# Brown v. Clark

> District Court, M.D. Louisiana · July 5, 2022

URL: https://www.frixlaw.com/law-library/cases/10192300

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** July 5, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

FANNIE BROWN CIVIL ACTION
VERSUS 18-1069-SDD-RLB
GERALDINE CLARK, ef al.
RULING
This matter is before the Court on the Motion to Issue Order to Show Cause! filed
by Defendant, Wright National Flood Insurance Company (“Wright National’). Plaintiff,
Fannie Brown (‘Plaintiff’) filed a Counter Motion In Opposition to Motion for
Miscellaneous Relief or Alternatively Motion to Dismiss Motion for Miscellaneous Relief,?
to which Wright a Reply.2 For the reasons that follow, Wright's Motion shall be
GRANTED,
I. FACTUAL AND PROCEDURAL BACKGROUND
This suit was filed by Plaintiff, Fannie B. Brown (‘Plaintiff’) against her insurer
seeking damages for an automobile accident occurring on January 15, 2017; she later
amended her complaint and added claims against her insurer arising out of damages
sustained to her home in the “Great Flood of 2016." Plaintiffs amended petition added -
Wright National Fiood Insurance Company (‘Wright’) as a defendant based on Plaintiffs

1 Rec. Doc. No. 430,
? Rec. Doc. No. 131.
3 Rec. Doc. No. 132.
4 Rec. Doc. No. 1, pp. 2-3.
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flood insurance policy.> On December 7, 2018, the case was removed to federal court.®

On January 31, 2019, the magistrate judge set a scheduling conference for
discovery, requiring the parties to make Rule 26(a)(1) disclosures no later than seven
days before the scheduling conference on January 31.’ Wright moved to compel
disclosures, which was unopposed by Plaintiff, so the Court granted Wright's motion to
compel Plaintiff to make Rule 26(a)(1) disclosures.’ Thereafter, Wright filed a motion for
fees and costs, claiming that the parties had conferred over the issue of the reasonable
amount of payment and were not able to reach an agreement on the payment of any
monies.? Wright submitted a declaration from its counsel alleging it incurred $636.50 in
attorney's fees.'° The Court ordered Plaintiff's counsel to pay that amount within 14 days
of its order dated August 7, 2019, pursuant to Rule 37(a)(5)(C) of the Federal Rules of
Civil Procedure."!
In response, Plaintiff filed a Motion for New Trial’? seeking review of the Magistrate
Judge’s Order; this Court denied Plaintiffs Motion for New Trial.1> Wright and Plaintiff
cross-moved for summary judgment.’4 The Court granted summary judgment in favor of
Wright!® and denied Plaintiff's motion for summary judgment.'® On August 19, 2020, this

§ fd. at p. 6.
7 Rec. Doc. No. 7, p.
® Rec. Doc. No. 38,
Doc. No. 48.
10 Rec. Doc. No. 48-2.
"1 Rec. Doc. No. 51, p. 3.
12 Rec. Doc. No. 55.
13 Rec. Doc. No. 88.
14 Rec. Doc. Nos. 90 & 98.
1S Rec. Doc. No, 113.
18 Rec. Doc. No. 114.
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Court entered judgment in favor of Defendants Liberty and Wright and dismissed
Plaintiff's claims with prejudice.
Pursuant to the judgment, Wright moved to tax costs against Plaintiff.18 Plaintiff
appealed the Court's Ruling and Judgment to the United States Court of Appeals for the
Fifth Circuit.'® The Fifth Circuit affirmed this Court’s judgment against Plaintiff and taxed
appellate costs against Plaintiff associated with the appeal.2° Considering the Mandate
from the Fifth Circuit and that no opposition to the taxation of costs had been filed, the
Court taxed costs against Plaintiff in the amount of $1,792.90.2'
Plaintiff moved to review the costs taxed against her.2 The Court reviewed the
motion and Wright’s opposition and concluded that Plaintiff had confused taxable costs
in this Court with taxable costs on appeal in the Fifth Circuit, and she failed to cite to any
authority in support of her Motion to Review; thus, the Court denied the motion.22 On
November 29, 2021, Wright filed the pending motion seeing the Court’s issuance of a
Show Cause Order requiring Plaintiff's counse! to explain why he not be held in contempt
of Court for his failure to abide by this Court’s Order for taxation of costs and the prior
$636.50 discovery sanction.*4 Wright maintains that the conduct of Plaintiff's counsel has
been an attempt to obstruct the progress of this case and needlessly increase the cost of
litigation.2°

