Nawrocki v . Wilson, et a l . 10-CV-304-SM 09/28/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Dr. Steven P. Nawrocki, Plaintiff
v. Civil N o . 10-cv-304-SM Opinion N o . 2010 DNH 168 Donald W . Wilson; Margaret R. Wilson; Firoze Katrak; Katrak Trust; Shankhassick Shorefront Association, Inc.; Cheney-England Limited Partnership; Walter Cheney; Brand Revocable Trust; Gerhard K. Brand; Ingeburg C . Brand; and the State of New Hampshire LCIP Program; Defendants
O R D E R
Pending before the court are two motions for sanctions filed
by plaintiff, Steven Nawrocki, as well as Nawrocki’s motion for a
hearing, and a motion for sanctions filed by defendants Gerhard
Brand, Ingeburg Brand, and the Brand Revocable Trust
(collectively “the Brand defendants”). All four motions are
denied.
Nawrocki does not specify (document n o . 14) either the
sanction he is seeking, or the party against whom he seeks to
have sanctions imposed. He alleges that Malcolm McNeill, Esq.,
the attorney representing Firoze Katrak and the Katrak Trust
(hereinafter “the Katrak defendants”) represented both the
Shankhassick Shorefront Association, Inc. (“the Association”) and the Katrak defendants in the past. He also alleges that Attorney
McNeill failed to properly serve the other defendants (with what,
Nawrocki does not s a y ) . Beyond that, the motion is unclear, and
identifies no legal basis for the sanctions Nawrocki seeks.
Presumably because Nawrocki’s motion mentions their attorney, the
Katrak defendants object to i t . For the reasons given in that
objection, Nawrocki’s first motion for sanctions is denied.
Nawrocki’s motion for a hearing (document n o . 24) sheds some
light on his first motion for sanctions and suggests that he is
concerned about some sort of conflict of interest. As with the
first motion for sanctions, the motion for a hearing is unclear.
Beyond that, it is laced with inappropriate comments directed
toward Attorney McNeill. Even when Nawrocki’s motion is read
with a full measure of indulgence, see Johnson v . Rodriguez, 943
F.2d 104, 107 (1st Cir. 1991) (“In interpreting the complaint
before u s , we construe it liberally in an effort to accommodate a
pro se litigant.”), it does not raise any conflict-of-interest
issue, and identifies no basis for disqualifying Attorney McNeill
from representing the Katrak defendants. Nawrocki’s motion for
hearing is also denied, as a hearing on the motion would not be
productive.
2 Nawrocki also filed a pleading titled “Plaintiff’s motion
for sanctions due to conflict of interest” (document n o . 3 7 ) . He
appears to object to “attorney John J. Ratigan’s involvement with
the Association.” (Pl.’s Mot. for Sanctions, at 1.) More
specifically, he asks the court to bar Ratigan “from representing
the Association in neutral thought process such as has been
requested by multiple members who seek mediation in this matter”
because Ratigan was once “involved” with defendants Walter Cheney
and the Cheney-England Limited Partnership. The Association
objects. For the reasons given in that objection, and because
the court cannot understand what Nawrocki seeks,1 Nawrocki’s
second motion for sanctions is denied.
The Brand defendants move for sanctions (document n o . 38)
against Nawrocki, on grounds that Nawrocki’s response to their
motion for a more definite statement (document n o . 27) violates
Rule 11 of the Federal Rules of Civil Procedure. In particular,
they seek sanctions for Nawrocki’s statements or suggestions that
Gerhard Brand committed war crimes while serving in the German
Army during World War I I , and that he sexually assaulted
1 It may be – although it is not clear – that Nawrocki is objecting to the Association’s use of Ratigan to mediate a dispute between the Association’s “hillsiders” and “wetlanders. If that is indeed Nawrocki’s point, the court is without authority to determine who the Association engages to mediate a dispute among its members.
3 Nawrocki’s wife. At the heart of this matter are two documents
filed by Nawrocki. The first, an exhibit to his complaint, is an
e-mail he sent to Gerhard and Ingeburg Brand’s daughters in
response to a letter they sent him seeking recompense for tree
cutting Nawrocki had done on their parents’ property. In his e-
mail, Nawrocki accused Gerhard Brand of sexually assaulting his
(Nawrocki’s) wife. The second document is an affidavit by John
Allen in which Allen says Gerhard Brand told him about war-time
incidents that he (Allen) interpreted as constituting Nazi war
crimes Brand committed but now regrets. The Brand defendants ask
the court to order Nawrocki to withdraw his statements about
Gerhard Brand’s military service and the alleged sexual assault,
and to pay attorney’s fees they incurred in defending against
that irrelevant and defamatory material. Nawrocki objects to the
motion for sanctions.
