UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
WILLIAMS et al.,
Plaintiffs, v. No. 19-cv-183 (EGS) ROMARM S.A.,
Defendant.
MEMORANDUM OPINION
Plaintiffs J.H. (through his legal representatives Norman
Williams and Diane Howe), Kevin Attaway, and Jamel Blakeley
(collectively “Plaintiffs”) bring this action against Defendant
Romarm S.A. (“Romarm”) under the District of Columbia’s Assault
Weapons Manufacturing Strict Liability Statute (“SLA”), D.C.
Code § 7-2551 et seq., for damages stemming from two separate
shootings in March 2010, during which firearms manufactured by
Romarm were allegedly used. Pending before the Court is Romarm’s
Motion to Dismiss and a request for the award of costs under 28
U.S.C. § 1927. Upon careful consideration of the motion, the
opposition, the reply thereto, the applicable law, and the
entire record herein, the Court GRANTS IN PART and DENIES IN
PART Romarm’s Motion to Dismiss.1 The Court will also impose
1 Because the Court lacks personal jurisdiction over Romarm, the Court declines to dismiss the Complaint with prejudice. Cf. Bazarian Intern. Financial Associates, L.L.C v. Desarrollos sanctions on Plaintiffs’ counsel pursuant to Rule 11 of the
Federal Rules of Civil Procedure (“Rules”).
I. Factual and Procedural Background
As an initial matter, Plaintiffs’ Complaint is deficient
under the Rules. Rule 8(a) requires a complaint to contain,
among other things, “a short and plain statement of the claim
showing that the pleader is entitled to relief” and “a demand
for the relief sought.” Fed. R. Civ. P. 8(a)(1), (2).
Plaintiffs’ Complaint fails to meet these minimal pleading
standards because, among other things, it contains no claims for
relief, no factual allegations, and no demand for the relief
sought. See generally Compl., ECF No. 1. Rather, the Second
Amended Complaint refers to the dismissal of the case by the
Court of Appeals for the Second Circuit (“Second Circuit”) and
states that plaintiffs are refiling this action. See id. at 1 ¶¶
1, 2.
“When a trial court concludes that an initial complaint
fails to satisfy Rule 8, an appropriate remedy is to strike the
complaint . . . and provide the plaintiff with an opportunity to
file an amended complaint that complies with the Rules.”
Achagzai v. Broad. Bd. of Governors, 109 F. Supp. 3d 67, 69
Aerohotelo, C.A., 793 F. Supp. 2d 124, 131 n.4 (D.D.C. 2011) (noting that “without subject matter jurisdiction, the Court does not have the power to reach the merits of the case and lacks the power to dismiss with prejudice”). 2 (D.D.C. 2015). However, “the purpose of the rule is to give fair
notice of the claim being asserted so as to permit the adverse
party the opportunity to file a responsive answer, prepare an
adequate defense and determine whether the doctrine of res
judicata is applicable.” Brown v. Califano, 75 F.R.D. 497, 498
(D.D.C. 1977). Here, despite the failure of the complaint to
meet the minimal pleading standards, the defendant is well aware
of the factual allegations giving rise to this lawsuit and seeks
to have this case dismissed on, inter alia, collateral estoppel
grounds. See Def.’s Mot., ECF No. 9 at 4. Accordingly, since the
Complaint refers to the case as having been dismissed by the
Second Circuit, the Court will assume the underlying facts as
set forth in the Second Circuit opinion to be true for the
purposes of deciding this motion. As stated by the Second
Circuit:
In two separate shootings in the District of Columbia, J.H. was killed, and Jamel Blakeley and Kevin Attaway sustained serious injuries. The firearm used in the shootings was manufactured by the defendant, Romarm, in Romania in the 1970s, and was sold to a dealer in 2006, which imported it to Vermont, whence it was sold to dealers in Ohio and Maryland, and then to an unidentified purchaser. The shootings took place in March 2010. The Amended Complaint does not allege how the firearm ended up in the District of Columbia or who used it to shoot the plaintiffs.
