Vehse et al v. Liberty Mutual Fire Insurance Company

Filing 52

ORDER denying (Doc. # 47 ) Motion for Sanctions. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 1/26/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GOETZ D. VEHSE,
Plaintiff,
v.

Case No.

8:16-cv-599-T-33JSS

LIBERTY MUTUAL FIRE INSURANCE
COMPANY,
Defendant.
__________________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff Goetz
D. Vehse’s Motion for Rule 11 Sanctions (Doc. # 47), which was
filed on January 17, 2017. Defendant Liberty Mutual Fire Insurance
Company filed a Response in Opposition to the Motion (Doc. # 50)
on January 25, 2017.

As explained below, the Court denies the

Motion based on Vehse’s failure to comply with the safe harbor
provisions of Rule 11.
Discussion
In this removed breach of contract action, Vehse asserts that
Liberty Mutual breached the terms of a homeowners insurance policy
with respect to sinkhole damage.

Liberty Mutual deposed Vehse’s

expert witness, Sunil Gulati, P.E. and thereafter, on December 14,
2016, filed a motion to exclude Gulati’s testimony. (Doc. # 41).
On January 17, 2017, Vehse filed a Motion for Rule 11 Sanctions,
contending that certain arguments made in Liberty Mutual’s motion

to exclude Gulati’s testimony “contain no factual support” and
“there is no good faith basis for such arguments.” (Doc. # 47 at
3).
In response, Liberty Mutual addresses the substantive issues
raised

regarding

the

expert’s

testimony

and

the

arguments

presented in the relevant motion to exclude expert testimony.
However, one argument Liberty Mutual makes virtually jumps off the
page and requires an immediate denial of Vehse’s Motion for Rule
11 Sanctions: Liberty Mutual asserts that Vehse failed to comply
with Rule 11’s twenty-one day safe harbor provision and instead
filed the motion within hours of first bringing the matter to
Liberty Mutual’s attention. “Rule 11 expressly sets forth the safe
harbor provisions that must be followed before sanctions will be
imposed.” Chex Sys., Inc. v. DP Bureau, LLC, 8:10-cv-2465-T-33MAP,
2011 U.S. Dist. LEXIS 130392, at *9 (M.D. Fla. Nov. 10, 2011).
The safe harbor provision is found in Rule 11(c), which states:
(c) Sanctions.
(1) In General. If, after notice and a reasonable
opportunity to respond, the court determines that Rule
11(b) has been violated, the court may impose an
appropriate sanction on any attorney, law firm, or party
that violated the rule or is responsible for the
violation. Absent exceptional circumstances, a law firm
must be held jointly responsible for a violation
committed by its partner, associate, or employee.
(2) Motion for Sanctions. A motion for sanctions must be
made separately from any other motion and must describe
the specific conduct that allegedly violates Rule 11(b).
The Motion 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. If
warranted, the court may award to the prevailing party
the reasonable expenses, including attorney’s fees,
incurred for the motion.
Fed. R. Civ. P. 11(c)(emphasis added).
Put simply, “Rule 11(c)(2), Federal Rules of Civil Procedure,
requires a party to serve a motion for sanctions on the opposing
party at least twenty-one days before submitting the motion to the
court.” Estate of Brennan v. Church of Scientology Flag Org., Inc.,
No. 8:09-cv-264-T-23EAJ, 2012 U.S. Dist. LEXIS 8544, at *2 (M.D.
Fla. Jan. 25, 2012). As stated in Diamonds.net LLC v. IDEX Online,
Ltd., 254 F.R.D. 475, 476 (S.D.N.Y, 2008), “the plain language of
the Rule expressly requires the serving of a formal motion, and
with good reason, for by serving such a motion a movant itself
certifies its own compliance with Rule 11 in bringing such a motion
and thus places its adversary on notice that the matter may not be
viewed as simply part of the paper skirmishing among adversaries
that too often characterizes litigation in this uncivil age.”
“The

procedural

requirements

of

Rule

11

are

strictly

construed because of the penal nature of the rule.” Chex Sys.,
Inc., 2011 U.S. Dist. LEXIS 130392, at *9.
explains:

“Plaintiff’s

counsel

called

the

Here, Liberty Mutual
undersigned

on

the

morning of January 13, 2017, to discuss this matter for the first

time.

During that phone call, counsel imposed an ultimatum of

less than two hours for Liberty Mutual to withdraw its statement.
Later that day, Plaintiff’s counsel filed his Rule 11 Motion with
the Court.” (Doc. # 50 at 2).
The Court denies the Motion for Rule 11 Sanctions based on
Vehse’s failure to comply with the safe harbor provision of Rule
11.

The Court notes that Liberty Mutual seeks attorney’s fees and

costs in connection with responding to the unsuccessful Rule 11
Motion.

Although the Court has denied the Motion for Sanctions,

the Court exercises its discretion to decline to enter an award of
attorney’s fees and costs in favor of Liberty Mutual.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Goetz D. Vehse’s Motion for Rule 11 Sanctions (Doc.
# 47) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 26th day
of January, 2017.