Rule 11(c) provides for the imposition of sanctions against
attorneys, law firms, and parties that violate Rule 11(b). Under
Rule 11(b), presentation of any paper to the court constitutes a
certification by the person submitting the paper that “it is not
being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of
litigation.” F E D . R . C I V . P . 11(b)(1). Rule 11 also provides,
however, that a motion for sanctions “must not be filed or
4 presented to the court if the challenged paper . . . is withdrawn
or appropriately corrected within 21 days after service . . . .”
F E D . R . C I V . P . 11(c). Because the Brand defendants have not
complied with the Rule 11 “safe harbor” provision, by serving
their motion on Nawrocki twenty-one days before presenting it to
the court, their motion for sanctions must be denied. See Ridder
v . City of Springfield, 109 F.3d 288, 297 (6th Cir. 1997)
(“sanctions under Rule 11 are unavailable unless the motion for
sanctions is served on the opposing party for the full twenty-one
day ‘safe harbor’ period before it is filed with or presented to
the court”); Truesdell v . S . Cal. Permanente Med. Grp., 293 F.3d
1146, 1152 (9th Cir. 2002) (“the safe-harbor period is
mandatory”); Arias v . U . S . Immig. & Customs Enforcement Div.,
Civ. N o . 07-1959 A D M / J S M , 2009 W L 2900315, at * (D. Minn. Sept.
2 , 2009) (“Rule 11 motions failing to follow this procedure
[i.e., the ‘safe-harbor’ requirement] have routinely been
dismissed in this district”) (citations omitted).
That portion of Nawrocki’s e-mail that accuses Gerhard Brand
of sexual assault, and that portion of the Allen affidavit that
refers to Gerhard’s military record, are plainly irrelevant; they
offer nothing related to Nawrocki’s claims against the Brand
defendants. Similarly irrelevant are the references Nawrocki
makes in his pleadings to the alleged sexual assault and Gerhard
5 Brand’s war record. Not only are the e-mail and affidavit (and
references to the allegations contained therein) completely
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Nawrocki v . Wilson, et a l . 10-CV-304-SM 09/28/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Dr. Steven P. Nawrocki, Plaintiff
v. Civil N o . 10-cv-304-SM Opinion N o . 2010 DNH 168 Donald W . Wilson; Margaret R. Wilson; Firoze Katrak; Katrak Trust; Shankhassick Shorefront Association, Inc.; Cheney-England Limited Partnership; Walter Cheney; Brand Revocable Trust; Gerhard K. Brand; Ingeburg C . Brand; and the State of New Hampshire LCIP Program; Defendants
O R D E R
Pending before the court are two motions for sanctions filed
by plaintiff, Steven Nawrocki, as well as Nawrocki’s motion for a
hearing, and a motion for sanctions filed by defendants Gerhard
Brand, Ingeburg Brand, and the Brand Revocable Trust
(collectively “the Brand defendants”). All four motions are
denied.
Nawrocki does not specify (document n o . 14) either the
sanction he is seeking, or the party against whom he seeks to
have sanctions imposed. He alleges that Malcolm McNeill, Esq.,
the attorney representing Firoze Katrak and the Katrak Trust
(hereinafter “the Katrak defendants”) represented both the
Shankhassick Shorefront Association, Inc. (“the Association”) and the Katrak defendants in the past. He also alleges that Attorney
McNeill failed to properly serve the other defendants (with what,
Nawrocki does not s a y ) . Beyond that, the motion is unclear, and
identifies no legal basis for the sanctions Nawrocki seeks.
Presumably because Nawrocki’s motion mentions their attorney, the
Katrak defendants object to i t . For the reasons given in that
objection, Nawrocki’s first motion for sanctions is denied.
Nawrocki’s motion for a hearing (document n o . 24) sheds some
light on his first motion for sanctions and suggests that he is
concerned about some sort of conflict of interest. As with the
first motion for sanctions, the motion for a hearing is unclear.
Beyond that, it is laced with inappropriate comments directed
toward Attorney McNeill. Even when Nawrocki’s motion is read
with a full measure of indulgence, see Johnson v . Rodriguez, 943
F.2d 104, 107 (1st Cir. 1991) (“In interpreting the complaint
before u s , we construe it liberally in an effort to accommodate a
pro se litigant.”), it does not raise any conflict-of-interest
issue, and identifies no basis for disqualifying Attorney McNeill
from representing the Katrak defendants. Nawrocki’s motion for
hearing is also denied, as a hearing on the motion would not be
productive.
2 Nawrocki also filed a pleading titled “Plaintiff’s motion
for sanctions due to conflict of interest” (document n o . 3 7 ) . He
appears to object to “attorney John J. Ratigan’s involvement with
the Association.” (Pl.’s Mot. for Sanctions, at 1.) More
specifically, he asks the court to bar Ratigan “from representing
the Association in neutral thought process such as has been
requested by multiple members who seek mediation in this matter”
because Ratigan was once “involved” with defendants Walter Cheney
and the Cheney-England Limited Partnership. The Association
objects. For the reasons given in that objection, and because
the court cannot understand what Nawrocki seeks,1 Nawrocki’s
second motion for sanctions is denied.
