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)

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