Filed: Feb. 11, 2009
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0048p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - RICHARD J. RENTZ, - Plaintiff-Appellee, - - No. 07-4123 PAUL R. LEONARD, Attorney-Appellee, ,> - - Attorney-Appellee, - B. RANDALL ROACH, - - - - v. - - DYNASTY APPAREL INDUSTRIES, INC. et al., Defendants, - - - Defendants-Appellants. - PAUL WARFIELD; JEMESCO, INC., - N Appeal from the United States District Court for the Southern District of
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0048p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - RICHARD J. RENTZ, - Plaintiff-Appellee, - - No. 07-4123 PAUL R. LEONARD, Attorney-Appellee, ,> - - Attorney-Appellee, - B. RANDALL ROACH, - - - - v. - - DYNASTY APPAREL INDUSTRIES, INC. et al., Defendants, - - - Defendants-Appellants. - PAUL WARFIELD; JEMESCO, INC., - N Appeal from the United States District Court for the Southern District of O..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0048p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
RICHARD J. RENTZ,
-
Plaintiff-Appellee,
-
-
No. 07-4123
PAUL R. LEONARD,
Attorney-Appellee, ,>
-
-
Attorney-Appellee, -
B. RANDALL ROACH,
-
-
-
-
v.
-
-
DYNASTY APPAREL INDUSTRIES, INC. et al.,
Defendants, -
-
-
Defendants-Appellants. -
PAUL WARFIELD; JEMESCO, INC.,
-
N
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 96-00205—Walter H. Rice, District Judge.
Argued: December 5, 2008
Decided and Filed: February 11, 2009
*
Before: MERRITT and MOORE, Circuit Judges.
_________________
COUNSEL
ARGUED: Kevin Robert McDermott, SCHOTTENSTEIN, ZOX & DUNN CO., LPA,
Columbus, Ohio, for Appellants. B. Randall Roach, MARTIN, McCARTY, RICHMAN
& WRIGHT, Fairborn, Ohio, for Appellees. ON BRIEF: Kevin Robert McDermott,
Daniel M. Anderson, SCHOTTENSTEIN, ZOX & DUNN CO., LPA, Columbus, Ohio,
for Appellants. B. Randall Roach, MARTIN, McCARTY, RICHMAN & WRIGHT,
Fairborn, Ohio, Christopher Jon Cornyn, Springboro, Ohio, for Appellees. Paul R.
Leonard, Centerville, Ohio, pro se.
*
Although Judge Cole was originally assigned by the Clerk’s Office to this case, he recused
himself before oral argument and has not participated in the decision of this case.
1
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 2
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Paul Warfield and his company,
Jemesco, Inc., (collectively, “the Warfield Defendants”) appeal the district court’s
decision awarding them monetary sanctions against Paul R. Leonard and B. Randall
Roach, counsel for Richard J. Rentz, the plaintiff in the underlying litigation. In 1999,
the district court determined that Leonard and Roach had violated Rule 11 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 1927 by litigating several of Rentz’s claims
set forth in an amended complaint that lacked any basis in fact. In 2007, the district
court reduced the amount of potential attorney fees from that which was originally
requested by Warfield as sanctions, approximately $70,000, to a total of $29,294.87 from
Leonard, and $3,747.37 from Roach, based on calculations of the amount of attorney
fees actually caused by the sanctionable conduct. The district court then further reduced
the amount of sanctions and ultimately awarded to the Warfield Defendants only $2,500
from Leonard and $250 from Roach. The district court did not sanction Rentz or the
relevant law firms.
On appeal, the Warfield Defendants argue that the district court abused its
discretion by (1) failing to sanction one of the law firms, (2) failing to sanction Rentz,
and (3) arbitrarily reducing the sanctions against Leonard and Roach to an amount far
below the court’s own calculation of attorney fees reasonably incurred to litigate Rentz’s
frivolous claims. For the reasons explained below, we AFFIRM the district court’s
decision with respect to the first two issues. Because, however, the district court abused
its discretion in further reducing the awards to de minimis amounts, we VACATE that
portion of the district court’s order specifying the amount of sanctions and REMAND
with instructions to the district court to issue an order forthwith imposing sanctions of
$29,294.87 against Leonard and $3,747.37 against Roach, to be paid to the Warfield
Defendants.
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 3
I. BACKGROUND1
The sanctions at issue in this case arise out of litigation that occurred between
1996 and 1999 involving Rentz, the Warfield Defendants, and Warfield’s co-defendants,
Armando and Ignacio Mendez (the “Mendez brothers”). The Mendez brothers own and
operate a silk-screening and apparel-manufacturing business based in Florida, Dynasty
Apparel Industries, Inc. (“Dynasty”). Rentz, a Dayton businessman, first met Armando
Mendez while sitting next to him at a World Series game in Cincinnati on October 18,
1990. Mendez told Rentz that he and his brother ran a sports-apparel-manufacturing
business and sought to obtain a license from the National Football League (“NFL”) to
produce NFL apparel. Mendez said that he had a standing order from K-Mart for $10
million if he was able to procure an NFL license. After Rentz told Mendez that he knew
someone who might be able to help obtain the license, the two men agreed that if Rentz
introduced Mendez to someone who helped him obtain an NFL license, Mendez would
pay Rentz a commission of one percent of Dynasty’s gross sales of NFL-licensed goods.
