Erickson v. Renfro et al

Filing 22

MEMORANDUM OPINION & ORDER: Plaintiff Heidi Erickson's motion for sanctions DE 15 is DENIED. Signed by Judge Karen K. Caldwell on 12/10/2014.(LC)cc: COR, Plaintiff Heidi Erickson via US mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
HEIDI ERICKSON,

CIVIL ACTION NO. 5:14-CV-265-KKC

Plaintiff,
V.

MEMORANDUM OPINION AND
ORDER

VIRGIL SHANNON RENFRO, d/b/a
RENFRO’S TOWING, MARK
SHEPHERD, RICH MITCHELL;
CITY OF RICHMOND, RICHMOND
POLICE DEPARTMENT, JIMMY
HOWARD, GARRETT FOWLES, LARRY
BROCK, and UNKNOWN POLICE
OFFICERS,
Defendants.

*** *** ***
This matter is before the Court on plaintiff Heidi Erickson’s motion for sanctions.
(DE 15). For the reasons explained below, her motion will be denied.
I. Background
On June 12, 2014, Erickson filed a complaint in Madison, Kentucky Circuit Court.
Erickson alleges that on February 7, 2014, the Richmond Police Department ordered
Renfro’s Towing to impound her RV at the Richmond Mall in violation of her civil rights
under 42 U.S.C. § 1983, the Americans with Disabilities Act, and various state laws. (DE 14). Defendants removed this matter to this Court on July 3, 2014. (DE 1).
Erickson, appearing pro se, filed an amended complaint substantially reiterating the
facts and claims of her first complaint and seeking injunctive relief and a declaratory
judgment. (DE 5). She moved for the undersigned to recuse (DE 3), to proceed in forma

pauperis (DE 6), to file electronically with the ECF system (DE 4), and for a temporary
restraining order (DE 7), and the Court denied those motions. (DE 8).
On August 15, 2014, Erickson filed a motion seeking sanctions under Rule 11 of the
Federal Rules of Civil Procedure. (DE 15). While difficult to decipher, it appears that the
crux of plaintiff’s motion is defendants’ alleged failure to file all attachments to the state
court complaint in their Notice of Removal. The City of Richmond, Richmond Police
Department, Jimmy Howard, Garrett Fowles, Larry Brock, and Unknown Police Officers
(the “Richmond defendants”) filed a response opposing sanctions, arguing that any
deficiency in the Notice of Removal was inadvertent and noting that plaintiff’s filings are
“often in disarray” and “difficult to sort.” (DE 19). The Richmond defendants also contend
that Erickson has suffered no prejudice because her amended complaint appears to include
the attachments to the state court complaint. (DE 19). The other defendants did not file a
response.
II. Analysis
When an attorney submits a pleading to a federal court, the attorney certifies that to
the best of his or her “knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:”
(1) it is not being presented for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly increase the
cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery; and

(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on
belief or lack of information.
Fed. R. Civ. P. 11(b).
An attorney may be sanctioned for violations of Rule 11(b), after the attorney is
provided “notice and a reasonable opportunity to respond[.]” Fed. R. Civ. P. 11(c)(1). A party
seeking to file a motion for sanctions must serve it on the opposing party pursuant to Rule 5
of the Federal Rules of Civil Procedure, but the motion “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)(2). The Sixth Circuit has recognized that “sanctions under Rule 11 are
unavailable unless the motion for sanctions is served on the opposing party for the full
twenty-one day ‘safe harbor’ period before it is filed with or presented to the court[.]” Ridder
v. City of Springfield, 109 F.3d 288, 297 (6th Cir. 1997); see also Uszak v. Yellow Transp.,
Inc., 343 F. App’x 102, 107–08 (6th Cir. 2009) (“Irrespective of whether Appellant engaged
in sanctionable conduct . . . Rule 11 sanctions remained unavailable due to defendants’
failure to comply with the safe harbor provision[.]”); Radcliffe v. Rainbow Constr. Co., 254
F.3d 772, 789 (9th Cir. 2001) (reversing sanctions award where movant “did not follow the
mandatory service procedure of Rule 11(c)[(2)]”); Elliott v. Tilton, 64 F.3d 213, 216 (5th Cir.
1995) (“The plain language of [Rule 11] indicates that this notice and opportunity prior to
filing is mandatory. Plaintiffs did not comply with this procedural prerequisite. Therefore,
the sanction and payment of costs and attorneys' fees ordered by the district court cannot
be upheld under Rule 11.”); Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1328 (2d Cir.
1995) (reversing sanctions where party did not submit request separately and did not serve
twenty-one days before filing). Here, Erickson did not wait twenty-one (21) days after
service before filing the motion for sanctions with this Court. She served her motion for

sanctions on defendants on August 1, 2014, but waited only two weeks before filing the
motion with this Court on August 15, 2014. Because Erickson did not comply with the
procedural mandates of Rule 11(c)(3), her motion for sanctions must be denied.
Although the Sixth Circuit affords pro se litigants significant leeway, Frame v.
Superior Fireplace, 74 F. App’x 601, 603 (6th Cir. 2003), the Court is satisfied that faulting
Erickson for failure to comply with Rule 11(c)(2) is not at odds with this principle. See
Metropolitan Life Ins. Co. v. Kalenevitch, 502 F. App’x 123, 125 (3d Cir. 2012). As the Court
noted in its prior order,
Erickson is no stranger to the court system. She has filed
several actions in this district, and has an extensive litigation
history in the federal District Court in Massachusetts. The
United States Supreme Court has indicated that Erickson “has
repeatedly abused this Court’s process,” and may not file there
unless she pays the docketing fee. Erickson v. Lau, 559 U.S.
1104, 1104 (2010). Erickson is now an enjoined litigant in the
federal District Court in Massachusetts and is unable to file
lawsuits in that court without permission. Erickson v.
Massachusetts, No. 10-10907-WGY, 2010 WL 2332153 at *1 (D.
Mass. June 4, 2010).
(DE 8). In addition, the Supreme Court has “never suggested that procedural rules in
ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed
without counsel.” McNeil v. United States, 508 U.S. 106, 113 (1993). “The procedural steps
mandated by Rule 11(c)(2) are not mere technical rules, but rather serve the substantial
function of ‘giv[ing] the offending party a safe harbor' within which to withdraw or correct
the offending pleading.’” Metropolitan, 502 F. App’x at 125 (alteration in original) (quoting
Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chicago, 649 F.3d 539, 552 (7th Cir.
2011)). In light of these considerations, Erickson’s failure to comply with Rule 11(c)(2)
cannot be excused.

III. Conclusion
For these reasons, plaintiff Heidi Erickson’s motion for sanctions (DE 15) is
DENIED.
Dated December 10, 2014.