                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                 September 19, 2007
                            FO R TH E TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    In re:

    SA RA ALLEN ,
                                                         No. 06-1429
                Attorney-Appellant.           (D.C. No. 02-CV-00997-JLK-M EH)
                                                          (D . Colo.)



                             OR D ER AND JUDGM ENT *


Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.


         Attorney-Appellant Sara Allen, counsel for plaintiffs in a 28 U.S.C. § 1983

suit, appeals the district court’s imposition of a monetary sanction against her

pursuant to Federal Rule of Civil Procedure 11. The district court granted

summary judgment in favor of defendants in the § 1983 action. It then directed

the magistrate judge to consider whether sanctions were appropriately assessed

against M s. Allen for filing a frivolous suit. Following a hearing, the magistrate

judge recommended the imposition of a $3,000 sanction against M s. Allen under


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Rule 11(c)(1)(b). The district court adopted that recommendation. W e conclude

that the district court did not abuse its discretion in imposing sanctions against

M s. Allen under Rule 11.

                                 I. BACKGROUND

      The record on appeal submitted by M s. Allen does not include the

complaint, or any of the pleadings, motions, or responses in the underlying

litigation. Thus, the following summary is taken from the district court orders.

As relevant to this appeal, plaintiff Elizabeth Flores retained M s. Allen to file a

§ 1983 civil rights lawsuit. 1 M s. Flores alleged that she and her children were

removed from her residence because of her race and in violation of her civil

rights, and she named as defendants the municipality of Log Lane Village,

Colorado, and many of its employees and elected officials in their official and

individual capacities. The defendants moved for sum mary judgment. Plaintiff’s

first response w as rejected because it did not com ply with the district court’s

instructions concerning summary judgment motions. The next response relied

entirely on an affidavit by plaintiff, and made no mention of her deposition

testimony. The magistrate judge struck this affidavit, finding that it was a “sham




1
       M s. Flores and her children were all named plaintiffs, but for convenience,
we refer only to M s. Flores as the plaintiff. The original complaint also included
numerous other plaintiffs who alleged claims unrelated to M s. Flores’s claims;
these claims were settled or dismissed prior to the disposition of M s. Flores’s
claims and are not relevant to this appeal.

                                          -2-
affidavit,” submitted in an attempt to create “sham” issues of fact. The magistrate

judge noted that the affidavit completely ignored, and at times differed from or

contradicted, plaintiff’s deposition testimony.

                       A. First Report and Recommendation

      The magistrate judge issued a report and recommendation (the R& R) that

summary judgment be granted in favor of defendants, concluding that M s. Flores

had presented no factual basis for the bringing of the law suit. The magistrate

judge found that the undisputed evidence was as follows: A Department of

Human Services investigator, not named as a defendant, conducted a home

welfare check of M s. Flores’s home, accompanied by two defendants, the Log

Lane Village M ayor and Chief of Police. M s. Flores allowed the three to enter

her home. The investigator determined that M s. Flores’s home was unsafe, filthy,

open to the elements, and not habitable, particularly by young children. This

decision was made solely by the investigator; no evidence was presented that any

defendant had any personal participation in this decision. M s. Flores agreed to

leave the residence, and she voluntarily signed a “safety plan” agreement with the

Department of Human Services, in which she agreed to leave the home, place the

children in another home, make repairs to her residence, and not allow anyone

into the home until it was brought up to code.

      The magistrate judge concluded that plaintiff had pointed to no evidence in

the record that would even tend to satisfy her burden, in light of the defendants’

                                         -3-
qualified immunity defense, to show that (1) the actions of the defendants

violated any federal constitutional or statutory right, and (2) that such right was

clearly established. As noted, plaintiff and her children left voluntarily and by

signed agreement, and there was no evidence suggesting any personal

participation by any defendant in the events at issue, an essential element of a

§ 1983 claim against individual defendants. Plaintiff admitted in her deposition

that she had no facts to support her claim that she was removed because of her

race. Finally, the magistrate judge found no evidence to support plaintiff’s claim

that Log Lane V illage had a policy, custom or practice of condoning w arrantless

entries into homes. Thus, it recommended summary judgment be granted in favor

of defendants. The district court adopted the recommendation to grant summary

judgment in favor of defendants.

