Free Response to Motion - District Court of Arizona - Arizona

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Katherine E. Baker (010146) Diane L. Bornscheuer (016858) GREEN & BAKER 7373 N. Scottsdale Rd., Suite B-200 Scottsdale, AZ 85253 Telephone: (480) 991-3335 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Ronald Dible and Megan Dible, husband and wife, Plaintiffs, vs. City of Chandler, et al., Defendants.

Case No. CV-03-0249-PHX-JAT DEFENDANTS' RESPONSE TO MOTION FOR NEW TRIAL [DOCKET NO. 186] Assigned to the Hon. Judge Teilborg (Oral Argument Requested)

Plaintiffs' demand for a new trial due to the Court's correction of the judgment to conform to its July 8, 2005 Order should be rejected, because: (1) (2) This Court had jurisdiction to amend the judgment. Any failure of the judgment to conform to the 7/8/05 Order is considered a clerical error which justified amendment of the judgment. (3) (4) Plaintiff's allegations of judicial misconduct are wholly without basis. It would constitute manifest injustice for Mr. Knowlton's current false and fabricated allegations to be used as an excuse to avoid paying Chandler the costs/fees it was awarded due to his original misconduct ­ which also involved false accusations.

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I.

FACTUAL BACKGROUND Plaintiff Ron Dible was terminated from the Chandler Police Department ("CPD") following his

participation in a pornographic website, his deception regarding his involvement in the site, and the harm suffered by CPD as a result of his misconduct. Mr. Dible and his wife asserted various claims regarding the dismissal, all of which were resolved in Chandler's favor via summary judgment. After summary judgment was granted, Plaintiff's counsel Knowlton moved for a new trial, making accusations of supposed fraud and perjury by two Chandler witnesses, and accusing defense counsel of misconduct, all of which he claimed was "newly discovered evidence". The supposed "newly discovered" evidence of alleged "perjury" and purported "fraud" was that a police officer and an Assistant Police Chief testified at the Merit Hearing in 2002 that they believed Dible's misconduct impacted recruitment efforts. That testimony occurred shortly after Dible's termination. Mr. Knowlton's Motion for New Trial, however, falsely asserted that Dible was fired in January 2000, and that the two witnesses testified two years thereafter ­ at a time which he claimed they should have known recruitment was supposedly not adversely impacted. Mr. Knowlton's argument for a new trial was based on an obviously false allegation of the termination date. Dible was terminated in February of 2002, not in January of 2000. (6/28/05 Transcript, p. 6:22-25, Docket #162). As Dible's attorney, Mr. Knowlton knew the correct termination date, but apparently chose to misrepresent it in order to make inflammatory accusations against defense witnesses and defense counsel. By misstating Dible's termination date, Mr. Knowlton argued the witnesses supposedly knew by the time of their testimony that recruitment efforts had not actually been adversely impacted by

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Dible's misconduct.1 Defendants repeatedly pointed out to Mr. Knowlton that his argument was based on a misrepresentation of Dible's termination date, and that the testimony at issue had actually been given in 2002 immediately following the termination. Mr. Knowlton persisted in misrepresenting the termination date to make his perjury/fraud arguments. (See Response to Motion for Order to Show Cause, Docket # 111; Response to Supplements Docket # 112; Motion for Rule 11 Sanctions, Docket # 116). Moreover, the defense pointed out that the witnesses' testimony was not perjured and did not constitute fraud. The testimony occurred at a Merit Hearing, not in this litigation. In addition, the defense pointed out that each witness expressed an opinion or belief based upon their own observations and experiences ­ none of which Mr. Knowlton could prove was false, let alone constituted supposed "perjury". When Mr. Knowlton persisted with these clearly baseless arguments, the defense complied with Rule 11's safe harbor provision and filed its own Rule 11 motion. Mr. Knowlton filed a Motion for Order to Show Cause why Chandler should not be held in contempt, based on the factually baseless allegations of supposed perjury/fraud, which were not only legally groundless, but were premised upon the misstatement of Mr. Dible's termination date. A hearing was scheduled for 6/28/08, but Mr. Knowlton failed to appear. The Court was therefore forced to contact him by telephone. When reached on his cell phone, Mr. Knowlton claimed he did not receive notice of the hearing. Mr. Knowlton claimed to have been out of town for the prior three weeks, with nobody checking his office mail.2

