Whitehead v. Food Max of MS Inc

308 F.3d 472

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 27, 2003
• Docket: 00-60153
• Status: Published

Opinion

United States Court of Appeals Fifth Circuit F I L E D May 29, 2003 REVISED JUNE 27, 2003 Charles R. Fulbruge III UNITED STATES COURT OF APPEALS Clerk FOR THE FIFTH CIRCUIT

No. 00-60153

BENNIE WHITEHEAD; ET AL.,

Plaintiffs,

versus

FOOD MAX OF MISSISSIPPI, INC.; ET AL.,

Defendants,

K MART CORPORATION,

Defendant-Appellee,

PAUL S. MINOR,

Appellant.

Appeal from the United States District Court for the Southern District of Mississippi

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, and CLEMENT, Circuit Judges.1

RHESA HAWKINS BARKSDALE, Circuit Judge:

1 Judge Prado, who joined our court subsequent to en banc oral argument, did not participate in this decision. Pursuant to Federal Rule of Civil Procedure 11, the district

court sanctioned Paul S. Minor, an attorney, for obtaining a writ

to execute judgment. The primary reason for our en banc review is

to decide whether the district court abused its considerable

discretion in imposing sanctions for Minor’s violation of Rule

11(b)(1) (“improper purpose” in obtaining writ of execution). The

district court acted within its discretion. AFFIRMED.

I.

In May 1997, the district court entered an approximate $3.4

million judgment for Minor’s clients against Kmart Corporation in

an action arising out of heinous acts by two individuals not

associated with Kmart: their abduction of a mother and her

daughter from a Kmart parking lot in Jackson, Mississippi, and the

subsequent rape of the mother. A jury found Kmart negligent in

failing to provide adequate parking lot security. See Whitehead v.

Food Max of Miss., Inc., 163 F.3d 265 (5th Cir. 1998).

At trial, Minor was sanctioned $1,000 for violating, during

his closing argument, an earlier warning by the district court.

Id. at 277 n.3. This followed Minor’s refusals during trial to

follow other court instructions. See id. at 276-77.

In June 1997, shortly after entry of judgment, Kmart moved for

a remittitur or, alternatively, a new trial. See FED. R. CIV. P.

59. In addition, pursuant to Federal Rule of Civil Procedure

62(b), it requested a stay of execution of judgment pending

2 resolution of those post-trial motions. That stay motion was not

decided, however, until 18 August, when the Rule 59 motions were

denied. The accompanying stay motion was then dismissed as moot.

That same day, the district court denied Minor's request to

reconsider the $1,000 sanctions imposed at trial.

Three days later, using a handwritten request he had signed,

Minor obtained from the district court clerk a writ of execution

for the judgment (the writ). In addition, Minor notified the media

about the pending execution. With media representatives and two

United States Marshals, Minor entered the Kmart (the abduction had

occurred in its parking lot) and attempted to execute the judgment

by seizing currency in the cash registers and vault. The seizure

was delayed to allow Kmart’s employees a chance to consult with

their management and attorneys; shortly thereafter, it was stayed

by the district court. No cash was seized.

While at the Kmart, Minor was interviewed by the media; news

reports about the writ-execution, including Minor’s extremely

hyperbolic, intemperate, and misleading comments (improper

comments), were, among other media, broadcast in at least three

television reports. Minor characterized Kmart’s actions as

“arrogan[t]” and “outrageous” and asserted Kmart “wo[uld no]t pay”

the judgment; claimed Kmart had been “warned” before the abduction

that “an event like [that] was going to happen” but “didn’t care”;

charged his clients had been twice “victimized” by Kmart, once by

3 being abducted there and once by Kmart’s “not paying ... a just

debt”; and proclaimed he was there to ensure Kmart did what it was

supposed to do.2

That same day, the district court held a teleconference with

the parties: Kmart was directed to submit a supersedeas bond (it

later did so); and Kmart advised it would seek sanctions against

Minor. Kmart soon moved for sanctions, pursuant, inter alia, to

Rule 11.

Kmart charged Minor had violated an automatic ten-day stay of

execution of judgment, claimed to be in effect pursuant to Federal

Rule of Civil Procedure 62(f), which incorporated Mississippi Rule

of Civil Procedure 62(a). Federal Rule 62(f) provides:

Stay According to State Law. In any state in which a judgment is a lien upon the property of the judgment debtor and in which the judgment debtor is entitled to a stay of execution, a judgment debtor is entitled, in the district court held therein, to such stay as would be accorded the judgment debtor had the action been maintained in the courts of that state.

FED R. CIV. P. 62(f) (emphasis added). Mississippi Rule 62(a)

provides in part:

Automatic Stay; Exceptions. Except as stated herein or as otherwise provided by statute or by order of the court for good cause shown, no execution shall be issued upon a judgment nor

2 It is extremely regrettable that, in the light of Minor's conduct, especially his improper comments, the dissent views “Minor's technique ... [as] colorful to say the least”, Dissent at 11-12, and “perhaps in poor taste”, id. at 14.

4 shall proceedings be taken for its enforcement until the expiration of ten days after its entry or the disposition of a motion for a new trial, whichever last occurs.

MISS. R. CIV. P. 62(a) (emphasis added).

Kmart maintained: pursuant to Mississippi Rule 62(a), a ten-

day stay is automatic in state court after disposition of a new

trial motion; therefore, application of that rule, through Federal

Rule 62(f), resulted in a stay from the 18 August denial of Kmart's

new trial motion. Kmart also asserted: Minor, with “numerous

newspaper reporters and television interview teams”, and without

justification, “paraded through [Kmart] in full view of customers

and employees ... orchestrat[ing] damage to Kmart, its business and

goodwill”; and his “improper purpose” (proscribed by Rule 11(b)(1))

was obvious from these actions. Provided with the motion were

copies of two articles from newspapers in Jackson and another city

in Mississippi and a videotape of television broadcasts about the

attempted execution. These items included Minor's improper

comments.

Minor responded: following denial of the new trial motion,

Kmart had not moved, pursuant to Federal Rule 62(f), for the

Mississippi Rule 62(a) automatic stay; therefore, no stay had been

in effect. (Nothing in the record indicates Minor contended in

district court that the judgment did not constitute a lien against

Kmart’s property (one of the prerequisites for a Federal Rule 62(f)

stay).)

5 Minor also contended: seeking to obtain a portion of the

judgment was not an improper purpose proscribed by Rule 11(b)(1);

and, “where counsel’s action has a reasonable basis under the law,

a court will not find an improper purpose....” Minor's affidavit

stated he attempted execution in order to obtain a portion of the

judgment because: (1) Kmart had not returned his telephone calls

concerning potential settlement; and (2) he was concerned that

Kmart, which he believed to be self-insured, had not posted a

supersedeas bond.

