Andrew Shirvell v. Deborah Gordon

Filing

OPINION filed: For the above reasons, we AFFIRM the imposition of Rule 11 sanctions. We also find that Shirvell s appeal is frivolous, but that Rule 38 sanctions are not necessary. We therefore DENY Gordon s motion for Rule 38 sanctions. Decision not for publication. Alan E. Norris, Karen Nelson Moore, and Julia Smith Gibbons (AUTHORING), Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
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FILED

No. 13-2366

Feb 02, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANDREW L. SHIRVELL
Plaintiff-Appellant,
v.
DEBORAH L. GORDON
Defendant-Appellee.

BEFORE:

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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

NORRIS, MOORE, and GIBBONS, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Andrew Shirvell brought suit against Deborah
Gordon, a lawyer who had represented a client in a recent action against Shirvell. The district
court dismissed the action and imposed non-monetary sanctions against Shirvell under Rule 11
of the Federal Rules of Civil Procedure. Shirvell does not appeal the dismissal of his claims. He
only challenges the sanctions award. After Shirvell filed this appeal, Gordon moved for further
sanctions under Rule 38 of the Federal Rules of Appellate Procedure, arguing that the appeal is
frivolous. We affirm the imposition of Rule 11 sanctions. We also find that this appeal is
frivolous, but in the exercise of our discretion, we decline the opportunity to impose further
sanctions under Rule 38.

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I.
In 2010, Andrew Shirvell became upset that the students at the University of Michigan—
his alma mater—had elected Christopher Armstrong, an openly gay college junior, as student
council president. Shirvell, then working as an Assistant Attorney General for the State of
Michigan, began posting negative commentary about Armstrong on a Facebook “fan page.”
After Facebook removed that page, Shirvell created the “Chris Armstrong Watch” blog. Though
presented as a “watch” site containing legitimate political discourse, the blog contained many
extreme claims about Armstrong, his private life, and his alleged involvement in various criminal
activities.

Shirvell soon started appearing at the University campus, “protesting” outside

Armstrong’s house, following Armstrong around campus, approaching his friends, and calling
his employer. In addition to his ongoing blog posts, Shirvell appeared on several local and
national television shows—including conducting an interview with CNN’s Anderson Cooper, to
discuss his campaign against Armstrong.
After unsuccessful attempts by Armstrong and the University to halt Shirvell’s course of
conduct, Armstrong sued Shirvell. Deborah Gordon represented Armstrong in that action. In
August 2012, a federal jury found in Armstrong’s favor on claims of defamation, false light
invasion of privacy, intentional infliction of emotional distress, and stalking. The jury awarded
Armstrong a total of $4.5 million in actual and exemplary damages. In a separate opinion,
Armstrong v. Shirvell (No. 13-2368), we affirmed the district court in part but reversed a portion
of the damages award.
During the course of Shirvell’s campaign against Armstrong, Shirvell’s employer—the
Michigan Attorney General’s office—gradually became aware of his behavior and conducted an
internal investigation. Following a disciplinary hearing in November 2010, the office concluded

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that Shirvell had engaged in “conduct unbecoming a state employee” and terminated Shirvell’s
employment. In reaching this decision, the office considered Shirvell’s disciplinary history
during his four years of employment, including his suspension and written reprimand in August
2010 for an outburst against a co-worker, and his 2009 conviction for driving under the influence
of alcohol. However, the termination decision was mostly predicated on Shirvell’s blog and his
other behavior toward Armstrong. Shirvell’s supervisors had tried unsuccessfully on several
occasions to convince him to stop his attacks on Armstrong. The termination letter stated that
Shirvell’s conduct “could reasonably be construed to be an invasion of privacy, slanderous,
libelous, and tantamount to stalking behavior.” The letter claimed that Shirvell’s behavior
compromised his ability to perform his duties and had the potential to damage the office’s public
perception and its ability to recruit candidates for employment. Overall, the office believed that
there was “an overwhelming case to terminate Mr. Shirvell.”
Shirvell filed a grievance with the Michigan Civil Service Commission to challenge his
dismissal. The Commission denied the grievance, finding that Shirvell was discharged for just
cause.

