# Prologue — Sutter v. Lasar > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1700%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Prologue - **Published:** January 1, 2005 - **Citation:** 546 U.S. 873 ## Text Supreme Cou Pr cau US, 05°95 sy 18 2095 No. OFFICE Ac am tr =. = IN THE ' Supreme Court of the United States LAWRENCE SUTTER, ponents Petitioner, Vv. STEVEN MARK LASAR, ees . Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit PETITION FOR A WRIT OF CERTIORARI THEODORE J. BOUTROUS, JR. - Counsel of Record THOMAS H. DUPREE, JR. GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue NW Washington, DC 20036-5306 (202) 955-8500 Counsel for Petitioner QUESTIONS PRESENTED The Ninth Circuit upheld a contempt Citation and other severe sanctions imposed against Lawrence Sutter, an attor- ney for Ford Motor Company, based on comments he made _ during his opening statement and an alleged omission in his pro hac vice application. The Ninth Circuit acknowledged that in imposing the sanctions under its “inherent power,” the district court had denied Mr. Sutter the procedural protec- tions afforded in a criminal contempt proceeding as well as the protections provided by the court’s Local Rules, but held that the contempt was civil in nature and that the district court could rely on its inherent power even when the Local Rules were fully adequate to address the conduct in question. The following questions are presented: 1. Whether a district court may rely on its inherent power to sanction where the conduct may be fully and ade- quately addressed under a sanctioning provision in a statute or rule. 2. Whether a contempt sanction is criminal, rather than civil, when it is based on completed conduct and intended to punish, stigmatize and reprimand the contemnor. ii PARTIES TO THE PROCEEDINGS The parties to the proceedings below included Steven Mark Lasar, Ford Motor Company, and Lawrence Sutter. ili TABLE OF CONTENTS Page CPR Tisch E RPIND © RIES ROD 50s 555 paas css ovcan casings cipasanyssasazesanbics 1 PARTIES TO THE PROCEBIOINGS 6c. iciicesvesscncseosentectsacs ii RPMS Ge STOUT ios csos ci oc cedae sincerest apaidisnins catacadontes ill TABLE OF AUTHORITIES ............. fda wise tocsastkaeeccae cuando .v OPINIONS AND ORDERS BELOW.........0.00.........cceeeeeeeeees 1 FPR II IY snag sachs chases eobss As cosesneiga ion seah dnevansiaden ] RELEVANT STATUTES AND RULES..................0.0:::ccceu ] DEAT EGMINT OP TEI CI ooo stasis esis rtaciscinssscceeatariacns ] REASONS FOR GRANTING THE WRIT...................0....04.. 8 I. THE CIRCUITS ARE SPLIT OVER WHETHER A COURT MAY SANCTION UNDER ITS INHERENT POWER WHEN THE CONDUCT CAN BE ADEQUATELY SANCTIONED UNDER STATUTES OR A. The Ninth And Sixth Circuits Permit Use Of The Inherent Power Even When Statutes Or Rules Are Directly Applicable And Fully Adequate...................... 12 B. The Third and Fifth Circuits, In Contrast, Hold That The Inherent Power May Be Used Only When Statute- Or Rule-Based Sanctions Are Inadequate............. 15 C.- This Court Should Hold That The Inherent Power Can Be Invoked Only If The Sanctioning Provisions In Rules And Statutes Are Inadequate.......................0. 17 1V II. REVIEW IS WARRANTED TO RESOLVE ‘THE QUESTION WHETHER A FREE- STANDING CONTEMPT CITATION FOR A PAST FAILURE TO COMPLY WITH A COURT ORDER IS CIVIL OR I ies gece cass toss sats Pn Silas Asccigicaheemhel 19 RMIT RIE oes So sass hao sa pacccks dons dastons pandacidcieeeonias 22 Vv TABLE OF AUTHORITIES 3 Pages “CASES Bank of Nova Scotia v. United States, es I I ian pks sacs osteo apes pchatiganonnsngococapnnece 18 “Barrow S.S. Co. v. Kane, 170 U.S. 100 (1898)............000...... 9 BMW v. Gore, 517 U.S. 559 (1996) ...............cccccseeceseceseeees 18 Carlisle v. United States, 517 U.S. 416 (1996)............. oe Carroll v. Jaques Admiralty Law Firm, RA tee BUF aa Since cksdicsacnisccecesgcncn 16, 17 Chambers v. NASCO, Inc., 501 U.S. 32 (1991)............ passim Cobell v. Norton, 334 F.3d 1128 Sy Re Sa hin Alas: sr bud nfenininsseSinesscatoumccyedeubicy passim Cyphers v. Fuji Heavy Industries Co., 32 F. Supp. 2d 1199 (D. Mont. 1998)............0..00.0. 9 Degen v. United States, 517 U.S. 820 (1996) ................. 8,17 Ex parte Burr, 9 Wheat. 529 (1824) ..........ccccccecsescssessseesseeee 8 Fink v. Gomez, 239 F.3d 989 (9th Cir. 2001) ........00..0000.2... 14 First Bank of Marietta v. Hartford Underwriters — - Insurance Co., 307 F.3d 501 (6th Cir. 2002).....12, 14, 15 Gompers v. Bucks Stove & Range Co., ee EE BIER winancsh caso esd vaiscdnccdcnvicsiseaniaesans 19, 21 Hicks ex rel. Feiock v. Feiock, 485 U.S. 624 ERRRURET CSE ek SSE SIRS SS os eee ee aE ee ee 19 In re Thalheim, 853 F.2d 383 (Sth Cir. 1988).............000..... 17 Int’l Union,-UMW v. Bagwell, 512 U.S. 821 TERROR Ss 7a SARS ee ee Sea al oa 19, 21 Kaffeman v. Maclin (In re Disqualification of Cleary), 723 N.E.2d 1106 (Ohio 2000)................... 4,5,7 Klein v. Stahl GMBH & Co., 185 F.3d 98 6 AD, SOON RA OREN oye Se SOE POURS SPR Rome 16 Mackler Productions, Inc. v. Cohen, Dae RA MN sink cisscdd chong aiekancnssi ocascnkclansans 8 Montrose Medical Group Participating Savings Plan v. Bulger, 243 F.3d 773 (3d Cir. 2001) ................ 16 Myers v. United States, 272 U.S. 52 (1926) ................0004. 18 Roadway Express, Inc. v. Piper, 447 U.S. 752 I irccsdecaa ced ian sce inctcssddiscpsipichdscpabie alias cgusiubseiicnd tases 17 United States v. Ries, 100 F.3d 1469 Dee: MI bic cacec stiches ‘geidssis aimininrouarigtudcenasenanncee 9 STATUTES vo pth TSE Sr. 4 Rea eoned i aah ings Rapier NUcmieanr eR eater Fee | ee ce aceite cin sts Settncncssin adipic ensiecse 14 RULES Ws a a PP a i isan 18 Peek we COEF a ie nia ee soe 19 RE RE. ESAS me itat ay SPSS oreo Cae Meee passim ER SF Rae etereeNE Nae C SEER passim OTHER AUTHORITIES Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse 428 (3d ed. 1999 & he JO 12, 15 PETITION FOR A WRIT OF CERTIORARI Lawrence Sutter respectfully petitions this Court for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. OPINIONS AND ORDERS BELOW The Ninth Circuit’s opinion (Pet. App. 1a) is reported at 399 F.3d 1101. The opinion of the district court (Pet. App. 30a) is reported at 239 F. Supp. 2d 1032. JURISDICTION The Ninth Circuit filed its opinion on March 3, 2005, and denied petitioner’s timely request for rehearing en banc on April 19, 2005. Pet. App. 84a. This Court has jurisdic- tion pursuant to 28 U.S.C. § 1254(1). RELEVANT STATUTES AND RULES The relevant provisions of the Local Rules for the Dis- trict of Montana are reproduced in the Petitioner’s Appendix, Pet. App. 86a-98a. STATEMENT OF THE CASE This case dramatically illustrates the dangers of a district court wielding an unchecked “inherent power’ to sanction. Attorney Lawrence Sutter was accused of violating an order in limine during his opening statement and of omitting in- formation in his pro hac vice application. Although the Montana Local Rules give extensive procedural protections to attorneys accused of omissions in their application, includ- ing the right to an independent investigation and prosecutor, the district court bypassed its own Local Rules by relying on its “inherent power” to sanction, stripping Mr. Sutter of his admission pro hac vice, and permanently banning him from ever again appearing in the Missoula Division of the federal court. The court also issued a contempt citation against him for the alleged violation of the order in limine, again relying on its inherent power and denying Mr. Sutter the procedural protections afforded a criminal contemnor. The court im- posed these sanctions, as well as severe monetary sanctions, im a lengthy, published