Strangmeier v. The City of Houston Texas et al

Filing 32

REPLY in Support of 30 MOTION for Sanctions, filed by Annise Parker, The City of Houston Texas. (Stevens, Elizabeth)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN STRANGMEIER
v.
CITY OF HOUSTON, ET AL

§
§
§
§
§

CIVIL ACTION 4:11cv03463

CITY OF HOUSTON’S AND MAYOR ANNISE PARKER’S
REPLY IN SUPPORT OF MOTION FOR SANCTIONS
I. Argument
Plaintiff seeks to “strike” the City and Mayor Parker’s motion for sanctions, arguing
that because Plaintiff voluntarily dismissed the case before the motion was filed, the motion
cannot be considered by the Court. Plaintiff argues that “neither the court nor the parties
have any role to play after the case is closed by a notice of dismissal.” (Plaintiff’s Response
at p. 2). This is simply incorrect. The court retains collateral jurisdiction to impose sanctions
for vexatious or otherwise sanctionable conduct even when a party seeks to avoid such a
result by voluntary dismissal.
This well-established principle was discussed at length by the Fifth Circuit in Ratliff
v. Stewart, 508 F.2d 225 (5th Cir. 2007). Ratliff involved a patient’s claim that she was
harmed by a dangerous drug. The plaintiff’s counsel mistakenly sued the son of the treating
physician, who was also a doctor, instead of the treating physician. Although the plaintiff’s
attorney’s eventually confessed the error and substituted parties, the Court awarded the
incorrectly sued doctor sanctions against the plaintiff’s counsel under 28 U.S.C. § 1927. In
addressing the plaintiff’s claim that sanctions could not be awarded after the doctor had been

dismissed and final judgment entered, the Ratliff court relied, in part on the Supreme Court’s
decision in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394 (1990). In Cooter & Gell,
the Supreme Court held that “‘district courts may enforce Rule 11 even after the plaintiff has
filed a notice of dismissal under Rule 41(a)(1).’” Ratliff, 508 F.3d 230-231 (quoting Cooter
& Gell, 496 U.S. at 394). The Court noted that “‘nothing in the language of Rule 41(a)(1)(I),
Rule 11, or other statute or Federal Rule terminates a district court’s authority to impose
sanctions after such a dismissal.’” Id.1 The defendants’ motion for sanctions in this case is
not based on Rule 11, but the same reasoning applies to motions for sanctions under Section
1927 and 42 U.S.C. § 1988. Ratliff, at 231-233.
II. Conclusion
For the reasons stated above and in defendants’ motion for sanctions, defendants ask
this Court to award defendants attorney’s fees under 28 U.S.C. § 1927, 42 U.S.C. § 1988, and
its inherent power, against John Strangmeier or Randall Kallinen or both due to the conduct
detailed in the motion.

1

Some courts have noted that the 1993 amendments to Rule 11 to add the safe harbor provision may
limit the holding of Cooter & Gell. However the defendants do not seek relief under Rule 11, and
the Ratliff court applied the analysis to sanctions under Section 1927.
2

Respectfully submitted,
DAVID M. FELDMAN
City Attorney
LYNETTE K. FONS
First Assistant City Attorney
DONALD J. FLEMING
Senior Assistant City Attorney
Chief, Labor Section
/s / Elizabeth L. Stevens
Elizabeth L. Stevens
Attorney In Charge
Senior Assistant City Attorney
Federal ID 20100; SBN 00792767
[e-mail]
Andrea Chan
Senior Assistant City Attorney
Federal ID 14940; SBN 04086600
[e-mail]
City of Houston Legal Department
P.O. Box 368
Houston, Texas 77001-0368
Phone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANTS
CITY OF HOUSTON AND MAYOR ANNISE
PARKER

3

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Reply was served in
accordance with the Federal Rules of Civil Procedure on this the 9th day of July, 2012.

Randall L. Kallinen
Law Office of Randall L. Kallinen PLLC
511 Broadway Street
Houston, Texas 77012

Via efiling

/s/ Elizabeth Stevens
Elizabeth Stevens

4