Cox v. Dell et al

Filing 55

ORDER denying 49 Motion for Sanctions Signed by Chief Judge David C Norton on 08/3/2011.(jsch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
ROBERT MCDANIEL COX,

)
)
Plaintiff,
)
)
vs.
)
)
LANCE CORPORAL RONALD DEAL OF )
THE SOUTH CAROLINA HIGHWAY
)
PATROL, OFFICER (UNNAMED 2ND
)
HIGHWAY PATROL OFFICER WHO
)
ARRIVED AFTER PLAINTIFF WAS
)
ARRESTED BY LANCE CORPORAL
)
RONALD DEAL),
)
Defendants.
)
______________________________________ )

Civil No. 2:09-CV-2715-DCN-BM

ORDER AND OPINION

This matter is before the court on defendants’ motion for Rule 11 sanctions.
I. BACKGROUND
Plaintiff filed a twenty-seven page pro se complaint alleging fifty-four causes of
action against defendants, two South Carolina Highway Patrol Officers. Plaintiff’s
original complaint involved a traffic stop that took place on August 26, 2009, in
Summerville, South Carolina. Plaintiff’s complaint demonstrated that plaintiff was
belligerent, refused to produce his license, registration, and proof of insurance, and
eventually, locked himself in his car. Plaintiff finally complied with defendant Officer
Ronald Deal’s requests after another officer arrived on the scene. Plaintiff was not
arrested, but was issued a citation and warned not to repeat his behavior.
Plaintiff’s complaint alleges a plethora of causes of action, a portion of which can
only be deciphered as an attempt to state a claim under 42 U.S.C. § 1983. His other
claims appear to include nearly every claim one could find in a torts textbook and are

repeated to include conspiracy on the part of the other officer to commit each cause of
action. Plaintiff also filed an amended complaint, which is substantially the same as the
original complaint.
Magistrate Judge Bristow Marchant issued a scheduling order on January 12,
2010. In his response to the scheduling order, plaintiff filed a “Notice to Court,”
“remind[ing] all members of the judiciary” of a number of his alleged Constitutional
rights. Pl.’s Resp. to Sched. Order. In his notice, plaintiff argued that the scheduling
order interfered with his right to trial by jury and stated that he refused to participate in
discovery, depositions, production of witnesses, production of evidence, or any other
pretrial activities because they violated his right to a jury trial. Plaintiff did, in fact, fail
to participate in discovery, attend depositions, answer discovery requests, or comply with
the magistrate judge’s order to mediate. In his response to the scheduling order, plaintiff
stated he was not bound by, nor would he comply with the Federal Rules of Civil
Procedure. Pl.’s Resp. to Sched. Order. He then espoused numerous “obligations” of the
magistrate judge and the judiciary.
In his August 10, 2010 motion, plaintiff states that the magistrate judge’s
“ignorance and failure” demonstrated prejudice and discrimination. Pl.’s Dem. Aug. 10,
2010. He also “demanded” that the magistrate judge answer all his filings within
twenty-four hours. Plaintiff later demanded the magistrate judge’s removal for failing to
respond. The magistrate judge issued a Report and Recommendation (“R&R”), to which
plaintiff objected. This court agreed with the R&R and granted defendants’ motion for
summary judgment on October 1, 2010. Plaintiff also objected to that order, attacking
both this court and the magistrate judge, but did not appeal.

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In total, plaintiff filed twelve documents, many of which required responses by
defendants. Plaintiff signed each of these documents. Defendants sent a copy of their
motion for sanctions to plaintiff on August 18, 2010. On September 13, 2010, defendants
filed the instant motion pursuant to Federal Rules of Civil Procedure Rule 11.
II. PRO SE PARTIES
A pro se pleading is not subjected to the same scrutiny as one drafted by an
attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Even pro se litigants, however,
must follow the procedural rules of the court. Jones v. First Franklin Loan Serv., No. 100360, 2011 WL 972518, at *1 n.1 (W.D.N.C. Mar. 15, 2011). Rule 11 governs both
attorneys and pro se litigants. Fed. R. Civ. P. 11 advisory committee’s note to 1993
amends.; Katti v. Moore, No. 06-0471, 2006 WL 3424253, at *5 (E.D. Va. Nov. 22,
2006) (“while a pro se party should be granted a degree of indulgence greater than a
practicing attorney, a pro se party still must abide by the clear requirements of Rule
11.”); see also, Graves v. Indus. Power Generating Corp., No. 09-0171, 2011WL 63696,
at *16 (E.D. Va. Jan. 5, 2001) (holding a pro se litigant is still subject to Rule 37). Pro se
filings are examined under the objective standard of reasonableness. Id.
III. LEGAL STANDARDS
Rule 11(a) requires every pleading, written motion, or other paper to be signed by
either the party’s attorney, if represented, or the party itself, if the party proceeds without
representation. By signing a filing, a party represents to the court and certifies “that to
the best of the person’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances,” the filing is not “presented for any improper
purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of

