Green v. Mobis Alabama, LLC et al

Filing 159

ORDER denying 135 MOBIS's Motion for Attorney Fees, and that Alicia Haynes, Charles Guerrier, and Gina Pearson from the law firm of Haynes & Haynes P.C., and Frank McRight, Amy Jordan, and K. Bryance Metheny from the law firm of Burr & Forman LLP shall share two meals together, with each to pay their own expenses unless otherwise agreed; Haynes & Haynes shall pick the location of the first meal, and Burr & Forman shall pick the location of the second meal; By April 30, the parties shall file a certification to the Court stating the time and location of the meals as well as those in attendance. Signed by Honorable Judge Mark E. Fuller on 3/25/2014. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
NORIA C. GREEN,
Plaintiff,
v.
MOBIS ALABAMA, LLC, and
JEREMY POWERS,
Defendants.

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CASE NO. 2:12-cv-277-MEF
(WO – Do Not Publish)

ORDER
Before the Court is Defendant MOBIS Alabama, LLC’s (“MOBIS”) Motion for
Attorney Fees (Doc. #135). This motion arises out of statements in Plaintiff Noria Green’s
(“Green”) declaration and in arguments advanced by Green’s counsel, Alicia Haynes, in a
brief in opposition to MOBIS’s motion for summary judgment. The Court found these
statements to be false and misleading in its Memorandum Opinion and Order on summary
judgment. (Doc. #132, at 18–21.) After the entry of final judgment in favor of MOBIS,
MOBIS filed its Motion for Attorney Fees. The Court issued a show cause order to Ms.
Haynes, the attorney whose signature appeared on the challenged filings, as to why she
should not be sanctioned. (Doc. #136.) The Court held a hearing on the matter on March
17, 2014. After careful consideration and for the reasons discussed below, the Court finds
that MOBIS’s Motion for Attorney Fees is due to be DENIED.

1

I. FACTS
The following facts are taken from the summary judgment record, MOBIS’s Motion
for Attorney Fees, Green’s Response to Order to Show Cause, MOBIS’s Response in
Support of its Motion for Attorney Fees, and the record of the hearing held on March 17,
2014.
Green sued her employer, MOBIS, and a former co-worker and supervisor alleging
that she suffered sexual harassment in violation of Title VII, which MOBIS failed to
adequately prevent and remedy. During the course of her employment with MOBIS, Green
received approval to take leave under the Family and Medical Leave Act (“FMLA”) to take
her father to doctor’s visits. MOBIS discovered what it believed to be forged doctor’s notes
submitted by Green and subsequently terminated her for misconduct. Green retained the law
firm of Haynes & Haynes, P.C. in June of 2011 and was represented by them when she was
terminated on November 4, 2011. (Doc. #139-1, at ¶ 5.) Green was represented by an
associate at the law firm, Karen Cleveland, with oversight from Ms. Haynes. (Doc. #139-1,
at ¶ 5.) With the aid of Ms. Cleveland, Green filed for unemployment compensation benefits
but was deemed ineligible on the grounds that she had been terminated for misconduct.
Green appealed her denial of unemployment compensation to the Alabama
Department of Industrial Relations (“ADIR”).

On December 16, 2011, Green, Ms.

Cleveland, and a representative from MOBIS, Curt Bennett (“Bennett”), participated in a
telephone hearing with an ADIR hearing officer. At the time of the December hearing,
MOBIS had not given Green’s counsel or ADIR the doctor’s notes it believed Green had
2

forged. The hearing officer concluded that she could not hold the hearing without the notes
that formed the basis of Green’s termination. (Doc. #139-2, at 28–30.) Bennett stated he
would decide whether MOBIS would give the documents to ADIR after consulting with
MOBIS’s counsel. (Doc. #139-2, at 28.) The hearing officer then continued the hearing to
a later, unspecified date, and stated that her docket clerk would select a new date and time
and that the parties would receive notice of the new date and time by mail. (Doc. #139-2,
at 34–35.)
ADIR mailed notices to Green and MOBIS on December 21, 2011, that stated the
appeal hearing would be re-convened on January 4, 2012. (Doc. #61-3, at 46; Doc. #83-1,
at ¶ 7.) MOBIS’s plant was shut down for the 2011 holiday season from approximately
December 23, 2011 through January 2, 2012. (Doc. #83-1, at ¶ 6.) MOBIS’s mail room did
not reopen until January 3, 2012, and the notice was not processed in time for Bennett to
learn the date of the hearing. (Doc. #83-1, at ¶¶ 5–7.) As a result, no representative from
MOBIS was present at the January 4, 2012 telephone hearing.
Records of the January 4, 2012 hearing reveal that the ADIR hearing officer attempted
three times to contact Bennett by phone but no one answered. (Doc. #139-2, at 44.) The
hearing officer then proceeded to conduct the telephone hearing with Green and Ms.
Cleveland. As a result of the January 4, 2012 hearing, conducted without the doctor’s notes
MOBIS believed were falsified and without a representative from MOBIS, the ADIR hearing
officer issued a decision in which she concluded Green had not been terminated for
misconduct that would disqualify her from receiving unemployment compensation benefits
3

