
USCA1 Opinion

	




          March 31, 1994                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-1720                                RICHARD SILVA, ET AL.,                                Plaintiffs, Appellees,                                          v.                   PETER WITSCHEN, CITY OF EAST PROVIDENCE, ET AL.,                                Defendants, Appellees,                                   STEPHEN LINDER,                                      Appellant.                                                                                      ____________________                                        ERRATA             The opinion of this Court issued on March 24, 1994, is amended as        follows:             On Page 13, Paragraph 2 on Line 3, please insert "sanction" after        "Rule 11".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-1720                                RICHARD SILVA, ET AL.,                                Plaintiffs, Appellees,                                          v.                   PETER WITSCHEN, CITY OF EAST PROVIDENCE, ET AL.,                                Defendants, Appellees,                                   STEPHEN LINDER,                                      Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                              Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Edward  Greer, Rhode  Island Affiliate, American  Civil Liberties             _____________                           _________________________        Union, was on brief for appellant.        _____             William J. Conley, Jr., City Solicitor, for appellee City of East             ______________________        Providence, Rhode Island.                                                                                      ____________________                                    March 24, 1994                                                                                      ____________________                    CYR, Circuit Judge.  Appellant Stephen Linder, Esquire,                    CYR, Circuit Judge.                         _____________          challenges  the sanction imposed against him  pursuant to Fed. R.          Civ. P. 11  for filing a groundless complaint against defendants-          appellees.   After careful  review, we affirm  the district court          sanction order in all respects.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    In the fall of 1985, the City of East Providence, Rhode          Island,  announced that  an  independent  testing  service  would          administer a competitive examination for the position of Chief of          Police.   A city ordinance empowered the City Manager, defendant-          appellee  Peter Witschen, to fill the position from among the top          three performers on the examination.  See Civil Service Ordinance                                                ___          of  East Providence, R.I.    11-66(c),(d).  It was no secret that          some  members of the City Council, including defendants-appellees          in  this action,  favored  the appointment  of defendant  Anthony          DeCastro.   DeCastro achieved the highest  examination score and,          in January 1986, was appointed by the City Manager.                    Following the appointment,  a rift arose between  Chief          DeCastro and the  Fraternal Order of Police Union (Union).   At a          public  session of the City Council years later, it was disclosed          that  several defendants  had discussed beforehand  with DeCastro          the likelihood  that a competitive examination  would be adminis-          tered and that DeCastro's test-taking skills were weak.  Finally,          it was also disclosed  at the City Council meeting  that DeCastro                                          2          had attended  a preparatory course in  "executive development" on          his own  time, for  which he  was reimbursed  pursuant to a  City          policy permitting reimbursement for "in-service training."                    Present at the City Council meeting were several of the          plaintiffs,  all disappointed  applicants  for the  position, and          appellant Linder, counsel to  the Union.  Shortly after  the City          Council meeting, two of  the plaintiffs met  briefly  with Linder          and discussed  factual grounds  for a possible  lawsuit in  their          behalf.   Thereafter, Linder  conducted limited  discussions with          other plaintiffs along similar lines.                    On January 3, 1990, Linder initiated the present action          under  42 U.S.C.   1983 in  the United States  District Court for          the District of Rhode Island, charging deprivations of plaintiff-          s' due process right to a fair and impartial promotional examina-          tion as provided by  the City ordinance, and of  an alleged right          of  "equal protection" to compete for the position.  Although the          complaint pleaded relevant circumstances which the district court          later  characterized as    "suspicious," see  supra  pp. 2-3,  it                                                   ___  _____          neither alleged     nor asserted facts  sufficient to support  an          inference     that the examination  was either "rigged"  to favor          DeCastro or administered or graded unfairly.                    Prior  to  filing the  complaint,  Linder  made a  copy          available to the City  Solicitor, who advised Linder that  it was          "unjustified," and  warned that  the City  was  likely to  demand          attorney fees for defending against it.  Linder was not deterred.                    Ultimately, the district court entered summary judgment                                          3          for  all defendants  on the  ground that  "the complaint  made no          allegations of 'exam  rigging,'" which was the  essence of plain-          tiffs' claim.  Silva v. Witschen,  745 F. Supp. 798, 803 (D. R.I.                         _____    ________          1990).1    The  defendants  thereafter  requested attorney  fees,          either under 42 U.S.C.   1988 or as a sanction under Fed. R. Civ.          