The Commission identified some small problems with the dismissal process.

For

example, it concluded that the Attorney General should not have used the 2009 DUI against
Shirvell because the office had not disciplined Shirvell for the incident at the time. Nonetheless,
the report found that significant evidence justified the dismissal.

In particular, the report

emphasized that Shirvell’s conduct, which constituted “harassing conduct of the basest sort,” was
unbecoming of his position.
In October 2011, while Armstrong’s case against Shirvell (No. 13-2368) was still
pending in the Eastern District of Michigan, Shirvell filed this separate suit in the same court.
Gordon is—and always has been—the only defendant in the present case. The complaint alleged

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tortious interference with a business relationship; defamation; and false light invasion of
privacy.1
Shirvell alleged, as the basis for his tortious interference claim, that Gordon interfered
with the internal investigation that the Attorney General’s office conducted into Shirvell’s
actions, and that Shirvell was fired as a result of Gordon’s interference. In support, Shirvell
alleged, inter alia, that Gordon had engaged in specific conversations with Michael Ondejko, a
special agent in the Attorney General’s office who was assigned to investigate Shirvell’s
conduct. Shirvell claimed that Gordon gave Ondejko “substantial additional information” for his
investigation into Shirvell’s conduct, and had sought to “improperly influence” Ondejko. Under
the defamation and false light claims, Shirvell alleged that Gordon had “falsely and maliciously”
made a number of statements about Shirvell that were either defamatory or portrayed a false
impression. Gordon moved to dismiss the tortious interference count for failure to state a claim.
The district court later granted that motion.
Before the district court ruled on the motion to dismiss, Gordon served on Shirvell a
motion for Rule 11 sanctions. In January 2012, after Shirvell failed to retract his pleadings or to
materially amend them, Gordon filed the motion. The motion claimed that Shirvell’s complaint
was “infused with outright, knowing falsehoods.” Gordon sought an award of fees and costs
incurred in defending Count I of the complaint, as well as those incurred in conducting discovery
on various factual issues alleged in the complaint. In July 2012, after a hearing, the court granted
Gordon’s motion for sanctions. The sanctions ultimately awarded were purely non-monetary.2

1

The court denied Shirvell’s motion to consolidate this case with Armstrong’s case against Shirvell.

2

Gordon’s motion for sanctions originally requested that the district court order Shirvell to pay Gordon’s
fees and costs. Rule 11(c)(4) of the Federal Rules of Civil Procedure gives district courts the authority to enter such
an order. Both the order granting sanctions and the transcript of the motion hearing suggest that the district court

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In November 2012, Gordon moved for summary judgment on the defamation and false
light claims. The district court granted summary judgment in her favor on both claims.
Shirvell appealed, but his briefs focus on just one issue: the propriety of the district
court’s imposition of Rule 11 sanctions against him.3 Moreover, while this appeal was pending,
Gordon moved for sanctions against Shirvell under Rule 38 of the Federal Rules of Appellate
Procedure. She alleged that this appeal is “wholly without merit.”
II.
We review a district court’s decision to impose sanctions for abuse of discretion.
DiPonio Constr. Co. v. Int’l Union of Bricklayers and Allied Craftworkers, Local 9, 687 F.3d
744, 752 (6th Cir. 2012). “‘A district court abuses its discretion if it bases its ruling on an
erroneous view of the law or a clearly erroneous assessment of the evidence.’” Merritt v. Int’l
Ass’n of Machinists and Aerospace Workers, 613 F.3d 609, 619 (6th Cir. 2010) (quoting Brown
v. Raymond Corp., 432 F.3d 640, 647 (6th Cir. 2005)).
A.
Federal Rule of Civil Procedure 11(b) provides that an attorney or unrepresented party
makes certain representations to the court every time he presents a pleading to the court,
“whether by signing, filing, submitting, or later advocating it.”

