Nahmod Law

Two recent circuit court decisions, one from the Sixth Circuit and the other from the Fifth, are examples of the relatively few situations in which attorneys are sanctioned under Rule 11 of the Federal Rules of Civil Procedure..

Rule 11 Sanctions

Recall that Rule 11 imposes sanctions, including expenses and attorney’s fees, on attorneys and clients alike for its violation. In relevant part, Rule 11 requires attorneys to sign all pleadings, motions and other papers and thereby certify that the signer has read the document, has conducted a reasonable inquiry into the facts and the law, is satisfied that the document is well-grounded in both, and is not acting with an improper motive. Specifically, the facts must “have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” The legal position must be “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.”

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Election Conspiracy in the Sixth Circuit

In King v. Whitmer, 71 F.4^th 511 (6^th Cir. 2023), three Michigan voters and three Republican nominees to the electoral college unsuccessfully sued in an attempt to overturn the results of Michigan’s presidential election which went for Joe Biden. The district court, finding the entire complaint sanctionable, awarded sanctions against the plaintiffs’ attorneys jointly and severally under Rule 11 and 28 U.S.C. § 1927.

On appeal, the Sixth Circuit, modifying the district court’s sanctions, upheld only those sanctions relating to allegations respecting a Venezuelan conspiracy and Dominion voting machines: those claims were entirely baseless. The same was true for the allegations regarding the ease with which Dominion’s voting systems could be hacked: plaintiffs’ own exhibits refuted these allegations. Also, a reasonable pre-filing investigation would have shown that other allegations about the use of Dominion in certain counties were baseless. Further, allegations regarding an expert’s report misrepresented that report, and that was sanctionable as well. Finally, “the affidavits cited in the complaint did not afford counsel a credible basis to allege that ‘tens of thousands’ of fraudulent votes were counted…”

The Sixth Circuit then awarded the City of Detroit $132,810.62 in fees and awarded various state defendants $19,639.75 in fees.

Persisting in Frivolous Arguments in the Fifth Circuit

In Cordova v. University Hospital & Clinics, 2024 WL 356464, *5 (5^th Cir. 2024), the Fifth Circuit affirmed the district court’s imposition of Rule 11 sanctions of $29,100 against an attorney in a § 1983 case involving the non-renewal of her client’s residency, and rejected her First Amendment contention that she was making novel arguments.

The Fifth Circuit explained:

“[She] was not sanctioned because her novel arguments were frivolous, but because it was frivolous to continue to make the rejected novel arguments. … The [district court] on three separate occasions ruled that the underlying claims were meritless, regardless of who employed [the plaintiff]. Therefore, continuing to argue who was [plaintiff’s] actual employer would not change that.” In addition, the defendants were entitled to damages under Federal App. Rule 38 because this appeal itself was frivolous.

Comment

Sanctions against attorneys under Rule 11 are discussed in §§1:47 and 10:52 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).