Jordan v. Sprint Nextel Corporation et al

Filing 66

MEMORANDUM AND ORDER granting in part and denying in part 29 Motion to Dismiss; denying 56 Motion for Sanctions; denying 61 Motion to Strike ; denying 61 Motion for Extension of Time to File Response/Reply. Signed by District Judge Eric F. Melgren on 3/11/2014. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JACK R. JORDAN,
Plaintiff,

vs.

Case No. 12-2573

SPRINT NEXTEL CORPORATION, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Jack R. Jordan brings a retaliation claim under § 806 of the Sarbanes-Oxley Act
of 2002 (“SOX”) (18 U.S.C. § 1514A) against Defendant Sprint Nextel Corporation, Inc. and
Defendant Gary Foresee.

He claims that Defendants constructively discharged him and

retaliated against him in several other ways. Defendants seek dismissal of Plaintiff’s lawsuit
arguing that (1) the statute of limitations or statute of repose has run, (2) the doctrine of laches
bars Plaintiff’s claim, and (3) Plaintiff fails to adequately state a claim against Defendants. For
reasons explained in more detail below, the Court denies in part and grants in part Defendants’
motion. Several other motions are also before the Court, and the Court denies these motions for
the reasons stated below.

I.

Factual and Procedural Background

The Parties
Plaintiff Jack R. Jordan worked as an attorney for Defendant Sprint1 in the Corporate
Secretary’s Group of Sprint’s Law Department from January 13, 2003 through April 25, 2005.
Defendant Gary Forsee was the CEO of Sprint from approximately March 19, 2003 through
October 8, 2007. Forsee was also a member of Sprint’s Board of Directors from August 13,
2005, through October 8, 2007, and the Chairman of Sprint’s Board of Directors from
approximately December 12, 2006 through October 8, 2007.
Events Leading up to Jordan’s Departure from Sprint
Under SEC rules, Sprint was allegedly required to describe in each of its proxy
statements and annual reports any transaction or series of transactions in the previous year
amounting to more than $60,000 directly or indirectly between Sprint and any executive officer
or board member or their family members (“Related Party Transaction”). Sprint was required to
disclose the dollar amount of each Related Party Transaction. Sprint was also required to
disclose transactions such as the purchase of a Sprint executive officer’s residence, describing
the principle followed in determining Sprint’s purchase price and the name of the person making
such determination.
Jordan reported to Claudia Toussaint, who was the Sprint Vice President in charge of the
Corporate Secretary’s Group of Sprint’s Law Department. Alternatively, Jordan could report to
Sprint’s General Counsel, Thomas Gerke. In 2003, and effective through the remainder of
Jordan’s employment, Toussaint assigned Jordan primary responsibility for the following duties:
1

On August 12, 2005, Sprint Corporation merged with Nextel Communications, Inc. to form Sprint Nextel
Corporation. The Court will simply refer to the corporate Defendant as Sprint.

-2-

(1) preparing annual questionnaires for officers and directors, including Related Party
Transactions; (2) analyzing the results of officers’ and directors’ responses to those
questionnaires; and (3) preparing Sprint’s disclosures in SEC filings regarding Related Party
Transactions and the strength of Sprint’s corporate governance.
In 2003 and 2004, Sprint allegedly engaged in a number of transactions with certain
executive officers, including Forsee, Bruce Hawthorne (Forsee’s Chief Staff Officer), Howard
Janzen, and Michael Stout. Sprint purchased the former residences of Forsee, Hawthorne, and
Janzen in 2003 for $2,920,0000, $1,150,000, and $372,000, respectively.2 In 2003, Janzen and
Stout also received loans directly or indirectly from Sprint of $250,000 and $100,000,
respectively.

Jordan refers to the foregoing transactions as the “Relocation-Related

Transactions.”
In January and February 2004, Jordan believed that in connection with the proxy
statement that Sprint later filed on March 16, 2004, Sprint officers were preparing to violate SEC
rules requiring disclosures of Related Party Transactions that were related to executive officers’
relocations in 2003. In late January and early February 2004, Jordan allegedly repeatedly
informed Toussaint that SEC rules and regulations required executive officers’ relocation-related
Related Party Transactions to be disclosed in Sprint’s 2004 proxy statement.
In 2004, Jordan did not know the specific details of the Relocation-Related Transactions.
Jordan, however, knew of the benefits of Sprint’s relocation program because he participated in
it when he relocated to Kansas City in 2003, and he had received benefits and a loan in

2

Sprint allegedly incurred losses on these residences in the amount of $720,000, $250,000, and $22,500
upon resale, respectively. It appears that the $250,000 loss on Hawthorne’s residence occurred in 2003 and the
$720,000 loss on Forsee’s residence occurred in 2004. The $22,500 loss appears irrelevant because it is below the
$60,000 threshold.

-3-

connection with his relocation. Jordan (a mid- level attorney) alleges that the amount of his
relocation benefits were significantly higher than the amounts that other executive officers’
reported relocation expenses were. In addition, Jordan alleges that his official notice from Sprint
of the amount of his relocation benefits was significantly less than the amount Toussaint had
previously informed Jordan that he had received. Thus, Jordan allegedly told Toussaint that he
believed that Sprint’s most highly compensated executives had received loans that were required
to be disclosed in Sprint’s 2004 proxy statement.
In late January 2004, Toussaint reassigned responsibility for addressing Sprint’s March
2004 proxy statement disclosures of the 2003 Relocation-Related Transactions benefits from
Jordan to another Sprint attorney. Toussaint did not inform Jordan of her decision to do so.
Toussaint also allegedly excluded Jordan from all conversations with Sprint attorneys or outside
counsel regarding any details of any Relocation-Related Transactions or Sprint’s obligations to
disclose them.
The disclosures of Related Party Transactions as they existed in the February 6, 2004,
draft of Sprint’s proxy statement failed to include any information about the Relocation-Related
Transactions. But in a telephone conversation on or about February 7, 2004, among Toussaint,
Jordan, and a third Sprint attorney, Toussaint allegedly pressured Jordan to agree that those
disclosures were complete and accurate. Jordan told Toussaint that he could not make this
statement until he had been given access to the information regarding the 2003 relocation
benefits of senior executive officers.

Toussaint allegedly discouraged Jordan from further

opposition by claiming that she had obtained a memorandum from outside counsel explaining
why additional disclosure was not required.

