Filed: Jun. 27, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D May 29, 2003 REVISED JUNE 27, 2003 Charles R. Fulbruge III UNITED STATES COURT OF APPEALS Clerk FOR THE FIFTH CIRCUIT No. 00-60153 BENNIE WHITEHEAD; ET AL., Plaintiffs, versus FOOD MAX OF MISSISSIPPI, INC.; ET AL., Defendants, K MART CORPORATION, Defendant-Appellee, versus PAUL S. MINOR, Appellant. Appeal from the United States District Court for the Southern District of Mississippi Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, J
Summary: United States Court of Appeals Fifth Circuit F I L E D May 29, 2003 REVISED JUNE 27, 2003 Charles R. Fulbruge III UNITED STATES COURT OF APPEALS Clerk FOR THE FIFTH CIRCUIT No. 00-60153 BENNIE WHITEHEAD; ET AL., Plaintiffs, versus FOOD MAX OF MISSISSIPPI, INC.; ET AL., Defendants, K MART CORPORATION, Defendant-Appellee, versus PAUL S. MINOR, Appellant. Appeal from the United States District Court for the Southern District of Mississippi Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JO..
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United States Court of Appeals
Fifth Circuit
F I L E D
May 29, 2003
REVISED JUNE 27, 2003
Charles R. Fulbruge III
UNITED STATES COURT OF APPEALS Clerk
FOR THE FIFTH CIRCUIT
No. 00-60153
BENNIE WHITEHEAD; ET AL.,
Plaintiffs,
versus
FOOD MAX OF MISSISSIPPI, INC.; ET AL.,
Defendants,
K MART CORPORATION,
Defendant-Appellee,
versus
PAUL S. MINOR,
Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, DENNIS, and CLEMENT, Circuit Judges.1
RHESA HAWKINS BARKSDALE, Circuit Judge:
1
Judge Prado, who joined our court subsequent to en banc
oral argument, did not participate in this decision.
Pursuant to Federal Rule of Civil Procedure 11, the district
court sanctioned Paul S. Minor, an attorney, for obtaining a writ
to execute judgment. The primary reason for our en banc review is
to decide whether the district court abused its considerable
discretion in imposing sanctions for Minor’s violation of Rule
11(b)(1) (“improper purpose” in obtaining writ of execution). The
district court acted within its discretion. AFFIRMED.
I.
In May 1997, the district court entered an approximate $3.4
million judgment for Minor’s clients against Kmart Corporation in
an action arising out of heinous acts by two individuals not
associated with Kmart: their abduction of a mother and her
daughter from a Kmart parking lot in Jackson, Mississippi, and the
subsequent rape of the mother. A jury found Kmart negligent in
failing to provide adequate parking lot security. See Whitehead v.
Food Max of Miss., Inc., 163 F.3d 265 (5th Cir. 1998).
At trial, Minor was sanctioned $1,000 for violating, during
his closing argument, an earlier warning by the district court.
Id. at 277 n.3. This followed Minor’s refusals during trial to
follow other court instructions. See
id. at 276-77.
In June 1997, shortly after entry of judgment, Kmart moved for
a remittitur or, alternatively, a new trial. See FED. R. CIV. P.
59. In addition, pursuant to Federal Rule of Civil Procedure
62(b), it requested a stay of execution of judgment pending
2
resolution of those post-trial motions. That stay motion was not
decided, however, until 18 August, when the Rule 59 motions were
denied. The accompanying stay motion was then dismissed as moot.
That same day, the district court denied Minor's request to
reconsider the $1,000 sanctions imposed at trial.
Three days later, using a handwritten request he had signed,
Minor obtained from the district court clerk a writ of execution
for the judgment (the writ). In addition, Minor notified the media
about the pending execution. With media representatives and two
United States Marshals, Minor entered the Kmart (the abduction had
occurred in its parking lot) and attempted to execute the judgment
by seizing currency in the cash registers and vault. The seizure
was delayed to allow Kmart’s employees a chance to consult with
their management and attorneys; shortly thereafter, it was stayed
by the district court. No cash was seized.
While at the Kmart, Minor was interviewed by the media; news
reports about the writ-execution, including Minor’s extremely
hyperbolic, intemperate, and misleading comments (improper
comments), were, among other media, broadcast in at least three
television reports. Minor characterized Kmart’s actions as
“arrogan[t]” and “outrageous” and asserted Kmart “wo[uld no]t pay”
the judgment; claimed Kmart had been “warned” before the abduction
that “an event like [that] was going to happen” but “didn’t care”;
charged his clients had been twice “victimized” by Kmart, once by
3
being abducted there and once by Kmart’s “not paying ... a just
debt”; and proclaimed he was there to ensure Kmart did what it was
supposed to do.2
That same day, the district court held a teleconference with
the parties: Kmart was directed to submit a supersedeas bond (it
later did so); and Kmart advised it would seek sanctions against
Minor. Kmart soon moved for sanctions, pursuant, inter alia, to
Rule 11.
Kmart charged Minor had violated an automatic ten-day stay of
execution of judgment, claimed to be in effect pursuant to Federal
Rule of Civil Procedure 62(f), which incorporated Mississippi Rule
of Civil Procedure 62(a). Federal Rule 62(f) provides:
Stay According to State Law. In any state in
which a judgment is a lien upon the property
of the judgment debtor and in which the
judgment debtor is entitled to a stay of
execution, a judgment debtor is entitled, in
the district court held therein, to such stay
as would be accorded the judgment debtor had
the action been maintained in the courts of
that state.
FED R. CIV. P. 62(f) (emphasis added). Mississippi Rule 62(a)
provides in part:
Automatic Stay; Exceptions. Except as stated
herein or as otherwise provided by statute or
by order of the court for good cause shown, no
execution shall be issued upon a judgment nor
2
It is extremely regrettable that, in the light of Minor's
conduct, especially his improper comments, the dissent views
“Minor's technique ... [as] colorful to say the least”, Dissent at
11-12, and “perhaps in poor taste”, id. at 14.
4
shall proceedings be taken for its enforcement
until the expiration of ten days after its
entry or the disposition of a motion for a new
trial, whichever last occurs.
MISS. R. CIV. P. 62(a) (emphasis added).
Kmart maintained: pursuant to Mississippi Rule 62(a), a ten-
day stay is automatic in state court after disposition of a new
trial motion; therefore, application of that rule, through Federal
Rule 62(f), resulted in a stay from the 18 August denial of Kmart's
new trial motion. Kmart also asserted: Minor, with “numerous
newspaper reporters and television interview teams”, and without
justification, “paraded through [Kmart] in full view of customers
and employees ... orchestrat[ing] damage to Kmart, its business and
goodwill”; and his “improper purpose” (proscribed by Rule 11(b)(1))
was obvious from these actions. Provided with the motion were
copies of two articles from newspapers in Jackson and another city
in Mississippi and a videotape of television broadcasts about the
attempted execution. These items included Minor's improper
comments.
