Graham v. City of South Lake Tahoe et al
Filing
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ORDER granting 43 Motion for Sanctions signed by Judge John A. Mendez on 5/24/11; Plaintiff's counsel, including William O'Mara, Stephen Scheerer, and the O'Mara Law Firm, P.C., jointly and severally, are ordered to pay $6,900.00 in fees to City defendants within 10 days of the date of this Order. (Matson, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SIMMONE GRAHAM, aka SIMMONE
ADELYN CORAHAM,
Plaintiff,
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v.
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THE CITY OF SOUTH LAKE TAHOE,
CITY OF SOUTH LAKE TAHOE POLICE
DEPARTMENT and TERRY DANIELS,
Defendants.
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Case No. 2:10-CV-2335 JAM-KJM
ORDER GRANTING DEFENDANTS’
CITY OF SOUTH LAKE TAHOE,
SOUTH LAKE TAHOE POLICE
DEPARTMENT, AND TERRY DANIELS
AMENDED MOTION FOR RULE 11
SANCTIONS
This matter comes before the Court on Defendants’ City of
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South Lake Tahoe, South Lake Tahoe Police Department, and Terry
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Daniels (“City Defendants”) Motion for Rule 11 Sanctions (Doc.
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#43) against Plaintiff’s counsel, including William O’Mara,
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Stephen Scheerer, and the O’Mara Law Firm, P.C.
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Defendants request that the sanctions take the form of an award
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of attorneys’ fees in the amount of $6,900.00.
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counsel opposes the motion.1
The City
Plaintiff’s
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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for April 19, 2011 and then rescheduled for June 1, 2011.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff’s Complaint is predicated upon an incident which
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occurred on August 31, 2008.
The California Highway Patrol
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(“CHP”) stopped Plaintiff as she was driving and caused her to
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undergo field sobriety testing.
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mistaken for an intoxicated person when she was actually suffering
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from multiple sclerosis.
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pass field sobriety testing.
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custody at the El Dorado County jail located in the City of South
Plaintiff claims that she was
Plaintiff was unable to successfully
She was arrested and taken into
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Lake Tahoe.
Plaintiff claims she was denied her medication for
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multiple sclerosis.
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discrimination based on the ADA, 42 U.S.C. § 1983, and Civil Code
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§ 52.1, in addition to negligence and attorneys’ fees.
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granted all of the defendants’ motions to dismiss without leave to
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amend (Doc. #44).
Plaintiff sued eleven named defendants for
The Court
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After being served with this lawsuit in late December 2010,
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counsel for City Defendants claim they continually contacted the
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O’Mara law firm requesting to be dismissed on the grounds that
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the City Defendants had no involvement in the stop, arrest,
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testing, or custody of Plaintiff.
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for City Defendants, Nira Feeley, contacted counsel for
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Plaintiff, Stephen Scheerer, via phone.
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that the City Defendants be dismissed from the lawsuit.
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Feeley provided Mr. Sheerer with a copy of the Declaration of
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Kathy Bolinger, Police Records Supervisor, showing that the City
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Defendants had no involvement in the incident giving rise to
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Plaintiff’s claim.
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Plaintiff’s counsel with the motion for sanctions and on March
On January 31, 2011, counsel
Ms. Feeley requested
Ms.
On February 10, 2011, City Defendants served
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3, 2011 City Defendants filed the motion for sanctions with the
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Court.
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II.
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OPINION
Legal Standard
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Rule 11 Sanctions
Rule 11 requires that pleadings and motions contain
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allegations and factual contentions which “have evidentiary
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support,” and the claims and other legal contentions must be
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“warranted by existing law or by a nonfrivolous argument.”
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R. Civ. P. 11 (b)(2)-(3).
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primary focus of Rule 11 proceedings, a district court must
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conduct a two-prong inquiry to determine (1) whether the
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complaint is legally or factually baseless from an objective
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perspective, and (2) if the attorney has conducted a reasonable
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and competent inquiry before signing and filing it.”
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v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002) (internal
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quotations and citation omitted).
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“to denote a filing that is both baseless and made without a
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reasonable and competent inquiry.”
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Securities Litigation, 78 F.3d 431, 434 (9th Cir. 1996).
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B.
Fed.
When, as here, a “complaint is the
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The word “frivolous” is used
In re Keegan Management Co.,
Claims for Relief
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Rule 11 Sanctions
City Defendants argue that the Court should impose Rule 11
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sanctions on Plaintiff’s counsel because Plaintiff’s counsel
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failed to conduct a reasonable and factual inquiry before filing
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the case and the Complaint only used the collective term
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“Defendants” when describing the various allegations, thus
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denying City Defendants the ability to ascertain the claims
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against them.
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counsel should be sanctioned because they maintained this
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lawsuit against City Defendants after being made aware that City
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Defendants had no involvement in the incident.
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counsel does not oppose City Defendants’ arguments concerning
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the frivolousness of the Complaint, but instead counters that
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City Defendants failed to abide by the safe harbor rule.
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the motion for sanctions was mailed on February 10, 2011,
City Defendants also contend that Plaintiff’s
Plaintiff’s
Though
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Plaintiff’s counsel claims it was not received until February
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14, 2011.