Toussaint then allegedly told Jordan to cease

working on those issues.

-4-

Sprint’s 2004 proxy statement did not contain these Relocation-Related Transactions.
The portion of Sprint’s 2004 proxy statement that should have contained these disclosures was
incorporated by reference into Sprint’s 2003 annual report. On March 9, 2004, and November 9,
2004, Sprint’s 2003 annual report was filed with the SEC.
In January 2005, Sprint’s outside counsel informed Jordan that SEC rules required
Sprint’s 2005 joint proxy statement/prospectus to include disclosures of Related Party
Transactions for the years 2002 through 2004. In early January 2004 and 2005, a Director and
Officer Questionnaire was forwarded to Forsee asking him to provide information to Jordan,
including all Related Party Transactions in 2003. Forsee did not include any information about
his Relocation-Related Transactions.
In February 2005, Jordan asked Forsee to provide information to Jordan or allow Jordan
access to information specifically about the Relocation-Related Transaction in connection with
the preparation of Sprint’s 2005 joint proxy statement/prospectus. Forsee allegedly withheld this
information.
In February 2005, Jordan informed Gerke about Jordan’s concerns that Sprint had
violated in 2004, and was preparing to violate in 2005, SEC rules in connection with the
Relocation-Related Transactions. Jordan allegedly informed Gerke that he was raising his
concerns in compliance with his obligations under the SOX 307 Rules (Rules of Professional
Responsibility for Attorneys). Gerke allegedly said “[t]hey didn’t affect the price of Sprint
stock. It’s not like it was an $11 billion accounting fraud.”3

3

Doc. 24, ¶ 75, Amended Complaint.

-5-

Jordan met with Forsee on or about February 18, 2005, and informed him that he was
doing so to comply with the requirements imposed on Jordan by the SOX 307 Rules. Forsee
allegedly reacted with hostility. Jordan alleges that because of this February 18, 2005, meeting,
Forsee caused Sprint’s failure to disclose in 2004 the Relocation-Related Transactions.
On or about March 3, 2005, Jordan reported to Sprint’s entire Board information about
the alleged violations he had previously reported to Forsee and other Sprint officers. Jordan
requested and was granted unpaid leave, in part, for the purpose of permitting him to pursue
employment opportunities outside of Sprint. Jordan was on unpaid leave from March 4, 2005,
until March 23, 2005.
On March 15, 2005, Sprint disclosed in an SEC filing some of the information that
Forsee and others had failed to disclose to shareholders in 2004 and were attempting to allegedly
conceal in 2005.4

On March 18, 2005, Gerke allegedly disclosed to Jordan that Jordan’s

concerns had been substantiated regarding Sprint’s failure in 2004 and its pending failure in 2005
to comply with SEC rules. Jordan believed that he could then return to work at Sprint and
informed Sprint that he intended to return to work on March 23, 2005.
On or about March 20, 2005, Sprint officers suspended Jordan, instructing him to remain
out of the office until April 12, 2005. On April 7, 8, and 10, Jordan forwarded to Sprint officers
and directors additional information and analysis regarding alleged evidence of violations of
SEC rules. On April 7, 2005, Jordan informed Gerke that he believed that Sprint officers were
attempting to cause Sprint authorities to rely on information that they knew to be false and that

4

Jordan alleges that even the information that Sprint did disclose on March 15, 2005, was false and
misleading in material respects.

-6-

Forsee and other officers were attempting to fraudulently deprive Jordan from his employment at
Sprint.
On April 11, 2005,5 Sprint allegedly instructed Jordan that he must leave the Sprint
campus and not return, discontinued Jordan’s voicemail account, and terminated his electronic
access to Sprint’s document system. Jordan returned to work on April 12, 2005, but he alleges
that within an hour of returning to work, he was suspended indefinitely and told that he was
relieved of all duties. Jordan also claims that Forsee and Sprint officers seized Jordan’s laptop
computer to search and seize any information that would permit Sprint to terminate his
employment.
On or about April 19, 2005, Jordan submitted notice to Gerke that he believed that he was
being constructively discharged and stated he would resign effective April 25, 2005. Jordan
claims that his belief in the SEC rules required him to resign. Sprint allegedly did not address
Jordan’s concerns and accepted Jordan’s resignation on April 20, 2005. On May 10, 2005,
Jordan wrote to Sprint’s board of directors to inform them that he believed that he had been
discharged in retaliation for his protected activities. Jordan alleges that Sprint engaged in
multiple adverse actions against Jordan subsequent to Jordan’s employment with Sprint. These
alleged adverse actions include making disparaging statements to the SEC about Jordan.
Jordan’s Administrative Complaints and Proceedings
Jordan filed three complaints with the Occupational Safety and Health Administration
(“OSHA”). On April 11, 2005, Jordan filed his first complaint (“Jordan I”).6 In this complaint,

5

In the Amended Complaint, Jordan uses both April 11 and April 12 as the date he was allegedly
indefinitely suspended.
6

ALJ Case No. 2006-SOX-041.

-7-

Jordan alleged that Forsee and other Sprint officers were harassing Jordan and subjecting him to
a hostile work environment. On April 28, 2005, Jordan supplemented Jordan I to allege that
Forsee and other Sprint officers had prevented Jordan from returning to work since March 23,
2005, had caused Jordan to be suspended from work on April 12, 2005, and had constructively
discharged Jordan from Sprint. On March 14, 2006, the Administrative Law Judge (“ALJ”)
assigned to Jordan I denied Defendants’ Motion to Dismiss and/or for Summary Decision. The
ALJ, however, granted Defendants’ request to certify to the Department of Labor’s
Administrative Review Board (“ARB”) the question of whether Jordan would be permitted to
rely on attorney-client privileged information in an effort to substantiate his whistleblower
retaliation allegations. The ALJ stayed the proceedings in Jordan I until the ARB issued its
ruling upon that question. The ARB did not rule upon the question until September 30, 2009.
In the meantime, on March 20, 2006, Jordan filed a second complaint (“Jordan II”)7 with
OSHA alleging that Forsee and other Sprint officers blacklisted or harassed Jordan by making
false or misleading professionally damaging statements about Jordan.