                 B. Procedural Background of the Rule 11 Sanction

      In its R& R, the magistrate judge recommended that the defendants be

awarded their fees and costs under 43 U .S.C. § 1988, to be assessed against

M s. Allen “because plaintiff’s case always w as groundless and frivolous.” Aplt.

App. at 18. In support of this recommendation, the magistrate judge stated that

the undisputed evidence, alw ays in possession of plaintiff and her counsel,

demonstrated that plaintiff left her home voluntarily and by signed agreement

with a non-defendant, and that plaintiff failed to show that the allegations in her




                                          -4-
complaint were supported by any credible evidence or that any credible evidence

ever existed that would support a claim against defendants.

       The district court found that plaintiff failed to adduce any evidence or

competent legal theory in support of her claims against defendants, and that her

claims were “frivolous and groundless and should not have been made or pursued

on the facts - existing or lacking - demonstrated in the record.” Id. at 42. It

declined to aw ard fees under § 1988. Nevertheless, it found that the groundless

suit was “a failure principally of [M s. Allen] to engage in any serious or

meaningful research” before initiating the suit. Id. Thus, it referred the sanction

issue back to the magistrate judge for consideration of whether fees should be

assessed against counsel under Rule 11(c) or 28 U.S.C. § 1927. 2 The district

court stated that if the magistrate judge recommended a sanction under Rule 11,

the recitation of misconduct in the R& R could be incorporated by reference for

purposes of providing notice under Rule 11(c)(1)(B). Id. at 42. The magistrate

judge did issue an order to M s. Allen to show cause why an award of fees should

not be assessed against her under Rule 11(c)(1)(b), and as support, it cited to the

R&R.

       M s. Allen filed a response and a motion to dismiss the show cause order.

She contended, in part, that attorney fees could only be paid under Rule 11 by




2
       Sanctions were never recommended under § 1927.

                                          -5-
appropriate motion by opposing counsel, and could not be awarded under Rule 11

sua sponte by the court. The magistrate judge conducted an evidentiary hearing

on the show cause order. M s. Allen did not include a transcript of that hearing in

her record on appeal. Following the hearing, the magistrate judge ordered

supplem ental briefing as to whether it could impose sanctions under Rule

11(c)(1)(B), to be paid to the court, rather than attorney fees paid to defendants,

and whether the legal analysis of a sanction differed from an attorney fee award.

      Following supplemental briefing, the magistrate judge concluded that there

was some ambiguity in the case law as to whether attorneys’ fees could be sua

sponte awarded by the court under Rule 11(c)(1)(B), but that the Rule 11(c)(1)(B)

sanction could be paid to the court. It recommended a sanction of $3,000 be

imposed on M s. Allen under Rule 11(c)(1)(B), paid into the court. As support, it

first cited the district court’s prior ruling that plaintiff “fail[ed] to adduce any

evidence or competent legal theory to support her claims against Defendants,”

which the district court characterized as “a failure principally of her counsel to

engage in any serious or meaningful research to support any cause of action.”

Aplt. App. at 42, 105. Based on the testimony at the Rule 11 hearing, the

magistrate judge concluded that M s. Allen did not conduct objectively reasonable

research prior to filing suit and had not demonstrated an objective basis for the

claims presented in the case. Id. at 105. Following consideration of M s. Allen’s

objections, the district court adopted that recommendation.

                                           -6-
                                   II. ANALYSIS

       M s. Allen raises six issues on appeal: (1) she did not violate Rule 11;

(2) the court failed to follow the procedural requirements of Rule 11; (3) she was

denied procedural due process; (4) the court failed to apply the proper standard;

(5) the court failed to make findings of fact; and (6) the court exceeded its

jurisdiction. W e review each contention in turn, below, although in a slightly

different order than presented by M s. Allen.

