Vierbickas v. Verizon Communications Inc. et al

Filing 51

ORDER denying 32 Motion for Sanctions; denying 36 Motion for Sanctions. Signed by Judge Carlos E. Mendoza on 5/8/2017. (KMS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

HELEN VIERBICKAS,
Plaintiff,
v.

Case No: 6:15-cv-1314-Orl-41DCI

VERIZON COMMUNICATIONS INC.
and VERIZON FLORIDA LLC,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Defendants’ Motion for Sanctions (“First Motion for
Sanctions,” Doc. 32) and Motion for Sanctions (“Second Motion for Sanctions,” Doc. 36). Plaintiff
filed a Response (Doc. 40) to Defendants’ First Motion for Sanctions, but she did not respond to
the Second Motion. For the reasons set forth herein, Defendants’ motions will be denied.
I.

PROCEDURAL BACKGROUND

Plaintiff filed this case on August 6, 2015, alleging violations of the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681 et seq., Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq., and the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat.
§§ 559.55–.785, against Defendants related to efforts to collect debts allegedly owed by Plaintiff.
(See generally Compl., Doc. 1). Defendants filed a Motion for Summary Judgment (Doc. 30),
seeking summary judgment on each of Plaintiff’s claims. On April 10, 2017, this Court granted
summary judgment, (see Apr. 10, 2017 Order, Doc. 47), and retained jurisdiction to consider the
pending motions for sanctions.
II.

FIRST MOTION FOR SANCTIONS

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In their First Motion for Sanctions, Defendants seek sanctions pursuant to Federal Rule of
Civil Procedure 11. Defendants argue that Plaintiff lacked a reasonable factual or legal basis to
pursue this litigation.
As relevant, Rule 11(b) provides that, by filing a motion or pleading, the filer certifies that
to the best of his or her “knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances”:
(1) it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of
litigation;
(2) the claims, defenses, and other legal contentions are 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; and
(4) the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on belief or a
lack of information.
Rule 11(b)(2) and (b)(3) go to whether a claim is legally or factually frivolous. See Thompson v.
RelationServe Media, Inc., 610 F.3d 628, 664 (11th Cir. 2010). “[A] litigant’s obligations with
respect to the contents” of pleadings or motions “are not measured solely as of the time they are
filed with or submitted to the court, but include reaffirming to the court and advocating positions
contained in those pleadings and motions after learning that they cease to have any merit.” Turner
v. Sungard Bus. Sys., Inc., 91 F.3d 1418, 1422 (11th Cir. 1996) (quoting Fed. R. Civ. P. 11(b), (c)
advisory committee’s note to 1993 amendment).
In the Eleventh Circuit, a Rule 11 challenge as to frivolity requires a two-prong inquiry—
“whether the legal claims or factual contentions are objectively frivolous, and, if so, whether a
reasonably competent attorney should have known they were frivolous.” Thompson, 610 F.3d at

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665. Under the first step, “[a] factual claim is frivolous if no reasonably competent attorney could
conclude that it has a reasonable evidentiary basis.” Id. Under the second step, the question is
“whether the attorney should have known they were frivolous” or, stated differently, whether “a
reasonable investigation would have revealed the error to a reasonably competent attorney.” Id.
“Both inquiries measure attorney conduct under an objective reasonably competent attorney
standard.” Id. “Rule 11 applies to pro se plaintiffs, but the court must take into account the
plaintiff’s pro se status when determining whether the filing was reasonable.” Thomas v. Evans,
880 F.2d 1235, 1240 (11th Cir. 1989).
Plaintiff’s conduct—particularly taking into account her pro se status—was not sufficiently
objectionable to merit sanctions under Rule 11. Defendants complain that Plaintiff lacked a factual
basis to pursue claims against Verizon Communications Inc. or an FDCPA claim against Verizon
Florida LLC. Although Plaintiff did not formally withdraw those claims during the so-called “safe
harbor” period, Plaintiff did express her willingness to drop those claims and ceased arguing that
those claims had merit in her subsequent filings. (See Doc. 40 at 3–4; Resp. to Summ. J. Mot.,
Doc. 39, at 3–4). This is sufficient, in light of Plaintiff’s pro se status, to satisfy the Court that
sanctions are not warranted for that conduct.
Next, Defendants argue that Plaintiff should have known through reasonable investigation
that her FCRA and FCCPA claims were time barred. While the Court ultimately determined that
the FCRA claims Plaintiff had successfully pleaded against Defendants were outside the statute of
limitations, Plaintiff’s position with regard to those claims was not unreasonable. In response to
both the First Motion for Sanctions and Defendants’ Motion for Summary Judgment, Plaintiff
made the legally supported argument that each dispute letter concerning an item on a credit report
triggers a new statute of limitations period under the FCRA. See Vasquez v. Bank of Am., N.A.,