Minor responded: following denial of the new trial motion,
Kmart had not moved, pursuant to Federal Rule 62(f), for the
Mississippi Rule 62(a) automatic stay; therefore, no stay had been
in effect. (Nothing in the record indicates Minor contended in
district court that the judgment did not constitute a lien against
Kmart’s property (one of the prerequisites for a Federal Rule 62(f)
stay).)
5
Minor also contended: seeking to obtain a portion of the
judgment was not an improper purpose proscribed by Rule 11(b)(1);
and, “where counsel’s action has a reasonable basis under the law,
a court will not find an improper purpose....” Minor's affidavit
stated he attempted execution in order to obtain a portion of the
judgment because: (1) Kmart had not returned his telephone calls
concerning potential settlement; and (2) he was concerned that
Kmart, which he believed to be self-insured, had not posted a
supersedeas bond.
The district court apparently delayed ruling on the sanctions
motion pending Kmart’s appeal from the judgment in the underlying
action. For that appeal, our court held the jury had been
influenced by passion and prejudice resulting from Minor’s closing
argument; the action was remanded in early 1999 for a new trial on
damages. See Whitehead, 163 F.3d at 276-78, 281. That March, in
the light of extensive briefing, oral argument (January 1998), and
painstaking analysis of the authority construing Federal Rule
62(f), the district court ruled on the sanctions motion.
In a well-reasoned opinion, the court concluded: a motion is
not a prerequisite to a stay under Federal Rule 62(f); and Kmart
was protected by the stay against the attempted execution.
Whitehead v. Kmart Corp., 202 F. Supp. 2d 525, 529-32 (S.D. Miss.
1999). Concomitantly, the court concluded that Minor had “failed
to make a reasonable inquiry into the law governing execution of
6
judgments....” Id. at 532. The court also ruled Minor “was
seeking to embarrass [Kmart] and call attention to himself as a
tireless laborer of the bar attempting to obtain justice for his
client when, in fact, there was no basis whatsoever in fact or in
law for the actions taken....”
Id. at 533.
Minor was ordered to pay Kmart approximately $8,000 — its
attorney’s fees for opposing the execution. Id. Although Kmart
had requested a public apology by Minor, the district court
determined, and Kmart agreed, that publication of the sanctions
opinion would suffice.
Id. (The opinion was published in 2002,
after rendition of the now-vacated panel opinion for this appeal.)
Following the remand-trial on damages, Minor appealed the Rule
11 sanctions. In January 2002, a divided panel reversed them.
Whitehead v. Food Max of Miss., Inc., 277 F.3d 791 (5th Cir.),
vacated by
308 F.3d 472 (5th Cir. 2002) (en banc). (The panel
majority included a district judge and Judge Henry A. Politz, who
authored the opinion. Judge Politz died prior to our deciding to
review this appeal en banc.)
Regarding Rule 11(b)(2) (objective reasonableness of inquiry
concerning existing law), the panel majority held: as a matter of
law, Federal Rule 62(f) does not afford the stay provided by state
law unless the judgment debtor files a motion claiming the stay;
accordingly, no stay was in effect; and the record did not support
7
a conclusion that, before requesting the writ, Minor failed to make
a reasonable inquiry into the governing law. Id. at 794-96.
Concerning Rule 11(b)(1) (improper purpose), the panel
majority held: Minor’s “intentional use of publicity for the
purpose of embarrassing an adversary” was “patently inappropriate”;
but, absent exceptional circumstances, an ulterior motive should
not be read into a document filed for a legitimate purpose; and
“any consequences that ... flow[ed] from such behavior” was a
decision for the state bar. Id. at 796-97 (emphasis added).
The dissent urged that the district court did not abuse its
discretion in concluding independent subparts (b)(1) and (2) were
each violated. Id. at 797-802 (Barksdale, J., dissenting).
Regarding subpart (b)(2), the dissent stated: it was not necessary
to decide, as the majority had, whether a motion is required to
trigger a Federal Rule 62(f) stay; at issue was whether Minor’s
actions were objectively reasonable in the light of then existing
legal authority; and, they were not.
Id. at 800-802. As for
subpart (b)(1), the dissent stated: Minor’s “improper purpose”
provided a separate basis for the sanctions; and they were
appropriate in the light of Minor’s media-actions, precisely the
type of conduct Rule 11 is designed to remedy.
Id. at 802.
Kmart petitioned for panel rehearing. In September 2002, our
court decided sua sponte to review en banc, thereby vacating the
panel opinion. 308 F.3d 472 (5th Cir. 2002) (en banc).
8
II.
Rule 11(b) provides in pertinent part:
By presenting to the court (whether by
signing, filing, submitting, or later
advocating) a pleading, written motion, or
other paper, an attorney ... is certifying
that to the best of the person’s 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 or to cause unnecessary delay
or needless increase in the cost of
litigation; [and]
(2) the claims, defenses, and other
legal contentions therein are
warranted by existing law or by a
nonfrivolous argument for the
extension, modification, or reversal
of existing law or the establishment
of new law....
FED. R. CIV. P. 11(b) (emphasis added). Each obligation must be
satisfied; violation of either justifies sanctions. See, e.g.,
Walker v. City of Bogalusa, 168 F.3d 237, 241 (5th Cir. 1999).
And, in determining compliance vel non with each obligation, “the
standard under which an attorney is measured is an objective, not
subjective, standard of reasonableness under the circumstances”.
Childs v. State Farm Mut. Auto. Ins. Co.,
29 F.3d 1018, 1024 (5th
Cir. 1994).
Rule 11 sanctions are reviewed only for an abuse of
discretion, e.g., Lulirama Ltd., Inc. v. Axcess Broad. Servs.,
Inc., 128 F.3d 872, 884 (5th Cir. 1997), including reviewing
9
factual findings only for clear error, e.g., Crowe v. Smith, 261
F.3d 558, 564 (5th Cir. 2001). This abuse of discretion standard
is necessarily very deferential, for two reasons.
First, “based on its ‘[f]amiliar[ity] with the issues and
litigants, the district court is better situated than the court of
appeals to marshal the pertinent facts and apply the fact-dependent
legal standard mandated by Rule 11’”. Lulirama, Ltd., 128 F.3d at
884 (quoting Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 402
(1990); emphasis added). See also Mercury Air Group, Inc. v.
Mansour,
237 F.3d 542, 548 (5th Cir. 2001) (“the imposition of
sanctions is often a fact-intensive inquiry, for which the trial
court is given wide discretion” (emphasis added)).
Second, the district judge is independently responsible for
maintaining the integrity of judicial proceedings in his court and,
concomitantly, must be accorded the necessary authority. See,
e.g., Cooter & Gell, 496 U.S. at 404; NASCO, Inc. v. Calcasieu
Television and Radio, Inc.,
894 F.2d 696, 702-03 (5th Cir. 1990)
(discussing inherent power of court), aff’d sub nom. Chambers v.
