Rule 11 Motion Opposed

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SANCTIONS AND SUPPORTING MEMORANDUM OF LAW

             COMES NOW the Plaintiff, DANIEL SANDERS, by and through his undersigned counsel, and responds to the Defendant’s, CHARLES ADAMS, Motion for Sanctions (“Motion”) (Doc. 22) as follows:

  • RELEVANT PROCEDURAL BACKGROUND

 1.        Part of Plaintiff’s claims arose under the Fair Labor Standards Act (FLSA). Thus, on June 22, 2012, the Court entered its FLSA Scheduling Order requiring the Plaintiff to answer the Court’s Standard FLSA Interrogatories. (Doc. 4). Plaintiff timely filed his verified Interrogatory responses and complied with that Order.  (Doc. 6).   
2.         After Plaintiff answered the Court’s Interrogatories, Defendant’s counsel claimed that he could still not ascertain the nature of Plaintiff’s claims.  Thus, Plaintiff filed supplemental documentation to clarify the allegations. (Doc. 17).
3.          Plaintiff’s subsequent filing of Doc. 17, Defendant now complained that the Plaintiff filed too much information, and so the Defendant requested that Doc. 17’s attachments should be sealed or withdrawn.  Thus, to avoid litigation over the matter, Plaintiff agreed to move that the records be sealed or struck voluntarily. (Doc. 18).  The Court entered an Order on Plaintiff’s Motion striking the filing.  (Doc. 19).

  1.         In striking the filing of Doc. 17, the Court invited the Plaintiff to file information he believes is specifically responsive to the Court’s Interrogatories.  The Court’s Order, Doc. 19, provides in part as follows (emphasis supplied):

If the Plaintiff believes some or all of the information is responsive to the Court’s Interrogatories, he may refile it in properly redacted form after conferring with the Defendant. In the event of refiling, Plaintiff shall specify which documents are responsive to which interrogatories.
 

  •            5.          In accordance with the Court’s Doc. 19 Order, the Plaintiff refiled a redacted accounting and estimate of his hours worked (titled “Plaintiff’s “Weekly Work Ticket”) and adequately identified to which interrogatories it related.  (Doc. 20).  Plaintiff specifically noted, in his notice of filing, that Doc. 20 related to the Court’s Interrogatory #6 (i.e., the Interrogatory asking Plaintiff for an accounting of his time claimed, etc.).
  •             6.         Doc. 20 is an accounting of the hours and weeks claimed by the Plaintiff. As to the merits of Plaintiff’s claimed hours and hours, witnesses have signed off on the same as being accurate.  (See the signatures noted in Doc. 20).[1]   Thus, the times claimed by Plaintiff are not only his own but that of other witnesses as well.

7.       Although Plaintiff complied with the Court’s FLSA Scheduling Order (Doc. 4), Defendant has not even attempted to do so. (Doc. 4). Defendant’s Motion is a red herring designed to divert the Court from his refusal to comply with this Court’s Order by either filing a verified summary of hours or serving relevant payroll records.

  • II.    ARGUMENT

            As summarized below, Defendant claims the most severe sanctions possible (dismissal of claims and monetary sanctions against both Plaintiff and his counsel) for nearly four reasons.  These four reasons are addressed in more detail infra, but are summarily explained as follows with a summary of the Plaintiff’s response:

  •  Defendant’s first allegation is that because Plaintiff’s workload varied in hours during the employment, he was not accurate with all the hours he claimed in Doc. 20 (i.e., that he worked 70 hours a week).   However, employees “engaged to wait” are still entitled to minimum wage and overtime. Moreover, as referenced supra, independent witnesses signed Doc. 20, confirming the Plaintiff worked those hours.
  • Defendant’s second allegation is that the Plaintiff began working for Defendant in September 2008 instead of October 2008 (or vice versa).  At best, even if this was inconsistent, it is so minor that it demonstrates the depths Defendant must go to find something to support its Motion.  Even Defendant, in footnote 5 of its Motion, admits it is a moot issue.
  1. Defendant’s third allegation is that the Plaintiff made a mathematical error when computing his wages claimed in answers to the Court’s Interrogatories when compared to those detailed in Doc. 20.  A mathematical error in his interrogatory answer was inadvertent.  At most, this is unintentional, and Plaintiff has been very clear about precisely what hours he is claiming and – to the extent Defendant is confused – Doc. 20 clarified Plaintiff’s claimed hours.