The district court apparently delayed ruling on the sanctions

motion pending Kmart’s appeal from the judgment in the underlying

action. For that appeal, our court held the jury had been

influenced by passion and prejudice resulting from Minor’s closing

argument; the action was remanded in early 1999 for a new trial on

damages. See Whitehead, 163 F.3d at 276-78, 281. That March, in

the light of extensive briefing, oral argument (January 1998), and

painstaking analysis of the authority construing Federal Rule

62(f), the district court ruled on the sanctions motion.

In a well-reasoned opinion, the court concluded: a motion is

not a prerequisite to a stay under Federal Rule 62(f); and Kmart

was protected by the stay against the attempted execution.

Whitehead v. Kmart Corp., 202 F. Supp. 2d 525, 529-32 (S.D. Miss.

1999). Concomitantly, the court concluded that Minor had “failed

to make a reasonable inquiry into the law governing execution of

6 judgments....” Id. at 532. The court also ruled Minor “was

seeking to embarrass [Kmart] and call attention to himself as a

tireless laborer of the bar attempting to obtain justice for his

client when, in fact, there was no basis whatsoever in fact or in

law for the actions taken....” Id. at 533.

Minor was ordered to pay Kmart approximately $8,000 — its

attorney’s fees for opposing the execution. Id. Although Kmart

had requested a public apology by Minor, the district court

determined, and Kmart agreed, that publication of the sanctions

opinion would suffice. Id. (The opinion was published in 2002,

after rendition of the now-vacated panel opinion for this appeal.)

Following the remand-trial on damages, Minor appealed the Rule

11 sanctions. In January 2002, a divided panel reversed them.

Whitehead v. Food Max of Miss., Inc., 277 F.3d 791 (5th Cir.),

vacated by 308 F.3d 472 (5th Cir. 2002) (en banc). (The panel

majority included a district judge and Judge Henry A. Politz, who

authored the opinion. Judge Politz died prior to our deciding to

review this appeal en banc.)

Regarding Rule 11(b)(2) (objective reasonableness of inquiry

concerning existing law), the panel majority held: as a matter of

law, Federal Rule 62(f) does not afford the stay provided by state

law unless the judgment debtor files a motion claiming the stay;

accordingly, no stay was in effect; and the record did not support

7 a conclusion that, before requesting the writ, Minor failed to make

a reasonable inquiry into the governing law. Id. at 794-96.

Concerning Rule 11(b)(1) (improper purpose), the panel

majority held: Minor’s “intentional use of publicity for the

purpose of embarrassing an adversary” was “patently inappropriate”;

but, absent exceptional circumstances, an ulterior motive should

not be read into a document filed for a legitimate purpose; and

“any consequences that ... flow[ed] from such behavior” was a

decision for the state bar. Id. at 796-97 (emphasis added).

The dissent urged that the district court did not abuse its

discretion in concluding independent subparts (b)(1) and (2) were

each violated. Id. at 797-802 (Barksdale, J., dissenting).

Regarding subpart (b)(2), the dissent stated: it was not necessary

to decide, as the majority had, whether a motion is required to

trigger a Federal Rule 62(f) stay; at issue was whether Minor’s

actions were objectively reasonable in the light of then existing

legal authority; and, they were not. Id. at 800-802. As for

subpart (b)(1), the dissent stated: Minor’s “improper purpose”

provided a separate basis for the sanctions; and they were

appropriate in the light of Minor’s media-actions, precisely the

type of conduct Rule 11 is designed to remedy. Id. at 802.

Kmart petitioned for panel rehearing. In September 2002, our

court decided sua sponte to review en banc, thereby vacating the

panel opinion. 308 F.3d 472 (5th Cir. 2002) (en banc).

8 II.

Rule 11(b) provides in pertinent part:

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney ... is certifying 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 or to cause unnecessary delay or needless increase in the cost of litigation; [and]

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law....

FED. R. CIV. P. 11(b) (emphasis added). Each obligation must be

satisfied; violation of either justifies sanctions. See, e.g.,

Walker v. City of Bogalusa, 168 F.3d 237, 241 (5th Cir. 1999).

And, in determining compliance vel non with each obligation, “the

standard under which an attorney is measured is an objective, not

subjective, standard of reasonableness under the circumstances”.

Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018, 1024 (5th

Cir. 1994).

Rule 11 sanctions are reviewed only for an abuse of

discretion, e.g., Lulirama Ltd., Inc. v. Axcess Broad. Servs.,

Inc., 128 F.3d 872, 884 (5th Cir. 1997), including reviewing

9 factual findings only for clear error, e.g., Crowe v. Smith, 261

F.3d 558, 564 (5th Cir. 2001). This abuse of discretion standard

is necessarily very deferential, for two reasons.

First, “based on its ‘[f]amiliar[ity] with the issues and

litigants, the district court is better situated than the court of

appeals to marshal the pertinent facts and apply the fact-dependent

legal standard mandated by Rule 11’”. Lulirama, Ltd., 128 F.3d at

884 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402

(1990); emphasis added). See also Mercury Air Group, Inc. v.

Mansour, 237 F.3d 542, 548 (5th Cir. 2001) (“the imposition of

sanctions is often a fact-intensive inquiry, for which the trial

court is given wide discretion” (emphasis added)).

Second, the district judge is independently responsible for

maintaining the integrity of judicial proceedings in his court and,

concomitantly, must be accorded the necessary authority. See,

e.g., Cooter & Gell, 496 U.S. at 404; NASCO, Inc. v. Calcasieu

Television and Radio, Inc., 894 F.2d 696, 702-03 (5th Cir. 1990)

(discussing inherent power of court), aff’d sub nom. Chambers v.

NASCO, Inc., 501 U.S. 32 (1991).

It was for these reasons that our court, in Thomas v. Capital

Security Servs., Inc., 836 F.2d 866, 872 (5th Cir. 1988) (en banc),

established abuse of discretion, rather than in part de novo, as

our standard of review for Rule 11 sanctions. This was confirmed

10 by the Supreme Court in Cooter & Gell, partly with reasoning that

rings true here:

Rule 11's policy goals also support adopting an abuse-of-discretion standard. The district court is best acquainted with the local bar's litigation practices and thus best situated to determine when a sanction is warranted to serve Rule 11's goal of specific and general deterrence. Deference to the determination of courts on the front lines of litigation will enhance these courts' ability to control the litigants before them. Such deference will streamline the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court; it will also discourage litigants from pursuing marginal appeals, thus reducing the amount of satellite litigation.