under Alabama Code § 25-4-78(3)(a). (Doc. #61-3, at 51–52.) Although MOBIS did not
participate in the January 4, 2012 hearing, the hearing officer’s decision included the
following line: “APPEARANCES AT THE HEARING: Claimant with representative and
employer representative.” (Doc. #61-3, at 51.)
When MOBIS received the hearing officer’s decision, Bennett faxed two letters to
ADIR stating MOBIS wanted to appeal the hearing officer’s decision and that it wanted to
tell its side of the story. (Doc. #61-3, at 70–72.) MOBIS submitted the doctor’s notes it
believed Green had falsified with these letters.
On October 21, 2013, MOBIS filed its motion for summary judgment with
accompanying evidentiary submissions. (Docs. #58–61.) MOBIS argued, among other
things, that its legitimate, non-retaliatory reason for terminating Green was its belief that she
had provided falsified doctor’s notes in connection with her FMLA leave. On November
15–16, 2012, Green filed her response to MOBIS’s motion for summary judgment with
accompanying evidentiary submissions. (Docs. #71–78.) In her brief, Ms. Haynes argued
that the ADIR hearing officer’s finding that Green was not terminated for misconduct
collaterally estopped MOBIS from claiming Green was terminated for providing falsified
doctor’s notes. The following statements appeared in support of this argument:
1.
The sworn declaration of Plaintiff Noria Green, drafted
by Ms. Haynes, states, “The Hearings and Appeals Division of
the DIR conducted a hearing on my appeal on January 4, 2012
and MOBIS was present.” (Doc. #77-1, at ¶ 50.)
2.
In the statement of “Additional Material Facts,” it states,
“The Hearings and Appeals Division of the DIR conducted a
4

hearing on Green’s appeal on January 4, 2012. (Doc. 61-3, p.
51). MOBIS had a representative at that hearing.” (Doc. #78, at
¶ 5.) This statement contains a citation to the hearing officer’s
decision, which indicated MOBIS was at the hearing.
3.
In the argument section of the brief, it states, “The third
element [of collateral estoppel] requires that the parties had an
adequate opportunity to litigate the issue to be estopped . . .
Here, the record also establishes that a hearing was held on
January 4, 2012, at which both Green and a representative for
MOBIS were present.” (Doc. #78, at 44.)
At the time these assertions were made, there was no recording or transcript of the
ADIR hearings in the record—there was only the copy of the hearing officer’s opinion,
which indicated that MOBIS was at the January 4, 2012 hearing. As a result, on November
22, 2013, MOBIS submitted a copy of an audio recording of the January 4, 2012 hearing with
its reply brief in support of its motion for summary judgment. (Docs. #81, 83.) MOBIS
argued that the reason for Green’s termination was not “actually litigated” at the January 4,
2012 hearing because, as the audio recording conclusively established, no representative for
MOBIS was present at the hearing. (Doc. #82, at 28–30.) MOBIS further argued that, under
Hale v. Hyundai Motor Manufacturing Alabama, LLC, 86 So. 3d 1015 (Ala. Civ. App.
2012), a finding by ADIR that an employee was not terminated for misconduct did not have
preclusive effect against an employer who claimed to have fired an employee for misconduct.
(Doc. #82, at 24–28.) Thus, MOBIS brought the false statements about MOBIS’s attendance
at the January 4, 2012 hearing to Green’s and the Court’s attention on November 22, 2013,
with the filing of its reply brief and supplemental exhibits.
On January 9, 2014, over a month and a half after MOBIS filed its reply brief and
5

