Tate et al v. Zaleski et al

Filing 321

ORDER denying 307 Motion for Attorney Fees and Sanctions; granting in part and denying in part 312 Motion to Stay Enforcement of Judgment Pending Final Rulings and/or Appeal; granting in part and denying in part 313 Motion to Compel and Sanction Plaintiffs and Counsel. Signed by District Judge Taylor B. McNeel on 2/17/2022. (MS)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ANGELA TATE, DARSHAUN YOUNG,
DENA MYERS, and HOPE LANDING
v.

PLAINTIFFS
CIVIL ACTION NO. 2:19-cv-63-TBM-RHWR

DR. MICHAEL ZALESKI and
TOTAL FOOT CARE, LLC

DEFENDANTS

MEMORANDUM OPINION AND ORDER
At the conclusion of a jury trial in this action arising from Title VII claims of sexual
harassment and hostile work environment, a jury returned verdicts in favor of Plaintiffs Dena
Myers, Darshaun Young, and Angela Tate. The jury also rendered a defense verdict in favor of
Defendant Total Foot Care, LLC relating to the claims of Plaintiff Hope Landing. 1 The Court
entered a Final Judgment [306] on January 19, 2022, consistent with the jury’s verdict. On that
same date, Plaintiffs filed a Motion [307] for Attorney Fees and Sanctions. On February 7, 2022,
Defendants filed a Motion [312] to Stay Enforcement of Judgment Pending Final Rulings and/or
Appeal and a Motion [313] to Compel and Sanction Plaintiffs and Counsel. 2
The Plaintiffs’ filing of lis pendens notices was improper, since the property identified is
not the subject of the instant action. Defendants’ Motions are granted to the extent that the

Dr. Michel Zaleski was dismissed at trial, as an individual Defendant, as the Court granted Defendants’
Rule 50 motion to dismiss Plaintiffs’ state law claims of intentional infliction of emotional distress.
1

Also before the Court is Defendants’ Motion [303] for Judgment Notwithstanding the Verdict, or in the
alternative, Motion to Alter or Amend the Judgment, or in the alternative, Motion for a new Trial which the Court
ruled on by separate Order [320] on this same date.
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Plaintiffs must remove the lis pendens filings and denied as to requests for monetary sanctions.
Neither side is entitled to monetary sanctions. Plaintiffs’ Motion is thus denied, as well.
I.

PLAINTIFFS’ MOTION FOR ATTORNEY FEES AND SANCTIONS
The Court will first consider Plaintiffs’ post-trial Motion [307] for Sanctions pursuant to

Federal Rule of Civil Procedure 11. During the week-long trial of this matter, Defendants
voluntarily withdrew their counterclaims of defamation and tortious interference with business
relations. Plaintiffs now request sanctions against Defendants in the amount of $25,000 for
“injuries of an economic loss, the cost and expense of paying their attorney for those expenses, and
the mental anguish of having to defend [the] frivolous counter lawsuit.” [308] at 3. Plaintiffs assert
that they spent $25,000 in preparation of defending themselves against these counterclaims, and
that these counterclaims were brought for the purpose of harassing the Plaintiffs. Id. at 4.
Rule 11 authorizes a court to impose sanctions on a party who files a pleading if the claims
or defenses of the signer are not supported by existing law or by a good faith argument for an
extension or change in existing law, FED. R. CIV. P. 11 (b)(2); or the allegations and other factual
statements lack evidentiary support or are unlikely to do so after a reasonable opportunity for
investigation. FED. R. CIV. P. 11 (b)(3). The purpose of the rule is to “deter baseless filings in
district court,” Cooter & Gell v. Hartmarx Corp, 496 U.S. 384, 404, 110 S. Ct. 2447, 110 L. Ed. 2d
359 (1990), and to ensure that “victims of frivolous lawsuits do not pay expensive legal fees
associated with defending such lawsuits.” Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 879
(5th Cir. 1988). After notice and opportunity to respond, courts finding a Rule 11(b) violation may
impose appropriate sanctions. FED. R. CIV. P. 11 (c)(1). These may include monetary and injunctive
sanctions, Farguson v. MBank Houston, N.A., 808 F.2d 358, 359-60 (5th Cir. 1986), and even