Although Rentz and Mendez shook hands on the deal and exchanged telephone numbers,
they did not reduce the agreement to writing. Joint Appendix (“J.A.”) at 427-28 (D. Ct.
Dec. 2/5/99 at 2-3).
Rentz soon contacted Paul Warfield, a former NFL football player who leased
office space from Rentz in Dayton. Rentz suggested that Warfield might use his
connections to the NFL to help the Mendez brothers obtain a license. Although Rentz
prepared a “Letter of Understanding” obligating Warfield to pay Rentz one percent of
gross sales of merchandise sold under an NFL license, Warfield never signed an
agreement with Rentz. In late October 1990, Rentz arranged a meeting in Dayton
between the Mendez brothers and Warfield. After the Mendez brothers showed Warfield
samples of their work, Warfield agreed to seek an NFL license on their behalf. Although
Rentz mentioned his one-percent commission at the meeting, there was no specific
discussion of who would pay Rentz. Following the Dayton meeting, Rentz periodically
1
The following facts, which are undisputed, are drawn largely from the district court’s decision
of February 5, 1999, on the defendants’ motions for summary judgment.
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 4
spoke by phone with both Warfield and the Mendez brothers. During one call with
Armando Mendez, Rentz repeatedly mentioned the promised one-percent commission,
but Mendez suggested that Warfield pay the commission. In November 1990, Warfield
met the Mendez brothers in Miami, Florida, and toured Dynasty’s production facility.
At that meeting, Warfield told Armando Mendez that Rentz was not Warfield’s partner
and told the Mendez brothers that they would have to pay any commission to Rentz.
In 1991, Warfield and his wife formed the corporation Jemesco, which then
entered an agreement with the Mendez brothers’ corporation Dynasty to create a joint
venture called the Jemesco-Mendez Group. The Jemesco-Mendez Group obtained two
NFL licenses in 1991. In February 1991, Armando Mendez told Rentz that the Mendez
brothers had obtained an NFL license through a contact other than Warfield, and Rentz
assumed that Warfield’s efforts had failed. However, several years later, in July 1995,
Rentz learned in a newspaper article that Warfield had been in the Florida sports-apparel
business since 1990. Rentz concluded that Warfield had obtained an NFL license for the
Mendez brothers and that Rentz had been deprived of his one-percent commission.
After Rentz threatened litigation, Warfield filed a declaratory-judgment action
against Rentz on May 24, 1996, in the United States District Court for the Southern
District of Florida. Rentz then filed a separate action in the United States District Court
for the Southern District of Ohio on June 7, 1996, naming as defendants the Mendez
brothers, Dynasty (also known as Mendez Screen Printing, Inc.), and the Warfield
Defendants. The two actions were subsequently consolidated in the Ohio district court
on July 17, 1996.
On March 31, 1997, the district court dismissed several portions of Rentz’s
complaint but gave him leave to file an amended complaint. Rentz filed an amended
complaint on June 5, 1997, alleging various fraud, breach-of-contract, promissory-
estoppel, and unjust-enrichment claims against the Mendez brothers, Dynasty, and the
Warfield Defendants, and tortious interference with a business relationship against
Warfield. On March 30, 1998, the district court dismissed the fraud claims and all of the
claims insofar as they were directed against the Mendez brothers individually. The
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 5
claims remaining in the case, therefore, were the contract, promissory-estoppel, and
unjust-enrichment claims against Dynasty and the Warfield Defendants, and the claim
of tortious interference with a business relationship against the Warfield Defendants.
Both Dynasty and the Warfield Defendants subsequently moved for summary
judgment on the remaining claims. The Warfield Defendants also filed a motion for
sanctions against Rentz, his counsel, and their law firms, pursuant to Rule 11 of the
Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and OHIO REV. CODE § 2323.51.
J.A. at 147-58 (Mot. for Sanctions).2 On February 5, 1999, the district court granted
summary judgment to the Warfield Defendants, but denied summary judgment to
Dynasty. J.A. at 426-71 (Dist. Ct. Dec. 2/5/99 at 1-46).3
The district court also found Rentz’s counsel subject to sanctions under both Rule
11 and 28 U.S.C. § 1927, but it denied the motion for sanctions under OHIO REV. CODE
§ 2323.51 as “moot.” J.A. at 472-80 (Dist. Ct. Dec. 2/5/99 at 47-55). Specifically, the
court found that Rentz’s November 1996 deposition testimony revealed that there was
no evidentiary basis for the allegations and legal claims that Rentz continued to make
against the Warfield Defendants in his amended complaint, filed on June 5, 1997, and
in his opposition to the defendants’ motions for summary judgment, filed on August 26,
1998.
The district court explained that throughout his deposition Rentz had repeatedly
denied the existence of any agreement requiring the Warfield Defendants to compensate
him. The court noted the following statements by Rentz at his deposition: (1) “I did not
care where [the one-percent commission] came from, but I dealt with the Mendez
2
The Warfield Defendants complied with Rule 11’s “safe harbor” provision requiring that a party
seeking sanctions first serve the motion on the opposing party and then wait at least twenty-one days (or
another period designated by the court) before filing the motion with the court. See FED. R. CIV. P.