The Brand defendants move for sanctions (document n o . 38)
against Nawrocki, on grounds that Nawrocki’s response to their
motion for a more definite statement (document n o . 27) violates
Rule 11 of the Federal Rules of Civil Procedure. In particular,
they seek sanctions for Nawrocki’s statements or suggestions that
Gerhard Brand committed war crimes while serving in the German
Army during World War I I , and that he sexually assaulted
1 It may be – although it is not clear – that Nawrocki is objecting to the Association’s use of Ratigan to mediate a dispute between the Association’s “hillsiders” and “wetlanders. If that is indeed Nawrocki’s point, the court is without authority to determine who the Association engages to mediate a dispute among its members.
3 Nawrocki’s wife. At the heart of this matter are two documents
filed by Nawrocki. The first, an exhibit to his complaint, is an
e-mail he sent to Gerhard and Ingeburg Brand’s daughters in
response to a letter they sent him seeking recompense for tree
cutting Nawrocki had done on their parents’ property. In his e-
mail, Nawrocki accused Gerhard Brand of sexually assaulting his
(Nawrocki’s) wife. The second document is an affidavit by John
Allen in which Allen says Gerhard Brand told him about war-time
incidents that he (Allen) interpreted as constituting Nazi war
crimes Brand committed but now regrets. The Brand defendants ask
the court to order Nawrocki to withdraw his statements about
Gerhard Brand’s military service and the alleged sexual assault,
and to pay attorney’s fees they incurred in defending against
that irrelevant and defamatory material. Nawrocki objects to the
motion for sanctions.
Rule 11(c) provides for the imposition of sanctions against
attorneys, law firms, and parties that violate Rule 11(b). Under
Rule 11(b), presentation of any paper to the court constitutes a
certification by the person submitting the paper that “it is not
being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of
litigation.” F E D . R . C I V . P . 11(b)(1). Rule 11 also provides,
however, that a motion for sanctions “must not be filed or
4 presented to the court if the challenged paper . . . is withdrawn
or appropriately corrected within 21 days after service . . . .”
F E D . R . C I V . P . 11(c). Because the Brand defendants have not
complied with the Rule 11 “safe harbor” provision, by serving
their motion on Nawrocki twenty-one days before presenting it to
the court, their motion for sanctions must be denied. See Ridder
v . City of Springfield, 109 F.3d 288, 297 (6th Cir. 1997)
(“sanctions under Rule 11 are unavailable unless the motion for
sanctions is served on the opposing party for the full twenty-one
day ‘safe harbor’ period before it is filed with or presented to
the court”); Truesdell v . S . Cal. Permanente Med. Grp., 293 F.3d
1146, 1152 (9th Cir. 2002) (“the safe-harbor period is
mandatory”); Arias v . U . S . Immig. & Customs Enforcement Div.,
Civ. N o . 07-1959 A D M / J S M , 2009 W L 2900315, at * (D. Minn. Sept.
2 , 2009) (“Rule 11 motions failing to follow this procedure
[i.e., the ‘safe-harbor’ requirement] have routinely been
dismissed in this district”) (citations omitted).
That portion of Nawrocki’s e-mail that accuses Gerhard Brand
of sexual assault, and that portion of the Allen affidavit that
refers to Gerhard’s military record, are plainly irrelevant; they
offer nothing related to Nawrocki’s claims against the Brand
defendants. Similarly irrelevant are the references Nawrocki
makes in his pleadings to the alleged sexual assault and Gerhard
5 Brand’s war record. Not only are the e-mail and affidavit (and
references to the allegations contained therein) completely
irrelevant, those documents and references are potentially
scandalous. Pursuant to Rule 12(f) of the Federal Rules of Civil
Procedure, the court hereby strikes: (1) the e-mail in which
Nawrocki accused Gerhard Brand of sexual assault; (2) the Allen
affidavit that discusses Allen’s interpretation of Brand’s war
record; and (3) all references to either the alleged sexual
assault or Brand’s war record in any of Nawrocki’s pleadings
including, but not limited t o , the complaint and the pleading
titled “Plaintiff’s response to defendant Brands’ conditional
motion for a more definite statement” (document n o . 2 7 ) .
Conclusion
The motions for sanctions (document nos. 1 4 , 3 7 , and 38) are
denied, as is Nawrocki’s motion for a hearing (document n o . 2 4 ) .
The court orders, sua sponte, that the referenced irrelevant and
potentially scandalous material described above be stricken.
SO ORDERED.
September 2 8 , 2010
6 cc: Steven P. Nawrocki, pro se Michael E . Chubrich, Esq. Stephen J. Dibble, Esq. Malcolm R. McNeill, Jr., Esq. Keriann Roman, Esq. Nancy J. Smith, Esq. Christopher A . Wyskiel, Esq.