NASCO, Inc.,
501 U.S. 32 (1991).
It was for these reasons that our court, in Thomas v. Capital
Security Servs., Inc., 836 F.2d 866, 872 (5th Cir. 1988) (en banc),
established abuse of discretion, rather than in part de novo, as
our standard of review for Rule 11 sanctions. This was confirmed
10
by the Supreme Court in Cooter & Gell, partly with reasoning that
rings true here:
Rule 11's policy goals also support adopting
an abuse-of-discretion standard. The district
court is best acquainted with the local bar's
litigation practices and thus best situated to
determine when a sanction is warranted to
serve Rule 11's goal of specific and general
deterrence. Deference to the determination of
courts on the front lines of litigation will
enhance these courts' ability to control the
litigants before them. Such deference will
streamline the litigation process by freeing
appellate courts from the duty of reweighing
evidence and reconsidering facts already
weighed and considered by the district court;
it will also discourage litigants from
pursuing marginal appeals, thus reducing the
amount of satellite litigation.
496 U.S. at 404 (emphasis added).
For this deferential review, the “district court would
necessarily abuse its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assessment of
the evidence”. Id. at 405. “Generally, an abuse of discretion
only occurs where no reasonable person could take the view adopted
by the trial court.” Friends for Am. Free Enter. Ass’n v. Wal-Mart
Stores, Inc.,
284 F.3d 575, 578 (5th Cir. 2002) (internal quotation
omitted; emphasis added)3.
3
The dissent does not even mention the deferential
standard of review (important to our ruling); nor does it appear to
review the sanctions under that deferential standard. In fact, it
appears to forget that it was the district court, not this court,
that decided Minor's conduct was violative of Rule 11 and,
pursuant to its considerable discretion, imposed those sanctions.
11
A.
Subparts (b)(1) and (2) of Rule 11 provide independent bases
for sanctions. The district court concluded Minor violated each
subpart; therefore, it is only necessary to decide whether he
violated one.
1.
Regarding subpart (b)(2) (objective reasonableness of inquiry
concerning existing law), Minor's affidavit in opposition to
sanctions stated he relied upon: (1) Van Huss v. Landsberg, 262 F.
Supp. 867 (W.D. Mo. 1967) (dictum; Minor had cited this opinion
earlier in opposing Kmart’s motion for Federal Rule 62(b) stay
pending resolution of its post-trial motions); (2) WRIGHT, MILLER &
KANE, FEDERAL PRACTICE & PROCEDURE § 2907 (1995) (motion for Federal Rule
62(f) stay should, not must, be filed); and (3) the district
court’s earlier denial (as moot) of Kmart’s post-trial request for
the Federal Rule 62(b) stay. The district court ruled that this
authority, when juxtaposed against the plain language of the rules,
did not support an objectively reasonable belief that no stay was
in effect. See Whitehead, 202 F. Supp. 2d at 528-32.
Along this line, the panel majority focused on whether, as a
matter of law, a motion is required to invoke the stay; it held
that it was and that, as a result, no stay was in place to protect
Kmart from execution. Instead, the panel should have addressed
whether Minor’s belief was objectively reasonable at the time he
12
requested the writ. See, e.g., Thomas, 836 F.2d at 874 (proper
focus is “snapshot” of instant when document signed). In any
event, because subparts (b)(1) and (2) provide independent bases
for sanctions, it is not necessary to decide whether the district
court abused its discretion concerning subpart (b)(2). For
purposes of deciding whether sanctions could be based on subpart
(b)(1), we will assume Minor did not violate subpart (b)(2).
2.
After determining Minor failed to make a reasonable inquiry
(violating subpart (b)(2)), Whitehead, 202 F. Supp. 2d at 529-32,
and then addressing why Rule 11's “safe harbor” provision (subpart
(c)(1)(A)) did not shelter Minor,
id. at 532-33, the district court
stated:
Additionally, [Kmart] has submitted to
this court several of the articles and news
reports which were generated in the local
press by the improper execution of judgment in
the instant case. It is clear from these
unchallenged submissions that [Minor] was
seeking to embarrass [Kmart] and call
attention to himself as a tireless laborer of
the bar attempting to obtain justice for his
client when, in fact, there was no basis
whatsoever in fact or in law for the actions
taken on August 21, 1997. Thus, this court is
persuaded that the imposition of appropriate
sanctions in this case is justified and
proper.
Id. at 533 (emphasis added). As discussed infra, this subpart
(b)(1) “improper purpose” ruling is sufficient to sustain the
sanctions.
13
Minor insists we must decide the subpart (b)(2) issue,
asserting that the subpart (b)(1) improper purpose ruling is
inextricably intertwined with whether, under subpart (b)(2), he had
an objectively reasonable belief that a stay did not exist. He
claims: “[I]f there was authority that even arguably supported
what [he] did, there was no basis for the sanctions motion”. In
support, Minor notes that the district court’s improper purpose
ruling states “there was no basis whatsoever in fact or in law for
[Minor's] actions....” Id. at 533.4
4
Likewise, the dissent insists that these bases are
intertwined; insists on a rigid, several step evaluation-process;
and erroneously claims we attribute “legitimate purpose” findings
to the district court. This view appears to be based on a pre-1993
version of Rule 11. For example, the dissent relies upon case law
that was decided under the previous version, under which these
bases were not separated into specific, enumerated subparts. That
case law correctly states the test under that previous rule: where
a paper was “well grounded in fact and warranted by existing law”,
sanctions were imposed only under unusual circumstances. (Unlike
the district court, the dissent ignores the well grounded in fact
portion of the test (now subparts (b)(3) and (b)(4)) in contending
that subparts (b)(1) and (b)(2) are intertwined.) We do not
suggest that this case law is not instructive. In fact, for that
reason, we cite some of the same case law. On the other hand, this
case law does not support the dissent’s view of subparts (b)(1) and
(b)(2) as intertwined. The structure of the current rule (as
amended in 1993) belies such a notion.
In any event, for purposes of deciding this appeal, it is not
necessary to determine how Rule 11 in its present form might compel
revising the test for improper purpose, as adopted for the former
version of the Rule. The issue was not presented to our court.
Moreover, the district court's improper purpose ruling, discussed
infra, would easily pass muster under the test employed by the
dissent.
14
It is true that, generally, district courts do not sanction
attorneys who make nonfrivolous representations. A district court
may do so, however, where it is objectively ascertainable that an
attorney submitted a paper to the court for an improper purpose.
FED. R. CIV. P. 11(b)(1). See, e.g., Sheets v. Yamaha Motors Corp.,
891 F.2d 533, 537-38 (5th Cir. 1990); Nat’l Ass’n of Gov’t
Employees, Inc. v. Nat’l Fed’n of Fed. Employees,
844 F.2d 216, 224
(5th Cir. 1988).