11(c)(2). The Warfield Defendants served the motion for sanctions on Rentz and his attorneys on April
15, 1998, and then filed the motion in the district court on May 11, 1998. J.A. at 158 (Certificate of
Service).
3
Rentz proceeded to a jury trial against Dynasty on the remaining claims, and on May 27, 1999,
the district court entered a judgment awarding Rentz $629,529.85 in damages and declaring that “the
contract remains in full force and effect until the time when the Dynasty/Jemesco NFL Licensing
Agreement ceases.” J.A. at 486 (Judgment).
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 6
brothers. That is who I made the deal with.” J.A. at 707 (Rentz Dep. Tr. at 44); (2) “I
was not partners with Mr. Warfield. Mine would be coming from the Mendez brothers.”
J.A. at 708 (Rentz Dep. Tr. at 45); (3) “I didn’t feel my deal was with Paul Warfield.”
J.A. at 710 (Rentz Dep. Tr. at 49). The district court also cited the following testimony
in which Rentz, after repeated questioning, acknowledged that neither Jemesco nor
Warfield personally ever agreed to pay Rentz’s one-percent commission:
Q: Did Jemesco ever obligate itself to pay you a dime?
A: No.
Q: Did Mr. Warfield ever obligate himself to pay you a dime?
A: Yes.
Q: When did he say he was going to pay you?
A: He knew the essence of the deal. When I talked to him, he knew
I was involved. When I first brought the deal to him, he knew I
was involved.
Q: Did he ever obligate himself to ever pay you?
A: The deal was presented to him. He knew the deal. The
obligation was in the presentation from me and to him doing the
deal.
Q: Who was paying the one percent?
A: It was coming out of the deal.
Q: Who was going to pay you one percent?
A: I suppose Mendez was.
J.A. at 711-12 (Rentz Dep. Tr. at 129-30). Although ruling that Rentz’s testimony
demonstrated subsequent attorney misconduct warranting sanctions, the district court
concluded that an evidentiary hearing was necessary to determine both the proper
amount of sanctions and the proper litigants to be sanctioned. J.A. at 478 (Dist. Ct. Dec.
2/5/99 at 53).
In October 1999, the district court held a hearing on the Warfield Defendants’
motion for sanctions. At that hearing, the Warfield Defendants specified that they
sought the imposition of Rule 11 sanctions on (1) Rentz himself; (2) Rentz’s attorneys,
Paul R. Leonard (“Leonard”) and B. Randall Roach (“Roach”);4 and (3) two of the law
4
The Warfield Defendants also sought sanctions pursuant to 28 U.S.C. § 1927 against the two
attorneys.
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 7
firms with which Leonard and Roach practiced during the litigation, Leonard & Roach5
and Cornyn, Leonard & Hughes. J.A. at 588 (Dist. Ct. Dec. 8/9/07 at 2). The Warfield
Defendants requested that the district court impose monetary sanctions of some $70,000
to compensate them for the attorney fees that they incurred litigating the case. Id.
Between November 1999 and February 2000, the parties submitted post-hearing briefs
on the issues of who should be sanctioned and what amount of sanctions should be
imposed.
More than seven years later, on August 9, 2007, the district court finally issued
a ruling on these issues. The court found that only Leonard and Roach were subject to
sanctions and imposed monetary sanctions on each of the two attorneys pursuant to both
Rule 11 and 28 U.S.C. § 1927. J.A. at 589-600 (Dist. Ct. Dec. 8/9/07 at 3-14). The
court explained that Leonard had filed the amended complaint in which certain claims
against Warfield were “controverted by Rentz’s deposition testimony.” J.A. at 593
(Dist. Ct. Dec. 8/9/07 at 7). Similarly, Roach had prepared and filed a memorandum
opposing the Warfield Defendants’ motion for summary judgment even though Rentz’s
prior deposition testimony had made clear that most of the claims against Warfield had
no evidentiary basis. J.A. at 594-96 (Dist. Ct. Dec. 8/9/07 at 8-10). The district court,
however, denied the Warfield Defendants’ request that it also sanction Rentz personally
and the law firms with which Leonard and Roach practiced during the relevant period.
Next, the district court calculated the attorney fees reasonably incurred by the
Warfield Defendants due to the sanctionable conduct of Leonard and of Roach.
Beginning with the $70,458.25 in total attorney fees claimed by the Warfield
Defendants, the court made a series of specific deductions, including deductions for fees
unrelated to the frivolous claims. The court concluded that the Warfield Defendants
would be reasonably compensated by an award of $29,294.87 for the attorney fees
incurred due to Leonard’s sanctionable conduct and $3,747.37 due to Roach’s
5
The Warfield Defendants did not appeal the district court’s ruling that “agency principles do not
support the imposition of Rule 11 sanctions” on the law firm Leonard & Roach because the evidence
showed that the two attorneys did not form a partnership but rather “operated as an association of
independent practitioners.” J.A. at 597 (Dist. Ct. Dec. 8/9/07 at 11).
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 8
sanctionable conduct. J.A. at 605-11 (Dist. Ct. Dec. 8/9/07 at 19-25). However, the
district court then proceeded to reduce these amounts by more than ninety percent,
ordering that Leonard and Roach pay just $2,500 and $250 respectively to the Warfield
Defendants. In so doing, the district court observed that deterrence and punishment,
rather than compensation for fees, were the primary goals of both Rule 11 and § 1927
and concluded that these goals would be sufficiently served by the imposition of
sanctions in the reduced amounts.