Defendant’s fourth allegation is that the Plaintiff is claiming sums lent from a period when Plaintiff did not work for the Defendant.  This is meritless as Plaintiff lived at the Defendant’s facility, both before and after his work ceased. The defendant is not alleging that the Plaintiff was claiming wages from a period when he did not work for the Defendant.
Therefore, Defendant’s first, second, and fourth issues are entirely without any merit. Defendant’s third issue, at most, points out a mathematical error – not an intentional exaggeration of Plaintiff’s claimed hours as identified in Doc. 20.  When filing Doc. 20, Plaintiff specifically referenced that is related to the Court’s 6th Interrogatory.
Although Defendant’s claims of frivolity have no merit, Plaintiff will address each allegation below in detail due to the magnitude of the Defendant’s Motion.  Moreover, although Defendant makes much ado about Plaintiff’s Doc. 17 filing (discovery materials filed with the Court), this was done actually to help Defendant understand the Plaintiff’s claims.  To the extent improper, Plaintiff cured that issue himself, avoided litigation over the case, and the matter is now moot. Defendant’s other specific complaints are discussed in detail below:

  • Defendant’s First Allegation:

In Paragraph 9 of its Motion, Defendant claims that Plaintiff’s workload varied and that his “hours are all-time fluid.” (citing Doc. 17-2).  Defendant contends this is inconsistent and conflicts with the Plaintiff’s claims of entitlement to 70 hours each week of pay.
Plaintiff’s Response:  Defendant misrepresents the Plaintiff’s statement in Doc. 17-2 by ignoring an essential part of Plaintiff’s sentence.   The complete statement Plaintiff made was “The hours are all-time fluid this sometimes means the workload is less than others, but you must be here on the property, the part has had two night time fires and one-weekend fire, the water has in the past gone off often, and sewers were [they] own real problem” (e.s.).  The part of Plaintiff’s statement about the mandatory requirement that he be on property and examples of work performed (such as fire fighting) were left out by Defendant – and for a good reason, as noted below.
When Plaintiff’s entire statement is considered, it is clear that Plaintiff is claiming “Stand By Duty Pay” (aka “Waiting Time”) for these hours that he was required to be on the property but not fully engaged – regardless of what is happening at that moment or how hard he was working. Even if inactive, if Plaintiff was “engaged to wait,” he is entitled to compensation.  As explained by the Department of Labor in its Fact Sheet #22:
Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time), or the details may indicate that the employee was waiting to be involved (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been “engaged to wait.” [2]
(e.s.).  Similar to the D.O.L.’s firefighter or secretary example, Plaintiff’s claim is in part that he was “engaged to wait,” and thus, sometimes he was busier than others.  Indeed, this scenario was cited in the article “When Do You Have To Pay Employees For Being On Call?” (By Pete McPherson). [3]   That article reads in part (with emphasis supplied):
Here’s an extreme example to illustrate factors that establish that an individual has been engaged to wait and therefore is on the clock. Consider a maintenance worker who’s on-call every weekend, must respond to every call, must be able to reach the employer’s facility within 10 minutes of a call, will be called at her home telephone number unless she buys a cellular telephone at her own expense and pays for the service, and is called several times each weekend. The on-call time constitutes work time and must be paid as such. When the on-call time pushes the nonexempt worker over 40 hours in a workweek, she must be paid at overtime rates.
A claim for being “engaged to wait” is authorized by the FLSA and is well recognized. Defendant’s counsel, experienced in labor law, is no doubt quite familiar with an “engaged to wait” claim.  Thus, by electing to cite to the Court only a snippet of Plaintiff’s entire quote, Defendant attempted to mislead the Court into believing that Plaintiff’s claims were frivolous by stating that there’s no way Plaintiff’ could have worked 70 hours a week because his “hours are fluid.”  If the entire statement is legally considered, it is clear that Plaintiff’s claim is, in part, an “engaged to wait” claim.  Thus, Plaintiff’s claims are not “incredulous,” as claimed by the Defendant in its Motion.
Moreover, even if the Plaintiff was not able to make out an “engaged wait” claim, the FLSA squarely places the burden on Defendant to accurately keep the Plaintiff’s time records.  It requires that the employer maintain accurate forms of an employee’s compensation and hours worked, 29 U.S.C. § 211 (c).  Where an employer fails to maintain correct payroll records, an employee carries his burden under the FLSA if he shows he performed work for which he was improperly compensated and produces some evidence to show the amount and extent of that work “as a matter of just and reasonable inference.” Mt. Clemens Pottery, 328 U.S. at 687, 66 S.Ct. at 1192; Brock v. Seto, 790 F.2d at 1448.  As discussed below, Defendant has failed to supply any such documents.  If Defendant has proof that Plaintiff did not work the hours he claimed, he had the opportunity to share that proof in response to the Court’s Order.
Defendant’s Second Allegation
Paragraph 10 of the Defendant’s Motion claims that Plaintiff’s “Weekly Work Ticket” (Doc. 20) contradicts the date Plaintiff began to work for the Defendant.  Defendant seeks sanctions because Plaintiff stated in his answers to the Court’s interrogatories that he began working in September 2008 (Doc. 6-1), but that in Doc. 17-3 (aka Doc. 20) allegedly stated that he started in October 2008.
Plaintiff’s Response: Plaintiff’s answers to the Court’s Sixth Interrogatories states that his services began in September 2008. Plaintiff’s statement in Doc. 17-3 says that he worked “without any payment, from 10/2008…” – not that he began working in October 2008.
Even construed as an inconsistency, Plaintiff’s alleged misstatement that he began working in September or October 2008 is immaterial.  As Defendant pointed out in footnote 5 of its Motion, this period is before the Statute of Limitations.  It is utterly irrelevant to an FLSA claim whether Plaintiff started in late September 2008 or October 2008.  Including this argument in its Motion only demonstrates that the Defendant’s Motion is without real substance.