J.H. (by his legal representatives), Blakeley, and Attaway brought claims pursuant to the District of Columbia Strict Liability Act . .
3 . [and] claim that Romarm is strictly liable for any damages caused to them by the shooting because Romarm manufactured the firearm that was used in the shooting and caused their injuries.
Williams v. Romarm, S.A., 751 F. Appx. 20, 22 (2d Cir. 2018)
(“Williams V”).
Plaintiffs Mr. Williams and Ms. Howe originally filed an
action in the Superior Court for the District of Columbia in
2011. See Copy of D.C. Superior Court Docket No. 2001 CA 002349,
ECF No. 9-1 at 2. Romarm removed the action to the United States
District Court for the District of Columbia, where it was
assigned to Judge Amy Berman Jackson. See Civil Docket for Case
# 11-1924. After both Plaintiffs and Romarm made several
filings, Plaintiffs voluntarily dismissed the action on March
26, 2012. See Notice of Voluntary Dismissal, ECF No. 11. Prior
to dismissing the action before Judge Jackson, Plaintiffs
initiated another action, which was assigned to this Court,
based on the same facts and involving the same parties. See
Civil Docket for Case # 12-436, ECF No. 1.
This Court granted Romarm’s Motion to Dismiss, finding
“that plaintiffs . . . failed to allege personal jurisdiction
over ROMARM” under Foreign Sovereign Immunities Act (“FSIA”) or
the District of Columbia’s long-arm statute. See Williams v.
Romarm, 187 F. Supp. 3d 63, 72 (D.D.C. 2013) (“Williams I”).
This Court’s decision was later affirmed by the Court of Appeals
4 for the District of Columbia Circuit (“D.C. Circuit”). See
Williams v. Romarm, SA, 756 F.3d 777 (D.C. Cir. 2014) (“Williams
II”).
Based on the same operative facts, Plaintiffs Mr. Williams
and Ms. Howe, plus two additional Plaintiffs, Kevin Attaway and
Jamel Blakely, refiled their claims in a state court in
Maryland, and the action was removed to the District Court for
the District of Maryland (“Maryland District Court”). See
Williams v. Romarm S.A., 116 F. Supp. 3d 631, 635 (D. Md. 2015)
(“Williams III”). The issue facing the Maryland District Court
was also whether it had personal jurisdiction over Romarm under
the FSIA. Id. at 635. Finding that Plaintiffs Mr. Attaway and
Mr. Blakeley were in privity with Plaintiffs Mr. Williams and
Ms. Howe in the case litigated before this Court, the Maryland
District Court held that: (1) under collateral estoppel,
Plaintiffs could not relitigate “whether Romarm is independent
from the Romanian government”; and (2) Plaintiffs had not shown
that Romarm had the “minimum contacts” needed with the State of
Maryland to establish the court’s personal jurisdiction over
Romarm. See id. at 638-42. In 2017, after Plaintiffs filed an
Amended Complaint providing more factual allegations, including
Romarm’s alleged “exclusive sales agreement with a Vermont-based
business,” the Maryland District Court found that a “transfer to
the [United States] District of Vermont [was] ‘in the interest
5 of justice,’” as the case could have been brought in Vermont.
Williams v. Romarm, No. CV TDC-14-3124, 2017 WL 87014, at *2 (D.
Md. Jan. 9, 2017)(“Williams VI”).
After obtaining an Order to Transfer, Plaintiffs filed an
action in the District Court for the District of Vermont
(“Vermont District Court”). See Williams v. Romarm S.A., No.
2:17-CV-6, 2017 WL 3842595, at *1 (D. Vt. Sept. 1, 2017)
(“Williams IV”). That court found that it did not have “subject-
matter jurisdiction to adjudicate [the] dispute” under FSIA
because Plaintiffs’ allegations were “not ‘based upon’
[Romarm’s] conduct within the meaning of the FSIA, [and] the
direct-effect clause of the ‘commercial activity’ exception does
not apply.” See id. at 6. After the Vermont District Court
denied Plaintiffs’ Rule 59 motion to reconsider, the Second
Circuit affirmed the Vermont District Court’s decision. See
Williams V, 751 F. Appx. at 23.