II. ANALYSIS
We review for abuse of discretion a district court’s determination of sanctions
under either Rule 11 or under 28 U.S.C. § 1927. Ridder v. City of Springfield, 109 F.3d
288, 293, 298 (6th Cir. 1997), cert. denied,
522 U.S. 1046 (1998). “A court necessarily
abuses its discretion if it bases its ruling on an erroneous view of the law or a clearly
erroneous assessment of the evidence.”
Id. at 293 (citing Cooter & Gell v. Hartmarx
Corp.,
496 U.S. 384, 405 (1990)).
Originally enacted in 1937, Rule 11 was substantially revised in 1983 and again
in 1993, and stylistically revised in 2007. The 1993 amendments “broaden[ed] the scope
of attorney obligations but place[d] greater constraints on the imposition of sanctions.”
Id. Under the current version of the amended rule:
By presenting to the court a pleading, written motion, or other
paper—whether by signing, filing, submitting, or later advocating it—an
attorney or unrepresented party certifies 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,
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
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 9
(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.
FED. R. CIV. P. 11(b). The amended rule imposes on litigants a “continuing duty of
candor,” and a litigant may be sanctioned “for continuing to insist upon a position that
is no longer tenable.” Ridder, 109 F.3d at 293. Whereas the pre-1993 rule made the
imposition of sanctions for violations mandatory, sanctions are discretionary under the
amended rule. See FED. R. CIV. P. 11(c)(1). Further, any sanctions imposed “must be
limited to what suffices to deter repetition of the conduct or comparable conduct by
others similarly situated.” FED. R. CIV. P. 11(c)(4).
The amended rule also “de-emphasizes monetary sanctions and discourages
direct payouts to the opposing party.” Ridder, 109 F.3d at 294 (citing FED. R. CIV. P. 11
Advisory Committee Notes (1993 Amendments)). The amended rule recognizes,
however, that “under unusual circumstances . . . deterrence may be ineffective unless the
sanction not only requires the person violating the rule to make a monetary payment, but
also directs that some or all of this payment be made to those injured by the violation.”
FED. R. CIV. P. 11 Advisory Committee Notes (1993 Amendments). Accordingly, Rule
11 expressly provides that “if imposed on motion and warranted for effective
deterrence,” sanctions may include “an order directing payment to the movant of part or
all of the reasonable attorney’s fees and other expenses directly resulting from the
violation.” FED. R. CIV. P. 11(c)(4).
Unlike Rule 11, 28 U.S.C. § 1927 authorizes the imposition of sanctions on only
an “attorney or other person admitted to conduct cases.”6 Section 1927 allows a court
to require an attorney “who so multiplies the proceedings in any case unreasonably and
vexatiously . . . to satisfy personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.” 28 U.S.C. § 1927. We have held that a
court may sanction an attorney under § 1927 for unreasonably and vexatiously
6
Accordingly, § 1927 does not authorize the imposition of sanctions on a represented party, nor
does it authorize the imposition of sanctions on a law firm. Claiborne v. Wisdom, 414 F.3d 715, 722-24
(7th Cir. 2005), cert. dismissed,
546 U.S. 1162 (2006).
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 10
multiplying the proceedings “despite the absence of any conscious impropriety.” Jones
v. Cont’l Corp.,
789 F.2d 1225, 1230 (6th Cir. 1986)). An attorney is therefore
sanctionable under § 1927 “without a finding of bad faith, ‘at least when an attorney
knows or reasonably should know that a claim pursued is frivolous, or that his or her
litigation tactics will needlessly obstruct the litigation of nonfrivolous claims.’”
Ridder,
109 F.3d at 298 (quoting
Jones, 789 F.2d at 1230). However, “‘[t]here must be some
conduct on the part of the subject attorney that trial judges, applying the collective
wisdom of their experience on the bench, could agree falls short of the obligations owed
by a member of the bar to the court and which, as a result, causes additional expense to
the opposing party.’”
Id. (quoting In re Ruben,
825 F.2d 977, 984 (6th Cir. 1987)).
Under this objective standard, Ҥ 1927 sanctions require a showing of something less
than subjective bad faith, but something more than negligence or incompetence.” Red
Carpet Studios Div. of Source Advantage, Ltd. v. Sater,
465 F.3d 642, 646 (6th Cir.
2006).
A. Decision Not to Impose Rule 11 Sanctions on Law Firm
The Warfield Defendants argue that the district court erred in failing to hold the
law firm Cornyn, Leonard & Hughes (“CL&H”) jointly responsible under Rule 11 for
the sanctionable conduct of Leonard and Roach. Rule 11(c)(1) provides that “[a]bsent
exceptional circumstances, a law firm must be held jointly responsible for a violation
committed by its partner, associate, or employee.” FED. R. CIV. P. 11(c)(1). With this
provision the 1993 amendments specifically departed from Pavelic & LeFlore v. Marvel
Entertainment Group, 493 U.S. 120, 126-27 (1989), in which the Supreme Court held
that a law firm may not be sanctioned under Rule 11 for a violation by one of its
attorneys. The advisory committee notes to the 1993 amendments explain that “it is
appropriate that the law firm ordinarily be viewed as jointly responsible [for its
attorney’s Rule 11 violations] under established principles of agency.” FED. R. CIV. P.
