complaint against

Gugino, Infinity, Pantelas, and Judge Israel if “at any time

[he] bec[a]me aware of further action in the Infinity litigation

(pursued by anyone),” and made personal attacks on

Gugino’s competency. The fax stated that the complaint was

“90% complete” and included a draft copy of the seven-page

complaint.

The order drafted by Gugino was never filed. Instead,

Judge Israel faxed the minute order from the June 6th status

check hearing to the parties of the interpleader case and

Koch. The minute order stated:

Mr. Gugino noted the letter provided to the

Court changes things. Mr. Gugino further

noted Mr. Koch took the remaining money

and gave it to the bankruptcy trustee.

Colloquy regarding Mr. Koch not present

today and issues regarding following the

Michel Case. Court directed Counsel to

prepare an order for a show cause hearing and

Court set hearing.

....

COURT ORDERS All parties to appear,

including Mr. Koch, to advise the Court of;

1. The bankruptcy.

8 BURTON V. INFINITY CAPITAL MANAGEMENT

2. Why the bankruptcy can effect [sic] and

stay these proceedings, since Mr. Burton is

not a party to this action.

3. Why Mr. Koch should interplead the entire

proceeds of the settlement per the Michel case

into this court immediately.

4. Status on lifting the stay.

COURT ORDERED Matter re-set from a

show cause hearing to a Status Check

regarding: bankruptcy / interpleader.

Later that day, Gugino faxed a letter to Koch that included the

minute order. The letter stated in part:

First, let me make it clear that you did not

attend the June 6, 2011 status check before

Judge Israel, even though you were aware of

the hearing date. Had you been present, all of

this might have been avoided. At the hearing,

I presented the Court with my June 3, 2011

letter and attachments, which had been

previously sent to you and the attorneys

involved in this litigation. It was my

expectation that we would be going forward

in the Bankruptcy Court under some sort of

stipulation and order. However, at the

hearing, Judge Israel ordered that an Order To

Show Cause be issued against you, and he

then directed me to prepare the Order. This

was not my idea, nor did I recommend it to

the Court. After preparing a draft of the

BURTON V. INFINITY CAPITAL MANAGEMENT 9

proposed Order, I sent it to your attention for

your review. Had you called me upon receipt,

you could have avoided incurring the hours

you claim to have spent preparing a class

action complaint against my client, her

company, myself and Judge[] Israel . . . .

Gugino also included a footnote stating, “It is not my

habit to refuse to obey a directive of a judge. I simply

followed his directive to prepare a draft of the order . . . .”

Later that same day, Koch faxed a response to Gugino stating,

“In response to your 6-9-11 letter . . . . Attached hereto

please find the rough draft of the Federal Lawsuit that I am

filing.”

The following day, Koch sent Gugino a copy of a

Memorandum in Support of Jurisdiction by fax and stated in

part, “Why don’t you dismiss the interpleader, and get your

funds from the bankruptcy trustee? Otherwise, what do you

suggest? I’ll hold up and won’t send copies to Judge Israel,

pending your reply.”

Nearly a month later, Koch sent Gugino a fax stating,

“Don’t know why you never responded to my last entreaty.

Guess it matters not. It’s been filed. Here’s a copy. See ya

in Court.”

Koch then filed a complaint in federal district court, on

behalf of himself and Burton, alleging that all defendants

violated the automatic-stay provision of 11 U.S.C. § 362(a).

He claimed actual damages of $1,000, plus attorney fees, and

sought “damages in excess of $10,000.”

10 BURTON V. INFINITY CAPITAL MANAGEMENT

Judge Israel filed a motion to dismiss the complaint,

arguing that Koch’s claims were barred as a matter of law by

the doctrine of absolute judicial immunity. Gugino filed a

separate motion to dismiss, arguing that because his acts were

taken under the direction of Judge Israel, Koch’s claims were

barred by the doctrine of absolute quasi-judicial immunity.

The district court converted both motions to dismiss into

motions for summary judgment because the parties attached

various exhibits outside of the pleadings. The court held

Judge Israel was entitled to absolute judicial immunity.

However, the court held “Gugino [was] not entitled to quasi-

judicial immunity because Gugino volunteered to prepare the

order in direct violation of the stay. Gugino had a duty to not

prepare or present the order.” This appeal followed.