P. 11.                    In due  course, the district court  conducted a lengthy          hearing to determine whether the fee request should be allowed on                               _______          either ground.   The amount of  any fee award was  not before the          court  at the hearing.   Following the hearing,  the court denied          the request for an  award under section 1988, on the  ground that          the plaintiffs  had not  acted in bad  faith.   The court  found,          however,  that Linder was subject  to sanction under  Rule 11 for          filing a  groundless complaint.   The defendants  later requested          fees and costs totalling almost $250,000, which the court reduced          to $75,349.96,  approximately two-thirds of which  was attributed          to  the merits phase and one-third  to the sanctions phase of the          district court litigation.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    All  aspects  of the  Rule  11  sanctions decision  are          reviewed  for abuse  of discretion.   Cooter  & Gell  v. Hartmarx                                                ______________     ________          Corp., 496  U.S. 384,  405  (1990); Metrocorps,  Inc. v.  Eastern          _____                               _________________     _______          Mass. Junior  Drum & Bugle Corps  Ass'n, 912 F.2d 1,  2 (1st Cir.          _______________________________________                                        ____________________               1The judgment on the merits is not challenged on appeal.                                          4          1990).   As the  party  challenging the  sanctions award,  Linder          bears the formidable burden  of establishing abuse of discretion.          See  Navarro-Ayala v. Nunez, 968 F.2d 1421, 1425 (1st Cir. 1992).          ___  _____________    _____          An abuse of discretion occurs only if "'a material factor deserv-          ing  significant weight is  ignored, . . . an  improper factor is          relied  upon, or  . . . all  proper and  no improper  factors are          assessed,  but  the court  makes  a serious  mistake  in weighing          them.'"  Anderson  v. Beatrice Foods Co., 900 F.2d  388, 394 (1st                   ________     __________________          Cir.)  (quoting Fashion  House, Inc.  v. K  Mart Corp.,  892 F.2d                          ____________________     _____________          1076, 1081 (1st Cir. 1989)), cert. denied, 498 U.S. 891 (1990).                                       ____  ______          A.   Amended Rule 11          A.   Amended Rule 11               _______________                    On December 1, 1993, during the pendency of the present          appeal, an amended version of Rule 11 became effective, governing          "all proceedings in civil cases thereafter commenced and, insofar                                                                    _______          as  just and  practicable, all  proceedings in  civil cases  then          __  ____ ___  ___________          pending."   Order Amending Federal Rules  of Civil Procedure, 113          S.  Ct.  CDLXXVIII (Apr.  22,  1993) (emphasis  added).2   Linder                                        ____________________               2The  sanctions provision  in  the pre-amendment  version of          Rule 11 stated:               If  a  pleading, motion,  or other  paper is  signed in               violation of this rule, the court, upon motion  or upon               its own  initiative, shall  impose upon the  person who                                    _____               signed it, a represented party, or both, an appropriate               sanction,  which may  include an  order to  pay to  the               other  party or  parties the  amount of  the reasonable               expenses incurred  because of the filing  of the plead-               ing,  motion,  or other  paper, including  a reasonable               attorney's fee.          Fed. R. Civ. P. 11 (1987) (emphasis added).               The  relevant  portion of  the  sanctions  provision in  the                                          5          therefore  contends that amended Rule 11 applies on appeal in the          present case.                    We need  not decide whether  a case  pending on  appeal          December 1, 1993 is subject  to the amended rule.   The promulga-          tion order  precludes  application of  the amended  rule even  in                                        ____________________          amended version reads as follows:               (c)  Sanctions.   If,  after  notice  and a  reasonable                    Sanctions               opportunity  to  respond,  the  court  determines  that               subdivision  (b) [Representations  to  Court] has  been               violated,  the  court may,  subject  to the  conditions                                     ___               stated below, impose  an appropriate sanction upon  the               attorneys,  law firms,  or parties  that  have violated               subdivision (b) or are responsible for the violation.                    (1)  How Initiated.                         How Initiated                         ______________                         (a)  By Motion.  A motion for sanctions under                              By Motion                              __________                    this rule . . .  shall describe the specific  con-                    duct alleged to violate subdivision (b).  It shall                    be  served as provided in Rule 5, but shall not be                                                          _____ ___ __                    filed with or presented to the court unless, with-                    _____                                ______  _____                    in 21  days after service  of the motion  (or such                    __ __  ____ _____ _______                    other  period as  the  court  may prescribe),  the                                                                   ___                    challenged  paper,   claim,  defense,  contention,                    __________  _____                    allegation, or denial  is not withdrawn or  appro-                                           __ ___ _________ __  ______                    priately corrected.  