11 Advisory Committee Notes (1993 Amendments). However, neither the text of the
rule nor the advisory committee notes shed light on what constitutes “exceptional
circumstances.” The Warfield Defendants contend that the district court’s finding of
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 11
exceptional circumstances as to CL&H amounted to an abuse of discretion. We
disagree.
In April 1997, both Leonard and Roach began to practice law with Christopher
Cornyn (“Cornyn”) and began receiving paychecks from the law firm Cornyn, Leonard
and Hughes (“CL&H”). At that time, Rentz’s suit had been pending for around nine
months. Approximately two months later, on June 5, 1997, Leonard filed the amended
complaint for which he was later sanctioned. Leonard left CL&H later that year, in
December 2007, after a dispute with Cornyn, but Roach stayed on to practice in
Cornyn’s firm, which was then called Cornyn, Roach & Hughes. Although Leonard
testified that he had only minimal involvement with the case after leaving CL&H, both
Leonard and Roach remained counsel of record on the district court docket until
February 1999, when Leonard was replaced as trial counsel by Cornyn.
The district court declined to sanction CL&H under Rule 11 because it found
that, even assuming that Leonard and Roach were acting as agents for the firm, the case
“remained first and foremost the responsibility of Leonard and to a lesser extent that of
Roach,” and “[t]here was no evidence that Cornyn or Hughes was involved in the
drafting or filing of [the amended complaint].” J.A. at 598 (Dist. Ct. Dec. 8/9/07 at 12).
The court added that “Leonard affixed only his name to the Amended Complaint, rather
than identifying himself as part of Cornyn, Leonard and Hughes.” Id. The Warfield
Defendants counter that Leonard and Roach were employees of CL&H when the
amended complaint was filed and that Cornyn should be held responsible for failing
adequately to supervise the case. They contend that “Cornyn allowed the resources of
his law firm as wielded by Leonard and Roach to inflict harm and damage upon [the
Warfield Defendants] without any attempt to manage or correct their improper conduct.”
Warfield Br. at 22.
The district court did not abuse its discretion by declining to hold the law firm
CL&H jointly responsible for the misconduct of Leonard and Roach. First, there is no
evidence that Cornyn had any contact with the Rentz case or was involved in either a
supervisory or managerial capacity until Cornyn replaced Leonard as counsel of record
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 12
in February 1999, well after the sanctionable conduct occurred. Instead, there was a
general understanding among the three attorneys that Roach and Leonard would continue
to maintain sole responsibility for the Rentz case when they joined Cornyn and Hughes
to form CL&H. Cornyn stated that when Roach and Leonard joined CL&H in early
1997 “[i]t was fairly clear in everyone’s understanding that, since it was ongoing
litigation, that was their case and they would handle that action independent of me.”
J.A. at 621 (Cornyn Tr. at 37). Consistent with this understanding, when Leonard filed
the amended complaint soon after joining CL&H, the certificate of service did not
identify him as a member of CL&H. J.A. at 38. Indeed, the only evident connection that
Cornyn or CL&H had with the Rentz case at the time of the sanctionable conduct was
the appearance of the firm’s name on the letterhead of correspondence involving the
Rentz case. In sum, the record makes clear that the Rentz case was solely the
responsibility of Leonard and Roach during the relevant period, that Cornyn had no
involvement with the case until well after the sanctionable conduct had occurred, and
that the three attorneys had an understanding that when Leonard and Roach joined
Cornyn they would handle the Rentz case independent of Cornyn. Given the tenuous
connection between the law firm CL&H and the Rentz case at the time of the
sanctionable conduct, we cannot say that the district court abused its discretion by
refusing to sanction CL&H.
B. Decision Not to Impose Rule 11 Sanctions on Rentz
The Warfield Defendants also contend that the district court’s decision not to
sanction Rentz personally was an abuse of discretion because Rentz was actively
involved in the litigation and allowed his attorneys to make allegations against the
Warfield Defendants that he knew to be untrue. Rentz acknowledges that he was an
active participant in the litigation, attending depositions and reviewing the various
pleadings. However, he maintains that he provided consistent and truthful factual
statements throughout the litigation and that, as a layperson without legal training, “[h]e
was not in a position to evaluate whether the allegations asserted in the two pleadings,
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 13
now couched in their legal parlance as distinct legal theories, were equivalent to the
accounts he provided of those meetings and events.” Rentz Br. at 32.
Rule 11 expressly provides the district court with discretion to impose sanctions
on a party that is responsible for the rule’s violation, provided that the violation is not
one for unwarranted legal contentions under Rule 11(b)(2). See FED. R. CIV. P. 11(c)(1)
& (c)(5)(A). The advisory committee notes to the 1993 amendments explain that the
amended rule “permits the court to consider whether . . . the party itself should be held
accountable for [his] part in causing a violation,” and to “make an additional inquiry in
order to determine whether the sanction should be imposed on . . . parties either in
addition to or, in unusual circumstances, instead of the person actually making the
presentation to the court.” FED. R. CIV. P. 11 Advisory Committee Notes (1993
Amendments). Courts have generally declined to impose sanctions on represented
parties. See 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &
PROCEDURE § 1336.2 (3d ed. 2004) (“Imposing a sanction on the client has met with
disfavor.”). However, we have upheld the imposition of Rule 11 sanctions on parties,
along with their attorney, when they misrepresented key facts during their depositions
and at trial. Union Planters Bank v. L & J Dev. Co., 115 F.3d 378, 384-85 (6th Cir.
