Month: February 2016

District Court Declines to Reopen Case To Allow A Party To File A Rule 11 Motion

This opinion, denying a motion for Rule 11 sanctions, is unusual except that, two months after judgment, the defendant attempted to reopen the case to file a Rule 11 motion. The court declined the invitation ruling that the motion was untimely. The court’s reasoning is as follows:

Defendants served Plaintiff’s counsel with the Motion for Sanctions on June 15, 2015, and waited twenty-one days (during which Plaintiff did not take any “corrective action,” although with summary judgment granted and the case “closed,” the only “corrective action” Plaintiff could take was to pay Defendants’ claimed attorney’s fees) to file the motion, in accordance with the letter of Fed. R. Civ. P. 11(c)(2). Defs.’ Mot. to Reopen ¶ 14. Yet, more is required: “It is important that [a Rule 11] motion be `served promptly after the inappropriate paper is filed, and, if delayed too long, [it] may be viewed as untimely.'” Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 152 (4th Cir. 2002) (quoting Fed. R. Civ. P. 11 Advisory Committee’s Note (1993) (“Rule 11 Note”)). Less than two weeks before serving Plaintiff, Defendants first notified her of the perceived Rule 11 violations, “twenty-six (26) days after this Court issued its final Memorandum Opinion granting summary judgment in favor of the Ourisman Defendants.” Defs.’ Mot. to Reopen ¶ 5 (emphasis added). Defendants view this as timely, insisting that “[i]t was not until this court issued its decision on Defendants’ Motion for Summary Judgment that the full effect of Plaintiff’s conduct became evidence or that Defendants were fully aware of the extent of Plaintiff’s counsel’s inappropriate conduct.” Defs.’ Reply 2. But, Defendants should have known of the alleged unfounded factual allegations in the Complaint as early as Ms. Sterling’s deposition on March 27, 2014, or in June 2014, when she supplemented her discovery responses, or, at the very latest, September 2, 2014, when they completed and filed their summary judgment motion. Their June 2015 notification and service and July 2015 filing were unnecessarily (and unreasonably) delayed, rendering their motion untimely. SeeHunter, 281 F.3d at 152; Rule 11 Note.

In other words, its not fair to wait sixty days after the court has granted your summary judgment motion to seek sanctions.

Source: Sterling v. OURISMAN CHEVROLET OF BOWIE INC., Dist. Court, D. Maryland 2016 – Google Scholar

Appeal From Bankruptcy Court Dismissed For Lack of Diligence

Senior Judge Shadur has dismissed an appeal from bankruptcy court because the appellant and his lawyer did not diligently prosecute the appeal.

The court explained:

On December 15, 2015 appellant Ayad Nahlawi (“Nahlawi”) filed a Notice of Appeal (“Notice”) to this Court from two orders of the Bankruptcy Court: its October 27, 2015 Order granting the motion of debtors Mark and Carol Anderson (collectively “the Andersons”) for compensation relating to their motion to enforce the automatic stay provided by 11 U.S.C. § 362 (“Section 362”) and its December 1, 2015 order denying Nahlawi’s motion for reconsideration of that October 27 Order. But then, having filed the Notice, Nahlawi and his counsel totally neglected to comply with their obligation to file and serve a designation of the appellate record and of the issues on appeal — and that neglect extended to their failure to file a timely motion either seeking an extension for that purpose or providing any explanation for their noncompliance with the applicable requirements.

As for excusability vel non, this Court will accept for present purposes the assertion by Nahlawi’s counsel that he has other legal commitments (and, indeed, extensive ones). But that does not at all justify or excuse his total failure to spend the fraction of an hour that would have been needed to prepare and submit a simple and timely request for an extension of time. And as for counsel’s other “excuse” set out in Paragraphs 31 and 32 of his responsive memorandum,[1] it brought to mind Charles Dickens’ reference to Mr. Micawber:

“In case anything turned up,” which was his favorite expression.

The district court then dismissed the appeal.

In sum, when judges quote Dickens, they are usually referring to some sort of delay.

Source: NAHLAWI v. Anderson, Dist. Court, ND Illinois 2016 – Google Scholar