496 U.S. at 404 (emphasis added).

For this deferential review, the “district court would

necessarily abuse its discretion if it based its ruling on an

erroneous view of the law or on a clearly erroneous assessment of

the evidence”. Id. at 405. “Generally, an abuse of discretion

only occurs where no reasonable person could take the view adopted

by the trial court.” Friends for Am. Free Enter. Ass’n v. Wal-Mart

Stores, Inc., 284 F.3d 575, 578 (5th Cir. 2002) (internal quotation

omitted; emphasis added)3.

3 The dissent does not even mention the deferential standard of review (important to our ruling); nor does it appear to review the sanctions under that deferential standard. In fact, it appears to forget that it was the district court, not this court, that decided Minor's conduct was violative of Rule 11 and, pursuant to its considerable discretion, imposed those sanctions.

11 A.

Subparts (b)(1) and (2) of Rule 11 provide independent bases

for sanctions. The district court concluded Minor violated each

subpart; therefore, it is only necessary to decide whether he

violated one.

1.

Regarding subpart (b)(2) (objective reasonableness of inquiry

concerning existing law), Minor's affidavit in opposition to

sanctions stated he relied upon: (1) Van Huss v. Landsberg, 262 F.

Supp. 867 (W.D. Mo. 1967) (dictum; Minor had cited this opinion

earlier in opposing Kmart’s motion for Federal Rule 62(b) stay

pending resolution of its post-trial motions); (2) WRIGHT, MILLER &

KANE, FEDERAL PRACTICE & PROCEDURE § 2907 (1995) (motion for Federal Rule

62(f) stay should, not must, be filed); and (3) the district

court’s earlier denial (as moot) of Kmart’s post-trial request for

the Federal Rule 62(b) stay. The district court ruled that this

authority, when juxtaposed against the plain language of the rules,

did not support an objectively reasonable belief that no stay was

in effect. See Whitehead, 202 F. Supp. 2d at 528-32.

Along this line, the panel majority focused on whether, as a

matter of law, a motion is required to invoke the stay; it held

that it was and that, as a result, no stay was in place to protect

Kmart from execution. Instead, the panel should have addressed

whether Minor’s belief was objectively reasonable at the time he

12 requested the writ. See, e.g., Thomas, 836 F.2d at 874 (proper

focus is “snapshot” of instant when document signed). In any

event, because subparts (b)(1) and (2) provide independent bases

for sanctions, it is not necessary to decide whether the district

court abused its discretion concerning subpart (b)(2). For

purposes of deciding whether sanctions could be based on subpart

(b)(1), we will assume Minor did not violate subpart (b)(2).

2.

After determining Minor failed to make a reasonable inquiry

(violating subpart (b)(2)), Whitehead, 202 F. Supp. 2d at 529-32,

and then addressing why Rule 11's “safe harbor” provision (subpart

(c)(1)(A)) did not shelter Minor, id. at 532-33, the district court

stated:

Additionally, [Kmart] has submitted to this court several of the articles and news reports which were generated in the local press by the improper execution of judgment in the instant case. It is clear from these unchallenged submissions that [Minor] was seeking to embarrass [Kmart] and call attention to himself as a tireless laborer of the bar attempting to obtain justice for his client when, in fact, there was no basis whatsoever in fact or in law for the actions taken on August 21, 1997. Thus, this court is persuaded that the imposition of appropriate sanctions in this case is justified and proper.

Id. at 533 (emphasis added). As discussed infra, this subpart

(b)(1) “improper purpose” ruling is sufficient to sustain the

sanctions.

13 Minor insists we must decide the subpart (b)(2) issue,

asserting that the subpart (b)(1) improper purpose ruling is

inextricably intertwined with whether, under subpart (b)(2), he had

an objectively reasonable belief that a stay did not exist. He

claims: “[I]f there was authority that even arguably supported

what [he] did, there was no basis for the sanctions motion”. In

support, Minor notes that the district court’s improper purpose

ruling states “there was no basis whatsoever in fact or in law for

[Minor's] actions....” Id. at 533.4

4 Likewise, the dissent insists that these bases are intertwined; insists on a rigid, several step evaluation-process; and erroneously claims we attribute “legitimate purpose” findings to the district court. This view appears to be based on a pre-1993 version of Rule 11. For example, the dissent relies upon case law that was decided under the previous version, under which these bases were not separated into specific, enumerated subparts. That case law correctly states the test under that previous rule: where a paper was “well grounded in fact and warranted by existing law”, sanctions were imposed only under unusual circumstances. (Unlike the district court, the dissent ignores the well grounded in fact portion of the test (now subparts (b)(3) and (b)(4)) in contending that subparts (b)(1) and (b)(2) are intertwined.) We do not suggest that this case law is not instructive. In fact, for that reason, we cite some of the same case law. On the other hand, this case law does not support the dissent’s view of subparts (b)(1) and (b)(2) as intertwined. The structure of the current rule (as amended in 1993) belies such a notion.

In any event, for purposes of deciding this appeal, it is not necessary to determine how Rule 11 in its present form might compel revising the test for improper purpose, as adopted for the former version of the Rule. The issue was not presented to our court. Moreover, the district court's improper purpose ruling, discussed infra, would easily pass muster under the test employed by the dissent.

14 It is true that, generally, district courts do not sanction

attorneys who make nonfrivolous representations. A district court

may do so, however, where it is objectively ascertainable that an

attorney submitted a paper to the court for an improper purpose.

FED. R. CIV. P. 11(b)(1). See, e.g., Sheets v. Yamaha Motors Corp.,

891 F.2d 533, 537-38 (5th Cir. 1990); Nat’l Ass’n of Gov’t

Employees, Inc. v. Nat’l Fed’n of Fed. Employees, 844 F.2d 216, 224

(5th Cir. 1988).

Sheets, for instance, held filing excessive motions could

constitute harassment proscribed by Rule 11, even if the motions

were well-founded in law or fact. 891 F.2d at 538. Filing

otherwise legitimate documents that use abusive language toward

opposing counsel could also violate the rule, Coats v. Pierre, 890

F.2d 728, 734 (5th Cir.), cert. denied, 498 U.S. 821 (1990), as

could filing a valid pleading or motion without a sincere intent to

pursue it, Cohen v. Virginia Elec. & Power Co., 788 F.2d 247 (4th

Cir. 1986).

