Porter et al v. Daggett County et al
Filing
205
MEMORANDUM DECISION AND ORDER denying 174 Motion for Sanctions AND ORDER TO SHOW CAUSE- Plaintiffs' motion for sanctions is denied. Plaintiffs' counsel are ORDERED to show cause why they should not be required to pay Def endants' attorney fees and costs incurred in defending against the motion, pursuant to 28 U.S.C. § 1927. Plaintiffs' counsel must file a response within fourteen days. Signed by Magistrate Judge Daphne A. Oberg on 12/30/2022. (mh)
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFFS’
MOTION FOR RULE 11 SANCTIONS
(DOC. NO. 174)
AND ORDER TO SHOW CAUSE
DUSTIN PORTER, et al.,
Plaintiffs,
v.
DAGGETT COUNTY, et al.,
Consolidated Case Nos. 2:18-cv-00389,
2:18-cv-00422, & 2:19-cv-00188
Defendants.
District Judge David Barlow
Magistrate Judge Daphne A. Oberg
Plaintiffs Dustin Porter, Steven Drollette, Joshua Asay, and Joshua Olson have filed a
motion for sanctions 1 under Rule 11 of the Federal Rules of Civil Procedure. 2 Plaintiffs contend
counsel for the Daggett County Defendants 3 unreasonably asserted certain facts were undisputed
in their motion for summary judgment. Plaintiffs request that Defendants’ counsel be ordered to
pay Plaintiffs’ attorney fees incurred in responding to the motion for summary judgment.
Defendants oppose the motion for sanctions and request an award of attorney fees and costs
incurred in defending against it. 4
1
(Mot. for Rule 11 Sanctions (“Mot.”), Doc. No. 174.)
2
Fed. R. Civ. P. 11.
3
The Daggett County Defendants are Daggett County, Erik Bailey, and Jerry Jorgensen.
Because the other defendants were dismissed or defaulted before the events relevant to this
motion, the Daggett County Defendants are referred to simply as “Defendants” throughout this
order.
4
(Daggett County Defs.’ Opp’n to Mot. for Rule 11 Sanctions (“Opp’n”), Doc. No. 180.)
1
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Plaintiffs’ motion for sanctions is denied. As explained below, Plaintiffs have not shown
any of the challenged factual assertions violated Rule 11. Defendants supported their factual
assertions with citations to record evidence, and Plaintiffs have not demonstrated any of the
challenged assertions were objectively unreasonable. Accordingly, there is no basis to find any
Rule 11 violation by Defendants’ counsel. Further, Plaintiffs’ Rule 11 motion appears to be an
improper attempt to re-raise factual disputes which Plaintiffs had ample opportunity to litigate on
summary judgment.
Because the motion for sanctions lacks merit and appears to have unreasonably and
vexatiously multiplied the proceedings in this case, Plaintiffs’ counsel are ORDERED to show
cause why they should not be required to pay Defendants’ attorney fees and costs incurred in
defending against the motion, pursuant to 28 U.S.C. § 1927. Plaintiffs’ counsel must file a
response within fourteen days.
BACKGROUND
Plaintiffs are former prisoners at Daggett County Jail. As relevant here, Plaintiffs claim
misconduct by jail officers, including that a jail deputy, Joshua Cox, tased them without
provocation. 5 They brought claims under the Eighth Amendment of the United States
Constitution and Article 1, Section 9 of the Utah Constitution against Daggett County, Erik
Bailey in his official capacity as the current sheriff, and Jerry Jorgensen in his personal capacity
as the former sheriff. These defendants moved for summary judgment on August 20, 2021. 6
5
(Am. Compl. ¶¶ 51–60, 103–07, Doc. No. 3; Asay Compl. ¶¶ 64–66, Doc. No. 2, Case No.
2:18-cv-422; Olsen Am. Compl. ¶ 39, Doc. No. 14, Case No. 2:19-cv-188.)
6
(Daggett County Defs.’ Mot. for Summ. J. (“MSJ”), Doc. No. 126.) At the time the motion for
summary judgment was filed, all other defendants had been dismissed or defaulted.