1997).
As explained previously, the sanctionable conduct in this case was the assertion
of claims against the Warfield Defendants that clearly lacked any evidentiary support.
Rentz’s amended complaint and his memorandum opposing summary judgment
contained allegations that Warfield—either individually or in concert with the Mendez
brothers—promised to pay Rentz a one-percent commission. Rentz repeatedly
acknowledged in his deposition testimony, however, that Warfield never promised or
agreed to pay him a commission. The district court sanctioned Rentz’s attorneys for
continuing to allege that Warfield had promised to pay Rentz a commission when there
was no evidence of such a promise. But the district court found that Rentz did not cause
his attorneys to violate Rule 11 and therefore declined to impose sanctions on Rentz.
The district court explained that:
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 14
there is no evidence that Rentz misled his counsel or failed to provide
them any requested information concerning his claims against Warfield.
On the contrary, the evidence demonstrates that Rentz was forthcoming
with his attorneys and opposing counsel. While Rentz believed that
Warfield had treated him unfairly, that does not demonstrate that he
caused his counsel to violate Rule 11. Moreover, it was his truthful
deposition testimony to the effect that Warfield had not agreed to
compensate him which led to the dismissal of all claims against that
Defendant, as well as the imposition of sanctions by the Court.
J.A. at 599-600 (Dist. Ct. Op. 8/9/2007 at 13-14).
Although the Warfield Defendants maintain that the district court should have
held Rentz jointly responsible for permitting his counsel to make the unfounded
contentions, we believe that the district court did not abuse its discretion in limiting its
assessment of sanctions to Rentz’s attorneys. Nothing in the record suggests that Rentz
made any false factual allegations during the course of this litigation. It is undisputed
that Rentz’s deposition testimony was accurate and truthful, though contrary to the
claims doggedly pursued by his counsel against the Warfield Defendants. Rentz was
consistently forthcoming with his attorneys and opposing counsel and provided accurate
information about his relationship and discussions with Warfield. If Rentz’s attorneys
characterized Warfield’s statements as constituting a promise, or creating a contract, it
was not unreasonable for Rentz, who lacked any legal training, to trust this professional
judgment. Further, the unfounded contentions at issue here were not entirely factual, but
rather mixed questions of fact and law for which a non-lawyer such as Rentz should not
be held responsible. Accordingly, the district court reasonably determined that Rentz’s
conduct did not cause his attorneys to violate Rule 11, and we therefore conclude that
the district court did not abuse its discretion in declining to sanction Rentz.
C. Amount of Sanctions
Turning to the amount of sanctions, the Warfield Defendants argue that the
district court abused its discretion by arbitrarily reducing the monetary sanctions
imposed against Leonard and Roach far below the amount of attorney fees incurred by
the Warfield Defendants due to the sanctionable conduct. The Warfield Defendants do
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 15
not contest the district court’s initial deductions from the $70,458.25 in total attorney
fees claimed, to amounts totaling $29,294.87 as to Leonard and $3,747.37 as to Roach,
representing the reasonable attorney fees incurred in connection with the sanctionable
conduct. However, the Warfield Defendants argue that the district court erred when it
made further reductions to impose sanctions of just $2,500 against Leonard and $250
against Roach. They maintain that in further reducing the sanctions award the district
court “failed to apply the appropriate factors, failed to adequately explain its decision,
and left [the Warfield Defendants] in a worse position than if the Motion for Sanctions
had been denied.” Warfield Br. at 31. Leonard and Roach counter that the district court
properly recognized that the principal goal of both Rule 11 and § 1927 is deterrence and
imposed sanctions in the least amount necessary to deter repetition of the sanctionable
conduct.7
Rule 11(c)(4) sets forth the nature of sanctions that a court may impose for
violations of the rule:
A sanction imposed under this rule must be limited to what suffices to
deter repetition of the conduct or comparable conduct by others similarly
situated. The sanction may include nonmonetary directives; an order to
pay a penalty into court; or, if imposed on motion and warranted for
effective deterrence, an order directing payment to the movant of part or
all of the reasonable attorney’s fees and other expenses directly resulting
from the violation.
FED. R. CIV. P. 11(c)(4) (emphasis added). Prior to the 1993 amendments to Rule 11,
this court held that “[t]he two goals of Rule 11 are deterrence and compensation,” with
deterrence being the “principal goal.” Jackson v. Law Firm of O’Hara, Ruberg, Osborne
& Taylor, 875 F.2d 1224, 1229 (6th Cir. 1989); see also Danvers v. Danvers,
959 F.2d
601, 605 (6th Cir. 1992) (stating that the two goals of deterrence and compensation must
be “balanced”). However, the advisory committee notes to the 1993 amendments make
it clear that under the amended rule “the purpose of Rule 11 sanctions is to deter rather
than to compensate.” FED. R. CIV. P. 11 Advisory Committee Notes (1993
7
The district court based its sanctions award on both Rule 11 and § 1927. Because we find that
the district court abused its discretion in determining the amount of sanctions under Rule 11, we do not
reach the question of whether the sanctions award was proper under § 1927.