On January 25, 2019, Plaintiffs filed the present action.
See Compl., ECF No. 1. Romarm filed its Motion to Dismiss
pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) on June 18,
2019. See Def.’s Mot. to Dismiss, ECF No. 9 (“Def.’s Mot.”).
Plaintiffs filed their Opposition on August 22, 2019, see Pls.’
Opp’n, ECF No. 18, and Romarm filed its Reply on August 30,
2019. See Reply, ECF No. 19.
The motion is ripe and ready for the Court’s adjudication.
6 II. Legal Standard
Under Rule 12(b)(2), a defendant can move to dismiss a
lawsuit if the court lacks personal jurisdiction over the
defendant. Fed. R. Civ. P. 12(b)(2). A plaintiff bears the
burden of making a prima facie showing that the court has
personal jurisdiction over a defendant. Kurtz v. United States,
779 F. Supp. 2d 50, 51 (D.D.C. 2011). “A plaintiff must plead
specific facts providing a basis for personal jurisdiction[,]”
id., and a plaintiff cannot rely on merely conclusory
allegations, Buesgens v. Brown, 567 F. Supp. 2d 26, 31 (D.D.C.
2008). Accordingly, to establish personal jurisdiction over a
defendant, the “plaintiff must allege specific acts connecting
[the] defendant with the forum[.]” Second Amendment Found. v.
U.S. Conf. of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001)
(quoting First Chicago Int'l v. United Exch. Co., 836 F.2d 1375,
1378 (D.C. Cir. 1988)).
III. Analysis
Romarm argues that Plaintiffs’ Complaint “should be
dismissed because (1) the doctrine of collateral estoppel
prevents Plaintiffs from relitigating personal jurisdiction and
subject matter jurisdiction; (2) Plaintiffs’ lawsuit was
untimely filed; and (3) Plaintiffs have otherwise failed to
state a claim upon which relief may be granted.” Def.’s Mot.,
ECF No. 9 at 13. Because the Court concludes that collateral
7 estoppel prevents Plaintiffs from relitigating personal
jurisdiction and finds that issue to be dispositive, it declines
to address Romarm’s alternative arguments for dismissal.
Plaintiffs do not directly respond to Romarm’s arguments,
but in a confusing and disjointed brief argue that: (1) the
Vermont District Court and Second Circuit decisions regarding
lack of subject matter jurisdiction were wrongly decided and
there could be subject matter jurisdiction under District of
Columbia law, Pls.’ Opp’n, ECF No. 18 at 10-18, and (2) there is
personal jurisdiction over Romarm in the District of Columbia,”
id. at 19-27.
A. Plaintiffs’ Claims are Barred under the Doctrine of Collateral Estoppel
Romarm argues that “collateral estoppel prevents Plaintiffs
from relitigating issues related to . . . personal jurisdiction”
because
Plaintiffs previously filed a lawsuit in the District Court for the District of Columbia with identical allegations arising from the same alleged conduct. The issue of personal jurisdiction was litigated by the parties and determined by Judge Sullivan when the case was dismissed for lack of personal jurisdiction. [Williams I], 187 F. Supp. 3d at 74. The final judgment was then affirmed by the Court of Appeals for the District of Columbia Circuit. Williams [II], 756 F.3d at 787 (“For the foregoing reasons, the judgment of the district court is Affirmed.”). Both the District Court and the District of Columbia Circuit found that “due process will not
8 permit the district court to exercise its jurisdiction over Romarm.” 756 F.3d at 786.
Def.’s Mot., ECF No. 9 at 14. Plaintiffs do not directly respond
to Romarm’s collateral estoppel argument, but argue that there
is personal jurisdiction over Romarm in the District of Columbia
because: (i) there is personal jurisdiction over Romarm in
Vermont; and (ii) personal jurisdiction and subject matter
jurisdiction are “‘inextricably intertwined’ in FSIA cases.” id.
at 19-27.
