Hertel, et al. v. Mortgage Electronic Registration Systems, Inc., et al.

Filing 102

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CURTIS HERTEL and NANCY
HUTCHINS,
Plaintiffs,
File No. 1:12-CV-174
v.
HON. ROBERT HOLMES BELL
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC,
et al.,
Defendants.
/
OPINION
This matter is before the Court on Defendant Marshall Isaacs’ motion for sanctions
against Plaintiffs Curtis Hertel and Nancy Hutchins, and Plaintiffs’ attorneys, William
Maxwell and Daniel Marsh, pursuant to Federal Rule of Civil Procedure 11. (Dkt. No. 66.)
Also before the Court is Plaintiffs’ motion for an evidentiary hearing in regard to Isaacs’
motion. (Dkt. No. 96.) The Court held a hearing on the motion for sanctions on February
20, 2013 (Dkt. No. 99), and now grants Isaacs’ motion as to Maxwell and Marsh and denies
Plaintiffs’ motion.
I.
On November 10, 2011, Hertel, Register of Deeds of Ingham County, and Hutchins,
Register of Deeds of Branch County, filed a complaint in Ingham County Circuit Court.
Plaintiffs’ complaint alleged that multiple defendants violated Michigan’s State Real Estate

Transfer Tax Act (“SRETTA”) and County Real Estate Transfer Tax Act (“CRETTA”),
Mich. Comp. Laws §§ 207.502, 207.523, by improperly claiming exemptions.1 Ultimately,
the case was removed to this Court. (Dkt. No. 1.) On October 4, 2012, the Court determined
it had diversity jurisdiction pursuant to 28 U.S.C. § 1332 and the doctrine of fraudulent
joinder, and denied Plaintiffs’ motion to remand. (Dkt. Nos. 49, 50.) In doing so, the Court
found that Plaintiffs’ claims against Marshall Isaacs (and the other non-diverse defendants)
were not colorable. (Dkt. No. 49, at 9-19.) Subsequently, the Court dismissed Isaacs. (Dkt.
No. 60.)
II.
“In this circuit the test for imposition of Rule 11 sanctions is whether the attorney’s
conduct was reasonable under the circumstances.” Ridder v. City of Springfield, 109 F.3d
288, 293 (6th Cir. 1997). “[T]he imposition of Rule 11 sanctions requires a showing of
‘objectively unreasonable conduct[.]’” First Bank of Marietta v. Hartford Underwriters Ins.
Co., 307 F.3d 501, 517 (6th Cir. 2002) (quoting United States v. Kouri-Perez, 187 F.3d 1,
8 (1st Cir. 1999)).
III.
Isaacs alleges the following violations of Rule 11: (1) the claims against Isaacs in the
complaint were frivolous; (2) Plaintiffs’ attorneys, Marsh and Maxwell, are members of the
Home Defense League, PLC, a group which has filed twelve suits where Isaacs or his firm,
1

Plaintiffs have since voluntarily dismissed their claims arising under the SRETTA. (Dkt.
No. 70.)
2

Orlans Associates, have been named as defendants, all of which have been dismissed; and
(3) a consultant of Plaintiffs’ attorneys, Stephen Dibert, proprietor of the website MFIMiami, has actively posted baseless internet posts in conjunction with this suit and the other
suits against Isaacs, accusing him of statutory and criminal violations and posting his
personal information. The first allegation implicates Rule 11(b)(2), while the second and
third are properly analyzed under Rule 11(b)(1).
A. Rule 11(b)(2)
Federal Rule of Civil Procedure 11(b)(2) provides that by presenting a pleading to the
Court, an attorney certifies that “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.” Plaintiffs brought the following claims
against Isaacs: (1) failure to pay transfer taxes; (2) preparing transfer instruments “not in
conformity with” SRETTA and CRETTA; (3) statutory conversion; and (4) conversion of
an instrument. Examining these claims in a vacuum, the Court is unable to conclude that
they were frivolous. While the Court is confident that its fraudulent joinder analysis was
correct and that Plaintiffs’ claims were not colorable, such findings are not equivalent to a
violation of Rule 11(b)(2). In finding Isaacs was fraudulently joined, the only conclusion the
Court reached was that Plaintiffs “could not have established a cause of action against
non-diverse defendants under state law.” See Coyne v. Am. Tobacco Co., 183 F.3d 488, 493
(6th Cir. 1999). Parties do not violate Rule 11 if they make “nonfrivolous argument[s] for