Their predictions of impact were actually realized. After the publicity surrounding Plaintiff's Merit Hearing and lawsuit, Chandler's recruitment of female officers dropped to virtually nothing ­ one woman was hired in 2003, and two were hired in 2004. (See Attachment to Supplement to Motion for New Trial, Docket # 106).
1

The court subsequently discovered that Mr. Knowlton filed a complaint in a new matter, signed on 6/24/05, which meant he had not been out of town for three weeks prior to the 6/28/05 hearing, as
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The Court inquired of Mr. Knowlton why the request for contempt and Rule 11 sanctions was still pending, as the defense had repeatedly pointed out to Mr. Knowlton the errors upon which it was based. (6/28/05 transcript, p. 5:10, Docket #162). When Mr. Knowlton appeared confused, the Court asked whether he read the Defendants' Rule 11 Motion, which set forth the details of the "mistake" in "painful detail." (Id. at 7:20-25). Mr. Knowlton claimed to have been out of town for three weeks, to have no office staff, and to not have read anything "in detail." (Id. at 8:1-11). The Court reminded Mr. Knowlton that the Response to the Motion for New Trial also pointed out the same error. (Id. at 8:2225). In addition, in complying with Rule 11's safe harbor requirement, the defense sent Mr. Knowlton a copy of its own Rule 11 motion pointing out the error. (Id. at 12:3-12).3 Thus, Mr. Knowlton's supposed three week out of town trip ­ which was later proven not to have occurred as he represented it ­ had nothing to do with his failure to withdraw his groundless motion based on false facts. He had numerous opportunities to withdraw the motion, but failed to do so. The Court had ample reason to be critical of Mr. Knowlton. Incredibly, even though he had filed a document which included "Rule 11" in the title, and which contained a request for Rule 11 sanctions in the conclusion, Mr. Knowlton told the Court that he "never filed a motion for Rule 11 sanctions." (6/28/05 transcript, p. 18:13-17, Docket #163). He claimed he knew he had no grounds for Rule 11 sanctions, but had raised the issue for the Court to sort out. (Id. at 20:9-25). The Court called these

he claimed. ["Without office staff, the Court can only assume that Mr. Knowlton was in town to sign and file this complaint the Friday prior to the hearing on the Rule 11 motion. This seriously calls into question the veracity of Mr. Knowlton's statements that he did not know about the hearing and could not respond to the motion for sanctions because he was out of town."] (7/07/05 Order, p. 2, Docket # 127). Worse yet, Mr. Knowlton's request for contempt and sanctions was based on testimony which occurred at the Merit Hearing, for which contempt was not appropriate.
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assertions "disingenuous." (Id. at p. 21:19-24). A. Mr. Knowlton Admits The Court Awarded Fees And Costs Against Him.

In its July 8, 2005 Order, the Court stated: "the Court imposes sanctions against Plaintiffs' counsel as follows: Plaintiffs' counsel must pay all attorneys' fees and costs that Defendants incurred as a result of Plaintiffs' two supplements to their Motion for New Trial and their Motions for Order to Show Cause and for Rule 11 Sanctions, including the attorneys' fees and costs that Defendants incurred by filing this Motion for Rule 11 Sanctions." (7/8/05 Order, p. 14, Docket # 128) [emphasis added]. Mr. Knowlton admits the award was made against him: "Further, the Court on June 28, 2005 found that it would award attorneys fees and costs against undersigned counsel". (Motion for New Trial, p. 2:25-26, Docket # 186). The Court ordered Defendants to submit an itemized billing statement of their fees and costs associated with these filings. (7/8/05 Order, p. 15, Docket # 128). The Court thereafter also entered an Order awarding fees for the Copyright Act claim. (Docket # 166). After reviewing Defendants' itemized billing statements, the Court directed entry of judgment, listing the fees attributable to the breach of contract and copyright claims, and associated with the motions which violated Rule 11. (2/13/06 Order, Docket # 167). The judgment ultimately entered, however, stated that the entire amount was awarded against "Plaintiffs," and failed to identify "Plaintiff's counsel" as the entity against whom certain costs and fees had been awarded. (Judgment on Attorneys Fees, Docket # 168). This was a clerical error. The 7/8/05 Order was explicit in its direction that certain fees and costs were awarded against Mr. Knowlton. B. Mr. Knowlton Admitted His Conduct Was Sanctionable.

