No Sanctions Where Party is Two Days Late Producing Documents


Can you get Rule 37 sanctions when your opponent is two days late producing documents? Here, thankfully, the court answered “No.”

The case is captioned Tencero v. Oceaneering International, (E.D. Louisiana) (17-7438) (March 19, 2019). In the opinion, the district court denies a motion for Rule 37 sanctions. Plaintiff filed a personal injury case against the Defendant. He sought the production of documents. The defendant produced the documents two days late which forced the Plaintiff to review 1400 pages on the night before a deposition. To me, this does not sound like much of an outrage at all, and certainly not a motion for sanctions. However, the court took it seriously, but denied the motion.

There is no dispute that Oceaneering failed to comply with the court’s discovery order. The court finds that Oceaneering’s delay prejudiced Tercero, who was forced to review 1,400 new pages of documents on the day before the Walsh deposition when he should have had four days to do so. Oceaneering describes a misunderstanding as the reason for its delay, but this does not entirely excuse its failure to timely comply with the court’s order, especially in light of the Walsh deposition scheduled on February 27, 2019. While Oceaneering did ultimately comply, at the time plaintiff filed this motion, Oceaneering merely “hoped” to have the documents by February 26, 2019. The motion may have been necessary to ensure that Oceaneering’s document production was actually made on that date and not on the day of or following the Walsh deposition.

Nonetheless, the court finds no evidence of willfulness in Oceaneering’s delayed production of documents. Additionally, although Tercero’s counsel represents that he had a lot of work to do the day before the deposition, he has not identified any specific documents that he was unable to identify from the mass of 1,400 pages until after the deposition. At this time, then, it does not appear necessary to order a second deposition of Walsh. The court notes that the borrowed servant issue was being developed at this late date, and on an expedited basis, as a result of plaintiff’s actions, not Oceaneering’s. Accordingly, the severe sanctions proposed by Tercero (prohibiting Oceaneering’s witnesses from testifying or deeming Tercero the borrowed servant of Oceaneering) are not appropriate here.

FDCPA Claim Fails – But Rule 11 Sanctions Denied


In a recent decision, Duarte v. Midland Funding, LLC, 17 C 5061, Judge Ellis of the Northern District of Illinois dismissed an FDCPA (Fair Debt Collection Practices Act) case against Midland Funding. Midland sought sanctions, which were also denied.

The FDCPA claim was dismissed on the ground that Midland did not send a communication in connection with the collection of a debt. Midland wrote to Duarte, but after she disputed the debt, Midland ceased writing to her. The court concluded that the final letter from Midland was not an attempt to collect a debt and the court then granted summary judgment for Midland.

Midland’s sanctions motion was also denied. The court explained:

Specifically, MF and MCM argue that Duarte and her attorneys violated Rule 11(b)(1) and (b)(2). Rule 11(b)(1) requires counsel to determine that the case “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” Fed. R. Civ. P. 11(b)(1). Rule 11(b)(2) requires counsel to certify that the claims “are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law.” Fed. R. Civ. P. 11(b)(2).

“An attorney takes a frivolous position if he fails to make a reasonable inquiry into facts. . . or takes a position unwarranted by existing law or a good faith argument for its modification.” Rush v. McDonald’s Corp., 966 F.2d 1104, 1122 n.67 (7th Cir. 1992) (citation omitted). Although the Court has found that no reasonable trier of fact could find for Duarte on her FDCPA claim and that Duarte has abandoned her ICAA claim, the Court does not find sanctions under Rule 11(b)(2) appropriate in this case. See Cartwright v. Cooney, 788 F. Supp. 2d 744, 755 (N.D. Ill. 2011) (“[E]ven when a court has ruled that a party has been `wrong on the law,’ sanctions against that party do not flow inevitably.”). The merits of Duarte’s FDCPA claim are not as clear cut as MF and MCM would lead the Court to believe. See Zelner v. ATG Credit, LLC, No. 17 C 8007, 2019 WL 556737 (N.D. Ill. Feb. 12, 2019) (in a case involving the same plaintiff’s counsel, refusing to impose sanctions after granting summary judgment to the defendant because the Court could not conclude plaintiff’s claim was frivolous). Duarte’s counsel had a reasonable basis for bringing and continuing to pursue the FDCPA claim, with certain issues surrounding that claim apparently undecided or subject to conflicting interpretations by courts across the country. And, although Duarte appears to acknowledge she has no viable ICAA claim by failing to respond to MF and MCM’s arguments on the merits of that claim, as noted above with respect to the ICAA claim, courts in this district have disagreed as to whether the ICAA provides a private right of action.

