Lake v. Hobbs

643 F.Supp.3d 989

Kari LAKE, et al., Plaintiffs, v. Katie HOBBS, et al., Defendants.

No. CV-22-00677-PHX-JJT

United States District Court, D. Arizona

Signed December 1, 2022

Alan M. Dershowitz, Pro Hac Vice, Harvard Law School, Cambridge, MA, Andrew D. Parker, Jesse Hersch Kibort, Pro Hac Vice, Joseph Alan Pull, Pro Hac Vice, Parker Daniels Kibort LLC, Minneapolis, MN, Kurt B. Olsen, Pro Hac Vice, Olsen Law PC, Washington, DC, for Plaintiffs.

Christine Bass, Pro Hac Vice, States United Democracy Center, Los Angeles, CA, David Andrew Gaona, Kristen Michelle Yost, Roopali H. Desai, Coppersmith Brockelman PLC, Phoenix, AZ, Sambo Dul, States United Democracy Center, Tempe, AZ, for Defendant Katie Hobbs.

Emily Mae Craiger, Burgess Law Group, Phoenix, AZ, Joseph James Branco, Karen J. Hartman-Tellez, Joseph Eugene LaRue, Thomas P. Liddy, Maricopa County Attorneys Office - Civil Services Division, Phoenix, AZ, for Defendants Bill Gates, Clint Hickman, Jack Sellers, Thomas Galvin, Steve Gallardo, Maricopa County Board of Supervisors.

Daniel S. Jurkowitz, Pima County Attorneys Office, Tucson, AZ, for Defendants Rex Scott, Matt Heinz, Sharon Bronson, Steve Christy, Adelita Grijalva.

Michael Kielsky, Davillier Law Group LLC, Phoenix, AZ, for Amicus Arizona Republican Party.

ORDER

John J. Tuchi, United States District Judge

At issue is the Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927 Motion for Sanctions (Doc. 97, "Mot.") filed by Defendants Bill Gates, Clint Hickman, Jack Sellers, Thomas Galvin, and Steve Gallardo in their official capacities as members of the Maricopa County Board of Supervisors (hereinafter referred to collectively as "Maricopa County Defendants"), to which Plaintiffs Kari Lake and Mark Finchem filed a Response (Doc. 99, "Resp."), and the Maricopa County Defendants filed a Reply (Doc. 102, "Reply"). The Court finds this matter appropriate for disposition without oral argument. LRCiv 7.2(f). For the reasons set forth below, the Court grants the Maricopa County Defendants' motion.

I. BACKGROUND

In this case, Plaintiffs challenged the procedures for administering elections in Arizona and sought an injunction compelling Defendants—election officials at the state and county levels—to follow alternative procedures for collecting, storing, counting, and tabulating votes in the 2022 midterm election. (Doc. 3, Plaintiffs' first Amended Complaint ("FAC") ¶¶ 1, 153.) These alternative procedures included requiring voters to cast their votes on paper ballots and ordering election administrators to count every ballot cast by hand. (Id. ¶ 153.) On August 26, 2022, the Court granted motions to dismiss filed by Defendants and dismissed Plaintiffs' FAC in its entirety. (Doc. 100, "Dismissal Order.") The 2022 midterm election took place on November 8, 2022.

The Court's Dismissal Order described in detail the allegations Plaintiffs raised in their FAC, as well as the current procedures used to administer elections in Arizona. (Dismissal Order at 2-11.) Here, the Court will presume the reader's familiarity with its Dismissal Order and provide a more truncated description of Plaintiffs' allegations, the pertinent procedural history of the case, and the parties' positions on remaining issues.

Broadly, Plaintiffs alleged that the electronic voting machines certified for use in Arizona, including optical scanners and ballot marking devices ("BMDs"), are "potentially unsecure, lack adequate audit capacity, fail to meet minimum statutory requirements, and deprive voters of the right to have their votes counted and reported in an accurate, auditable, legal, and transparent process." (FAC ¶ 23.) Plaintiffs alleged that the machines are "rife" with cybersecurity vulnerabilities and allow for unauthorized persons to manipulate the reported vote counts in an election and potentially change the winner. (See, e.g., id. ¶¶ 12-13, 73-75, 77, 81-82, 108-12, 125-34, 139.) Plaintiffs claimed that Arizona's audit regime is insufficient to negate these vulnerabilities and that the only way to overcome the security issues they identify is "for the Court to Order, an election conducted by paper ballot, as an alternative to the current framework." (Id. ¶¶ 144-53.) Plaintiffs requested that the Court implement certain procedures, including the use of paper ballots and a live-streamed hand-count of all ballots cast. (Id. ¶ 153.) Plaintiffs maintained that the Cyber Ninjas' hand count of two contests in the 2020 general election in Maricopa County offers "a proof-of-concept and a superior alternative to relying on corruptible electronic voting systems." (Id. ¶ 155.)