” Rec. Doc, No. 117.
18 Rec, Doc. No. 119.
18 Rec. Doc. No. 20.
20 Rec. Doc. No. 124.
21 Rec. Doc. No, 125.
22 Rec. Doc. No. 126.
23 Rec. Doc. No. 129, p. 2.
74 Rec, Doc. No. 130, pp. 2-3.
28 Rec. Doc. No. 130-1, p. 3.
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In response, Plaintiff's counsel filed a Counter Motion citing the Federal Rules of
Appellate Procedure 39(d) in support of her position.2° Counsel asserts that, since Wright
never filed an itemized and verified bill of costs, the order taxing costs against Plaintiff is
invalid.2” Counsel further argues that the taxation of costs was untimely because the order
was issued after the closing of the case but prior to the lodging of appeal.2® Counsel fails
entirely to address the discovery sanction and generally asserts arguments that have
been repeatedly rejected by this Court. Wright submitted a Reply raising the question
whether Plaintiff's counsel should be subject to Rule 11(b) sanctions for the substance of
the Counter Motion.
This Court has already held that the discovery sanction imposed against Plaintiff's
counsel is valid as is the taxation of fees and costs related to these proceedings. The
challenges to the discovery sanction and the imposed fees and costs have been reviewed
and rejected.2° The Court will not continue to litigate these matters; Plaintiff has lost this
case, has lost her appeal, and SHALL pay the fees and costs taxed. Likewise, Plaintiffs
counsel SHALL pay discovery sanction.
The question before the Court at present is whether Plaintiff's counsel should be
held in civil contempt for failing to comply with these orders and whether Plaintiff's counsel
should be further sanctioned under Rule 11 of the Federal Rules of Civil Procedure for
continuing to file frivolous pleadings.

27 fd. at p. 2.
78 fd. at p. 4.
28 Rec, Doc, Nos. 48, 126, 129, p. 2.
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ll. LAW & ANALYSIS
“[I]t is firmly established that the power to punish for contempts is inherent in all
courts.”° In a civil contempt proceeding, the movant must establish by clear and
convincing evidence that (1) a court order was in effect, (2) the order required specified
conduct by the respondent, and (3) the respondent failed to comply with the court's
order.3' “Once the movant has shown a prima facie case, the burden falls on the violating
party to ‘show either mitigating circumstances that might cause the district court to
withhold the exercise of its contempt power, or substantial compliance with the ...
order.” If a party is found in civil contempt, a court may sanction that party “to coerce
compliance ... or to compensate ... for the ... violation.”**
When the elements of civil contempt have been met, the Court must still consider
whether civil contempt is appropriate. The Court must consider: “1) the harm from
noncompliance; (2) the probable effectiveness of the sanction; (3) the financial resources
of the contemnor and the burden the sanctions may impose; and (4) the willfulness of the
contemnor in disregarding the court's order.”*4
In Massachusetts Mutual Life ins. Co. v. Williamson,*> a case upon which Wright
relies, the District Court for the Northern District of Mississippi addressed a case wherein
a party failed to comply with a court-ordered monetary sanction. The court held that