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No. 15-cv-04072-RS, 2015 WL 7075628, at *3 (N.D. Cal. Nov. 23, 2015) (noting that “[f]ederal
courts are split on the question of whether each separate notice of dispute triggers a duty to
investigate even if the information has been disputed previously” and collecting cases); Bruce v.
Homeward Residential, Inc., No. 1:14-CV-3325-MHC-AJB, 2015 WL 5797846, at *10 n.3 (N.D.
Ga. Aug. 31, 2015) (same). Therefore, had Plaintiff properly alleged a claim based on the April
2015 dispute letter, (see Doc. 47 at 5), there would have been at least arguable legal merit to the
position that such claim was not barred by the statute of limitations.
Finally, Defendants argue that Plaintiff’s FCCPA claims were also time-barred. However,
Plaintiff’s argument that each new report of the information to the credit reporting agencies
renewed the statute of limitations is not bereft of logic. See Pucci v. Bank of Am., N.A., No. 3:14cv-1236-J-32MCR, 2015 WL 12843199, at *4 (M.D. Fla. Mar. 12, 2015) (noting that “courts have
declined to hold that a plaintiff’s claims under the . . . FCCPA were time-barred where the
defendant was alleged to have committed several affirmative violations, some of which would be
untimely based upon the time of filing” and collecting cases). Furthermore, as there is evidence
that the report continued to remain on Plaintiff’s credit report within two years of the filing of this
litigation, Plaintiff’s claims cannot be said to be wholly without factual basis as a reasonable person
could have inferred that Defendants were continuing to report the information based on that
evidence. With respect to the FCCPA claim, Plaintiff’s investigation of the facts and law was
neither so frivolous nor so devoid of a good faith effort that it is deserving of sanctions. 1 Therefore,
Defendants’ First Motion for Sanctions will be denied.
III.

SECOND MOTION FOR SANCTIONS

1

This Court held that Plaintiff’s FCCPA claims were preempted by the FCRA. Defendant
has not argued for sanctions on the basis that Plaintiff should have been aware that her claims were
preempted.

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In the Second Motion for Sanctions, Defendants argue—albeit very briefly—that they
should be entitled to recover their costs and fees incurred as a result of Plaintiff’s failure to attend
the scheduled mediation, including the travel expenses of Defendants’ attorney, pursuant to
Federal Rule of Civil Procedure 16(f). Pursuant to Rule 16, the Court may sanction a party if the
party “fails to appear at a scheduling or other pretrial conference; is substantially unprepared to
participate—or does not participate in good faith—in the conference; or fails to obey a scheduling
or other pretrial order.” Fed. R. Civ. P. 16(f)(1). In addition to sanctions authorized elsewhere in
the Rules, “the court must order the party . . . to pay the reasonable expenses—including attorney’s
fees—incurred because of any noncompliance with this rule, unless the noncompliance was
substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
16(f)(2).
In accordance with the Rule, an aggrieved party is entitled to recover the costs and fees
reasonably expended as a result of the opposing party’s noncompliance. However, according to
Defendants’ motion, Plaintiff informed Defendants a week before the mediation that she would
not attend. (Doc. 36 at 4). Nevertheless, armed with this knowledge, Defendants proceeded to
attend the mediation. (Id. at 5). Even if Plaintiff informed Defendants that she would not attend
the mediation after the deadline to cancel without penalty had passed, it was certainly not
reasonable for Defendants to proceed with the mediation. Any fee or cost incurred in excess of a
cancellation fee is not reasonable. Furthermore, Defendants have presented this Court with no
evidence that they were or would have been charged a cancelation fee or what that fee was or
would have been. The burden is on Defendants to establish not only entitlement to an award but
also the appropriate amount to be awarded. Defendants have not met their burden, therefore the
Second Motion for Sanctions will be denied.

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IV.

CONCLUSION

In accordance with the foregoing, it is ORDERED and ADJUDGED that Defendants’
First Motion for Sanctions (Doc. 32) and Second Motion for Sanctions (Doc. 36) are DENIED.
DONE and ORDERED in Orlando, Florida on May 8, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Party

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