United States District Court, M.D. Florida, Fort Myers Division
BLUE HERON COMMERCIAL GROUP, INC. f/k/a Eagle Crest Manufactured Home Park, Inc., Plaintiff,
LEE WEBBER and GERALD T. FILIPIAK, Defendants.
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on defendants' Motion for
Sanctions (Doc. #76) filed on March 8, 2019, to which
plaintiff filed a Response (Doc. #78) on April 11, 2019.
Defendants filed a Reply (Doc. #85) on May 8, 2019, and
plaintiff filed a Sur-Reply (Doc. #88) on May 24, 2019. For
the reasons set forth below, the motion is denied.
Blue Heron Commercial Group, Inc. (Blue Heron) initiated this
lawsuit in the Circuit Court of the Twentieth Judicial
Circuit in and for Lee County, Florida. (Doc. #2.) Defendants
Lee Webber and Gerald T. Filipiak (collectively, Defendants)
subsequently removed the action to this Court on the basis of
diversity jurisdiction. (Doc. #1.) On September 5, 2018,
Defendants filed a motion for summary judgment (Doc. #26),
arguing Blue Heron's claims are barred by the doctrine of
res judicata. On March 14, 2019, the Court entered
its Opinion and Order (Doc. #74) granting Defendants'
motion for summary judgment, finding that Blue Heron's
claims against Defendants are precluded by res
judicata. Final judgment was entered in Defendants'
favor on March 15, 2019. (Doc. #75.)
filed the instant Motion for Sanctions (Doc. #76) on March
28, 2019 pursuant to Rule 11 of the Federal Rules of Civil
Procedure. Defendants seek sanctions in the form of
attorney's fees against Blue Heron's former counsel
Kenneth Chase for filing a frivolous Complaint against
Defendants. Defendants contend the Complaint was frivolous
because Mr. Chase knew or should have known that Blue
Heron's claims are precluded by res judicata. In
addition, Defendants seek sanctions against Blue Heron in the
form of an injunction barring Blue Heron from filing further
lawsuits against Defendants without leave of court.
Whether Sanctions are Warranted under Rule 11
Heron argues that Rule 11 sanctions are unwarranted in this
case because, inter alia, Defendants' Motion for
Sanctions is untimely. Blue Heron contends Defendants'
motion is untimely because it was filed after the Court
granted summary judgment and final judgment was entered in
Defendants' favor. The Court agrees.
11's purpose “is to deter baseless filings in
district court and thus streamline the administration and
procedure of federal courts.” Peer v. Lewis,
606 F.3d 1306, 1311 (11th Cir. 2010)(quotation and citations
omitted). Rule 11 sanctions are warranted “(1) when a
party files a pleading that has no reasonable factual basis;
(2) when the party files a pleading that is based on a legal
theory that has no reasonable chance of success and that
cannot be advanced as a reasonable argument to change
existing law; or (3) when the party files a pleading in bad
faith for an improper purpose.” Massengale v.
Ray, 267 F.3d 1298, 1301 (11th Cir. 2001) (citation and
11(c)(2) contains a “safe harbor” provision,
which provides in relevant part that “[t]he motion [for
sanctions] must be served under Rule 5, but it 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 . . .
.” The purpose of Rule 11's safe harbor provision
“is to allow an attorney who violates Rule 11 to
correct the alleged violation within twenty-one days without
being subject to sanctions.” Peer, 606 F.3d at 1315.
the timeliness of a Rule 11 motion, the Eleventh Circuit has
analyzed Rule 9011 of the Federal Rules of Bankruptcy
Procedure, which is “substantially identical” to
Rule 11, and “agree[d] with the Second, Fourth, and
Sixth Circuits that the service and filing of a
motion for sanctions must occur prior to final judgment or
judicial rejection of the offending motion.” In re
Walker, 532 F.3d 1304, 1309 (11th Cir. 2008)(emphasis
added)(quotation and citation omitted). The Eleventh Circuit
in Walker thus affirmed the bankruptcy court's denial of
a motion for sanctions because the “motion for
sanctions was filed after the offending motion had been
although it is undisputed that Defendants complied with Rule
11's safe harbor provision, the Court finds that
Defendants' Motion for Sanctions is due to be denied
because Defendants filed the motion after the Court granted
summary judgment, entered final judgment, and disposed of
Blue Heron's alleged frivolous pleading. Id.
Defendants, however, contend that Walker is inapplicable
under the instant facts because, unlike this case, the movant
in Walker sought sanctions prior to the conclusion of the
21-day safe harbor provision. The Court does not find that
distinction to be determinative in this case because,
although the court discussed the safe harbor provision in its
analysis, the Eleventh Circuit in Walker did not ultimately
base its ruling on the movant's failure to satisfy the
safe harbor provision. Walker, 532 F.3d at 1309. Rather, as
discussed above, the court affirmed the bankruptcy
court's denial of sanctions because the “motion for
sanctions was filed after the offending motion had been
the Second, Fourth, and Sixth Circuit opinions upon which
Walker relies support a broad reading of Walker's holding
that a motion for sanctions must be filed before final
judgment or the offending pleading is rejected by a court.
See In re Pennie & Edmonds LLP, 323 F.3d 86, 89 (2d Cir.
2003)(noting that Rule 11 “motions have been disallowed
as untimely when filed after a point in the litigation when
the lawyer sought to be sanctioned lacked an opportunity to
correct or withdraw the challenged submission”);
Brickwood Contractors, Inc. v. Datanet Eng'g,
Inc., 369 F.3d 385, 390 (4th Cir. 2004)(holding,
inter alia, that movant “failed to comply with
the procedural requirements of Rule 11(c)(1)(A)” by
filing motion for sanctions “after summary judgment had
been granted”); Ridder v. City of Springfield,
109 F.3d 288, 2295-97 (6th Cir. 1997)(holding that the
“service and filing [of a Rule 11 motion] must occur
prior to final judgment or judicial rejection of the
offending contention” because “a Rule 11 motion
cannot be made unless there is some paper, claim, or
contention that can be withdrawn.”).
however, cite to Baker v. Alderman,158 F.3d 516
(11th Cir. 1998) to support their contention that the instant
Motion for Sanctions is timely. The Court finds Baker
inapplicable here because Baker is “a case decided
under the pre- 1993 amendments to Rule 11, ” which
included no safe harbor provision and thus allowed a party to
file a motion for sanctions after an offending pleading or
motion had been rejected by a court. Byrne v.
Nezhat, 261 F.3d 1075, 1126 (11th Cir. 2001); Hartmarx
Corp., 496 U.S. at 398 (Prior to 1993 amendments to Rule 11,
“in the case of pleadings the sanctions issue under
Rule 11 normally [would] be determined at the end of the
litigation, and in the case of motions at the time when the
motion is decided or shortly thereafter.” (citation and
quotation omitted)). The Court is thus unpersuaded by
Defendants' citations to cases which ...