3

extending, modifying, or reversing existing law or for establishing new law.” Fed. R. Civ.
P. 11(b)(2). Thus, because Plaintiffs’ claims could be construed as an effort to extend,
modify, and/or reverse existing law, the Court concludes that the claims did not violate Rule
11(b)(2) and were not objectively unreasonable per se.
B. Rule 11(b)(1)
However, the non-colorable nature of the claims against Isaacs, when considered in
conjunction with the actions of Plaintiffs’ attorneys, does suggest a violation of Rule
11(b)(1), which prohibits attorneys from presenting pleadings to the Court “for any improper
purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of
litigation.” Given the litigation history of attorneys Marsh and Maxwell against Isaacs, the
Court concludes that the claims against Isaacs in the present case were brought in bad faith
for the purposes of harassment. Because the Court finds Marsh and Maxwell’s behavior
objectively unreasonable, it finds them liable for violating Rule 11.2 The Court notes that its
conclusion on this matter is not based on the actions of Dibert, which cannot be attributed
to Plaintiffs’ attorneys.
1. Prior Litigation
Isaacs has contended that Marsh and Maxwell are members of the Home Defense
League, PLC, a group that has filed eleven prior foreclosure/mortgage related lawsuits

2

Because the Court’s finding of a Rule 11 violation as to Marsh and Maxwell is
dependent on prior litigation which involved various plaintiffs, the Court finds that Plaintiffs
themselves have not violated Rule 11.
4

against Isaacs and/or his firm, Orlans Associates, all of which have been dismissed.
Plaintiffs’ evidence confirms that Marsh and Maxwell make up the Home Defense League,
along with attorney Brian Parker, who is not counsel in the present case. (See Dkt. No. 88,
Exs. G, H.) Plaintiffs’ attorneys, in particular Maxwell, have disputed that this case was
brought by the Home Defense League. In Plaintiffs’ response brief, Maxwell insists that
“[t]his case was not filed by the Home Defense League.” (Dkt. No. 72, at 8.) This was an
argument vigorously repeated by Maxwell during the hearing.
The Court finds that Maxwell is not credible. An article on attorney Marsh’s website
states that the Home Defense League is representing the counties in seeking the payment of
the transfer taxes. (Dkt. No. 88, Ex. I.) While Plaintiffs’ attorneys might argue that this
article only referred to the counties’ sister suit in this Court, Hertel v. Bank of America
(Hertel I), the Court finds this unlikely given that the article refers to suits brought by the
registers of deeds for both Ingham and Branch Counties. (Id.) Hutchins, the register of
deeds for Branch County, is not a Plaintiff in Hertel I. Moreover, the article on Marsh’s
website refers to “lawsuits” being filed by the Home Defense League on behalf of the
counties. (Id.) Further undermining Plaintiffs’ attorneys’ argument, three days before the
Rule 11 hearing, Maxwell submitted two responses to the pending motions to dismiss and
signed both documents (and their accompanying certificates of service) directly underneath
the heading “HOME DEFENSE LEAGUE, PLC.”

(Dkt. Nos. 84, 85.)

Maxwell’s

subsequent attempt to “take back” this admission by filing “corrected” responses removing

5

this heading the day after Isaacs’ counsel pointed it out at the hearing fails to assure the Court
of his credibility on this matter.
Even if the Court believed Plaintiffs’ attorneys, it is irrelevant whether this case or any
of the previous cases against Isaacs were “officially” filed under the guise of the Home
Defense League. The existence of the Home Defense League confirms the relationship
between Marsh, Maxwell, and Parker, and it is their behavior, whether filing suits under their
own names or the Home Defense League, which has subjected Isaacs to harassment.
The following suits3 were brought by Marsh, Maxwell, Parker,4 or some combination
of the three, against Isaacs and/or his firm, Orlans Associates:
1.

Lucas v. Marshall Isaacs, Orlans Associates, et al., Oakland County Circuit
Court Case No. 10-113498-NO: Orlans and Isaacs were accused of wrongful
foreclosure, negligence, and intentional infliction of emotional distress. (Dkt.
No. 88, Ex. J.) Their motion for summary disposition was granted following
a hearing. (Dkt. No. 88, Ex. J-1.)

2.

Rogers v. Orlans Associates, et al., Eastern District of Michigan Case No.
2:11-CV-11167: Orlans was accused of violating the Fair Debt Collection
Practices Act (“FDCPA”) and of filing false or fraudulently procured
documents. (Dkt. No. 88, J-2A.) These claims were dismissed pursuant to
Orlans’ Rule 12(b)(6) motion. (Id.)