Those allegations

included statements that Sprint allegedly made in a letter to the SEC in December 2005. On June
23, 2006, the ALJ consolidated Jordan II with Jordan I and stayed the proceedings in Jordan II
until the ARB reached its decision in Jordan I.
Jordan filed a third complaint (“Jordan III”)8 with OSHA on January 19, 2010, alleging
that Forsee and Sprint blacklisted Jordan, prevented his reinstatement at Sprint, and harassed
Jordan by making false or misleading professionally damaging statements in a letter to the SEC
in January 2010. On March 26, 2010, Jordan supplemented Jordan III by complaining that
7

ALJ Case No. 2006-SOX-098.

8

ALJ Case No. 2010-SOX-050.

-8-

Forsee and Sprint made inaccurate and damaging statements to the SEC in September and
October 2008.
On March 8, 2010, Jordan I and II were reassigned to a different ALJ. On May 12, 2010,
the ALJ ordered that proceedings in Jordan I and II would be held in abeyance until he ruled
upon Defendants’ motion to dismiss Jordan II. The ALJ granted Defendants’ request to dismiss
Jordan II. Jordan then timely petitioned the ARB to review the ALJ’s decision, and the ARB
granted Jordan’s request.
On October 15, 2010, the ALJ ordered that Jordan III be consolidated with Jordan I.
After the ALJ granted Defendants’ motion to dismiss Jordan III,9 Jordan petitioned the ARB to
review that decision, which the ARB granted.
While Jordan II and III were pending ARB review, Jordan notified the ALJ that he
intended to obtain de novo review of Jordan I in federal court. The ALJ dismissed Jordan I, but
in the same order, the ALJ provided that Jordan I could be reinstated before the ALJ as long as
Jordan did not file a complaint in federal court. Effective August 31, 2012, the ARB dismissed
Jordan II and III so that Jordan could pursue all his claims together in federal district court.
The Current Lawsuit
On August 30, 2012, Jordan filed a Complaint in the District of Kansas. Defendants filed
a Motion to Dismiss. Jordan then filed a forty-six page Amended Complaint on March 22, 2013.
Defendants withdrew their original Motion to Dismiss and filed another Motion to Dismiss (Doc.
29) based on the allegations in the Amended Complaint. Defendants assert that this Court should
dismiss Plaintiff’s Complaint because (1) the statute of repose and statute of limitations bars his

9

The ALJ’s dismissal of Jordan III occurred on December 6, 2010.

-9-

claims, (2) the doctrine of laches bars his claims, and (3) he fails to state a claim. The Court
heard oral arguments on Defendants’ Motion to Dismiss on January 27, 2014. After the Court
heard oral arguments on Defendants’ Motion to Dismiss, the parties filed several additional
motions. Plaintiff filed a Motion for Sanctions (Doc. 56). Defendants filed a Motion to Strike
Plaintiff’s Motion for Sanctions or, in the Alternative, for an Extension of Their Response
Deadline (Doc. 61).10 The Court will first address Defendants’ Motion to Dismiss and then
address Plaintiff’s Motion for Sanctions.
II.

Defendants’ Motion to Dismiss

A. Legal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’ ”11 “[T]he mere
metaphysical possibility that some plaintiff could prove some set of facts in support of the
pleaded claims is insufficient; the complaint must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.”12 “The
court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to
state a claim for which relief may be granted.”13 In determining whether a claim is facially

10

Defendants also filed a Motion for Leave to File Notice of Supplemental Authority (Doc. 58) which the
Court granted (Doc. 63).
11

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

12

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

13

Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003).

(2007)).

-10-

plausible, the court must draw on its judicial experience and common sense.14 All well-pleaded
facts in the complaint are assumed to be true and are viewed in the light most favorable to the
plaintiff.15 Allegations that merely state legal conclusions, however, need not be accepted as
true.16
B. Analysis
Defendants urge this Court to dismiss Plaintiff’s claim for three reasons. First, they contend
that the statute of limitations or statute of repose bars Plaintiff’s claim. Next, they assert that the
doctrine of laches precludes Plaintiff’s claim. Finally, they contend that Plaintiff fails to state a
claim. The Court will address each argument.
1.

Statute of Limitations

Defendants first assert that Plaintiff’s SOX whistleblower retaliation claim is barred by
the applicable statute of limitations and statute of repose. Plaintiff disagrees. There is an issue
as to what is the applicable statute of limitations on Plaintiff’s retaliation claim.
As an initial matter, the Court must set forth how an individual proceeds with a retaliation
claim under 18 U.S.C. § 1514A, the statute under which Plaintiff brings his claim.
18 U.S.C. § 1514A(b)(1)(A)-(B) provides:
A person who alleges discharge or other discrimination by any person in violation
of subsection (a) may seek relief under subsection (c), by—
(A) Filing a complaint with the Secretary of Labor; or

14

Iqbal, 556 U.S. at 678.

15

See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.

16

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

1984).

-11-

(B) If the Secretary has not issued a final decision within 180 days of the filing of
the complaint and there is no showing that such delay is due to the bad faith of
the claimant, bringing an action at law or equity for de novo review in the
appropriate district court of the United States, which shall have jurisdiction
over such an action without regard to the amount in controversy.17
Thus, the statute requires an individual to first administratively file a complaint with the
Secretary of Labor. It also contains a specific statute of limitations for filing administratively.
18 U.S.C. § 1514A(b)(2)(D), entitled “[s]tatute of limitations,” provides that “[a]n action under
paragraph (1) shall be commenced not later than 90 days after the date on which the violation
occurs.”18 Plaintiff timely followed this procedure.
The issue then arises as to when a plaintiff may file in federal court.

Section

1514A(b)(1)(B) provides that an individual may bring an action for de novo review in the
appropriate district court of the United States “if the Secretary has not issued a final decision
within 180 days of the filing of the complaint and there is no showing that such delay is due to
the bad faith of the claimant.” But this provision appears to be permissive, not mandatory. That
is, an individual may file a federal action after 180 days, but the statute does not require the
individual to do so. Because there is not a specific statute of limitations contained in § 1514A as
to when an individual must file in federal court, the issue is whether another statute of limitations
is applicable.
Only two cases have specifically addressed the statute of limitations for filing a SOX
whistleblower retaliation claim in federal court. In both of those cases, the court applied 28
U.S.C. § 1658, although the courts applied different subsections. 28 U.S.C. § 1658 provides:
17

18 U.S.C. § 1514A(b)(1)(A)-(B).

18

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. No. 111-203,
effective July 22, 2010, increased the statute of limitations contained in § 1514A(b)(2)(D) from 90 days to 180 days.
The revision is inapplicable in this case.

