Rule 11 Motion Denied As Premature

The facts in D’Ottavio v. Slack Technologies, 18-cv-9082 (D. New Jersey April 15, 2019) are disputed. The plaintiff sued alleging that the Defendant’s website sent him unsolicited text messages. Defendant denied these allegations and filed a counterclaim which alleged that plaintiff deliberately caused the text messages to be sent to himself. Plaintiff denied the allegations in the counterclaim. Defendant then moved for Rule 11 sanctions arguing that the denials violated Rule 11 and were without factual basis.

Because no discovery had been taken and the facts were in dispute, the court denied the Rule 11 sanctions motion. The reasoingin:

Plaintiff’s counsel objects to Slack’s arguments. Counsel relates that on July 26, 2018, the parties participated in a Rule 16 initial conference before the Magistrate Judge, and at that conference, Slack’s counsel advised the Magistrate Judge that it wished to take a forensic examination of Plaintiff’s electronic devices to back up its claims that Plaintiff used these devices to repeatedly send himself text messages using Slack’s messaging platform. The Magistrate Judge then ordered the parties to confer as to a forensic examination protocol. The parties submitted a stipulation agreeing to the protocol which was then so-ordered by the magistrate judge on August 13, 2018. The Court then ordered that Slack was to conduct the forensic examination of Plaintiff’s computers and cell phones by no later than September 10, 2018. To date, however, counsel states that Slack has not taken a forensic examination of Plaintiff’s electronic devices.

Plaintiff’s counsel argues that Slack’s motion for sanctions must be denied because it lacks any proof that Plaintiff actually did what Slack says he did. Counsel argues that Slack is seeking sanctions against counsel and Plaintiff for filing an answer that has not been found to be false or frivolous. Counsel contends that Slack could have obtained the forensic examination it demanded, but instead when Plaintiff filed a denial to the counterclaims, Slack tried to bully Plaintiff into withdrawing his response by threatening him and his counsel with sanctions….

…

In support of its motion for sanctions, Slack takes the position that its proof as to Plaintiff’s conduct — and the conduct of Plaintiff’s counsel — is unrebutted and unrebuttable. The Court cannot credit Slack’s position at this stage in the case.

Slack has asserted counterclaims against Plaintiff alleging that Plaintiff fraudulently manufactured his TCPA claim by sending thousands of text messages to himself. Plaintiff has filed an answer to Slack’s counterclaims denying that allegation. Slack’s claims are pending, still in dispute, and they will proceed to discovery. Slack may view Plaintiff’s denials to be disingenuous and unsupported by the facts, but the procedural posture of the case precludes the Court from applying what is essentially a summary judgment standard to Slack’s motion for sanctions, which, if Slack’s position were credited, would ultimately result in a judgment in Slack’s favor prior to discovery.[5]

Consequently, the Court will deny without prejudice Slack’s motion for sanctions, reserving Slack’s right to reassert its motion at the appropriate time after discovery on its counterclaims.

In sum, the sanctions motion was premature. Should defendant prove that the answer to the counterclaim contained false denials, defendant can reassert the sanctions motion.

Edward X. Clinton, Jr.

 

Fifth Circuit Upholds Denial of Rule 11 Sanctions – despite false allegations in Complaint

The case is titled, Mr. Mudbug Incorporated v. Bloomin’ Brands, Inc., (5th Cir. 18-30626). Mr. Mudbug sued Bloomin and its claims were dismissed. The underlying dispute was a claim by Mr. Mudbug that Bloomin had breached the parties’ food supply contract. The district court dismissed the claims. Bloomin then moved for Rule 11 sanctions on the ground that some of the allegations in the complaint were false and that the lawyer who signed the complaint had not done a sufficient investigation of the matter. The district court denied the motion for sanctions and the Fifth Circuit affirmed. Its reasoning:

BBI’s Rule 11 motion was based on the theory that some factual assertions in MMI’s complaint had no evidentiary support and were wholly false. The district court did not definitively determine if MMI had violated Rule 11. Instead, it denied the motion because even if MMI had violated Rule 11, it thought that the dismissal of MMI’s claims was already sufficient to deter future misconduct. BBI now argues that dismissing frivolous claims with no evidentiary support—a result that is already accomplished on the merits—is not an adequate deterrent and therefore does not fulfill the purposes of Rule 11.

BBI’s position has some logic to it. But we cannot say that the district court abused its discretion by denying the Rule 11 motion on the grounds that dismissal was a sufficient sanction. While we have noted that dismissal is “better grounded, not on misconduct [under Rule 11], but on the merits under Rules 12, 41, 55, and 56,” we have also held in the same case that “district courts may theoretically still dismiss baseless claims or defenses as sanctions” under Rule 11. Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 878 (5th Cir. 1988) (en banc). As we have never outlawed dismissal as an appropriate sanction under Rule 11, the district court’s denial of BBI’s Rule 11 motion was not based on an erroneous view of the law and was consequently not an abuse of discretion. BBI may feel that further sanctions are justified, but the district court found otherwise. Its decision is entitled to deference.