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dismissal, see Jimenez v. Madison Area Technical Coll., 321 F.3d 652, 657 (7th Cir. 2003). Courts
have a duty to impose the least severe sanction that is sufficient to deter future conduct. Mendoza
v. Lynaugh, 989 F.2d 191, 196 (5th Cir. 1993); FED. R. CIV. P. 11 (c)(4).
The Fifth Circuit has noted that “[a]n attorney may escape sanctions under [R]ule 11 if he
had to rely on a client for information about the facts underlying the pleadings.” St. Amant v.
Bernard, 859 F.2d 379, 383, n.15 (5th Cir. 1988). In St. Amant, the court summarized the three
duties that Rule 11 places on attorneys:
(1) counsel must make reasonable inquiry into the factual basis of any pleading,
motion, or other paper; (2) counsel must make a reasonable inquiry into the law;
and (3) counsel must not file a pleading, motion, or other paper intended to delay
proceedings, harass another party, or increase the cost of litigation.
Id. at 382 (citing Thomas, 836 F.2d at 874).
The Court is within its discretion to deny Plaintiffs’ request for sanctions. See Cooter &
Gell v. Hartmarx Corp, 496 U.S. 384, 404, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990) (stating that a
district court has broad discretion in determining whether any sanction is warranted and, if so,
what it should be); Lulirama, Ltd. v. Axcess Broadcast Servs., Inc., 128 F.3d 872, 884 (5th Cir. 1997)
(affirming district court’s refusal to impose sanctions); Matta v. May, 118 F.3d 410, 416 (5th Cir.
1997) (reversing district court’s order imposing sanctions because plaintiff’s libel claims were well
grounded in fact and law).
Rule 11 requires the movant to “describe the specific conduct that allegedly violates Rule
11(b).” FED. R. CIV. P. 11 (c)(2). 3 “Under Rule 11(b)(2), [s]anctions are appropriate if counsel

In their Response [310], Defendants seemingly urge the Court to issue an Order to Show Cause pursuant to
Rule 11 to require the Plaintiffs to provide support for the claim of $25,000 in expenses. [310] at 4. Rule 11(c)(3) does
provide that a court may order an attorney “to show cause why conduct specifically described in the order had not
violated Rule 11(b).” FED. R. CIV. P. 11 (c)(3). The Court notes that a show cause order under Rule 11 would apply to
the non-movant—the Defendants—and not to the party bringing the Rule 11 motion. While it is not clear what the
3

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submits a legally indefensible filing, and [a] filing is legally indefensible if it is not warranted by
existing law or by a nonfrivolous argument.” M2 Techn., Inc. v. M2 Software, Inc., 748 F. App’x
588, 589 (5th Cir. 2018) (citing Snow Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 512, 528 (5th
Cir. 2016)) (internal quotations omitted). Plaintiffs’ sole argument in support of sanctions is that
Defendants’ voluntary dismissal of their counterclaims during trial is the equivalent of admitting
that these claims were frivolous; and as such, sanctions should be taken against the Defendants.
However, Plaintiffs have failed to meet their burden under Rule 11 of showing that these
claims were frivolous. Notably, at least two of the Plaintiffs indicated during their depositions that
they were unaware of these claims. [310-1]. And at no point in this litigation did Plaintiffs ever seek
to dismiss these claims as not being grounded in law. Nor have the Plaintiffs analyzed the elements
of the counterclaims and set forth how the facts alleged by Defendants in the pleadings
demonstrate that the counterclaims are not supported by existing law. Defendants assert that they
made a strategic decision during the trial of this matter to drop their two counterclaims. [310] at 23. Defendants have set forth the applicable elements for these counterclaims and argued facts in
support. [310] at 2-3. While the counterclaims are questionable, Plaintiffs have not analyzed how
the claims are frivolous. Voluntarily dismissing claims does not automatically equate to frivolity.
See Adams v. Austal, USA, L.L.C., 530 F. App’x 699, 703-04 (11th Cir. 2013) (denying sanctions
where plaintiffs voluntarily dismissed claims as “the totality of the evidence does not support a
conclusion that any of Plaintiffs’ claims were objectively frivolous” and there was no evidence the
claims were pursued in bad faith); Nieman v. Milam, No. 3:14-CV-3897-M (BT), 2018 WL
2604862, at *3 (N.D. Tex. May 11, 2018), report and recommendation adopted, No. 3:14-CV-3897-

Defendants are requesting, the Court finds it is unnecessary to order either side to show cause, as the Plaintiffs’ motion
for sanctions is denied.

