Morroni v. Gunderson

169 F.R.D. 168, 1996 U.S. Dist. LEXIS 16148, 1996 WL 630998
CourtDistrict Court, M.D. Florida
DecidedOctober 28, 1996
DocketNo. 95-129-CIV-FTM-17
StatusPublished
Cited by13 cases

This text of 169 F.R.D. 168 (Morroni v. Gunderson) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morroni v. Gunderson, 169 F.R.D. 168, 1996 U.S. Dist. LEXIS 16148, 1996 WL 630998 (M.D. Fla. 1996).

Opinion

ORDER ON RULE 11 SANCTIONS

KOVACHEVICH, Chief Judge.

This cause is before the Court on Plaintiffs Motion to Strike Defendants’ Supplemental Motion for Rule 11 Sanctions (Dkt. No. 21), Defendants’ Motion for Rule 11 Sanctions (Dkt. No. 16), and responses.

FACTS

On November 29, 1995, Plaintiffs filed their Second Amended Complaint (Dkt. No. 10) in this case, alleging negligence, breach of fiduciary duty, fraud, RICO violations and vicarious liability. On January 30, 1996, Plaintiffs moved for a voluntary dismissal [170]*170(Dkt. No. 14), which the Court granted on February 5,1996 (Dkt. No. 14).

On April 19, 1996, two months after Plaintiffs voluntarily dismissed the Second Amended Complaint, Defendants filed a Motion for Rule 11 Sanctions (Dkt. No. 16). On April 29, 1996, Plaintiffs filed a Motion for Extension of Time (Dkt. No. 17) asking for ten days to respond to Defendant’s Motion for Rule 11 Sanctions. On May 1, 1996, the Court granted Plaintiffs’ Motion for Extension of Time (Dkt. No. 18). Plaintiffs’ response to Defendants’ Motion for Rule 11 Sanctions was due on May 20,1996.

On May 30, 1996, Defendants filed a Supplemental Motion for Rule 11 Sanctions (Dkt. No. 19). In the Supplemental Motion, Defendants adopted by reference their previous motion (Dkt. No. 16) and indicated that Plaintiffs had failed to file and serve their response to Defendants’ Motion for Rule 11 Sanctions in a timely fashion.1 Also on May 30, 1996, Plaintiffs filed an untimely Memorandum of Law in Opposition to Defendants’ Motion for Rule 11 Sanctions (Dkt. No. 20). Plaintiffs responded to Defendants’ Supplemental Motion with a Motion to Strike (Dkt. No. 21) Defendants’ Supplemental Motion for Rule 11 Sanctions on June 11, 1996. On June 20, 1996, Defendants filed a Memorandum of Law in Opposition to Plaintiffs’ Motion to Strike (Dkt. No. 22).

DISCUSSION

The Court will first address Plaintiffs’ Motion to Strike (Dkt. No. 21) Defendants’ Supplemental Motion for Rule 11 Sanctions (Dkt. No. 19). Defendants point out that motions to strike are governed by Rule 12 of the Federal Rules of Civil Procedure. Rule 12 provides that a court “may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). As this Court has previously stated “[a] motion is not a pleading, and thus a motion to strike a motion is not proper under 12(f).” Weiss v. PPG Industries, Inc., 148 F.R.D. 289, 292 (M.D.Fla.1993). Therefore, the Court denies Plaintiffs’ Motion to Strike (Dkt. No. 21). However, the Court will consider the points raised by Plaintiffs in the motion to strike as a memorandum in opposition to the Defendant’s Supplemental Motion for Sanctions.

The Court now considers Defendants’ Supplemental Motion for Rule 11 Sanctions (Dkt. No. 19). Middle District of Florida Local Rule 3.01(b) provides that “[n]o other briefs or legal memoranda directed to any such written motion shall be filed or served by any party unless requested by the Court.” Middle Dist.Fla.R. 3.01(b). At no time did the Court request Defendants, or grant leave to Defendants, to file a supplemental motion. It was improper for Defendants to file such a motion without seeking leave of court. However, since the only addi[171]*171tional point raised by Defendants’ Supplemental Motion is the Plaintiffs’ failure to file a timely response to Defendants’ Motion for Rule 11 sanctions, the Court will address the untimely response by the Plaintiffs as though the Supplemental Motion had never been filed.

As the Court has noted, Plaintiffs’ response to Defendants’ Motion for Rule 11 sanctions (Dkt. No. 16) was due May 20, 1996, but Plaintiffs did not file their response with the Court until May 30,1996. However, because of the Eleventh Circuit’s strong policy of resolving issues on the merits and not on procedural technicalities, the Court has judicial discretion to overlook Plaintiffs’ untimeliness. Whitehead v. School Board for Hillsborough County, 932 F.Supp. 1396 (M.D.Fla.1996).2

Rule 11 provides that a motion for sanctions “shall be served as provided in Rule 5, but shall not be filed with or present ed to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” Fed.R.Civ.P. 11(c)(1)(A). This provision was made a part of Rule 11 as a result of the 1993 amendments. The reasons for the addition of the 21 day “safe harbor” to Rule 11 were set forth in the Advisory Committee Notes as follows:

These provisions are intended to provide a type of “safe harbor” against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party’s motion unless, after receiving the motion, it refuses to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation. Under the former rule, parties were sometimes reluctant to abandon a questionable contention lest that be viewed as evidence of a violation of Rule 11; under the revision, the timely withdrawal of a contention will protect a party against a motion for sanctions.

The Advisory Committee Notes further point out that “[ojrdinarily the motion should be served promptly after the inappropriate paper is filed, and, if delayed too long, may be viewed as untimely____ Given the “safe harbor” provisions ... a party cannot delay serving its Rule 11 motion until conclusion of the case.... ”

Defendants cite the Supreme Court case of Cooter and Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) for the proposition that district courts retain the authority after a case has been voluntarily dismissed to impose Rule 11 sanctions for violations that occur prior to the voluntary dismissal of an action. However, Cooter and Gell v. Hartmarx Corp. was decided in 1990, three years prior to the 1993 amendments, including the addition of the 21 day “safe harbor” period to Rule 11. Thus, the 1993 amendments to Rule 11 had the effect of overruling Cooter and Gell v. Hartmarx to the extent that under the 1993 version of Rule 11, a party who seeks Rule 11 sanctions based upon allegations in a complaint, cannot wait until the action has been voluntarily dismissed by the opposing party because the party who voluntarily dismisses a case has withdrawn the offending pleading by dismissing the case. Photocircuits Corp. v. Marathon Agents, Inc., 162 F.R.D. 449 (E.D.N.Y.1995). Therefore, it was improper for Defendants to file their Rule 11 motion with the Court.

Additionally, Middle District of Florida Local Rule 3.01(g) requires:

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Bluebook (online)
169 F.R.D. 168, 1996 U.S. Dist. LEXIS 16148, 1996 WL 630998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morroni-v-gunderson-flmd-1996.