Sheets, for instance, held filing excessive motions could
constitute harassment proscribed by Rule 11, even if the motions
were well-founded in law or fact. 891 F.2d at 538. Filing
otherwise legitimate documents that use abusive language toward
opposing counsel could also violate the rule, Coats v. Pierre,
890
F.2d 728, 734 (5th Cir.), cert. denied,
498 U.S. 821 (1990), as
could filing a valid pleading or motion without a sincere intent to
pursue it, Cohen v. Virginia Elec. & Power Co.,
788 F.2d 247 (4th
Cir. 1986).
We conclude that the district court’s “improper purpose”
ruling was independent from its “inquiry concerning existing law”
ruling. We base this upon the following factors: (1) the parties’
having squarely placed the improper purpose issue before the
district court; (2) its earlier citation to subpart (b)(1) in
quoting all of Rule 11(b) in its order, Whitehead, 202 F. Supp. 2d
at 526 n.1; (3) its subsequent specific enumeration of Rule 11
15
bases, including improper purpose, id. at 532 (“Minor presented to
this court [a writ-execution request] certifying [(a)] that to the
best of his knowledge, information, and belief, formed after a
[reasonable] inquiry ... that the [request] was proper; and [(b)]
that the letter requesting the writ of execution was not being
presented for any improper purpose, such as to harass....”;
emphasis added); (4) its then concluding Minor failed to make a
subpart (b)(2) reasonable inquiry into the law,
id. at 532; and (5)
its then discussing Rule 11's “safe harbor” provision,
id. at 532-
33, before making its subpart (b)(1) improper purpose ruling,
id.
at 533. To conclude otherwise would render the improper purpose
portion of the opinion superfluous. Moreover, the two subparts
concern quite different considerations. And, again, the fact-
driven improper purpose ruling can be sustained even if (as we
assume for our analysis) there were a basis in law for Minor's
obtaining the writ. The two bases were not intertwined.
3.
A district court may sanction an attorney for presenting a
paper to the court for “any improper purpose, such as to
harass....” FED. R. CIV. P. 11(b)(1) (emphasis added). Although a
district court is not to read an ulterior motive into a document
“well grounded in fact and law”, it may do so in exceptional cases,
such as this, where the improper purpose is objectively
ascertainable. See Sheets, 891 F.2d at 537-38.
16
The district court found Minor had two improper purposes for
requesting the writ: to embarrass Kmart; and to promote himself.
Whitehead, 202 F. Supp. 2d at 533. Part of our abuse of discretion
review is to determine whether the district court’s ruling was
“based ... on a clearly erroneous assessment of the evidence”.
Cooter &
Gell, 496 U.S. at 405. Pursuant to the well-known
standard of review for clear error vel non, we may disturb factual
findings, which often involve credibility choices, only if a review
of all the evidence leaves us with “the definite and firm
conviction that a mistake has been made”. Tulia Feedlot, Inc. v.
United States,
513 F.2d 800, 806 (5th Cir.), cert. denied,
423 U.S.
947 (1975).
In maintaining he had legitimate, not improper, purposes,
Minor offered two reasons to the district court for obtaining the
writ: obtaining part of the judgment for his clients; and trying
to force settlement. The factual findings related to these two
reasons were not clearly erroneous.
Obviously, there would not have been enough cash at one local
Kmart to satisfy the $3.4 million judgment. In addition, the
execution was unnecessary to secure the judgment; the judgment
constituted a lien against Kmart’s property in Mississippi. Again,
nothing in the record indicates Minor disputed in district court
that the judgment constituted such a lien. See, e.g., MISS. CODE
ANN. § 11-7-191; see also FED. R. CIV. P. 62(f). Minor notes that
17
Kmart is currently in bankruptcy; this, of course, is irrelevant to
Minor’s purpose at the time in question (August 1997). In any
event, even if Minor's purpose were only to obtain a portion of the
judgment, the district court did not clearly err in finding Minor
also had separate, improper purposes.
Assuming arguendo that attempting to force settlement is
proper, but see, e.g., Elster v. Alexander, 122 F.R.D. 593, 604
(N.D. Ga. 1988) (attempt to coerce settlement not proper), Minor
offered the following explanation to the district court: he had
attempted to contact Kmart, but it had refused to return his
telephone calls or speak to him about the case; therefore, he was
forced to take this drastic measure to open lines of communication.
The record, however, contains only one letter from Minor
requesting settlement discussions (3 June 1997, shortly before
Kmart filed its post-trial motions). That letter does not reflect
how many calls were made by Minor. In any event, his claim that
Kmart refused all communication is belied by his letter: “I am
sorry we have been missing each other and I appreciate you
returning my phone calls”. (Emphasis added.)
Minor's letter states he was attempting to ascertain whether
Kmart wished to engage in settlement discussions before posting an
appeal bond. At the time of the letter, through mid-August,
Kmart’s post-trial motions (e.g. for a new trial) were pending.
After the court ruled on the motions, Minor gave Kmart only three
18
days before attempting to execute. There is no evidence that Minor
attempted to contact Kmart during this three-day period.
Accordingly, it was not clearly erroneous for the district court to
reject Minor's claim that he was forced to obtain the writ in order
to initiate settlement discussion.
In addition, it was not clearly erroneous for the district
court, by implication, to find that neither of these claimed
purposes explained either Minor’s presence at the execution or his
collateral media play. The execution did not require Minor to
accompany the two United States Marshals to the Kmart (especially
where, as here, the involved property was well-known, open, and
obvious). See FED. R. CIV. P. 69. See also MOORE’S FEDERAL PRACTICE —
CIVIL § 69.02 (2002). And, the execution certainly did not require
the media's presence at the Kmart or the improper comments Minor
made there to the media.
In fact, Minor does not dispute that he intended to embarrass
Kmart or that he was seeking personal recognition. Most
regrettably, he contends that these are far from being evidence of
an improper purpose in obtaining the writ (e.g., “[a]lmost
everything an attorney in litigation does ... is designed to
embarrass an opponent in one way or another”; “establishing a
reputation for success in the representation of clients is the most
professional way for a lawyer to build a practice”). It was not
19
clearly erroneous for the district court to find that each of
Minor's intended goals was evidence of an improper purpose.
Claiming a purpose to embarrass is different than one to
harass, Minor seems to contend that, because Rule 11 explicitly
refers to harassment, and because that was not his purpose, his
admitted intent to embarrass cannot be an improper purpose under
the rule. On this record, there is no meaningful distinction
between these two purposes, especially in the light of our
deferential standard of review. See, e.g., Flaherty v. Torquato,
623 F. Supp. 55, 59-60 (W.D. Pa. 1985) (using harass and embarrass
interchangeably in context of Rule 11 improper purpose discussion),
aff’d by
800 F.2d 1133 (3rd Cir. 1986). Regardless, Minor misreads
Rule 11.