If  warranted, the court  may                    ________ _________                    award  to the  part prevailing  on the  motion the                    reasonable expenses and  attorney's fees  incurred                    in presenting or opposing the motion.                    (2)  Nature of  Sanction; Limitations.  A sanction                         Nature of  Sanction; Limitations.                         ______ __  _________ ____________                    imposed for violation of this rule shall be limit-                    ed to  what is  sufficient to deter  repetition of                    such conduct or comparable conduct by others simi-                    larly  situated. . . .  [T]he sanction may consist                    of, or  include, directives of  a nonmonetary  na-                    ture, an order to pay a penalty into court, or, if                    imposed  on motion  and  warranted  for  effective                    deterrence,  an  order  directing payment  to  the                    movant of some or all of the reasonable attorneys'                    fees and  other expenses incurred as  a direct re-                    sult of the violation.          Fed. R. Civ. P. 11 (Dec. 1, 1993) (emphasis added).                                          6          "cases then pending"  insofar as  it would be  unjust or  imprac-                                                         ______ __  _______          ticable to do so.  Id.  To remand for a district court determina-          _______            ___          tion under amended  Rule 11  in these circumstances  is not  only          infeasible  but would work  an injustice to plaintiffs-appellees.          See Hashemi v. Campaigner Publications, Inc., 784 F.2d 1581, 1584          ___ _______    _____________________________          (11th Cir. 1986)  (finding no  reason to test  Rule 11  sanctions          under  amendment  to  1983 rule  not  in  effect when  sanctioned          conduct occurred)  (decided   under virtually identical  terms of          1983 promulgation order:   "shall govern . . . ,  insofar as just            _          and practicable,  in proceedings  then pending."   Order Amending          Rules of Civil Procedure,  461 U.S. 1097 (1983)).  Cf.  Freund v.                                                             ___  ______          Fleetwood Enters.,  Inc.,  956  F.2d  354, 363  (1st  Cir.  1992)          ________________________          (declining to apply  amended Fed.  R. Civ. P.  15(c) which  would          work "manifest  injustice");3 Agretti v. ANR  Freight Sys., Inc.,                                        _______    _______________________          No. 89  C 5492, 1994  WL 46670, at  *1 (N.D. Ill.  Feb. 14, 1994)          (finding  retrospective  application  of  1993  amended  Rule  11          "neither just  nor practicable");  In re Taxable  Mun. Bond  Sec.                                             ______________________________          Litig., No. MDL 863, 1994 WL 34924, at *4 (E.D. La. Feb. 3, 1994)          ______                                        ____________________               3Freund rests upon the  principle that "a court is  to apply                ______          the law  in effect at  the time it  renders its decision,  unless          doing so would result in manifest injustice or there is statutory          direction  or legislative history  to the contrary."   Bradley v.                                                                 _______          Richmond Sch. Bd.,  416 U.S.  696, 711  (1974).   In the  instant          _________________          case, such "statutory direction" derives from the Supreme Court's          power to prescribe rules  of procedure.  See generally  28 U.S.C.                                                   ___ _________             2071-2113.    Section 2074(a)  of  Title 28  states  that "the          Supreme Court shall not require the application of such [amended]          rule to further proceedings  then pending to the extent  that, in                                                                         __          the opinion of the  court in which such proceedings  are pending,          ___ _______ __ ___  _____ __ _____ ____ ___________  ___ _______          the application of  such rule  in such proceedings  would not  be          feasible  or would work injustice, in which event the former rule          applies."  28 U.S.C.   2074(a)  (emphasis added).                                          7          (declining to  apply 1993  amended rule where  sanctioned conduct          occurred prior  to Dec. 1,  1993 and pre-amendment  standards had          been  applied at sanctions hearing).4   This is particularly true          since  Linder's sanctionable conduct  was solely  responsible for          the satellite proceedings relating to  Rule 11 sanctions.   More-          over,  it would  be  impracticable, not  only  to undo  the  harm          actually occasioned defendants, but  to review the district court          order  under the  altered standards  established by  amended Rule                                        ____________________               4Linder argues that he would not  have been sanctioned under          the  amended rule, because he would  have withdrawn the complaint          as allowed under the 21-day "safe harbor" provision.  See Fed. R.                                                                ___          Civ.  P. 11(c)(1)(A) (Dec. 1, 1993); supra note 2.  Linder cannot                                               _____          have it both ways, however.  His argument is based on the assump-          tion  that he  would  have availed  himself  of a  "safe  harbor"          provision had  he received notice of  the particular deficiencies                                                    __________          in  the  complaint.   This  retrospective  appraisal ignores  the          reality that Linder flatly disregarded a substantially equivalent          warning from the  City Solicitor  before the  complaint was  ever          filed.  