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Vierbickas v. Verizon Communications Inc.

United States District Court, M.D. Florida, Orlando Division

May 9, 2017




         THIS CAUSE is before the Court on Defendants' Motion for Sanctions (“First Motion for Sanctions, ” Doc. 32) and Motion for Sanctions (“Second Motion for Sanctions, ” Doc. 36). Plaintiff filed a Response (Doc. 40) to Defendants' First Motion for Sanctions, but she did not respond to the Second Motion. For the reasons set forth herein, Defendants' motions will be denied.

         I. Procedural Background

         Plaintiff filed this case on August 6, 2015, alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. §§ 559.55-.785, against Defendants related to efforts to collect debts allegedly owed by Plaintiff. (See generally Compl., Doc. 1). Defendants filed a Motion for Summary Judgment (Doc. 30), seeking summary judgment on each of Plaintiff's claims. On April 10, 2017, this Court granted summary judgment, (see Apr. 10, 2017 Order, Doc. 47), and retained jurisdiction to consider the pending motions for sanctions.

         II. First Motion for Sanctions

         In their First Motion for Sanctions, Defendants seek sanctions pursuant to Federal Rule of Civil Procedure 11. Defendants argue that Plaintiff lacked a reasonable factual or legal basis to pursue this litigation.

         As relevant, Rule 11(b) provides that, by filing a motion or pleading, the filer certifies that to the best of his or her “knowledge, information, and belief, formed after an inquiry reasonable under the circumstances”:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(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; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

         Rule 11(b)(2) and (b)(3) go to whether a claim is legally or factually frivolous. See Thompson v. RelationServe Media, Inc., 610 F.3d 628, 664 (11th Cir. 2010). “[A] litigant's obligations with respect to the contents” of pleadings or motions “are not measured solely as of the time they are filed with or submitted to the court, but include reaffirming to the court and advocating positions contained in those pleadings and motions after learning that they cease to have any merit.” Turner v. Sungard Bus. Sys., Inc., 91 F.3d 1418, 1422 (11th Cir. 1996) (quoting Fed.R.Civ.P. 11(b), (c) advisory committee's note to 1993 amendment).

         In the Eleventh Circuit, a Rule 11 challenge as to frivolity requires a two-prong inquiry- “whether the legal claims or factual contentions are objectively frivolous, and, if so, whether a reasonably competent attorney should have known they were frivolous.” Thompson, 610 F.3d at 665. Under the first step, “[a] factual claim is frivolous if no reasonably competent attorney could conclude that it has a reasonable evidentiary basis.” Id. Under the second step, the question is “whether the attorney should have known they were frivolous” or, stated differently, whether “a reasonable investigation would have revealed the error to a reasonably competent attorney.” Id. “Both inquiries measure attorney conduct under an objective reasonably competent attorney standard.” Id. “Rule 11 applies to pro se plaintiffs, but the court must take into account the plaintiff's pro se status when determining whether the filing was reasonable.” Thomas v. Evans, 880 F.2d 1235, 1240 (11th Cir. 1989).

         Plaintiff's conduct-particularly taking into account her pro se status-was not sufficiently objectionable to merit sanctions under Rule 11. Defendants complain that Plaintiff lacked a factual basis to pursue claims against Verizon Communications Inc. or an FDCPA claim against Verizon Florida LLC. Although Plaintiff did not formally withdraw those claims during the so-called “safe harbor” period, Plaintiff did express her willingness to drop those claims and ceased arguing that those claims had merit in her subsequent filings. (See Doc. 40 at 3-4; Resp. to Summ. J. ...

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