Hawthorne-Burdine v. Oakland University et al

Filing 56

OPINION AND ORDER GRANTING OAKLAND UNIVERSITY DEFENDANTS' MOTION FOR RECONSIDERATION 52 AND GRANTING OAKLAND UNIVERSITY DEFENDANTS' MOTION FOR SANCTIONS 46 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOROTHY HAWTHORNE-BURDINE,
Case No. 16-cv-13118
Plaintiff,
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
OAKLAND UNIVERSITY, ET AL.,

UNITED STATES MAGISTRATE JUDGE
ANTHONY P. PATTI

Defendants.
/
OPINION AND ORDER GRANTING OAKLAND UNIVERSITY DEFENDANTS’ MOTION
FOR RECONSIDERATION [52] AND GRANTING OAKLAND UNIVERSITY
DEFENDANTS’ MOTION FOR SANCTIONS [46]
I. INTRODUCTION
On April 24, 2017, the Court granted Medicolegal Services’ Motion for
Sanctions [49] and denied Oakland Defendants’ Motion for Sanctions [46] on the
ground that compliance with the safe harbor provision of Rule 11 had not been
demonstrated. Dkt. No. 51. Shortly thereafter, Oakland University Defendants filed
the present Motion for Reconsideration [52], arguing that they need not have
attached documentation of their compliance to comply with Rule 11.
The Court does not conduct hearings on motions for reconsideration, E.D.
Mich. LR 7.1(f)(1), and accordingly the motion will be resolved solely on the
briefing. For the reasons discussed herein, the Court GRANTS Oakland University
Defendants’ Motion for Reconsideration [52].
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II. BACKGROUND
The Court has recited the facts regarding Plaintiff’s two cases against
Defendants in prior orders, and will not repeat those facts here for the sake of
brevity. See Dkt. Nos. 44, 51; Hawthorne-Burdine v. Oakland Univ., 158 F. Supp.
3d 586 (E.D. Mich. 2016); Hawthorne-Burdine v. Oakland Univ., No. 16-1103
(6th Cir. Nov. 3, 2016).
III. LEGAL STANDARD
United States District Court for the Eastern District of Michigan Local Rule
7.1(h)(3) provides:
Generally, and without restricting the Court’s discretion, the Court
will not grant motions for rehearing or reconsideration that merely
present the same issues ruled upon by the Court, either expressly or by
reasonable implication. The movant must not only demonstrate a
palpable defect by which the Court and the parties and other persons
entitled to be heard on the motion have been misled but also show that
correcting the defect will result in a different disposition of the case.
E.D. Mich. LR 7.1(h)(3). “A ‘palpable defect’ is ‘a defect that is obvious, clear,
unmistakable, manifest, or plain.’ ” United States v. Lockett, 328 F. Supp. 2d 682,
684 (E.D. Mich. 2004) (citing United States v. Cican, 156 F. Supp. 2d 661, 668
(E.D. Mich. 2001)). “[A] motion for reconsideration is not properly used as a
vehicle to re-hash old arguments or to advance positions that could have been
argued earlier but were not.” Smith ex rel. Smith v. Mount Pleasant Pub. Sch., 298