See supra p. 3-4.  Thus, Linder's argument cannot prevail                  ___ _____          unless appellees  failed to point out  particular deficiencies in          the complaint.   However, appellees' statement  of relevant facts          on appeal represents,  and Linder  does not deny,  that the  City          Solicitor "informed [Linder] of the pleading deficiencies, and of                                          ___ ________ ____________          the  City's probable  attempt  to collect  sanctions, before  the          pleading  was even  filed."   (Appellees'  Br.  at 16)  (emphasis          added).   Since  Linder neither denies  appellees' representation          nor included the relevant  portions of the hearing  transcript to          which  appellees' statement of facts  cites, see Fed.  R. App. P.                                                       ___          10(b), 11(a) (appellant bears  burden of including material items          in appellate  record), we  will not  indulge an assumption  fore-          closed by the record before us.  It would be unjust to permit yet          a second "safe harbor" refuge for Linder to escape responsibility            ______          for the expense occasioned an innocent party which forewarned him          that  the complaint  was unjustified.   Furthermore, even  if the          cost and expense occasioned by Linder's sanctionable conduct were          to be disregarded, it  would be unjust to permit  these satellite          proceedings  to be further extended by  remanding to the district          court to afford Linder the opportunity to "withdraw" a groundless          complaint previously dismissed on the merits.                                          8          11.5   See Hashemi, 784  F.2d at 1583-84  (rejecting claim, under                 ___ _______          virtually identical 1983 promulgation order, that amended Rule 11          standards should apply "because the case was pending on appeal by          the plaintiff  at  the  time the  Rule  became  effective");  cf.                                                                        ___          Freund, 956 F.2d  at 363  (refusing to apply  amended rule  which          ______          would work  "manifest injustice").   Since an  unwarranted remand          would otherwise  be necessary in these  already protracted satel-          lite  proceedings, at  inordinate delay  and expense  to innocent          parties, we  review the district  court sanction order  under the          pre-amendment  Rule 11 standards in  force at the  time the sanc-          tioned conduct occurred.          B.   Appropriateness of Rule 11 Sanctions          B.   Appropriateness of Rule 11 Sanctions               ____________________________________                    Prior to December 1,  1993, Rule 11 mandated  sanctions          for  interposing a filing either for an improper purpose or under                                    ______                         __                                        ____________________               5For example,  deterrence was the primary  purpose served by          Rule 11 sanctions prior to December 1, 1983.  See  Cooter & Gell,                                                        ___  _____________          496 U.S. at 393.  Yet "courts . . . ha[d] noted that compensatory          and punitive purposes also [we]re  served by sanctions [under old          Rule  11]."  Charles A. Wright &  Arthur Miller, 5A Federal Prac-                                                              _____________          tice and  Procedure   1336 at 100-101 (1990);  Anderson, 900 F.2d          ___________________                            ________          at 394-95.  Under amended Rule 11, however, "the purpose of . . .          sanctions is to deter rather than to compensate . . . ."  Fed. R.                                ______          Civ. P. 11  advisory committee's  note (emphasis  added).   Thus,          under amended Rule  11, "if  a monetary sanction  is imposed,  it          should ordinarily be paid  into court as a penalty,"  id., though                                                                ___          the court may  award monetary  sanctions to a  party in  "unusual          circumstances," id.  Although  sanctions were mandatory under old                          ___          Rule 11, Lancellotti v. Fay, 909 F.2d 15, 19 (1st Cir. 1990), but                   ___________    ___          are discretionary under the  amended rule, Fed. R. Civ.  P. 11(c)          (Dec. 1,  1993) (if court finds a violation, "the court may . . .                                                                  ___          impose  an appropriate  sanction"  (emphasis  added)),  in  these          circumstances we believe it would be a gross injustice to deprive          defendants-appellees  of compensation  for  the  costs caused  by          Linder's  reckless  disregard for  the  requirements  of Rule  11          despite the City's advance warning.                                          9          circumstances  in  which  a competent  attorney,  on  objectively          reasonable inquiry, could  not have believed that  the filing was          grounded  in fact and  warranted either by  existing law  or by a                            ___          good-faith  argument for the  extension, modification or reversal          of existing law.  Lancellotti  v. Fay, 909 F.2d 15, 19  (1st Cir.                            ___________     ___          1990).               1.   Legal Basis for Action               1.   Legal Basis for Action                    ______________________                    Linder "concedes" that the  complaint violated Rule 11,          in  that he  failed  to  make  the objectively  reasonable  legal          inquiry  required under our case  law.  