Bernard v. Does 1-5

Filing 67

ORDER DENYING MOTIONS FOR SANCTIONS re 56 , 62 by Judge Ronald M. Whyte (rmwlc2, COURT STAFF) (Filed on 9/11/2012)

1
2
3
4

E-FILED on

9/11/12

5
6
7
IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
United States District Court
For the Northern District of California

8

SAN JOSE DIVISION

11
12

DON BERNARD, an individual,

13
14
15

No. 11-cv-03414-RMW

Plaintiff,
ORDER DENYING MOTIONS FOR
SANCTIONS

v.
ROBERT DONAT, DOES 1-5, individuals,

[Re Docket Nos. 56, 62]
16

Defendants.

17
18

On May 25, 2012, plaintiff Don Bernard ("plaintiff") voluntarily dismissed his Second

19

Amended Complaint ("SAC") for trademark infringement, false advertising and intentional

20

interference with economic advantage without prejudice. The court had previously dismissed

21

plaintiff's first amended complaint, but given him leave to amend in order to allege facts showing

22

that he and defendant Robert Donat ("defendant") were commercial competitors. See Dkt. No. 47.

23

On May 29, 2012, defendant, who is pro se, filed a motion for sanctions under Fed. R. Civ.

24

P. 11, arguing that the SAC: (1) was filed in order to harass defendant for his participation as a

25

witness in an unrelated court proceeding involving plaintiff; (2) is legally deficient; and (3) contains

26

false statements. See Dkt. No. 56. Defendant seeks recovery of the costs associated with the

27

defense of this case and dismissal of plaintiff's claims with prejudice.

28
ORDER DENYING MOTIONS FOR SANCTIONS
No. 11-cv-03414-RMW
EDM

On June 26, 2012, plaintiff responded with his own motion for sanctions, contending that

1
2

defendant's sanctions motion was frivolous because it was filed after the dismissal of the SAC and

3

was intended simply to recover defense costs, rather than to "deter future baseless filings." Dkt. No.

4

9 at 9 (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990)).

5

The court denies both motions. Rule 11 requires a party seeking sanctions to serve its

6

motion on the opposing party 21 days before submitting it to the court. See Fed. R. Civ. P. 11(c).

7

This requirement is intended to provide a "safe harbor" to withdraw or correct a challenged filing.

8

See Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998). Here, it appears that defendant notified

9

plaintiff of his intent to seek sanctions on May 8, 2012, seventeen days before plaintiff voluntarily

United States District Court
For the Northern District of California

10

dismissed the SAC. See Dkt. No. 57-1 (Barker Decl.) ¶ 11. Because the allegedly offending

11

pleading was withdrawn during the safe harbor period, granting defendant's motion for sanctions

12

would thwart the purpose of Rule 11. Cf. Barber, 146 F.3d at 710 (motion for sanctions filed after

13

complaint was dismissed must be denied because the safe harbor period is intended to allow a party

14

to "withdraw the offending pleading and thereby escape sanctions"); Radcliffe v. Rainbow Constr.

15

Co., 254 F.3d 772, 788 (9th Cir. 2001) (party that failed to serve its opponent with sanctions motion

16

at least 21 days in advance not entitled to sanctions). Accordingly, defendant's motion is denied.

17

On the other hand, defendant's filing of the motion for sanctions after dismissal of the SAC

18

does not appear to violate Rule 11 or any other rule. Moreover, the court finds that there is at least

19

some evidence that plaintiff's allegations, while probably not sanctionable, are not particularly

20

legitimate either.1 In other words, defendant's sanctions motion is not entirely without merit. The

21

court thus denies plaintiff's motion for sanctions, and cautions plaintiff that if he files another

22

complaint against defendant and it does not comply with Rule 11, the court will more seriously

23

consider imposing sanctions at that time.

24
25
26
1

27
28

For example, defendant included materials with his Second Amended Motion for Sanctions,
Dkt. No. 46, which appears to have been amended by the present motion, suggesting that plaintiff
and his counsel are walking a thin line in alleging that plaintiff was not "convicted" for violations of
the Texas Rules of Professional Conduct or for fraud. In addition, the court questions plaintiff's
allegations regarding personal jurisdiction.
ORDER DENYING MOTIONS FOR SANCTIONS
No. 11-cv-03414-RMW
EDM

2

1

This order does not preclude defendant, as the prevailing party, from filing a motion for costs

2

under Fed. R. Civ. P. 54(d) if he can show good cause why he did not comply with the 14-day

3

limitations period proscribed by Civil Local Rule 54.

4

It is so ordered.

5
6 DATED:

September 11, 2012
RONALD M. WHYTE
United States District Judge

7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER DENYING MOTIONS FOR SANCTIONS
No. 11-cv-03414-RMW
EDM

3