-12-

(a) Except as otherwise provided by law, a civil action arising under an Act of Congress
enacted after the date of the enactment of this section may not be commenced later
than 4 years after the cause of action accrues.19
(b) Notwithstanding subsection (a), a private right of action that involves a claim
of fraud, deceit, manipulation, or contrivance in contravention of a regulatory
requirement concerning the securities laws, as defined in section 3(a)(47) of
the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(47)), may be brought
not later than the earlier of—
(1) 2 years after the discovery of the facts constituting the violation; or
(2) 5 years after such violation.
In Ellis v. CommScope, Inc.,20 the Northern District of Texas determined that there were
no federal court time constraints contained in 18 U.S.C. § 1514A, but the two-year statute of
limitations or five-year statute of repose in § 1658(b) was applicable.21 The court noted that the
plaintiff’s whistleblower retaliation claim related to his allegation that the company had engaged
in fraud, and that the plaintiff discovered the facts constituting the alleged fraud violation in
October of 2006. Because the plaintiff had complied with the requirements of § 1514A, and had
filed in federal court nineteen months after discovering the alleged violation in October of 2006,
the court found that plaintiff’s suit was timely under § 1658(b).22

19

Congress enacted this section on December 1, 1990.

20

2008 WL 4191482 (N.D. Tex. Sept. 11, 2008).

21

Id. at *4. Another decision from the Northern District of Texas did not apply the two-year statute of
limitations in § 1658(b). See Candler v. URS Corp., 2013 WL 5353433 (N.D. Tex. Sept 25, 2013). The statute of
limitations, however, is an affirmative defense, and in Candler, the defendant did not assert a statute of limitations
argument. The defendant terminated the plaintiff on January 14, 2011, and she filed her complaint in federal court
on March 29, 2013. Id. at *1. The defendant argued that the court did not have subject matter jurisdiction over the
plaintiff’s SOX whistleblower retaliation claim. The court disagreed and found that the two jurisdictional preconditions in § 1514A had been met. Id. at **3-4. First, the plaintiff had filed with the DOL and 180 days had
passed without a decision from the DOL. Id. at *3. Second, the plaintiff had not engaged in bad faith delay. Id. at
*4. Thus, the court determined that it had subject matter jurisdiction over the plaintiff’s claim. Id. at *7.
22

Ellis, 2008 WL 4191482, at *4.

-13-

Defendants argue for the application of § 1658(b) asserting that Plaintiff’s claim
“involves a claim of fraud” in connection with the SEC. The Court disagrees. Plaintiff does not
bring a fraud, deceit, or manipulation claim under the SEC. Instead, he brings a whistleblower
retaliation claim, pursuant to 18 U.S.C. § 1514A. Although his claim may relate to SEC rules,
his claim is one for retaliation—not one for fraud.23 Thus, § 1658(b)’s statute of limitations and
statute of repose do not appear applicable to his SOX whistleblower retaliation claim.
The Eastern District of Virginia is the only other court specifically addressing the statute
of limitations issue for a SOX whistleblower retaliation claim. In Jones v. Southpeak Interactive
Corp.,24 the Eastern District of Virginia found that 28 U.S.C. § 1658(a) was the relevant statute
of limitations. The court in Jones took issue with the defendant’s proposed application of
§ 1658(b) and noted:
[A]pplication of 1658(b) to whistleblower retaliation suits creates a problem of
textual analysis. Unlike all other private causes of action arising out of violations
of the securities laws, a whistleblower retaliation claim involves two separate and
distinct ‘violations.’ First, there must be a reasonable belief that there is violation
of the securities law. Second, there must be a retaliatory personnel action, which
itself is a violation of the law. If the court were to apply § 1658(b) to
whistleblower claims, the first, and most logical, question would be: two years
from which violation does the statute begin to run?
A quite natural reading of the statute would suggest that it was two years from the
“fraud . . . in contravention of a regulatory requirement.” However, because a
whistleblower claim does not accrue until the alleged retaliatory action is taken, it
would be entirely plausible that, if the statute of limitations runs two years from
the discovery of the fraud, the statute of limitations would be exhausted before the
whistleblower cause of action accrued.25

23

The Court notes that Defendants also contend that Plaintiff fails to allege fraud by Defendant and instead
complains about mere “technical violations” by Defendant.
24

2013 WL 1155566 (E.D. Va. Mar. 19, 2013).

25

Id. at *6.

-14-

Thus, the court determined that the result would be absurd, and § 1658(b) was inapplicable to
SOX whistleblower retaliation claims.26 Instead, that court applied the general four-year statute
of limitations in § 1658(a).27
The Court agrees that § 1658(b) is inapplicable to these claims, but also finds that §
1658(a) is not applicable to the facts of this case. Section 1658(a) states that a four year statute
of limitations is applicable to those cause of actions enacted after the date of § 1658’s enactment
(December 1, 1990). 18 U.S.C. § 1514A was enacted on July 30, 2002, and it would appear that
§ 1658(a) could be applicable to Plaintiff’s cause of action. Section 1658(a), however, also
states that it is applicable except as otherwise provided by law. The law is otherwise provided
for in § 1514A.

Section 1514A sets forth a statute of limitations—claims must be filed

administratively with the Secretary of Labor not later than 90 days after the date on which the
violation occurs or after the employee becomes aware of the violation.28

26

Id. at **6-7.

27

Id. It appears that the parties argued that either § 1658(a) or (b) was applicable. Because the parties
agreed that the claim was brought within the four-year statute of limitations contained in § 1658(a), the court stated
that it “need not reach the question of tolling of the statute of limitations while the administrative remedies are being
exhausted.” Id. at *7.
28

The process of bringing a SOX whistleblower retaliation claim appears to be similar, although there are
differences, for bringing a claim under Title VII.28 Under Title VII, a person must first file with the administrative
agency, and the statute of limitations for filing with the administrative agency is set forth in the statute. See 42
U.S.C. § 2000e-5(e)(1) (stating that the time to administratively file is either 180 days or 300 days after the alleged
unlawful employment practice occurred). After filing with the administrative agency, an individual may bring a
claim in federal court provided certain requirements are met. See 42 U.S.C. § 2000e-5(f)(1) (setting forth a ninety
day timeframe for individuals to file in federal court after receiving a notice of dismissal from the administrative
agency). See also Rzepiennik v. Archstone-Smith, Inc., 331 F. App’x 584, 589 n. 4 (10th Cir. 2009) (noting the
similarities of the charge filing provisions under SOX and Title VII). In Rzepiennik, the Tenth Circuit determined
that a plaintiff’s SOX retaliation claim was untimely filed with the administrative agency because the plaintiff filed
it after the 90-day time period provided for in § 1514A(b)(2)(D). Id. at 590-91. Thus, the Tenth Circuit found that
the district court properly dismissed the claim for the plaintiff’s failure to timely exhaust his administrative
remedies. Id.