We conclude that the district court’s “improper purpose”

ruling was independent from its “inquiry concerning existing law”

ruling. We base this upon the following factors: (1) the parties’

having squarely placed the improper purpose issue before the

district court; (2) its earlier citation to subpart (b)(1) in

quoting all of Rule 11(b) in its order, Whitehead, 202 F. Supp. 2d

at 526 n.1; (3) its subsequent specific enumeration of Rule 11

15 bases, including improper purpose, id. at 532 (“Minor presented to

this court [a writ-execution request] certifying [(a)] that to the

best of his knowledge, information, and belief, formed after a

[reasonable] inquiry ... that the [request] was proper; and [(b)]

that the letter requesting the writ of execution was not being

presented for any improper purpose, such as to harass....”;

emphasis added); (4) its then concluding Minor failed to make a

subpart (b)(2) reasonable inquiry into the law, id. at 532; and (5)

its then discussing Rule 11's “safe harbor” provision, id. at 532-

33, before making its subpart (b)(1) improper purpose ruling, id.

at 533. To conclude otherwise would render the improper purpose

portion of the opinion superfluous. Moreover, the two subparts

concern quite different considerations. And, again, the fact-

driven improper purpose ruling can be sustained even if (as we

assume for our analysis) there were a basis in law for Minor's

obtaining the writ. The two bases were not intertwined.

3.

A district court may sanction an attorney for presenting a

paper to the court for “any improper purpose, such as to

harass....” FED. R. CIV. P. 11(b)(1) (emphasis added). Although a

district court is not to read an ulterior motive into a document

“well grounded in fact and law”, it may do so in exceptional cases,

such as this, where the improper purpose is objectively

ascertainable. See Sheets, 891 F.2d at 537-38.

16 The district court found Minor had two improper purposes for

requesting the writ: to embarrass Kmart; and to promote himself.

Whitehead, 202 F. Supp. 2d at 533. Part of our abuse of discretion

review is to determine whether the district court’s ruling was

“based ... on a clearly erroneous assessment of the evidence”.

Cooter & Gell, 496 U.S. at 405. Pursuant to the well-known

standard of review for clear error vel non, we may disturb factual

findings, which often involve credibility choices, only if a review

of all the evidence leaves us with “the definite and firm

conviction that a mistake has been made”. Tulia Feedlot, Inc. v.

United States, 513 F.2d 800, 806 (5th Cir.), cert. denied, 423 U.S.

947 (1975).

In maintaining he had legitimate, not improper, purposes,

Minor offered two reasons to the district court for obtaining the

writ: obtaining part of the judgment for his clients; and trying

to force settlement. The factual findings related to these two

reasons were not clearly erroneous.

Obviously, there would not have been enough cash at one local

Kmart to satisfy the $3.4 million judgment. In addition, the

execution was unnecessary to secure the judgment; the judgment

constituted a lien against Kmart’s property in Mississippi. Again,

nothing in the record indicates Minor disputed in district court

that the judgment constituted such a lien. See, e.g., MISS. CODE

ANN. § 11-7-191; see also FED. R. CIV. P. 62(f). Minor notes that

17 Kmart is currently in bankruptcy; this, of course, is irrelevant to

Minor’s purpose at the time in question (August 1997). In any

event, even if Minor's purpose were only to obtain a portion of the

judgment, the district court did not clearly err in finding Minor

also had separate, improper purposes.

Assuming arguendo that attempting to force settlement is

proper, but see, e.g., Elster v. Alexander, 122 F.R.D. 593, 604

(N.D. Ga. 1988) (attempt to coerce settlement not proper), Minor

offered the following explanation to the district court: he had

attempted to contact Kmart, but it had refused to return his

telephone calls or speak to him about the case; therefore, he was

forced to take this drastic measure to open lines of communication.

The record, however, contains only one letter from Minor

requesting settlement discussions (3 June 1997, shortly before

Kmart filed its post-trial motions). That letter does not reflect

how many calls were made by Minor. In any event, his claim that

Kmart refused all communication is belied by his letter: “I am

sorry we have been missing each other and I appreciate you

returning my phone calls”. (Emphasis added.)

Minor's letter states he was attempting to ascertain whether

Kmart wished to engage in settlement discussions before posting an

appeal bond. At the time of the letter, through mid-August,

Kmart’s post-trial motions (e.g. for a new trial) were pending.

After the court ruled on the motions, Minor gave Kmart only three

18 days before attempting to execute. There is no evidence that Minor

attempted to contact Kmart during this three-day period.

Accordingly, it was not clearly erroneous for the district court to

reject Minor's claim that he was forced to obtain the writ in order

to initiate settlement discussion.

In addition, it was not clearly erroneous for the district

court, by implication, to find that neither of these claimed

purposes explained either Minor’s presence at the execution or his

collateral media play. The execution did not require Minor to

accompany the two United States Marshals to the Kmart (especially

where, as here, the involved property was well-known, open, and

obvious). See FED. R. CIV. P. 69. See also MOORE’S FEDERAL PRACTICE —

CIVIL § 69.02 (2002). And, the execution certainly did not require

the media's presence at the Kmart or the improper comments Minor

made there to the media.

In fact, Minor does not dispute that he intended to embarrass

Kmart or that he was seeking personal recognition. Most

regrettably, he contends that these are far from being evidence of

an improper purpose in obtaining the writ (e.g., “[a]lmost

everything an attorney in litigation does ... is designed to

embarrass an opponent in one way or another”; “establishing a

reputation for success in the representation of clients is the most

professional way for a lawyer to build a practice”). It was not

19 clearly erroneous for the district court to find that each of

Minor's intended goals was evidence of an improper purpose.

Claiming a purpose to embarrass is different than one to

harass, Minor seems to contend that, because Rule 11 explicitly

refers to harassment, and because that was not his purpose, his

admitted intent to embarrass cannot be an improper purpose under

the rule. On this record, there is no meaningful distinction

between these two purposes, especially in the light of our

deferential standard of review. See, e.g., Flaherty v. Torquato,

623 F. Supp. 55, 59-60 (W.D. Pa. 1985) (using harass and embarrass

interchangeably in context of Rule 11 improper purpose discussion),

aff’d by 800 F.2d 1133 (3rd Cir. 1986). Regardless, Minor misreads

Even assuming that Minor’s purpose to embarrass Kmart was not,

in essence, a purpose to harass, Rule 11's list of improper

purposes is only illustrative; “to harass” is but one of the

possible improper purposes. FED. R. CIV. P. 11(b)(1) (“any improper

purpose, such as to harass...” (emphasis added)).