supplemental exhibits, Green filed a motion to strike the supplemental declaration of Bennett,
who testified that he was not present at the January 4, 2012 hearing, as well as the audio
recording of the hearing. (Doc. #92.) The motion to strike was signed by Ms. Haynes. The
grounds for the motion to strike were as follows:
7.
Defendant untimely submitted a supplemental declaration
from Curt Bennett, Mobis’s Manager of Human Resources who
previously provided a declaration and deposition testimony.
The substance of Mr. Bennett’s supplemental declaration is
limited [to] Mobis’s participation or non-participation in
Plaintiff’s unemployment hearing on January 4, 2012. This is
not newly acquired information that should justify submission
to the Court for consideration past the deadline.
8.
Defendant also untimely submitted a CD containing an
audio recording of the January 4, 2012 telephone hearing before
the Alabama Department of Industrial Relations. This exhibit
was not disclosed on Defendant’s Second Supplemental
Disclosures per FRCP 26(a)(1)(A)(I).
(Doc. #92, at ¶¶ 7–8.) Paragraph 7 of the motion to strike contains an acknowledgment that
Bennett’s supplemental declaration was introduced for the purpose of proving MOBIS was
not present at the January 4, 2012 hearing.
On January 14, 2014, MOBIS filed a response to Green’s motion to strike arguing that
it was not submitting new or additional evidence, but that it was submitting evidence that
showed the statements made in support of Green’s collateral estoppel argument were false:
5.
Plaintiff’s collateral estoppel argument is based on the
legally and factually incorrect assertion that the parties had an
adequate opportunity to litigate the reason for Plaintiff’s
termination before ADIR. Specifically, Noria Green’s sworn
declaration states, “[t]he Hearings and Appeals Division of the
[Alabama Department of Industrial Relations] conducted a
6

hearing on my appeal on January 4, 2012 and MOBIS was
present.” [Doc. 77-1, ¶ 50.] Plaintiff’s opposition brief further
states, “the record . . . establishes that a hearing was held on
January 4, 2012, at which both Green and a representative of
MOBIS were present.” [Doc. 78, p. 41.]
6.
These statements are false. In specific response to
Plaintiff’s misrepresentation and to rebut her new collateral
estoppel argument, Defendant submitted the Supplemental
Declaration of Curt Bennett (Ex. 14) and the actual recording of
the ADIR proceedings on January 4, 2012 (Ex. 17), which
clearly establish MOBIS was not present at any hearing on that
date.
(Doc. #100, at ¶¶ 5–6) (emphasis in original). Thus, in addition to MOBIS bringing attention
to the false statements about MOBIS’s attendance at the January 4, 2012 hearing in its reply
brief and supplemental exhibits on November 22, 2013, MOBIS once again, in bold and
underlined type, stated that Green’s declaration and brief contained false statements in its
January 14, 2014 response in opposition to Green’s motion to strike.
On February 5, 2014, the Court issued its Memorandum Opinion and Order granting
summary judgment in favor of MOBIS. (Doc. #132.) The Court also denied Green’s motion
to strike the supplemental declaration of Curt Bennett and the audio recording of the January
ADIR hearing in this order. The Court stated:
The statement that MOBIS was present at the telephone hearing
is completely false, as the audio recording makes clear; indeed,
the hearing officer attempts to contact Bennett three times and
fails due to the plant shutdown . . .
Incredibly, Green and her counsel were present at the telephone
hearing, which was clearly conducted in MOBIS’s absence, and
yet Green’s sworn declaration states that MOBIS was present at
the hearing. Even more incredibly, Green seeks to strike
7