-15-

In Stone v. Instrumentation Laboratory Co.,29 the Fourth Circuit Court of Appeals
addressed the statutory language in § 1514A and the right to de novo review in federal court.
Although the Fourth Circuit discussed the statute in the context of subject matter jurisdiction—
not in the context of statute of limitations—its reasoning is still instructive.

In Stone, a

whistleblower plaintiff sought de novo review in federal court during the time the ALJ’s decision
was being appealed to the ARB.30

The defendant argued that the case should be dismissed

because the ALJ’s ruling was a final judgment, and thus, the plaintiff should be collaterally
estopped from bringing the suit in federal court.31 The case was appealed to the Fourth Circuit in
which the circuit noted, “[t]he text of the statute is clear—if the DOL has not reached a final
decision within the time period established by Congress, a complainant has the statutory right
not merely to undefined relief in another forum, but to ‘de novo review’ in federal district court.
A plaintiff’s right to pursue such relief is not circumscribed in any manner by the statute.”32
Because the Secretary did not reach a final decision within 180 days of the filing of the
complaint and there was no showing of bad faith on behalf of the plaintiff, the Fourth Circuit
found that the plaintiff could proceed in district court.33
Section 1514(A)(b)(2)(D) states that an action must be commenced with the Secretary of
Labor not later than 90 days after the date of the violation.

29

591 F.3d 239 (4th Cir. 2009).

30

Id. at 242.

31

Id.

32

The plain language of

Id. at 245.

33

Id. at 249-50. But see Groncki v. AT&T Mobility, LLC, 640 F. Supp. 2d 50 (D.D.C. 2009) (finding that
even though the Secretary issued a final decision after the 180 day timeframe in § 1514A, the plaintiff’s suit was
untimely because the Secretary of Labor had in fact issued a final decision).

-16-

§ 1514A(b)(1)(B) also provides that an individual may bring an action for de novo review in the
appropriate district court “if the Secretary has not issued a final decision within 180 days of the
filing of the complaint and there is no showing that such delay is due to the bad faith of the
claimant.” Thus, there appear to be two requirements for de novo review in federal court: (1) a
final decision was not issued within 180 days of the filing of the complaint, and (2) the delay was
not due to the claimant’s bad faith. Plaintiff Jordan followed the administrative procedures. He
filed a complaint with the Secretary of Labor (within the 90-day statute of limitations of the
alleged violation). The Secretary did not issue a final decision within 180 days of the filing of
the complaint, and there is no showing that the delay was due to Plaintiff’s bad faith.34 Thus, the
plain language of the statute states that Plaintiff has the right to seek de novo review in federal
court.

Accordingly, the Court finds that Plaintiff’s claim is not barred by the statute of

limitations.
2. Laches
Defendants also argue that the doctrine of laches bars Plaintiff’s claim. Laches is an
affirmative defense, and the defendant must demonstrate that “there has been an unreasonable
delay in asserting the claim and that the defendant was materially prejudiced by that delay.”35 In
this case, the Court is considering Defendants’ motion to dismiss and must rely upon the
allegations in the complaint. Defendants’ argument relies upon numerous statements taken from
the administrative proceedings and in ALJ or ARB orders that were not provided to the Court nor

34

Defendants contend that Plaintiff only decided to proceed in federal court to evade an adverse discovery
order issued by the ALJ in Jordan I. The Court does not have a copy of the ALJ’s Order and cannot make that
determination. In addition, the Court must consider the allegations in the Amended Complaint, and from those
allegations, the Court cannot conclude that Plaintiff engaged in bad faith delay.
35

Jacobsen v. Deseret Book Co., 287 F.3d 936, 949 (10th Cir. 2002) (citation omitted).

-17-

were the allegations contained in Plaintiff’s complaint. “The strictures of Rule 12(b)(6), wherein
dismissal of the claim is based solely on the complainant’s pleading, are not readily applicable to
a determination of laches.”36 Thus, the Court denies Defendants’ motion to dismiss on this basis.
3. Failure to State a Claim
Finally, Defendants argue that Plaintiff fails to state a claim. Under 18 U.S.C. § 1514A,
no covered company or an officer, employee, contractor, subcontractor, or agent of that covered
company “may discharge, demote, suspend, threaten, harass, or in any other manner discriminate
against an employee in the terms and conditions of employment” because the employee engaged
in protected activity as defined by SOX. To establish a prima facie case under § 1514A, a
plaintiff must show that (1) he engaged in protected activity, (2) the employer knew of the
protected activity, (3) he suffered an adverse personnel action, and (4) his protected activity was
a contributing factor in the adverse personnel action.37 Defendants assert that Plaintiff fails to (1)
plead sufficient allegations of protected activity, (2) plead sufficient allegations of adverse
employment action, and (3) state a claim against Defendant Forsee.
a. Whether Plaintiff Sufficiently Alleges Protected Activity
Defendants assert numerous reasons as to why they believe Plaintiff fails to adequately
allege protected activity in his Amended Complaint.

The Court disagrees.38

Plaintiff

specifically alleges that he complained to superiors in 2004 and 2005 that SEC rules and
regulations required Related Party Transactions to be disclosed in Sprint’s proxy statements and

36

Williams v. Clarence M. Kelley Det. Servs., Inc., 2012 WL 6085121, at *2 (D. Kan. Dec. 6, 2012)
(citation omitted).
37

Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1129 (10th Cir. 2013).

38

The Court will not set forth all of Defendants’ asserted reasons.