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F. Supp. 2d 636, 637 (E.D. Mich. 2003) (citing Sault Ste. Marie Tribe of Chippewa
Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)).
IV. DISCUSSION
A. The Court Made A Palpable Error in Denying Oakland University
Defendants’ Motion for Sanctions Based on Failure to Demonstrate
Compliance with the Safe Harbor Provision
The Sixth Circuit has held that strict adherence to Rule 11’s outlined
procedure is required for a court to grant sanctions. Penn, LLC v. Prosper Bus.
Dev. Corp., 773 F.3d 764, 767–68 (6th Cir. 2014) (noting that a warning letter
cannot substitute for the properly and timely served motion Rule 11 requires).
Although Sixth Circuit has previously has referenced Hadges v. Yonkers Racing
Corp., 48 F.3d 1320, 1328 (2d Cir. 1995), where a sanction award was reversed in
part “because no evidence indicated compliance with ‘safe harbor’ period that
current version of Rule 11 specifically mandates,” Ridder v. City of Springfield,
109 F.3d 288, 296 (6th Cir. 1997), the Circuit has not spoken to the precise means
by which a moving party demonstrates compliance with Rule 11’s safe harbor
provision.
In Oakland University Defendants’ motion for sanctions, they stated, “[o]n
October 1, 2016 and on November 30, 2016, the undersigned served the plaintiff
with a copy of this motion and requested that she dismiss her complaint within 21
days. The plaintiff refused.” Dkt. No. 46, p. 7 (Pg. ID 1376). Oakland Defendants
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did not attach exhibits in support, such as dated copies of the motions sent to
Plaintiff, that verified the strict compliance that Rule 11(c)(2) requires.
In their motion for reconsideration, Oakland Defendants attached both
motions sent to Plaintiff in late 2016. Dkt. Nos. 52-3, 52-4. They also now concede
that the second date stated in their sanctions motion was incorrect, and that the
second safe-harbor motion was actually sent on December 2, 2016. Dkt. No. 52, p.
5 (Pg. ID 1673). Even with the misstatement of date, both motions were sent to
Plaintiff well before the 21-day period required by Rule 11.
The Court agrees that, upon further review, the Sixth Circuit did not require
Oakland Defendants to attach exhibits providing factual support for their
compliance with the safe harbor provision of Rule 11, where there was no dispute
that such documents had been properly and timely served. Thus, in holding that it
was necessary to attach exhibits demonstrating compliance to the motion for
sanctions, the Court made a palpable defect. Based on the arguments and evidence
now before the Court, the Court finds that this defect would result in a different
disposition of Oakland Defendants’ motion for sanctions.
B. Reconsidering Oakland University Defendants’ Motion for Sanctions
Oakland University Defendants filed their motion for sanctions on February
23, 2017. Dkt. No. 46. Several months have passed, and at no time did Plaintiff
respond to their motion, dispute the allegations Defendants made in the motion, or
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request a hearing on the motion. Plaintiff has appealed the Court’s grant of
sanctions to Medicolegal, a motion that also was uncontested. See Dkt. No. 53.
Having found that Oakland Defendants have demonstrated their compliance
with Rule 11’s safe harbor provision, the Court will now consider the factors to be
assessed in determining whether sanctions are to be awarded.
First, the Court must consider whether Plaintiff violated Rule 11 with
respect to her claims against Oakland Defendants. See Danvers v. Danvers, 959
F.2d 601, 604 (6th Cir. 1992). Rule 11 imposes a duty on parties to (1) conduct a
reasonable inquiry to determine the pleading is well grounded in fact; (2) conduct a
reasonable inquiry to determine that existing law—or as good faith arguments for
extension or modification of existing law—warrants the positions taken; and (3)
not file pleadings for an improper purpose, such as harassment, delay, or needless
increase of litigation costs. Id. As the Court noted in its previous order, Plaintiff
has filed at least three lawsuits against Defendants in state and federal court for
claims arising from the same allegations of fact. See Dkt. No. 51. The Court
dismissed Plaintiff’s first case and explained why her claims could not proceed,
and yet Plaintiff refused to voluntarily dismiss her second, duplicative case after
the first dismissal was affirmed on appeal. Cursory research into her second case
would have revealed that existing law did not warrant the position taken. In fact,
Plaintiff stated in a hearing that she understood the law regarding claim preclusion,
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but argued the Court should vacate its order from the first case. Dkt. No. 50, pp.
15–16 (Pg. ID 1650–51). Plaintiff’s filing of complaints in the second case was
objectively unreasonable and in violation of Rule 11.
Next, in determining the amount of sanctions, the Court looks to whether
sanctions will deter future conduct of a like nature, whether the moving party
mitigated its expenses, and the sanctioned party’s ability to pay. Danvers, 959 F.2d
601, 605 (6th Cir. 1992). Because deterrence is the primary goal, the proper award
is the minimum amount necessary to deter the sanctioned party. Id.
First, the Court finds it has the authority to issue monetary sanctions against
Plaintiff, even though she is proceeding pro se and in forma pauperis, as a means
of deterring future improper complaints. See Warren v. Guelker, 29 F.3d 1386,
1390 (9th Cir. 1994) (“Rule 11’s express goal is deterrence: IFP litigants,
proceeding at the expense of taxpayers, need to be deterred from filing frivolous
lawsuits as much as litigants who can afford to pay their own fees and costs.”).
“[P]ro se filings do not serve as an ‘impenetrable shield, for one acting pro se has
no license to harass others, clog the judicial machinery with meritless litigation,
and abuse already overloaded court dockets.’ ” Patterson v. Aiken, 841 F.2d 386,
387 (11th Cir. 1988) (quoting Farguson v. MBank Houston, N.A., 808 F.2d 358,
359 (5th Cir. 1986)). The Court has previously found sanctions may deter Plaintiff