Included among these are

representations that the pleading “is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of litigation,” and that “the
factual contentions have evidentiary support or, if specifically so identified, will likely have

granted Gordon’s request to order fees and costs. However, the district court never ordered Shirvell to pay money,
and both parties agree on appeal that the sanctions imposed were non-monetary.
3

Shirvell’s notice of appeal signaled his intent to challenge, inter alia, all of the district court’s dispositive
rulings. Later, however, he decided to abandon most of these grounds of appeal. He does not challenge the
dismissal of his tortious interference claim or the adverse decision on summary judgment on the other two claims.

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evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed.
R. Civ. P. 11(b).
The rule “‘stresses the need for some pre-filing inquiry into both the facts and the law to
satisfy the affirmative duty imposed.’” Merritt, 613 F.3d at 626 (quoting Herron v. Jupiter
Transp. Co., 858 F.2d 332, 335 (6th Cir. 1988)). This duty does not end when the pleadings are
filed.

Rather, the plaintiff “‘is impressed with a continuing responsibility to review and

reevaluate his pleadings and where appropriate modify them to conform to Rule 11.’” Runfola &
Assocs., Inc. v. Spectrum Reporting II, Inc., 88 F.3d 368, 374 (6th Cir. 1996) (quoting Herron,
858 F.2d at 335). In other words, the Rule “imposes on litigants ‘a continuing duty of candor,’
and a litigant may be sanctioned ‘for continuing to insist upon a position that is no longer
tenable.’” Rentz v. Dynasty Apparel Indus., Inc., 556 F.3d 389, 395 (6th Cir. 2009) (quoting
Ridder v. City of Springfield, 109 F.3d 288, 293 (6th Cir. 1997)).
A district court may sanction an attorney or unrepresented party for a violation of Rule
11. Fed. R. Civ. P. 11(c). A party may move for sanctions against the opposing attorney or
unrepresented party by serving—but not filing—a motion containing specific details of the
conduct alleged to have violated Rule 11. Id. 11(c)(2). The motion may then be filed after
twenty-one days, unless “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.” Id. The district court may then award sanctions after giving the attorney or
unrepresented party notice and the opportunity to be heard. See Youn v. Track, Inc., 324 F.3d
409, 422 (6th Cir. 2003).

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B.
In arguing that the district court abused its discretion, Shirvell essentially makes two
arguments. First, he contends that he acted reasonably in filing the tortious interference claim
because his pre-filing inquiry revealed sufficient information to bring the claim. Second, he
insists that—based on the information he had at the time and the lack of discovery—he acted
reasonably in continuing to advocate the tortious interference claim, even after Gordon served
him with the motion for sanctions. Neither argument has merit.
Shirvell supported the tortious interference claim by referring in the complaint to specific
details of contacts between Gordon and Ondejko. Shirvell had no reasonable basis to believe
that these conversations ever took place. In fact, he was aware of significant evidence that
Gordon and Ondejko had never communicated about Ondejko’s investigation. At Shirvell’s
hearing before the Civil Service Commission, Ondejko testified under oath that he had not
spoken to Gordon before completing his investigation. Shirvell heard this testimony before even
filing his claim against Gordon. He clearly lacked evidentiary support for his claims about
Gordon.
Even if the panel were to accept Shirvell’s claim that he expected to uncover further
details about Gordon’s contacts with Ondejko after further investigation, Shirvell violated his
ongoing Rule 11 duty. He failed to materially amend his complaint and continued to advocate
his position, even as further evidence indicated that his claims about Gordon were baseless.
Shirvell was present when Ondejko testified in his deposition in November 2011 for
Armstrong’s case against Shirvell. There, Ondejko testified that he had never spoken to Gordon,
other than when Gordon had let him know he might become a witness. In an affidavit, Gordon