-18-

that Sprint was failing to make these disclosures. Thus, Plaintiff’s Amended Complaint includes
sufficient factual allegations of protected activity.
b. Whether Plaintiff Sufficiently Alleges Adverse Employment Action
Plaintiff alleges three instances of adverse employment action: (1) constructive discharge,
(2) failure to rehire, and (3) Defendants’ communications with the SEC in 2005, 2008, and 2010.
Defendants contend that Plaintiff fails to adequately plead these alleged actions were adverse.
The Court will address each in turn.
1. Constructive Discharge
With regard to Plaintiff’s constructive discharge claim, Defendants argue that Plaintiff’s
allegations do not satisfy the strict standards for pleading constructive discharge. Although the
bar for establishing a constructive discharge claim is quite high,39 this case is at the pleading
stage. The majority, if not all, of the cases that Defendants rely upon for support that Plaintiff
cannot establish his constructive discharge claim are decisions that were made at the time of
summary judgment. At the motion to dismiss stage, the Court must view the factual allegations,
as stated in the Amended Complaint, in the light most favorable to Plaintiff.40 Here, Plaintiff
includes sufficient factual allegations that he was constructively discharged.41 Accordingly, the
Court denies Defendants’ motion to dismiss on this basis.

39

Lockheed Martin, 717 F.3d at 1133 (stating that “[c]onstructive discharge occurs when an employer
unlawfully creates working conditions so intolerable that a reasonable person in the employee’s position would feel
forced to resign.”) (citation omitted). See also Exum v. United States Olympic Comm., 389 F.3d 1130, 1135 (10th
Cir. 2004) (stating that “[w]orking conditions must be so severe that the plaintiff simply had no choice but to quit.”).
40

Zinermon, 494 U.S. at 118.

41

Defendants argue that the allegations in the Amended Complaint demonstrate that Plaintiff freely quit his
job. Although Plaintiff does include the allegation that he believed that SEC rules required him to resign, the Court
must consider all of the factual allegations in the Amended Complaint. Plaintiff also alleges that Defendants took
steps to isolate him from his co-workers, suspended him indefinitely by relieving him all of duties while not
explaining why he was relieved of his duties, seized his laptop, and discontinued his voicemail. Because the Court

-19-

2. Failure to Rehire
Plaintiff also alleges that Defendants prevented Plaintiff’s reinstatement. Yet, Plaintiff
fails to include any allegations that there was a position available for which Plaintiff applied and
was rejected. Plaintiff’s general allegation that Defendant had advertised for and hired attorneys
to perform responsibilities similar to Plaintiff’s previous responsibilities is insufficient. Plaintiff
does not allege that a position was open nor that he was rejected for any position. Generally, a
failure to hire claim requires that the plaintiff apply for a position and be rejected for that
position.42 Because Plaintiff fails to allege these essential elements, he fails to state a claim.
3. Defendants’ Communications with the SEC
Finally, Plaintiff alleges that Defendants’ communications with the SEC in 2005, 2008,
and 2010 constitute adverse employment actions.43 Specifically, Plaintiff takes issue with (1)
Defendants’ request in 2005 for a no-action letter from the SEC to exclude Plaintiff’s wife’s

must consider the factual allegations as true, and consider those allegations in the light most favorable to Plaintiff,
the Court cannot conclude that Plaintiff fails to adequately allege constructive discharge.
42

See, e.g., Garrison v. Gambro, Inc., 428 F.3d 933, 937 (10th Cir. 2005) (stating that in the Title VII
context a prima facie case of failure to hire requires the plaintiff (1) belong to a protected class, (2) apply for and
being qualified for the position, (3) be rejected for the position, and (4) after rejection, the position remains open.).
See also Sundquist v. D.R. Horton, Inc., 2011 WL 3236110, at *6 (D. Colo. July 28, 2011) (applying those elements
to a failure to rehire case). See also Levi v. Anheuser Busch Cos. Inc., ARB Case No. 08-086, 2008-SOX-028, at *6
(Sept. 25, 2009) (ARB) (considering a failure to rehire claim under SOX and stating that “in a case dealing with an
applicant and prospective employer, the successful complainant must show that he properly applied to an open
position for which the company was seeking applicants and that he was qualified.”).
43

In evaluating a Rule 12(b)(6) motion to dismiss, a court is limited to assessing the legal sufficiency of
the allegations contained within the four corners of the complaint. Archuleta v. Wagner, 523 F.3d 1278, 1281 (10th
Cir. 2008). A court, however, can take judicial notice of certain documents. Tal v. Hogan, 453 F. 3d 1244, 1265 n.
24 (10th Cir. 2006). “[A] document central to the plaintiff’s claim and referred to in the complaint may be
considered in resolving a motion to dismiss, at least where the document’s authenticity is not in dispute.” Utah
Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1253-54 (10th Cir. 2005). A court may take judicial notice
of the SEC’s filings because they are a matter of public record. In re Morgan Stanley Info. Fund Sec. Litig., 592
F.3d 347, 354 n. 5 (2d Cir. 2010).
In this case, Plaintiff alleges that Defendants’ statements to the SEC in response to his shareholder
proposals were adverse employment actions. Accordingly, the SEC’s no-action letters are integral to Plaintiff’s
claim, and the Court has taken judicial notice of the SEC’s filings.

-20-

shareholder proposal from Defendants’ 2006 proxy materials; (2) Defendants’ request in 2010
for a no-action letter from the SEC to exclude Plaintiff’s shareholder proposal from Defendants’
2010 proxy materials, and (3) Defendants’ request in 2008 asking the SEC to not file an amicus
brief in support of Plaintiff with the ARB. All of these actions occurred subsequent to Plaintiff’s
employment with Defendant Sprint.
Defendants argue that their communications with the SEC were not adverse employment
actions and did not interfere with the terms and conditions of Plaintiff’s employment.44 The
Court agrees. As noted above, § 1514A(a) states that a company or an agent of that company
may not harass or discriminate against an employee in the “terms and conditions of
employment.” Defendants’ 2005 and 2010 requests for no-action letters related to Plaintiff’s
(and his wife’s) shareholder proposals. Defendants’ 2008 letter to the SEC requested that the
SEC not file an amicus brief in support of Plaintiff.45 Plaintiff was not employed by Defendant
at the time of Defendants’ communications with the SEC. There are no factual allegations that
Defendants’ communications with the SEC interfered with Plaintiff’s actual or potential
employment or the terms and conditions of employment.46 There are no allegations that the SEC

44

Defendants assert several additional arguments as to why Plaintiff fails to adequately plead adverse
employment action with respect to these SEC communications that the Court will not address.
45

The Court notes that Defendants’ request failed as the SEC did in fact file an amicus brief in support of
Plaintiff’s position with the ARB.
46

