Michelle Ingle v. Janick, et al

Filing 29

ORDER denying 21 Plaintiff, Michelle Ingle's Motion for Rule 11 Sanctions. Signed by Judge Sheri Polster Chappell on 11/20/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHELLE INGLE, an individual
Plaintiff,
v.

Case No: 2:14-cv-544-FtM-38DNF

JOHN JOSEPH JANICK, M.D., P.A.
and JOHN J. JANICK,
Defendants.
/
ORDER1
This matter comes before the Court on Plaintiff, Michelle Ingle's Motion for Rule 11
Sanctions (Doc. #21) filed on October 26, 2014. The Defendants filed their Amended
Response (Doc. #23) on October 31, 2014. The Motion is now fully briefed and ripe for
the Court’s review.
FACTS
Ingle filed a five count Complaint alleging the Defendants violated the False Claims
Act 31 U.S.C. § 3730(h) (Counts I and II) and that the Defendants violated Florida’s False
Claim Act Fla. Stat. § 68.088 (Counts III and IV). In addition, Ingle claimed the Defendants
violated Florida’s Private Whistleblower Act, Fla. Stat. § 448.102(3) (Count V).

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Ingle claims the Defendants retaliated against her beginning in January 2014 after
she informed them that their billing practices were in violation of the federal False Claims
Act. Thereafter, Ingle claims that the office environment became so hostile it made her
ill and she was forced to take sick leave. Ingle eventually resigned over the alleged hostile
environment and alleged improper Medicare billing practices.

Ingle alleges the

resignation was in fact a constructive discharge forced on her in retaliation for her
disclosure the alleged improper billing practices.
In response to Ingle’s Complaint, the Defendants filed a Counterclaim (Doc. #13)
on September 30, 2014. In the Counterclaim the Defendants allege a single count of
Conversion alleging: (1) that Ingle took $75,000.00 worth of medical equipment to create
a completing mobile medical unit; (2) falsified payroll time records in order to be paid for
time she did not work; and (3) continued to draw her car payments on the Medical Groups
employer account after she was terminated.
Prior to filing the Defendants’ Counterclaim, Janick’s Counsel sent Ingle’s Counsel
and e-mail which states in pertinent part:
We are in the process of e-filing the attached counter-claim now. I am filing
this more to help you understand what (not who, but what) your client
is, and the lack of merit in the claim against my clients.
When you read the counter-claim, I want you to realize how much harsher
this could have been written. In addition to conversion, there are claims for
breach of fiduciary duty, breach of duty of loyalty, theft of corporate
opportunity, and fraud here. I could have sent a civil theft letter under F.S.
772.11 to seek treble damages + attorney fees. Maybe I could even start a
"false claims act" claim since your client is now apparently providing medical
services without a license. I could bring you or your firm into this for
champerty and barratry (or the modern equivalent - abuse of process).
I don't want to pursue any of this for one simple reason - we both know your
client is personally penniless, and even if the ultimate trier of fact gives me
everything I've ever hoped or dreamed, all I'm going to get out of this is a

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piece of paper awarding my client monies that your client will never be able
to pay. Unless I absolutely have to, I don't like going after other
attorneys.
(Doc. #21 at 4) (emphasis in original)2.
In response to the Defendants Counterclaim and the allegations contained in
personal correspondence to Ingle’s Counsel, Ingle now moves the Court for sanctions
pursuant to Fed. R. Civ. P. 11.
STANDARD OF REVIEW
The purpose of Rule 11 sanctions is to reduce frivolous claims defenses, or
motions and to deter costly meritless maneuvers. Massengale v. Ray, 267 F.3d 1298,
1302 (11th Cir. 2001). Rule 11 requires district courts to impose appropriate sanctions,
after notice and a reasonable opportunity to respond where an attorney or party submits
a pleading to the court that: (1) is not well-grounded in fact and therefore has no
reasonable factual basis; (2) is not legally tenable; or (3) is submitted in bad faith for an
improper purpose. Ricccard v. Prudential Ins. Co., 307 F.3d 1277, 1294 (11th Cir. 2002)
(citing Fed. R. Civ. P. 11(b)). Rule 11 incorporates a subjective standard whereby the
court determines whether or not a reasonable attorney in like circumstances could believe
his actions were factually and legally justified. Kaplan v. DaimlerChrysler, A.G., 331 F.3d
1251, 1255 (11th Cir. 2003).
When testing conduct under Rule 11, a court is to use an objective standard and
examine the reasonableness of the conduct under the circumstances and what was

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While the Court declines to level Rule 11 sanctions at this time, the language used in counsel’s e-mail is
inappropriate. The Preamble to the Florida Bar Rules of Professional Conduct states that attorneys have
a “duty of courtesy and cooperation with fellow professionals for the efficient administration of our system
of justice and the respect of the public it serves.” The Court cautions Counsel for the Defendants that his
future correspondence and communications with opposing counsel and the Court must comply with the
spirit of courtesy and respect set forth by the Florida Bar.

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reasonable to believe at the time the pleading was submitted. Custom Mfg. and Eng’g,
Inc. v. Midway Servs., Inc., No. 8:03-cv-2671-T-30MAP, 2006 WL 4792784 * 2 (M.D. Fla.
Sept.14, 2006) (citing Baker v. Alderman, 158 F. 3d 516, 524 (11th Cir. 1998)). “In making
this determination a two step inquiry is required: (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.” Custom Mfg., 2006 WL 4792784 at * 2. The
advisory committee notes and the text of Rule 11 itself state that Rule 11sanctions apply
to pro se litigants as well as attorneys. Fed. Rule Civ. P. 11(b). Sanctions are warranted
when a party exhibits a “deliberate indifference to obvious facts,” but not when the party’s
evidence to support a claim is “merely weak.” Ricccard, 307 F.3d at 1294 (citing Baker,
158 F.3d at 524).
DISCUSSION
Ingle argues the Defendants’ Counterclaim and other filings are frivolous and
brought for improper purposes. Specifically, Ingle claims the Defendants’ Counterclaim
was brought to discredit and smear Ingle herself. Ingle argues the allegations in the
Defendants’ e-mail demonstrates that the Counterclaim was filed to smear her name
rather than to bring a proper claim before the Court. Thus, Ingle claims the Counterclaim
was brought for an improper purpose.
Ingle also states that the Defendants acknowledged in a previous matter (not
before this Court) that Ingle resigned and was not terminated from her employment in
contrast to the Counterclaim which claims Ingle was terminated for cause. Thus, Ingle
states the Defendants deliberately filed false information with the Court in their
Counterclaim. Ingle further contends the Counterclaim was filed with the knowledge that

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this Court could not possibly have jurisdiction over the alleged claims. As such, Ingle
argues that Rule 11 sanctions should be imposed against the Defendants for filing
improper and false claims with the Court.
The Defendants respond that the Counterclaim was not filed in bad faith nor for
improper purposes but to make a proper claim that Ingle stole medical equipment, lied on
her time card, stole services and took money directly from the Defendants’ operating
account to pay her own expenses.
Rule 11 sanctions are appropriate when an attorney submits filings that are not
legally tenable, submitted in bad faith, or are submitted for an improper purpose. Riccard,
307 F. 3d at 1294. There was nothing presented in Janick’s Counterclaim at the time the
pleading was submitted that warrants Rule 11 sanctions. Therefore, the Motion for Rule
11 sanctions is due to be denied.
Accordingly, it is now
ORDERED:
Plaintiff, Michelle Ingle's Motion for Rule 11 Sanctions (Doc. #21) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 20th day of November, 2014.

Copies: All Parties of Record

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