GMAC Mortgage, LLC v. McKeever et al
Filing
115
MEMORANDUM OPINION & ORDER: GRANTING GMAC's 40 MOTION for Costs; that GMAC shall submit within 15 days an itemized statement of the costs which they propose to recover; within 15 days thereafter, McKeever & Haffey may file objections; within 10 days thereafter GMAC may reply. Signed by Judge Jennifer B Coffman on 8/25/11.(KJR)cc: COR, McKeever & Haffey
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
CIVIL ACTION NO. 08-459-JBC
GMAC MORTGAGE, LLC,
V.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
HEATHER BOONE MCKEEVER, ET AL.,
DEFENDANTS.
***********
The matter before the court is plaintiff GMAC Mortgage, LLC’s motion for
costs. R. 40. For the reasons below, the court will grant the motion.
In related case 5:08-cv-00456, Heather McKeever and Shane Haffey, both
pro se plaintiffs, filed a motion for injunctive relief and sanctions against GMAC and
its counsel. R. 33, 5:08-cv-00456.Throughout their motion, McKeever and Haffey
make accusations against both GMAC and its counsel. Such statements include:
“The acts of GMAC Mortgage and their law firm are egregious.” R. 33-2 at
6, 5:08-CV-456.
“In addition to acts contained in this Motion, GMAC and Dinsmore & Shohl
have shown a continued course of behavior and action which is disreputable
and dishonest.” Id. at 7
“[T]he Court will send a message to GMAC and their attorneys that they
must be responsible for their intentional, grossly negligent and fraudulent
actions . . . .” Id.
“Dinsmore & Shohl is the only party to financially benefit from the action,
thus far, and it will continue to do so as the cases progress.” Id.
“[B]oth GMAC Mortgage and its Counsel of Record, Dinsmore & Shohl be
sanctioned . . . for their roles in the attempted fraudulent Foreclosure, and
for their flagrant and deliberate disregard for this Court, the pending matters
before the Court, and the public at large.” Id. at 8.
1
The only support filed with the motion is a chain of email correspondence between
McKeever and David Fornshell, attorney for GMAC, which does not support the
accusations of wrongdoing. This court denied the motion for sanctions for failure to
follow the procedural requirements of Fed. R. Civ. P. 11(c)(2) and for not stating a
basis “to support the contention that GMAC or its counsel acted improperly with
respect to the potential filing of the foreclosure action.” R. 50, 5:08-cv-00456.
GMAC filed a motion for costs and expenses under Fed. R. Civ. P. 11 incurred in
defending against the motion for sanctions.
The imposition of costs is reasonable under Rule 11 because McKeever and
Haffey1 failed to offer any factual information that would support their motion for
sanctions. Fed.R.Civ.P. 11(b), Jackson v. Law Firm of O’Hara, Ruberg, Osborne
and Taylor, 875 F.2d 1224 (6th Cir. 1989). Both their motion for sanctions and
their response to GMAC's motion for costs contain allegations of conspiracies and
schemes rather than specific issues or points of law. McKeever and Haffey’s
conduct in filing and maintaining a motion for sanctions based on unsupported
allegations of wrongdoing was not “reasonable under the circumstances.” Mann v.
G & G Mfg., Inc., 900 F.2d 953, 958 (6th Cir.1990). Even if they had a good faith
belief in the merits of their motion, McKeever and Haffey admit there is an
1
Pro se plaintiffs are not exempt from Rule 11 sanctions. Graham v. Liberty Mut. Ins.
Co., No. 1:08-CV-299, 2009 WL 1034942, *4 (E.D.Tenn.2009), citing, Bus. Guides, Inc.
v. Chromatic Communs. Enters., 498 U.S. 533, 564, 111 S.Ct. 922, 112 L.Ed.2d 1140
(1991). As both McKeever and Haffey had participated in this litigation for almost a year
before the motion was filed and McKeever is an attorney, they are sophisticated enough
to be on notice of Rule 11 sanctions.
2
“extremely limited amount of factual evidence before the Court” to support their
motion. R. 43 at 2, 5:08-cv-00456. While McKeever and Haffey ask this court to
leave the matter open for further consideration after the court examines the
“totality of the circumstances and the final outcome of the matters before the
jury,” they do not assert what, if any, further discovery would support their claims
against GMAC and its counsel. Id. They also fail to provide any justification for
their sanctions motion in their response to GMAC’s motion for costs.
Additionally, sanctions against McKeever and Haffey are reasonable under
Rule 11 because it is clear from the record that they filed their motion for sanctions
for the unreasonable purpose of harassment. Fed.R.Civ.P. 11(b), Jackson v. Law
Firm of O’Hara, Ruberg, Osborne and Taylor, 875 F.2d 1224, 1231 (6th Cir.
1989). In addition to the unsupported motion for sanctions, McKeever and Haffey
have filed numerous claims against GMAC, which this court has dismissed for
reasons such as failure to state a claim and law-of-the-case doctrine. See R. 70,
97, 107 in 5:08-CV-459. While bringing claims which have been dismissed is not
sufficient to grant a motion for sanctions, it is evidence of an intent to harass
GMAC and its counsel. McKeever has also sent a letter to GMAC and its counsel
threatening to bring in a former congressman as an expert witness and stating
Rolling Stone magazine would cover any trial between the parties. R. 113, 5:08CV-459. These actions combined show that McKeever and Haffey were attempting
to harass GMAC.
3
Accordingly,
IT IS ORDERED that the motion for costs (R. 40) is GRANTED.
IT IS FURTHER ORDERED that GMAC shall submit to the court within 15
days of the entry of this order an itemized statement of the costs which they
propose to recover. Within 15 days thereafter, McKeever and Haffey may file any
objections to that statement of costs. Within 10 days after the filing of such
objections, GMAC may file its reply.
Signed on August 25, 2011
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?