MOBIS’s submission of the audio recording that would prove
Green’s statement to be false. Green essentially asks this Court
to give the ADIR hearing issue preclusive effect against MOBIS
on the basis of Green’s false statement that MOBIS was
represented at the hearing and, further, to prevent MOBIS from
presenting evidence demonstrating Green’s falsehood. The
position Green’s counsel has taken on the January 4, 2012 ADIR
hearing proves the truth of Benjamin Franklin’s maxim, “Half
the truth is often a great lie.” The Court declines to further
perpetuate or condone such conduct.
(Doc. #132, at 20–21.)
The Court concluded that, based on the evidence before it at that time, Ms. Haynes
had misrepresented the facts to the Court for the following reasons: (1) the assertion that a
representative from MOBIS was present at the January 4, 2012 ADIR hearing, repeated three
times in filings signed by Ms. Haynes, was both unambiguous in meaning and conclusively
shown to be false; (2) Ms. Cleveland, an associate at Ms. Haynes’s law firm, represented
Green in both the December 16, 2011 and January 4, 2012 telephone hearings, and, therefore,
Ms. Haynes was presumed to know whether MOBIS was present at the January hearing in
drafting Green’s declaration; (3) after MOBIS submitted its reply brief, supplemental
declaration, and audio recording of the January 4, 2012 hearing, Ms. Haynes, rather than
withdraw the statement that MOBIS was present at the January hearing, moved to strike the
supplemental declaration and audio recording; this indicated to the Court that Ms. Haynes
did not want the Court to consider evidence proving that a factual assertion on which she
relied for her collateral estoppel argument was false; (4) MOBIS represented to the Court in
its January 14, 2014 opposition to Green’s motion to strike that Ms. Haynes’s firm had

8

themselves produced the ADIR records to MOBIS and had thus possessed evidence revealing
who was present at the January hearing for a number of months (Doc. #100, ¶ 8(a)); (5) Ms.
Haynes had never withdrawn her statements that MOBIS was present at the January hearing,
or the collateral estoppel argument reliant on these statements, despite MOBIS conclusively
proving these statements to be false with its November 22, 2013 reply brief and
supplementary exhibits and again in its January 14, 2014 opposition to Green’s motion to
strike.
Given the apparent falsity of Ms. Haynes’s statements, on February 19, 2014, MOBIS
filed its Motion for Attorney Fees. (Doc. #135.) MOBIS argued that, under Federal Rule
of Civil Procedure 11, Ms. Haynes had made factual contentions without evidentiary support
in claiming a MOBIS representative was present at the January 4, 2012 hearing and that she
had made a frivolous legal argument for collateral estoppel in light of the Hale case. (Doc.
#135.) The Court issued an order to show cause why MOBIS’s motion for sanctions should
not be granted. (Doc. #136.)
Ms. Haynes explained the basis for her assertions in her response to the Court’s show
cause order (Doc. #139) and in her Rule 59(e) motion to reconsider the Court’s summary
judgment order and final judgment (Doc. #141). Ms. Haynes appears to give several
different explanations for her assertion that MOBIS participated at the January 4, 2012
hearing. First, she attempts to cast doubt on Bennett’s claim that MOBIS did not have notice
that the hearing had been rescheduled to January 4, 2012, as a result of MOBIS’s mailroom
being closed. Ms. Haynes writes, “While Bennett contends that, because the mail room was
9

closed January 3rd, he did not get the notice in time to participate in the January 4th hearing,
he does not explain why he never returned the Hearing Officer’s three phone calls and two
detailed messages he received on January 4th.” (Doc. #139, at 14.)1 An audio recording of
the January 4, 2012 hearing reveals that the ADIR hearing officer made all three calls to
Bennett within a ten-minute time period. The hearing officer then continued with the hearing
without Bennett. The entire hearing lasted only twenty-six minutes. Second, Ms. Haynes
argues that, as required for collateral estoppel, MOBIS had an adequate opportunity to
litigate the matter at the January 4, 2012 hearing even though it wasn’t present because it
chose not to participate in any future hearing after the December 16, 2011 hearing was
continued based on attorney directive. (Doc. #141, at 11.) In its order denying Green’s Rule
59 motion, the Court pointed out that, in her brief in opposition to summary judgment, Ms.
Haynes relied on her assertion that MOBIS was present at the January 4, 2012 hearing as the
fact that established the “adequate opportunity to litigate” element of collateral estoppel.
(Doc. #143, at 2–3.) Her argument that MOBIS had an adequate opportunity to litigate the
reason for Green’s termination based on its participation at the December 16, 2011 hearing
and its voluntary choice not to participate in a future hearing was a new argument introduced
for the first time in her Rule 59 motion.
But Ms. Haynes’s principal argument as to why she should not be sanctioned in her
response to the show cause order was that she drafted Green’s declaration with the