See Harvey v. Home Depot, Inc., Case No. 2004-SOX-36, 2004 WL 5840284, at *3 (May 28, 2004)
(ALJ) (stating that “with the exception of blacklisting or other active interference with subsequent employment, the
SOX employee protection provisions essentially shelter an employee from employment discrimination in retaliation
for his or her protected activities, while the complainant is an employee of the respondent.”). See also Hunter v.
Anheuser-Busch Cos., Inc., 2008-SOX-21, at *4 (April 29, 2008) (ALJ) (noting that “[f]or individuals who formerly
worked for an offending company, prohibited activities include blacklisting, interference with subsequent
employment, and failure to reinstate the individual upon a proper order issued under the Act.”); Pittman v. Siemens
AG et al., Case No. 2007-SOX-15, 2007 WL 7135797, at *3 (July 26, 2007) (ALJ) (agreeing with the standard that

-21-

was Plaintiff’s actual or potential employer. Although Plaintiff alleges that because the SEC’s
no-action letters are public “increases the likelihood that the negative statements therein about
[Plaintiff] will be brought to the attention of [Plaintiff’s] future co-workers or employers,” this
allegation is conclusory. In addition, Plaintiff does not allege that Defendants made any negative
employment references nor alleges that any of Defendants’ statements actually interfered with
actual or potential employment.
In addition, Plaintiff’s conclusory allegations that Defendant made these statements to
“harass” or “blacklist” him do not suffice.47 And even though Plaintiff alleges that Defendants’
statements in the 2005, 2008, and 2010 letters were made to prevent his reinstatement with
Defendant, this allegation is also conclusory. As noted above, Plaintiff does not allege that he
ever applied (nor was rejected) for any available position with Defendant. Plaintiff fails to allege
adverse employment actions with regard to Defendants’ communications with the SEC because
Defendants’ letters do not affect the terms and conditions of Plaintiff’s employment. Thus, the
only adverse action that remains in the case is Plaintiff’s constructive discharge claim.

SOX only protects employees from retaliation while employed by the company with the exception of blacklisting
and interfering with subsequent employment).
The parties disagree over whether the DOL’s opinions are entitled to deference. For purposes of this Order,
however, although the DOL’s decisions are not binding on this Court, they may be entitled to some deference. See
Lockheed, 717 F.3d at 113 (affording deference to the ARB’s interpretation of § 1514A). See also Welch v. Chao,
536 F.3d 269, 276 n. 2 (4th Cir. 2008) (“Chevron deference is appropriate when it appears from the statutory
circumstances that Congress would expect the agency to be able to speak with the force of law. . . . Congress
explicitly delegated to the Secretary of Labor authority to enforce § 1514A by formal adjudication, and the Secretary
has delegated her enforcement authority to the ARB. Thus, we afford deference to the ARB’s interpretation of
§ 1514A of the Sarbanes-Oxley Act.”) (quotation marks and citations omitted).
47

Conclusory allegations are insufficient to state a claim for relief. See Iqbal, 556 U.S. at 678. In addition,
at least one ALJ has determined that harassment is not an actionable retaliation claim if the plaintiff is no longer
employed by the defendant because “the harassment comment was not an adverse personnel or employment action.”
See Harvey, 2004 WL 5840284, at *4. Plaintiff contends that “harassment” encompasses “blacklisting.” The Court
disagrees.

-22-

c. Whether Plaintiff Sufficiently Alleged a Claim against Defendant Forsee
Finally, Defendants contend that Plaintiff fails to state a claim against Defendant Forsee
because there are no allegations that Forsee personally undertook any actions against Plaintiff.
Plaintiff responds by discussing Forsee’s indemnification agreement with Sprint and by
contending that this Court has personal jurisdiction over Forsee. Neither of Plaintiff’s arguments
is relevant to whether Plaintiff included any factual allegations that Forsee engaged in retaliation
against Plaintiff. Thus, the Court dismisses Defendant Forsee from this action.48
III.

Plaintiff’s Motion for Sanctions and Defendants’ Motion to Strike

Plaintiff filed a Motion for Sanctions (Doc. 56).49 Defendants filed a Motion to Strike
Plaintiff’s Motion for Sanctions or, in the Alternative, for an Extension of Their Response
Deadline (Doc. 61).
The Court will first address Defendants’ motion. “[T]here is no provision in the Federal
Rules of Civil Procedure for motions to strike motions and memoranda . . . .”50 Accordingly, the
Court denies Defendants’ Motion to Strike. The Court, however, will consider the document as
Defendants’ response to Plaintiff’s Motion for Sanctions.
Plaintiff filed a Motion for Sanctions asserting that opposing counsel made a number of
material misrepresentations to the Court in connection with Defendants’ Motion to Dismiss.
48

Plaintiff states that he should be afforded an opportunity to amend his Amended Complaint if his
allegations are insufficient with regard to Defendant Forsee. Plaintiff, however, states that he seeks to conduct
limited discovery on the issue of whether Forsee had additional contacts and activities with the State of Kansas. The
assertion of personal jurisdiction over Defendant Forsee is not the issue. Thus, the Court will not allow Plaintiff
leave to amend his Amended Complaint.
49

He also requests oral argument on this motion which the Court denies.

50

Searcy v. Soc. Sec. Admin., 956 F.2d 278, 1992 WL 43490, at *2 (10th Cir. Mar. 2, 1992) (unpublished).
See also Nooruddin v. Comerica Inc., 2012 WL 1154497, at *2 (D. Kan. Apr. 5, 2012).

-23-

Plaintiff states that he brings his motion pursuant to D. Kan. Rule 11, the inherent power of the
Court to issue sanctions,51 and 28 U.S.C. § 1927. The Court denies Plaintiff’s motion as it is
improper for a number of reasons.
First, none of Plaintiff’s purported bases for filing the motion are procedurally proper.
Plaintiff asserts that he brings his motion pursuant to D. Kan. Rule 11—not Fed. R. Civ. P. 11.52
District of Kansas Rule 11.1 is not a way to circumvent the requirements of Fed. R. Civ. P. 11.
Instead, it is a local rule to be applied consistently with Fed. R. Civ. P. 11. Indeed, “Fed. R. Civ.
P. 83 allows each United States district court the latitude to promulgate its own rules regarding
its practice as long as these local rules do not conflict with the federal rules.”53 Federal Rule of
Civil Procedure 11(c)(2) requires that any motion for sanctions be served on the opposing party
twenty-one days prior to filing the motion with the court. In this case, Plaintiff did not follow
this procedure. Instead, he simply filed this motion for sanctions. In addition, Plaintiff even
states that he intends to file another motion for sanctions, pursuant to Fed. R. Civ. P. 11, on
March 12, 2014, if necessary.54 Although Plaintiff contends that the analysis regarding the
propriety of sanctions under Rule 11 is materially different from the analysis of the instant
motion (sanctions under D. Kan. Rule 11.1), he provides no authority for this proposition. In
51

Although the Court may have the inherent power to issue sanctions, the Court declines to do so as
Plaintiff does not identify any substantive reason for sanctions.
52

The Court notes that there is no D. Kan. Rule 11—only D. Kan. Rule 11.1.