3

The Court wishes to offer a few words on the format of this list. First, the Court has
listed the name of the court where each case ended up. Thus, if a case was filed in state court but
subsequently removed to federal court, only the federal court is listed. Second, the Court listed
Isaacs and Orlans as the first defendants even if the case caption listed other defendants first.
Last, the Court notes that this list does not contain every claim brought against Isaacs/Orlans in
each case.
4

The Court recognizes that Parker is not an attorney in the present case. However, his
filing of suits against Isaacs is relevant to whether the present suit was filed as part of a pattern of
harassment by the Home Defense League attorneys.
6

3.

Hertel v. Orlans Associates, et al. (Hertel I) (2011), Western District of
Michigan Case No. 1:11-CV-757: Orlans was accused of failing to pay transfer
taxes. (Dkt. No. 95, Ex. J-3, ¶¶ 13, 17-27.) This claim was dismissed on
account of Hertel’s lack of standing. (1:11-CV-757, Dkt. No. 82.)

4.

Parker v. Orlans Associates, et al., Oakland County Circuit Court Case No.
2011-119889: Orlans was accused of fraud related to the ownership of
mortgages, filing false affidavits, and violation of the foreclosure statutes.
(Dkt. No, 89, Ex. J-4.) This case was dismissed by stipulated order. (Ex. J.)

5.

Wharton v. Marshall Isaacs, Orlans Associates, et al., Western District of
Michigan Case No. 1:11-CV-1090: Isaacs and Orlans were accused of
wrongful foreclosure by advertisement and negligence. (Ex. J.) Isaacs and
Orlans’ motion to dismiss was granted. (Dkt. No. 89, Ex. J-5.)

6.

Ferguson v. Orlans Associates, et al., Macomb County Circuit Court Case No.
11-3558-CZ: Orlans was accused of fraud (including the robo-signing of
Isaacs’ signature), negligent infliction of emotional distress, violation of
foreclosure by advertisement statutes, and conversion. (Ex. J.) This case was
dismissed pursuant to summary disposition. (Dkt. No. 89, Ex. J-6.)

7.

Shaw v. Orlans Associates, et al., Wayne County Circuit Court Case No. 11010406-CZ: Orlans was accused of fraud, violation of foreclosure by
advertisement statutes, negligent infliction of emotional distress, conversion,
and robo-signing. (Ex. J.) Summary disposition was granted in favor of
defendants. (Dkt. No. 89, Ex. J-7.)

8.

FNMA v. Roberts & Roberts v. Marshall Isaacs, Orlans Associates, et al., St.
Joseph County Circuit Court Case No. 11-950-CH: Isaacs and Orlans were
accused of wrongful foreclosure, negligence, breach of contract, and lack of
standing to foreclose. (Ex. J.) The counter-claim against Isaacs and Orlans
was dismissed without prejudice. (Dkt. No. 89, Ex. J-8.)

9.

Conlin v. Marshall Isaacs, Orlans Associates, et al., Eastern District of
Michigan Case No. 11-CV-15352: Isaacs and Orlans were accused of fraud,
quiet title, breach of contract, and conversion. (Ex. J.) This suit was
dismissed because the plaintiff lacked standing. (Dkt. No. 95, Ex. J-9.)

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10.

Martell v. Marshall Isaacs, Orlans Associates, et al., Wayne County Circuit
Court Case No. 11-010344-CH: Isaacs and Orlans were accused of filing false
affidavits, violation of the foreclosure statutes, quiet title, breach of contract,
and conversion. (Ex. J.) Summary disposition was granted due to the
plaintiff’s lack of standing. (Dkt. No. 95, Ex. J-10.)

11.

Kinney v. Orlans Associates, et al., Western District of Michigan Case No.
1:11-CV-01354: Orlans was accused of robo-signing, violation of the
foreclosure statutes, quiet title, breach of contract, and conversion. (Ex. J.)
The case against Orlans was dismissed under the doctrine of fraudulent
joinder. (Dkt. No. 95, Ex. J-12.)