30 Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (quotation marks omitted).
31 United States v. City of Jackson, Miss., 359 F.3d 727, 731 (5th Cir. 2004), citing Am. Airlines, Inc. v.
Allied Pilots Ass'n, 228 F.3d 574, 581 (5th Cir. 2000).
*2 Little Tchefuncte River Assoc. v. Artesian Util. Co., Inc., 155 F. Supp. 3d 637, 657 (E.D. La. 2015) (quoting
Whitfield v. Pennington, 832 F.2d 909, 914 (Sth Cir. 1987}).
33 In re White-Robinson, 777 F.3d 792, 795 (5th Cir. 2015) (quoting In re Terrebonne Fuel & Lube, Inc., 108
F.3d 609, 612 (5th Cir. 1997).
34 | amar Fin. Corp. v. Adams, 918 F.2d 564, 567 (5th Cir. 1990) (citing United Mine Workers, 330 U.S.
258).
35 No. 4:15-CV-166-DMB-JMV, No. 4:15-CV-184-DMB-JMV, 2019 WL 7195318 (N.D. Miss. Dec. 26, 2019).
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Williamson was properly ordered to pay a $3,000 fee award, held her in civil contempt,
and allowed Massachusetts Mutual to submit additional documentation for its losses
caused by Willlamson.*® The court explained:
In addition to the inherent power of contempt, federal courts retain the
inherent power to sanction abuse of the judicial process. Manez v.
Bridgestone Firestone N. Am. Tire, LLC, 533 F.3d 578, 591 (7th Cir. 2008)
(“{C]ourts retain inherent power to punish the full range of litigation abuses.
This power is distinct from the contempt power.”}(citation omitted). While
sanctions under this power do not require a violation of a court order (as
would a sanction based on civil contempt), they ordinarily require a specific
finding of bad faith on the part of the party to be sanctioned. in re Sealed
Appellant, 194 F.3d 666, 671 (5th Cir. 1999). However, this finding may be
inferred “[w]hen bad faith is patent from the record...” /d. Sanctions imposed
under this power should serve one of two purposes “vindicating judicial
authority without resort to the more drastic sanctions available for contempt
of court and making the [other] party whole for expenses caused by his
opponent's obstinacy.” Chambers, 501 U.S. at 46. In choosing a sanction,
a court “must employ the least possible power adequate to the end
proposed.” /n re Carroll, 850 F.3d 811, 814 (5th Cir. 2017).
When assessing fees to an opposing party, a court invoking its inherent
power to sanction bad-faith conduct “may go no further than to redress the
wronged party for losses sustained.” Goodyear Tire & Rubber Co. v.
Haeger, 137 S. Ct. 1178, 1186 (2017)(quotation marks omitted). However,
a court may levy a fine to be paid to the Clerk of Court, to address
misconduct. See Steeger v. JMS Cleaning Servs., LLC, No. 17cv8013,
2018 WL 1363497, at *2 (S.D.N.Y. Mar. 15, 2018) (Goodyear Tire did not
prevent imposition of fine under court's inherent power).??
Wright also submits that the decision in Garcia v. Metropolitan Life Insurance
Company® is applicable to the facts this case. In Garcia, the court had previously’ .
ordered the plaintiffs counsel to pay $10,936.92 in sanctions to the defendants after
“repeatedly filing meritless lawsuits.”°° When a few months passed with no payment, the

6 Id, al “4,
37 fd, at *3 (footnotes omitted).
38 No. 1:49-cv-113, 2020 WL. 6688603 (S.D. Tex. Oct. 1, 2020).
39 fd. at *1.
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defendants moved for contempt; the plaintiff's counsel moved to dismiss the origina!
sanctions order.” The court reviewed the briefs and granted the motion for contempt.‘
In this matter, the Order requiring Piaintiff's counsel to pay Wright $636.50 was
entered on August 7, 2019. The Order required this payment on or before August 21,
2019. Nearly three years later, Plaintiff's counsel has still not paid this sanction. The
Plaintiff was taxed with fees and costs related to these proceedings on September 23,
2021; Plaintiff has yet to pay these fees and costs.
Replying to Plaintiff's Counter Motion, Wright has also raised the issue of the
appropriateness of a Rule 11(b) sanction. Federal Rule of Civil Procedure 11 provides,
in pertinent part:
(b) By presenting to the court a pleading, written motion, or other paper—whether
by signing, 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:

(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

(c}(3) On the Court's Initiative. On its own, the court may order an attorney, law
firm, or party to show cause why conduct specifically described in the order has
not violated Rule 11(b).
In Heisler v. Kean Miller, LLP, the Eastern District of Louisiana explained:
The purpose of Rule 11 is to deter baseless filings in the district court, and
to spare innocent litigants and overburdened courts from the filing of
40 Id.
41 Id,
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frivolous lawsuits.44 The United States Fifth Circuit Court of Appeals has
interpreted Rule 11 to impose three affirmative duties, which an attorney or
litigant, by signing a pleading, written motion, or other paper, certifies he
has complied with: (1) the duty to conduct a reasonable investigation into
the facts supporting the document; (2) the duty to conduct a reasonable
inquiry into the law to ensure the document “embodies existing legal
principles or a good faith argument for extension, modification or reversal
of existing law”; and (3) the duty to certify that a document is not filed or
interposed merely for purposes of delay, harassment, or increasing litigation
costs.*5 Courts judge compliance with Rule 11’s standards under an
objective reasonableness standard, evaluating the circumstances as they
existed at the time the challenged filing was signed by the lawyer or
litigant.44
In light of the objective standard of reasonableness applied under Rule 11,
an attorney's subjective good faith is not enough to immunize him from
sanctions based on a Rule 171 violation. In deciding a motion under Rule
11, courts within the Fifth Circuit are required to determine whether the
signatory has complied with the affirmative duties imposed under the rule.*®
District courts have wide latitude to impose sanctions under Rule 11 as
district court rulings under Rule 11 are reviewed for abuse of discretion.*’
District courts possess discretion in determining the nature of the
appropriate sanction.*§
Rule 11 sanction decisions must comport with due process requirements.*9
Further, courts must ensure that notice and an opportunity to be heard have been given
before Rule 11 sanctions may be imposed.®° This requirement is generally satisfied by
‘[s]imply giving the individua! accused of a Rule 11 violation a chance to respond through