We review a district court’s order denying a converted

motion for summary judgment de novo. Lewis v. United

States, 641 F.3d 1174, 1176 (9th Cir. 2011). We must view

the evidence in the light most favorable to the nonmoving

party, here Koch and Burton. Cnty. of Tuolumne v. Sonora

Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). The

proponent of a claim for absolute immunity “bears the burden

of establishing that such immunity is justified.” Curry v.

Castillo (In re Castillo), 297 F.3d 940, 947 (9th Cir. 2002).

II

This case does not concern whether the automatic stay is

violated when an attorney drafts, at the behest of a judge, an

order to show cause that was never filed, much less whether

such an act is actionable in a damage suit under 11 U.S.C.

BURTON V. INFINITY CAPITAL MANAGEMENT 11

§ 362(k).1 Rather, the sole question in this appeal is whether

an attorney who drafts an order at the request of a judge is

entitled to absolute quasi-judicial immunity. We conclude

that he is not.

Absolute judicial immunity “insulates judges from

charges of erroneous acts or irregular action.” Castillo,

297 F.3d at 947 (citing Forrester v. White, 484 U.S. 219,

227–28 (1988)). Absolute immunity “is not reserved solely

for judges, but extends to nonjudicial officers for ‘all claims

relating to the exercise of judicial functions.’” Id. (quoting

Burns v. Reed, 500 U.S. 478, 499 (1991) (Scalia, J.,

concurring in part and dissenting in part)). “The Supreme

Court has been quite sparing in its recognition of absolute

immunity, and has refused to extend it any further than its

justification would warrant.” Id. (internal quotation marks

and alterations omitted). The justification for absolute

immunity is the protection of the judicial process. It shields

independent and impartial adjudication and prevents the

“deflection of [an officer’s] energies from his public duties.”

Burns, 500 U.S. at 485. The Supreme Court has “made it

clear that it is the interest in protecting the proper functioning

of the office, rather than the interest in protecting its

occupant, that is of primary importance.” Kalina v. Fletcher,

522 U.S. 118, 125 (1997).

Thus, we take a functional approach to determining

whether a nonjudicial officer is entitled to absolute quasi-

1

11 U.S.C. § 362(k)(1), under which this action was brought, provides

that, subject to certain exceptions, “an individual injured by any willful

violation of a stay provided by this section shall recover actual damages,

including costs and attorneys’ fees, and, in appropriate circumstances,

may recover punitive damages.”

12 BURTON V. INFINITY CAPITAL MANAGEMENT

judicial immunity by looking to “the nature of the function

performed and not to the identity of the actor performing it.”

Castillo, 297 F.3d at 948. To qualify for absolute immunity,

the function performed must be a judicial act with “a

sufficiently close nexus to the adjudicative process.” Id.

However, “it is only when the judgment of an official other

than a judge involves the exercise of discretionary judgment

that judicial immunity may be extended to that nonjudicial

officer.” Id. at 949. The Supreme Court established the

requirement for discretionary judgment in Antoine v. Byers &

Anderson, Inc., where it declined to extend the immunity to

court reporters because transcribing verbatim transcripts does

not involve the level of authoritative or “discretionary

decisionmaking that the doctrine of judicial immunity is

designed to protect.” 508 U.S. 429, 435 (1993). To be

protected, the function performed must “involve the exercise

of discretion in resolving disputes.” Castillo, 297 F.3d at 948

(citing Antoine, 508 U.S. at 435).

Before turning to the functional approach, we first inquire

into the immunity historically accorded attorneys. Id. We

have afforded quasi-judicial immunity to bankruptcy trustees

because they were exercising judgments while performing

acts closely related to the judicial process. Id. at 946–47; see

also Lonneker Farms, Inc. v. Klobucher, 804 F.2d 1096, 1097

(9th Cir. 1986) (holding that “a trustee in bankruptcy . . . is

entitled to derived judicial immunity because he is

performing an integral part of the judicial process”). For

similar reasons, we afforded United States Trustees quasi-

judicial immunity. Balser v. Dep’t of Justice, 327 F.3d 903,

910 (9th Cir. 2003). Absolute immunity has been extended

to attorneys for performing the duties of a prosecutor, Imbler

v. Pachtman, 424 U.S. 409, 431 (1976); Butz v. Economou,

438 U.S. 478, 517 (1978), but the Supreme Court has not

BURTON V. INFINITY CAPITAL MANAGEMENT 13

extended the immunity beyond the prosecutorial function.

