Arnett v. Howard et al

Filing 79

MEMORANDUM DECISION denying 69 Motion for Sanctions ; that the portion of the record referencing Plaintiffs mental health is stricken (doc. 64, p.4) and shall not be considered by the Court. Defendants Counsel is further ORDERED to re-file Defendants Response In Opposition To Plaintiffs Untitled Motion Filed On August 14, 2013 (doc. 64) with the offending portions of the submissionremoved. Signed by Magistrate Judge Dustin B. Pead on 10/09/2013. (asp)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

JAMES ARNETT,
MEMORANDUM DECISION & ORDER

Plaintiff,

Case No. 2:13-cv-00591-TS

v.
BENJAMIN SNOW HOWARD;
LIFELINE MEDIA LLC, a Utah entity;
NATIONWIDE AFFORDABLE
HOUSING, a Texas corporation; and the
BEN HOWARD TRUST, an Idaho trust,

United States District Court
Judge Ted Stewart
Magistrate Judge Dustin Pead

Defendants.

This matter comes before the Court pursuant to a 28 U.S.C. §636(b)(1)(A) referral from
District Court Judge Ted Stewart (doc. 61). Currently pending before the Court is Plaintiff
James Arnett’s (Plaintiff) Rule 11 “Motion For Sanctions” against Defendants’ Counsel Bryan J.
Stoddard (Defendants’ Counsel) (doc. 69).
PENDING MOTION
On September 9, 2013, Plaintiff filed his Motion For Sanctions against Defendants’
Counsel, alleging “conspicuous transgressions of [Rule 11] intending to harass Plaintiff” and the
“offering [of] alleged factual contentions, which have no possible evidentiary support” (doc. 69,
p. 2). More specifically, Plaintiff takes issue with Defendants’ Counsel’s personal attack on his
mental health, failure to file a separate motion for attorney fee sanctions1 and the “unnecessary”

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Plaintiff alleges that Defendant failed to file a separate motion for attorney fees in
connection with Defendants’ “Response In Opposition To Plaintiff’s Untitled ‘Motion’ Filed On
August 14, 2013" (doc. 64).

and “inconvenien[t]” request for oral argument.2 (docs. 69, 76). In response, Defendants’
Counsel moves to withdraw its comments made in reference to Plaintiff’s mental health and
clarifies that its request for attorney fees was not made pursuant to Rule 11 (doc. 72).
ANALYSIS
A Motion for Sanctions filed pursuant to Federal Rule of Civil Procedure 11, must “not
be filed or be presented to the court if the challenged paper, claim, defense, contention or denial
is withdrawn or appropriately corrected within 21 days after service or within another time the
court sets.” Fed. R. Civ. P. 11(c)(2). This “safe harbor” provision of the Rule, is designed to
give the opposing party an opportunity to correct or withdraw any violative statement or action
prior to the imposition of sanctions. See Wolf v. Petrock, 2010 U.S. Dist. LEXIS 61915, *4. The
“safe harbor” provision of Rule 11 is to be strictly enforced. Id. (citing, Roth v. Green, 466 F.3d
1179, 1192-93 (10th Cir. 2006) (holding that substantial compliance with Rule 11's “safe harbor”
provision was not sufficient).
Here, it appears that Plaintiff failed to comply with the notice requirements of Rule 11, as
there is no evidence that Plaintiff served Defendant’s counsel with the motion for sanctions
before it was filed. Fed. R. Civ. P. 11(c)(2). Under such circumstances, Rule 11 does not
authorize the imposition of sanctions. Defendants’ counsel has, however, agreed to voluntarily
withdraw the comments at issue and accordingly the comments regarding Plaintiff’s mental
health are hereby stricken from the record (doc. 64, p. 4). In addition, the Court requires
Defendant’s Counsel to re-file Defendants’ “Response In Opposition To Plaintiff’s Untitled
2

Plaintiff objects to Defendants’ request for oral argument in connection with a Notice To
Submit filed in relation to Defendants’ “Motion To Dismiss Plaintiff’s First Amended Complaint
For Failure To State A Claim” (doc. 68).
2

‘Motion’ Filed On August 14, 2013” with the offending portions of the submission formally
removed.
As to Plaintiff’s argument regarding attorney fees, Defendants’ Counsel’s request for
attorney fees was made pursuant to the discretionary powers of the Court and not under Rule 11.
Therefore, it was not necessary for Defendants’ Counsel to file a separate motion for sanctions.
See Fed. R. Civ. P. 11(c)(1) (“A motion for sanctions must be made separately from any other
motion and must describe the specific conduct that allegedly violates Rule 11(b)). Furthermore,
it is entirely appropriate for a party to request oral argument in conjunction with the filing of a
dispositive motion, and as a result, the Court finds that Defendants’ Counsel’s request for oral
argument is not sanctionable. See DUCivR 7-1(f) (“requests for oral arguments on motions will
be granted on good cause shown.”).
ORDER
For the reasons now stated herein, Plaintiff’s Motion For Sanctions is hereby DENIED
(doc. 69). It is hereby ORDERED that the portion of the record referencing Plaintiff’s mental
health is stricken (doc. 64, p.4) and shall not be considered by the Court. Defendant’s Counsel
is further ORDERED to re-file Defendants’ “Response In Opposition To Plaintiff’s Untitled
‘Motion’ Filed On August 14, 2013" (doc. 64) with the offending portions of the submission
removed.
Dated this 9th day of October, 2013

______________________________
Dustin Pead
U.S. Magistrate Judge

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