“The preclusive effect of a judgment is defined by claim
preclusion and issue preclusion, [also known as collateral
estoppel,] which are collectively referred to as res judicata.”
Taylor v. Sturgell, 553 U.S. 880, 891 (2008). Under the doctrine
of collateral estoppel, “once a court has decided an issue of
fact or law necessary to its judgment, that decision may
preclude relitigation of the issue in a suit on a different
cause of action involving a party to the first case.” Jahr v.
D.C., 968 F. Supp. 2d 186, 190 (D.D.C. 2013) (Sullivan, J.)
(quoting U.S. Postal Serv. v. Am. Postal Workers Union, 553 F.3d
686, 696 (D.C. Cir. 2009)). “By precluding parties from
contesting matters they have already had a full and fair
opportunity to litigate, collateral estoppel conserves judicial
resources, avoids inconsistent results, engenders respect for
judgments of predictable and certain effect, and prevents serial
9 forum-shopping and piecemeal litigation.” Jahr, 968 F. Supp. 2d
at 190 (internal quotation marks, brackets, and citations
omitted).
“For a defendant to successfully show that a final judgment
in a prior case precludes the plaintiff from litigating an issue
in the present case, the defendant must demonstrate three
elements: ‘[1] the same issue now being raised was contested by
the parties and submitted for judicial determination in the
prior case; [2] the issue was actually and necessarily
determined by a court of competent jurisdiction in that prior
case; and [3] preclusion in the second case does not work a
basic unfairness to the party bound by the first
determination.’” Massey v. Am. Fed'n of Gov't Employees, 253 F.
Supp. 3d 42, 48 (D.D.C. 2017) (quoting Martin v. Dep't of
Justice, 488 F.3d 446, 454 (D.C. Cir. 2007).
1. The same issue now being raised was contested by the parties and submitted for judicial determination in the prior cases.
With respect to the first element, in the prior action
before this Court, Plaintiffs Mr. Williams and Ms. Howe brought
the same wrongful death claim under the Survival Act and the
same claim under the SLA, on behalf of their son, alleging
damages stemming from his shooting death with a firearm
allegedly manufactured by Romarm. See Williams I, 187 F. Supp.
3d at 66. The issue before the Court on Romarm’s Motion to
10 Dismiss was whether the Court had personal jurisdiction over
Romarm under the FSIA and D.C.’s long-arm statute. Id. at 68.
The Maryland District Court faced the same question and
concluded that collateral estoppel barred the Plaintiffs from
relitigating the question after this Court had already decided
the issue. See Williams III, 116 F. Supp. 3d at 635, 636. The
court found that even though Mr. Attaway and Mr. Blakeley were
not a party to Williams I, they were in privity with Mr.
Williams and Ms. Howe because their interests “with respect to
the issue of personal jurisdiction over Romarm were identical to
the interests of [Mr.] Williams and [Ms.] Howe in [Williams I]:
they shared the interest of establishing that Romarm was
sufficiently controlled by the Romanian government, such that it
was not a separate and distinct entity that qualifies as a
‘person’ with due process rights for purposes of personal
jurisdiction.” See id. at 638. The Maryland District Court also
noted that the four Plaintiffs shared an attorney and that he
acknowledged during oral argument that all four Plaintiffs’
interests were identical. Id. Then, as now, Plaintiffs’ claims
are based on the same causes of action and factual allegations
and the Court addressed the same issue it is confronting in this
case—whether this Court has personal jurisdiction over Romarm
under FSIA. See Williams I, 187 F. Supp. 3d at 70. Plaintiffs
essentially concede that the issues involved in this action are
11 the same as were involved in Williams I, even noting that
Plaintiffs seek to “timely re-file this action,” identify the
compliant as the “Second Amended Complaint,” and fail to allege
any new facts. See generally Compl., ECF No. 1.
Accordingly, the Court finds that the first element is met
because the same issue now being raised—personal jurisdiction—
was contested by the parties and submitted for judicial
determination in Williams I and Williams II.