1

This argument is repeated again in her Rule 59(e) motion. (Doc. #141, at 11.)
10

understanding that, if an ADIR hearing is continued to a later date, there is still only one
hearing with the final date of the hearing given as the date of the hearing. (Doc. #139-1, at
¶ 5; Doc. #139, at 5.) In fact, Ms. Haynes disputed the Court’s finding that her statement that
MOBIS was present at the January 4, 2012 hearing was false. (Doc. #141, at 12 n. 4.) In her
sworn affidavit, Ms. Haynes states as follows:
I recall Karen Cleveland advising me that Ms. Green had been
denied her unemployment. I recall meeting with Ms. Cleveland
about appealing that decision and preparing for the telephone
hearing. I was not in attendance during the telephone hearing,
though I was briefly on the telephone when the hearing officer
called the office to speak with Ms. Cleveland and she had not
yet arrived at work. Ms. Cleveland sent me an email about the
hearing, the information she learned in the hearing for the
processing of Ms. Green’s discrimination case and the fact the
hearing was continued for MOBIS to present documents . . . I
used Ms. Cleveland’s summary on the hearing in deposing Mr.
Bennett.
(Doc. #139-1, at ¶ 6) (emphasis added). Thus, Ms. Haynes claims in her affidavit that she
was aware the telephone hearing was continued and that the ADIR hearing occurred on two
different dates. She then states:
There is only one telephone hearing at the appeals stage of the
ADIR process. A telephone hearing can be continued and
reconvened, but there is only one hearing . . . The date of an
ADIR decision is based on the conclusion of the hearing
regardless of the date the hearing convened. I drafted Noria
Green’s affidavit with this understanding and based upon the
decision of the ADIR Hearing Officer, wherein it states that the
employer’s representative made an appearance at the hearing.
(Doc. #139-1, at ¶ 7) (emphasis added). Ms. Haynes appears to argue that, at the time she
drafted Green’s declaration, she did so with the understanding that the January 4 hearing was
11

considered to be the same hearing as the December 16 hearing, and since MOBIS was
present at the December 16 hearing, it was present at the January 4 hearing. She also states
that she drafted Green’s declaration based upon the ADIR hearing officer’s decision, which
indicates that MOBIS was present at the January 4, 2012 hearing. Ms. Haynes’s statements
in her affidavit explain why the ADIR hearing officer’s opinion states MOBIS was present
at the January 4, 2012 hearing. But Ms. Haynes asserts that she “drafted Noria Green’s
affidavit with [the] understanding” that the date of an ADIR hearing is based on this
conclusion (i.e., that Ms. Haynes was aware there were two separate dates for the hearing but
that they are considered one hearing) and that she intended her statement that MOBIS was
present at the January 4, 2012 hearing to mean that MOBIS was present at the December 16,
2011 hearing, and, therefore, it was present at the January 4 hearing.2
At the hearing held on March 17, 2014, Ms. Haynes provided the Court with
testimony that shed considerable light on her actions. Ms. Haynes stated that the first time
she became aware of the fact that her statement that MOBIS was present at the January 4,
2012 hearing was false was when she read the Court’s Memorandum Opinion and Order
granting summary judgment in favor of MOBIS.3 When Ms. Haynes drafted Noria Green’s

2

Ms. Haynes issued a subpoena to the ADIR hearing officer who conducted the hearings
with Green to testify about ADIR’s understanding of their own hearing process. ADIR filed a
motion to quash the subpoena, which was granted by the Magistrate Judge. (Doc. #155.)
3

Since Ms. Haynes stated she first became aware of the false statement in Green’s
declaration when she read the Memorandum Opinion and Order, the Court infers that she did not
read MOBIS’s November 22, 2013 reply brief or MOBIS’s January 14, 2014 response in opposition
to her motion to strike the audio recording, both of which highlighted Green’s false statement.
12

declaration, she claims to have relied solely upon the ADIR hearing officer’s opinion, which
states that a MOBIS representative was at the January 4 hearing, and the deposition of
Bennett.4 Although Ms. Haynes had recordings of both the December 16, 2011 and January
4, 2012 hearings prior to any of the summary judgment filings, she somehow managed not
listen to them until after receiving the Memorandum Opinion and Order. Incredibly, Ms.
Haynes did not listen to the recordings of the hearings before filing her motion to strike the
recording of the January hearing that MOBIS submitted to prove the statement in Green’s
declaration was false. After a legal assistant notified her that MOBIS filed an audio
recording of the January hearing, Ms. Haynes asked her legal assistant to see whether
MOBIS had listed the recording in their Rule 26 disclosures. After her assistant informed
Ms. Haynes they had not, Ms. Haynes had her legal assistant file her “standard motion” to
strike based on lack of Rule 26 disclosure.5
II. DISCUSSION
Federal Rule of Civil Procedure 11 states that any attorney whose signature appears
on a filing submitted to a court “certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances:
(2) the claims, defenses, and other legal contentions are
4