2
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The court ruled on the motion on February 16, 2022, granting summary judgment in
favor of Defendants on the state-law claims, the claims against Sheriff Bailey, the claims against
Sheriff Jorgensen, and the failure-to-train claims against Daggett County. 7 The court denied
Defendants’ motion for summary judgment as to Plaintiffs’ Eighth Amendment claim against
Daggett County based on Sheriff Jorgensen’s failure to supervise and discipline. 8
Plaintiffs filed the instant motion for sanctions on June 16, 2022, four months after the
court’s summary judgment ruling. 9
LEGAL STANDARDS
Rule 11 of the Federal Rules of Civil Procedure provides that, by presenting a motion to
the court, an attorney certifies “to the best of the person’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances” that 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.” 10 A court may impose sanctions
for violations of this rule “limited to what suffices to deter repetition of the conduct or
comparable conduct by others similarly situated.” 11
7
(Mem. Decision and Order Granting in Part and Den. in Part Defs.’ Mot. for Summ. J. 31, Doc.
No. 164.)
8
(Id.)
9
(Mot., Doc. No. 174.) Defendants argue Plaintiffs’ motion for sanctions was untimely. (Opp’n
4–5, Doc. No. 180.) Because the motion is denied on the merits, the court need not address this
issue.
10
Fed. R. Civ. P. 11(b)(3).
11
Fed. R. Civ. P. 11(c)(4).
3
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Because Plaintiffs allege Rule 11 violations in connection with a motion for summary
judgment, Rule 56 is also relevant here. Rule 56 requires a party asserting a fact is undisputed to
support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or (B) showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact. 12
“[T]he central purpose of Rule 11 is to deter baseless filings in district court and thus . . .
streamline the administration and procedure of the federal courts.” 13 An attorney’s conduct is
assessed “under a standard of ‘objective reasonableness—whether a reasonable attorney admitted
to practice before the district court would file such a document.’” 14 Rule 11 imposes “an
affirmative duty to conduct a reasonable inquiry into the facts and the law before filing.” 15
However, “[b]ecause our adversary system expects lawyers to zealously represent their clients,
[the Rule 11] standard is a tough one to satisfy; an attorney can be rather aggressive and still be
12
Fed. R. Civ. P. 56(c)(1).
13
Collins v. Daniels, 916 F.3d 1302, 1322 (10th Cir. 2019) (second alteration in original)
(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990)).
14
Id. (quoting Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1182 (10th Cir.
2015)).
15
Id. (quoting Bus. Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 551
(1991)).
4
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reasonable.” 16 “[I]n determining if sanctions are appropriate, any doubts must be resolved in
favor of the party signing the pleading.” 17
ANALYSIS
Plaintiffs argue Rule 11 sanctions are warranted based on the factual assertions in
paragraphs 9, 15, 17, and 37 of the “Statement of Undisputed Material Facts” in Defendants’
summary judgment motion. 18 Plaintiffs contend no reasonable attorney would have asserted
these facts were undisputed. The court addresses each fact in turn.
A. Paragraph 9
In paragraph 9, Defendants asserted the following facts were undisputed:
All corrections officers had to be POST certified before they could work in the Jail
as a corrections officer. The Jail also had control room officers, who stayed in a
locked control room during their shifts, who did not need to be certified. However,
all jail staff went through a mandatory FTO training which consisted of being
assigned to an FTO (i.e., Field Training Officer) to help the new officer to learn
the Jail policies and practices and how to treat and properly supervise Jail inmates.
The FTO had to “sign off” and attest that the new officer knew the policies and was
ready to work alone as a Corrections Officer. In addition, all the new officers had
to sign a paper stating that they had read and understood all the Jail policies and
practices. 19
Defendants cited a supporting declaration from Sheriff Jorgensen, which contains a statement
identical to this paragraph. 20
16
Id. (second alteration in original) (quoting Predator Int’l, Inc., 793 F.3d at 1182).
17
Moradian v. Deer Valley Resort Co., No. 2:10-cv-00615, 2012 U.S. Dist. LEXIS 116075, at
*27 (D. Utah Aug. 16, 2012) (unpublished) (quoting Edwards v. Hare, 682 F.Supp. 1528, 1535
(D. Utah 1988)).
18
(See Mot. 4–13, Doc. No. 174.)
19
(MSJ ¶ 9, Doc. No. 126 (emphasis added).)
20
(Id. (citing Decl. of Jerry Jorgensen in Support of MSJ (“Jorgensen Decl.”) ¶ 14, Doc. No.
127).)