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litigation,” and “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.” Fed. R. Civ. P. 11(b) (emphasis added). Rule
11(b)(3) requires that filings have a proper factual basis for each claim.
Reasonableness of a filing party’s actions under Rule 11 involves an objective
inquiry into the prefiling investigation. See In re Kunstler, 914 F.2d 505, 514 (4th Cir.
1990). Legal allegations fail the requirements of Rule 11(b)(2) when there is “absolutely
no chance of success under the existing precedent.” Hunter v. Earthgrains Co. Bakery,
281 F.3d 144, 153 (4th Cir. 2002). In order to warrant sanctions, the legal position must
be completely untenable, rather than merely unsuccessful. Id. at 151. The issue is
whether a reasonable person under the same circumstances would have believed his or
her actions to be legally justified. Id. at 153.
Under Rule 11(c)(2), “[a] motion for sanctions must be made separately from any
other motion and must describe the specific conduct that allegedly violates Rule 11(b).”
A party moving for Rule 11(b) sanctions must serve the offending party according to
Rule 5 and allow the offending party a twenty-one day safe harbor to correct or withdraw
the challenged paper. Fed. R. Civ. P. 11(c)(2). Rule 6(d) allows a responding party three
extra days if served by mail. Once the motion is filed, “the court may award the
prevailing party the reasonable expenses, including attorney’s fees, incurred for the
motion.” Fed. R. Civ. P. 11(c)(2). Additional sanctions “must be limited to what suffices
to deter repetition of the conduct or comparable conduct by others similarly situated” and
“may include” nonmonetary sanctions, payment to the court, and/or “if imposed on
motion and warranted for effective deterrence . . . reasonable attorney’s fees and other

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expenses directly resulting from the violation.” Fed. R. Civ. P. 11(c)(4) (emphasis
added). An order imposing sanctions “must describe the sanctioned conduct and explain
the basis for the sanction.” Fed. R. Civ. P. 11(d)(6). This rule does not apply to
discovery. See Fed. R. Civ. P. 11(d).
Federal Rule of Civil Procedure Rule 37 is analogous to Rule 11 with respect to
noncompliance with court orders and discovery violations. Rule 37(b)(2)(C) states that
when a party fails to comply with a court order, “the court must order the disobedient
party . . . to pay reasonable expenses, including attorney’s fees, caused by the failure,
unless the failure was substantially justified or other circumstance make an award of
expenses unjust.” Rule 37(d)(3) requires the same action for a party’s failure to attend
deposition, serve answers to interrogatories, or respond to a request for inspection. The
rules will not excuse failures to respond “on the ground that the discovery sought was
objectionable, unless the party failing to act has a pending motion for a protective order
under Rule 26(c).” Fed. R. Civ. P. 37(d)(2).
A.

Factors to Consider When Issuing Rule 11 Sanctions

When imposing Rule 11 sanctions, a district court must “expressly consider . . .
(1) the reasonableness of the opposing party’s attorney’s fees; (2) the minimum to deter;
(3) the ability to pay; and (4) factors related to the severity of the Rule 11 violation.”
Brubaker, 943 F. 2d 1363, 1374 (4th Cir. 1991) (emphasis added) (internal quotations
omitted) (citing Kunstler, 914 F.2d at 523). “Since the [primary] purpose of Rule 11
sanctions is to deter rather than to compensate, the rule provides that, if a monetary
sanction is imposed, it should ordinarily be paid into the court as a penalty.” Fed. R. Civ.
P. 11 advisory committee’s note to 1993 amends. Courts have noted that other purposes

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include compensating the injured party and judicial efficiency. Kunstler, 914 F.2d at
522.
i.

