Glasser v. Comau, Inc. et al

Filing 89

OPINION & ORDER denying 73 Motion for Sanctions. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEPHEN M. GLASSER, Regional
Director of the Seventh Region of the
National Labor Relations Board, for
and on behalf of the NATIONAL
LABOR RELATIONS BOARD,
Petitioner,
v.

Case No. 10-13683
Honorable Patrick J. Duggan

COMAU, INC. and COMAU
EMPLOYEES ASSOCIATION,
Respondents.
____________________________/
OPINION AND ORDER DENYING RESPONDENT COMAU INC.’S MOTION
FOR SANCTIONS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE
11
On September 15, 2010, Stephen M. Glasser, as Regional Director of the Seventh
Region of the National Labor Relations Board (the “NLRB” or “Board”), filed a petition
on behalf of the Board, seeking interim injunctive relief pursuant to § 10(j) of the
National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(j). The petition for injunction
followed charges of unfair labor practices allegedly committed by Comau, Inc.
(“Comau”) and Comau Employees Association (“CEA”), a labor union. In an opinion
and order entered February 10, 2011, this Court denied the petition. Presently before the
Court is Respondent Comau’s motion for Rule 11 sanctions, filed March 8, 2011. The
motion has been fully briefed. On June 28, 2011, this Court issued a notice informing the

parties that it is dispensing with oral argument with respect to the motion pursuant to
Eastern District of Michigan Local Rule 7.1(f).
In support of the Section 10(j) petition for injunctive relief, Petitioner submitted
the affidavit of David Baloga which was verified by Petitioner’s counsel Darlene Haas
Awada. In his affidavit, Mr. Baloga characterized the attendance at certain union
meetings. In response to the Petition, Comau filed a motion to dismiss and for sanctions.
Comau argued that Rule 11 sanctions were warranted because the petition was frivolous
and Mr. Baloga’s affidavit was “intentionally misleading” and “selectively construed” to
provide an inaccurate picture of meeting attendance. In its reply to the petition, however,
Comau noted that it was “premature to argue about sanctions” and that it included its
request for sanctions to provide “fair warning” to Petitioner until the underlying issues are
resolved that it may be seeking sanctions.
On February 10, 2011, this Court issued an opinion and order denying Petitioner’s
request for injunctive relief and dismissing the Section 10(j) petition. (Doc. 68.) In its
analysis of the petition, the Court specifically rejected Petitioner’s evidence with respect
to attendance at union meetings:
The Court flatly rejects . . . the Board’s evidence of a change in
ASW/MRCC meeting attendance after March 1, 2009, to demonstrate a
causal connection between Comau’s implementation of the new health care
plan and disaffection. (See Doc. 1 Ex. 18.) David Baloga’s assertion in his
affidavit, notably prepared by Petitioner’s counsel, that membership at
ASW/MRCC meetings began to drop after March 1 is contrary to the
meeting records and appears intentionally misleading. (Doc. 34 Ex. D Tabs
1, 3.) In fact, attendance at ASW/MRCC meetings after March 1, 2009 was
frequently higher than at the same time the previous year.
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(Id. at 25.) Despite this finding, the Court dismissed without prejudice Comau’s request
for sanctions based on Comau’s indication that it was “premature” to seek sanctions and
that its request was simply a “warning” to Petitioner. (Id. at 14 n.6.) The Court indicated,
however, that it “will allow Comau to re-file its request for sanctions if it chooses to do so
once the petition for injunction is resolved. At that time, Comau can argue why, based on
the resolution of the underlying issues, sanctions are appropriate.” (Id.)
On March 8, 2011, Comau did just that and filed a motion for sanctions pursuant
to Federal Rule of Civil Procedure 11. Comau contends that “Ms. Awada appears to have
engaged in professional misconduct by deliberately crafting the Baloga Affidavit in a
misleading, and thus untruthful, fashion.” (Mot. ¶ 12.) Comau seeks sanctions in the
amount of the additional attorneys’ fees it incurred to respond to Petitioner’s allegations
associated with the affidavit and to prepare its Rule 11 motion, specifically $7,353.50. In
response to the motion, Petitioner argues that Comau failed to satisfy the procedural
requirements for seeking Rule 11 sanctions and that sanctions are unwarranted.
Rule 11 sets forth the following requirements for filing a 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 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 interpreted this provision as a mandatory
“safe harbor” prerequisite to seeking Rule 11 sanctions. See Ridder v. City of Springfield,

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109 F.3d 288, 296 (6th Cir. 1997). This requires the movant to serve the Rule 11 motion
“on the opposing party for the full twenty-one day ‘safe harbor’ period before it is filed
with or presented to the court” and to file the motion “prior to final judgment or judicial
rejection of the offending contention.” Id. at 297.
Comau has not complied with Rule 11's strict procedural requirements. Comau did
not serve Petitioner with the pending Rule 11 motion twenty-one days prior to filing or
presenting the motion to the Court. Moreover, the motion comes after final judgment and
this Court’s rejection of the offensive evidence. This Court therefore must deny Comau’s
request for sanctions.1
Accordingly,
IT IS ORDERED, that Respondent Comau, Inc.’s motion for sanctions pursuant
to Federal Rule of Civil Procedure 11 is DENIED.
Date: June 30, 2011

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Counsel of Record

1

Comau asks the Court to consider imposing sanctions against Petitioner on its own
initiative if the Court concludes that Rule 11's safe harbor provision bars Comau’s request.
While Rule 11 permits a court to order an attorney, law firm, or party to show cause why
conduct does not violate the rule, see Fed. R. Civ. P. 11(c)(3), the Court is not inclined to do so
in this instance.
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