5
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Plaintiffs argue no reasonable attorney would have asserted it was undisputed that “all
jail staff went through a mandatory FTO training,” or that trainers and new officers had to sign
statements regarding the training. 21 Plaintiffs point to Mr. Cox’s deposition testimony that he
received no formal training and that he believed the jail had no procedures manual. 22 Plaintiffs
also assert there is “no proof that Mr. Cox or any of his contemporar[ies]” signed statements
indicating they read and understood jail policies and practices. 23 Plaintiffs argue it was
unreasonable for Defendants’ counsel to rely solely on Sheriff Jorgensen’s “unverified belief” to
support the factual assertions in paragraph 9. 24
Plaintiff has not demonstrated any Rule 11 violation related to paragraph 9. Defendants’
factual assertions in this paragraph were properly supported by citation to evidence in the
record—namely, Sheriff Jorgensen’s declaration. Further, Defendants’ reliance on this
declaration was not unreasonable in light of other record evidence. In their opposition to the
Rule 11 motion, Defendants point out that numerous other jail staff testified in depositions that
mandatory FTO training was conducted, 25 consistent with what Sheriff Jorgensen described.
And Defendants note that Sheriff Jorgensen’s declaration was also consistent with his own
21
(Mot. 4–7, Doc. No. 174.)
22
(See id. at 4; Ex. 6 to Pls.’ Opp’n to MSJ, Dep. of Joshua Cox (“Cox Dep.”) 9:18–22, Doc. No.
141-7.)
23
(Mot. 6, Doc. No. 174.)
24
(Id. at 5.)
25
(See Opp’n 9–10, Doc. No. 180 (citing Ex. 9 to Pls.’ Opp’n to MSJ, Dep. of Adam Gonzalez
8:8–10, Doc. No. 141-10; Ex. 1 to Pls.’ Opp’n to MSJ, Dep. of Holly Jo Dick 44:8–14, Doc. No.
141-2; Ex. 3 to Pls.’ Opp’n to MSJ, Dep. of Benjamin Lail 31:6–32:13, Doc. No. 141-4; Ex. 5 to
Pls.’ Opp’n to MSJ, Dep. of Rodrigo Toledo Vol. II 8:8–19; 19:22–20:10, Doc. No. 141-6; Ex. 7
to Pls.’ Opp’n to MSJ, Dep. of Travis Dupaix 9:18–10:2, 11:1–4, 53:21–23, Doc. No. 141-8).)
6
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deposition testimony and Daggett County’s Rule 30(b)(6) deposition testimony. 26 On this
record, the assertion that paragraph 9 was undisputed was not objectively unreasonable.
The fact that Plaintiffs identified some contrary evidence in their opposition to
Defendants’ summary judgment motion does not demonstrate a violation of Rule 11. Plaintiffs
were certainly entitled to counter Defendants’ assertions of undisputed fact by pointing to
contrary evidence in the record, such as Mr. Cox’s testimony that he did not receive formal
training. But the existence of some contrary evidence does not mean Defendants violated Rule
11 by asserting these facts were undisputed. If this were the case, Rule 11 would be implicated
virtually any time a court denied a summary judgment motion based on the existence of triable
disputes of material fact. The purpose of Rule 11 is to deter “baseless filings” 27; it is “not the
proper mechanism for resolving factual disputes.” 28 As described above, Defendants properly
supported paragraph 9 with a citation to Sheriff Jorgensen’s declaration, and they have identified
additional evidence in the record supporting Sheriff Jorgensen’s statements. Under these
circumstances, Defendants’ assertion that paragraph 9 was undisputed was not baseless or
unreasonable. To the extent Plaintiffs dispute paragraph 9, they had ample opportunity to raise
this dispute in their opposition to the summary judgment motion—which they did. 29 But there is
26
(See id. at 7 (citing Ex. 4 to Pls.’ Opp’n to MSJ, Dep. of Jerry Jorgensen (“Jorgensen Dep.”)
78:14–17, Doc. No. 141-5; Ex. 10 to Pls.’ Opp’n to MSJ, Daggett County 30(b)(6) Dep. 63:20–
25, 117:13–17, 118:9–12, Doc. No. 141-11).)
27
Collins, 916 F.3d at 1322.
28
Tso v. Murray, No. 16-cv-02480-WJM-STV, 2018 U.S. Dist. LEXIS 17036, at *6 (D. Colo.
Feb. 1, 2018) (unpublished).
29
(See Pls.’ Opp’n to MSJ 8–11, Doc. No. 138.)
7
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no basis to find Defendants’ counsel violated Rule 11 by including paragraph 9 in the statement
of undisputed facts.
B. Paragraph 15
Paragraph 15 of Defendants’ statement of undisputed facts stated, in relevant part:
“Although there was one incident where Ben Lail dry-fired a TASER in the presence of a Jail
teacher, he was reprimanded for the action by his supervisor, Chris Collett, and told to apologize
to the teacher.” 30 Defendants cited Sheriff Jorgensen’s supporting declaration, which contains an
identical statement. 31
Plaintiffs take issue with the assertion that Mr. Lail was “reprimanded,” pointing to Mr.
