Waldner v. North American Truck & Trailer, Inc. et al

Filing 355

AMENDED ORDER re 354 Order on Motion for Sanctions,. Signed by U. S. District Judge Lawrence L. Piersol on 7/25/12. (CMS)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

PIten

JUL 25 2012

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ROGER D. WALDNER,
Plaintiff,
VS.

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NORTH AMERICAN TRUCK &
TRAILER, INC.; SIOUX FALLS
KEN WORTH, INC.; MID-STATES
ACCEPTANCE CORP; CAROLINA
COMMERCIAL TRUCK SALES, LLC;
SIOUX FALLS TRAILER SALES, INC.;
WILLIAM A. RUSH;
KAREN A. RUSH;
FREDERICK C. LOVRIEN, M.D.;
ALLISON BOADE, M.D.;
KATHY WATKINS;
KATHY WILLIAMS;
KAREN SNOW;
MARCYTHORMODSGAARD;
KERRY SCHMIDT;
RICHARD V. LONG:
PARLIMAN & P ARLIMAN;
CADWELL, SANFORD, DEIBERT
& GARRY; BRETT A. LOVRIEN;
WILLEY, O'BRIEN & HANRAHAN, LC;
RENEE K. HANRAHAN;
BREIT LAW OFFICES PC;
GLENN 1. BOOMSMA;
BRENDTRO LAW OFFICE;
ZIMMER, DUNCAN & COLE, LLP;
DANIEL K. BRENDTRO;
RICE & EWINGER;
CURT R. EWINGER;
SUTTON LAW OFFICES;
TERRY SUTTON;
BARON, SAR, GOODWIN, GILL
& LOHR; A. FRANK BARON;
PACCAR, INC.; VOLVO TRUCK

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CIV lO-4056-LLP

AMENDED
ORDER DENYING MOTION
FOR SANCTIONS

CORPORATION; UTILITY TRAILER
MFG .. ; FISHBACK FINANCIAL
CORPORATION; FIRST BANK &
TRUST, formerly First National Bank;
WALLWORK FINANCIAL
CORPORATION; WELLS FARGO
BANK NORTH DAKOTA, NA;
US BANCORP LEASING AND
FINANCIAL; EIDE BAILLY, LLP;
McGLADREY & PULLEN, LLP:
EAST VANDER WOUDE & GRANT
CO. PC; THUR1vlANB, COMES.
FOLEY & CO., LLP; UTILITY
TRAILER SALES OF CENTRAL
CALIFORNIA, INC.;
WARMER TRUCK CENTER OF UTAH;
JOHN HAUKNECHT, Agent,
Warner Truck Center of Utah;
DENTON HABER;
ACTION CARRIER. INC.;
MICHAEL L. WALSH;
WENDY L. WALSH;
GALLEY W. SMITH;
BRADLEY HARTKE;
DOUGLAS HARTKE;
COMMtfNITY BANK AT WINSLOW,
formerly Winslow-Warren State Bank;
ROBERT LYVERS;
TERRI ROSE;
VAL GUENZLER;
CHEY ANNE DOYLE;
SCOTT D. WIELE;
JACK MAKLER;
MARK FARIS;
DONALD WEBB;
PETER RUESER;
MARK THOMAS GElS;
JAMES SKRZYPEK;
RICHARD D'MARTINI;
TIMOTHY MUELLER;
JANE DOES 1-14; JOHN DOES 1-14;
ROBERT THOMAS MOORE; and
A. THOMAS POKELA,

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Defendants.

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Plaintitl Roger D. Waldner. moves for sanctions against defendants WellsFargo Bank of
North Dakota, N.A. (Wells Farog) and Wallwork Financial Corporation (Wallwork) pursuant to
Rule 11 of the Federal Rules of Civil Procedure. Wells Fargo and Wallwork oppose these motions.
Rule Il(a) of the Federal Rules of Civil Procedure requires every paper filed with the Court
to be signed by an attorney. As part of that signature, the attorney certifies, among other things, that:
(3) 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; and
(4) the denials offactual contentions are warranted on the evidence or. if specifically
so indicated, are reasonably based on a belief or lack of information.
Fed. R. Civ. P. 11(b)(3)-(4). "Rule 11 requires that an attorney conduct a reasonable inquiry of the
factual and legal basis for a claim before filing." Coonts v. Potts, 316 F .3d 745, 753 (8th Cir. 2003).
The Court must determine whether "a reasonable and competent attorney would believe in the merit
ofan argument." Miller v. Bittner, 985 F.2d 935, 939 (8th Cir. 1993). The Court has broad discretion
in ruling on a motion for Rule 11 sanctions. Coonts, 316 F.3d at 753.
Waldner alleges that Wells Fargo's attorney violated Rule 11 in two ways: (1) Wells Fargo
made factual statements indicating that Waldner's company H&W Enterprises sold 757 pieces of
equipment to Carolina Commercial Truck Sales, Inc.; and (2) Wells Fargo generally denied that it
violated the RICO statute. Docket 339 at 5-7, 8. A review of the record demonstrates that these
contentions are without merit. First, the complaint describes the financing arrangement as an
equipment sale to Carolina Commercial. See Docket 9 at ~ 2 ("In May of2001, Roger D. Waldner
entered into a financing arrangement ... whereby he agreed to sell to the Rushes 757 pieces ofH&W
equipment ... then owned by H&W Motor Express Company ... for $800,000 as part of an
agreement with William R. Rush, whereby Carolina Commercial Truck Sales, L.L.C ("Carolina")
... was to acquired the rolling stock from the Rushes ... [.r). Additional allegations in the
complaint describe the equipment as owned by Carolina Commercial. Jd at

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47. There is also

evidence in the record indicating that Carolina Commercial owned the equipment. Waldner
submitted a letter from Brett Lovrien to Roger Waldne,r and an unsigned bill of sale that purports
to sell the equipment from H& Wand Carolina Commercial to the court. See Docket 261-14, 261-15.
There are also certificates of titles showing Carolina Commercial as the owner. See Docket 261-16,
261-21. With respect to the second allegation, Wells Fargo's general denial that it violated RICO
does not violate Rule 11. This Court has already determined that the complaint failed to state a RICO
claim as to Wells Fargo. See Docket 344. Thus, Waldner is not entitled to Rule 11 sanctions against
Wells Fargo.
Waldner's motion for sanctions against Wallwork is similarly deficient. Waldner claims that
Wallwork's attorney falsely represented that Wallwork made a loan to William R. Rush in May 2001
for $800,000 in which a security interest was taken in the equipment. Again, the evidence fully
supports this information. The Affidavit of Kevin Miller and the attached documents demonstrate
that Wallwork made an $800,000 loan to William and Karen Rush on May 23, 2001. See Docket 234
at~~9,

12; 234-3. Thus, Waldner's motion for Rule 11 sanctions against Wallwork fails. Therefore,

it is
ORDERED that Waldner's motions for Rule 11 sanctions (Docket 339, 340) are denied.
Dated this

~day of July, 2012.

L wrence L. Piersol
nited States District Judge
ATTEST:

JOSEPH HAAS, c~

BY:~•

DEPUTY

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