The media event orchestrated by Minor, in particular,

constitutes objective evidence of his improper purpose in obtaining

the writ. See, e.g., Ivy v. Kimborough, 115 F.3d 550, 553 (8th

Cir. 1997) (no abuse of discretion in imposing Rule 11 sanctions,

where, inter alia, conduct was “aimed at the media” and “primarily

for local media consumption”); Kramer v. Tribe, 156 F.R.D. 96

20 (D.N.J. 1994), aff’d without opinion, 52 F.3d 315 (3rd Cir.), cert.

denied, 516 U.S. 907 (1995) (imposing Rule 11 sanctions because,

among other things, giving misleading reports to media demonstrated

improper purpose motives (including intent to embarrass)). Again,

the district court had an unchallenged videotape of, inter alia,

Minor’s improper comments. The district court’s finding “[i]t ...

clear from [the] unchallenged” newspaper articles and videotape

that Minor had an improper purpose, Whitehead, 202 F. Supp. 2d at

533 (emphasis added), is a classic example of Minor's being

“[h]oist with his own petard”. WILLIAM SHAKESPEARE, HAMLET act 3, sc.

4. Minor’s improper comments, preserved by the very entity he

enlisted to embarrass Kmart and promote himself were, instead,

arguably the best evidence of his improper purpose in obtaining the

writ.

Before our en banc court, Minor raises, for the first time,

First Amendment considerations with regard to his improper

comments. No authority need be cited for the rule that, because

the record does not reflect that Minor raised these points in

district court, we will not consider them on appeal. In any event,

the improper purpose in obtaining the writ, not the vehicle (such

as the media) used to implement that improper purpose, is what is

decided by the sanctioning court and reviewed on appeal. In other

words, under subpart (b)(1), Minor’s attempted execution is not the

issue; his underlying “improper purpose” in obtaining the writ is.

21 The collateral media play simply constitutes objective evidence of

that improper purpose.

Finally, Minor asserts that, although his conduct may not have

been “civil”, it is not sanctionable. He maintains: civility is

“aspirational” and beyond the power of the law; and if our court

wants to impose civility rules, we should adopt them. Along this

line, Minor takes issue with any suggestion in the vacated panel

opinion that his conduct was unethical. See Whitehead, 277 F.3d at

796-97. He further contends: even if his conduct were unethical,

the appropriate remedy would be referral to the state bar for

possible discipline, not imposition of Rule 11 sanctions. This

issue is also raised for the first time on appeal. Because the

vacated panel opinion addressed the issue in part, see id., we will

consider it.

Minor again understates the severity of his conduct and

overlooks both the district court’s broad authority to impose Rule

11 sanctions and our deferential standard of review. Whether

Minor’s conduct violated civility and ethics rules is for others to

act upon; in any event, his conduct violated Rule 11.

These categories are not mutually exclusive. For example, the

rules advisory committee has recognized that some overlap exists

between state bar discipline and Rule 11 sanctions; its notes to

Rule 11 state that one possible sanction for a violation of Rule 11

is referral to a state bar authority. See also Kramer, 156 F.R.D.

22 96 (imposing sanctions and referring matter to state bar).

District courts have an independent duty to maintain the integrity

of the judicial process and may impose Rule 11 sanctions where

necessary, regardless of whether state bar discipline is

concurrent.

Rule 11 limits sanctions “to what is sufficient to deter

repetition of such conduct or comparable conduct by others

similarly situated”. FED. R. CIV. P. 11(c)(2). In addition to

publishing its sanctions opinion, the district court limited the

sanctions to “the reasonable attorneys’ fees and other expenses

incurred as a direct result of the violation”, id. Minor does not

challenge this aspect of the order.

4.

In sum, there was no abuse of discretion. The district court

spoke with counsel, including Minor, on the day of the incident and

was quite familiar with the parties and litigants. Minor’s

execution attempt followed his improper conduct at trial. See

Whitehead, 163 F.3d at 276-77 n.3; see also FED. R. CIV. P. 11

advisory committee's note (“whether [sanctionable conduct] was part

of a pattern of activity, or an isolated event” is “[a] proper

consideration”).

Generally, writ-execution for the purpose of satisfying a

judgment is proper. Minor’s conduct, however, was exceptional.

Although it was only three days after disposition of post-trial

23 motions, with significant time remaining for Kmart to appeal the

judgment and post a supersedeas bond, Minor, after obtaining the

execution writ: invited the media to one of Kmart’s places of

business to execute judgment in plain view of Kmart’s customers and

employees; and made improper comments to the media regarding the

case, Kmart, and Kmart's willingness to satisfy the judgment.

The district court found, based in part on the videotape, that

Minor had improper purposes in obtaining the writ: to embarrass

Kmart and advance his personal position. The district court, of

course, is in a far better position than we to balance the

considerations underlying rulings on Rule 11 sanctions, most

especially the concomitant factual findings (including credibility

choices). Obviously, this is why we review its decision under a

very deferential abuse of discretion standard. For the subpart

(b)(1) improper purpose ruling: the record does not support these

findings being clearly erroneous; nor was there “an erroneous view

of the law”. See Cooter & Gell, 496 U.S. at 405.

B.

Minor moves for summary reversal and imposition of sanctions

against Kmart, or for remand for fact-finding and such sanctions,

contending: Kmart caused the attempted execution by earlier, false

responses during discovery that it was self-insured; and, had Minor

known of insurance covering the judgment, he would not have

24 attempted to execute. (It appears Kmart was partly self-insured,

with umbrella coverage.)

The relief sought by Minor's motion was requested, for the

first time, while this appeal was pending. In his motion, Minor

stated this claim was neither known, nor confirmed, until well

after his appeal was filed. The panel majority did not address the

motion, in the light of its reversing the sanctions. Whitehead,

277 F.3d at 791.

Minor fails to connect how his understanding of Kmart’s self-

insured status justified his improper-purpose conduct. Kmart’s

discovery responses do not affect the considerations underlying

whether Minor’s purpose in obtaining the writ was proper. (We

express no opinion on whether Minor can seek relief in district

court based on the challenged discovery responses.)

III.

For the foregoing reasons, the sanctions are AFFIRMED; Minor’s

motion for summary reversal or remand is DENIED.

SANCTIONS AFFIRMED; MOTION DENIED

25 KING, Chief Judge, with whom SMITH and BENAVIDES, Circuit Judges,

join, dissenting:

The majority, appellate judges all, are plainly exercised

about lawyer Paul Minor’s efforts to collect his clients’ judgment

against Kmart. In their effort to declare the kind of behavior

that will not be accepted by this court, they have short-circuited

the inquiry mandated by Rule 11 and our own case law, with

potentially far-reaching consequences. I respectfully dissent.