2. The issue was actually and necessarily determined by a court of competent jurisdiction in the prior cases.
The second element is met because the determination of
whether this Court had personal jurisdiction was necessary to
this Court’s February 4, 2013 Order granting the Motion to
Dismiss. As the Court noted, “[u]nder Federal Rule of Civil
Procedure 12(b)(2), a plaintiff bears the burden of establishing
a factual basis for personal jurisdiction over the
defendant(s).” Williams I, 187 F. Supp. 3d at 70 (citing Crane
v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990)).
Plaintiffs were unable to meet their burden in Williams I and do
not attempt to meet the burden in this case as, Plaintiffs do
not identify any changes in law nor does the complaint contain
new factual allegations that would give this Court personal
jurisdiction over Romarm. Accordingly, the Court finds that the
issue of personal jurisdiction over Romarm was actually and
12 necessarily determined by a court of competent jurisdiction in
Williams I and Williams II.
3. Preclusion in this case does not work a basic unfairness to the parties bound by the prior determinations.
There is no basic unfairness to the Plaintiffs here. First,
the Plaintiffs had a full and fair opportunity to litigate the
issue of personal jurisdiction before this Court and the D.C.
Circuit, and they do not contend otherwise. See generally Pls.’
Opp’n, ECF No. 18. And as the Maryland District Court explained—
and this Court agrees—even though Mr. Attaway and Mr. Blakeley
were not a party to Williams I, because they were in privity
with Mr. Williams and Ms. Howe, collateral estoppel barred all
four Plaintiffs from relitigating the question after this Court,
based on the same factual allegations, already decided the
issue. See Williams III, 116 F. Supp. 3d at 635-36. Accordingly,
the Court finds that preclusion does not work a basic unfairness
to the Plaintiffs here.
For these reasons, the Court GRANTS Romarm’s Motion to
Dismiss.
B. Plaintiffs’ Counsel is Subject to Sanctions Pursuant to Rule 11
After Romarm filed its motion to dismiss, the Court
directed Plaintiffs to address: (1) why sanctions should not be
imposed pursuant to Rule 11 of the Federal Rules of Civil
13 Procedure; and (2) whether there was any legal basis to commence
this lawsuit in light of the fact that this Court dismissed an
identical lawsuit, filed in 2012, against the same defendant
based on the same facts and claims. See Min. Order of July 29,
2019; see also Fed. R. Civ. P. 11(c)(3).
Pursuant to Rule 11, 28 U.S.C. § 1927, and the Court’s
inherent authority, Romarm argues that it should be awarded
costs, expenses, and attorneys’ fees incurred by the filing of
the motion to dismiss. Def.’s Mot., ECF No. 9 at 22. Romarm
contends that “[i]n this case, not only is there no justifiable
basis for Plaintiffs’ pending lawsuit, but Plaintiffs’ counsel’s
conduct has demonstrated that the lawsuit was filed in bad faith
and without a legitimate basis.” Id.2
Rule 11 provides as follows: By presenting to the court a pleading, written motion, or other paper--whether by signing,
2 Pursuant to 28 U.S.C. § 1927, “[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.” The Court has inherent authority to sanction an attorney who has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991). Because the Court has determined that Plaintiffs’ counsel should be sanctioned under Rule 11, the Court does not reach the issue of whether Plaintiffs’ counsel’s conduct is also sanctionable pursuant to Section 1927 and the Court’s inherent power. See id. at 50 (noting that “when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules rather than the inherent power”). 14 filing, submitting, or later advocating it-- an attorney or unrepresented party certifies 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, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11(b). Accordingly, “[u]nder Rule 11, sanctions
may be imposed if a reasonable inquiry discloses the pleading,
motion, or paper is (1) not well grounded in fact, (2) not
warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law, or (3)
interposed for any improper purpose such as harassment or delay.”
Westmoreland v. CBS Inc., 770 F.2d 1168, 1174 (D.C. Cir. 1985).
