                                                                           FILED
                    UNITED STATES COURT OF APPEALS                          MAR 18 2011

                                                                       MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U .S. C O U R T OF APPE ALS




RICHARD W. LEWIS,                                No. 08-17314

              Plaintiff-counter-defendant        D.C. No. 3:99-cv-00386-LRH-
              - Appellee,                        RAM
                                                 District of Nevada,
  v.                                             Reno

TYRONE DUFF; LINDA DUFF,
                                                 ORDER
              Defendants-counter-claimants
              - Appellants,

   and

DAVID ANTONUCCIO; et al.,

              Defendants.



Before:       TASHIMA, BERZON, and CLIFTON, Circuit Judges

       The memorandum disposition filed on November 23, 2010, is withdrawn. A

replacement memorandum disposition will be filed concurrently with this order.

       The panel has voted to deny the petition for panel rehearing.

       The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. See Fed. R.

App. P. 35.

       Tyrone and Linda Duffs’ petition for panel rehearing and petition for
rehearing en banc are denied.

      No further filings shall be accepted in this closed appeal.




                                          2                         08-17314
                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 18 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RICHARD W. LEWIS,                                No. 08-17314

              Plaintiff-counter-defendant        D.C. No. 3:99-cv-00386-LRH-
              - Appellee,                        RAM

  v.
                                                 MEMORANDUM *
TYRONE DUFF; LINDA DUFF,

              Defendants-counter-claimants
              - Appellants,

   and

DAVID ANTONUCCIO; et al.,

              Defendants.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                          Submitted November 16, 2010 **




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before:      TASHIMA, BERZON, and CLIFTON, Circuit Judges.

      Tyrone and Linda Duff appeal pro se from the district court’s judgment

imposing monetary sanctions and entering a pre-filing review order against them

under its inherent power. We have jurisdiction under 28 U.S.C. § 1291. We review

for an abuse of discretion. F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc.,

244 F.3d 1128, 1135 (9th Cir. 2001); De Long v. Hennessey, 912 F.2d 1144, 1146

(9th Cir. 1990). We vacate and remand.

      The district court did not clearly err by finding that the Duffs engaged in bad

faith conduct by willfully refusing to appear at hearings and by filing duplicative

and frivolous documents, and thus the court had the inherent power to sanction

them. See Gomez v. Vernon, 255 F.3d 1118, 1133-34 (9th Cir. 2001). The Duffs’

contentions that the district court lacked jurisdiction to sanction them or

jurisdiction over the action are without merit.

      However, we vacate the $23,149.98 sanction imposed. The sanction was

criminal in nature, because it was intended to punish the Duffs for their conduct

and to vindicate the court’s authority, not solely to compensate plaintiff or coerce

the Duffs into compliance with a court order. See F.J. Hanshaw Enters., 244 F.3d

at 1137-38. The amount of the sanction was a “serious criminal penalt[y].” See id.

at 1138. Because the sanction was criminal in nature and the amount was a


                                           2                                   08-17314
“serious” penalty, the Duffs were entitled to the full due process protections of a

criminal jury trial, see id., which they did not receive. On remand, the district

court may reinstitute criminal sanction proceedings so long as the Duffs are

provided the requisite protections. See id. at 1141-42. Alternatively, the district

court may impose a monetary sanction that is civil in nature or not “serious,”

without further proceedings, because the Duffs were previously given adequate

notice and an opportunity to be heard. See Lasar v. Ford Motor Co., 399 F.3d

1101, 1110-12 & n.7 (9th Cir. 2005).

      We also vacate the entry of the pre-filing review order. On remand, the

district court should consider whether De Long v. Hennessey allows imposition of

a pre-filing review order against a defendant, and if so, the court should expressly

address the De Long factors in determining whether to impose a pre-filing review

order against the Duffs. See 912 F.2d at 1147-48.

      The Duffs shall bear their own costs on appeal.

      VACATED and REMANDED.




                                           3                                     08-17314