Attorney’s Fees

A court award for attorney’s fees is only permitted upon motion by the opposing
party and the award should not exceed the expenses and fees directly and unavoidably
caused by the violation. Id. at 523 (“Only attorney time which is in response to that
which has been sanctioned should be evaluated.”). A district court determines
reasonableness of fees and costs by comparing the alleged amounts against similar rates
in the area and the overall costs of litigation in a similar nonfrivolous lawsuit. Convey
Compliance Sys., Inc. v. 1099 Pro, Inc., 443 F.3d 327, 334 (4th Cir. 2006); Bass v. E.I.
Dupont de Nemours & Co., 324 F.3d 761, 766-68 (4th Cir. 2003).
The district court must use a “lodestar” analysis to determine reasonable
attorney’s fees by multiplying a reasonable hourly rate by the number of hours
reasonably expended. Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th
Cir. 2009) (citing Grissom v. Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008)). The
Fourth Circuit has provided twelve guiding factors in the reasonableness analysis:
(1) the time and labor expended; (2) the novelty and difficulty of the
questions raised; (3) the skill required to properly perform the legal
services rendered; (4) the attorney's opportunity costs in pressing the
instant litigation; (5) the customary fee for like work; (6) the attorney's
expectations at the outset of the litigation; (7) the time limitations imposed
by the client or circumstances; (8) the amount in controversy and the
results obtained; (9) the experience, reputation and ability of the attorney;
(10) the undesirability of the case within the legal community in which the
suit arose; (11) the nature and length of the professional relationship
between attorney and client; and (12) attorneys' fees awards in similar
cases.
Id.; Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 n. 28 (4th Cir. 1978). Finally,

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“[t]he injured party has the duty to mitigate costs by not overstaffing,
overresearching or overdiscovering clearly meritless claims.” Kunstler, 914 F.2d
at 523.
A party requesting attorney’s fees has the burden to establish the
prevailing market rates for the billable hours. Robinson, 560 F.3d at 245 (citing
Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990) (“In addition to the attorney’s
own affidavits, the fee applicant must produce satisfactory specific evidence of
the prevailing market rates in the relevant community for which he seeks an
award.”)). Sufficient specific evidence to “verify the prevailing market rates are
affidavits of other local lawyers who are familiar both with the skills of the fee
applicants and more generally with the type of work in the relevant community.”
Id.
The moving party also has the burden of demonstrating that the hours
spent are reasonable. Costar Group, Inc. v. Loopnet, Inc., 106 F. Supp. 2d 780,
788 (D. Md. 2000). Specific and contemporaneous time sheets are preferred, but
a detailed summary is acceptable. Id. A summary must have sufficient detail for
the court to rule on the reasonableness of the award. Id. (“[T]he records must
specify for each attorney, the date, the hours expended, and the nature of the work
done.”).
ii.

Minimum to Deter

The primary purpose of a Rule 11 sanction is to deter future abuses by the party
and others in a similar situation. Kunstler, 914 F.2d at 522. As such, the district court
should impose “the least severe sanction adequate to serve the purposes of Rule 11.” Id.

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“A district court can and should bear in mind that other purposes of the rule include
compensating the victims of the Rule 11 violation, as well as punishing present litigation
abuse, streamlining court dockets and facilitating court management.” Id. (citations
omitted). “Thus, the limit of any sanction award should be that amount reasonably
necessary to deter the wrongdoer.” Id. at 524.
iii.

Ability to Pay

Rule 11 sanctions are punitive in nature and as such, the “financial condition of
the offender is an appropriate consideration.” Id. at 524. If the district court imposes a
monetary sanction “without any consideration of ability to pay,” this constitutes an abuse
of discretion. Salvin v. Am. Nat’l Ins. Co., No. 07-1487, 2008 WL 2369095, at *4 (4th
Cir. June 10, 2008) (citing Kunstler, 914 F.2d at 524). However, the burden is on the
sanctioned party to argue inability to pay and the court should treat the issue as
“reasonably akin to an affirmative defense.” Id. “Although the burden is upon the
parties being sanctioned to come forward with evidence of their financial status, a
monetary sanction imposed without any consideration of ability to pay would constitute
abuse of discretion.” Kunstler, 914 F.2d at 524. If the party does not raise this defense,
an appellate court will only consider whether or not the district court addressed the issue
properly with the information available.
iv.

Severity of the Violation

The court must also consider the severity of the Rule 11 violation. The factors to
consider include “the offending party’s history, experience and ability, the severity of the
violation, the degree to which malice or bad faith contributed to the violation, the risk of
chilling the type of litigation involved, and other factors as deemed appropriate.”

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Brubaker, 943 F.2d at 1388. Many lower courts in the Fourth Circuit have looked at the
number of previous filings by a party when examining this factor. See, e.g., Myers v.
Am. Servicing Co., 227 F.R.D. 268, 721 (E.D. Va. 2005) (“The plaintiff and her husband
are serial filers of frivolous and harassing lawsuits.”).
B.