  • Defendant’s Third Allegation:

In Paragraph 11 of its Motion, Defendant claims that Plaintiff miscalculated his total amount due in his answers to the Court’s Sixth Interrogatory.  Defendant notes that, because his work hours lessened after March 6, 2011, Plaintiff’s math is wrong about the total amount he is due. Defendant cites to Doc. 17-3 at 41-42 for support of its argument.
Plaintiff’s Response:  Doc. 20 (the same document as Doc. 17-3, at 41-42) is an accounting of the Plaintiff’s time and specifies the times he claims he worked without compensation.  It was filed explicitly about the Court’s Interrogatory Number 6 about Plaintiff’s claimed hours.
Doc. 20 makes it clear that after March 6, 2011, Plaintiff’s hours lessened.  The fact that Plaintiff voluntarily disclosed this document and he recognizes his claims are for less after March 2011 should be to his credit.  Doc. 20 does not claim 70 hours worked after March 6, 2011.  Thus, Plaintiff is very up-front regarding the amount he worked and is claiming in this case.  He is not claiming he always did more than 70 hours, as evident from the “Weekly Work Ticket” time records he voluntarily produced (Doc. 20) and the other documents Plaintiff had.
Defendant’s argument rests upon Plaintiff’s answers to the Court’s Interrogatories and that they sum incorrectly; however, an examination of the same explains how the Plaintiff possibly made a mathematical error.  Interrogatory 6(a) asked for the dates he worked, and Plaintiff answered that his work ended October 28, 2011.  Working through October 2011 is consistent with the time claimed Plaintiff in Doc. 20.  Interrogatory 6(b) asked for Plaintiff’s regular hours worked.  Plaintiff stated that it was 70 hours because this was his regular schedule for the vast majority of his employment, as further demonstrated by Doc. 20.   Thus, the actual answers to 6(a) and 6(b) are accurate; that his work ended in October 2011, and his regular schedule was 70 hours a week.
Plaintiff’s mathematical error was by simply multiplying his answer to 6(a) and 6(b) to sum his total claimed, without accounting for his reduced hours from March 6, 2011, as clearly disclosed by him in Doc. 20.  Thus, this was an apparent mathematical issue because Doc. 20 was also produced with specific reference to Interrogatory 6. Plaintiff’s Interrogatory Answers do not specifically claim that he worked 70 hours a week from March to October 2011, and the Defendant should have taken the Doc. 20 filing to be proof of clarification on this issue.
Notably, Plaintiff’s Doc. 20 filing was made by Plaintiff voluntarily to clarify his claims in this case and be clear to the Court about his hours claimed.   Defendant correctly points out that the Plaintiff has been very forthcoming that his hours reduced after March 2011 – its only qualm is that the Plaintiff made a mathematical error in calculating the total owed in his interrogatory responses.
A direct reading of Doc. 20 makes Plaintiff’s claims crystal clear – and if it did not Defendant should have only pointed out the mathematical error so an amendment could be made.  To that end, this is an issue more appropriately addressed in a good faith conference between counsels – not a Motion for Sanctions (as discussed below).  Moreover, this case is in a very early stage, and discovery is ongoing.  As with almost all employment/labor cases, the employer is typically in control of the relevant records.
Defendant’s Fourth Allegation:
Defendant’s fourth allegation (as made in Paragraphs 16 and 17 of its Motion) is that some of the receipts Plaintiff are claiming reimbursement for were before and after the dates he began working for the Defendant.
Plaintiff’s Response:   Simply because the Plaintiff lent the Defendant money or provided resources to Defendant’s business outside the period he was working for Defendant does not automatically invalidate those claims.  Plaintiff also lived at Defendant’s premises, which aptly explains his continued contact with Defendant before and after his employment ceased.  Because Plaintiff had contact with Defendant and Defendant’s business both before and after Plaintiff worked there, it is reasonable that some of his claims for unjust enrichment (i.e., lending money or resources to Defendant) may fall outside that period he was employed.
DEFENDANT IS IN VIOLATION OF THE COURT’S ORDER – NOT PLAINTIFF