Collett’s testimony (as a Rule 30(b)(6) witness for Daggett County) that he did not issue a
“written reprimand” for the incident, but merely a “supervisor’s note.” 32 In response,
Defendants note paragraph 15 did not specify whether the reprimand was written or verbal, and
they contend other evidence shows Mr. Collett verbally reprimanded Mr. Lail, and that Sheriff
Jorgensen told him to apologize—consistent with the factual assertions in paragraph 15. 33
Specifically, Defendants cite Mr. Collett’s “supervisor’s note” stating he “admonished” Mr.
30
(MSJ ¶ 15, Doc. No. 126.)
31
(Id. (citing Jorgensen Decl. ¶ 20, Doc. No. 127).)
32
(Mot. 7, Doc. No. 174 (citing Ex. 10 to Pls.’ Opp’n to MSJ, Daggett County 30(b)(6) Dep.
89:15–90:6, Doc. No. 141-11).)
33
(Opp’n 10–11, Doc. No. 180.)
8
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Lail, 34 and Sheriff Jorgensen’s testimony that he “told Lail that that was unacceptable” and
“asked him to apologize.” 35
Plaintiffs’ argument regarding paragraph 15 amounts to a semantic dispute over the
meaning of the word “reprimanded”—not a Rule 11 violation. Paragraph 15 did not specify the
type of reprimand, and it was properly supported by a citation to Sheriff Jorgensen’s declaration.
Further, Defendants have identified additional evidence that Mr. Lail was verbally reprimanded,
which is consistent with the factual assertion in paragraph 15 (and Sheriff Jorgensen’s
declaration). On this record, it was not objectively unreasonable for Defendants to assert, in their
statement of undisputed facts, that Mr. Lail was reprimanded. To the extent Plaintiffs contend
the term “reprimanded” was inaccurate, they had ample opportunity to dispute paragraph 15 in
their opposition to the summary judgment motion—which they did. 36 But there is no basis to
find the use of the word “reprimanded” violated Rule 11. Plaintiffs’ contention that Defendants’
counsel violated Rule 11 in connection with paragraph 15 is baseless.
C. Paragraphs 17 and 37
Finally, Plaintiffs challenge related factual assertions in paragraphs 17 and 37 of
Defendants’ statement of undisputed facts. Paragraph 17 stated:
It never would have crossed Jorgensen’s mind that a Daggett County deputy, like
Joshua Cox, would intentionally “tase” inmates. It is illegal to “tase” a prisoner
when force is not required and, as a law enforcement officer, who had sworn an
oath with POST to uphold the laws of Utah, it was obviously illegal what Joshua
Cox did in “tasing” inmates. He was put on administrative leave when the
34
(Ex. 26 to Pls.’ Opp’n to MSJ, Supervisors Notes, Doc. No. 138-11.)
35
(Ex. 4 to Pls.’ Opp’n to MSJ, Jorgensen Dep. 33:5–6, Doc. No. 141-5.)
36
(See Pls.’ Opp’n to MSJ 16–19, Doc. No. 138.)
9
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allegations were first made, and he was terminated from the Sheriff’s Office when
the investigation was complete with respect to him. 37
Defendants cited Sheriff Jorgensen’s declaration, which contains a substantially identical
statement. 38
Paragraph 37 stated:
In 2017, Collett confronted Mr. Cox regarding his involvement in tasing inmates.
Collett agreed with Sheriff Jorgensen to place Mr. Cox on administrative leave
immediately. At once Collett stripped Cox of his badge, his gun, and his patrol
vehicle. As the allegations were substantiated during the investigation, action was
taken right away to terminate his employment. Collett took away the rest of his
equipment and personally wrote the necessary letter of termination to Mr. Cox. 39
Defendants cited Mr. Collett’s supporting declaration, which contains a substantially identical
statement. 40
Plaintiffs first take issue with the assertions in these paragraphs that Mr. Cox was placed
on administrative leave “when the allegations were first made” or “immediately.” 41 Plaintiffs
assert Mr. Cox was placed on administrative leave weeks after Sheriff Jorgensen first received a
letter from Plaintiff Steven Drollette alleging Mr. Cox had tased inmates. 42 Plaintiffs note that
Defendants acknowledged this timeline in their reply supporting the summary judgment
37
(MSJ ¶ 17, Doc. No. 126 (emphasis added).)
38
(Id. (citing Jorgensen Decl. ¶ 22, Doc. No. 127).)
39
(Id. ¶ 37 (emphasis added).)