order attacking Mr. Sutter’s character and his fitness as a lawyer. See 239 F. Supp. 2d 1032, Pet. App. 30a. The Ninth Circuit vacated the permanent ban, but other- wise upheld the district court’s order in full. 399 F.3d 1101, Pet. App. la. It held that the district court was entitled to jet- tison the procedural protections contained in its own Local Rules when sanctioning under its inherent power, thereby worsening an existing circuit split over whether a district court may invoke its inherent power when the conduct in question could be addressed by the sanctioning provisions in statutes or rules. /d. at 20a-2la. The Ninth Circuit also held that the contempt citation was civil in nature and thus did not require the protections that attach in a criminal proceeding, id. at 16a-18a, thus creating a conflict with the D.C. Circuit over whether this type of freestanding contempt citation based on a past failure to comply with a court order is civil or ' * * * 1. Petitioner Lawrence Sutter represented Ford Motor Company in this product liability case tried before Judge Donald Molloy in the United States District Court for the District of Montana. Mr. Sutter is a nationally-known trial lawyer who has tried over 50 cases and recently founded his own 30-person firm based in Cleveland. Ninth Circuit Ex- cerpts of Record (“ER”) 93-94. He was selected in 2002 by the National Law Journal as one of the top 40 lawyers in the country under the age of 40, and was featured by the same publication in an article profiling ten of the country’s top liti- gators. Jd. He is a member in good standing of the bars of Ohio and Tennessee, and was admitted pro hac vice in this case. Id. at 94-95. Respondent Steven Lasar was driving home late at night on a rural road in Montana when he lost control of his Ford Ranger pickup and rolled it over. Pet. App. 3a. He sued Ford, alleging that the Ranger’s door latch was defective in that it allowed the pickup’s door to open during the rollover, resulting in his being thrown from the vehicle. /d. Prior to trial, respondent moved in limine to exclude evidence of his alcohol use the day of the accident. He also moved to ex- clude evidence that he was not wearing his seatbelt when the accident occurred. The district court granted both motions. Id. During his opening statement, Mr. Sutter described how respondent spent the day of the accident: At about 5:00 that morning, Mr. Lasar got out of bed and went hunting for the morning. Some time in the afternoon, he met up with some of his friends and spent the day playing pool, visiting some local establishments. Somewhere around 10:00 that night, he made the decision to drive himself home. He got into his car and he began his way back to his home- stead. Pet. App. 4a. Later in his opening statement, Mr. Sutter de- scribed what was occurring within the vehicle during the rollovers: Now, inside the vehicle, something else was going on; Lasar was what we call a free- floating body. His body was banting about in- side the car as it was rolling over. And because of what happens during the rollover, something all of us learned in high school and most of us tried to forget, centrifugal force. All that is, is something spinning around like a yo-yo on a string; it wants to keep going outward. Id. Respondent’s counsel did not object during Mr. Sutter’s opening statement. Rather, counsel waited until Mr. Sutter concluded, then requested a sidebar and later, at the end of the day’s proceedings, argued to the court that these two re- marks had violated the pretrial rulings. ER25-26. Respon- dent’s counsel did not request a mistrial, but simply asked “that the Court admonish counsel to stay within the letter and spirit of the Court’s rulings and to avoid comments like that, and perhaps we can deal with some sort of instruction later on.” Jd. at 27. Although respondent’s counsel had not requested it, the court suggested sua sponte that it would grant a mistrial if respondent wished and would order Ford to pay his costs. ER27. The next morning, respondent accepted the court’s invitation and the court immediately granted a mistrial. The court stated that it would impose sanctions, under its inherent power, to punish Mr. Sutter for attempting “to win this case at all costs,” and directed all counsel to return to court two days later for a sanctions and contempt hearing. ER61-63. 