In his deposition, Bennett could not remember how many ADIR hearings he had
participated in and stated MOBIS did not appeal the findings of the hearing officer based on attorney
directive. (Doc. #61-1, at 64–65.)
5

This explains the document’s reference to Appendix II of the “Uniform Initial Order” of
the Court, which is an order issued by district courts in the Northern District of Alabama but not
used in the Middle District.
13

warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery.”
Fed. R. Civ. P. 11(b). In assessing the propriety of Rule 11, a court asks: (1) whether the
party’s claims are objectively frivolous, and (2) whether the person who signed the pleadings
should have been aware that they were frivolous. Peer v. Lewis, 606 F.3d 1306, 1311 (11th
Cir. 2010) (quotation and citation omitted). Whether the party’s belief that her factual
assertion or legal claim was non-frivolous is based on what was reasonable to believe at the
time the document was filed. See Jones v. Int’l Riding Helmets, 49 F.3d 692, 695 (11th Cir.
1995). The advisory committee note of 1993 states that “if evidentiary support is not
obtained after a reasonable opportunity for further investigation or discovery, the party has
a duty under the rule not to persist with that contention.” Fed. R. Civ. P. 11.
This matter is before the Court pursuant to MOBIS’s Motion for Attorney Fees.
When a party serves a motion under Rule 11, the party must comply with the “safe harbor”
provision. This provision requires the party to serve the motion on opposing counsel in order
to allow the other party to withdraw the challenged filing. Fed. R. Civ. P. 11(c)(2). If the
party does not withdraw the challenged filing after 21 days of service, the moving party may
file the Rule 11 motion with the court. The commentary to Rule 11 states:
Ordinarily the motion should be served promptly after the
inappropriate paper is filed, and, if delayed too long, may be
14

viewed as untimely . . . Given the “safe harbor” provisions
discussed below, a party cannot delay servings its Rule 11
motion until conclusion of the case (or judicial rejection of the
offending contention) (emphasis added).
In Peer v. Lewis, the Eleventh Circuit affirmed the district court’s failure to impose Rule 11
sanctions because the moving party waited until the district court struck the offending
complaint before moving for sanctions, because the moving party had reason to believe it
was frivolous nine months earlier. 606 F.3d 1306 (11th Cir. 2010); see also Ridder v. City
of Springfield, 109 F.3d 288, 296 (6th Cir. 1997) (finding the “safe harbor” provision to be
an “absolute requirement” and collecting cases).
At the March 17, 2014 hearing, counsel for MOBIS conceded that they did not
comply with the “safe harbor” provision. The proper method for MOBIS to follow would
have been to serve their Rule 11 motion shortly after Ms. Haynes submitted her brief in
opposition to summary judgment along with Green’s declaration, or in connection with
MOBIS’s reply brief and supplemental exhibits. Instead, MOBIS waited for “judicial
rejection of the offending contention” before filing its motion for attorney fees. Fed. R. Civ.
P. 11. MOBIS is, therefore, barred under Rule 11(c)(2) from seeking sanctions for the
attorney fees it incurred in responding to Green’s collateral estoppel argument and motion
to strike.
But the inquiry does not end there. Courts have inherent powers to police “a full
range of litigation abuses.” Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). The inherent
power of a court can be invoked even if procedural rules exist that sanction the same conduct.

15

See In re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995). Sanctions under a court’s inherent
powers require a finding of bad faith. See Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir.
1998). A finding of bad faith is warranted where an attorney knowingly or recklessly raises
a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent.
Id. (citation omitted). The bad faith necessary to justify a court using its inherent powers to
sanction attorney conduct requires a greater showing of misconduct than the standards of
objective unreasonableness under Rule 11.
The facts show that Ms. Haynes should have known MOBIS was not present at the
ADIR hearing at the time she drafted the collateral estoppel argument and Green’s
declaration that supported this argument. An associate from Haynes’s own law firm
represented Green at both the December 16, 2011 and January 4, 2012 ADIR hearings.
Although the associate later left Haynes’s law firm, Haynes should have known that MOBIS
was not present at the January 4 hearing based on the participation of her own law firm in
that hearing. In addition, Haynes had audio recordings of both the December and January
hearings readily available to her at the time Green’s declaration was drafted. Nevertheless,
Haynes relied solely on the ADIR hearing officer’s opinion that stated MOBIS was present
at the January 4, 2012 hearing.6 When MOBIS filed its reply brief, supplemental declaration,