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from bringing future claims unwarranted by law when granting Medicolegal
$2,000 in sanctions.
In supplemental briefing, Oakland University Defendants provided a
detailed list of the amount of time spent and fees incurred because of Plaintiff’s
second case. Dkt. No. 55, p. 5 (Pg. ID 1719). The total amount of compensation
sought is $16,9337.50. Id. The Court has the information needed to determine that
Plaintiff’s pleadings induced a recoverable fee. See Bodenhamer Bldg. Corp. v.
Architectural Research Corp., 873 F.2d 109, 114 (6th Cir. 1989) (“Thus, before a
district court awards an attorney fee, Rule 11 requires a finding that the
recoverable fee was induced by the filing of the sanctionable pleading.”).
Finally, given Plaintiff’s ability to pay must be considered. As courts have
noted, in forma pauperis status alone does not mean a litigant is unable to pay any
fees or costs whatsoever, because the “standard of poverty under the IFP statute
requires a relatively minimal amount of sacrifice.” Moon v. Newsome, 863 F.2d
835, 838–39 (11th Cir. 1989) (“If misuse [of the courts] has occurred and monetary
sanctions have been imposed, the plaintiff, to continue his law suit, might be
required to go into debt or to dispose of assets which the IFP process otherwise
would have allowed him to keep.”).
Plaintiff represented that her gross pay or wages are $1,100 to $1,200 per
month, of which $800 to $900 is take-home pay or wages. Dkt. No. 2. She also
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stated that she has $250 in cash or a savings account, owns two cars with no
monthly payments due, does not pay monthly housing expenses such as rent or
mortgage payments, and has no debts or financial obligations. Id. The Court has
already ordered Plaintiff to pay $2,000 in sanctions within 180 days of the prior
order, a fraction of the $12,625.50 in attorneys’ fees Medicolegal originally sought.
Dkt. No. 51.
Plaintiff has not argued that she is unable to pay these sanctions. Similarly,
she has not offered the court an excuse for her non-compliance with Rule 11, or
even responded to Defendants’ motions for sanctions. Finally, Plaintiff has not
detailed any unsuccessful efforts to obtain funds with which to pay the sanctions or
requested an extension to make smaller payments over time. Cf. Moon, 863 F.2d at
839 n.5 (noting that when facing an order with which a litigant believes he or she is
unable to comply, “[e]ven a non-lawyer should realize the need to communicate
. . . with the court” timely, directly, and particularly explaining his or her inability
to do what the court has ordered).
Accordingly, based on the totality of the evidence provided, the Court will
order Plaintiff to pay an additional $2,000 to Oakland University Defendants,
within 365 days of this order.1

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Although Plaintiff is proceeding pro se and IFP, a total of $4,000 in sanctions
($2,000 to Medicolegal in six months, and $2,000 to Oakland University
Defendants within a year) is not unreasonable, given her income, assets, and lack
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V. CONCLUSION
For the reasons discussed, the Court GRANTS Oakland University
Defendants’ Motion for Reconsideration [52] and GRANTS Oakland University
Defendants’ Motion for Sanctions [46].
IT IS HEREBY ORDERED that Plaintiff shall pay Oakland University
Defendants a total of $2,000 within 365 days of the date of this order.
IT IS SO ORDERED.
Dated:

May 23, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

of any debts or financial obligations, and considering the amount of work induced
by her sanctionable pleadings. See, e.g., In re Polyurethane Foam Antitrust Litig.,
165 F. Supp. 3d 664, 672 (N.D. Ohio 2015) (ordering an individual proceeding pro
se, who applied for IFP status, to pay $10,000 in sanctions).
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