Federal Court Sanctions Attorney For Time-Barred Lawsuit

The case is Doe v. Albuquerque Public Schools, 18 cv 85 (D. New Mexico April 3, 2019). Plaintiff claimed that she was raped by one of the defendants when she was a student. The rape claim was alleged under 42 USC Section 1983. Unfortunately for the plaintiff the her claims were time-barred and the court entered judgment for the defendants.

Because the Defendant did not comply with the Rule 11 safe harbor (giving 21 days to the other side to withdraw the pleading), the Rule 11 motion was denied.

The court, however, elected to award sections pursuant to 28 U.S.C. §1927 because it should have been clear to the lawyer for plaintiff that the claims were time-barred. The court explained its ruling in this passage of the opinion:

The Court agrees with Defendant’s counsel that Plaintiff’s counsel failed to stop, think and investigate before filing the complaint, and the Court finds that sanctions under 28 U.S.C. §1927 are appropriate in order to deter such a cavalier approach to litigation. The Court is guided in particular by the heinous nature of the alleged acts, and acknowledges the damaging effect such acts can have on victims in general.

The complaint in this case alleges horrendous acts of sexual abuse perpetrated by Defendant upon the Plaintiff which occurred approximately twenty years ago but allegedly were only discovered by Plaintiff in 2014 through therapy. While the Court is mindful of the damage that can be done to victims of sexual abuse, the Court also acknowledges that there are occasions when defendants are falsely accused in these types of cases. Under these circumstances, Plaintiff’s counsel was obliged to exercise vigilance and thoroughness before filing a complaint of this nature, but instead, counsel forged ahead without caution or care and filed a complaint on behalf of an anonymous Plaintiff accusing Defendant Beems of terrible conduct that supposedly happened many years ago but surfaced for the first time in 2018 when the complaint was filed as a public document.

In bringing these federal claims and in failing to adequately examine the claims before filing the case, counsel for Plaintiff has shown an indifference to the law that saddled the opposing party, Mr. Beems, with unproven allegations that may follow him for years. This is not to say that Plaintiff’s claims were frivolous, but they do not need to be frivolous to warrant sanctions under §1927. See Mark Ind., Ltd. v. Sea Captain’s Choice, Inc., 50 F.3d at 732. Unmindful of the possible consequences, Plaintiff’s counsel proceeded to include federal claims in the complaint without seriously examining them to see whether they were viable even on threshold timeliness issues. In doing so and in continuing to pursue these claims, Plaintiff’s counsel’s zealousness in representing his client gave way to recklessness, which in turn led to conduct that is proscribed by §1927.

Ed Clinton, Jr.

The Clinton Law Firm

Sanctions Awarded For Frivolous Counterclaim

In Patent Infringement Lawsuit, Sanctions Claims Fall Flat

The case is Dynamic Applet Technologies, LLC v. Mattress Firm, Inc. 17-cv-860 (E.D. Texas March 26, 2019).  Dynamic sued Mattress Firm for patent infringement. Mattress Firm filed counterclaims. Both sides moved for sanctions. Mattress Firm argued that Dynamic’s patent infringement claims were frivolous and brought in bad faith and merited Rule 11 sanctions. Dynamic moved for sanctions against Mattress Firm.

The Court, noting that it had not issued any dispositive rulings on any motions, denied both sanctions motions. The court found that there were non-frivolous claims of patent infringement asserted in the complaint. The explanation follows:

With respect to Defendants’ Motion for Sanctions (Dkt. 90) and Plaintiff’s Responsive Motion for Sanctions (Dkt. 96), there is nothing before the Court to indicate that sanctions under Federal Rule of Civil Procedure 11 are justified here. Rule 11 is inappropriate if there is a good faith basis to assert even a single claim of a patent. View Eng’g, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981, 986 (Fed. Cir. 2000) (“Rule 11 . . . must be interpreted to require the law firm to . . . apply the claims of each and every patent that is being brought into the lawsuit to an accused device and conclude that there is a reasonable basis for a finding of infringement of at least one claim of each patent so asserted.”). The Court finds that Plaintiff’s overall pre-suit inquiry was reasonable and its conduct does not cross the Rule 11 sanctions threshold whereby “no reasonable litigant could believe it would succeed” on the merits. Raylon, LLC v. Complus Data Innovations, Inc., 700 F.3d 1361, 1368 (Fed. Cir.2012); iLor, LLC v. Google, Inc., 631 F.3d 1372, 1378 (Fed. Cir. 2011). Applying the same standard to Plaintiff’s Responsive Motion for Sanctions (Dkt. 96), the Court finds that Defendants have likewise not violated Rule 11. The Court is not charged with determining which party’s position is correct, but rather, is charged with determining whether a motion crosses the threshold of frivolousness such that no reasonable litigant could believe it would succeed. See Raylon v. Complus Data, 700 F.3d at 1368. Accordingly, no sanctions will be awarded to either party at this time. If appropriate, the parties may refile a motion for sanctions after the Court rules on the pending dispositive motions.

In other words, one party would have to obtain dismissal of one of the other party’s claims before it could move for sanctions. The sanctions motions here may prove meritorious at a later date if the court actually finds that one of the claims is frivolous or unfounded.

Ed Clinton, Jr.

The Clinton Law Firm

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.