53

McHenry v. Aetna Life and Cas. Ins. Co., 930 F. 2d 34, 1991 WL 35191, at * (10th Cir. 1991). See Fed.
R. Civ. P. 83(a)(1) (“A local rule must be consistent with—but not duplicate—federal statutes and rules adopted
under 28 U.S.C. §§ 2072 and 2075, and must conform to any uniform numbering system prescribed by the Judicial
Conference of the United States.”). D. Kan. Rule 11.1 conforms to the uniform numbering system of Fed. R. Civ. P.
11.
54

Plaintiff requests that the Court not rule upon the instant motion until March 15, 2014, because he may
file an additional motion pursuant to Fed. R. Civ. P. 11 on March 12. Plaintiff states in his current motion before the
Court that he served Defendants with this additional motion (pursuant to Fed. R. Civ. P. 11) on February 10, 2014.
The Court declines Plaintiff’s request to not issue a ruling on this motion.

-24-

addition, he also states that the analysis of facts and legal authorities are essentially identical, and
he states that he will request essentially the same sanctions in the motion to be filed as he has
already requested with this motion. Plaintiff’s motion is improper as he failed to follow Fed. R.
Civ. P. 11 and serve Defendants twenty-days prior to filing the motion. And D. Kan. Rule
11.1(a)(2) requires that a party raise the issue of sanctions “by a timely-filed motion.”
Plaintiff’s reference to 28 U.S.C. § 1927 is also improper. This statute allows the court to
impose sanctions if counsel “so multiplies the proceedings in any case unreasonably and
vexatiously.” Plaintiff does not assert that Defendants’ counsel multiplied the proceedings or
engaged in this type of conduct, and he never applies this standard to any of the facts in his
motion for sanctions.55 Instead, Plaintiff contends that Defendants’ counsel has made material
misrepresentations to the Court.56 Thus, Plaintiff’s reliance on § 1927 as a basis for sanctions is
procedurally improper.
Second, Plaintiff’s motion is substantively infirm.

Many of the issues or “alleged

misrepresentations” that Plaintiff highlights are irrelevant to the Court’s analysis in considering
Defendants’ Motion to Dismiss. The Court will not hear a rehashing of issues that may or may
not have occurred before the ALJ and ARB approximately eight years ago. The Court is
considering Defendants’ Motion to Dismiss—and the Court generally only considers the

55

The Court notes that it appears that Plaintiff is bordering on multiplying the proceedings in this case
unreasonably and vexatiously.
56

The Court notes that Plaintiff attempts to assert the argument that Defendants multiplied the proceedings
in his response to Defendants’ Motion for Sanctions. Plaintiff did not include any basis for § 1927 in his Motion for
Sanctions, and the Court will not consider his argument now. In any event, Plaintiff’s arguments are baseless on this
issue as well.

-25-

pleading when deciding such a motion.57 The Court is also able to check citations and cases to
determine if those cases actually stand for what the parties so contend.58 In addition, it appears
as if Plaintiff is merely reasserting arguments, or raising new arguments, in response to
Defendants’ motion to dismiss.59 Accordingly, Plaintiff’s motion does not raise appropriate
issues for sanctions, and the Court denies his motion.60
IT IS ACCORDINGLY ORDERED this 11th day of March, 2014, that Defendants’
Motion to Dismiss (Doc. 29) is hereby DENIED IN PART and GRANTED IN PART.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Sanctions (Doc. 56) is
DENIED.

57

To the extent that Plaintiff asserts that this conduct is relevant to Defendants’ assertion of laches as a
defense, as noted above, the Court is not considering Defendants’ defense of laches with regard to Defendants’
Motion to Dismiss.
58

Although parties may not make misrepresentations to the Court, parties may advocate for a position
within a reasonable interpretation of the case.
59

The Court already allowed Plaintiff to file a sur-reply to Defendants’ Motion to Dismiss and also heard
oral arguments on the motion. The Court also notes that Plaintiff filed a twenty-one page response to Defendants’
Motion for Oral Argument in which he asserted numerous arguments directed toward Defendants’ Motion to
Dismiss.
60

Plaintiff filed a response to Defendants’ Motion to Strike arguing (1) that Defendants misrepresented the
applicability of Fed. R. Civ. P. 11, (2) Defendants did indeed multiply the proceedings (although Plaintiff did not
previously make this argument in his Motion for Sanctions), and (3) that Plaintiff’s first and second sanctions
motion (apparently to be filed on March 12) are not identical. Plaintiff’s arguments are unpersuasive or are based on
a misunderstanding of the applicable law. Thus, the Court will not address Plaintiff’s arguments in detail. Plaintiff
also contends that Defendants have made certain admissions regarding threats and harassment. The Court disagrees
and will not treat Defendants’ statements as admissions.
Plaintiff continues to assert that almost every argument or representation made by Defendants are false,
misleading, and an attempt to “harass” Plaintiff (which is allegedly in violation of § 1514A). The Court disagrees.
Defendants are entitled to defend themselves in litigation, and they are also allowed to make arguments on their
behalf to the Court. The mere fact that they are making an argument against Plaintiff or taking a different view than
Plaintiff’s does not make their argument misleading or false and does not constitute harassment. Plaintiff’s
arguments regarding Defendants’ misleading, false, or harassing statements are becoming increasingly repetitive,
frivolous, and are without merit.

-26-

IT IS FURTHER ORDERED that Defendants’ Motion to Strike Plaintiff’s Motion for
Sanctions or, in the Alternative, for an Extension of Their Response Deadline (Doc. 61) is
DENIED.
IT IS SO ORDERED.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

-27-