6

There is a tension between Haynes’s statement at the March 17, 2014 hearing that she
thought there was only one hearing and the statement in her affidavit that “Ms. Cleveland sent me
an email about the hearing information she learned in the hearing for the processing of Ms. Green’s
discrimination case and the fact the hearing was continued for MOBIS to present documents . . . I
used Ms. Cleveland’s summary of the hearing in deposing Mr. Bennett.” (Doc. #139-1, at ¶ 6)
(emphasis added).
16

and audio recording of the January hearing on November 22, 2013, to prove that it did not
participate in the January hearing, Ms. Haynes did not read or otherwise inform herself of
the contents of these documents because she did not become aware of her false statement
until the Court issued its Memorandum Opinion and Order. Instead, Ms. Haynes ordered her
legal assistant to file a “standard motion” to strike the supplemental declaration and audio
recording without even listening to her copy of the audio recording beforehand. Nor did Ms.
Haynes read or otherwise inform herself of the contents of MOBIS’s response in opposition
to her motion to strike filed on January 14, 2014. That document accused Ms. Haynes of
making a statement that was ‘false’ in boldface and underlined type. Despite all of this, Ms.
Haynes stated at the hearing before the Court that “the first time I knew [that the statement
in Green’s declaration was false] was when the Court is blasting me in that opinion.”
Even after the Court issued a show cause order in response to MOBIS’s motion for
attorney fees, Ms. Haynes did not state the real reasons she failed to detect and to withdraw
her false statement earlier. Instead, Ms. Haynes questioned whether MOBIS had received
notice of the January 4, 2012 hearing, argued MOBIS had an adequate opportunity to
participate in the January hearing because it chose not participate in future hearings, and
argued that her statement was perhaps not even false because she drafted Green’s declaration
with the belief in mind that MOBIS was present at the January hearing because it was part
of the same ADIR hearing that was continued from December. Only at the hearing did the
Court learn that Ms. Haynes did not know she had made a false statement until she read the
Court’s Memorandum Opinion and Order, that she relied solely on the ADIR hearing
17

officer’s decision, and that she did not even know there were two ADIR hearings.
Although the Court finds that Ms. Haynes was objectively unreasonable in failing to
inquire into the truth of her statement that MOBIS was present at the January 4, 2012 ADIR
hearing and in failing to detect the falsity of the statement earlier and to withdraw it, the
Court does not find that Ms. Haynes’s conduct rises to the level of bad faith necessary for
sanctions under the Court’s inherent powers.
Ms. Haynes’s conduct concerns the Court because she maintains a good reputation
with this Court and is widely recognized as a top lawyer in the field of employment law. The
attorneys on both sides of this case could have worked better to resolve the issues addressed
in this order at an earlier stage through better communication.

Instead of directly

communicating with each other to resolve the concern over statements in Green’s
declaration, the parties have required the Court to resolve motions unrelated to the merits of
the case. The Rule 11 hearing itself involved the presence of seven attorneys, and, in
addition to the time spent on the matter by this Court, required a hearing by the Magistrate
Judge to resolve the motions to quash. The justice system will be better served by improved
relations between counsel for both sides in the future.
Thus, with this in mind, and in the spirit of former Chief Judge Joel F. Dubina’s
saying that it is “hard for people who break bread together to be disagreeable,” it is hereby
ORDERED that MOBIS’s Motion for Attorney Fees (Doc. #135) is DENIED, and
that Alicia Haynes, Charles Guerrier, and Gina Pearson from the law firm of Haynes &
Haynes P.C., and Frank McRight, Amy Jordan, and K. Bryance Metheny from the law firm
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of Burr & Forman LLP shall share two meals together, with each to pay their own expenses
unless otherwise agreed. Haynes & Haynes shall pick the location of the first meal, and Burr
& Forman shall pick the location of the second meal. By April 30, the parties shall file a
certification to the Court stating the time and location of the meals as well as those in
attendance.
DONE this the 25th day of March, 2014.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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