In evaluating a district court’s imposition of sanctions under

Rule 11(b)(1), this and other circuits generally look first to the

district court’s findings on whether the filing at issue was

warranted by existing law or a nonfrivolous argument for a change

in the law (as required by Rule 11(b)(2)); look next to the

findings on whether the filing was presented for an improper

purpose under Rule 11(b)(1); look next to the findings on whether

the filing was also presented for a legitimate purpose; and finally

look to the district court’s evaluation of whether any improper

purpose is sufficient under the circumstances to support sanctions

under Rule 11(b)(1). If the district court has correctly found a

legitimate purpose for the filing, this and other circuits have

been reluctant to approve the imposition of sanctions for an

improper purpose under Rule 11(b)(1). Here, by contrast, the

majority presents the two relevant subparts of Rule 11 as not

intertwined for purposes of assessing Rule 11(b)(1) sanctions. The

26 majority then goes on to credit the district court with making

crucial findings on both legitimate and improper purposes that the

district court plainly did not make. The majority winds up by

affirming the district court’s conclusion that sanctions are

warranted under Rule 11(b)(1) where it is not at all clear that the

district court concluded as much. This entire method of evaluating

sanctions assessed under Rule 11 effectively eviscerates what were,

up until this point, critical aspects of the Rule 11 framework.

ANALYSIS OF THE FRAMEWORK FOR SANCTIONS UNDER RULE 11(b)(1)

A. The Interrelation of Rule 11(b)(1) and 11(b)(2)

Rule 11(b)(2) explicitly requires that an attorney submit a

paper to the court only after forming a reasonable belief that it

is warranted by existing law (or a non-frivolous argument for a

change in the law) and Rule 11(b)(1) explicitly precludes an

attorney from submitting a paper for certain “improper purposes.”5

5 The two relevant subparts of Rule 11 state that:

(b) By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying 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 or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing

27 The subsections thus appear to be quite discrete textually.

However, our case law demonstrates that the subsections are

actually interrelated in at least one situation: “When a [paper]

is well grounded in fact and warranted by existing law, ‘only under

unusual circumstances . . . should the filing of [the paper]

constitute sanctionable conduct.” F.D.I.C. v. Calhoun, 34 F.3d

1291, 1300 (5th Cir. 1994) (emphasis added) (quoting Sheets v.

Yamaha Motors Corp., U.S.A., 891 F.2d 533, 538 (5th Cir. 1990)).

This circuit has extended this logic in concluding that “[a]lthough

the filing of a paper for an improper purpose is not immunized from

rule 11 sanctions simply because it is well grounded in fact and

law, only under unusual circumstances – such as the filing of

excessive motions – should the filing [] constitute sanctionable

conduct.” Sheets, 891 F.2d at 538 (emphasis added).

What this precedent says is that (1) a favorable finding

regarding Rule 11(b)(2) should influence a district court’s

conclusion regarding the existence of an “improper purpose”

sanction under Rule 11(b)(1), and (2) only in the most exceptional

circumstances will this court uphold sanctions under Rule 11(b)(1)

when a paper satisfies the Rule 11(b)(2) requirements.

law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

FED. R. CIV. P. 11(b)(1)-(2).

28 Here, the majority first concludes, correctly, that “the two

subparts [Rule 11(b)(1) and Rule 11(b)(2)] concern quite different

considerations” but then concludes, incorrectly, that they need

“not” be “intertwined” in the Rule 11(b)(1) inquiry. Our precedent

does not support that. In the interest of bypassing an evaluation

of the district court’s possibly incorrect finding under Rule

11(b)(2), the majority has announced a rule (that the Rule ll(b)(1)

and 11(b)(2) inquiries need not be intertwined in a situation where

Rule 11(b)(1) sanctions are to be imposed) that is directly at odds

with our precedent. In my view, that is a serious mistake, now bad

law.6

6 In footnote 4, the majority states that: “In any event, for purposes of deciding this appeal, it is not necessary to determine how Rule 11 in its present form might compel revising the test for improper purpose, as adopted for the former version of the Rule.” This statement underscores a critical shortcoming with the majority’s opinion. It announces a new rule (that the Rule 11(b)(1) and 11(b)(2) inquiries are unrelated in a fact pattern where Rule 11(b)(1) sanctions are to be imposed, even if the paper at issue was submitted in compliance with Rule 11(b)(2)), but says it does not, and then announces that, in any event, knowledge of the applicable Rule 11(b)(1) framework is not necessary for sanctions to be imposed here. In contrast, I see the framework as critical. The facts related to the “improper” nature of Minor’s presenting the writ to the district court must be funneled through the correct framework before the imposition of sanctions can be deemed appropriate. As taught by our case law (which has not been questioned until today and which is plainly cited by the majority for the exact proposition for which the dissent cites the same case law), if the relevant filing satisfies Rule 11(b)(2) requirements and is found to have been presented for a legitimate purpose, we are extremely reluctant to approve the imposition of sanctions for an improper purpose under Rule 11(b)(1). If the majority seeks to alter this clear rule, it should say so (and maybe it has, who’s to say?) and then apply its new rule to the facts of this case.

29 B. The Necessary Predicate to Impose Sanctions under Rule 11(b)(1)

Our case law makes clear that the next step in the framework

for imposing “improper purpose” sanctions is the consideration by

the district court of legitimate and improper purposes the litigant

or party may have had for submitting the relevant paper. In its

quest to uphold the district court’s imposition of sanctions, the

majority attributes findings to the district court regarding this

legitimate purpose step that the district court clearly did not

make, and attributes a legal conclusion to the district court

regarding whether sanctions are warranted independently under Rule

11(b)(1) that the district court may not have even made.

Assuming the district court finds a legitimate purpose or

purposes for the relevant filing, then it must weigh the legitimate

purposes against any illegitimate purposes and evaluate whether the

illegitimate purposes are sufficient in themselves to independently

support sanctions under Rule 11(b)(1). As we stated in National

Association of Government Employees, Inc. v. National Federation of

Federal Employees, 844 F.2d 216 (5th Cir. 1988):

We do not condone litigation instituted for ulterior purposes rather than to secure judgment on a well- grounded complaint in which the plaintiff sincerely believes. Yet the Rule 11 injunction against harassment does not exact of those who file pleadings an undiluted desire for just deserts . . . [T]he court must focus on objectively ascertainable circumstances that support an inference that a filing harassed the defendant or caused unnecessary delay. As Judge Schwarzer has stated: “If a reasonably clear legal justification can be shown for the

30 filing of the paper in question, no improper purpose can be found and sanctions are inappropriate” . . . A plaintiff must file a complaint [] in order to vindicate his rights in court. We find no indication that the filing here was unnecessary, for the [defendants] had refused to retract the [alleged defamatory] statement. Under the circumstances, the [plaintiff] had a proper interest in suing to attempt to vindicate its reputation.

