Henry v. Black
MEMORANDUM DECISION denying 15 Motion to Strike Without Prejudice ; granting in part and denying in part 18 Motion for Sanctions; denying 24 Motion for Sanctions. For details, see Memorandum Decision. Signed by Judge Ted Stewart on 7/19/2011. (ce)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
STRIKE WITHOUT PREJUDICE,
GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION FOR SANCTIONS, AND
DENYING PLAINTIFF’S MOTION
Case No. 2:11-CV-129 TS
This matter is before the Court on Plaintiff’s Motion to Strike, which seeks to strike a
number of Defendant’s affirmative defenses, and cross Motions for Sanctions. For the reasons
discussed below, the Court will deny the Motion to Strike without prejudice. The Court will
grant in part and deny in part Defendant’s Motion for Sanctions and will deny Plaintiff’s Motion
This dispute arises out of an automobile accident wherein Defendant, Michael Black,
allegedly rear-ended Plaintiff Justin Henry’s automobile which, in turn, rear-ended another
automobile. Plaintiff alleges damages to his vehicle and himself.
Plaintiff initially brought three causes of action: failure to drive safely and maintain
control of vehicle; gross and wanton conduct; and negligent entrustment. Plaintiff sought over
$1 million in damages, as well as punitive damages.
Defendant answered Plaintiff’s Complaint, denying many of Plaintiff’s allegations and
asserting a number of affirmative defenses.
In response to Defendant’s Answer, Plaintiff filed a Motion to Strike, seeking to strike a
number of affirmative defenses. Plaintiff argues that these affirmative defenses should be
stricken because they did not meet the pleading requirements of Bell Atlantic Corp. v. Twombly1
and Ashcroft v. Iqbal.2
Shortly after Plaintiff filed his Motion to Strike, Defendant filed a Motion for Sanctions.
In that Motion, Defendant argues that certain allegations in Plaintiff’s Complaint lack evidentiary
support and are not based on knowledge, information and belief formed after reasonable inquiry.
Defendant’s Motion for Sanctions was followed quickly by a competing Motion for
Sanctions filed by Plaintiff. Plaintiff’s Motion for Sanctions is largely derivative of his Motion
550 U.S. 544 (2007).
129 S.Ct. 1937 (2009).
to Strike, essentially arguing for sanctions because certain affirmative defenses lack evidentiary
After all of these Motions had been fully briefed, the parties stipulated to allow Plaintiff
to file an Amended Complaint. The Amended Complaint removed the objectionable material
which made up Defendant’s Motion for Sanctions. Defendant has also filed an Answer to the
Amended Complaint. The Amended Complaint still contains many of the claims Plaintiff
complains of in his Motion to Strike and Motion for Sanctions, but not all of them.
PLAINTIFF’S MOTION TO STRIKE
Plaintiff’s Motion to Strike seeks to strike a number of affirmative defenses in
Defendant’s Answer. As Defendant has now filed an Answer to Plaintiff’s Amended Complaint,
the Motion to Strike is now moot and will be denied as such. If Plaintiff wishes to challenge any
of Defendant’s current affirmative defenses he may do so by filing a new motion.
MOTIONS FOR SANCTIONS
Both parties have filed Motions seeking sanctions against the other. Under Fed.R.Civ.P.
11(b), an attorney who signs a pleading “certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances: . . . 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 . . . .”3
Rule 11 imposes an affirmative duty on an attorney to make a reasonable inquiry into the facts
and law before filing a pleading.4 “While Rule 11 sets a threshold for the factual and legal
assertions of a complaint, it is not a broad mechanism for testing the sufficiency of a plaintiff's
claims.”5 “Rule 11 should not be used to raise issues as to the legal sufficiency of a claim or
defense that more appropriately can be disposed of by a motion to dismiss, a motion for
judgment on the pleadings, a motion for summary judgment, or a trial on the merits.”6 With this
framework in mind, the Court will consider the parties’ respective motions.
Defendant’s Motion for Sanctions
Defendant’s Motion for Sanctions is based on Paragraphs 13 and 14 of Plaintiff’s original
Complaint. Paragraph 13 alleges, on information and belief, that Defendant was using his cell
phone when the collision occurred. As a result of this allegation, Plaintiff asserted a claim for
gross and wanton conduct. Paragraph 14 alleges, again on information and belief, that Defendant
had been in other automobile accidents in the past and asserts a claim for negligent entrustment.
Defendant contends that these allegations wholly lack any evidentiary support. In
response to Defendant’s Motion for Sanctions, Plaintiff argues that these allegations are likely to
have evidentiary support after further discovery. Plaintiff, however, has now removed these
paragraphs from his Amended Complaint.
As set forth above, Rule 11(b) requires an attorney who signs a pleading to certify “that to
the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable
Coffey v. Healthtrust, Inc., 1 F.3d 1101, 1104 (10th Cir. 1993).
Ross v. Mukasey, 2009 WL 4250124, at *1 (D. Colo. Nov. 24, 2009).