Every one of these cases was filed in 2011, other than the Lucas case which was filed in late
2010. Thus, in a period of little more than one year,5 Plaintiffs’ attorneys, along with their
Home Defense League compatriot, Brian Parker, brought a total of twelve lawsuits against
Isaacs or his firm, all of which were dismissed pre-trial.
The Court recognizes that many of these prior eleven suits involved distinct claims
from the present case. Moreover, it recognizes that only in Hertel I was either Isaacs or
Orlans sued for not paying the transfer taxes at issue in this case. Nonetheless, the number
of cases filed in such a short time frame, the number of claims brought in each case, and the
fact that every claim was dismissed at early stages, present strong evidence that the attorneys
of the Home Defense League have been including Isaacs and/or Orlans in suits for the
purpose of harassment rather than for any good faith reason. In light of this litigation history
and apparent targeting of Isaacs, the Court concludes that Marsh and Maxwell’s conduct was
objectively unreasonable and that the non-colorable claims brought against Isaacs in this case
were brought in bad faith and for harassment, in violation of Rule 11(b)(1).

5

The Lucas case was filed on September 20, 2010, while the present case was filed on
November 10, 2011.
8

2. Dibert’s Actions
Isaacs also alleged a connection between Dibert and Plaintiffs’ attorneys. Dibert’s
website, MFI-Miami, has filed numerous posts accusing Isaacs (and others, including at least
one judge) of fraud, incompetence, and unethical behavior. (See Dkt. No. 66, Ex. E; Dkt.
No. 91, Ex. S.) In doing so, the blog has posted Isaacs’ personal information. (See Dkt. No.
66, Ex. E; Dkt. No. 91, Ex. R.) Dibert also filed a grievance against Isaacs with the State of
Michigan, which was summarily denied. (Dkt. No. 66, Exs. C-D.)
There is evidence of a possible association between Plaintiffs’ attorneys and Dibert.
Hertel has been quoted as stating that Plaintiffs’ attorneys worked with Dibert, at least as to
Hertel I: “‘MFI-Miami . . . has been instrumental in assisting with our investigation of this,’
said Hertel. William Maxwell, Dan Marsh, and Brian Parker from the Home Defense
League, PLC, working in conjunction with MFI-Miami discovered a pattern of unpaid
transfer taxes . . . .” (Dkt. No. 90, Ex. M.) Dibert has also posted numerous entries on his
blog stating that he has worked with Plaintiffs’ attorneys in the prior suits and even coached
them on questions to ask during depositions. (See Dkt No. 91, Exs. O, P, Q; Dkt. No, 94, Ex.
N.)
However, this evidence does not establish that Plaintiffs’ attorneys actually had an
association with Dibert.

Hertel and Dibert’s words are not conclusive evidence that

Plaintiffs’ attorneys worked with Dibert or had any knowledge or part in his blog postings
and grievance-filing. Thus, the Court finds that Dibert’s actions cannot support the Court’s
finding that the present claims against Isaacs were filed for an improper purpose in violation
of Rule 11(b)(1).
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C. Plaintiffs’ Motion for an Evidentiary Hearing
Plaintiffs’ February 19 motion for an evidentiary hearing requests that the Court, if
it is inclined to issue Rule 11 sanctions, hold a three-four hour evidentiary hearing with at
least seven witnesses and a prior period for discovery. (Dkt. No. 96.) On February 6, 2013,
this Court expressed its concern about the allegations raised by Isaacs and invited both sides
to submit additional briefing by February 18 about (a) the nature of the present suit (i.e.
whether it was brought for harassment), (b) the nature of the prior suits against Isaacs and
Orlans, and ©) the nature of the relationship between Plaintiffs’ attorneys and Dibert. (Dkt.
No. 82.) Despite this opportunity, Plaintiffs’ attorneys chose not to submit such additional
briefing, leading the Court to believe that the request for an evidentiary hearing is
disingenuous.
First, the Court gave Plaintiffs ample time to respond to Isaacs’ allegations when it
issued the February 6 order. Plaintiffs could have submitted affidavits and exhibits but chose
not to. Nor did Plaintiffs’ attorneys indicate in the present motion that the time period
provided by the Court for such additional briefing and evidence was somehow inadequate.
Second, Plaintiffs have given this Court no reason to believe that discovery and an
extensive evidentiary hearing are necessary. The Court resents the implication made in
Plaintiffs’ motion and by Maxwell at the hearing that the Court is or will be misled by the
documents submitted by Isaacs.