Even court-appointed defense attorneys do not enjoy

immunity because despite being “officers” of the court,

“attorneys [are not] in the same category as marshals, bailiffs,

court clerks or judges.” Ferri v. Ackerman, 444 U.S. 193,

202 n.19 (1979). In Ferri, the Supreme Court declined to

extend immunity because “the primary office performed by

appointed counsel parallels the office of privately retained

counsel” where an attorney owes a duty to his client, not the

public. Id. at 204. This implied disinclination to grant

immunity to private counsel was solidified after the Supreme

Court concluded that “private actors are not entitled to the

absolute immunity granted to some government officials,

such as prosecutors and judges.” Kimes v. Stone, 84 F.3d

1121, 1128 (9th Cir. 1996) (citing Wyatt v. Cole, 504 U.S.

158, 164–65 (1992)).

Not only does this precedent forestall extending absolute

quasi-judicial immunity to Gugino, the functional approach,

which requires us to look past his identity as an attorney and

focus only on the function he performed, also denies Gugino

immunity. Although the function performed by Gugino had

a close nexus to the judicial process—he prepared the order

during a judicial proceeding, and orders are a basic and

integral part of judicial proceedings—preparing the order did

not involve the kind of discretionary judgment that is

protected by the doctrine.

Preparing an order on behalf of a court does require the

preparer to make important decisions about language and

tone, but the ultimate discretion in determining whether an

order will be integral to resolving a dispute lies with the

judge, not the preparer. Only the judge can exercise the

unique authority vested in him by signing an order of the

14 BURTON V. INFINITY CAPITAL MANAGEMENT

court. Because the judge must approve of an order before it

is filed and before it can affect the course of the judicial

proceeding, it cannot be said that simply preparing an order

involves the “substantial discretion” that results in absolute

immunity. See Castillo, 297 F.3d at 951.

Gugino argues that he is entitled to absolute immunity

because a law clerk would have been entitled to absolute

immunity for preparing the order. Although law clerks are

entitled to absolute immunity and certainly prepare orders, an

attorney cannot be compared to a law clerk, who is “probably

the one participant in the judicial process whose duties and

responsibilities are most intimately connected with the

judge’s own exercise of the judicial function.” Moore v.

Brewster, 96 F.3d 1240, 1245 (9th Cir. 1996) (internal

quotation marks omitted).

Gugino also contends he is entitled to absolute quasi-

judicial immunity because he was doing what Judge Israel

asked him to do. Other circuits have held that a function

undertaken pursuant to the explicit direction of a judge

entitles the subordinate to absolute immunity. Kincaid v.

Vail, 969 F.2d 594, 600–01 (7th Cir. 1992) (citing examples

from five circuits extending immunity for carrying out

judicial directives). We have previously held that court

clerks are entitled to absolute immunity even in the absence

of a judicial directive so long as the acts were not done “in

the clear absence of all jurisdiction.” Mullis v. United States

Bankruptcy Court for Dist. of Nev., 828 F.2d 1385, 1390 (9th

Cir. 1987). However, immunity was extended in all of those

cases to court officials, and Gugino is not a court official.

Additionally, the district court here characterized Gugino’s

action as one he volunteered to do. Gugino maintains that he

was directed to prepare the order, and Judge Israel’s minute

BURTON V. INFINITY CAPITAL MANAGEMENT 15

order stated that “the Court directed Counsel to prepare an

order for a show cause hearing.” Nevertheless, when we

view the transcript of the hearing in a light most favorable to

Burton and Koch, we resolve the inference in their favor.

Gugino responded when Judge Israel asked, “who wants to

prepare the order?” and, unlike the first status hearing,

Gugino did not voice any concern about preparing the order

in light of the bankruptcy.

Finally, Gugino argues that policy reasons support the

extension of absolute immunity here. He asserts that having

attorneys prepare orders preserves scarce judicial resources,

and that the practice would be inhibited if attorneys were

exposed to civil liability for doing so. Of course, nothing in

our holding necessarily subjects an attorney to liability. We

simply decline to extend the doctrine of absolute immunity.

Judicial economy does not provide a justification for altering

our case law. In addition, affording immunity to attorneys for

drafting orders might immunize improper actions where

attorneys did knowingly and wilfully violate the automatic

stay by presenting orders violating the stay to judges who

were not apprised of the bankruptcy filing.