The record clearly shows that the Court found Mr. Knowlton's conduct sanctionable, and that such conclusion was supported by the record ­ including Mr. Knowlton's own acknowledgment of

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misconduct. After imposing Rule 11 sanctions against Mr. Knowlton, the Court ordered him to appear on 7/26/08 to show cause why he should not be subject to contempt due to the misrepresentations he made during the prior hearing. (7/8/05 Order, Docket # 127). At that time, Mr. Knowlton admitted he should have removed the Rule 11 language from his motion. (July 26, 2005 Transcript, p. 4:23-25, 5:16, Docket #152). He admitted he should have corrected the erroneous dates in the motions he filed. (Id. at 5:1-2). He claimed to feel great "humiliation" and "embarrassment" because of his misconduct (Id. at 5:2-6). Mr. Knowton's excuse for ignoring repeated notices from defense counsel regarding the deficiencies in his filings was that he merely scanned the defense Rule 11 motion, did not bother reading letters sent by defense counsel, and "mentally shut [defense counsel] off." (Id. at 7-9). Mr. Knowlton acknowledged that sanctions had been imposed against him for good reason, and said he would not appeal the sanctions because he deserved them. (Id. at 11:18-25) [emphasis added]. Mr. Knowlton was told that "the Court continues to have grave concerns over a number of issues" but that no contempt citation would be issued. (Id. at 19:21-25). The Court indicated it had remaining concerns about Mr. Knowlton's candor to the Court, his tendency to make inaccurate statements, his filing of "draft" pleadings without reviewing them, his admission that he could not remember things, and the manner in which he failed to monitor his law practice. (Id. at 20-22). For those reasons, the Court stated that "this portion of the proceedings needs to be referred to the State Bar of Arizona." (7/26/05 Transcript, p. 23:5-7, Docket #152). Mr. Knowlton agreed the referral was appropriate: "I don't have a problem sending this to the State Bar because this is something that shouldn't have happened." (Id. at 25:8-10).

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C.

Mr. Knowlton's Allegations About An Attempt To Influence Him Not To Represent His Clients, And Alleged "Retaliation" By Amendment Of The Judgment, Is Wholly Baseless.

In the Motion for New Trial, Mr. Knowlton alleges that: ". . . the original judgment was entered against Plaintiffs rather than Counsel and no bar complaint was filed to influence counsel not to represent Plaintiffs on appeal." (Motion for New Trial, p. 2:8-9, Docket # 186). He also accuses the Court of alleged "retaliation", saying: ". . . no bar complaint was filed to influence counsel not to represent Plaintiffs on appeal . . . reversal of those actions was done to retaliate against Counsel for his representation of Plaintiffs on appeal." (Id. at p. 2:9-11).4, 5 Mr. Knowlton admits he was well aware that the fee judgment ­ as entered ­ did not conform to the Court's order. He alleges that mistake, coupled with the Court's failure to refer him to the State Bar, created the "clear implication" that the Court was trying to influence him not to represent his clients on appeal. None of this makes any sense, for a variety of reasons. Mr. Knowlton at first did not even notice the fees were improperly assessed against his clients, not him. He failed to raise the issue in his Opening Brief on appeal. Had he received some "clear implication" regarding the mistaken award, he would have raised it immediately. Additionally, at the time the Court indicated it would refer him to the Bar, Mr. Knowlton said he would not appeal the sanctions. There was therefore no motive for the Court to supposedly try to "influence" him not to appeal the sanctions ­ he had already told the Court

Mr. Knowlton's theory makes no sense. If the pursuit of an appeal is what triggered the supposed "retaliation", the Court would have referred the matter to the State Bar immediately upon receiving Mr. Knowlton's notice of appeal.
4

