{"id":2681,"date":"2023-06-07T04:29:28","date_gmt":"2023-06-07T04:29:28","guid":{"rendered":"http:\/\/jwchildabuse.org\/xqllht\/document\/9-0-philip-brumley-opposition-to-motion-to-dismiss-appeal\/"},"modified":"2023-06-07T04:36:15","modified_gmt":"2023-06-07T04:36:15","slug":"9-0-philip-brumley-opposition-to-motion-to-dismiss-appeal","status":"publish","type":"dlp_document","link":"https:\/\/jwchildabuse.org\/xqllht\/document\/9-0-philip-brumley-opposition-to-motion-to-dismiss-appeal\/","title":{"rendered":"9-0 Philip Brumley Opposition to Motion to Dismiss Appeal"},"content":{"rendered":"<p><em><strong>June 5th, 2023<\/strong><\/em><\/p>\n<p>Filed (ECF) Appellant Philip Brumley response opposing motion ([<a href=\"https:\/\/ecf.ca9.uscourts.gov\/docs1\/009034026845\" target=\"new\" rel=\"noopener\">4<\/a>] Motion (ECF Filing), [<a href=\"https:\/\/ecf.ca9.uscourts.gov\/docs1\/009034026845\" target=\"new\" rel=\"noopener\">4<\/a>] Motion (ECF Filing), [<a href=\"https:\/\/ecf.ca9.uscourts.gov\/docs1\/009034026845\" target=\"new\" rel=\"noopener\">4<\/a>] Motion (ECF Filing)). Date of service: 06\/05\/2023. [12728498] [23-35329] (Shatz, Benjamin) [Entered: 06\/05\/2023 11:25 AM]<\/p>\n<p>OPPOSITION TO MOTION TO DISMISS FOR LACK OF APPELLATE JURISDICTION AND FOR SANCTIONS; DECLARATION OF APPELLANT PHILIP BRUMLEY<\/p>\n<p>&nbsp;<\/p>\n<p>INTRODUCTION<\/p>\n<p>Appellant Philip Brumley is not a party to this litigation, nor is he counsel of record representing any party in this litigation\u2014nor could he be, given that he is not admitted to the District of Montana. Instead, Brumley is the in-house General Counsel of one of the defendants, Watch Tower Bible and Tract Society of Pennsylvania (WTPA). During this litigation, acting in his capacity as WTPA\u2019s representative on jurisdictional issues, Brumley signed two affidavits, prepared with the assistance and advice of WTPA\u2019s counsel in the litigation. Based on his signing factual affidavits for WTPA, the district court sanctioned Brumley personally for over $150,000 under 28 U.S.C. \u00a7 1927 (first enacted in 1813). Brumley now appeals that order.<\/p>\n<p>The order on appeal is unprecedented. Section 1927 is a statute empowering courts to sanction an \u201cattorney\u201d who \u201cunreasonably and vexatiously\u201d \u201cmultiplies the proceedings\u201d in a case. Section 1927 is designed to allow a court to sanction lawyers who are acting as counsel in a case pending before the court. Section 1927 was never intended to allow a fact witness or party representative\u2014who merely also happens to be a lawyer\u2014to be sanctioned. Neither the district court nor the Plaintiffs identified any case in which a court imposed \u00a7 1927 sanctions under such circumstances, i.e., against a non-party, non-counsel of record, who never appeared in the case (as party or counsel) and who is not even admitted to practice before the sanctioning court. Thus, Brumley\u2019s appeal from the district court\u2019s sanctions order raises an important legal question of first impression.1<\/p>\n<p>Brumley\u2019s appeal also arguably raises a novel question of appellate jurisdiction. The immediate appealability of sanctions orders is a tricky and underdeveloped area. Despite a few clear guideposts, in many situations appealability is unclear. Thus, as detailed below, federal appellate practice guides recommend filing appeals to avoid jurisdictional waivers.