  Plaintiff has provided the Defendant with a significant amount of information and documentation about his claims, including a detailed accounting of his time claimed via Doc. 20.   Plaintiff even attempted to go above and beyond what is mandated by the Court’s FLSA Scheduling Order by sharing various documents supporting his unjust enrichment and related claims. 

As for the Defendant, the Court’s FLSA Scheduling Order (Doc. 4) also Orders him to act.  It requires him to “serve on Plaintiff and file with the Court a Verified Summary of all hours worked by Plaintiff during each relevant week, the rate of pay and wages paid, including overtime pay, if any.” Additionally, it requires that the “Defendant shall also serve on Plaintiff (but not file) a copy of all timesheets and payroll records that support or relate to the periods in the Verified Summary.” Defendant has not complied with either of these obligations.
Instead of attempting to comply with this Court’s Order (Doc. 4), Defendant has filed the instant Motion for Sanctions as a red herring to divert the Court from Defendant’s noncompliance.  Notably, the Defendant’s Motion for Sanctions was filed on the same day he was required to comply with the Court’s Order (August 23, 2012). See Doc. 16. To this date, Defendant has neither served nor filed a Verified Summary of hours worked.   He has also failed to provide any timesheets or payroll records to Plaintiff.

  • MEMORANDUM OF LAW

As discussed below, Section 1927 sanctions only apply to the multiplication of legal proceedings for improper purposes.  Even if all of Defendant’s arguments are accepted as accurate, Section 1927 Sanctions are inappropriate given the sole fact that this case only just began, and no “improper purposes” have even been alleged by the Defendant.  Thus, Defendant’s Motion is frivolous and sanctionable, as it has itself vexatiously multiplied these proceedings.  Even more troubling, as explained below, is the Defendant’s strategic use of a sanctions motion as a red herring for its contempt of this Court’s FLSA Scheduling Order.