He  argues, however, that          Leatherman v. Tarrant County Narcotics Intelligence and Coordina-          __________    ___________________________________________________          tion Unit, ___ U.S. ___, 113 S. Ct. 1160 (1993),  struck down the          _________          heightened pleading requirement previously espoused by this court          in  section 1983  actions.6   Since  Leatherman  should be  given                                               __________          retroactive effect, see Harper v. Virginia Dep't of Taxation, ___                              ___ ______    __________________________          U.S.  ___, ___, 113 S. Ct.  2510, 2516-17 (1993) (general rule of          retroactivity in  civil  cases), Linder  contends that  sanctions          were improperly imposed.  This argument is a red herring.                    The  district court order neither mentioned nor applied          a  heightened  pleading standard,  nor did  it  cite to  any case          involving  a heightened pleading requirement.   See Silva, 745 F.                                                          ___ _____          Supp.  at 801.   Rather, the court  determined that there  was no                                        ____________________               6In Leatherman, the Court rejected the Fifth Circuit's "more                   __________          demanding  rule for pleading a complaint  under section 1983 than          for pleading  other kinds of claims  for relief."  113  S. Ct. at          1162-63.                                          10          legal basis whatever  for Linder's reliance  on a federally  pro-          tected property  interest, in  principal part  because plaintiffs          made no allegation of "exam-rigging."  See Burns v. Sullivan, 619                                                 ___ _____    ________          F.2d  99, 104  (1st Cir.),  cert. denied,  449 U.S.  893 (1980).7                                      ____  ______          Compare Silva, 745 F. Supp.  at 803, with Hermes v. Hein,  511 F.          _______ _____                        ____ ______    ____          Supp. 123, 125 (N.D.  Ill. 1980) (complaint alleging exam-rigging          states   1983 claim in  circumstances where unwavering custom and          policy is  to promote  applicant achieving highest  score).   The          court  concluded that  the  only protected  property interest  at          issue was plaintiffs' due process right to compete fairly for the          position  of  Chief of  Police,8 and  since  they had  alleged no          facts evidencing such a deprivation the action was  groundless as          a matter of law.  Silva, 745 F. Supp. at 805.  Neither before the                            _____          district court, nor on appeal, has Linder raised  doubt as to the          soundness of  the district court ruling that the complaint failed          to state a cause of action.                                        ____________________               7As the district court observed:               Like the  City Manager in Burns,  City Manager Witschen                                         _____               had discretion to make  an appointment "after interview               and investigation," from among  "the names of the three               persons  standing highest  on  the  appropriate  list."               Since the City Manager could appoint any one of the top               three  certified candidates,  none of  these candidates               had a clearly defined property interest in promotion to               Chief of Police.          Silva, 745 F. Supp. at 803.          _____               8The court rejected the  claim that plaintiffs were deprived          of  "equal  protection"  by  the  dissimilar  treatment  accorded          DeCastro, citing Di Piro v. Taft,  584 F.2d 1, 3 (1st Cir. 1978),                           _______    ____          cert. denied,  440 U.S. 914 (1979).   See Silva, 745  F. Supp. at          ____  ______                          ___ _____          805 (finding no evidence of intentional discrimination).                                          11               2.   Improper Purpose               2.   Improper Purpose                    ________________                    The district court further  found that Linder attempted             by bringing the present action    to intimidate "the City into          terminating DeCastro . . . . [thus] using this case to further an          improper objective."  Silva v. Witschen, C.A.  No. 90-0005L, slip                                _____    ________          op. at 18-19 (D.  R.I. Nov. 5, 1992) (order imposing  sanctions).          Although Linder admits to a "dual motive," he argues that Rule 11          sanctions  may not  be imposed  for commencing  an action  for an          "improper purpose" if  there was  also a proper  motive, in  this          case vindicating  plaintiffs' rights.   The district  court found          that                        Linder,  who was  also  the attorney  for the                    Union, was  wearing two hats here.   Although                    he purported to  represent the plaintiffs  in                    this case, all his actions were calculated to                               ___ ___ _______ ____ __________ __                    achieve the goal of  the Union, the ouster of                    _______ ___ ____ __  ___ _____                    DeCastro.  While plaintiffs honestly believed                    in their  cause of  action, Linder  was using                    their lawsuit  as a bargaining  chip to pres-                    sure the City on behalf of  the Union to ter-                    minate DeCastro as Chief of Police.          Id. at 19 (emphasis added).          ___                    Linder's contention that his  conduct is not sanctiona-          ble because  he intended to  protect plaintiffs' legal  rights is          yet  another red herring.  We are  aware of no authority or other          basis  for the  view  that an  attorney  who files  a  groundless          complaint, for an improper  purpose and without reasonable inqui-          ry, see  Fed. R. Civ. P. 11, is exonerated from sanctions because              ___          he was  simply asserting  groundless nonexistent legal  claims in          behalf of his  clients.  Cf.  