Even assuming that Minor’s purpose to embarrass Kmart was not,
in essence, a purpose to harass, Rule 11's list of improper
purposes is only illustrative; “to harass” is but one of the
possible improper purposes. FED. R. CIV. P. 11(b)(1) (“any improper
purpose, such as to harass...” (emphasis added)).
The media event orchestrated by Minor, in particular,
constitutes objective evidence of his improper purpose in obtaining
the writ. See, e.g., Ivy v. Kimborough, 115 F.3d 550, 553 (8th
Cir. 1997) (no abuse of discretion in imposing Rule 11 sanctions,
where, inter alia, conduct was “aimed at the media” and “primarily
for local media consumption”); Kramer v. Tribe,
156 F.R.D. 96
20
(D.N.J. 1994), aff’d without opinion, 52 F.3d 315 (3rd Cir.), cert.
denied,
516 U.S. 907 (1995) (imposing Rule 11 sanctions because,
among other things, giving misleading reports to media demonstrated
improper purpose motives (including intent to embarrass)). Again,
the district court had an unchallenged videotape of, inter alia,
Minor’s improper comments. The district court’s finding “[i]t ...
clear from [the] unchallenged” newspaper articles and videotape
that Minor had an improper purpose,
Whitehead, 202 F. Supp. 2d at
533 (emphasis added), is a classic example of Minor's being
“[h]oist with his own petard”. WILLIAM SHAKESPEARE, HAMLET act 3, sc.
4. Minor’s improper comments, preserved by the very entity he
enlisted to embarrass Kmart and promote himself were, instead,
arguably the best evidence of his improper purpose in obtaining the
writ.
Before our en banc court, Minor raises, for the first time,
First Amendment considerations with regard to his improper
comments. No authority need be cited for the rule that, because
the record does not reflect that Minor raised these points in
district court, we will not consider them on appeal. In any event,
the improper purpose in obtaining the writ, not the vehicle (such
as the media) used to implement that improper purpose, is what is
decided by the sanctioning court and reviewed on appeal. In other
words, under subpart (b)(1), Minor’s attempted execution is not the
issue; his underlying “improper purpose” in obtaining the writ is.
21
The collateral media play simply constitutes objective evidence of
that improper purpose.
Finally, Minor asserts that, although his conduct may not have
been “civil”, it is not sanctionable. He maintains: civility is
“aspirational” and beyond the power of the law; and if our court
wants to impose civility rules, we should adopt them. Along this
line, Minor takes issue with any suggestion in the vacated panel
opinion that his conduct was unethical. See Whitehead, 277 F.3d at
796-97. He further contends: even if his conduct were unethical,
the appropriate remedy would be referral to the state bar for
possible discipline, not imposition of Rule 11 sanctions. This
issue is also raised for the first time on appeal. Because the
vacated panel opinion addressed the issue in part, see
id., we will
consider it.
Minor again understates the severity of his conduct and
overlooks both the district court’s broad authority to impose Rule
11 sanctions and our deferential standard of review. Whether
Minor’s conduct violated civility and ethics rules is for others to
act upon; in any event, his conduct violated Rule 11.
These categories are not mutually exclusive. For example, the
rules advisory committee has recognized that some overlap exists
between state bar discipline and Rule 11 sanctions; its notes to
Rule 11 state that one possible sanction for a violation of Rule 11
is referral to a state bar authority. See also Kramer, 156 F.R.D.
22
96 (imposing sanctions and referring matter to state bar).
District courts have an independent duty to maintain the integrity
of the judicial process and may impose Rule 11 sanctions where
necessary, regardless of whether state bar discipline is
concurrent.
Rule 11 limits sanctions “to what is sufficient to deter
repetition of such conduct or comparable conduct by others
similarly situated”. FED. R. CIV. P. 11(c)(2). In addition to
publishing its sanctions opinion, the district court limited the
sanctions to “the reasonable attorneys’ fees and other expenses
incurred as a direct result of the violation”, id. Minor does not
challenge this aspect of the order.
4.
In sum, there was no abuse of discretion. The district court
spoke with counsel, including Minor, on the day of the incident and
was quite familiar with the parties and litigants. Minor’s
execution attempt followed his improper conduct at trial. See
Whitehead, 163 F.3d at 276-77 n.3; see also FED. R. CIV. P. 11
advisory committee's note (“whether [sanctionable conduct] was part
of a pattern of activity, or an isolated event” is “[a] proper
consideration”).
Generally, writ-execution for the purpose of satisfying a
judgment is proper. Minor’s conduct, however, was exceptional.
Although it was only three days after disposition of post-trial
23
motions, with significant time remaining for Kmart to appeal the
judgment and post a supersedeas bond, Minor, after obtaining the
execution writ: invited the media to one of Kmart’s places of
business to execute judgment in plain view of Kmart’s customers and
employees; and made improper comments to the media regarding the
case, Kmart, and Kmart's willingness to satisfy the judgment.
The district court found, based in part on the videotape, that
Minor had improper purposes in obtaining the writ: to embarrass
Kmart and advance his personal position. The district court, of
course, is in a far better position than we to balance the
considerations underlying rulings on Rule 11 sanctions, most
especially the concomitant factual findings (including credibility
choices). Obviously, this is why we review its decision under a
very deferential abuse of discretion standard. For the subpart
(b)(1) improper purpose ruling: the record does not support these
findings being clearly erroneous; nor was there “an erroneous view
of the law”. See Cooter & Gell, 496 U.S. at 405.
B.
Minor moves for summary reversal and imposition of sanctions
against Kmart, or for remand for fact-finding and such sanctions,
contending: Kmart caused the attempted execution by earlier, false
responses during discovery that it was self-insured; and, had Minor
known of insurance covering the judgment, he would not have
24
attempted to execute. (It appears Kmart was partly self-insured,
with umbrella coverage.)
The relief sought by Minor's motion was requested, for the
first time, while this appeal was pending. In his motion, Minor
stated this claim was neither known, nor confirmed, until well
after his appeal was filed. The panel majority did not address the
motion, in the light of its reversing the sanctions. Whitehead,
277 F.3d at 791.
Minor fails to connect how his understanding of Kmart’s self-
insured status justified his improper-purpose conduct. Kmart’s
discovery responses do not affect the considerations underlying
whether Minor’s purpose in obtaining the writ was proper. (We
express no opinion on whether Minor can seek relief in district
court based on the challenged discovery responses.)
III.
For the foregoing reasons, the sanctions are AFFIRMED; Minor’s
motion for summary reversal or remand is DENIED.
