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noting that, for safe harbor compliance purposes, "it probably would have been preferable for defendants' counsel to simply withdraw the Rule 11 motion entirely and refile it after the safe harbor period had run."
Summary of this case from In re MillerOpinion
Civil Action No: 99-3742, C/W 99-2694 SECTION: "J"(5)
December 21, 2000
ORDER AND REASONS
Before the Court is the Motion for Sanctions under Rule 11(c) (Rec. Doc. 35), filed by defendants Harry F. Connick, Timothy J. McElroy, Camille G. Buras, Brad Naccari, and Melanie Talia (the D.A. defendants). Plaintiff opposes the motion. The Court heard oral argument on the motion on December 1, 2000, after which it took the matter under advisement. Now, having considered the record, the applicable law, and the memoranda and arguments of counsel, the Court finds that sanctions pursuant to Federal Rule of Civil Procedure 11 are warranted.
BACKGROUND
In its motion for sanctions, the D.A. defendants argue that plaintiff's counsel violated Rule 11 by filing a complaint against it that had no basis in law; namely, plaintiff sued the District Attorney and assistant district attorneys for their actions which were part of their prosecutorial functions, notwithstanding the longstanding state and federal jurisprudence sheltering such acts through an absolute prosecutorial immunity. The D.A. defendants have also filed copies of letters to plaintiff's counsel, sent early on in the litigation, in which counsel for the defendants pointed out this jurisprudence and requested that the claims be dropped as to the D.A. defendants. The Court also observes that on October 19, 2000, it dismissed plaintiff's state and federal claims against all of the District Attorney defendants. With respect to District Attorney Harry Connick and Assistant District Attorney Melanie Talia, the Court found that "plaintiff had not alleged any facts suggesting that their roles were anything but prosecutorial. Harry Connick's role was supervisory, and Melanie Talia merely reviewed the file and determined that extradition was appropriate." Order Reasons of 10/19/00, 10.
Rule 11(b) provides as follows: Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, —
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief . . .
Rec. Doc. 37, Exh. A, Letter of June 7, 1999; Exh. B, Letter of April 5, 2000.
At oral argument, plaintiff's counsel essentially conceded that he had performed limited legal research, and no factual research, into the basis of his claims. Instead, he argued that sanctions should be denied because counsel for the D.A. defendants had violated Rule 11(c)(1)(a) by filing the motion before a period of 21 days had elapsed from service on plaintiff's counsel.
In fact, the record reflects that the motion for sanctions was simultaneously served on opposing counsel and filed on August 22, 2000, and set for hearing on September 13, 2000. However, upon realizing that the filing violated Rule 11, counsel for the defendants filed a motion to continue the hearing on the motion for sanctions for at least 21 days, stating explicitly therein that the extension was sought to conform with the requirements of Rule 11(c)(1)(A), and provide a safe harbor period during which plaintiff's counsel could withdraw the challenged claim. Rec. Doc. 43.
DISCUSSION
The 21-Day Harbor Provision of Rule 11(c)(1)(A) .
The threshold question at issue in connection with the D.A. defendants' Motion for Rule 11 Sanctions is whether it should be denied on procedural grounds for failure to comply with the provisions of Rule 11(c)(1)(A).
Rule 11(c)(1)(A) provides in pertinent part:
A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct 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, within 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 appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
The purpose of 21-day period, which was provided for in the 1992 amendments to the Rule, is elucidated in the Advisory Committee Notes:
These provisions are intended to provide a type of "safe harbor" against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party's motion unless, after receiving the motion, it refused to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation. Under the former rule, parties were sometimes reluctant to abandon a questionable contention lest that be viewed as evidence of a violation of Rule 11; under the revision, the timely withdrawal of a contention will protect a party against a motion for sanctions.
Fed.R.Civ.P. 11; Adv. Comm. Notes, 1993 Amendments.
Circuit-level case law interpreting the provisions of Rule 11(c)(1)(A) reflects a strict approach to the 21-day safe harbor requirement. See, Elliot v. Tilton, 64 F.3d 213 (5th Cir. 1995); Hadges v. Yonkers Racing Corp., 48 F.3d 1320 (2d Cir. 1995); Barber v. Miller, 146 F.3d 707 (9th Cir. 1998). However, this Court can locate no case law presenting the precise issue raised in our case — whether movant's attempt to cure the defect of prematurely filing a Rule 11 motion by continuing the motion for at least 21 days after it was first served on the plaintiff's counsel satisfies the requirements of Rule 11.