                               A. Standard of Review

      W e review a district court’s decision to impose Rule 11 sanctions against

an attorney for abuse of discretion. Roth v. Green, 466 F.3d 1179, 1187

(10th Cir. 2006), petition for cert. filed, 75 USLW 3623 (U.S. M ay 9, 2007)

(N o. 06-1490). “H owever, any statutory interpretation or other legal analysis

which provides the basis for the award is reviewable de novo.” Corneveaux v.

CUNA M ut. Ins. Group, 76 F.3d 1498, 1508 (10th Cir. 1996) (citations and

quotation omitted).

                                      B. M erits

       A violation of Rule 11 occurs when a pleading is presented for any

improper purpose; contains claims or contentions not warranted by existing law or

by a nonfrivolous argument for extension or reversal of existing law; contains

allegations or factual contentions that lack evidentiary support; or contains

denials of factual contentions that are not warranted on the evidence. Rule

                                         -7-
11(b)(1)-(4). See also Clark v. United Parcel Serv., Inc., 460 F.3d 1004, 1008

(8th Cir. 2006), cert. denied, 127 S.Ct. 2043 (2007). Rule 11(c)(1)(B) provides

that, “[o]n its own initiative, the court may enter an order describing the specific

conduct that appears to violate [Rule 11(b)] and directing an attorney, law firm,

or party to show cause why it has not violated” the rule. A sanction imposed

under Rule 11 “may consist of, or include . . . 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 result of the violation.” Rule 11(c)(2).

                                     1. Jurisdiction

      Because it may be dispositive, we first address the jurisdictional challenge.

M s. Allen asserts that, follow ing its grant of summary judgment to defendants,

the district court had jurisdiction only over the specific issue in its referral to the

magistrate judge, which she narrowly frames as consideration of a sanction under

Rule 11 payable as attorney fees. Because the magistrate judge ultimately

recommended the Rule 11 sanction be paid into court, not as attorney fees to

defendants, M s. Allen contends the magistrate judge exceeded the scope of the

referral and, consequently, the district court lacked jurisdiction to impose the

sanction. W e can find no basis in the law to support this argument.

      The Supreme Court has consistently held that federal courts retain

jurisdiction over issues, such as sanctions, that are collateral to the merits, even

                                           -8-
after the underlying litigation has terminated. In Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384 (1990), it held:

      It is well established that a federal court may consider collateral
      issues after an action is no longer pending. . . . Like the imposition of
      costs, attorney’s fees, and contempt sanctions, the imposition of a
      Rule 11 sanction is not a judgment on the merits of an action.
      Rather, it requires the determination of a collateral issue: whether
      the attorney has abused the judicial process, and, if so, what sanction
      would be appropriate. Such a determination may be made after the
      principal suit has been terminated.


Id. at 395-96 (citations omitted). In Willy v. Coastal Corp., 503 U.S. 131, 138

(1992), the Court held that, even where a federal court lacked subject matter

jurisdiction over the underlying action, it retained jurisdiction to impose Rule 11

sanctions for abuses of the judicial process.

      M s. Allen cites no authority, nor can we find any, for her assertion that a

district court that chooses to refer a postjudgment sanction issue to a magistrate

judge for initial consideration and recommendation, somehow loses jurisdiction to

impose a sanction if the resulting recommendation was not squarely described in

the referral order. M oreover, the district court rejected M s. Allen’s argument

(albeit without discussion) that the magistrate judge’s recommendation had

exceeded the scope of its referral order. The district court’s referral order

referenced Rule 11(c), the legal basis of the magistrate judge’s recommendation

and the court’s ultimate sanction. M s. Allen suggests no substantive legal

difference under Rule 11 between a sanction paid into court and a sanction paid to

                                          -9-
defendant as attorney fees. See Rule 11(c)(2) (stating that sanction under Rule 11

may include penalty paid into court or, by motion, an order directing payment to

the movant of reasonable attorneys’ fees). In short, the referral order directed the

magistrate judge to make a recommendation as to whether M s. Allen engaged in

conduct sanctionable under Rule 11, the magistrate judge did so, and we conclude

that its recommendation that the resulting sanction should properly be paid to the

court under Rule 11(c)(1)(B), rather than to the defendants, is well within the

scope of the referral.

