This is a case where the plaintiff’s counsel’s conduct in filing a sloppy complaint and then in failing to cure the deficiencies of the complaint in an amended filing earned plaintiff’s counsel an admonishment from the District Court. Notably, the court declined to sanction plaintiff’s counsel. The court explains:
Defendants argue that Plaintiff’s counsel, Mr. Kober, behaved “unreasonably and vexatiously” in responding to their pre-motion conference request. In Defendants’ initial letter, Defendants pointed out many of the pleading deficiencies in the initial complaint. Plaintiff then sought this Court’s leave to file an amended complaint, which this Court granted. February 16, 2016 Order [Dkt. No. 14]. At that time, the Court remarked that permitting amendment was the proper course “particularly. . . given the woefully deficient allegations contained in the Complaint at this juncture.” Id. Plaintiff filed an Amended Complaint, which, as the above analysis makes clear, failed to meaningfully address many of the basic pleading deficiencies Defendants have identified. Defendants were then forced to bring the instant motion, in response to which Plaintiff finally conceded that several of the claims lacked any merit.
The Court is certainly troubled by the above conduct. A neutral reading of the filings in this case shows that the Amended Complaint, for whatever reason, contained claims which had no clear basis in law, even after that fact was pointed out to him. Further, counsel’s labored explanation that he only felt obligated to amend certain issues in his complaint, while saving any legal research into other potentially faulty claims for a later motion to dismiss undermines the obligation of lawyers to have a good faith belief in their claims prior to bringing them.
Nevertheless, at this stage, the Court declines to issue monetary sanctions under 28 U.S.C. § 1927 or Federal Rule of Civil Procedure 11. Counsel’s explanation of his thought process in proceeding as he did, disturbing as it is, assuages the Court that he did not, at the least, act in bad faith or with a vexatious motive of multiplying the proceedings. The Court does take this opportunity to formally admonish him for the above-described conduct in this case. Mr. Kober’s inability to adequately research the claims prior to asserting them in the Amended Complaint unquestionably caused Defendants the burden of having to oppose those claims with a formal motion. It also caused this Court to expend judicial resources in the administration of claims that, after several attempts by the Defendants and the Court to sift through them, even Mr. Kober now concedes lack merit. The Court hopes that this admonishment is a sufficient sanction under Rule 11 at this stage, and counsel will be guided accordingly in future filings.
In sum, plaintiff’s counsel can thank the district court for its mercy.
Source: Sapp v. PREMIER EDUCATION GROUP, LP, Dist. Court, D. New Jersey 2016 – Google Scholar
Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F. 3d 1211 – Court of Appeals, 11th Circuit 2012 – Google Scholar.
This is a case under the Fair Debt Collection Practices Act. The lawyers represented a lender and sent a letter to the plaintiffs seeking to collect a debt and threatening to file a foreclosure action if the debt was not paid.
Plaintiffs sued alleging that the lawyers’ letter was deceptive and misleading in that it misstated some provisions of Georgia law. The lawyers moved to dismiss on the ground that they were not debt collectors.
The district court agreed, but the Court of Appeals held that the lawyers were debt collectors. Because the law firm regularly collected debts, it qualified as a debt collector under the statute and could be held liable.
“So a party can qualify as a “debt collector” either by using an “instrumentality of interstate commerce or the mails” in operating a business that has the principal purpose of collecting debts or by “regularly” attempting to collect debts.
The complaint contains enough factual content to allow a reasonable inference that the Ellis law firm is a “debt collector” because it regularly attempts to collect debts. The complaint alleges that the law firm is “engaged in the business of collecting debts owed to others incurred for personal, family[,] or household purposes.” It also alleges that in the year before the complaint was filed the firm had sent to more than 500 people “dunning notice[s]” containing “the same or substantially similar language” to that found in the letter and documents attached to the complaint in this case. That’s enough to constitute regular debt collection within the meaning of § 1692a(6).”
Comment: this case is not novel or unique. The lawyers here appeared to make a few minor errors in attempting to collect a valid debt, only to find they were on the wrong end of a FDCPA lawsuit.
Webb v. MORELLA, Court of Appeals, 5th Circuit 2012 – Google Scholar.
The plaintiffs filed a civil rights lawsuit against their lawyer, who was also apparently a government official. The defendant, Morella, moved to dismiss and filed a motion for Rule 11 sanctions. Plaintiffs failed to timely respond. The district court granted the motion to dismiss and granted the sanctions motion. The Fifth Circuit held that the dismissal sanction was too harsh because lesser sanctions were not considered. The delay by plaintiffs was “short,” only six weeks and the case had been pending for only three months.
Edward X. Clinton, Jr.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 – Supreme Court 2007 – Google Scholar.
This is the first in a series of two extremely important cases discussing the standards necessary to adequately plead a claim for relief under Federal Rule of Civil Procedure 8(a)(2) which requires “a short and plain statement of the claim showing that the pleader is entitled to relief and the grounds upon which it rests.”
In the Bell Atlantic case, the plaintiff sued under Section 1 of the Sherman Act, which prohibits any agreement in restraint of trade such as a price-fixing agreement.
The Supreme Court’s holding is important: “In applying these general standards to a § 1 claim, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and “that a recovery is very remote and unlikely.”
Comment: this is the first in a line of two Supreme Court decisions setting forth new and slightly more onerous pleading requirements for plaintiffs. Under Bell Atlantic, the plaintiff must include more detail in the complaint – enough to set forth a plausible claim for relief.
Weddle v. BAYER AG CORPORATION, Dist. Court, SD California 2012 – Google Scholar.
This is a decision of a district court in Southern California. The court holds that the heightened pleading standards set forth in Bell Atlantic Corporation v. Twombly, 550 U.S. 554 (2007) do not apply to affirmative defenses.
An affirmative defense is a defense raised in the answer of a defendant. The defendant first answers (denies or admits) the allegations in the complaint. Then the defendant may add affirmative defenses that defeat plaintiff’s claim. A classic affirmative defense is that the statute of limitations has expired. Thus, even if what plaintiff said in his complaint was true, plaintiff would still lose because he filed his case after the deadline ran.
The court noted that Rule 8(c), which governs affirmative defenses, requires only the the defendant “affirmatively state” any affirmative defense. In the court’s view, the purpose of an affirmative defense is to place the plaintiff on notice of the defense. It is not designed to lay out the defendant’s position in detail.
Comment: there will certainly be more discussions of this issue in the future. I will try to flag these issues and discuss them in this blog.
Edward X. Clinton, Jr.