  • A.    SECTION 1927 SANCTIONS 

ARE NOT PROPER AGAINST PLAINTIFF 
Other than its reference to Rule 11 in footnote 1 of its Motion (which is discussed below), Defendant does not bring its Motion under Rule 11 of the Federal Rules of Civil Procedure.  Thus, because he did not satisfy the Rule 11 prerequisites, Defendant cannot assert the mere absence of a viable legal or factual theory as grounds for sanctions – it must establish the multiplication of legal proceedings for improper purposes.
A substantial claim of more than a lack of merit is required to support sanctions under Section 1927. 28 U.S.C. § 1927; Amlong & Amlong, P.a. v. Denny’s, Inc., 500 F.3d 1230, 1241 (11th Cir.2007). Moreover, to establish that an attorney’s conduct was “unreasonable and vexatious,” the conduct must have a manifold affect on court processes, Peterson v. B.M.I. Refractories, 124 F.3d 1386, 1396-97 (11th Cir. 1997),  causing the multiplication of proceedings by abusive discovery tactics, the reassertion of meritless claims, and any other conduct resulting in the lengthening of trial proceedings. Browning v. Kramer, 931 F.2d 340, 345 (5th Cir. 1991).
None of these factors are present in this case as discovery has not even begun.  In good faith and full compliance with the Court’s FLSA Scheduling Order, the Plaintiff has shared a detailed schedule of the times he is claiming.  He filed his summary (Doc. 20) after his initial interrogatory answers were filed to clarify his claims and come to an early resolution of this matter.  Opposite of multiplying these proceedings, Plaintiff is trying to expedite the case by making all the initial disclosures possible.  Moreover, as to the merits of Plaintiff’s claims, it is notable that Doc. 20 is even signed by witnesses who agree to these hours worked.   (See the signatures present in the filing attached to Doc. 20).  Thus, his claims have support from independent witnesses.
It is unclear why the Defendant believes that filing Doc. 20 was inappropriate or why Defendant’s counsel discouraged it from being filed, especially in light of the Court’s Order inviting the same.  The defendant should have wanted to see a detailed accounting of the hours Plaintiff claims; not discourage Plaintiff from providing information about his rights. The only conceivable reason Defendant would prevent Plaintiff from filing Doc. 20 is so that it could later claim (in a motion for sanctions, such as the instant) that it does not know what Plaintiff is claiming. Plaintiff’s filing of Doc. 20 spoiled this effort.
Even assuming Plaintiff’s claims lacked merit. It would not support sanctions under Section 1927. Defendant has not alleged improper purposes or pointed to any proceedings that were multiplied. There is simply no basis under Section 1927 for sanctions. Defendant’s arguments regarding the quantity of Plaintiff’s damages are more appropriate for a summary judgment motion or trial – not a Section 1927 motion.

  • B.    LACK OF GOOD FAITH CONFERENCE

Consistent with the fact that the Defendant does not include a 3.01(g) Certificate with its Motion, Defendant did not engage in a good faith conference before filing its Motion. Merely sending the undersigned threatening emails claiming generalities such as “inconsistencies” is not conferring in good faith.  Instead of sharing all of the alleged details of such inconsistencies (such as mathematical errors, which would be easily corrected or clarified), Defendant sent unspecific emails filled with generalities to “set up” its strategy to employ a sanctions motion.   Moreover, Defendant’s counsel never spoke with the undersigned about these issues before filing its Motion for Sanctions.  This is not a good-faith conference, especially in light of the magnitude of the relief sought.[4]
Here, Defendant was intentionally unspecific about Plaintiff’s alleged “internal inconsistencies” in its two emails – this was a strategy designed to pretend to confer in good faith without actually providing any real, specific information.  Moreover, the other issues raised by the Defendant should have been discussed before moving for such extreme sanctions.  Defendant simply did not confer in good faith and engaged in a good-faith exchange of thoughts before proceeding for the most severe sanctions.

  • C.    PLAINTIFF IS DUE ATTORNEYS FEES AND COSTS FROM DEFENDANT AND ITS COUNSEL

 

            Defendant has filed a baseless motion for sanctions and has completely failed to comply with this Court’s FLSA Scheduling Order.  Instead of permitting the process outlined in the FLSA Scheduling Order to aid the parties in early resolution of this matter, Defendant and its counsel have refused to comply with the Scheduling Order and are thus in contempt. They have failed to file a verified summary with the Court, they have been unable to disclose the Plaintiff’s timesheets or employment records. They have stalled the mandatory settlement discussions required by this Court’s FLSA Scheduling Order.
Furthermore, Defendant’s counsel has used great imagination and creativity to invent arguments that Plaintiff’s claims are somehow frivolous or inconsistent.  Included in these attempts are such acts as:

  1.  essentially misquoting the Plaintiff by leaving out a critical part of his statement,

 

  1.  failing to advise the Court that Plaintiff’s claims could constitute a claim for “waiting time” instead of intentionally taking his statement out of context,

 