2. When the court reconvened, the parties began by ar- guing over the proper amount of a monetary sanction. ER68- 91. The court then stated that it would consider “whether or not Mr. Sutter should be held in contempt of the Court for the willful violation of the orders in limine.”” Id. at 91. Mr. Sutter was placed under oath and questioned by his co- counsel. In the course of that questioning, Mr. Sutter volunteered that several years ago in a case called Kaffeman, a state trial judge in Ohio had ordered that he be briefly confined (once for 10 minutes and once for 20) for attempting to place ob- jections on the record. ER94-95, 119. Mr. Sutter explained that the Ohio Supreme Court reviewed the trial judge’s be- havior and exonerated Mr. Sutter by agreeing that the trial judge had acted unreasonably and disqualifying her from fur- ther proceedings. /d. at 95. See Kaffeman v. Maclin (In re Disqualification of Cleary), 723 N.E.2d 1106, 1108 (Ohio 2000). Mr. Sutter further noted that the Ohio Supreme Court subsequently suspended the state judge from the practice of law for misconduct while on the bench in an unrelated case. ER9S. Finally, he testified that he did not intend to violate ei- ther of the orders in limine, and that he did not believe he had violated either order at the time he made his opening state- ment. ER98-100 (“I spent a great deal of time drafting this language because I thought that this was within the bounds of the Court’s ruling. .. . I was trying to stay safely within the bounds of the ruling by the Court.”). Although Kaffeman had never been mentioned before Mr. Sutter raised it himself that morning, the district court revealed that it had already obtained and read the opinion. ER109.! The court agreed with Mr. Sutter that “[c]ertainly there’s an implication from reading” the opinion “that the [Ohio Supreme] Court felt [the trial judge] should not have held you in contempt... . The inference is when she locked you up, she shouldn’t have done it.” Jd. at 119, 123-24. But the court stated that it nonetheless believed that Mr. Sutter should have disclosed the Ohio proceedings in his pro hac vice application to the Montana court pursuant to Local Rule 83.3(e)(3)(E), which provides that an applicant must dis- close: whether the attorney has ever been held in con- tempt, otherwise disciplined by any court for disobedience to its rules or orders, or sanc- tioned under Federal Rules of Civil Procedure 11 or 37(b), (c), (d) or (g) or their state equiva- lent. Pet. App. 88a. The court acknowledged Mr. Sutter’s belief that he had been vindicated by the Ohio Supreme Court, but stated that “I don’t seem to read the case the way you do.” ER118. The hearing ended and the court took the matter un- der advisement. ; 3. Nearly three months later, the district court issued an _order citing Mr. Sutter for contempt, stripping him of his pro hac vice admission, and permanently banning him from ever again appearing in the Missoula Division of the District of 1 The court also revealed that it had researched and uncovered back issues Of the National Law Journal in which Mr. Sutter had been quoted discussing his work in other cases involving seatbelt use. ER116-17. \ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1700%3A0. Public record. Not legal advice.