42 No, 21-724, 2021 WL 5919507, *3 (E.D. La. Dec. 15, 2021)(citing Cotfer & Gell v. Hartmarx Corp., 496
U.S. 384, 393 (1990})).
43 id, (quoting Childs v. State Farm Mut. Auto. Ins. Co,, 29 F.3d 1019, 1023-24 (5th Cir. 1994)).
44 tel. (citing Childs, 29 F.3d at 1024).
45 Id. (citing Thomas v. Cap. Sec, Servs., Inc, 836 F.2d 866, 873 (5th Cir. 1988)),
46 fd. (citing Thomas, 836 F.2d at 875).
47 Id. (citing Whitehead v. Food Max of Miss., inc., 332 F.3d 796, 802 (5th Cir. 2003)).
48 Jd. (citing Thomas, 836 F.2d at 876-877).
49 fd. at *7 (citing Childs, 29 F.3d at 1027. Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 399, 349 (5th Cir.
1990)).
50 Ming Childs, 29 F. 3d at 1027 (citing Bodie v. Connecticut, 401 U.S. 371, 379 (19713, and Veillon v.
Exploration Services, Inc., 876 F.2d 1197 (5th Cir. 1989))).
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the submission of a brief.”°"
As to the appropriateness of the sanction, the He/s/er court stated:
Once a violation of Rule 11 has been found, the district court is vested with
considerable discretion in tailoring an appropriate sanction to further the
purposes of Rule 11—namely, punishment, deterrence, and
compensation.*? Rule 11’s primary purpose is deterrence. The Fifth Circuit
has instructed district courts to impose the least severe sanction in pursuit
of the purposes of Rule 11.54 Rule 11(c)(4) “expressly allows a district court
to impose monetary sanctions payable to the court."°5 The Advisory
Committee Notes to the 1993 amendments to Rule 11 provide that “[s]ince
the purpose of Rule 11 sanctions is to deter rather than to compensate, the
rule provides that, if a monetary penalty is imposed, it should ordinarily be
paid into court as a penalty.”5°
Based on the foregoing, there is ample support for Wright’s Motion. The Court will
allow Plaintiff and her counsel to respond before the Court makes further findings.
IIE. CONCLUSION
Applying the applicable law to the facts of this case, the Court GRANTS Wright's
Motion to Issue Order to Show Cause.*’ Plaintiff's Counter Motion®® is DENIED.

51 Id, (quoting Childs, 29 F.3d at 1027 (citing Spiller, 919 F.2d at 347)).
82 Id, (citing Am. Airlines, Inc. v. Allied Pilots Assoc,, 968 F.2d 523, 533 (5th Cir. 1992)).
53 fd. (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990); see also Bus. Guides, Inc. v. Chromatic
Comme'ns Enterprises, inc., 498 U.S. 533 (1991); Thomas v. Cap. Sec. Servs., inc., 836 F.2d 866, 881
(5th Cir. 1988); Rayion LLC v. Compius Data Innovations, Co., No. 6:09-CV-355, 2015 WL 11121530, at
*4 (E.D. Tex. May 4, 2015)}.
54 fd. (citing Thomas v. Cap. Sec. Servs., Inc., 836 F.2d at 878).
5§ fd. (quoting Carr v. Cap. One, N.A., 460 F. App'x 461, 468 (5th Cir. 2012)).
58 fd. (quoting Rule 11 Advisory Committee Notes, 1993 Amendments).
57 Rec. Doc. No. 130.
58 Rec. Dac. No. 137.
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IT IS HEREBY ORDERED that Jesse Clarence Brown, counsel for Plaintiff herein,
show cause in writing, on or before August 1, 2022, why he should not be held in civil
contempt of this Court and why he should not be further sanctioned under Rule 11(b) of
the Federal Rules of Civil Procedure for the reasons set forth above. The Court shall not
extend this deadline absent extraordinary circumstances.
Signed in Baton Rouge, Louisiana this 5 day ot Lega 2022.

CHIEF snap D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192300. Public record. Not legal advice.