SANCTIONS AFFIRMED; MOTION DENIED
25
KING, Chief Judge, with whom SMITH and BENAVIDES, Circuit Judges,
join, dissenting:
The majority, appellate judges all, are plainly exercised
about lawyer Paul Minor’s efforts to collect his clients’ judgment
against Kmart. In their effort to declare the kind of behavior
that will not be accepted by this court, they have short-circuited
the inquiry mandated by Rule 11 and our own case law, with
potentially far-reaching consequences. I respectfully dissent.
In evaluating a district court’s imposition of sanctions under
Rule 11(b)(1), this and other circuits generally look first to the
district court’s findings on whether the filing at issue was
warranted by existing law or a nonfrivolous argument for a change
in the law (as required by Rule 11(b)(2)); look next to the
findings on whether the filing was presented for an improper
purpose under Rule 11(b)(1); look next to the findings on whether
the filing was also presented for a legitimate purpose; and finally
look to the district court’s evaluation of whether any improper
purpose is sufficient under the circumstances to support sanctions
under Rule 11(b)(1). If the district court has correctly found a
legitimate purpose for the filing, this and other circuits have
been reluctant to approve the imposition of sanctions for an
improper purpose under Rule 11(b)(1). Here, by contrast, the
majority presents the two relevant subparts of Rule 11 as not
intertwined for purposes of assessing Rule 11(b)(1) sanctions. The
26
majority then goes on to credit the district court with making
crucial findings on both legitimate and improper purposes that the
district court plainly did not make. The majority winds up by
affirming the district court’s conclusion that sanctions are
warranted under Rule 11(b)(1) where it is not at all clear that the
district court concluded as much. This entire method of evaluating
sanctions assessed under Rule 11 effectively eviscerates what were,
up until this point, critical aspects of the Rule 11 framework.
I.
ANALYSIS OF THE FRAMEWORK FOR SANCTIONS UNDER RULE 11(b)(1)
A. The Interrelation of Rule 11(b)(1) and 11(b)(2)
Rule 11(b)(2) explicitly requires that an attorney submit a
paper to the court only after forming a reasonable belief that it
is warranted by existing law (or a non-frivolous argument for a
change in the law) and Rule 11(b)(1) explicitly precludes an
attorney from submitting a paper for certain “improper purposes.”5
5
The two relevant subparts of Rule 11 state that:
(b) By presenting to the court (whether by signing,
filing, submitting, or later advocating) a
pleading, written motion, or other paper, an
attorney or unrepresented party is certifying that
to the best of the person’s 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 or to cause unnecessary delay or
needless increase in the cost of litigation;
(2) the claims, defenses, and other legal
contentions therein are warranted by existing
27
The subsections thus appear to be quite discrete textually.
However, our case law demonstrates that the subsections are
actually interrelated in at least one situation: “When a [paper]
is well grounded in fact and warranted by existing law, ‘only under
unusual circumstances . . . should the filing of [the paper]
constitute sanctionable conduct.” F.D.I.C. v. Calhoun, 34 F.3d
1291, 1300 (5th Cir. 1994) (emphasis added) (quoting Sheets v.
Yamaha Motors Corp., U.S.A.,
891 F.2d 533, 538 (5th Cir. 1990)).
This circuit has extended this logic in concluding that “[a]lthough
the filing of a paper for an improper purpose is not immunized from
rule 11 sanctions simply because it is well grounded in fact and
law, only under unusual circumstances – such as the filing of
excessive motions – should the filing [] constitute sanctionable
conduct.”
Sheets, 891 F.2d at 538 (emphasis added).
What this precedent says is that (1) a favorable finding
regarding Rule 11(b)(2) should influence a district court’s
conclusion regarding the existence of an “improper purpose”
sanction under Rule 11(b)(1), and (2) only in the most exceptional
circumstances will this court uphold sanctions under Rule 11(b)(1)
when a paper satisfies the Rule 11(b)(2) requirements.
law or by a nonfrivolous argument for the
extension, modification, or reversal of
existing law or the establishment of new law.
FED. R. CIV. P. 11(b)(1)-(2).
28
Here, the majority first concludes, correctly, that “the two
subparts [Rule 11(b)(1) and Rule 11(b)(2)] concern quite different
considerations” but then concludes, incorrectly, that they need
“not” be “intertwined” in the Rule 11(b)(1) inquiry. Our precedent
does not support that. In the interest of bypassing an evaluation
of the district court’s possibly incorrect finding under Rule
11(b)(2), the majority has announced a rule (that the Rule ll(b)(1)
and 11(b)(2) inquiries need not be intertwined in a situation where
Rule 11(b)(1) sanctions are to be imposed) that is directly at odds
with our precedent. In my view, that is a serious mistake, now bad
law.6
6
In footnote 4, the majority states that: “In any event, for
purposes of deciding this appeal, it is not necessary to determine
how Rule 11 in its present form might compel revising the test for
improper purpose, as adopted for the former version of the Rule.”
This statement underscores a critical shortcoming with the
majority’s opinion. It announces a new rule (that the Rule
11(b)(1) and 11(b)(2) inquiries are unrelated in a fact pattern
where Rule 11(b)(1) sanctions are to be imposed, even if the paper
at issue was submitted in compliance with Rule 11(b)(2)), but says
it does not, and then announces that, in any event, knowledge of
the applicable Rule 11(b)(1) framework is not necessary for
sanctions to be imposed here.
In contrast, I see the framework as critical. The facts
related to the “improper” nature of Minor’s presenting the writ to
the district court must be funneled through the correct framework
before the imposition of sanctions can be deemed appropriate. As
taught by our case law (which has not been questioned until today
and which is plainly cited by the majority for the exact
proposition for which the dissent cites the same case law), if the
relevant filing satisfies Rule 11(b)(2) requirements and is found
to have been presented for a legitimate purpose, we are extremely
reluctant to approve the imposition of sanctions for an improper
purpose under Rule 11(b)(1). If the majority seeks to alter this
clear rule, it should say so (and maybe it has, who’s to say?) and
then apply its new rule to the facts of this case.
29
B. The Necessary Predicate to Impose Sanctions under Rule
11(b)(1)
Our case law makes clear that the next step in the framework
for imposing “improper purpose” sanctions is the consideration by
the district court of legitimate and improper purposes the litigant
or party may have had for submitting the relevant paper. In its
quest to uphold the district court’s imposition of sanctions, the
majority attributes findings to the district court regarding this
legitimate purpose step that the district court clearly did not
make, and attributes a legal conclusion to the district court
regarding whether sanctions are warranted independently under Rule
11(b)(1) that the district court may not have even made.