The Court also does not find sanctions appropriate under Rule 11(b)(1). MF and MCM claim Duarte and her counsel filed this case for an improper purpose and to harass MF and MCM. “Improper purpose means something other than [the] mere assertion of frivolous or unfounded legal arguments or contentions.” Logan v. Serv. Emps. Int’l Union Local 73, No. 14-CV-10256, 2016 WL 5807932, at *2 (N.D. Ill. Oct. 5, 2016) (alteration in original) (citation omitted) (internal quotation marks omitted). MF and MCM argue that Duarte’s counsel engineered this lawsuit by drafting a letter, or having Duarte draft a letter, that placed MCM in an impossible situation, potentially liable for an FDCPA violation regardless of what actions it took in response. The Court is aware of Duarte’s counsel filing numerous suits against MF, MCM, and other debt collectors based on various alleged FDCPA violations, including based on responses to letters similar to that Duarte sent. In one similar case, the court sanctioned counsel for, among other things, engaging “in a scheme to force settlements from debt collectors by abusing the FDCPA.” Tejero v. Portfolio Recovery Assocs. LLC, No. AU-16-CV-767-SS, 2018 WL 1612856, at *4 (W.D. Tex. Apr. 2, 2018). Although the conduct described in Tejero provides cause for concern, the Court cannot on this record conclude that Duarte filed her case solely to force a settlement or harass MF and MCM. An animating purpose behind the suit may have been to obtain damages and attorneys’ fees, but “it is not improper to file a non-frivolous claim in the hope of getting paid.” Vollmer v. Selden, 350 F.3d 656, 660 (7th Cir. 2003). Otherwise, sanctions would be appropriate in every case raising a claim that allows for recovery of attorneys’ fees. The Court does not condone the actions of Duarte and her counsel, and it expects counsel to be more judicious in its pursuit of new FDCPA claims in the future. But it does not find sanctions under Rule 11(b)(1) appropriate here. See Edwards v. Equifax Info. Servs., LLC, No. 1:17-cv-03096-RLM-MPB, 2018 WL 1748132, at *5 (S.D. Ind. Mar. 13, 2018) (declining to impose sanctions under § 1927 for bad faith litigation but noting that “the Court is not unsympathetic to the challenges BHC’s litigation strategy has presented to Experian in fairly and efficiently defending allegations raised against it” and that “[c]ontinued use of these tactics by BHC against Experian may very well result in a different conclusion in the future”), report and recommendation adopted, 2018 WL 1745965 (S.D. Ind. Apr. 11, 2018).

Safe Harbor Defeats Sanctions Motion


This is a district court case, Saffold v. EL Hollingsworth & Co., E.D. Michigan February 19, 2019. The court denied the plaintiff’s motion for Rule 11 sanctions because she did not comply with the safe harbor provision.

First, Plaintiff’s motion for sanctions must be denied because she did not serve Defendant with a copy of her motion 21-days prior to its filing as required under the mandatory safe-harbor provision of Rule 11(c)(2) which provides:

A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.Fed. R. Civ. P. 11(c)(2). See Penn, LLC v. Prosper Bus. Dev. Corp., 773 F.3d 764, 766-67 (6th Cir. 2014) (“[f]ailure to comply with the safe-harbor provision precludes imposing sanctions on the party’s motion”). Plaintiff sent Defendant two draft versions of her motion, but never served the actual motion she eventually filed with the court. Also, the draft motions she provided did not include any of the sixteen exhibits she filed with the court. Having failed to comply with the strictures of Rule 11(c)(2), Plaintiff’s motion for sanctions must be denied.

The court also found no substantive violation of Rule 11.

The case is Saffold v. E.L. Hollingsworth, 17-cv-14008, E. D. Michigan February 19, 2019.

Ed Clinton, Jr.

See Also

Procedural Default Defeats Sanctions Motion

Maybe On Second Thought Don’t Remove That Case To Federal Court


Anyone who has practiced litigation law for more than ten years will run into this situation. Your client has been sued in state court. After your first court appearance, you get a bad feeling that things are not going to go well in that case. You get a great idea – “Hey we can remove this case to federal court!” There are a few pitfalls with that great idea and the case captioned Jackson County Bank v. Mathew R. DuSablon, (7th Circuit. 2/6/19) could be a refresher course in bad removal.

The Jackson County Bank sued its former employee, DuSablon, in Indiana state court. After his motion to dismiss was denied, DuSablon tried to remove the case to federal court.

The way removal works is that you file a petition to remove the case. If the federal judge believes that there is jurisdiction, you are ok. If she decides there is no jurisdiction, you can end up paying the legal fees of your opponent.

In the DuSablon case, the district judge remanded the case to state court for want of jurisdiction and untimely removal and ordered DuSablon to pay costs and fees for wrongful removal. In this case, the bill amounted to $9,035.61 under 28 U.S.C. §1447(c).