5A CHARLES WRIGHT , ARTHUR MILLER & EDWARD COOPER, FEDERAL PRACTICE AND
PROCEDURE § 1336.3 (3d ed. 2009).
under the circumstances: . . . 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 . . . .” The Advisory Committee Notes discussing Rule 11(b) provide a
The certification with respect to allegations and other factual contentions is
revised in recognition that sometimes a litigant may have good reason to believe
that a fact is true or false but may need discovery, formal or informal, from
opposing parties or third persons to gather and confirm the evidentiary basis for
the allegation. Tolerance of factual contentions in initial pleadings by plaintiffs or
defendants when specifically identified as made on information and belief does
not relieve litigants from the obligation to conduct an appropriate investigation
into the facts that is reasonable under the circumstances; it is not a license to join
parties, make claims, or present defenses without any factual basis or
Plaintiff’s counsel asserts that they conducted a reasonable investigation prior to filing the
Complaint in this matter. Counsel also points to “circumstantial evidence” supporting the
inclusion of Paragraphs 13 and 14. For instance, Plaintiff alleges that because others were able
to come to a complete stop, but that Defendant did not, it “appears that the Defendant was
occupied with something else in his car.”8 Plaintiff suggest that because of these facts, and
because of Defendant’s age, it is likely that Defendant was using a cell phone.
The Court finds that these allegations fail to meet the requirements of Rule 11. The
allegation that Defendant was using a cell phone at the time of the incident is merely the
speculation of counsel. As is the allegation that Defendant must have been involved in other
Fed.R.Civ.P. 11 (advisory committee’s note) (emphasis added).
Docket No. 23 at 5.
automobile accidents. While Rule 11 allows a party to plead certain facts which may require
further discovery, it does not permit a party to create facts which he or she hopes will later be
substantiated by future discovery. This is precisely what has occurred here.
Having found a violation of Rule 11, the Court must determine the appropriate sanction.
Rule 11(c)(4) provides:
A sanction imposed under this rule must be limited to what suffices to deter
repetition of the conduct or comparable conduct by others similarly situated. The
sanction may include nonmonetary directives; an order to pay a penalty into court;
or, if imposed on motion and warranted for effective deterrence, an order directing
payment to the movant of part or all of the reasonable attorney's fees and other
expenses directly resulting from the violation.
“Rule 11 sanctions are meant to serve several purposes, including (1) deterring future
litigation abuse, (2) punishing present litigation abuse, (3) compensating victims of litigation
abuse, and (4) streamlining court dockets and facilitating case management. Deterrence is,
however, the primary goal of the sanctions.”9 The Tenth Circuit has identified several factors the
Court is to consider in determining the appropriate sanction, including: (1) the reasonableness
(lodestar) calculation; (2) the minimum amount sufficient to deter misconduct; (3) the offender’s
ability to pay; and (4) any other relevant factor.10 The Tenth Circuit has cautioned that “[t]he
appropriate sanction should be the least severe sanction adequate to deter and punish the
White v. Gen. Motors Corp., Inc., 908 F.2d 675, 683 (10th Cir. 1990).
Id. at 684-85.
Id. at 684.
Considering these factors, the Court finds that no sanction is warranted here. As stated,
the primary purpose of Rule 11 is to deter. Since the filing of the Motion, Plaintiff has removed
the objectionable material from his Complaint by the filing of an Amended Complaint. While
this does not relieve counsel of the Rule 11 violation, this fact persuades the Court that no further
sanctions are required.
Plaintiff’s Motion for Sanctions
Plaintiff’s Motion to Strike is largely derivative of his Motion to Strike. In his Motion to
Strike, Plaintiff argues Defendant’s affirmative defenses do not meet the pleading requirements
of Twombly and Iqbal. In his Motion for Sanctions, Plaintiff goes on to suggest that Defendant’s
counsel have violated Rule 11 because the affirmative defenses lack factual support and are
brought for an improper purpose.
Plaintiff’s Motion for Sanctions differs in an important respect from Defendant’s Motion
for Sanctions. Plaintiff’s Motion seeks to test the legal sufficiency of a number of affirmative
defenses. As set forth above, this is not the proper role of a Rule 11 Motion. The proper
procedure is to file a motion seeking to strike those affirmative defenses, as Plaintiff has done.
Further, the affirmative defenses objected to are not based on pure speculation, as was Plaintiff’s
claim that Defendant was distracted because he was using a cell phone. Defendant has identified
the evidentiary support he has for certain claims and has identified those claims that will likely
have evidentiary support after a reasonable opportunity for further investigation or discovery.
Therefore, the Court will deny Plaintiff’s Motion for Sanctions. Even if the Court were to find
that Defendant’s counsel violated Rule 11, the Court would not find sanctions to be appropriate
for the same reasons set forth above.
It is therefore
ORDERED that Plaintiff’s Motion to Strike (Docket No. 15) is DENIED WITHOUT
PREJUDICE. It is further
ORDERED that Defendant’s Motion for Sanctions (Docket No. 18) is GRANTED IN
PART AND DENIED. It is further
ORDERED that Plaintiff’s Motion for Sanctions (Docket No. 24) is DENIED.
DATED July 19, 2011.
BY THE COURT:
United States District Judge
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