Factors to Consider When Issuing Rule 37 Sanctions

When considering sanctions under Rule 37, a court must weigh four factors: “(1)
whether the non-complying party acted in bad faith, (2) the amount of prejudice the
noncompliance caused the adversary, (3) the need for deterrence of the particular sort of
non-compliance, and (4) whether less drastic sanctions would have been effective.” Belk
v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir. 2001); Anderson v.
Found. for Advancement, Educ. & Emp’t of Am. Indians, 155 F.3d 500, 504 (4th Cir.
1998); but see S. States Rack & Fixture v. Sherwin Williams Co., 318 F.3d 592, 596 (4th
Cir. 2003) (describing an alternative analysis for Rule 37(c)(1) violations). A district
court must consider all of these factors; however, no one factor is dispositive. See, e.g.,
Law Enforcement Alliance of Am., Inc. v. USA Direct, Inc., No. 02-1715, 2003 WL
1154115, at *7 (4th Cir. Mar. 14, 2003). The district court must also examine the
reasonableness of attorney’s fees for the purposes of a Rule 37 sanction.
Bad faith can be evidenced by repeated and flagrant disregard for the binding
orders of a magistrate judge. Plant v. Merrifield Town Center Ltd. P’ship, 711 F. Supp.
2d 576, 587 (E.D. Va. 2010). Many courts have heavily focused on the element of bad
faith in the issuance of sanctions. See, e.g., King v. Rollo, No. 09-0015, 2011 WL
901831, at *8-14 (N.D. W.Va. Jan. 28, 2001). However, while bad faith is an important
factor, it is not required for sanctions. See Law Enforcement Alliance, 2003 WL

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1154115, at *7 (“Anderson does not hold that a district court must find that a party acted
in bad faith, it merely holds that in determining what sanctions are appropriate, a district
court must consider ‘whether’ the party acted in bad faith.”).
Prejudice occurs when the offended party lacks information to properly adjudicate
his or her position. Id. at *15. The amount of prejudice depends on the materiality of the
information sought. Id. (“Defendant has suffered a great deal of actual prejudice in that
the information requested is at the very heart of the [p]laintiff’s case and the defendant’s
defense.”).
The deterrence and lesser sanctions factors are similar and related. While courts
list them separately in opinions, both analyses involve a description of the offending
party’s behavior in the present and past litigation. Id. at *16. Courts view deterrence as
especially necessary when a party is “ignoring the direct orders of the court.” Id. Courts
typically point to past attempts to curb a party’s conduct when examining whether a
lesser sanction would be appropriate. See id.
IV. APPLICATION
Plaintiff has unnecessarily burdened this court and opposing party with frivolous
litigation which a reasonable pro se litigant would not have pursued. Claims described
by plaintiff in his complaint are utterly lacking in any legal basis and violative of Rule
11(b)(2). Additionally, plaintiff refused to follow the direct orders of the magistrate
judge and refused to participate in discovery, both of which are violations of Rule 37.
Defendants’ motion is, however, fatally deficient. Defendants’ motion does not
request sanctions payable to this court, and this court declines to order any such sanctions
sua sponte. Instead, defendants request that this court issue attorney’s fees to punish

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plaintiff for his actions and compensate defendants for the expensive litigation that has
ensued. Attorney’s fees may be an appropriate deterrent in this case, but defendants’
motion lacks specific information required for this court to make factual findings on the
reasonableness of the fees defendants’ request. Defendants failed to provide affidavits
and time summaries detailing the connection between the fee requested and the violations
of Rules 11 and 37. Defendants also failed to provide support for the reasonableness of
the hourly rate and the amount of time spent litigating this case. This court cannot make
a determination on the merits of this award without such support. Defendants also could
have provided a list of plaintiff’s prior court filings with this and other courts to
substantiate this motion. Based on the foregoing, the court declines to award any fees at
this time.
V. CONCLUSION
For the foregoing reasons, the court DENIES defendants’ motion for Rule 11
sanctions. This court reserves the right to revisit this issue, and any potential motion for
Rule 37 sanctions, should defendants choose to resubmit their motion with adequate
information for a factual determination on the reasonableness of attorney’s fees.
AND IT IS SO ORDERED.

_____________________________________
DAVID C. NORTON
CHIEF UNITED STATES DISTRICT JUDGE
August 3, 2011
Charleston, South Carolina

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