DuSablon then appealed to the Seventh Circuit. Unfortunately for him, remand orders cannot be appealed. The court did hear the appeal of the sanctions award.  Because there were only state law claims raised in the case, there was no basis to remove the case. There was “no federal question.” Removal was untimely as well. The district judge viewed the removal petition as a litigation stunt to delay the resolution of the state case.

The Seventh Circuit held that “the district court did not abuse its discretion in determining that DuSable lacked an objectively reasonable basis to remove the case to federal court.” Alas, the court also allowed the Bank to file a fee petition for its fees on appeal.

In conclusion, “Ouch.”

Ed Clinton, Jr.

The Clinton Law Firm, LLC

Two Claims Dismissed But District Court Denies Rule 11 Sanctions Motion


The case is a patent case. The defendant successfully moved to dismiss two of the counts of the complaint and then sought sanctions on those two counts on the ground that the allegations were frivolous. The district court was unimpressed with the sanctions motion and denied it.

Aardvark also contends that the ‘823 and ‘675 patents are invalid, and that Bobcar’s assertion of infringement claims as to these patents was frivolous. (Dkt. No. 67 at 12-16; Dkt. No. 80 at 2-6.) As to these two patents, there is a stronger case that there is no reasonable basis for Bobcar’s assertion of validity. However, the Court need not ultimately decide whether these patents are invalid for anticipation, or whether Bobcar’s claims for their infringement violated Rule 11, because in any event, the Court would deny sanctions. See Perez, 373 F.3d at 326(affirming district court that had declined “to decide definitively whether there had been a [Rule 11] violation because even if there had been, the court would exercise its discretion to deny sanctions”).

Looking to the relevant factors, the Court determines that the “extreme measure” of Rule 11 sanctions is not warranted here. Fleming v. Hymes-Esposito, No. 12 Civ. 1154, 2013 WL 1285431, at *11 (S.D.N.Y. Mar. 29, 2013).[4] Bobcar’s claims of infringement as to the two design patents at issue—’823 and ‘675—constituted only one third of its patent infringement claims, and did not implicate the Second Amended Complaint’s Lanham Act and unfair competition counts. (See SAC ¶¶ 96-97, 106-131.) Any impropriety in the assertion of the challenged claims thus did not “infect[] the entire pleading.” Cont’l Cas. Co., 2017 WL 1901969, at *7 (quoting Ho Myung Moolsan Co., 665 F. Supp. 2d at 265).

Furthermore, the assertion of infringement as to two relatively simple design patents could not have independently added great time and expense to a litigation involving a third, more involved design patent (‘353), three utility patents, and trade dress and unfair competition claims. See id. (listing the “effect [a Rule 11(b) violation] had on the litigation process in time or expense” as a relevant factor (quoting Ho Myung Moolsan Co., 665 F. Supp. 2d at 265)). And indeed, the fact that Bobcar’s arguments in favor of the validity of one of the three challenged design patents were not frivolous “militates strongly against imposing sanctions” here. Fleming, 2013 WL 1285431, at *11.

“[I]t is well settled that the imposition of sanctions is reserved for `extreme cases.'” Tantaros, 2018 WL 1662779, at *3 (quoting Sorenson v. Wolfson, 170 F. Supp. 3d 622, 626 (S.D.N.Y. 2016)). The Court concludes that this action is not such an “extreme case.”

Comment: the case stands for the proposition that to obtain sanctions you have to show some rather serious conduct. The fact that one count in a complaint was weak is not enough for a sanctions motion.

Bobcar Media, LLC. v. Aardvark Event Logistics, Inc., 16-cv-885 (S.D.N.Y.) February 4, 2019.

Bobcar Media v. Aardvark

Ed Clinton, Jr.

Nonsense Argument Draws Rule To Show Cause Why Attorney Should Not Be Sanctioned.


In a lawsuit involving the death of a detainee in federal custody, the plaintiff claimed that the Defendant, a health care company, violated a provision of the West Virginia Constitution. The problem was that the provision relates to state education, not health care.  The court ordered plaintiff’s counsel to show cause why he should not be sanctioned for alleging this nonsense argument in a medical care tort lawsuit.

As recently discussed by this court—in this case—in a published opinion— Article XII, Section 1 of the West Virginia Constitution reads as follows:

“The Legislature shall provide, by general law, for a thorough and efficient system of free schools.”

W. Va. Const. Art. XII, § 1. Remarkably, the plaintiff alleged a violation of this constitutional provision for a second time in the Amended Complaint. “To assert that this constitutional provision applies to disputed medical treatment and the death of a federal detainee is [still] nonsense.” Knouse, 333 F. Supp. 3d at 592.