IV

On the narrow question presented by this appeal, we

conclude that an attorney preparing an order for a judge is not

entitled to quasi-judicial immunity. We do not reach the

question of whether such an action violated the automatic

stay, or whether it was actionable under 11 U.S.C. § 362(k).

AFFIRMED.

16 BURTON V. INFINITY CAPITAL MANAGEMENT

GILMAN, Circuit Judge, dissenting:

The majority refuses to extend quasi-judicial immunity to

Salvatore Gugino, a private attorney, based on the majority’s

conclusion that Gugino performed a nondiscretionary act in

drafting a show-cause order at Judge Israel’s request. In so

concluding, I believe that the majority has not only

misapplied the precedents on point, but has produced a very

unfair result. I therefore respectfully dissent.

To begin with, the majority and I actually agree on a

number of key points. We agree, for example, that immunity

“is not reserved solely for judges, but extends to nonjudicial

officers for all claims relating to the exercise of judicial

functions.” In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002)

(extending immunity to a Chapter 13 bankruptcy trustee)

(internal quotation marks omitted). And we agree that

immunity depends on “the nature of the function performed

and not [on] the identity of the actor performing it.” Id. at

948. Finally, we recognize that “absolute quasi-judicial

immunity will be extended to nonjudicial officers only if they

perform official duties that are functionally comparable to

those of judges, i.e., duties that involve the exercise of

discretion in resolving disputes.” Id.

But this is where my agreement with the majority ends.

The drafting of a show-cause order is not simply a

mechanical action comparable to court reporters transcribing

verbatim transcripts. See Antoine v. Byers & Anderson, Inc.,

508 U.S. 429, 436 (1993) (declining to extend immunity to

court reporters because they “are afforded no discretion in . . .

record[ing], as accurately as possible, what transpires in

court”). Even the majority acknowledges that “the function

performed by Gugino had a close nexus to the judicial

BURTON V. INFINITY CAPITAL MANAGEMENT 17

process,” that “orders are a basic and integral part of judicial

proceedings,” and that “[p]reparing an order on behalf of a

court does require the preparer to make important decisions

about language and tone.” Maj. Op. at 13.

Notwithstanding these acknowledgements, however, the

majority concludes (without citation to any authority) that

“preparing the order did not involve the kind of discretionary

judgment that is protected by the doctrine [of judicial

immunity].” Id. My problem with the majority’s analysis is

that it fails to recognize the fact that Gugino was in effect

acting as Judge Israel’s law clerk for the specific task at hand,

and that this court has previously held that law clerks are

entitled to quasi-judicial immunity. See Moore v. Brewster,

96 F.3d 1240, 1244–45 (9th Cir. 1996) (extending immunity

to a law clerk for alleged due process violations related to the

improper handling of a supersedeas bond).

Indeed, if we were to substitute a law clerk for Gugino

and assume that Judge Israel had directed the clerk to draft

the show-cause order in question, this court’s decision in

Moore would have immunized the clerk from liability

because the act of drafting a show-cause order directly relates

to “the independent and impartial exercise of judgment vital

to the judiciary.” See Castillo, 297 F.3d at 949. The

exercise-of-discretion requirement, in other words, is derived

from the judge who directs the task and should not be focused

solely on the drafter of the order. See Mullis v. Bankruptcy

Court of Dist. of Nev., 828 F.2d 1385, 1390 (9th Cir. 1987)

(explaining that immunity extends “from the judge who

appoint[s]” the person in question).

This point is crucial because Gugino’s identity as a

private attorney should not preclude the extension of

18 BURTON V. INFINITY CAPITAL MANAGEMENT

immunity. See Castillo, 297 F.3d at 948 (cautioning against

concentrating on the identity of the actor in immunity cases).

The majority to its credit agrees that we are required “to look

past his identity as an attorney and focus only on the function

he performed.” Maj. Op. at 13. But then the majority goes

astray by not recognizing that Gugino was in fact functioning

as a law clerk in carrying out Judge Israel’s directive to draft

the show-cause order that is the sole focus of this lawsuit.

And, as previously noted, a law clerk performing this task

would be entitled to quasi-judicial immunity. See Moore,

96 F.2d at 1244–45. So should Gugino.

Unfortunately, the majority elevates a hypothetical policy

concern to a rationale for declining to extend immunity on the

facts before us. As the majority reasons, extending immunity

in this case “might immunize improper actions where

attorneys did knowingly and willfully violate the automatic

stay by presenting orders violating the stay to judges who

were not apprised of the bankruptcy filing.” Maj. Op. at 15.