Mr. Knowlton also argues the Court's referral to the State Bar was "intentional", as if that means it was also retaliatory. (Motion for New Trial, p. 2:19-24). The referral was obviously intentional, however, and no one has ever suggested it was not. In contrast, the mistake in the judgment was a clerical error, and was unintentional. Correction of that error has nothing to do with the Bar referral.
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he would not appeal them. The Court nonetheless said it would refer the matter to the State Bar. No reasonable person could interpret these events as meaning the Court was trying to send a "message" to Mr. Knowlton not to appeal. The referral to the State Bar has nothing to do with the mistake in the judgment. Mr. Knowlton's arguments about the Bar referral are an aggressive and inflammatory attempt to divert attention. The timing of the Bar referral is not relevant. II. LEGAL DISCUSSION A. The Clerical Nature Of The Error Is Clear From The Record.

Mr. Knowlton has no legal or factual support for his contention that failure of the judgment to conform to the July 8 Order was anything other than a clerical error. The 7/8/05 Order unequivocally states that certain fees and costs are awarded against Mr. Knowlton, not his clients. Any failure of the judgment to conform to that order is clerical. A clerical error is one of recital and is mechanical in nature. United States v. Robinson, 368 F.3d 653 (6th Cir. 2004). See also, United States v. Weiner, 267 F.3d 231, 247 (3rd Cir. 2001) (mistake in recitation is clerical). A judge's mistake can also be clerical. Wheeling Down Race Track & Gaming Center v. Kovach, 225 F.R.D. 250 (N.D.W. Va. 2004) [where judge put incorrect party name as prevailing party in judgment order, but his intention was clear from the record, it was a clerical error which could be corrected through Rule 60(a)]. In contrast, Mr. Knowlton attempts to rely on cases where the court's decision was not clear from the record, and therefore where any correction would be something more than fixing a mistaken recital. Many of the cases cited by Mr. Knowlton nonetheless support the defense. In Paddington Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir. 1994), the Second Circuit held that a court's failure to include pre-decision interest, which had been requested in the complaint but had never been addressed by the court in any order, could not be remedied through a Rule 60(a) motion. In Dudley

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v. Penn-America Insurance Co., 313 F.3d 662, 665 (2d Cir. 2002), cited by Knowlton, the court held that Rule 60(a) was the proper vehicle for correcting a court's failure to include monetary relief in a judgment. There, the court's summary judgment order said the prevailing party was entitled to specified damages plus prejudgment interest. The court stated, "The district court made this previously held intention explicit in its order granting Dudley's motion." Likewise, in Chavez v. Balesh, 704 F.2d 774, 776 (5th Cir. 1983), an error was considered clerical because the court's findings of fact had included an amount for liquidated damages, but that portion of the award was omitted from the judgment. Here, the Court merely sought to conform the judgment to the order on which it was based. Doing so is consistent with these cases relied upon by Plaintiffs' counsel. Mr. Knowlton has failed to identify a mistake of "judgment" or "recitation". The cases he relies upon regarding those issues are therefore inapplicable. In Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir. 1986), Rule 60(a) was not the proper vehicle for amending a judgment to include costs, because the parties had made an offer of judgment. There was no prior order which awarded costs, and therefore the merits of a cost award was a new issue. Nor is the situation presented herein like that described in Jones v. Anderson-Tully Co., 722 F.2d 211 (5th Cir. 1984). In Jones, the court provided an oral opinion giving a legal description of what it thought was the proper boundary between two tracts of land, awarding title to land west of the boundary to one party, and land east of the boundary to the other party. One of the parties sought an amendment to the judgment because the court's legal description of the boundary was allegedly wrong. Rule 60(a) was not the proper vehicle for correcting any mistake by the court, because the error was in what the court believed to be true in ordering the division of land. The correction sought would not have conformed to the order.