“By presenting to the court a pleading . . . —whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b). “On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b). Fed. R. Civ. P. 11(c)(3). Consequently, the court ORDERS the plaintiff’s counsel who signed the Amended Complaint to show cause as to why pleading violations of Article XII, Section 1 of the West Virginia Constitution, in two separate pleadings in this litigation, does not violate Rule 11(b).

Knouse v. Primecare Medical of West Virginia 18 cv 1014 (S.D. West Virginia) (January 17, 2019.

Non-compliant Plaintiff Narrowly Escapes Dismissal But Is Sanctioned


The case is Macklin v. Charles Schwab No. DKC 16-3923 (D. Maryland) (January 8, 2019). The plaintiff in the case did not comply with discovery, but did make efforts to remedy the noncompliance when Schwab moved for Rule 37 sanctions. The Court elected not to dismiss the case, but to bar plaintiff from using any late-produced evidence.  The explanation:

Plaintiff acted in bad faith by repeatedly failing to comply with the court’s Orders to provide complete discovery responses. The court’s May 22, 2018 Memorandum Opinion provided Plaintiff with a detailed list of the discovery requests that remained outstanding at that time, and directed Plaintiff to “provide full and complete responses to all the interrogatories and the request for production . . . in a signed writing under oath.” (ECF No. 24, at 6). In response, Plaintiff failed to comply with the court’s orders and provided only a meager amount of additional information that hardly qualified as a full and complete response to the outstanding discovery requests. However, it is unlikely that Defendant is substantially prejudiced by Plaintiff’s lack of compliance. While insufficient, Plaintiff’s responses provide Defendant with enough information to begin building a defense. As for the need to deter future noncompliance, it is evident that Plaintiff requires such deterrence based on her continued defiance of the court’s Orders. Lastly, as explained in further detail below, dismissal is not the only sanction that would effectively deter Plaintiff’s potential future noncompliance.

Based on the four factors, sanctions are warranted but dismissal is not the appropriate sanction at this time. The sanction of dismissal is to be used sparingly, and is usually called upon in cases where a party is unresponsive or largely absent. See Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (“[O]nly the most flagrant case, where the party’s noncompliance represents bad faith and callous disregard for the authority of the district court and the Rules, will result in the extreme sanction of dismissal or judgment by default.”); Roman v. ESB, Inc., 550 F.2d 1343, 1349 (4th Cir. 1976) (finding dismissal sanction appropriate where plaintiffs “had failed to respond to interrogatories; failed to respond to an order entered by the district court requiring a response to the interrogatories; and additionally failed to respond upon specific request after the court had denied, without prejudice, a first motion to dismiss”); Malry v. Montgomery Cty. Pub. Sch., No. 11-CV-00361-AW, 2013 WL 812020, at *2 (D.Md. Mar. 3, 2013) (dismissing pro se plaintiff’s employment discrimination complaint pursuant to Rule 37(d) where he failed to respond to interrogatories, produce requested documents, or attend a properly noticed deposition). Given Plaintiff’s pro se status, her correspondence and attachments are construed as an attempt to satisfy the court’s August 21, 2018 Order.[3] Although Plaintiff’s discovery responses remain incomplete, Plaintiff supplemented her prior discovery responses by providing Defendant with further information via e-mail on September 10, 2018. (ECF No. 32-1, at 2). Finally, Plaintiff also provided Defendant with her availability in an attempt to schedule a deposition (id.), but Defendant failed to clarify a preferred deposition date and time in its reply email (ECF No. 32-2, at 2). Because dismissal is reserved for more egregious cases of noncompliance, it is not a suitable sanction at this time in light of Plaintiff’s attempts to comply. Additionally, as directed in the foregoing Order, the parties are instructed to schedule and complete Plaintiff’s deposition.

Although Plaintiff’s attempts to comply shield her case from dismissal, they do not shelter her from the alternative sanctions permitted under Rule 37(b)(2)(A). Specifically applicable here is Rule 37(b)(2)(A)(ii), which provides the court discretion to “prohibit[] the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” In the event that Plaintiff’s case proceeds to an adjudication on the merits, according to Rule 37(b)(2)(A)(ii), Plaintiff will be barred from introducing evidence that was not already provided to Defendant through initial disclosures or discovery. This sanction more appropriately addresses any potential prejudice to Defendant by limiting Plaintiff’s ability to bolster her claims with additional dilatory evidence in the same way Defendant has been limited by her scant discovery responses.

The court also rejected arguments that the case should be dismissed under Rule 41(b) which allows the court to dismiss an action for noncompliance with court orders or the failure to prosecute the claim.

The Clinton Law Firm, LLC