Lieb v. Topstone Indus.,  Inc., 788                                   ___  ____    ______________________          F.2d 151, 157 (3d Cir. 1986) ("[P]leader may not escape liability                                          12          because  he did  not intend  to bring  about additional  delay or          expense.   If  reasonable  preparatory steps  would have  avoided          those consequences,  sanctions are appropriate.").   Accordingly,          we uphold the district court finding of improper motive.  Cf. Mir                                                                    ___ ___          v. Little  Co. of Mary Hosp.,  844 F.2d 646, 653  (9th Cir. 1988)             _________________________          (using litigation  to force party to  grant privileges previously          denied is "improper purpose").          C.   Appropriateness, Nature and Severity of Sanctions          C.   Appropriateness, Nature and Severity of Sanctions               _________________________________________________               1.   Rule 11 Hearing               1.   Rule 11 Hearing                    _______________               The procedure  for determining whether a  sanction should be          imposed and, if so, its nature and severity, is left in the first          instance  to the trial court's sound discretion.  Linder contends          that the district court abused its discretion, see Cooter & Gell,                                                         ___ _____________          496  U.S. at  405, by  unnecessarily convening  a hearing  on the          request  for Rule  11 sanctions.   See  also Fed.  R. Civ.  P. 11                                             ___  ____          advisory committee's note (sanctions procedure depends on circum-          stances and severity of  sanction under consideration); Muthig v.                                                                  ______          Brant  Point Nantucket, Inc., 838  F.2d 600, 607  (1st Cir. 1988)          ____________________________          (similar).  He argues that there  was no reason to conduct a Rule          11 hearing once the court found no legal basis for the complaint,          see  Silva, 745 F. Supp.  at 803, since  sanctions were mandatory          ___  _____          under  the pre-amendment version of Rule 11, Jensen v. Frank, 912                                                       ______    _____          F.2d 517, 524 n.6 (1st Cir. 1990).                    Linder  once  again  mischaracterizes  the  proceedings          below.   The grant of summary judgment against plaintiffs did not          preordain the imposition  of any Rule 11 sanction against Linder.                                          13          Rather, the hearing was necessary to determine whether Linder had                                                         _______          violated  Rule 11 and, if  so, to determine  an appropriate sanc-          ________          tion.   Additionally,  defendants requested  a fee  award against          plaintiffs under 42 U.S.C.   1988 as well, which the court consi-          dered at the same hearing  and later denied.  The claim  that the          district court abused its  discretion by conducting a hearing  to          resolve defendants' fee requests  under Rule 11 and  section 1988          is frivolous.                    Linder  has fallen far short  of a showing  of abuse of          discretion.9   Rule  11  contemplates "giv[ing]  effect to  [its]          central  goal of  deterrence," Cooter  & Gell,  496 U.S.  at 405,                                         ______________          while  avoiding  unnecessary  satellite  litigation;  the  proper          balance is left to the reasoned discretion of the district court,          id.   Cf. Fashion House, 892  F.2d at 1082 (district  court is in          ___   ___ _____________          best position  to determine appropriate remedy).  The hearing was          necessary  for two  reasons:   to determine  whether there  was a                                                       _______          proper basis for assessing attorney fees against plaintiffs under          42 U.S.C.   1988,  and whether Linder's filing  of the groundless                                 _______          complaint  warranted imposition  of a Rule  11 sanction.   Silva,                                                                     _____          slip op.  at 2-3  (Nov. 5,  1992); Silva,  745 F.  Supp. at  806.                                             _____          Thus, among the matters at issue in the Rule 11 sanctions hearing                                        ____________________               9Though hampered by the  absence of a sanction-hearing tran-          script, we have reviewed Linder's claims on the available  appel-          late  record, see United States  v. One Yacht  Named Mercury, 527                        ___ _____________     ________________________          F.2d  1112,  1113 (1st  Cir.  1975)  (despite incomplete  record,          appellate court reviews merits  as record allows), cognizant that          it was  Linder's burden to  ensure an adequate  appellate record,          see Navarro-Ayala,  968 F.2d at  1425; see also  Fed. R. App.  P.          ___ _____________                      ___ ____          10(b), 11(a) (requiring appellant to assemble requisite record).                                          14          were  whether Linder:   (1)  brought the  action for  an improper          purpose and  (2) after  reasonable inquiry,  could have  formed a          reasonable belief  that the complaint  was well grounded  in fact          __________ ______          and "warranted by existing  law or a good faith  argument for the          extension, modification, or reversal of  existing law."  Fed.  R.          Civ. P.  11 (1987); see Lancellotti,  909 F.2d at 19.   The court                              ___ ___________          found  that "Linder failed to make a reasonable inquiry to deter-          mine that the complaint was well founded in fact . . . [and] even          more  important [the] lawsuit was  baseless as a  matter of law."          Silva,  slip op.  at  17 (Nov. 5,  1992).   See  Unanue-Casal  v.          _____                                       ___  ____________          Unanue-Casal,  898 F.2d  839,  841-42 (1st  Cir.  1990) (Rule  11          ____________          sanctions against counsel warranted for filing frivolous  removal          petition  with  "no  plausible  legal basis"  and  for  "improper          purpose").10               2.   Reasonableness of Sanctions               2.   Reasonableness of Sanctions                    ___________________________                    Linder's remaining claim is that the attorney fee award          is  excessive.   Compensatory  sanctions  under Rule  11  must be                                        ____________________               10Linder  claims  that the  district court  did not  need to          address the "improper  purpose" prong of Rule 11 once it had been          determined that he had failed to make a "reasonable inquiry."  We          find  no abuse of discretion.   The appellate  record provided by          Linder, see supra note 9, does not indicate which issue was first                  ___ _____          decided, why the hearing  proceeded to the second issue,  or even          whether  Linder preserved  this claim by  asserting it  in timely          fashion  below.  Moreover, the further inquiries as to the appro-          priateness and  severity of Rule 11  sanctions were significantly          informed  by  the  court's determination  that  not  one but  two          grounds existed  for sanctioning  Linder.  See  Unanue-Casal, 898                                                     ___  ____________          F.2d  at 841-42 (Rule  11 sanctions against  counsel warranted by          both prongs of rule).                                          15          reasonable in amount.11   Navarro-Ayala, 968  F.2d at 1427  (cit-                                    _____________          ing cases).                    a.   Merits Phase                    a.   Merits Phase                         ____________                    The  district court  awarded the  City12 $53,528.81  in          attorney fees and costs  incurred during the merits phase  of the          litigation  by  all  defendants,  representing  approximately 487          hours devoted to legal services by counsel appearing for the five          individual defendants, and by the City Solicitor in behalf of the          City  and the same  five individual defendants  in their official          capacities.   Linder does not challenge the individual fee appli-          cations, but asserts that the aggregate hours were not reasonably          required  because  defendants did  not  take  proper measures  to          mitigate  fees by  delegating jointly-required  in-court services          and  submitting unitary filings  to avoid unnecessary duplication          of services.   See Navarro-Ayala, 968 F.2d  at 1427 (compensatory                         ___ _____________          sanctions  allowed  only for  costs  reasonably incurred)  citing                                               __________            ______          Thomas v. Capital  Sec. Services,  Inc., 836 F.2d  866, 879  (5th          ______    _____________________________          Cir.  1988); see also Dubisky v. Owens,  849 F.2d 1034, 1037 (7th                       ___ ____ _______    _____                                        ____________________               11Another Linder claim    that  attorney fees are not allow-          able under Rule 11     directly contradicts the  express language          of Fed. R. Civ. P. 11 ("an appropriate sanction . . . may include          . . . a reasonable attorney's fee").  See also Mariani v. Doctors                                                ___ ____ _______    _______          Assocs.,  Inc.,  983 F.2d  5, 8  (1st  Cir. 1993);  see generally          ______________                                      ___ _________          Charles  A.  Wright &  Arthur R.  Miller,  5A Federal  Practice &                                                        ___________________          Procedure,   1336 at 113 (1990) ("attorneys' fees have become the          _________          Rule 11 sanction of choice").               12The  district court found that the City is the "only party          interested in receiving sanctions," Silva, slip  op. at 4 (May 6,                                              _____          1993),  because it had agreed to pay the defendants' counsel fees          incurred  in  this action,  id.    Consequently,  it ordered  all                                      ___          sanctions paid to the City.                                          16          Cir. 1988) (similar).                    The district court rejected Linder's  argument, finding          instead that "if plaintiffs' case had not been so utterly without          merit,  this 'redundant' representation  might have proved essen-          tial to these defendants,"  Silva, slip op. at 13  (May 6, 1993),                                      _____          and therefore  that the  employment of multiple  attorneys during          the merits  phrase was reasonably required.  We agree that it was              ______  ______          reasonable for  the five defendants, in  their individual capaci-                                                         __________ _______          ties, to  obtain representation  by their  own counsel  while the          ____          merits  of  plaintiffs'  claims  remained  in  litigation,  since          counsel  to the  City  represented the  individual defendants  in          their official  capacities only.   Linder points to  no authority                ________  __________          for  the implicit  assumption that reasonable  mitigation efforts          require that  the  private interests  of  parties sued  in  their          individual capacities  must go  unrepresented.  Cf.  Mariani, 983                                                          ___  _______          F.2d  at 8  n.5.  