Isaacs has provided documentation for most of his

allegations, as discussed in this opinion. For those allegations without ample documentation

10

(e.g. Dibert’s connection to Plaintiffs’ attorneys), the Court is not relying on them in making
its Rule 11 determination. In contrast to Isaacs’ numerous exhibits and reasoned arguments,
Plaintiffs’ attorneys give this Court nothing but their word that Isaacs’ allegations are false
or misleading. However, it is Plaintiffs’ attorneys who have proven to be non-credible.
Maxwell appeared before this Court and attempted to mislead it by distancing Plaintiffs’
attorneys from the Home Defense League, despite filing briefing under that name three days
prior. Moreover, when Maxwell was not interrupting the Court or acting disrespectfully, he
was either sugarcoating the role of Plaintiffs’ attorneys (e.g. claiming they were “special
prosecutors”) or raising wild, unsupported allegations about Isaacs. Indeed, instead of
providing the Court with the clarification it sought in its February 6 order, Maxwell instead
chose to attack Isaacs and his attorney. He accused Isaacs of having a vendetta against Hertel
because Hertel allegedly asked the Attorney General’s office to file criminal charges against
Isaacs (charges that were never filed), without offering any support for this accusation to the
Court. He even went so far as to demand the Court sanction Isaacs for filing the Rule 11
motion, its accompanying briefing, and the subsequent briefing the Court requested.
Based on this lack of credibility, the Court is disinclined to even address the
arguments made by Plaintiffs’ attorneys in the motion. Nevertheless, the Court will briefly
touch on them. First, Plaintiffs’ attorneys note that Isaacs filed a brief and multiple exhibits
after the deadline for doing so set by this Court in its February 6 order. The deadline was
noon on February 18. (See Dkt. No. 82) Because this was a federal holiday, Presidents Day,

11

Isaacs’ attorney requested permission to file the briefing after the deadline. The Court, in its
discretion, extended the deadline until noon on February 19, a courtesy the Court would have
extended to Plaintiffs if they had asked. Indeed, the Court is considering all of the briefing
that was filed, even Plaintiffs’ present motion, which attempts to provide the information
requested in the February 6 order despite also being filed after the February 18 deadline and
despite being cloaked as a distinct motion.
Next, Plaintiffs’ attorneys raise two arguments in relation to the Rogers case, included
as one of the eleven prior suits listed above. First, they note that Marsh withdrew from that
case on July 15, 2011. (See 2:11-CV-11167, Dkt. No, 27.) While this is true, it does not
change the fact that Marsh represented the plaintiffs at the time they brought their claims
against Orlans or the fact that these claims were dismissed. Second, Plaintiffs’ attorneys note
that the Sixth Circuit has subsequently changed its position on attorney violations under the
FDCPA. Plaintiffs’ attorneys are correct. Within the last two months, the Sixth Circuit has
ruled that a lawyer may be considered a debt collector under the FDCPA if his principal
business purpose is mortgage foreclosure or if he regularly performs that function. See
Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 463 (6th Cir. 2013). Notably, the Sixth
Circuit, in an unrelated case, applied this holding to a motion to dismiss brought by Orlans.
See Mellentine v. Ameriquest Mortg. Co., No. 11-2467, 2013 WL 560515, at *3 (6th Cir.
Feb. 14, 2013). However, this was not the law at the time Marsh brought the claims against
Orlans in Rogers. The governing Sixth Circuit ruling at the time was that “an enforcer of a

12

security interest, such as a repossession agency, does not meet the statutory definition of a
debt collector under the FDCPA.” Montgomery v. Huntington Bank, 346 F.3d 693, 701 (6th
Cir. 2003). As Glazer itself noted, “[t]he view adopted by a majority of district courts, and
the one followed below, is that mortgage foreclosure is not debt collection.” 704 F.3d at 460.
Moreover, the fact that the Sixth Circuit has since reversed its view on the FDCPA does not
make up for the fact that, other than in Rogers, a violation of the FDCPA was not alleged in
the previous suits. Nor does it change the fact that Plaintiffs’ attorneys employed a “kitchen
sink” approach in each of those prior cases. The following list represents the Court’s attempt
to list every non-FDCPA claim against Isaacs and Orlans that was dismissed and, in
parentheses, the estimated number of times the claim was brought:6
•

wrongful foreclosure/violation of foreclosure statutes (12)

•

negligence (3)

•

intentional infliction of emotional distress (1)

•

negligent infliction of emotional distress (2)

•

fraud of some form (including filing false or fraudulently procured documents
a/k/a robo-signing, filing false affidavits, fraudulent ownership of mortgages)
(9)