But those circumstances are clearly not present here. Gugino

simply obeyed a judicial directive from a state judge who was

fully apprised of the bankruptcy filing. His actions were

therefore neither self-initiated nor taken with the intent to

bamboozle an uninformed judge.

And this leads to my next point. The majority credits the

district court’s isolated and inconsistent characterization of

Gugino’s conduct as “volunteer[ing]” to prepare the show-

cause order. Id. at 10. But this is not a fair inference from

the record. At the hearing, Judge Israel explicitly stated: “I’m

going to issue an order to show cause,” and he then explained

the order’s specifics. Judge Israel followed this explanation

by asking “who wants to prepare the order?” He then

BURTON V. INFINITY CAPITAL MANAGEMENT 19

prompted a response by inquiring: “Mr. Gugino?” Gugino

responded: “I’ll prepare it, Your Honor.”

As is evident from this exchange, Gugino agreed to draft

the show-cause order after Judge Israel requested one of the

attorneys, and particularly Gugino, to do so. Thus, to say that

Gugino “volunteered,” without more, mischaracterizes the

record. All of the other record citations, in fact, support a

contrary conclusion, starting with Gugino’s statement in his

June 9, 2011 letter to Koch that “Judge Israel ordered that an

Order to Show Cause be issued against you, and he then

directed me to prepare the Order. This was not my idea, nor

did I recommend it to the Court.” Judge Israel’s own minute

entry confirms that the “Court directed Counsel to prepare an

order for a show cause hearing and Court set hearing.”

Even the district court twice found that Judge Israel

directed Gugino to draft the order. See Dist. Ct. Order at 3

(“Judge Israel ordered Gugino to draft an order to show cause

to be served on Koch.”) and id. at 14–15 (“Judge Israel acted

in excess of his jurisdiction when he . . . directed Gugino to

draft an order to show cause against Koch for failing to

interplead the settlement funds.”)

In light of this overwhelming record evidence, the district

court’s single inconsistent statement on page 12 of its Order

that “Gugino is not entitled to quasi-judicial immunity

because Gugino volunteered to prepare the order in direct

violation of the stay” is entitled to little weight. This is

especially so because the key point is the undisputed fact that

the show-cause order was initiated and directed by Judge

Israel, not by Gugino, whether or not the latter “volunteered.”

20 BURTON V. INFINITY CAPITAL MANAGEMENT

Moreover, the majority’s decision not to extend quasi-

judicial immunity to an officer of the court acting at the

behest of a judge is in conflict with every other federal

appellate court that has confronted the issue. See, e.g.,

Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir. 1992) (noting the

“general agreement that court officials . . . who act at the

behest of a judge or pursuant to a court order are entitled to

absolute quasi-judicial immunity from suit as to those

actions”) (quoting Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir.

1991)); Rogers v. Bruntrager, 841 F.2d 853, 856 (8th Cir.

1988) (explaining that clerks of court “have absolute

immunity from actions for damages arising from acts they are

specifically required to do under court order or at a judge’s

direction.”) (internal quotation marks omitted).

The reasoning underlying these cases is directly

applicable to this case; i.e., the fundamental unfairness of

holding liable those who carry out the orders of judges when

the judges themselves are absolutely immune. See Green v.

Maraio, 722 F.2d 1013, 1019 (2d Cir. 1983) (“[I]t would be

manifestly unfair to allow Maraio to be subjected to liability

when she was acting within the scope of the judge’s

instructions and was simply acting as an arm of the court in

compliance with the exercise of his judicial authority.”)

(emphasis omitted). Similarly, declining to extend immunity

to Gugino is fundamentally unfair when Judge Israel himself

enjoys immunity.

Finally, I cannot help but note that this entire dispute

could have been avoided if the attorneys involved had

exhibited greater collegiality and common sense. But their

communications in fact broke down, and this case resulted.

Now these events have produced a majority opinion that

unfortunately puts at risk the common practice of private

BURTON V. INFINITY CAPITAL MANAGEMENT 21

attorneys drafting proposed orders on behalf of a judge. For

all of the above reasons, I would reverse the judgment of the

district court and grant Gugino quasi-judicial immunity for

his actions in this case.