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 16
Amendments). Still, compensating the victim and deterring the perpetrator of Rule 11
violations are not mutually exclusive. “If compensation was not a recognizable basis for
Rule 11 awards, aggrieved litigants would have little incentive to pursue sanctions thus
diminishing the important deterrent effect of Rule 11.” Brandt v. Schal Assocs., Inc.,
960 F.2d 640, 646 (7th Cir. 1992). The amended rule continues to recognize
compensation for attorney fees as a basis for Rule 11 awards. The plain language of
Rule 11 provides that attorney fees may sometimes be “warranted for effective
deterrence,” FED. R. CIV. P. 11(c)(4), and the advisory committee notes state that “under
unusual circumstances . . . deterrence may be ineffective unless the sanction not only
requires the person violating the rule to make a monetary payment, but also directs that
some or all of this payment be made to those injured by the violation,” FED. R. CIV. P.
11 Advisory Committee Notes (1993 Amendments). Thus, although it is clear that Rule
11 is not intended to be a compensatory mechanism in the first instance, it is equally
clear that effective deterrence sometimes requires compensating the victim for attorney
fees arising from abusive litigation.
Here, we simply cannot see how the district court’s sanction awards of $2,500
and $250 against Leonard and Roach respectively are sufficient to meet Rule 11’s
requirement that sanctions be sufficient “to deter repetition of the conduct or comparable
conduct by others similarly situated.” FED. R. CIV. P. 11(c)(4). Nowhere does the
district court explain how the imposition of such minimal monetary penalties on
practicing attorneys could serve as an effective deterrent to similar conduct by these
attorneys or others similarly situated. Instead, the district court offered only conclusory
explanations for its decision to reduce the sanction awards.
With respect to Leonard, the district court stated, without any real explanation,
that “a sanction in the amount of $2,500.00 is sufficient to deter and to punish Leonard
for his sanctionable conduct.” J.A. at 610 (Dist. Ct. Dec. 8/9/2007 at 24). The only
apparent rationale offered by the court as to why this amount was sufficient was that
“[a]lthough Leonard has been licensed to practice law for a number of years he had only
recently returned to private practice, from a long career in the public arena, when he
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 17
commenced his representation of Rentz.” J.A. at 609-10 (Dist. Ct. Dec. 8/9/2007 at 23-
24).8 We fail to see the relevance of Leonard’s career in public service to the issue of
the proper amount of sanctions. Leonard has offered no evidence that he lacks the
ability to pay sanctions in the amount of the reasonable attorney fees incurred by the
Warfield Defendants due to his sanctionable conduct. If the district court means to
suggest that an attorney who reenters private practice after a stint in public service
should be held to a lesser standard of conduct under Rule 11, we strongly disagree. Rule
11 places an obligation on all attorneys “to conduct a reasonable inquiry into the law and
facts before signing pleadings, written motions, and other documents.” FED. R. CIV. P.
11 Advisory Committee Notes (1993 Amendments). If an attorney fails to meet this
obligation, as did Leonard, he is subject to sanctions sufficient to meet the deterrent
goals of Rule 11. Neither the district court nor Leonard has persuasively explained how
$2,500 is a sufficient sanction to further the deterrent goals of Rule 11. Not only is this
figure less than ten percent of the $29,294.87 in attorney fees reasonably incurred by the
Warfield Defendants due to Leonard’s sanctionable conduct, it is less than half of the
$5,520 incurred by the Warfield Defendants just to litigate the sanctions issues in the
district court.
We find the district court’s explanation for imposing only a $250 sanction on
Roach similarly unpersuasive. Roach’s sanctionable conduct was limited to preparing
and signing Rentz’s memorandum in opposition to summary judgment, which defended
several frivolous claims against the Warfield Defendants. The district court calculated
that the Warfield Defendants incurred some $3,747.37 in attorney fees due to Roach’s
sanctionable conduct. Yet, as with Leonard, the district court reduced that amount by
more than ninety percent. In concluding that $250 was a sufficient sanction, the court
explained that:
Roach became licensed to practice in the Fall of 1995, and his first
professional involvement was his association with Leonard, who was not
at that time an experienced practitioner. In this litigation, Roach played
8
Leonard served as Mayor of Dayton from 1982 to 1986 and as Lieutenant Governor of the State
of Ohio from 1987 to 1991.
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 18
the role of associate to Leonard, the partner. Leonard was responsible for
communicating with Rentz, as well as signing papers to be filed in court.
Roach would conduct research; he prepared and signed Plaintiffs’
Memorandum in Opposition to Defendants’ Motions for Summary
Judgment . . . because Leonard told him to do so. Moreover, for many
years, Roach, a young practitioner, has had the specter of being required
to compensate a party for his attorney’s fees, exceeding $70,000.
Finally, based upon his testimony during the evidentiary hearing and his
post-hearing submission, this Court is convinced that Roach had, by that
time, a full understanding of the obligations imposed upon counsel by
Rule 11 and § 1927, and that a repetition of this sanctionable conduct is
highly unlikely.