40
(Id. (citing Decl. of Chris Collett in Support of MSJ (“Collett Decl.”) ¶ 29, Doc. No. 128).)
41
(See Mot. 8–12, Doc. No. 174.)
42
(See id. at 8; see also Pls.’ Opp’n to MSJ 21, Doc. No. 138.)
10
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motion. 43 Plaintiffs argue no reasonable attorney would have asserted it was undisputed that Mr.
Cox was placed on leave immediately after Sheriff Jorgensen saw Mr. Drollette’s letter. 44
Plaintiffs have not demonstrated the assertions in paragraphs 15 and 37 regarding the
timing of Mr. Cox being placed on leave violated Rule 11. As an initial matter, neither
paragraph references Mr. Drollette’s letter or asserts Mr. Cox was placed on leave immediately
after this letter was received. Paragraph 37 states Mr. Collette “confronted” Mr. Cox “[i]n 2017”
and that Mr. Cox was then placed on leave “immediately.” 45 It does not address how this timing
related to the receipt of Mr. Drollette’s letter. Likewise, paragraph 17 stated Mr. Cox was placed
on leave “when the allegations were first made,” without specifying a precise timeline. 46 The
parties appear to agree Mr. Cox was placed on leave on February 1, 2017—during the UDC
investigation and a few weeks after Sheriff Jorgensen received Mr. Drollette’s letter. 47 To the
extent Plaintiffs dispute that the phrase “when the allegations were first made” accurately
characterized this timeline, Plaintiffs had ample opportunity to raise this dispute on summary
judgment—which they did. 48 The assertions in paragraphs 17 and 37 are properly supported
with citations to the declarations of Sheriff Jorgensen and Mr. Collette, and Plaintiffs fail to
show Defendants’ characterization of the timing violated Rule 11.
43
(Mot. 8–9, Doc. No. 174 (citing Defs.’ Reply in Support of MSJ 5, 7, Doc. No. 152).)
44
(Id. at 8, 10–11.)
45
(MSJ ¶ 37, Doc. No. 126.)
46
(Id. ¶ 17.)
47
(See Mot. 8–9, Doc. No. 174; Opp’n 12–14, Doc. No. 180.)
48
(See Pls.’ Opp’n to MSJ 21, Doc. No. 138.)
11
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Plaintiffs were certainly entitled to dispute it in their opposition, but there is no basis to find a
Rule 11 violation.
Plaintiffs argue in their reply that “[a] reasonable attorney would have provided more
context to clearly explain the timeline in asserting undisputed facts if the intent was to give a
clear, as opposed to muddled, picture of who made what decision when.” 53 But the purpose of
Rule 11 is to deter “baseless” filings 54—not filings which are slightly muddled. A Rule 11
motion is not an appropriate vehicle to nitpick the clarity of Defendants’ factual assertions or
argue they lacked sufficient context. These issues belong in summary judgment briefing; they
are not a valid basis to accuse opposing counsel of violating Rule 11. Plaintiffs fail to show any
Rule 11 violation related to paragraphs 17 or 37.
***
In sum, Plaintiffs fail to demonstrate any of the challenged factual assertions in
Defendants’ summary judgment motion violated Rule 11, much less that sanctions are warranted.
Indeed, Plaintiffs have not identified any conduct by Defendants’ counsel approaching the
standard for a Rule 11 violation. Plaintiffs, instead, merely attempt to re-raise factual disputes—
four months after the court’s ruling—which they had ample opportunity to litigate on summary
judgment. Their pursuit of Rule 11 sanctions based on these factual disputes is meritless.
Defendants ask the court to order Plaintiffs to pay their attorney fees and costs for
defending against the Rule 11 motion under 28 U.S.C. § 1927. 55 This statute provides that
“[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously
53
(Reply 11, Doc. No. 183.)
54
Collins, 916 F.3d at 1322.
55
(Opp’n 14, Doc. No. 180.)
13
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may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.” 56 Because the Rule 11 motion appears, on its
face, to meet this standard, Plaintiffs’ counsel are ordered to show cause why they should not be
required to pay Defendants’ attorney fees and costs pursuant to this statute.
CONCLUSION
Plaintiffs’ motion for sanctions is denied. Plaintiffs’ counsel are ORDERED to show
cause why they should not be required to pay Defendants’ attorney fees and costs incurred in
defending against the motion, pursuant to 28 U.S.C. § 1927. Plaintiffs’ counsel must file a
response within fourteen days.
DATED this 30th day of December, 2022.
BY THE COURT:
______________________________
Daphne A. Oberg
United States Magistrate Judge
56
28 U.S.C. § 1927.
14
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