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M (BF), 2018 WL 2575231 (N.D. Tex. June 4, 2018) (finding that voluntary dismissal of RICO
claim does not necessarily establish that the claim was frivolous); CUTTR//// Holdings LLC v.
Patinkin, No. CIV.A. 05-CV-4537WJM, 2007 WL 1200134, at *3 (D.N.J. Apr. 20, 2007) (finding
that voluntary dismissal of six claims was not an admission that the claims were frivolous and noting
that the party moving for sanctions did not provide affirmative explanations for why the claims
should be considered frivolous); Cheetham v. CSX Transportation, Inc., No. 3:06-CV-704, 2011 WL
13176218, at *1 (M.D. Fla. July 25, 2011) (denying motion for sanctions and finding that voluntary
dismissal of claims is not an admission of frivolity where there was some factual support for the
claims). Plaintiffs must show more, and they have not.
Accordingly, the Court denies Plaintiffs’ request for attorney fees and sanctions.
II.

DEFENDANTS’ MOTION TO STAY ENFORCEMENT OF JUDGMENT
On February 2, 2022, Plaintiffs filed notices [312-1] of lis pendens against Defendants

Michael Zaleski and Total Foot Care, LLC. Defendants assert that these actions were improperly
filed because:
[N]o Plaintiff obtained a judgment against Michael Zaleski, . . . the Judgment [306]
is not yet 30 days old and the Plaintiffs have violated the very clear terms of FRCP
62(a) by violating the automatic stay and seeking to enforcement [sic] the judgment
before 30 days have expired, . . . lis pendens is wholly improper, [and] Hope Landing
has also filed for lis pendens despite not obtaining a verdict against Total Foot Care.
[312] at 2. Defendants request that the court sanction the Plaintiffs by ordering them to cancel and
withdraw all actions taken to enforce the judgment. Id. Defendants further request that the Court
“stay execution of the judgment pending final resolution of the motions and any potential appeal
and waive any appeal bond because of the Plaintiffs’ bad acts.” Id.

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At the outset, the Court notes that FRCP 62(a) provides an automatic stay of proceedings
to enforce a judgment, stating “[e]xcept as provided in Rule 62(c) and (d), execution on a judgment
and proceedings to enforce it are stayed for 30 days after its entry, unless the court orders
otherwise.” FED. R. CIV. P. 62(a). Since the Court entered its Final Judgment [306] on January 19,
2022, any proceedings to enforce the judgment are automatically stayed until February 18, 2022.
From the email correspondence between counsel and the lis pendens filings, it is clear that
Plaintiffs intend to use the lis pendens filings as a method to enforce the judgments in this action. 4
Therefore, any proceedings to enforce the judgment, including the lis pendens proceedings
instituted by the Plaintiffs, are in violation of Rule 62(a)’s automatic stay.
Furthermore, the filing of notices of lis penden are improper, as lis pendens can only be
filed if a claim is related to a specific property. See Hooker v. Greer, 81 So. 3d 1103, 1109 (Miss.
2012) (“filing a lis pendens is a preliminary action necessary to file a civil action to enforce an
interest in property”); Miss Code Ann. §§ 11-47-3, 11-47-9; Fryar v. Sav-Amil, LLC, No. 3:08-cv63-SA-SAA, 2010 WL 2608098, at *1 (N.D. Miss. June 22, 2010) (granting motion to compel
cancellation of lis pendens filings on properties underlying the lawsuit to conform with final
judgment); Dethlefs v. Beau Maison Dev. Corp., 511 So. 2d 112, 117 (Miss. 1987) (finding the filing
of lis pendens was proper since the party had a right to assert an interest in the underground
pipeline which was the subject of the litigation); Aldridge v. Aldridge, 527 So. 2d 96, 99 (Miss. 1988)
(“The legal function of Lis Pendens is to give notice to the world of an alleged claim of a lien or

Plaintiffs’ counsel refers to the judgment multiple times in the email correspondence between counsel and
indicates that lis pendens can be used to perfect the Plaintiffs’ interest in the judgment. [312-2] at 1, 2, 4. Further, a
copy of the Final Judgment [306] is attached to each lis pendens. [312-1] at 6-8, 31-33.
4