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A nearly identical situation was presented in West Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702 (5th Cir. 1951)(parties agreed the court had divided land improperly, but had no evidence the court had intended to divide the land differently). Here, by contrast, the amendment conformed to the original order. The amendment was not necessary because of some

misunderstanding in the facts, as occurred in Jones. The cases Mr. Knowlton cites regarding substantive errors in judgments are irrelevant. See e.g. Trahan v. First Nat'l Bank of Ruston, 720 F.2d 832 (5th Cir. 1983)(court indicated it was reciting the terms of the parties' agreement in rendering judgment, but then misstated a term); In re Galiardo, 745 F.2d 335 (5th Cir. 1984)(court, which never put grounds for transfer to a different venue in order could not subsequently amend the judgment under Rule 60(a) to explain his order for the first time); Warner v. City of Bay St. Louis, 526 F.2d 1211 (5th Cir. 1976)(court's judgment based upon an order of 6% interest instead awarded 8% could not be amended as a "clerical" error). Correction of the record is not governed by Rule 60(b), which permits corrections only a year from the date of the judgment. The amendment herein was not based upon newly discovered evidence as was the case in Nevitt v. United States, 886 F.2d 1187, 188 (9th Cir. 1989), cited by Knowlton. The judgment was not in error because of an issue the Court forgot to consider, or one which the parties failed to ask the Court to consider, as was the case in Wesco Products Co. v. Alloy Automotive Co., 880 F.2d 981 (7th Cir. 1989), Gila River Ranch, Inc. v. United States, 368 F.2d 354 (9th Cir. 1966), or Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347 (9th Cir. 1998), also cited by Plaintiffs' counsel. In Wesco, the court's original order dismissed the case for lack of prosecution. It was not a "clerical" error. The Court could not amend it to say the dismissal was with leave to reinstate, as that had never been part of the order. Wesco, 880 F.2d at 984. Similarly, in the Gila

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River Ranch case, the court ordered a remittitur from the verdict, not from the judgment. There was no evidence the court had intended its order to read "judgment." It appears the court did not consider that there might be a significant difference. This was something the court overlooked, not a clerical error. Finally, in Kingvision Pay-Per-View, the court entered an order denying a motion to vacate a default judgment. The affected party subsequently asked the court to consider decreasing the amount of the award. This too was an issue which had not previously been considered, not a clerical error in making the judgment conform to what had been ordered. In the present case, the Court's intention is clear from the original order regarding sanctions. The judgment was merely amended to reflect what was actually ordered. B. The Court Had Jurisdiction To Amend The Clerical Error In The Judgment.

Mr. Knowlton has previously admitted this Court has jurisdiction to correct the clerical error in the judgment, although he now takes a contrary position. (Gilbreth Internat'l Corp. v. Lionel Leisure, Inc., 445 F.Supp. 732, 734 (E.D.Pa. 1986) (error considered "clerical" in nature ­ mathematical error in fee award was clerical where error was mechanical in nature and was apparent on record). In moving to strike Defendants' Motion to Correct the Record, Mr. Knowlton cited Cuevas v. Miranda, ___ F.3d ___, 2007 WL 128781 (D. Ariz. 2007) in support of his argument that "this Court does not have jurisdiction to consider a Rule 60(a) Motion until the mandate on appeal is received back to this Court from the Ninth Circuit Court of Appeals." (Emphasis added). (Docket # 176). Pursuant to Cuevas, Defendants suggested the Court withhold ruling on the Motion to Correct the Record until the Court of Appeals' mandate was issued. (Docket # 177). This Court waited until after the mandate was issued, then fixed the clerical error in the judgment. This is the procedure Mr. Knowlton previously admitted was proper.

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The law supports this Court's exercise of jurisdiction after the Ninth Circuit's mandate was issued. In Cuevas, relied upon by Plaintiff, an Arizona District Court considered a motion to correct a clerical error made by the Clerk of the Court. The Court concluded that, because the matter was then on appeal, it lacked jurisdiction to make the correction at that time. The proper course of action was to await the Ninth Circuit's mandate, at which time jurisdiction would be restored, and the District Court could correct the error. Cuevas, at *1. Rule 60(a) requires appellate leave to correct an error only "after an appeal has been docketed in the appellate court and while it is pending." Fed. R. Civ. Proc. 60(a). Under ordinary rules of statutory construction, use of the word "and" indicates that leave of court is only necessary while the appeal is docketed and pending. See Flamingo Motor Inn v. Industrial Comm'n of Arizona, 133 Ariz. 200, 202, 650 P.2d 502, 504 (App. 1982); Karaczewski v. Farbman Stein & Co., 732 N.W.2d 56, 59 (Mich. 2007). The appeal is no longer pending. This Court had jurisdiction to amend the judgment to correct the clerical error. In other jurisdictions, a District Court's authority to amend a judgment following resolution of an appeal has been considered [at least under Section (b) of Rule 60], and found to exist.6 For example, in Prop-Jets, Inc. v. Chandler, 575 F.2d 1322, 1325 (10th Cir. 1978), the Tenth Circuit held that "Under the law the district court retains the power to act on a Rule 60(b) motion after this Court has resolved a matter upon appeal, and there is no necessity that a petition requesting permission to exercise such authority be filed with the Court." The Third Circuit also held, in Sellers v. General Motors Corp., 735 F.2d 68, 69 (3d Cir. 1984), that its affirmance did not limit the power of the district

