Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Virgil H. Langley, Henderson, NV, pro se.
Robert R. Berk, Esq., Jones Skelton & Hochuli, PLC, Richard A. Segal, Esq., Gust Rosenfeld P.L.C., Gary L. Birnbaum, Esq., Kelly W. Lewis, Esq., Mariscal Weeks McIntyre & Friedlander, PA, Albert E. Van Wagner, Jr., Van Wagnr Erharet & Hubbard LLP, Phoenix, AZ, for Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding. D.C. No. CV-00-00497-RCB.
Before: FARRIS, BOOCHEVER, and LEAVY, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Virgil Langley appeals pro se the district court's summary judgment in favor of his former attorney, Raymond Brown, Carioca Company (Carioca), and Carioca's attorney, Albert Van Wagner, in Langley's diversity action. Langley also appeals the district court's award of attorneys' fees to Carioca and Van Wagner. We have jurisdiction
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under 28 U.S.C. § 1291, and, after de novo review, we affirm the district court's grant of summary judgment in favor of Carioca, Van Wagner and Brown. We reverse the attorneys' fees awards.
The district court did not err in granting summary judgment against Langley on his claims for abuse of process brought against Carioca and Van Wagner. Langley failed to submit evidence of specific facts showing that there was a genuine issue whether Van Wagner or Carioca had "an ulterior purpose and [committed] a willful act in the use of judicial process not proper in the regular conduct of the proceeding." Giles v. Hill Lewis Marce, 195 Ariz. 358, 988 P.2d 143, 146 (1999).
The district court did not err in granting summary judgment against Langley on his claim for attorney malpractice. Langley failed to submit evidence of specific facts showing that there was a genuine issue whether Brown had committed malpractice during his representation of Langley. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The district court erred in awarding attorneys' fees under Ariz.Rev.Stat. Ann. § 12-349. Because the attorneys' fee awards were based on Langley's misconduct in the district court proceeding the district court erred "when it relied upon an Arizona statute ... if sanctions were to be imposed at all, it had to be under the policies and procedures delineated under federal law." In re: Larry's Apartment, LLC, 249 F.3d 832, 838 (9th Cir.2001). Therefore, we reverse the fee awards and remand for consideration whether fees should be awarded under federal law.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.