The court is expected to avoid using the wisdom of hindsight and should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was
15 submitted. Thus, what constitutes a reasonable inquiry may depend on . . . whether the pleading, motion, or other paper was based on a plausible view of the law . . . .
Fed. R. Civ. P. 11 Advisory Committee’s Notes to 1983 Amendment.
“Rule 11 . . . imposes an objective standard of reasonable
inquiry which does not mandate a finding of bad faith.”
Chambers, 501 U.S. at 47. Finally, the Court has “discretion to
determine both whether a Rule 11 violation has occurred and what
sanctions should be imposed if there has been a violation.”
Cobell v. Norton, 211 F.R.D. 7, 10 (D.D.C. 2002) (internal
quotation marks and citation omitted).
In response to the Court’s Minute Order of July 29, 2019,
Plaintiffs’ counsel, Daniel Wemhoff (“Mr. Wemhoff”), submitted a
declaration in which he avers that:
[N]one of the filing and re-filings I have made on behalf of my clients, in the above styled case over the past 8 years, has been fanciful, revengeful or designed to waste court resources, but always in the belief that personal and subject matter jurisdiction is available under this incredibly murky statute (the FSIA) now that personal jurisdiction was ordered leading to subject matter jurisdiction under Law of the Case established in the second re-filing in Maryland. Particularly, this re-filing comes after the Second Circuit’s unpublished “Summary Order”, which it claims “does not have precedential effect” and is “without prejudice” on jurisdictional grounds.
Pls.’ Opp’n, ECF No. 18 at 6. Mr. Wemhoff further argues that
the legislative history of the FSIA indicates that Congress
16 intended to provide plaintiffs with access to the courts. Id.
Finally, Mr. Wemhoff argues that he believes “this case to be
one of first impression as it depends exclusively on a unique
‘state’ law, the District of Columbia’s ‘Strict Liability Act’
(SLA), which if interpreted correctly, exposes Romarm to civil
liability.” Id. at 7.
In its reply brief, Romarm argues that “Plaintiffs’
counsel’s conduct has demonstrated that the lawsuit was filed in
bad faith and without any legitimate basis [because it] is
axiomatic that, to sustain a civil lawsuit, both personal
jurisdiction and subject matter jurisdiction elements must be
met,” and Plaintiffs have been told by several district courts
and courts of appeal that they have not met that burden. Def.’s
Reply, ECF No. 19 at 9.
Here, the question is whether the Complaint is based on a
plausible view of the law. See Fed. R. Civ. P. 11 Advisory
Committee’s Notes to 1983 Amendment. As an initial matter, and
as noted above, the Complaint is devoid of factual allegations
and legal claims. As the facts and legal claims are identical to
those in the appeal before the Second Circuit, the Court has
determined that Plaintiffs’ claims should be dismissed on
collateral estoppel grounds.
Although his arguments are not entirely clear, Mr. Wemhoff
contends that his filings do not merit sanctions for several
17 reasons. See Pls.’ Opp’n, ECF No. 18 at 4-9. First, Mr. Wemhoff
argues that “personal jurisdiction was ordered” by the Maryland
District Court, was assumed by the Vermont District Court, and
therefore personal jurisdiction became the “law of the case.”
Pls.’ Opp’n, ECF No. 18 at 6-8. Mr. Wemhoff misunderstands the
rulings of the Maryland District and Vermont District Courts.
The Maryland District Court transferred the case to Vermont
after concluding that the case could have been brought in
Vermont, see Williams VI, 2017 WL 87014, at *2, but the Vermont
District Court decided the case on subject matter jurisdiction
grounds without reaching personal jurisdiction, see Williams IV,
2017 WL 3842595, at *6. In any event, Plaintiffs’ counsel
provides no legal authority for why, even if the Vermont
District Court could exercise personal jurisdiction over Romarm
in Vermont, this Court can exercise personal jurisdiction over
Romarm in the District of Columbia in view of this Court’s
dismissal of these same claims for lack of personal jurisdiction
and the D.C. Circuit’s affirmation of that dismissal.
Mr. Wemhoff relies on U.S. Fidelity and Guaranty Co. v.