6

This list does not include claims brought in the present case. Note also that this list is an
estimate only included to show the scope of the claims brought. While the Court made every
effort to be accurate, sometimes the complaint in each case and/or the documents available to this
Court for review were not entirely clear on whether certain claims applied to every defendant.
Moreover, note that the Court counted every claim once, even if it could arguably fit within
multiple categories. Also note that because the Court grouped many sets of different claims in
the same category (such as “fraud”), sometimes distinct claims from the same case were included
in the same category.
13

•

failure to pay transfer taxes (1)

•

quiet title (4)

•

breach of mortgage contract (5)

•

conversion (6)

•

Defendants are not holders of original notes (6)

•

Defendants are not the real parties in interest/lack of standing to foreclose (6)

This list shows the breadth of the claims brought by Plaintiffs’ attorneys against Isaacs and
Orlans, and their repetition. Thus, the fact that, under current Sixth Circuit law, the FDCPA
claim in Rogers may have been dismissed prematurely does not affect this Court’s conclusion
that Plaintiffs’ attorneys have been filing meritless lawsuits to harass Isaacs and Orlans.
Next, Plaintiffs’ attorneys note that the present complaint was filed against Isaacs for
his position as Vice President and Secretary of MERS and not as a lawyer. The Court fails
to see the relevance of this argument. The Court has not adopted a position as to whether
Isaacs was sued in his capacity as an attorney in this matter. The Court’s conclusion that
Isaacs was fraudulently joined was based on the fact that the claims against Isaacs were noncolorable, and this fact did not depend on in what capacity Plaintiffs’ were suing Isaacs. (See
Dkt. No. 49.)
The last argument the Court wishes to address is the defense of immunity asserted by
Plaintiffs’ attorneys. Plaintiffs’ attorneys are not entitled to governmental immunity.
Michigan Compiled Law § 691.1407 concerns the immunity of governmental agencies and
14

officers from tort liability. Sanctions under Rule 11 do not constitute tort liability. All
parties, including governmental parties and attorneys hired by governmental parties, must
comply with the Federal Rules of Civil Procedure.
Thus, because Plaintiffs’ motion for an evidentiary hearing lacks merit, it will be
denied.
IV.
The Court is generally loathe to impose Rule 11 sanctions. However, it cannot ignore
the unique circumstances of the present case. Marsh and Maxwell have made a target of
Isaacs and his firm in the last year, filing voluminous claims in twelve different lawsuits,
every one of which was dismissed pre-trial. Given this history of harassment, the failure of
Plaintiffs’ attorneys to submit evidence to the contrary, the non-credibility of Plaintiffs’
attorneys, and the fact that this Court dismissed every claim against Isaacs in this case under
the fraudulent joinder doctrine, which required the Court to “apply a test similar to, but more
lenient [to the plaintiffs] than, the analysis applicable to a Rule 12(b)(6) motion to dismiss,”
Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 433 (6th Cir. 2012), the Court concludes that
Marsh and Maxwell have violated Rule 11(b)(1). Isaacs is therefore entitled to appropriate
sanctions:
If, after notice and a reasonable opportunity to respond, the court determines
that Rule 11(b) has been violated, the court may impose an appropriate
sanction on any attorney, law firm, or party that violated the rule or is
responsible for the violation.
Fed. R. Civ. P. 11(c)(1).
15

A sanction imposed under this rule must be limited to what suffices to deter
repetition of the conduct or comparable conduct by others similarly situated.
The sanction may include . . . an order directing payment to the movant of part
or all of the reasonable attorney’s fees and other expenses directly resulting
from the violation.
Fed. R. Civ. P. 11(c)(4). The Court concludes that the payment of reasonable attorneys fees
is an appropriate sanction in this situation.
Currently, the billing sheets for Isaacs’ attorneys fees are under seal on account of
Isaacs’ stated fear that the contents of these sheets would be posted on Dibert’s blog. (See
Dkt. No. 93.) In accordance with its February 6 order, the Court has reviewed these billing
sheets in camera and concludes that permanent sealing is not warranted. If the Court is to
award attorneys fees as sanctions in this case, Plaintiffs’ attorneys are entitled to review the
hours and time claimed for reasonableness. Accordingly, Isaacs shall file with this Court an
unsealed request for attorneys fees.
However, this request for attorneys fees shall be subject to a protective order. The
Court finds that good cause exists to issue a protective order prohibiting Plaintiffs and their
attorneys from disclosing to a third party the contents of any request for attorneys fees and
of any accompanying documentation. See Fed. R. Civ. P. 26(c)(1) (“The court may, for good
cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.”)
An order consistent with this opinion shall be entered.

Dated: February 26, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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