Nor  has he  shown that  the respective private          interests of these individual  defendants during the merits phase          did  not conflict  to the  point that  mutual representation  was          precluded.13        Cf. Brandt v. Schal Assoc., Inc., 960 F.2d at                              ___ ______    __________________          640,  648 (7th  Cir. 1992)  ("[w]e have  little sympathy  for the          litigant  who fires  a big  gun, and  when the  adversary returns          fire, complains because he was only firing blanks").                    The court further found that  "the total time spent  by                                        ____________________               13Although the district court did not describe their precise          nature, Linder does  not challenge  its finding  that there  were          potential  conflicts of  interest  among  the various  individual          defendants.   Thus,  Linder failed  to  demonstrate an  abuse  of          discretion.  See Navarro-Ayala, 968 F.2d at 1425.                       ___ _____________                                          17          each attorney on the merits was not excessive."  Silva, slip  op.                                                           _____          at 13 (Nov. 5,  1992).   The court also  disallowed all fees  for          legal services,  except those  services directly rendered  to the          City,  after the  point  in time  when  it became  clear  that no          conflicts of interest precluded the individual defendants'  joint          representation  by counsel to the City.   See Brandt, 960 F.2d at                                                    ___ ______          649  (no failure  to mitigate  where sanctioned  attorney's broad          complaint necessitated  investment of extensive attorney  time in          defense  and district  court carefully  monitored procedure).   A          party is required to mitigate expenses only insofar as is reason-          able.  Our review of the record  discloses no basis for supposing          that  the district  court  abused its  discretion  by allowing  a          $53,528.81 reimbursement to the  City for legal services rendered          during the merits  phase.   See Navarro-Ayala, 968  F.2d at  1426                                      ___ _____________          ("When the  district court settles  upon a monetary  sanction and          fixes a dollar amount, a reviewing  tribunal should defer, within          broad  limits, to the  district court's exercise  of its informed          discretion.  Nevertheless,  the court of appeals  must be careful          not  merely  to  'rubber-stamp  the  decisions  of  the  district          court.'") (citation omitted).                    b.   Sanctions Phase                    b.   Sanctions Phase                         _______________                    The  district court  disallowed  all fees  requested in          relation to  the sanctions  phase  of the  litigation except  for                                          18          those incurred by the  City.14  The  court found that counsel  to          the individual defendants  had been notified in  advance that the          City no  longer believed there  existed any conflict  of interest          precluding   joint representation.   Thus, the court allowed only          $21,821.15 in total fees and costs for 188 out of over 1500 hours          expended  by  all  counsel  representing  defendants  during  the          sanctions phase.  Linder does not challenge the reasonableness of          the fees incurred by the City in the sanctions phase.15                    We therefore affirm the district court judgement.                    Affirmed.                    Affirmed.                    ________                                        ____________________               14The  district court  adjusted for  the additional  hearing          time required on  the section  1988 motion by  allowing fees  for          only 50% of the total time expended by defendants' counsel at the          sanctions hearing, a finding not challenged on appeal.               15Linder  argues, however,  apparently for  the  first time,          that  the district court abused its discretion by failing to take          into account his financial  ability to respond to the  fee award.          Even assuming this claim has  been preserved, Linder presented no          evidence concerning  his financial condition, nor  has he alleged          financial  inability to satisfy the sanction.  Thus, there was no          abuse  of discretion.  See  White v. General  Motors Corp., Inc.,                                 ___  _____    ___________________________          908 F.2d 675, 685 (10th Cir. 1990) ("[i]nability to pay what  the          court would otherwise regard as an appropriate sanction should be          treated  as reasonably akin  to an affirmative  defense, with the          burden  upon the  parties being sanctioned  to come  forward with          evidence of their financial status"), cert. denied, 498 U.S. 1069                                                ____  ______          (1991).               We likewise reject Linder's claim that attorney fees reason-          ably incurred in  the sanctions phase may not be made the subject          of  a  Rule 11  sanction.   See Brandt,  960  F.2d at  651 (costs                                      ___ ______          incurred in litigating  request for Rule 11 sanctions in district          court  recoverable as part of Rule 11 sanction); Robinson v. Dean                                                           ________    ____          Witter Reynolds, Inc., 129  F.R.D. 15, 22  (D. Mass. 1989).   Cf.          _____________________                                         ___          Grendel's Den, Inc.  v. Larkin,  749 F.2d 945,  949-50 (1st  Cir.          ___________________     ______          1984) (reasonable  fees and  costs incurred in  recovering attor-          ney's fees under   1988 are reimbursable under   1988).               Finally, although  Linder argues that Rule  11 sanctions may          chill civil  rights actions, we  cannot agree  that a  groundless          civil  rights action is any less appropriate a candidate for Rule          11 sanctions than other groundless actions.                                          19