J.A. at 611-12 (Dist. Ct. Dec. 8/9/2007 at 25-26). First, we do not see how Roach’s
experience level or the fact that he was essentially an associate under Leonard’s
supervision are relevant to determining the amount of sanctions sufficient to serve the
deterrent purpose of Rule 11. All attorneys, regardless of experience level or position,
are equally subject to Rule 11’s obligation to conduct a reasonable inquiry into the law
and facts before signing papers filed with the court. We also fail to see the relevance of
the fact that Roach has faced uncertainty for many years over the amount he would
ultimately be sanctioned for his Rule 11 violation. This seven-year delay—caused by
the district court’s dilatory ruling on the sanctions issue—has no bearing on the proper
amount the two attorneys should be sanctioned. Finally, even if the district court is
correct that Roach now has a better understanding of his obligations under Rule 11 and
that he is unlikely to repeat the sanctionable conduct, that does not necessarily imply that
sanctions of $250 are sufficient in this case. Sanctions imposed under Rule 11 must be
sufficient “to deter repetition of the conduct or comparable conduct by others similarly
situated.” FED. R. CIV. P. 11(c)(4) (emphasis added). Even assuming that the sanctions
imposed by the district court are sufficient to deter future misconduct by Roach, we
highly doubt that such a token sanction of $250 could effectively deter other attorneys
from committing similar violations.
Because we believe that sanctions against Leonard and Roach in the amounts of
$2,500 and $250 are insufficient to serve Rule 11’s deterrent purposes, we conclude that
the district court abused its discretion in imposing sanctions in these amounts. Although
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 19
we recognize that the district court has substantial discretion to determine the nature of
the sanctions it imposes, we believe that the court here has failed adequately to explain
how such small monetary sanctions—particularly in comparison to the amount of
attorney fees incurred due to the sanctionable conduct—would satisfy Rule 11’s
deterrent purposes. We reiterate that compensation and fee-shifting are not the goals of
Rule 11. However, we think it clear that the de minimis sanctions imposed by the district
court here are simply inadequate to deter Rule 11 violations. Victims of Rule 11
violations such as the Warfield Defendants would have no incentive to file a motion for
sanctions if their reward for successfully litigating the issue is only a tiny fraction of the
amount of expenses incurred because of the sanctionable conduct. Indeed, under the
district court’s ruling, the Warfield Defendants actually would have lost money by
litigating and prevailing on their motion for sanctions because the total sanctions
awarded ($2,750) amounted to less than half of the amount spent by the Warfield
Defendants in connection with the sanctions hearing ($5,520).
Instead, we believe that sanctions in the amount of the reasonable attorney fees
incurred by the Warfield defendants due to the sanctionable conduct constitute the least
amount sufficient here to deter future violations. Accordingly, we vacate that portion
of the district court’s order setting the amount of sanctions at $2,500 as to Leonard and
$250 as to Roach, and remand so that the district court may promptly order sanctions of
$29,294.87 against Leonard and $3,747.37 against Roach, representing the reasonable
attorney fees incurred by the Warfield Defendants due to the sanctionable conduct of
each attorney.
Finally, we turn to the Warfield Defendants’ argument that the sanctions award
should also include interest accrued from the time that entitlement to sanctions was
determined by the district court in February 1999. As the Warfield Defendants point out,
two other circuits have held that a court may include a “delay factor” as part of a
sanctions award in order to account for the opportunity cost of money that could have
been allocated to other purposes but instead went to pay attorney fees to defend against
frivolous claims. See FDIC v. Maxxam, Inc., 523 F.3d 566, 596 & n.170 (5th Cir. 2008);
No. 07-4123 Rentz v. Dynasty Apparel Industries, Inc. et al. Page 20
Brandt, 960 F.2d at 651-52. We note, however, that the Warfield Defendants failed to
raise the potential application of a “delay factor” in the district court. To be sure, the
Warfield Defendants had no reason in 1999 to expect that it would take the district court
more than seven years finally to rule on the amount of sanctions and to determine which
litigants to sanction. Nonetheless, it should have been clear even in 1999 that there
would be some delay between the district court’s ruling that sanctions were warranted
(in February 1999) and its final determination of the nature of those sanctions, given that
the district court’s February 1999 ruling was followed by a hearing on sanctions in
October 1999 and then several months of post-hearing briefing. We have observed that
“[o]ur function is to review the case presented to the district court, rather than a better
case fashioned after a district court’s unfavorable order.” Barner v. Pilkington N. Am.,
Inc.,
399 F.3d 745, 749 (6th Cir. 2005) (internal quotation marks omitted).
Consequently, “‘[i]t is well settled law that this court will not consider an error or issue
which could have been raised below but was not.’”
Id. (quoting Niecko v. Emro
Marketing Co.,
973 F.2d 1296, 1299 (6th Cir. 1992)). Because the Warfield Defendants
did not raise before the district court the issue of whether a “delay factor” should be
added to the amount of sanctions imposed, we decline to decide this issue here and do
not add accrued interest to the sanctions awards.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s decision not to
sanction the law firm and its decision not to sanction the represented party, Rentz.
However, we VACATE that portion of the district court’s order setting the amount of
sanctions against the attorneys and REMAND so that the district court may issue an
order forthwith imposing sanctions in the amount of $29,294.87 against Leonard and
$3,747.37 against Roach, to be paid directly to the Warfield Defendants.
