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John Gabor and Kay Gabor v. Michael S. Frazer Santa Clara Valley Humane Society State Board of Equalization Steve Gibbons American Kennel Club, Inc., AKA Akc Franchise Tax Board Fred Berkey John Cornelius Cynthia K. Wright Paul R. Firling, Akc Maxine Patton Andrea San Phillipo Rita Perko Rick Lamps

Citations: 78 F.3d 459; 34 Fed. R. Serv. 3d 832; 96 Cal. Daily Op. Serv. 1583; 96 Daily Journal DAR 2629; 1996 U.S. App. LEXIS 3913Docket: 94-17133

Court: Court of Appeals for the Ninth Circuit; March 6, 1996; Federal Appellate Court

Narrative Opinion Summary

The Ninth Circuit Court of Appeals addressed the appeal by John and Kay Gabor, affirming the district court's dismissal of their complaint with prejudice. The court reviewed the appellants' claims and concluded they lacked merit. Subsequently, the appellees, including Andrea San Phillipo, Rita Perko, Maxine Patton, and the Santa Clara Valley Humane Society, sought attorney fees and costs, arguing that the Gabors' appeal was frivolous. However, the request for fees was made within their appellate briefs rather than through a separately filed motion, which is required by the 1994 amendment to Federal Rule of Appellate Procedure 38. This amendment stipulates that a request for sanctions must be presented in a formal motion, allowing the opposing party a reasonable opportunity to respond. Consequently, the court denied the request for attorney fees without prejudice, permitting the appellees to resubmit their request in compliance with the procedural requirements.

Legal Issues Addressed

Dismissal for Lack of Merit

Application: The appellate court affirmed the lower court's dismissal of the Gabors' complaint due to its lack of merit.

Reasoning: The Ninth Circuit Court of Appeals addressed the appeal by John and Kay Gabor, affirming the district court's dismissal of their complaint with prejudice.

Federal Rule of Appellate Procedure 38 Amendment Requirements

Application: The request for attorney fees was denied because it was made in the appellate briefs rather than through a separately filed motion as required by the amended rule.

Reasoning: However, the request for fees was made within their appellate briefs rather than through a separately filed motion, which is required by the 1994 amendment to Federal Rule of Appellate Procedure 38.

Frivolous Appeals and Attorney Fees

Application: The appellees sought attorney fees on the grounds that the Gabors' appeal was frivolous; however, the request was denied due to procedural deficiencies.

Reasoning: Subsequently, the appellees, including Andrea San Phillipo, Rita Perko, Maxine Patton, and the Santa Clara Valley Humane Society, sought attorney fees and costs, arguing that the Gabors' appeal was frivolous.

Procedural Compliance for Sanctions

Application: The appellate court allowed the appellees to resubmit their request for attorney fees in accordance with proper procedural requirements.

Reasoning: Consequently, the court denied the request for attorney fees without prejudice, permitting the appellees to resubmit their request in compliance with the procedural requirements.