  1. quarreling over minor alleged “inconsistencies” such as Plaintiff’s start date, despite that the disputed time frame was only a month in the year 2008,

 

  1. moving for sanctions over admittedly moot issues, such as Plaintiff’s start date (admitted as moot by Defendant in footnote 5 of its Motion) and Plaintiff’s Doc. 17 filing (fully addressed by the Court via Doc. 19),

 

  1. claiming that a transparent mathematical calculation was fraudulent (although the underlying “data” was readily produced to Defendant via Doc. 20), and

 

  1. not advising the Court of all facts readily available to Defendant and its counsel, such as that Plaintiff’s contact with the Defendant and that his business extended beyond the time frame Plaintiff worked for Defendant.

 
Moreover, even if all of Defendant’s generalized allegations are true (that Plaintiff’s damages claims are frivolous, lack factual support, are inconsistent, or that his claims are exaggerated), none of these allegations would justify a conclusion that these proceedings were multiplied or that Plaintiff’s counsel acted in bad faith and with an improper motive.  All of Defendant’s arguments are regarding the amount Plaintiff is owed.
Parties and lawyers who pursue first-resort sanctions practice have been placed on notice of the risk of being fined themselves in a number of court decisions.   E.g. Safe-Strap Co., Inc. v. Koala Corp., 270 F. Supp. 2d 407, 421 (S.D.N.Y. 2003) (“. . . [t]he filing of a motion for sanctions is itself subject to the requirements of [Rule 11] and can lead to sanctions,” citing Fed.R.Civ.P. 11’s advisory committee’s note; “Thus, where a party’s motion for Rule 11 sanctions is not well-grounded in fact or law or is filed for an improper purpose, a court may find itself in the position of imposing Rule sanctions on the moving party and/or her attorney”).
The Court in Alliance to End Repression v. City of Chicago, 899 F.3d 582, 583 (7th Cir. 1990) ruled, in denying a Rule 11 motion against the defendant City, that “[i]t is essential to maintain the line between vigorous advocacy (which the City engaged in) and frivolous conduct. Hair-trigger motions for sanctions by lawyers who do not recognize this difference are themselves sanctionable.” The Eleventh Circuit has similarly observed that it will “look with disfavor on a party’s use of Rule 11 or the ethical rules as combative tools.” Autrey v. U.S., 889 F.2d 973, 986 (11th Cir. 1989).
Here, Defendant has looked first to a motion for sanctions rather than squarely confronting the Plaintiff’s claims or conferring in good faith as required by L.R. 3.01(g).   Defendant even ignored the 21-day safe harbor of Rule 11 before bringing a sanctions motion, which is – at best – directed to the amount of the Plaintiff’s damages.  Discovery, in this case, has not even begun.  Defendant essentially claims that Plaintiff and his counsel are misbehaving, while at the same time, he and his counsel failed to comply with the Court’s FLSA Scheduling Order. Ironically, in so moving for sanctions, the Defendant itself has multiplied these proceedings – with the improper purpose of distracting the Court from its noncompliance and increasing the costs associated with this matter.  Thus, the Plaintiff is due to his attorneys’ fees and expenses from the Defendant and his counsel.

  • D.   DEFENDANT IS INDISPUTABLY IN 

VIOLATION OF THIS COURT’S SCHEDULING ORDER
Defendant’s counsel has used a motion for sanctions as a red-herring to distract the Court from the Defendant’s acts of contempt. Defendant’s counsel utilized a law governing the multiplication of proceedings to argue that this case’s proceedings (which have just begun) have been vexatiously multiplied.   Instead of abiding by its duty to comply with the Court’s FLSA Scheduling Order (Doc. 4), the Defendant instead filed the instant Motion for Sanctions.
Defendant has not even attempted to comply with the FLSA Scheduling Order – nor has the Defendant moved the Court to excuse the noncompliance.  Thus, attorneys’ fees and costs are due to Plaintiff for having to defend against Defendant’s tactical use of Section 1927 and violation of this Court’s FLSA Scheduling Order.