Assuming the district court finds a legitimate purpose or
purposes for the relevant filing, then it must weigh the legitimate
purposes against any illegitimate purposes and evaluate whether the
illegitimate purposes are sufficient in themselves to independently
support sanctions under Rule 11(b)(1). As we stated in National
Association of Government Employees, Inc. v. National Federation of
Federal Employees, 844 F.2d 216 (5th Cir. 1988):
We do not condone litigation instituted for ulterior
purposes rather than to secure judgment on a well-
grounded complaint in which the plaintiff sincerely
believes. Yet the Rule 11 injunction against harassment
does not exact of those who file pleadings an undiluted
desire for just deserts . . . [T]he court must focus on
objectively ascertainable circumstances that support an
inference that a filing harassed the defendant or caused
unnecessary delay. As Judge Schwarzer has stated: “If a
reasonably clear legal justification can be shown for the
30
filing of the paper in question, no improper purpose can
be found and sanctions are inappropriate” . . . A
plaintiff must file a complaint [] in order to vindicate
his rights in court. We find no indication that the
filing here was unnecessary, for the [defendants] had
refused to retract the [alleged defamatory] statement.
Under the circumstances, the [plaintiff] had a proper
interest in suing to attempt to vindicate its reputation.
Id. at 223-24 (internal footnote omitted and emphasis added).
Thus, as interpreted by our court, before a district court can
impose sanctions under Rule 11(b)(1), it must consider any
legitimate or proper purposes the litigant or attorney may have had
in presenting a paper to the district court. Before today, we were
loath to find that an attorney’s or litigant’s illegitimate purpose
could independently support sanctions where a legitimate purpose
for filing the relevant paper also existed.
Here, paying lip service to the required inquiry into
legitimate purposes, the majority upholds as “not clearly
erroneous” factual findings rejecting Minor’s proffered legitimate
purposes for seeking the writ of execution (to satisfy part of the
judgment for his client in order to pay medical bills and to
encourage settlement). However, though I have thoroughly searched
the district court’s order, I find no mention, much less
discussion, of any possible legitimate or proper purpose. This
necessary predicate is simply not there.
The Fourth Circuit case of In re Kunstler, 914 F.2d 505 (4th
Cir. 1990), discusses the importance of the critical step omitted
by the district court:
31
Rule 11 defines the term “improper purpose” to include
factors “such as to harass or to cause unnecessary delay
or needless increase in the costs of litigation.” The
factors mentioned in the rule are not exclusive. If a
complaint is not filed to vindicate rights in court, its
purpose must be improper. However, if a complaint is
filed to vindicate rights in court, and also for some
other purpose, a court should not sanction counsel for an
intention that the court does not approve, so long as the
added purpose is not undertaken in bad faith and is not
so excessive as to eliminate a proper purpose. Thus, the
purpose to vindicate rights in court must be central and
sincere . . . In other words, it is not enough that the
injured party subjectively believes that a lawsuit was
brought to harass, or to focus negative publicity on the
injured party.
Id. at 518 (emphasis added). Kunstler’s holding accords with our
circuit precedent. If an illegitimate purpose does not engulf an
individual’s legitimate purpose, sanctions under the “improper
purpose” section of Rule 11 cannot stand. Because the district
court overlooked this important inquiry, our court has no place
upholding findings that are not even there.
In addition to attributing factual findings to the district
court that it did not make, the majority jumps to the support of a
legal conclusion that the district court may not have even made.
The majority points to a single paragraph in the district court’s
eighteen-page order that references Minor’s desire to embarrass
Kmart and to gain publicity for himself as indisputably
demonstrating an intention on the part of the district court to
sanction Minor independently under Rule 11(b)(1). However, it is
not clear, much less “indisputable,” from this single paragraph
32
that the district court intended to sanction Minor under Rule
11(b)(1) as independent from Rule 11(b)(2), especially as this
paragraph expressly states that “there was no basis whatsoever in
fact or in law for the actions taken on August 21, 1997.” Whether
there is a basis in law is clearly the relevant inquiry under Rule
11(b)(2), not Rule 11(b)(1). Further, the district court does not
use any of the descriptive language found in Rule 11(b)(1)’s non-
exclusive list, such as “harass.” While this is not required, I
would expect to see some discussion regarding a comparison between
“harass” and “embarrass” if the district court truly intended (as
the majority assumes) to use the terms interchangeably and to
sanction Minor independently under Rule 11(b)(1).7 At a minimum,
I would expect the district court to have at least mentioned either
the subpart dealing with “improper purpose” or the term “improper
7
Further, the majority goes so far as to state, without
discussion, that “[o]n this record, there is no meaningful
distinction between these two purposes [“harass” and “embarrass”],
especially in the light of our deferential standard of review.” In
support of this statement, it cites to Flaherty v. Torquato, 623 F.
Supp. 55, 59-60 (W.D. Pa. 1985), aff’d without op., 800 F.2d 1133
(3d Cir. 1986), as “using harass and embarrass interchangeably in
context of Rule 11 improper purpose discussion.” However, a
cursory read of this non-binding district court opinion reveals
that the court does not use these terms interchangeably in its
decision to decline to award sanctions.
Id. Moreover, we have on
occasion discussed “harass” in the context of Rule 11(b)(1) to
cover conduct such as the “filing of excessive motions.” Nat’l
Assoc. of Gov’t
Empl., 844 F.2d at 224. This connotation comports
with the general usage and understanding of “harass” – annoyance or
exhaustion with the added characteristic of persistency or
repetitiveness – as opposed to “embarrass” – mere distress or
self-consciousness. See WEBSTER’S NEW COLLEGIATE DICTIONARY 370, 522
(1977).
33
purpose” itself in this paragraph, particularly given the extent of
the discussion regarding Rule 11(b)(2).
In the past, when an order imposing sanctions contained such
shortcomings, we refused to supply the necessary findings and
conclusions on appeal because we, as appellate judges, must not
become fact finders. See, e.g., F.D.I.C. v. Calhoun, 34 F.3d 1291,
1297 (5th Cir. 1994) (“We have long held that a district court, in
applying sanctions, may have to make a detailed explanation for its
legal reasons. . . . The purpose of creating such a record is
simple: In order to guard against the application of hindsight by
district courts who have sat through long, complicated, and often
contentious proceedings, we must not be put in the position of
having to guess what unwarranted factual or legal errors were the
basis of the sanctions.”); United States v. U.T. Alexander,
981
F.2d 250, 253 (5th Cir. 1993) (“The district court here did not
cite any ‘unusual circumstances’ that warranted sanctions. The
court merely asserted the view that the claim was filed for an
improper purpose. Even though detailed findings are not required
to uphold an award of sanctions, there must be some record to
review.”). Today the majority back-pedals from this precedent to
supply – and, indeed, even credit the district court with – the
necessary factual predicate omitted by the district court and to
supply a legal conclusion that may not have been made by the
district court. I cannot subscribe to this technique.
34
II.
THE “UNUSUAL” OR “EXCEPTIONAL” CIRCUMSTANCES REQUIREMENT
Our precedent is clear. Even assuming the district court had
made appropriate factual findings on whether Minor had a legitimate
purpose for obtaining the writ of execution here, in situations
where an attorney or party submits a paper that is well-grounded in
law under Rule 11(b)(2) – as the majority assumes arguendo to be
the case here – “improper purpose” sanctions may be imposed by a
district court only in “unusual” or “exceptional” circumstances.