Id. at 223-24 (internal footnote omitted and emphasis added).

Thus, as interpreted by our court, before a district court can

impose sanctions under Rule 11(b)(1), it must consider any

legitimate or proper purposes the litigant or attorney may have had

in presenting a paper to the district court. Before today, we were

loath to find that an attorney’s or litigant’s illegitimate purpose

could independently support sanctions where a legitimate purpose

for filing the relevant paper also existed.

Here, paying lip service to the required inquiry into

legitimate purposes, the majority upholds as “not clearly

erroneous” factual findings rejecting Minor’s proffered legitimate

purposes for seeking the writ of execution (to satisfy part of the

judgment for his client in order to pay medical bills and to

encourage settlement). However, though I have thoroughly searched

the district court’s order, I find no mention, much less

discussion, of any possible legitimate or proper purpose. This

necessary predicate is simply not there.

The Fourth Circuit case of In re Kunstler, 914 F.2d 505 (4th

Cir. 1990), discusses the importance of the critical step omitted

by the district court:

31 Rule 11 defines the term “improper purpose” to include factors “such as to harass or to cause unnecessary delay or needless increase in the costs of litigation.” The factors mentioned in the rule are not exclusive. If a complaint is not filed to vindicate rights in court, its purpose must be improper. However, if a complaint is filed to vindicate rights in court, and also for some other purpose, a court should not sanction counsel for an intention that the court does not approve, so long as the added purpose is not undertaken in bad faith and is not so excessive as to eliminate a proper purpose. Thus, the purpose to vindicate rights in court must be central and sincere . . . In other words, it is not enough that the injured party subjectively believes that a lawsuit was brought to harass, or to focus negative publicity on the injured party.

Id. at 518 (emphasis added). Kunstler’s holding accords with our

circuit precedent. If an illegitimate purpose does not engulf an

individual’s legitimate purpose, sanctions under the “improper

purpose” section of Rule 11 cannot stand. Because the district

court overlooked this important inquiry, our court has no place

upholding findings that are not even there.

In addition to attributing factual findings to the district

court that it did not make, the majority jumps to the support of a

legal conclusion that the district court may not have even made.

The majority points to a single paragraph in the district court’s

eighteen-page order that references Minor’s desire to embarrass

Kmart and to gain publicity for himself as indisputably

demonstrating an intention on the part of the district court to

sanction Minor independently under Rule 11(b)(1). However, it is

not clear, much less “indisputable,” from this single paragraph

32 that the district court intended to sanction Minor under Rule

11(b)(1) as independent from Rule 11(b)(2), especially as this

paragraph expressly states that “there was no basis whatsoever in

fact or in law for the actions taken on August 21, 1997.” Whether

there is a basis in law is clearly the relevant inquiry under Rule

11(b)(2), not Rule 11(b)(1). Further, the district court does not

use any of the descriptive language found in Rule 11(b)(1)’s non-

exclusive list, such as “harass.” While this is not required, I

would expect to see some discussion regarding a comparison between

“harass” and “embarrass” if the district court truly intended (as

the majority assumes) to use the terms interchangeably and to

sanction Minor independently under Rule 11(b)(1).7 At a minimum,

I would expect the district court to have at least mentioned either

the subpart dealing with “improper purpose” or the term “improper

7 Further, the majority goes so far as to state, without discussion, that “[o]n this record, there is no meaningful distinction between these two purposes [“harass” and “embarrass”], especially in the light of our deferential standard of review.” In support of this statement, it cites to Flaherty v. Torquato, 623 F. Supp. 55, 59-60 (W.D. Pa. 1985), aff’d without op., 800 F.2d 1133 (3d Cir. 1986), as “using harass and embarrass interchangeably in context of Rule 11 improper purpose discussion.” However, a cursory read of this non-binding district court opinion reveals that the court does not use these terms interchangeably in its decision to decline to award sanctions. Id. Moreover, we have on occasion discussed “harass” in the context of Rule 11(b)(1) to cover conduct such as the “filing of excessive motions.” Nat’l Assoc. of Gov’t Empl., 844 F.2d at 224. This connotation comports with the general usage and understanding of “harass” – annoyance or exhaustion with the added characteristic of persistency or repetitiveness – as opposed to “embarrass” – mere distress or self-consciousness. See WEBSTER’S NEW COLLEGIATE DICTIONARY 370, 522 (1977).

33 purpose” itself in this paragraph, particularly given the extent of

the discussion regarding Rule 11(b)(2).

In the past, when an order imposing sanctions contained such

shortcomings, we refused to supply the necessary findings and

conclusions on appeal because we, as appellate judges, must not

become fact finders. See, e.g., F.D.I.C. v. Calhoun, 34 F.3d 1291,

1297 (5th Cir. 1994) (“We have long held that a district court, in

applying sanctions, may have to make a detailed explanation for its

legal reasons. . . . The purpose of creating such a record is

simple: In order to guard against the application of hindsight by

district courts who have sat through long, complicated, and often

contentious proceedings, we must not be put in the position of

having to guess what unwarranted factual or legal errors were the

basis of the sanctions.”); United States v. U.T. Alexander, 981

F.2d 250, 253 (5th Cir. 1993) (“The district court here did not

cite any ‘unusual circumstances’ that warranted sanctions. The

court merely asserted the view that the claim was filed for an

improper purpose. Even though detailed findings are not required

to uphold an award of sanctions, there must be some record to

review.”). Today the majority back-pedals from this precedent to

supply – and, indeed, even credit the district court with – the

necessary factual predicate omitted by the district court and to

supply a legal conclusion that may not have been made by the

district court. I cannot subscribe to this technique.

34 II.

THE “UNUSUAL” OR “EXCEPTIONAL” CIRCUMSTANCES REQUIREMENT

Our precedent is clear. Even assuming the district court had

made appropriate factual findings on whether Minor had a legitimate

purpose for obtaining the writ of execution here, in situations

where an attorney or party submits a paper that is well-grounded in

law under Rule 11(b)(2) – as the majority assumes arguendo to be

the case here – “improper purpose” sanctions may be imposed by a

district court only in “unusual” or “exceptional” circumstances.

I disagree with the majority’s implied finding that this case

presents such “unusual” circumstances.

