BCJJ, LLC v. LeFevre et al
Filing
356
ORDER denying 296 Defendants', Evan Berlin and Berlin Law Firm, P.A., Amended Motion for Sanctions. Signed by Judge Elizabeth A. Kovachevich on 8/8/2012. (SS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BCJJ, LLC, a Florida limited liability
corporation,
Plaintiff,
Case No. 8:09-CV-551-T-17EAJ
v.
THOMAS J. LEFEVRE, et al.,
Defendants.
ORDER
This cause is before the Court on:
Dkt. 296
Amended Motion for Sanctions Pursuant to Rule 11
Dkt. 304
Dkt. 351
Dkt. 355
Response
Order Directing Response by Berlin Defendants
Reply
Defendants, Evan Berlin and Berlin Law Firm, P.A. (the "Berlin Defendants"),
filed the instant motion on August 23, 2011, seeking sanctions for Plaintiff BCJJ's
alleged filing of frivolous papers with the Court. (Dkt. 296). The Berlin Defendants had
first filed a Motion for Sanctions on July 20, 2011, (Dkt. 260), but withdrew that motion
on July 29, 2011 after acknowledging their failure to comply with Rule 11's 21-day "safe
harbor" provision. (Dkts. 268, 269). In its response, BCJJ contends that the Berlin
Defendants failed to serve a copy of the Amended Motion for Sanctions as required by
Federal Rules of Civil Procedure 5 and 11 and that the motion should therefore be
Case No. 8:09-CV-551-T-17EAJ
denied as procedurally defective. (Dkt. 304). The Berlin Defendants admit that the
Amended Motion for Sanctions was only served on BCJJ via email, but submit that the
filing and service, via CM/ECF, of the previous Motion for Sanctions, satisfies the
requirements of Rules 5 and 11 notwithstanding the fact that said motion was later
withdrawn. After consideration, the Court finds that the Berlin Defendants' Amended
Motion for Sanctions is procedurally defective and must be denied as such.
DISCUSSION
Sanctions pursuant to Federal Rule of Civil Procedure 11 "are proper (1) when a
party files a pleading that has no reasonable factual basis; (2) when the party files a
pleading that is based on a legal theory that has no reasonable chance of success and
that cannot be advanced as a reasonable argument to change existing law; and (3)
when the party files a pleading in bad faith for an improper purpose." Jones v. Int'l
Riding Helmets, Ltd., 49 F.3d 692, 694 (11th Cir. 1995). Apart from its substantive
requirements, though, Rule 11 includes the unique procedural requirement that a
motion for sanctions "must be served under Rule 5, but it must not be filed or be
presented to the court if the challenged paper, claim, defense, contention, or denial is
withdrawn or appropriately corrected within 21 days after service or within another time
the court sets." Fed. R. Civ. P. 11(c)(1)(A); see 5A Charles Alan Wright et al., Federai
Practice and Procedure § 1337.2 (3d ed.) ("A party seeking sanctions under Rule 11
first must serve—but not file—the motion for sanctions upon the party against whom
sanctions are sought as provided by Rule 5.").
Case No. 8:09-CV-551-T-17EAJ
Rule 5, for its part, permits service of a paper in various ways, including, inter
alia, by personal service, service by mail, or "sending [the paper] by electronic means if
the person consented in writing" Fed. R. Civ. P. 5(b)(2) (emphasis supplied). With
regard to consent, ECF Attorney Registration Form in this district provides a partial
consent to electronic service:
By signing this registration form, the undersigned consents to receive
notice electronically, and waives the right to receive notice by personal
service or first class mail of any document filed electronically pursuant to
Federal Rule of Civil Procedure 5(b)(2)(D), except with regard to service
of a complaint and summons. This registration form does not constitute
consent to electronic service of a document that is not filed with the Court
(such as a Rule 26 disclosure or a discovery request), but consent to
electronic service of such paper may be given separately, in writing, in
accordance with Federal Rule of Civil Procedure 5(b)(2)(D).
(Dkt. 304-4, at 3).
The Berlin Defendants admit that "the only method of service of the [Amended]
Motion on August 1, 2011 was via e-mail." (Dkt. 355, at 2). BCJJ's use of CM/ECF
does provide limited consent to electronic service of certain papers, but in the Middle
District of Florida, that consent specifically excepts those papers "not filed with the
Court" from its scope. Compare Dkt. 304-4, at 3, with Deer v. Saltzman, Tannis, Pittell,
Levin & Jacobson, Inc., 2011 WL 1526829, at*3-4 (S.D. Fla. Apr. 1, 2011) (providing
that counsel had consented to electronic service by using ECF in the Southern District
of Florida, where the ECF Attorney Registration form does not include the provision
specifically excepting those papers "not filed with the Court" from the scope of consent).
And as Rule 11 makes plain, the 21-day safe harbor service on opposing counsel "shall
Case No. 8:09-CV-551-T-17EAJ
not be filed or presented to the court" until the expiration of the 21-day period. Fed. R.
Civ. P. 11(c)(1)(A). Thus, because there is no indication that BCJJ ever consented, in
writing, to electronic service of the Berlin Defendants' Amended Motion for Sanctions,
the emailing of that document was insufficient to comply with Rule 11's 21-day safe
harbor provision. As such, the motion is procedurally deficient. See Geico Gen. Ins.
Co. v. Hampel, 2012 WL 204284, at *2 (S.D. Fla. Jan. 6, 2012) ("Courts consistently
have held that 'strict compliance with Rule 11 is mandatory.'" (quoting In re Pratt, 524
F.3d 580, 588 (5th Cir. 2008)); Millerv. RelationServe, Inc., 2006 WL 5849318, at *6
(S.D. Fla. Dec. 1, 2006) ("[l]n this Circuit the procedural requirements of Rule 11
must... be strictly construed.").
The Berlin Defendants contend that their previous service of an identical motion
for sanctions, (Dkt. 260), provides the necessary service to comply with the safe harbor
provision, but they are wrong. That previous motion for sanctions was withdrawn nine
days after its filing. (Dkts. 268, 269). "Withdrawal of a motion has a practical effect as
if the party had never brought the motion." Caldwell-Baker Co. v. S. ///. Railcar Co., 225
F. Supp. 2d 1243, 1259 (D. Kan. 2002); see Davis v. United States, 2010 WL 334502,
at *2 (CD. Cal. Jan. 28, 2010) (explaining that "[t]he effect of withdrawal of a motion is
to leave the record as it stood priorto the filing as though the motion had never been
made"); Remley v. Lockheed Martin Corp., 2001 WL 681257, at *3 (N.D. Cal. June 4,
2001) (noting that the withdrawal of a motion has the same effect as if it had not been
made). Further, to comply with Rule 11's safe harbor provision, the Berlin Defendants
Case No. 8:09-CV-551-T-17EAJ
were required to serve the motion upon BCJJ, but were not permitted to file it with the
Court until the 21-day period had elapsed. Such a paper falls squarely within the ECF
Attorney Registration form's exception for "service of a document that is not filed with
the Court." (Dkt. 304-4, at 3). And BCJJ never otherwise consented to electronic
service of the Amended Motion for Sanctions, as Rule 5 requires. As such, the Berlin
Defendants did not comply with the procedural requirements of Rule 11, and their
Amended Motion for Sanctions must fail. Accordingly, it is
ORDERED that the Berlin Defendants' Amended Motion for Sanctions (Dkt. 296)
be DENIED.
DONE AND ORDERED in Chambers, in Tampa, Florida this ZS day of August,
2012.
Copies to: All parties and counsel of record
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