                                   2. Fact Finding

      M s. Allen claims that the district court failed to make factual findings. To

the contrary, the magistrate judge’s Rule 11 recommendation, adopted by the

district court, clearly made the factual finding, based on the evidentiary hearing,

that M s. Allen had not conducted an objectively reasonable inquiry into the law or

the facts of the case prior to filing suit, and had not demonstrated an objective

basis for the claims presented in the case. Aplt. A pp. at 105.

                               3. Violation of Rule 11

      M s. Allen challenges the finding that she violated Rule 11. She does not,

however, provide an adequate record on appeal to permit appellate review of this

claim. As noted, the record on appeal does not include the complaint, the




                                         -10-
summary judgment pleadings and exhibits, 3 or the transcript of the Rule 11

hearing. 4 Absent these documents, this court cannot review the district court’s

findings that M s. Allen failed to present any evidence or competent legal theory

in support of her complaint, and failed to engage in objectively reasonable

research prior to initiating the suit. See Scott v. Hern, 216 F.3d 897, 912

(10th Cir. 2000) (court must affirm when evidentiary record before appellate

court is insufficient to permit an assessment of appellant’s claim of error);

United States v. Vasquez, 985 F.2d 491, 495 (10th Cir. 1993) (holding that failure

to file transcript precludes review of evidentiary rulings or claims concerning

sufficiency of the evidence). W e therefore affirm the district court’s substantive

findings that M s. Allen’s conduct violated Rule 11.

                     4. Procedural and Due Process Challenges

      M s. Allen asserts several procedural and due process claims challenging the

sanction; we consolidate these for review. Although Rule 11(c)(1)(B) does

authorize a court to impose monetary sanctions on its own initiative, it may not

do so without first follow ing the prescribed procedure: “issuance of a show cause



3
      She does include what she asserts is plaintiff’s affidavit, but it is neither
signed nor attached to any summary judgment pleading.
4
       M s. Allen completed a transcript order form and the court reporter
complied with her obligation to complete and file the transcript with the district
court, see 10th Cir. R. 10.1(B) and (C), but M s. Allen never filed that transcript
with this court as part of her record on appeal, see 10th Cir. 10.1(A) and
30.1(A )(1).

                                         -11-
order specifically describing the conduct implicating the rule, followed by a

reasonable opportunity for the party/attorney so advised to demonstrate how she

has not violated the rule.” Hutchinson v. Pfeil, 208 F.3d 1180, 1184 (10th Cir.

2000).

         M s. Allen first contends that, because the order to show cause mentioned an

sanction paid to defendant as attorneys’ fees under Rule 11(c)(1)(B), not a

sanction paid into court, the show cause order did not satisfy Rule 11(c)(1)(B)’s

requirements and she was denied due process. W e disagree; the show cause order

provided her adequate notice under Rule 11(c)(1)(B). The order to show cause

referenced Rule 11(c)(1)(B), which was, as previously noted, the legal basis of

the magistrate judge’s recommendation and the court’s ultimate sanction. Rule

11(c)(2) states that the nature of the Rule 11 sanction may include either a

sanction paid into court or a sanction paid to the opposing party in payment of

attorneys’ fees. Although there are procedural differences, 5 we find no

substantive legal difference between a Rule 11 sanction paid into court and a Rule

11 sanction paid to the opposing party for its attorneys’ fees and costs. Because

the analysis of whether M s. Allen’s conduct was subject to sanction under the rule




5
        W e have held that “R ule 11(c)(2) prohibits a court acting on its own
initiative from ordering payment of a monetary penalty to an opposing party.”
Hutchinson, 208 F.3d at 1184 (citing cases). A court-initiated sanction may be
paid only to the court. Johnson v. Waddell & Reed, Inc., 74 F.3d 147, 152 n.3
(7th Cir. 1996).