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2011, which is less than 21 days after the alleged receipt of
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the motion, Plaintiff’s counsel argues that City Defendants
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failed to properly comply with the safe harbor rule.
Since the motion for sanctions was filed on March 3,
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“The safe harbor provision gives an attorney the
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opportunity to withdraw or correct a challenged filing by
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requiring a party filing a Rule 11 motion to serve the motion 21
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days before filing the motion.”
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America, Inc. v. Beaulieu of America, LLC, 339 F.3d 1146, 1150
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(9th Cir. 2003); see Fed. R. Civ. P. 11(c)(1)(A).
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of Civil Procedure 5(b)(2)(C) states that service may be made by
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“mailing [a paper] to the person’s last known address – in which
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event service is complete upon mailing.”
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since City Defendants mailed the Motion for Rule 11 Sanctions to
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Plaintiff’s counsel on February 10, 2011 (Doc. #43, Exh. A), and
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waited 22 days to file the motion on March 3, 2011, City
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Defendants properly complied with the safe harbor rule.
Retail Flooring Dealers of
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Federal Rules
The Court finds that
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Furthermore, the Court finds that Plaintiff’s action
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against City Defendants was frivolous.
The Complaint consisted
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of vague and indiscernible allegations against City Defendants.
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The allegations against City Defendants were baseless as City
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Police records show that Plaintiff was not stopped, arrested,
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tested or taken into City Defendants’ custody.
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of Kathy Bolinger, Police Records Supervisor, City of South Lake
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Tahoe, Exh. B.
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to the incident in Plaintiff’s Complaint demonstrates that
See Declaration
The fact that City Defendants have no connection
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Plaintiff’s counsel failed to comply with their duty to
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investigate.
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investigate prior to filing the Complaint, they should have
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dismissed City Defendants from the suit after being contacted by
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City Defendants’ counsel and being shown evidence that City
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Defendants had no involvement in the incident giving rise to
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Plaintiff’s claims.
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allegations concerning City Defendants are frivolous and it
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GRANTS City Defendants’ Motion for Sanctions.
Even if Plaintiff’s counsel had limited time to
Accordingly, the Court finds that the
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C.
Sanctions in the Form of Attorneys’ Fees
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City Defendants request sanctions in the form of attorneys’
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fees and ask for $6,900.00.
Plaintiff’s counsel does not contest
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that attorneys’ fees are an appropriate sanction but instead asks
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the Court to reduce the fees based on an unsupported theory in
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which attorneys’ fees are to be calculated based on the attorneys’
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salaries and what they earn per hour.
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disputes billing items pertaining to Michelle Beckwith and various
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phone calls.
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Plaintiff’s counsel also
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Rule 11 allows payment to the movant of part or all of the
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reasonable attorney’s fees and other expenses directly resulting
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from the violation.
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that in order to deter repetition of the conduct promulgated by
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Plaintiff’s counsel in bringing this frivolous lawsuit, and in
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order to restore City Defendants to the position they were in prior
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to defending this lawsuit, attorneys’ fees and costs are the proper
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form of sanctions.
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Fed. R. Civ. P. § 11 (c)(4).
The Court finds
The Ninth Circuit has held that an attorney’s hourly rate is
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reasonable where it is within the range of salaries of attorneys of
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comparable experience.
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Insurance Co., 556 F.3d 815, 826-27 (9th Cir. 2009).
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Winterrowd, the court stated that a district court is within its
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discretion in setting an associate attorney’s reasonable hourly
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rate at $300 because such rate was well supported by evidence of
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market rates.
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Patrick Enright, City Attorney, at $250 per hour, and Nira Feeley,
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Deputy City Attorney, at $195 per hour, are reasonable and within
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the range of salaries for attorneys with comparable experience.
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Id.
Winterrowd v. American General Annuity
In
Here, the Court finds that the rates for
The Court has reviewed the City Attorneys’ timesheets and
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finds the billing items reasonable.
With respect to Plaintiff’s
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counsels’ argument that they cannot ascertain the identity of
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Michelle Beckwith, such confusion would have been resolved if
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Plaintiff’s counsel had read City Defendants’ Motion to Dismiss in
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which Michelle Beckwith, Risk Management Coordinator for the City
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of South Lake Tahoe, submitted a declaration in support of the
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motion for dismissal.
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Defendants’ fee motion and orders Plaintiff’s counsel, including
Accordingly, the Court GRANTS City
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William O’Mara, Stephen Scheerer, and the O’Mara Law Firm, P.C.,
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pursuant to Rule 11 of the Federal Rules of Civil Procedure, to pay
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$6,900.00 to City Defendants.
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III. ORDER
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For the reasons set forth above,
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City Defendants’ Motion for Rule 11 Sanctions is GRANTED
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and Plaintiff’s counsel, including William O’Mara, Stephen
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Scheerer, and the O’Mara Law Firm, P.C., jointly and severally,
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are ordered to pay $6,900.00 in fees to City Defendants within
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ten (10) days of the date of this Order.
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IT IS SO ORDERED.
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Dated: May 24, 2011
____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE
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