United States of America v. Henry et al

Filing 254

ORDER adopting and approving 250 the Magistrate Judge Report and Recommendations; denying and dismissing with prejudice 218 Sealed Motion to Sanction the United States Kent Porter, and, Lori Wagner, Pursuant to Fed.R.Civ.P. 11(c)(2). White may a ppeal from the judgment entered pursuant to this Order by filing a written notice of appeal with the Clerk of this court. United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510, within thirty (30) days from the date of entry of such judgment. A copy of this order was mailed to White on 3/21/17. Signed by District Judge Mark S. Davis and filed on 3/20/17. (tbro)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division UNITED STATES OF AMERICA, et a l . , Plaintiffs, V. Civil Action No. JOHN CROCKETT HENRY, 2:07cv342 et a l . , Defendants. In Re: William A. White, Movant/Respondent ORDER Before the Court and its attorneys, 11, 2016, Mot. motion to 2016, ECF No. sanction the Kent Porter and Lori Wagner, for Sanctions 1, 2016, a by movant and non-party, on October 24, 7, is ECF No. ECF No. 233. William A. 218. 223, United States filed on October White (''White"). The United States responded and White replied on November The motion for sanctions was referred to a United States Magistrate Judge for a report and recommendation pursuant to 72(b) the Rule of 72 of the provisions Federal the Rules Rules of of of was U.S.C. Civil § 636(b)(1)(B), Procedure, and Local the United States District Eastern District of Virginia. Recommendation 28 filed Court Rule Civil for the The Magistrate Judge's Report and December denial of White's motion to sanction. 28, 2016, and recommends R & R 13, ECF No. 250. On January 13, 2017, and Recommendation, White filed objections to the Report ECF No. 251, and on January 27, Government responded to White's objections, ECF No. 2017, 252. After receiving the Magistrate Judge's Report and Recommendation, Court is required portions of to the recommendations "make report to a or which s^ Reddick v. Cir. (holding empowered to make a conclusion when court's review review, the United must Court Recommendation, the be [to] a is reviews the such as In response to White's those or U.S.C. (4th is only when evaluating a [] issued after the conducting Magistrate the 193 judge litigation," a Judge's district ^ novo Report and White's objections, and examines the record, States' 28 App'x 191, magistrate novo). of findings made." a non-party and underlying ^ proposed 456 F. recommendation, of determination specified White, that sanctions motion "addressed the novo objection § 636 (B)(1); 2011) de the the objections, and White's reply. Federal presenting a Rule of Civil Procedure pleading to the Court, 11(b) after an inquiry reasonable that, an attorney certifies "to the best of that person's knowledge, formed provides information, under by that and belief circumstances," pleading: 1. is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; the 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. . . . Fed. R. has Civ. the P. 11(b). burden of burden is met, The party moving for Rule 11 sanctions proving a violation of Rule 11; once that it shifts to the responding party to prove that his or her conduct was reasonable. See id. 11(c). When evaluating whether a party has violated Rule 11(b)(1)(3), the Court must examine the pleadings standard of objective reasonableness. 505, 519 (4th Cir. 11(b)(1)); Cabell v. (addressing whether a 1990) Petty, violation pleading of is In re Kunstler, (addressing 810 F.2d 463, Rule filed violation of Rule 11(b) (1), with an at 519. 11(b)(1) Instead, must intent to pursue contention chance of Earthgrains success Co. party that [the claim] ." violates Rule under Bakery, of Rule (4th Cir. 1987) To improper determine purpose, in ''a court must ignore evidence of the the demonstrate a F.2d violation 466-67 to 914 11(b) (2)- (3)) . injured party's subjective beliefs." 505 according 281 (internal quotations omitted). alleging the filer Id. 11(b)(2) the In re Kunstler, .3d F.2d violation of Rule lacked "sincere a The assertion of a if existing F 914 it has "absolutely precedent." 144, 153 legal (4th Hunter Cir. no v. 2002) Even if the law could colorably support a claim, a party violates Rule 11(b)(3) no factual support for the asserted claims. Brubaker 1991) v. City of ("[Factual] obtained prior Gilmore, 988 943 allegations to F. Richmond, filing Supp. F.2d 948, See id. 1363, unsupported [violates 957 any 11]."); Va. at 154-55; 1373 by Rule (E.D. where there is 1997) (4th Cir. information Edmonds (finding v. that while plaintiff's claims were not sufficient to survive motions to dismiss and for summary judgment, objectively reasonable claims" improper). cautions Finally, courts the against the plaintiff "articulated and therefore sanctions would be Advisory "using Committee the wisdom note of to Rule hindsight," 11 but instead directs courts to test factual allegations "by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted." Fed. R. Civ. P. 11 Advisory Committee's Notes. White argues that the United States, "[made] factual evidentiary White, when contentions support." Mot. knowing for through its attorneys, that Sanctions they 1. did not have According to the United States knowingly made false factual statements its attorneys violated a Virginia, claimed protective that White that order issued by had made attorney Mottley, that was protective subject to a White the had threatening in found to have the Western District of the transcript of order been phone call to the actual phone call the Western District of Virginia, and transcript for that White previously in discovery. sanctions, the Id. had received the call Having reviewed White's motion Magistrate Judge recommended that the district court deny the motion because White failed to meet the legal standard to demonstrate that the United States' made allegations 11(b)(1), R. Civ. 11(b)(3), Magistrate Judge's that specifically false an improper purpose, Fed. R. Civ. or made allegations without evidentiary support, P. reasons for attorneys he R Report argued that & R the in 13. White objects and Recommendation for his initial for United and therefore that at States' motion factual P. Fed. to the the same sanctions, assertions are the Magistrate Judge erred by failing to find the statements to be false. Objections to the R & R 1- 4, the Magistrate Judge erred ECF No. 251. According to White, in finding it "objectively reasonable" assert false imposed. factual statements, and for the United States to thus sanctions should be Id. The Court, upon a ^ novo review, finds that the Magistrate Judge correctly evaluated White's motion for sanctions. White's objections are restatements of his Because same arguments that were properly analyzed by the Magistrate Judge in detail in the Report and objections Recommendation, are hereby ADOPT without and APPROVE merit. the the Court finds Accordingly, findings that the White's Court and recommendations does set forth in the Report and Recommendation filed December 28, It is, No. therefore, 218, appeal is from ORDERED that White's motion for sanctions, DENIED the 2016. and DISMISSED judgment WITH entered PREJUDICE. pursuant to ECF White this may- Order by filing a written notice of appeal with the Clerk of this court. United States 23510, Courthouse, within thirty (30) 600 Granby Street, days from the date Norfolk, of Virginia entry of such copy of this judgment. The Clerk is DIRECTED Order to White and to counsel It to mail of or deliver record for a the United States. i s so ORDERED. /s/ Mark S. UNITED Norfolk, VA March SlO , 2017 STATES Davis DISTRICT JUDGE

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