Upon consideration of the case law located and the Advisory Committee Notes, as well as the facts of this case, the Court finds that because the continuance achieved the goal of the 21-day safe harbor provision, defendants' counsel substantially complied with the rule, and his motion is not barred by the provisions of Rule 11(c)(1)(A).
The record reflects that on September 6, 2000, counsel for the defendants moved to continue the motion on sanctions to allow the 21-day safe harbor period. A continuance was granted, and the motion was re-set for October 11, 2000. This resulted in plaintiff receiving 41 days to withdraw the Complaint against any defendants clearly cloaked in prosecutorial immunity, before the motion for sanctions would be considered. While it probably would have been preferable for defendants' counsel to simply withdraw the Rule 11 motion entirely and ref ile it after the safe harbor period had run, the Court finds that because plaintiff ultimately received well over 21 days to consider whether to withdraw the complaint, defendants substantially complied with 11(c)(1)(A) and that provision does not bar the motion.
Based on the assumption that plaintiff's counsel received the motion three days following its mailing on August 22, 2000. Moreover, the Court did not issue its ruling on the Motion to Dimiss until October 17, 2000, giving plaintiff an additional six days to withdraw any pleadings violative of Rule 11.
The only possible consideration the Court can conceive of which would suggest the opposite result, is the argument (which plaintiff has not made) that the premature filing of a Rule 11 motion constitutes a per se bar to its consideration, because filing the motion may have the effect of unfairly and unnecessarily tainting the Court's view of the pleadings or the counsel against whom the motion is directed, if the pleading is subsequently withdrawn. Such an argument is inapposite in this case for several reasons. First, the Advisory Committee Notes do not indicate this as a rationale for the rule, emphasizing only the need for a safe harbor period, which plaintiff received here. Second, in this case, plaintiff did not ultimately withdraw the offending pleading. Third, prior to the filing of the Motion for Sanctions, and even prior to the filing of the D.A. defendants Motion to Dismiss, the Court had put plaintiff's counsel on notice of serious defects in the factual allegations of the complaint, and required him to replead with greater specificity. Order of 8/9/00, Rec. Doc. 33. Accordingly, the Court considers the merits of the Rule 11 motion.
Sanctionable Behavior by Plaintiff's Counsel .
Because counsel for plaintiff conceded in oral argument to the cursoriness of his legal investigation, and the absence of a factual investigation, the Court pauses here briefly to comply with Rule 11(c)(3), to note that in fact, plaintiff sued Harry Connick and Melanie Talia not once, but twice, for actions that were clearly prosecutorial. He persisted in maintaining the cause of action against them after dismissal in Virginia, and after having been advised by counsel for the D.A. defendants of the status of the applicable law on prosecutorial immunity. The claims against Connick and Talia were subsequently dismissed based upon a straightforward application of prosecutorial immunity, relying on United States and Louisiana Supreme Court precedent. Accordingly, the Court finds that by presenting to the court a pleading that was not based upon "an inquiry reasonable under the circumstances," containing "claims . . . [not] warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law," see, Fed.R.Civ.P. 11(b), and further considering that plaintiff's sole argument in opposition to the motion was that defendant filed it prematurely, the Court finds that defendants are entitled to an award of the reasonable fees and costs incurred in defending the claim with respect to Harry Connick and Melanie Talia only. Accordingly;
Federal Rule 11(c)(2) provides in pertinent part:
Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, 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. Emphasis added.
While all of the other D.A. defendants were dismissed, they were not dismissed on the basis of prosecutorial immunity, the ground for dismissal cited in the defendants motion for Sanctions and in the letters of defense counsel to plaintiff's counsel informing him of their prosecutorial immunity defense and legal basis therefor.
IT IS ORDERED that defendants Harry Connick and Melanie Talia's Motion for Sanctions under Rule 11 (Rec. Doc. 35) should be and is hereby GRANTED; IT IS FURTHER ORDERED that counsel for the D.A. defendants shall file a statement of fees and costs incurred in defending the claims against Connick and Talia within 30 days of the entry of this order;
IT IS FURTHER ORDERED that counsel for plaintiff shall file any traverse to defendants' fee statement not later than fifteen days following the filing of the fee