                                          -12-
was the same, the order to show cause was entirely sufficient to enable M s. Allen

to prepare a defense. See L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 89

(2d Cir. 1998) (stating that party to be sanctioned is “entitled to notice of the

provision under which sanctions are sought, in order that he be forewarned as to

the standard under which his conduct is to be evaluated.”). Furthermore, and

most significantly, the magistrate judge gave M s. Allen full notice and

opportunity to respond to the proposed change of ordering the proposed sanction

be paid into court rather than to defendants: it notified her of the proposed

change at the Rule 11 hearing and allowed her to file a supplemental brief

addressing this precise issue before recommending a sanction. M s. Allen had still

further opportunity to defend against the sanction in her objections to the

recommendation. Thus, we find that the sanction award did not violate Rule

11(c)(1)(B)’s procedural requirements or M s. Allen’s due process rights.

      Second, M s. Allen contends the show cause order did not comply with the

requirement in Rule 11(c)(1)(B) to describe the specific conduct that appears to

violate Rule 11, and thus, violated her due process rights. W e disagree. The

district court’s referral order made clear that it was considering sanctions under

Rule 11 because M s. Allen had failed to “engage in any serious or meaningful

research to support any cause of action” before she signed and filed the

complaint. Aplt. App. at 42. It authorized the magistrate judge to issue a show

cause order incorporating by reference the wrongdoing outlined in the initial

                                          -13-
R& R. Id; see also Clark, 460 F.3d at 1008 (upholding Rule 11(c)(1) order to

show cause that incorporates the summary judgment orders detailing the court’s

objections to counsel’s conduct). The order to show cause first cited to the R&R,

though it did not use the “incorporate by reference” phrase. The R& R had

expressly recommended a sanction be imposed on M s. Allen because the “case

never had any factual or legal basis.” Aplt. App. at 20. The show cause order

further described the specific conduct said to violate Rule 11, namely, the district

court’s finding that the “claims are frivolous and groundless and should not have

been made or pursued on the facts - existing or lacking - demonstrated in the

record.” Id. at 44 (quoting district court order, id. at 42). Thus, the referral order

and order to show cause clearly informed M s. Allen that sanctions were being

considered against her on the basis that she signed the complaint in this case

without conducting a reasonable inquiry into the law and facts underlying the

pleading or motion. See Rule 11(b).

      M oreover, the record demonstrates that, in response to the Rule 11 show

cause order, M s. Allen presented a defense on precisely that ground. She argued

in her Rule 11 pleadings that she had conducted what she believed to be a

reasonable inquiry into the law and facts. And, although M s. Allen failed to

provide a transcript of the R ule 11 hearing, it is clear from the magistrate judge’s

description of the hearing that the subject of that hearing was the research and

investigation into the evidence and applicable law that M s. Allen conducted prior

                                         -14-
to signing the complaint. Thus, we conclude that the order to show cause did

inform M s. Allen of the specific conduct for which the sanctions were being

sought such that she was able to prepare a defense.

                                 5. Rule 11 Standard

      Finally, M s. Allen contends that the district court applied the incorrect

standard of review because the Rule 11 sanctions apply only to sanctionable

conduct at the time an attorney signs the pleading, motion or other paper, see

Rule 11(b), yet the initial R& R recommended sanctions under § 1988 based on

M s. Allen’s conduct throughout the litigation. This claim of error completely

ignores (1) the subsequent district court referral order, which rejected the § 1988

recommendation and cited instead M s. Allen’s “failure . . . to engage in any

serious or meaningful research” before initiating suit, Aplt. App. at 42, and (2)

the finding in the magistrate judge’s subsequent recommendation, based on the

Rule 11 hearing, that M s. Allen failed to conduct an objectively reasonable

inquiry into the law or the facts prior to signing the complaint, id. at 105.

Clearly, the magistrate judge and district court applied the correct Rule 11

standards.




                                          -15-
                 III. CONCLUSION

The judgment of the district court is AFFIRMED.


                                    Entered for the Court


                                    Robert H. Henry
                                    Circuit Judge




                         -16-