  • E.     DEFENDANT IMPROPERLY REQUESTED RULE 11 SANCTIONS

In an attempt to ignore Rule 11’s safe harbor rules but still invoke Rule 11, Defendant added footnote 1 to its Motion stating that Rule 11 Sanctions should be awarded sua sponte.  Despite Defendant’s subsequent claim that this is somehow not a request for Rule 11 Sanctions, it is – except without compliance with Rule 11’s safe harbor provisions.  Defendant has invented an attempted end-around Rule 11, by employing the following tactic:

  1. Sending an email or two to the undersigned generally stating that the Plaintiff’s claims are without merit and “inconsistent,” and [5]

 

  1. Requesting Section 1927 Sanctions early in a case, this time disclosing the essential specifics, and stating that Rule 11 sanctions are proper “sua sponte” in a footnote and via the Court’s inherent powers.

 
The above litigation tactic both controverts the purpose of a good-faith conference and is an apparent attempt to avoid Rule 11’s safe harbor requirement.  In all reality, Defendant has requested Rule 11 sanctions be imposed – even if it includes the language “sua sponte” in its request to try to avoid the safe harbor requirements.  
Defendant failed to comply with the 21-day safe harbor requirement of Rule 11, and for that reason alone, its Rule 11 sanction request must be denied.  Service of the proposed Motion itself is required to invoke Rule 11, and the 21-day safe harbor requirement is mandatory.[6]   Defendant initiated the specter of sanctions, not the Court.
Moreover, Defendant has not demonstrated that Plaintiff’s claims are meritless or frivolous.  Here, as previously mentioned in Section II above, the Defendant’s claims against Plaintiff fall within four general categories.  As to the first issue raised (i.e., Section II. a. above), Defendant failed to explain why Plaintiff’s claim for time worked do not qualify as compensable waiting time per the Department of Labor’s Fact Sheet #22 or prove that Plaintiff did not use the hours claimed.  Indeed, as to the hours claimed, Plaintiff has obtained independent witnesses signatures agreeing that Plaintiff worked these hours (See the signatures noted on Doc. 20 itself).
As to whether Plaintiff started in September or October 2008, the second issue raised (i.e., Section II. b. above), that is immaterial as admitted by the Defendant himself.  On the third issue raised (i.e., Section III. c. above), Plaintiff’s claimed hours were spelled out in Doc. 20, and a mathematical error in his Interrogatory answers does not render those claims meritless or in any way mean they were not worked (or “engaged to wait”).   On the fourth issue raised (i.e. Section IV, d. above), Plaintiff’s claims that he lent money to Defendant outside the time period he worked for Defendant are easily explained by the fact that he indisputably had contact with Defendant outside the time frame he worked.
Even if Plaintiff’s claims were proven meritless, any doubts as to whether Rule 11 has been violated should be resolved in favor of the party who signed the pleading. See Great Lakes Reinsurance (U.K.) P.L.C. v. Blue Sea, L.L.C., 2006 WL 2471522 (M.D. Fla. 2006).  Moreover, in considering sua sponte Rule 11 sanctions, the Court must apply “a higher standard . . . then in the case of party-initiated sanctions.” Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003).  Sanctions cannot be imposed sua sponte unless counsel has engaged in conduct “akin to contempt.” Id.
Finally, as Plaintiff has been forced to defend against Defendant’s Rule 11 request (albeit “sua sponte”), Plaintiff is entitled to fees and costs for opposing the request.  The Notes of Advisory Committee to Rule 11 make it clear no cross-motion is required:
As under former Rule 11, the filing of a motion for sanctions is itself subject to the requirements of the rule and can lead to sanctions. However, service of a cross-motion under Rule 11 should rarely be needed since under the revision the Court may award to the person who prevails on a motion under Rule 11—whether the movant or the target of the Motion—reasonable expenses, including attorney’s fees, incurred in presenting or opposing the Motion.
 
(e.s.).  Defendant cannot avoid the award of fees and costs by claiming it cleverly asked for only Rule 11 sanctions “sua sponte” but, had it complied with the safe harbor, it would be vulnerable.  Otherwise, the 21-day safe harbor provision would be meaningless and litigants would always simply note that “sua sponte” sanctions are appropriate without themselves complying with Rule 11.
Consistent with the Committee Notes to Rule 11, Courts have awarded fees for opposing Rule 11 type motions when the procedural requirements to Rule 11 were not satisfied.  See, e.g., In re Kirk-Murphy Holding, Inc., 313 B.R. 918, 921 (N.D.Fla. 2004) (when interpreting bankruptcy rule 9011, which is nearly identical to Rule 11, the Court awarded fees and costs “Since the alleged debtor blatantly disregarded the clear and simple procedural guidelines outlined in Rule 9011(c), I award Taco Bell, as the prevailing party and pursuant to Rule 9011, reasonable attorney fees and expenses incurred in opposing this motion.”).  This case should be no exception.
F. DEFENDANT’S MOTION IS ALSO AN ATTEMPT TO CIRCUMVENT RULE 56
 