Plaintiff's contention that this is only possible under section (b) of Rule 60 is not supported by his citation to Mamedov v. Ashcroft, 387 F.3d 918 (7th Cir. 2004). In that case, it appears the district court altered its judgment while an appeal was pending and the Court of Appeals still had exclusive jurisdiction. Per the Cuevas case, once the Court of Appeals releases jurisdiction, no further impediment to revision exists.
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court to consider Rule 60(b) relief. See also, Edwards v. State of Louisiana, 496 F.2d 904 (5th Cir. 1974)(same); Artis v, United States Industry, 805 F. Supp. 609, 610 (N.D. Ill. 1992). C. Plaintiff's Allegations Of Judicial Misconduct Are Unsupported By The Record.

Mr. Knowlton's most outrageous argument, completely unsupported by any legal authority or by any facts, is that a new trial is warranted for supposed judicial misconduct.7 Mr. Knowlton also makes false accusations against defense counsel, claiming to have been "threatened". He asserts that defense counsel "meant to intimidate counsel" and to "retaliate for his representation of Plaintiffs at oral argument". (Motion for New Trial, p. 2:15-18, Docket # 186). None of this is true. Defense counsel made no "threat". Mr. Knowlton does not explain how defense counsel could ever have obtained any benefit from any imagined "threat", or why she would ever want to "retaliate". Mr. Knowlton's representation of Plaintiffs has never been perceived as an obstacle to the defense.8 Mr. Knowlton alleges the Court's ruling on the Motion to Correct the Record was "done to retaliate against Counsel for his representation of Plaintiffs on appeal". This argument is unsupported by any evidence. The most obvious reason for the ruling is to correct the clerical error. Mr. Knowlton does not provide any convincing evidence to support his theory that the Court was not truly trying to correct the error, but was instead trying to "retaliate". A party's unsupported accusations of such serious conduct have previously been subject to contempt proceedings. See Codispoti v.

Much of Mr. Knowlton's argument is based upon the alleged date the State Bar supposedly made its decision. Yet, none of those dates are in the record. Mr. Knowlton has failed to produce a copy of the referral to the Bar, the Bar's letter to Knowlton, Knowlton's submission to the Bar, or the Bar's alleged "decision". Without any of this material being submitted into the record and provided to defense counsel, none of the arguments based thereon can be considered.
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The defense has been entirely successful in this case on every claim. No conceivable motive exists for any alleged "threat". The supposed "threat" is another product of Mr. Knowlton's active imagination.
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Pennsylvania, 418 U.S. 506 (1974)(accusations by defendant that a criminal conspiracy existed between judgment and prison officials). Allegations of judicial misconduct may be considered in a motion for new trial. If the record supports the allegations (here they do not), it is not necessarily true that the trial court accused of misconduct cannot be impartial enough to evaluate the evidence.9 Champeu v. Fruehauf Corp., 814 F.2d 1271, 1276-77 (8th Cir. 1987). Mr. Knowlton has not bothered to submit an affidavit to support any of his allegations. Under 28 U.S.C. § 144, a judge is required to recuse himself where a party submits an affidavit establishing the judge has a personal bias or prejudice arising from an "extra-judicial source," and not the judge's participation in the case, which prevents him from fairly hearing the matter. 28 U.S.C. § 455 sets forth the grounds on which disqualification is required where impartiality might reasonably be questioned. Section 455 does not require recusal where any supposed bias or prejudice the judge has is based upon opinions formed in the course of the proceedings, rather than from an outside source. Liteky v. United States, 510 U.S. 540, 550-51 (1994). It is well established that a party cannot simply spew accusations of bias and prejudice without supporting them with actual facts. United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976); Clark v. Phoebe Putney Mem. Hosp., No.1:06CV118 HES, 2007 WL 294198, at *2 (MD. Ga. Jan. 26, 2007)(Slip Copy)(the mere fact a plaintiff filed a complaint against a judge will not force recusal). For retrial on the basis of alleged judicial misconduct to be warranted, "there must be something more to justify a retrial than mere suspicion. It must appear plain and clear." United States v. Dorival, 2008 WL 1884166, at *31 (Dist. Ct. Virgin Islands April 24, 2008)(Slip Copy). Motions for