In a letter dated May 20, 2022, counsel for the Maricopa County Defendants notified Plaintiffs' counsel that this lawsuit was frivolous. (Doc. 97-1.) Counsel advised that unless Plaintiffs voluntarily dismissed their suit, counsel intended to file a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and a motion for sanctions pursuant to Rule 11. (Id.) The Maricopa County Defendants filed a Motion to Dismiss Plaintiffs' FAC on June 7, 2022 (Doc. 27). Defendant Arizona Secretary of State Katie Hobbs ("the Secretary") joined the Maricopa County Defendants' motion and filed her own Motion to Dismiss on June 8, 2022 (Doc. 45).

On June 8, 2022, nearly seven weeks after filing their initial Complaint (Doc. 1), Plaintiffs lodged a Motion for Preliminary Injunction (Doc. 50, "MPI"), which the Court ordered filed on June 15, 2022 (Doc. 49). In their MPI, Plaintiffs requested that the Court "enter a preliminary injunction barring Defendants from using computerized equipment to administer the collection, storage, counting, and tabulation of votes in any election until such time that the propriety of a permanent injunction is determined." (MPI at 2.) Plaintiffs filed multiple declarations and exhibits in support of their MPI (Docs. 33-44).

On July 21, 2022, the Court held a hearing at which the parties presented witness testimony and the Court heard argument on Plaintiffs' MPI and Defendants' Motions to Dismiss. (Doc. 98, Transcript of Proceedings ("Tr.").) On August 26, 2022, the Court granted Defendants' Motions to Dismiss, denied as moot Plaintiffs' MPI, and dismissed Plaintiffs' FAC in its entirety. (Dismissal Order at 13-21.)

The Maricopa County Defendants now move for sanctions against Plaintiffs and their counsel under Rule 11 and 28 U.S.C § 1927. Broadly, Defendants argue that Plaintiffs and their counsel made numerous false allegations about Arizona elections in their FAC and MPI, that Plaintiffs' claims are frivolous, and that they pursued this case for the improper purpose of undermining confidence in elections and furthering their political campaigns. (Mot. at 1-5, 7-12.) Plaintiffs oppose Defendants' motion and argue that sanctions cannot be imposed because their claims are meritorious and their factual contentions are well-founded. (Resp. at 1-17.)

II. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 11

Rule 11(b) provides, in relevant part:

By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; [and]

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Rule 11(c)(1) provides: "If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation." However, "[t]he court must not impose a monetary sanction . . . against a represented party for violating Rule 11(b)(2)." Fed. R. Civ. P. 11(c)(5)(A).

Applying Rule 11 "requires sensitivity to two competing considerations." United Nat'l Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1115 (9th Cir. 2001). "On the one hand, . . . on occasion attorneys engage in litigation tactics so vexatious as to be unjustifiable even within the broad bounds of our adversarial system, and . . . neither the other parties nor the courts should have to abide such behavior or waste time and money coping with it." Id. Thus, "the central purpose of Rule 11 is to deter baseless filings." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). "On the other hand, . . . our system of litigation is an adversary one, and . . . presenting the facts and law as favorably as fairly possible in favor of one's client is the nub of the lawyer's task." United Nat'l Ins. Co., 242 F.3d at 1115. Sanctions therefore should be imposed "only in the most egregious situations, lest lawyers be deterred from vigorous representation of their clients." Id. (citation omitted).

Where "a complaint is the primary focus of a Rule 11 proceeding, a district court must conduct a two-prong inquiry to determine (1) whether the complaint is legally or factually baseless from an objective perspective, and (2) if the attorney has conducted a reasonable and competent inquiry before signing and filing it." Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (quoting Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002)). The complaint need not be wholly baseless to be sanctionable: A partially supported, partially unsupported filing may still be sanctionable. See Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362-65 (9th Cir. ...