Braspetro Oil Services, Co., 199 F.3d 94 (2d Cir. 1999) to
support his argument that filing this action in the District of
Columbia is proper because personal jurisdiction and subject
matter jurisdiction are “inextricably intertwined” in FSIA
cases. Pls.’ Opp’n, ECF No. 18 at 22. In Braspetro, the district 18 court denied the defendant’s motion to dismiss for lack of
subject matter jurisdiction and lack of personal jurisdiction
under FSIA and the defendant sought interlocutory review of that
decision. See 199 F.3d at 96. To exercise pendent jurisdiction
over the defendant’s personal jurisdiction argument, the Second
Circuit needed to determine whether, pursuant to Second Circuit
precedent, that argument was “inextricably intertwined” with the
defendant’s subject matter jurisdiction argument, and the Court
determined that it was. Id. at 97. Accordingly, this case
provides no support for counsel’s argument that this case is
properly refiled in the District of Columbia.
Mr. Wemhoff finds it significant that the Second Circuit’s
decision in Braspetro is without precedential effect, and that
it was “without prejudice.” Pls.’ Opp’n, ECF No. 18 at 21-22. But
the lack of precedential effect in Braspetro lends no support to
Mr. Wemhoff’s argument for refiling this action in this Court.
Braspetro does not provide any legal support for this Court to
exercise personal jurisdiction over Romarm.
Next, Mr. Wemhoff argues that Congress intended to provide
plaintiffs with access to the Courts with the enactment of FSIA,
but he provides no new legal support or factual assertions to
meet his burden of establishing that this Court has personal
jurisdiction over Romarm. Finally, even if this is a case of
19 first impression under the SLA, Mr. Wemhoff again provides no
new legal support or factual assertions to support personal
jurisdiction over Romarm. Thus, at the time Plaintiffs’ counsel
filed the Complaint in this case, it was not reasonable for him
to believe that the Complaint was based on a plausible view of
the law. Accordingly, it is appropriate for the Court to impose
sanctions. See Del Canto v. ITT Sheraton Corp., 865 F. Supp.
934, 939-40 (D.D.C. 1994) (noting that “it is without doubt
appropriate to impose some sanction under Rule 11 in order to
deter repetition of the unacceptable conduct of counsel and
‘comparable conduct by others similarly situated.’” (quoting
Fed. R. Civ. P. 11(c)(2))).
Given that the Court has determined that Rule 11 sanctions
are appropriate, the question becomes what sanction is
appropriate. Romarm seeks costs, expenses, and attorney’s fees
associated with the filing of the Motion to Dismiss. Def.’s
Mot., ECF No. 9 at 22. Rule 11(c) provides that a court may
impose sanctions in response to a motion pursuant to Rule
11(c)(1)(A), or on its own initiative pursuant to Rule
11(c)(1)(B), but limits the types of sanctions that may be
imposed:
A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a 20 penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.
Fed. R. Civ. P. 11(c). Although the D.C. Circuit has not
addressed this aspect of Rule 11, the Second Circuit has
interpreted “[t]he rule [to] preclude[] a court from awarding
attorneys’ fees on its own initiative.” Nuwesra v. Merrill Lynch
Fenner and Smith Inc., 174 F.3d 87, 94 (2d Cir. 1999) (citing
Advisory Committee's Notes to 1993 Amendment (“a monetary
sanction imposed after a court-initiated show cause order [is]
limited to a penalty payable to the court.”)).
Here, Romarm did not file a Rule 11 motion despite having
notified Plaintiffs’ counsel on May 19, 2019 that it intended to
do so. Ex. G to Def.’s Mot., ECF No. 9-7 at 4. Accordingly, the
Court is without authority to award attorneys’ fees and other
expenses. See Nuwesra, 178 F.3d at 95.
Rule 11 provides that “[a] sanction imposed under this rule
must be limited to what suffices to deter repetition of the
conduct or comparable conduct by others similarly situated” and
that the sanction may include “an order to pay a penalty into
court.” Fed. R. Civ. P. 11(c)(4). The Court is cognizant of Mr.