<\/p>\n<p>As pointed out in the Plaintiffs\u2019 motion to dismiss Brumley\u2019s appeal, precedent from this Court, Stanley v. Woodford, 449 F.3d 1060 (9th Cir. 2006), holds that a lawyer cannot immediately appeal sanctions imposed under \u00a7 1927 when the sanctions arose from the lawyer\u2019s conduct in acting as counsel of record in the litigation. But Stanley does not address Brumley\u2019s situation\u2014indeed, no court has. Similarly, as also pointed out in Plaintiffs\u2019 motion, the United States Supreme Court, in Cunningham v. Hamilton County, 527 U.S. 198 (1999), has held that discovery sanctions against counsel of record are not immediately appealable. But again, that is not Brumley\u2019s situation. As noted, there is no precedent that squarely addresses a sanctions order under circumstances like Brumley\u2019s. Further, this Court has held that a non-party can immediately appeal a sanctions order. See David v. Hooker, Ltd., 560 F.2d 412, 415 (9th Cir. 1977). As a non-party, Brumley\u2019s appeal is most analogous to that law.<\/p>\n<p>This Court should rule that someone in Brumley\u2019s situation has a right to an immediate appeal. At the very least, Brumley\u2019s appeal has been taken in good faith, pursuant to primary and secondary authority, and therefore is not frivolous or sanctionable.<\/p>\n<p>&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>9-0 Brumley Opposition to Motion to Dismiss<\/p>\n","protected":false},"author":1,"featured_media":1263,"comment_status":"open","ping_status":"closed","template":"","meta":{"_acf_changed":false},"doc_categories":[126],"doc_tags":[76,77,127],"doc_author":[],"file_type":[14],"class_list":["post-2681","dlp_document","type-dlp_document","status-publish","has-post-thumbnail","hentry","doc_categories-philip-brumley-sanctions-appeal","doc_tags-caekaert-v-watchtower","doc_tags-philip-brumley","doc_tags-philip-brumley-sanctions-appeal","file_type-pdf"],"download_url":"https:\/\/jwchildabuse.org\/xqllht\/wp-content\/uploads\/2023\/06\/9-0-Philip-Brumley-Opposition-to-Motion-to-Dismiss-Appeal.pdf","file_size":"709 KB","filename":"9-0-Philip-Brumley-Opposition-to-Motion-to-Dismiss-Appeal.pdf","download_count":"22","version_history":[],"acf":[],"_links":{"self":[{"href":"https:\/\/jwchildabuse.org\/xqllht\/wp-json\/wp\/v2\/dlp_document\/2681","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/jwchildabuse.org\/xqllht\/wp-json\/wp\/v2\/dlp_document"}],"about":[{"href":"https:\/\/jwchildabuse.org\/xqllht\/wp-json\/wp\/v2\/types\/dlp_document"}],"author":[{"embeddable":true,"href":"https:\/\/jwchildabuse.org\/xqllht\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/jwchildabuse.org\/xqllht\/wp-json\/wp\/v2\/comments?post=2681"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/jwchildabuse.org\/xqllht\/wp-json\/wp\/v2\/media\/1263"}],"wp:attachment":[{"href":"https:\/\/jwchildabuse.org\/xqllht\/wp-json\/wp\/v2\/media?parent=2681"}],"wp:term":[{"taxonomy":"doc_categories","embeddable":true,"href":"https:\/\/jwchildabuse.org\/xqllht\/wp-json\/wp\/v2\/doc_categories?post=2681"},{"taxonomy":"doc_tags","embeddable":true,"href":"https:\/\/jwchildabuse.org\/xqllht\/wp-json\/wp\/v2\/doc_tags?post=2681"},{"taxonomy":"doc_author","embeddable":true,"href":"https:\/\/jwchildabuse.org\/xqllht\/wp-json\/wp\/v2\/doc_author?post=2681"},{"taxonomy":"file_type","embeddable":true,"href":"https:\/\/jwchildabuse.org\/xqllht\/wp-json\/wp\/v2\/file_type?post=2681"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}