To date, we have not found a case with such “unusual

circumstances” to merit upholding an “improper purpose” finding

where (as is assumed to be the case here) the filing of the paper

satisfies the Rule 11(b)(2) requirements. See, e.g., Calhoun, 34

F.3d at 1300; Sheets, 891 F.2d at 538; Nat’l Assoc. of Gov’t Empl.,

844 F.2d at 224.8 In this spirit, I disagree with the majority

8 Coats v. Pierre, 890 F.2d 728 (5th Cir. 1989), is the closest we have come to such a finding. There, a teacher who was denied tenure and not rehired brought a civil rights action alleging wrongful termination in retaliation for exercising free speech. Id. at 731. We upheld Rule 11 sanctions for the plaintiff’s harassing filings, which stated that opposing counsel “acted like a little nasty dumb female Mexican pig in heat” and that she was “nothing but garbage.” Id. at 734. Although the district court failed there to make a specific finding that the suit was groundless, it concluded that sanctions were warranted because the plaintiff’s allegations were “totally unsupported by any of the people [he] called from the university” and his filing was “worse than outrageous,” was “unconscionable” and was worthy of “contempt”

35 that this case should serve as the benchmark for district courts

imposing “improper purpose” sanctions in the future. With only a

finding by the district court of an intent to embarrass one’s

opponent and an intent to gain publicity for oneself – both quite

common characteristics in a judgment or debt collection setting –

the case will serve as a poor litmus, particularly given that the

district court did not even consider whether Minor had a legitimate

purpose for the filing. As things appear to me, the majority

employs an “I know it when I see it” approach to judging Minor’s

technique, substituting its own findings where the district court

made none.

The majority shames Minor for conduct it determines does not

befit an upstanding officer of the court. Specifically, it appears

most perturbed regarding Minor’s offensive tow of the media to the

judgment collection. I admit that Minor’s technique here is

colorful to say the least. However, other courts have looked at

similar circumstances and have not been so critical of the

litigants’ choice of litigation tactics. See, e.g., Revson v.

Cinque & Cinque, P.C., 221 F.3d 71, 80 (2d Cir. 2000) (stating that

airing grievances and threatening litigation through letters “are

commonplace” and that “[s]imilarly, the court’s concern that

proceedings. Id. The case before us is clearly distinguishable from Coats. The district court in Coats found the lawsuit unsupportable in law whereas here, the majority assumes the opposite – that is, it assumes that it was objectively reasonable under existing fact and law for Minor to file the writ of execution with the district court.

36 [plaintiff] had in fact tarnished [defendant’s] reputation by

speaking with a news reporter was not a proper basis for sanctions”

under Rule 11); Sussman v. Bank of Israel, 56 F.3d 450, 459 (2d

Cir. 1995) (“The district court held that the filing of the

complaint with a view to exerting pressure on defendants through

the generation of adverse and economically disadvantageous

publicity reflected an improper purpose. To the extent that a

complaint is not held to lack foundation in law or fact, we

disagree. It is not the role of Rule 11 to safeguard a defendant

from public criticism that may result from the assertion of

nonfrivolous claims.”); In re Kunstler, 914 F.2d 505, 520 (4th Cir.

1990) (“Holding a press conference to announce a lawsuit, while

perhaps in poor taste, is not grounds for a Rule 11 sanction, nor

is a subjective hope by a plaintiff that a lawsuit will embarrass

or upset a defendant, so long as there is evidence that a

plaintiff’s central purpose in filing a complaint was to vindicate

rights through the judicial process.”). Further, in each of the

cases cited by the majority in support of its determination that

“improper purpose” sanctions are warranted here, the district court

had specifically found that the relevant filing was not well-

grounded in law under Rule 11(b)(2). See Ivy v. Kimbrough, 115

F.3d 550, 553 (8th Cir. 1997) (sanctioning the plaintiff and his

attorney for bringing a frivolous action against a police officer

and judge involved in his arrest subsequent to a marital dispute

because “the court, with good cause, gave [the plaintiff and his

37 attorney] repeated warning that their claims appeared to be

frivolous, that much of their conduct seemed aimed at the media,

and that failure to properly pursue this lawsuit risked dismissal

and possible sanctions”); Kramer v. Tribe, 156 F.R.D. 96 (D.N.J.

1994) (sanctioning an attorney under Rule 11(b)(1) and (b)(2),

§ 1927 and its inherent authority through fines, submission of

counsel to attorney disciplinary authorities and submission of

counsel to criminal authorities where the attorney had no

legitimate purpose for filing the suit and had a history (at least

36 instances) of unethical conduct before the courts), aff’d

without op., 52 F.3d 315 (3d Cir. 1995); Elster v. Alexander, 122

F.R.D. 593, 604 (N.D. Ga. 1988) (imposing Rule 11 sanctions where

“pleadings and papers filed on behalf of plaintiff . . . were filed

without that reasonable inquiry which Rule 11 requires”). These

cases thus provide little support for the majority because, in

contrast to these cases, the majority here presumes (in the face of

what may well be problematic findings to the contrary by the

district court) that the writ filed by Minor was well-grounded in

law as required by Rule 11(b)(2).

I agree with the original panel’s determination that Minor’s

conduct, while perhaps in poor taste, does not merit sanctions

under Rule 11(b)(1). We, as appellate judges, operate at a far

remove from the business of collecting judgments or effecting

settlements. We ought to refrain from excoriating a lawyer based

upon our own sensibilities when the district court, closer to that

38 business than we are, has not provided a clear and explicit

predicate for the exercise of our judgment.

WHAT WE SHOULD HAVE DONE

I think that we should take the district court at its word and

review the judgment that it did enter - sanctions based on a

violation of Rule 11(b)(2). I think that the district court’s

conclusions on that violation are probably wrong, although I agree

with Judge Barksdale’s original dissent insofar as it stated that

neither the district court nor the panel was required to decide

whether a motion is necessary to trigger the Mississippi Rule 62(a)

automatic stay. As Judge Barksdale said, the inquiry is, instead,

whether Minor undertook a reasonable inquiry into the authority

regarding Fed. R. Civ. P. 62(f) and, if he did, whether his actions

were objectively reasonable. My own conclusion is that Minor did

make a reasonable inquiry into the authority (scarce as it is to

this good day); I am less certain about whether his action in

executing the judgment without prior court authorization was

objectively reasonable, given the paucity of authority on the

subject. But under the circumstances, I would not uphold sanctions

against Minor for what amounts at most to a mistake of judgment on

that score. I would vacate the sanctions order.

39 40