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firmly stated that she did not have the alleged contact with Ondejko and that she did not provide
information about Shirvell to anyone in the Attorney General’s office.
Shirvell claims that he was not bound to accept Ondejko and Gordon’s denials as true and
that he had a reasoned basis for standing by his allegations. But—even in the face of significant
evidence that his allegations were untrue—Shirvell has not pointed to any basis on which he
reasonably believed that Gordon passed information to Ondejko or sought to influence the
investigation. As time went on, it became increasingly clear that his claims amounted to nothing
more than speculation. His failure to withdraw the allegations violated Shirvell’s continuing
duty of candor. The district court did not abuse its discretion under Rule 11 when it imposed
sanctions as a result.
C.
Although Shirvell’s arguments on appeal are unavailing, the record reveals one legal
error that Shirvell failed to raise on appeal. He has therefore forfeited the issue.
A district court’s “order imposing a sanction must describe the sanctioned conduct and
explain the basis for the sanction.” Fed. R. Civ. P. 11(c)(6). The court should provide the
requisite explanation in its order. In general,
[i]t is not sufficient for the district court merely to announce its
agreement with the reasons . . . briefed and argued by the party
seeking sanctions, and then leave it to this court to comb through
the accusing parties’ pleadings and briefs filed in the district court
and the transcript of . . . oral argument . . . in order to locate for
itself facts that might constitute sufficient grounds for the
imposition of Rule 11 sanctions.
Elsman v. Standard Fed. Bank, 46 F. App’x 792, 801 (6th Cir. 2002) (first alteration in original)
(internal quotation marks omitted); see also Nieves v. City of Cleveland, 52 F. App’x 635, 637
(6th Cir. 2002) (remanding because the district court “merely announced its agreement with the

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reasons briefed and argued by the party seeking sanctions”). This court has required district
courts to provide significant detail in their Rule 11 findings. Remand has generally been
required when the district court fails to “indicate how any particular pleading, motion, or paper
relates to any particular expense or attorney fee.” Bodenhamer Bldg. Corp. v. Architectural
Research Corp., 873 F.2d 109, 114 (6th Cir. 1989); see also Bodenhamer Bldg. Corp. v.
Architectural Research Corp., 989 F.2d 213, 218 (6th Cir. 1993).
Here, the district court’s order imposing sanctions did nothing more than signal the
court’s agreement with Gordon’s position: it granted sanctions “[f]or the reasons stated on the
record at the hearing and in Defendant’s briefs.” And although the hearing allowed both parties
to be fully heard, the district court did not explain the precise basis for the sanctions. The court
simply stated: “Well, at some point, you have an obligation to withdraw the claim. And I’m
going to grant sanctions.” This fails to meet the standard that Rule 11(c)(6) sets.
Nonetheless, reversal is unnecessary. Shirvell failed to raise this error on appeal, and he
has therefore forfeited it. Unless the argument is jurisdictional, see Maxwell v. Dodd, 662 F.3d
418, 421 (6th Cir. 2011) (citing Kontrick v. Ryan, 540 U.S. 443, 456 (2004)), a party generally
forfeits an argument by failing to raise it on appeal. See S.H.A.R.K. v. Metro Parks Serving
Summit Cnty., 499 F.3d 553, 564–65 (6th Cir. 2007) (holding that a party forfeits an argument by
failing to raise it, or raising it only in a cursory manner, on appeal). Although this court has not
addressed the applicability of the forfeiture doctrine to Rule 11 arguments, we hold that this issue
is forfeitable because it is not jurisdictional.
In Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., 369 F.3d 385 (4th Cir. 2004) (en
banc), the defendants moved for Rule 11 sanctions against the plaintiffs. The defendants failed
to comply with Rule 11(c)’s “safe harbor” provision, filing the motion without giving the