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interest in the property. The lis pendens notice itself does not constitute an independent basis for
imposition of a lien.”).
The 11th edition of Black’s Law Dictionary defines “lis pendens” as:
1. A pending lawsuit. 2. The jurisdiction, power, or control acquired by a court over
property while a legal action is pending. 3. A notice, recorded in the chain of title to
real property, required or permitted in some jurisdictions to warn all persons that
certain property is the subject matter of litigation, and that any interests acquired
during the pendency of the suit are subject to its outcome.
Lis Pendens, BLACK’S LAW DICTIONARY (11th ed. 2019) (emphasis added). Black’s Law Dictionary
further sets forth that:
The particular property involved in the suit must be so definitely described and
identified in the pleading that any one reading it can learn thereby what property is
intended to be made the subject of the litigation. . . . A lis pendens, and its
consequent notice, begins to operate when the suit is properly commenced by the
service of process, and continues to operate until the rendition of final judgment.
Id. See also Huey v. Strong, 206 So. 3d 547, 550 (Miss. Ct. App. 2016) (“a lis pendens is a Latin
phrase for ‘pending lawsuit’—notice of which is required by statute to be filed in county land
records when real estate is a subject of litigation.”). The Court recites these understandings to
identify the purpose of lis pendens and to illustrate how that mechanism under the law is
inapplicable to this case.
Section 11-47-3 of the Mississippi Code provides that notice of lis pendens may be utilized
when a party begins a suit “to enforce a lien upon, right to, or interest in, any real estate.” Miss
Code Ann. § 11-47-3. Here, Plaintiffs’ claims and subsequent verdicts were based on allegations
of sexual harassment and hostile work environment and do not involve enforcement of a “lien
upon, right to, or interest in” any real estate. While Plaintiffs might ultimately secure a judgment
lien against lands owned by Total Foot Care to secure payment of a judgment, that possibility alone

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does not justify a notice of lis pendens—which is different than a judgment lien. See Gilley v.
Shoffner, 345 F. Supp. 2d 563, 566 (M.D. N.C. 2004) (ordering cancellation of notice of lis pendens
against Defendant’s property because Plaintiffs’ cause of action did not affect title to that
property). At the appropriate time, Plaintiffs must follow the procedures for enrolling a foreign
judgment in Mississippi as set forth in §§ 11-7-301, et seq. of the Mississippi Code. See Payne v.
Univ. of So. Miss., Civ. Act. No. 1:12-cv-41-KS-MTP, 2016 WL 1718383, *2 (S.D. Miss. Apr. 29,
2016) (noting that enrollment and enforcement of foreign judgments, such as judgments from a
“court of the United States” is governed by Mississippi statutes).
Accordingly, the Plaintiffs are ordered to remove the lis pendens filed on the subject
properties immediately, but in no event more than fourteen days, as Plaintiffs’ lawsuit does not
involve the property identified in the lis pendens.
Defendants further request, pursuant to Federal Rule of Civil Procedure 62(d), that the
Court “stay execution of the judgment pending final resolution of the [pending] motions and any
potential appeal and waive any appeal bond because of the Plaintiffs’ bad acts.” [312] at 1-2. While
Defendants cite to Rule 62(d), they appear to be referring to a stay under Rule 62(b), as Rule 62(d)
applies to interlocutory orders or injunctions pending appeal. Federal Rule of Civil Procedure
62(b), formerly Rule 62(d), provides that:
[a]t any time after judgment is entered, a party may obtain a stay by providing a
bond or other security. The stay takes effect when the court approves the bond or
other security and remains in effect for the time specified in the bond or other
security.
FED. R. CIV. P. 62(b). The Fifth Circuit acknowledges that “the purpose of a supersedeas bond is
to preserve the status status quo while protecting the non-appealing party’s rights pending
appeal.” Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1190-91
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(5th Cir. 1979). “The posting of a bond protects the prevailing plaintiff from the risk of a later
uncollectible judgment and compensates him for delay in the entry of final judgment.” Hebert v.
Exxon Corp., 953 F.2d 936, 938 (5th Cir. 1992) (quoting NLRB v. Westphal, 859 F.2d 818, 819 (9th
Cir. 1988).
By separate Order [320] on this same date, the Court ruled on the Defendants’ post-trial
motions. As such, the Defendants’ request to stay execution of judgment “pending final resolution
of the [pending] motions” is denied as moot.
The Court also denies Defendants’ requests for a stay pending appeal and a waiver of any
appeal bond. Defendants have offered no support, legally or factually, for such a request other than
that the Court should grant it as a sanction against the Plaintiffs. The Court has already ordered
that Plaintiffs remove the lis pendens. And Defendants have failed to establish why they should be
permitted a stay without any bond or security as an additional sanction. See Peacock v. Thomas, 516
U.S. 349, 359 n. 8, 116 S. Ct. 862, 133 L. Ed. 2d 817 (1996) (“The district court may only stay
execution of the judgment pending the disposition of certain post-trial motions or appeal if the
court provides for the security of the judgment creditor.”). Therefore, Defendants’ motion to stay
execution of judgment pending appeal is denied, as is Defendants’ unsubstantiated request to
waive an appeal bond or other security.
III.