I disagree with the majority’s implied finding that this case
presents such “unusual” circumstances.
To date, we have not found a case with such “unusual
circumstances” to merit upholding an “improper purpose” finding
where (as is assumed to be the case here) the filing of the paper
satisfies the Rule 11(b)(2) requirements. See, e.g., Calhoun, 34
F.3d at 1300;
Sheets, 891 F.2d at 538; Nat’l Assoc. of Gov’t
Empl.,
844 F.2d at 224.8 In this spirit, I disagree with the majority
8
Coats v. Pierre, 890 F.2d 728 (5th Cir. 1989), is the closest
we have come to such a finding. There, a teacher who was denied
tenure and not rehired brought a civil rights action alleging
wrongful termination in retaliation for exercising free speech.
Id. at 731. We upheld Rule 11 sanctions for the plaintiff’s
harassing filings, which stated that opposing counsel “acted like
a little nasty dumb female Mexican pig in heat” and that she was
“nothing but garbage.”
Id. at 734. Although the district court
failed there to make a specific finding that the suit was
groundless, it concluded that sanctions were warranted because the
plaintiff’s allegations were “totally unsupported by any of the
people [he] called from the university” and his filing was “worse
than outrageous,” was “unconscionable” and was worthy of “contempt”
35
that this case should serve as the benchmark for district courts
imposing “improper purpose” sanctions in the future. With only a
finding by the district court of an intent to embarrass one’s
opponent and an intent to gain publicity for oneself – both quite
common characteristics in a judgment or debt collection setting –
the case will serve as a poor litmus, particularly given that the
district court did not even consider whether Minor had a legitimate
purpose for the filing. As things appear to me, the majority
employs an “I know it when I see it” approach to judging Minor’s
technique, substituting its own findings where the district court
made none.
The majority shames Minor for conduct it determines does not
befit an upstanding officer of the court. Specifically, it appears
most perturbed regarding Minor’s offensive tow of the media to the
judgment collection. I admit that Minor’s technique here is
colorful to say the least. However, other courts have looked at
similar circumstances and have not been so critical of the
litigants’ choice of litigation tactics. See, e.g., Revson v.
Cinque & Cinque, P.C., 221 F.3d 71, 80 (2d Cir. 2000) (stating that
airing grievances and threatening litigation through letters “are
commonplace” and that “[s]imilarly, the court’s concern that
proceedings.
Id. The case before us is clearly distinguishable
from Coats. The district court in Coats found the lawsuit
unsupportable in law whereas here, the majority assumes the
opposite – that is, it assumes that it was objectively reasonable
under existing fact and law for Minor to file the writ of execution
with the district court.
36
[plaintiff] had in fact tarnished [defendant’s] reputation by
speaking with a news reporter was not a proper basis for sanctions”
under Rule 11); Sussman v. Bank of Israel, 56 F.3d 450, 459 (2d
Cir. 1995) (“The district court held that the filing of the
complaint with a view to exerting pressure on defendants through
the generation of adverse and economically disadvantageous
publicity reflected an improper purpose. To the extent that a
complaint is not held to lack foundation in law or fact, we
disagree. It is not the role of Rule 11 to safeguard a defendant
from public criticism that may result from the assertion of
nonfrivolous claims.”); In re Kunstler,
914 F.2d 505, 520 (4th Cir.
1990) (“Holding a press conference to announce a lawsuit, while
perhaps in poor taste, is not grounds for a Rule 11 sanction, nor
is a subjective hope by a plaintiff that a lawsuit will embarrass
or upset a defendant, so long as there is evidence that a
plaintiff’s central purpose in filing a complaint was to vindicate
rights through the judicial process.”). Further, in each of the
cases cited by the majority in support of its determination that
“improper purpose” sanctions are warranted here, the district court
had specifically found that the relevant filing was not well-
grounded in law under Rule 11(b)(2). See Ivy v. Kimbrough,
115
F.3d 550, 553 (8th Cir. 1997) (sanctioning the plaintiff and his
attorney for bringing a frivolous action against a police officer
and judge involved in his arrest subsequent to a marital dispute
because “the court, with good cause, gave [the plaintiff and his
37
attorney] repeated warning that their claims appeared to be
frivolous, that much of their conduct seemed aimed at the media,
and that failure to properly pursue this lawsuit risked dismissal
and possible sanctions”); Kramer v. Tribe, 156 F.R.D. 96 (D.N.J.
1994) (sanctioning an attorney under Rule 11(b)(1) and (b)(2),
§ 1927 and its inherent authority through fines, submission of
counsel to attorney disciplinary authorities and submission of
counsel to criminal authorities where the attorney had no
legitimate purpose for filing the suit and had a history (at least
36 instances) of unethical conduct before the courts), aff’d
without op.,
52 F.3d 315 (3d Cir. 1995); Elster v. Alexander,
122
F.R.D. 593, 604 (N.D. Ga. 1988) (imposing Rule 11 sanctions where
“pleadings and papers filed on behalf of plaintiff . . . were filed
without that reasonable inquiry which Rule 11 requires”). These
cases thus provide little support for the majority because, in
contrast to these cases, the majority here presumes (in the face of
what may well be problematic findings to the contrary by the
district court) that the writ filed by Minor was well-grounded in
law as required by Rule 11(b)(2).
I agree with the original panel’s determination that Minor’s
conduct, while perhaps in poor taste, does not merit sanctions
under Rule 11(b)(1). We, as appellate judges, operate at a far
remove from the business of collecting judgments or effecting
settlements. We ought to refrain from excoriating a lawyer based
upon our own sensibilities when the district court, closer to that
38
business than we are, has not provided a clear and explicit
predicate for the exercise of our judgment.
III.
WHAT WE SHOULD HAVE DONE
I think that we should take the district court at its word and
review the judgment that it did enter - sanctions based on a
violation of Rule 11(b)(2). I think that the district court’s
conclusions on that violation are probably wrong, although I agree
with Judge Barksdale’s original dissent insofar as it stated that
neither the district court nor the panel was required to decide
whether a motion is necessary to trigger the Mississippi Rule 62(a)
automatic stay. As Judge Barksdale said, the inquiry is, instead,
whether Minor undertook a reasonable inquiry into the authority
regarding Fed. R. Civ. P. 62(f) and, if he did, whether his actions
were objectively reasonable. My own conclusion is that Minor did
make a reasonable inquiry into the authority (scarce as it is to
this good day); I am less certain about whether his action in
executing the judgment without prior court authorization was
objectively reasonable, given the paucity of authority on the
subject. But under the circumstances, I would not uphold sanctions
against Minor for what amounts at most to a mistake of judgment on
that score. I would vacate the sanctions order.
39
40
