Vetere et al v. Holbert
MEMORANDUM AND ORDER denying 11 pltf's Motion for Sanctions; denying 26 pltf's Motion for Mediation. Signed by Honorable Malachy E Mannion on 6/7/13 (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
BARRY VETERE and
CIVIL ACTION NO. 3:12-1824
KUNI M. HOLBERT,
MEMORANDUM AND ORDER1
Presently before the court are two motions filed by the plaintiffs, a
motion for sanctions, (Doc. No. 11), and a motion for mediation, (Doc. No.
26). Finding no extraordinary circumstances warrant the imposition of
sanctions, the motion for sanctions will be denied. Finding that the conduct of
the parties no longer indicates consent as to mediation, the motion for
mediation will be denied as moot.
The plaintiff initiated the instant action on September 11, 2012. (Doc.
No. 1). The plaintiffs argue that the defendant has improperly interfered with
their ability to use a longstanding easement to access their lake-front
property. The plaintiff’s complaint contains causes of action for breach of the
For the convenience of the reader of this document in electronic
format, hyperlinks to the court’s record and to authority cited have been
inserted. No endorsement of any provider of electronic resources is intended
by the court’s practice of using hyperlinks.
deeded easement, trespass upon the easement and nuisance in addition to
an action to quite title on alternative grounds of adverse possession,
easement by prescription and easement by necessity. On October 17, 2012,
the defendant filed an answer which included counterclaims for ejectment and
trespass against the defendants alleging that the defendants were parking
vehicles on and otherwise using the defendant’s property. (Doc. No. 8). On
November 7, 2012, the plaintiffs filed an answer to the counterclaims. (Doc.
On December 6, 2012, the plaintiffs filed the instant motion for
sanctions, (Doc. No. 11).2 The plaintiffs argue that the defendant’s
counterclaims for ejectment and trespass, and the underlying argument that
the plaintiffs have usurped some portion of the defendant’s property are so
utterly baseless that they should be dismissed and the defendant’s counsel
should be sanctioned under Federal Rule of Civil Procedure 11. The plaintiffs
argue that the defendant has never contested possession of the
“counterclaim” property before and that stakes left by the defendant’s
surveyors clearly indicate that the property line is not in dispute. On
December 10, 2012, the defendant filed a brief in opposition to the motion for
sanctions in which it explained that questions remain as to the proper starting
The plaintiffs also filed an emergency motion for a temporary
restraining order on December 6, 2012, (Doc. No. 12). The motion was
eventually withdrawn, (Docs. No. 25, 27).
point of the survey in addition to outlining counsel’s research and consultation
with the defendant and his attempts to discuss the survey lines with plaintiffs’
counsel. (Doc. No. 14). In a reply filed December 24, 2012, the plaintiffs argue
that defendant improperly attempted to show that the plaintiffs had violated
local rules of court by failing to meet with defendant’s counsel. (Doc. No. 20).
On January 30, 2013, the plaintiffs filed the instant motion for mediation,
(Doc. No. 26). On May 22, 2013, the plaintiffs filed a motion for preliminary
injunction, (Doc. No. 33), which is not yet ripe for review. The disposition of
that motion have no effect on the currently pending motions.
A. Motion for Sanctions
In their motion for sanctions, the plaintiffs argue that the defendant’s
counterclaims are baseless and, as such, should be dismissed and counsel
for the defendant sanctioned pursuant to Federal Rule of Civil Procedure 11.
Rule 11(b) reads, in pertinent part:
[A]n attorney or unrepresented party certifies that to the best of the
person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances...it is not being presented for any
improper purpose...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...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...
Fed. R. Civ. P. 11(b). The Third Circuit has noted that “[f]ormulating a rule
broad enough to curb abusive litigation tactics and misuse of the court's
process but yet not so sweeping as to hinder zealous advocacy was obviously
a formidable task.” Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987);
see also Cvetko v. Derry Twp. Police Dep’t, 2010 WL 3338256 (M.D. Pa. Aug.
24, 2010). The Third Circuit found that Rule 11 imposes an obligation on
attorneys to “Stop, Think, Investigate and Research” before filing litigation
documents. Id. The court cautioned, however, that “that Rule 11 is not to be
used routinely when the parties disagree about the correct resolution of a
matter in litigation. Rule 11 is intended for only exceptional circumstances.”
Id. at 483.(internal quotation omitted).
The court finds no extraordinary circumstances warranting the
imposition of sanctions at this stage of the proceedings. Counsel for the
defendant has indicated that he conferred with the defendant and her son
regarding the dispute as well as consulting maps and two surveys which
appear to be contradictory in at least some respects. Regardless of these
efforts to “stop, think, investigate and research,” the plaintiffs argue that the
position advanced by the plaintiff is inconceivable based on prior acts by the
defendant. Such challenges, however, are appropriate as part of an attack
on the merits of the counterclaims and therefore do not approach the
extraordinary level necessary for the court to impose sanctions. In addition,
to the extent counsel for the parties dispute the adherence to local rules and
obligations to meet in person, the court finds these arguments to be largely
moot. During the status conference held on March 31, 2013, the plaintiffs’
newly retained counsel and defense counsel affirmed to the court a
commitment to eliminate such accusations between counsel in an effort to
ensure the efficient resolution of this matter. As such, the court will dismiss
the plaintiff’s motion, finding no grounds for sanctions based the current
B. Motion for Mediation
The plaintiffs filed their motion for mediation on January 20, 2013, (Doc.
No. 26). Although it indicated that the defendant shared a desire to attempt
mediation, no certificate of concurrence was filed with the motion. During the
status conference held March 21, 2013, the parties against indicated their
desire to attempt mediation. In an order issued the same date, the court
directed the parties to file a joint status memorandum on or before April 22,
2013 indicating whether they had been able to agree on a private mediator or
otherwise resolve the dispute. (Doc. No. 29). The parties did not file the
required joint status report, but counsel informed the court via telephone that
attempts to mediate were unsuccessful. Moreover, on May 22, 2013, the
plaintiff filed a motion for preliminary injunction. (Doc. No. 33). It is clear to the
court that any concurrence regarding mediation that may have existed at the
time the motion was filed has since abated. It is evident from the failure of
recent attempts to mediate and the filing of the plaintiff’s renewed motion for
a preliminary injunction that mediation is not actively sought at this juncture.
As such, the court will deny the motion subject to refiling jointly should the
parties wish to pursue mediation again in the future.
THEREFORE, IT IS HEREBY ORDERED THAT:
The plaintiff’s motion for sanctions, (Doc. No. 11), is DENIED;
The plaintiff’s motion for mediation, (Doc. No. 26), is DENIED.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: June 7, 2013
O:\Mannion\shared\MEMORANDA - DJ\2012 MEMORANDA\12-1824-01.wpd
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