Wemhoff’s duty to zealously represent his clients, but he is
also bound by Rule 11 to ensure that his filings with the Court
21 are based on a plausible view of the law so that the Court and
counsel are not subjected to needless litigation costs. See
Westmoreland, 770 F.2d at 1179 (“Rule 11 is specifically
designed to deter groundless litigation tactics and stem
needless litigation costs to court and counsel.”). Accordingly,
the Court has determined in its discretion that Mr. Wemhoff
shall pay to the Clerk of the Court a $1,000 penalty. The Court
finds that this sanction is “not more severe than reasonably
necessary to deter repetition of the conduct by the offending
person or comparable conduct by similarly situated persons.”
Fed. R. Civ. P. 11 Advisory Committee's Notes to 1993 Amendment;
see also Reynolds v. United States Capitol Police Board, 357 F.
Supp. 19, 27 (D.D.C. 2004) (ordering $1,000 penalty to be paid
to the Clerk of Court for continuing legal education); see also
Del Canto, 865 F. Supp. at 940 (ordering $500 penalty to be paid
to the registry of the court “to be used as scholarships for
continuing education courses on Rule 11 to be paid equally to
two young lawyers with five to ten years of experience in
litigating for individuals on a contingent fee basis, in order
to educate them and thereby deter the conduct of at least two
lawyers from Rule 11 violations”).
22 Finally, the Court notes that Mr. Wemhoff3 has a history of
violating the rules of this Court. When initially filing this
action, Mr. Wemhoff was not a member in good standing in this
Court, pursuant to Local Civil Rule (“LCR”) 44.1(a) because he
had not paid his renewal fee as required under LCR 83.9(a). In
addition, Mr. Wemhoff’s initial filing was labeled “SECOND
AMENDED COMPLAINT,” see Amended Compl., ECF No. 1, and had
attached as his Memorandum in Support, a document titled
“PLAINTIFFS' AMENDED COMPLAINT PURSUANT TO FRCP RULE 15 (a)(2)
and (c)” which had apparently been filed in the Maryland
District Court. See Am. Compl., ECF No. 1-3. Mr. Wemhoff
eventually came into compliance with LCR 83.9(a) by paying his
renewal fee and refiling his initial filing with a corrected
title, “Complaint.” See Compl., ECF No. 2. However, in both his
initial filing and corrected filing, Mr. Wemhoff failed to
comply with LCR 40.5(b)(4) because he identifies Williams V, as
decided in the Second Circuit, as the only related case. See
Notice, ECF No. 1-4; see also Notice, ECF No. 4. Mr. Wemhoff
also failed to comply with this rule in 2012 by failing to
3 The Court takes notice that, in 2016, the District of Columbia Court of Appeals found that Mr. Wemhoff violated District of Columbia Rules of Professional Conduct 1.6(a) (revealing a client confidence or secret without authorization or other justification), 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal), and 8.4(d) (engaging in conduct that seriously interferes with the administration of justice). In re Wemhoff, 142 A.3d 573 (D.C. 2016). 23 notify this Court of a related case then pending before Judge
Amy Berman Jackson, see Civil Action No. 11-1924, when he filed
the same complaint in Civil Action No. 12-436, which was
assigned to this Court. Having found that Mr. Wemhoff violated
Local Civil Rule 40.5(b)(4) multiple times, this Court will
refer Mr. Wemhoff to the District of Columbia Bar Disciplinary
Counsel and to the United States District Court for the District
of Columbia Committee on Grievances.
III. Conclusion
For the reasons set forth above, the Court GRANTS IN PART
and DENIES IN PART Romarm’s Motion to Dismiss and dismisses
Plaintiff’s Complaint in its entirety.
Because it was not reasonable for Plaintiffs’ counsel to
believe that the Complaint was based on a plausible view of the
law, the Court imposes sanctions against Mr. Wemhoff in the form
of a $1,000 penalty to be paid to the Clerk of Court.
A separate Order accompany this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge April 1, 2020