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plaintiffs twenty-one days to retract or amend its pleading, but the district court granted the
requested sanctions. The plaintiffs failed to argue before the district court that Rule 11(c) had
been violated. The Fourth Circuit held that the plaintiffs had forfeited the issue. The court
reasoned that the issue could be forfeited because it related to a non-jurisdictional, claimprocessing rule. Id. at 396.
It is even clearer that a district court’s failure to offer an adequate description and
explanation, as required by Rule 11(c)(6), is not jurisdictional. It does not affect the court’s
ability to hear the claim, but simply addresses the way in which the district court should
adjudicate the issue. It therefore falls squarely within the range of issues that may be forfeited.
Shirvell has forfeited the issue by failing to raise it here.
This court has the discretion to correct an error, notwithstanding waiver or forfeiture, if it
is necessary to prevent manifest injustice. See, e.g., Fryman v. Fed. Crop Ins. Corp., 936 F.2d
244, 251 (6th Cir. 1991). In the present case, the failure to follow the letter of Rule 11(c)(6) did
not lead to injustice. Although the district court should have provided analysis, Gordon’s motion
for sanctions specifically identifies the conduct warranting sanctions and explains why sanctions
are appropriate. Both sides were given the opportunity to present their positions at a hearing and,
despite the absence of written analysis, the hearing transcript shows that the district court
engaged in a reasoned decision making process, taking the appropriate factors into account.
Finally, as discussed, the sanctions that the district court imposed were warranted and went no
further than necessary to deter future conduct of this sort. Indeed, no monetary sanctions were
imposed, despite Gordon’s initial request for costs and fees.
As a result, we need not reverse in order to prevent manifest injustice. Despite the
district court’s error, we affirm the imposition of Rule 11 sanctions.

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III.
We now turn to Gordon’s motion to impose sanctions on Shirvell—in the form of
attorney’s fees—under Rule 38 of the Federal Rules of Appellate Procedure. Although we do
not award attorney’s fees, we do find that this appeal is frivolous.
Rule 38 states: “If a court of appeals determines that an appeal is frivolous, it may, after a
separately filed motion or notice from the court and reasonable opportunity to respond, award
just damages and single or double costs to the appellee.” “‘Sanctions are appropriate where the
appeal was prosecuted with no reasonable expectation of altering the district court’s judgment
and for purposes of delay or harassment or out of sheer obstinacy.’” Wilton Corp. v. Ashland
Castings Corp., 188 F.3d 670, 676 (6th Cir. 1999) (quoting Allinder v. Inter–City Products Corp.
(USA), 152 F.3d 544, 552 (6th Cir. 1998)). Moreover, bad faith or intentional misconduct is not
necessary to impose Rule 38 sanctions. See Wilton Corp., 188 F.3d at 677 (“We believe that this
circuit, on the whole, does not require that an applicant . . . must demonstrate bad faith or
intentional misconduct . . . in order to prevail on its motion”). Here, Shirvell lacked any
reasonable expectation that his argument would alter the district court’s judgment. He has been
given a reasonable opportunity to respond by way of a response in opposition to the motion for
sanctions, but has failed to point to any evidence in the record which undermines the district
court’s findings of fact. His appeal is frivolous.
But even so, monetary sanctions under Rule 38 are not mandatory. Rather, we retain
discretion to determine when they are appropriate. DiPonio Constr. Co. v. Int’l Union of
Bricklayers and Allied Craftworkers, Local 9, 687 F.3d 744, 753 (6th Cir. 2012). Having
carefully considered all of the circumstances of this case, we decline the opportunity to issue
monetary sanctions under Rule 38. Gordon’s motion is denied. In our view, such sanctions are

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unnecessary. This opinion should itself suffice to make clear that the type of litigation conduct
in which Shirvell engaged is intolerable, and serve as a deterrent to Shirvell from such conduct in
the future.
IV.
For the above reasons, we affirm the imposition of Rule 11 sanctions. We also find that
Shirvell’s appeal is frivolous, but that Rule 38 sanctions are not necessary. We therefore deny
Gordon’s motion for Rule 38 sanctions.

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