DEFENDANTS’ MOTION TO COMPEL AND SANCTION PLAINTIFFS
AND COUNSEL
In their Motion [313] to Compel and Sanction Plaintiffs and Counsel, Defendants again

request that the Court compel Plaintiffs to “cancel the Lis Pendens immediately without forcing
the Defendants to file an action in State Court.” [313] at 6. As the Court explained above, the

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Plaintiffs are ordered to remove the lis pendens filed. Defendants’ request for sanctions, however,
is denied.
The Court notes that the parties have been more than simply contentious towards each
other during these proceedings. As the Court has already stated, Plaintiffs attempted to enforce a
judgment in violation of F.R.C.P. 62(a). When Plaintiffs filed the notices of lis pendens, they were
attempting to enforce a judgment that was under an automatic stay. Not only was the filing of a lis
pendens in violation of the Federal Rules of Civil Procedure, it is improper here because the
property at issue is not the subject matter of the underlying suit. Additionally, Plaintiffs filed a
notice of lis pendens against property owned by Michael Zaleski—who was not named in the Final
Judgment. Further, Plaintiff Hope Landing—to whom the jury did not award a verdict and is not
entitled to damages—filed a notice of lis pendens against Michael Zaleski and Total Foot Care.
Finally, Defendants assert that Plaintiffs filed a notice of lis pendens on a piece of property that is
owned by EMASEE Properties, LLC—an entity that allegedly owns the property where Total Foot
Care is located and is not named in the lawsuit. [313] at 5. Such actions could be construed as being
done for an improper purpose “such as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation.” FED. R. CIV. P. 11(b)(2).
The parties engaged in a number of email communications, during which Defense counsel
warned Plaintiffs’ counsel that sanctions would be sought if the lis pendens were not removed.
[313-2]. When the motion for sanctions was filed, Defendants accused Plaintiffs’ counsel of
previously abusing “her privilege to practice law,” and alleged that Plaintiffs’ counsel had been
accused of “criminal activity.” [313] at 3. In support, Defendants attached an internet blog post
about Plaintiffs’ counsel. [313-3]. Further, the anonymous comments under the blog post were

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included, and these anonymous comments disparage Plaintiffs’ counsel. Id. This move by
Defendants was unnecessary and improper.
The Court is within its discretion to deny Rule 11 sanctions. See Friends for Am. Free Enter.
Ass’n v. Wal-Mart Stores, Inc., 284 F.3d 575, 577-78 (5th Cir. 2002) (“[A] district court’s denial of
Rule 11 sanctions [is reviewed] for abuse of discretion. Generally, an abuse of discretion occurs
only where no reasonable person could take the view adopted by the trial court.”) (citations and
quotation marks omitted). The Court has described post-trial behavior that is inappropriate.
Because both sides have contributed to “disharmony in the proceedings,” the Court will not grant
sanctions to either side. See Walker v. City of Bogalusa, 168 F.3d 237, 241 (5th Cir. 1999) (motions
for sanctions by both parties denied because both parties contributed to “disharmony in the
proceedings” and filed briefs that “were long on hyperbole and personal attacks and short on
thoughtful analysis”) (citations omitted); Moore v. Vital Prods., Inc., 641 F.3d 259, 259 (7th Cir.
2011) (refusing to impose sanctions because both parties had taken liberties with facts and law in
briefs and “neither side [could] claim the high ground”).
Accordingly, the Court finds that Defendants’ request for monetary sanctions against
Plaintiffs and their counsel is denied.
IV.

CONCLUSION
IT IS THEREFORE, ORDERED AND ADJUDGED that Plaintiffs’ Motion [307] for

Attorney Fees and Sanctions is DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that Defendants’ Motion [312] to Stay
Enforcement of Judgment Pending Final Rulings and/or Appeal is GRANTED in part and
DENIED in part. Defendants’ Motion is GRANTED to the extent that the Plaintiffs are ordered

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to remove the lis pendens filed on the subject properties immediately, but in no event more than
fourteen days. Plaintiffs are further required to provide proof on the docket to the Court of the
removal of the lis pendens filings. Defendants’ requests for other sanctions, including a stay of
execution of judgment pending appeal and monetary sanctions, are DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that Defendants’ Motion [313] to
Compel and Sanction Plaintiffs is GRANTED in part and DENIED in part. Defendants’ Motion
is granted to the extent that Plaintiffs are ordered to remove the lis pendens and it is DENIED as
to the requests for monetary sanctions against Plaintiffs and their attorney.
THIS, the 17th day of February, 2022.

__________________________________
TAYLOR B. McNEEL
UNITED STATES DISTRICT JUDGE

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