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Mr. Knowlton has not requested recusal.
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new trial predicated on allegations of judicial misconduct are rare. Anthony v. Maki, No. 2:05-cv-66, 2007 WL 2159400, at *2 (W.D. Mich. July 25, 2007)(Slip Copy). Judicial rulings alone are virtually never enough to establish bias or prejudice. Isolated critical remarks or comments by a judge are not enough. The same types of evidence required to justify recusal are required to justify a new trial for judicial misconduct. Id. Mr. Knowlton alleges that he perceived a "message" from the Court that if his clients did not appeal, no sanctions would be entered against him personally and no complaint would be filed with the State Bar.10 There is no objective evidence that such a "message" was ever intended by the Court. Mr. Knowlton claims the Court delayed submitting information to the State Bar until after the Court of Appeals oral argument. But, if his representation of the Plaintiffs on appeal was the supposed action which triggered the alleged "retaliation", the Court would have submitted the matter to the Bar when the Notice of Appeal was filed, or when the Opening Brief was filed. There is no connection between the appeal and the State Bar referral. There is no connection between the State Bar referral and the amended judgment. The judgment was amended to conform to the 7/8/05 order, which was entered long before the 7/26/05 hearing at which the Court said it would refer the matter to the Bar. D. Mr. Knowlton's Current Recklessly False Allegations Cannot Be Used As A Means To Avoid The Sanctions Issued As A Result Of His Original Recklessly False Allegations.

Mr. Knowlton's current accusations are unsupported by fact or law, and were irresponsibly made. This is yet another example of the same type of conduct which supported the award of costs/fees he now seeks to avoid, and which generated the first referral to the Bar. The original

This makes no sense. The sanctions were ordered, and the Court said it would refer the matter to the State Bar. No ambiguities were created by the Court's comments. The Court did not leave open the possibility that the sanctions or the Bar referral could be avoided.
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sanctions and Bar referral were purportedly the result of many factors, including Mr. Knowlton's reckless pursuit of baseless arguments, and misstatements of fact. In the current Motion for New Trial, Mr. Knowlton again makes reckless allegations unsupported by fact. He uses these baseless accusations to avoid the sanctions entered as punishment for his original misconduct. It would be manifestly unjust to allow Mr. Knowlton's continued misconduct to be used as a basis to avoid payment of the fees and costs which resulted from his original misconduct. Mr. Knowlton must now face the consequences of his own actions ­ the fees/costs awarded against him. III. CONCLUSION For the foregoing reasons, Defendants request that the Court deny Plaintiffs' Motion for New Trial. RESPECTFULLY SUBMITTED this 27th day of May, 2008. GREEN & BAKER /s/ Katherine E. Baker Katherine E. Baker Diane L. Bornscheuer 7373 North Scottsdale Road, Suite B-200 Scottsdale, Arizona 85253 Attorneys for Defendants ORIGINAL of the foregoing e-filed and COPIES served via email or U.S. Mail this 27th day of May, 2008, to: The Honorable James A. Teilborg U.S. District Court Sandra Day O'Connor U.S. Courthouse Suite 523 401 W. Washington Street, SPC 51 Phoenix, AZ 85003

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Keith M. Knowlton KEITH M. KNOWLTON, LLC 1630 South Stapley Drive, Suite 231 Mesa, Arizona 85204 /s/ Kendra D. Wheat

Case 2:03-cv-00249-JAT

Document 187

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