United Consumers Club Inc et al v. Prime Time Marketing Management Inc et al

Filing 381

ORDER AND OPINION DENYING 372 MOTION for Sanctions and denies Plaintiffsrequest for attorney fees. As the trial date is drawing nearer, the parties should focus on abiding by the Courts scheduling order and not waste their own and the Courts time and resources. Signed by Judge Joseph S Van Bokkelen on 3/28/12. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
United Consumers Club, Inc., and
DirectBuy, Inc.,
Plaintiffs,
v.

Case No. 2:07-CV-358 JVB

Prime Time Marketing Management, Inc.,
Dell Craaybeek, and Brenda Craaybeek,
Defendants.
ORDER AND OPINION
This matter is before the Court on Defendants motion for Rule 11 sanctions
against Plaintiffs.
As part of the pretrial filings with this Court, Plaintiff DirectBuy submitted the
Declaration of Janet Davidson. This declaration was three pages long, but DirectBuy
only intended to submit two pages to the Court. DirectBuy explains that the third and
final page was included as a “clerical error.” On April 21, 2010, DirectBuy’s counsel
notified Prime Time’s counsel of the error and told Prime Time to disregard the third
page. (DE 377-1). On January 4, 2012, Prime Time filed a Rule 11 Motion with this
Court alleging that DirectBuy filed the third page in bad faith.
The Court denies Defendant’s Motion for Sanctions (DE 372). Defendants allege
that the third page of Janet Davidson’s Declaration was filed in bad faith. Plaintiff argues
that Defendant’s motion is baseless and procedurally deficient. Rule 11 requires the
moving party to file a separate motion describing the specific conduct that violates the
Rule. Fed. R. Civ. P. 11(c)(2). Rule 11 also requires the moving party to serve this

motion to the nonmoving party twenty-one days before filing it with the court. Id. The
record does not indicate that Defendant gave Plaintiff twenty-one days to respond before
filing the motion with the Court. This procedural deficiency alone is enough to deny an
award of sanctions. See Wilson v. Kautex, Inc., 2009 WL 1657460, at *1 (N.D. Ind. June
10, 2009) (“This ‘twenty-one day safe harbor is not merely an empty formality.’”
(quoting Divane v. Krull Elec. Co., Inc., 200 F.3d 1020, 1026 (7th Cir. 1999)).
Consequently, an award of sanctions is not warranted in this case.
Plaintiffs in turn urges the Court to award it attorney fees for costs they incurred
responding to Defendants’ Rule 11 motion. That motion too will be denied.

CONCLUSION
The Court denies Defendant’s Rule 11 motion (DE 372) and denies Plaintiff’s
request for attorney fees. As the trial date is drawing nearer, the parties should focus on
abiding by the Court’s scheduling order and not waste their own and the Court’s time and
resources.
SO ORDERED on March 28, 2012.
S/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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