Defendant’s Motion requests the severe sanction of the dismissal of the Plaintiff’s.  However, motions for sanctions should not be used as a replacement for a Rule 56 motion.  As noted by Rule 11’s Committee Notes:
The provision in the original rule for striking pleadings and motions as a sham and false has been deleted. Motions under this provision generally present issues better dealt with under Rules 8, 12, or 56.
 
(e.s.).  Thus, similar to its circumvention of the safe harbor requirements of Rule 11 and the Good Faith requirements of Local Rule 3.01(g), Defendant is also attempting to circumvent Rule 56 via its Motion for Sanctions without filing any evidence of its own.
WHEREFORE, Plaintiff respectfully requests that the Court deny the Defendant’s Motion, that the Court award Plaintiff’s counsel attorneys’ fees and costs from both Defendant and his counsel (including via Section 1927, Rule 11 and per the Court’s inherent authority), that Defendant’s recently filed answer and affirmative defenses be struck as a sanction for violating the Court’s FLSA Scheduling Order, that Defendant, and its counsel be held in contempt for failing to comply (or even address) the mandates in the FLSA Scheduling Order and all other relief deemed necessary and proper.
Respectfully submitted,
Dated: August 26, 2012                            /s/  Michael Massey

[1] It should be noted that previously struck Doc. 17-3, pages 38-42 (the “Weekly Work Ticket”) is the same as that filed via Doc. 19.
[2] Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA). Available online here: https://www.dol.gov/whd/regs/compliance/whdfs22.pdf
 
[3] Available online at https://hrtrainingcenter.com/readArticle.asp?AID=1000063.
[4] See Hughes v. State Farm Fire & Casualty Co., 2003 WL 23220577, at *2, n.2 (S.D. Ala. November 3, 2003) (Simply corresponding with opposing counsel has not considered a good-faith attempt to confer or have a conference to resolve disputes); Royal Bahamian Ass’n, Inc. v. Q.B.E. Ins. Corp., 744 F. Supp. 2d 1297, 1299, n.2 (S.D. Fla. 2010) (stating that “[i]n order to ‘confer,’ a movant must have a give-and-take exchange with opposing counsel. Sending an email and demanding an immediate or near immediate response and then filing a motion before having an actual substantive discussion with opposing counsel does not amount to a conference or consultation. Instead, it is a one-way missive.”); Williams v. Board of Cnty. Comm’rs, 192 F.R.D. 698, 700 (D. Kan. 2000) (noting that under Federal Rule of Civil Procedure 37 and local rules a “reasonable effort to confer means more than mailing a letter to opposing counsel. It requires that counsel converse, confer, compare views, consult, and deliberate.”).
[5] Here, the only “real” information Defendant shared in its emails was in relation to the Plaintiff’s unjust enrichment claim, including damages from outside the period he worked.  As discussed, this allegation is nonsensical because Plaintiff’s contact with Defendant includes the time frame both before and after he worked for Defendant (as Plaintiff also lived at Defendant’s premises).
 
[6] See Miller v. Credit Collection Serv., 200 F.R.D. 379, 381 (S.D.Ohio 2000); Weeks Stevedoring Co., Inc. v. Raymond Int’ l Builders, 174 F.R.D. 301, 305 (S.D.N.Y.1997);  Barber v. Miller, 146 F.3d 707, 710 (9th Cir.1998);  Dearborn Fin. Serv. Corp. v. Heath, 1999 WL 1011860, *1, *5 (N.D.Ill.1999) (a warning letter does not trigger the safe harbor window and does not substitute formal service of a Rule 11 motion); VanDanacker v. Main Motor Sales Co., 109 F.Supp.2d 1045, 1054-55 (D.Minn.2000) (rejecting sanctions under Rule 11 as procedurally defective when only warning letters were sent to the opposing party).

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