Lewis v. Louisiana State University

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

SHARON LEWIS, CIVIL ACTION

Plaintiff

VERSUS NO. 21-198-SM-RLB

LOUISIANA STATE UNIVERSITY, ET AL.,

Defendants

ORDER AND REASONS

On April 8, 2021, Sharon Lewis (“Plaintiff”) filed a complaint against various

Defendants, including Leslie Miles (“Miles”).1 Plaintiff made Title IX claims against Miles

under Title IX of the Education Amendments of 1972 and civil Racketeer Influenced and

Corrupt Organizations (“RICO”) claims under 18 U.S.C. §§ 1962(c) and (d).2 On May 5,

2021, Plaintiff filed her First Amended Complaint.3 On June 29, 2021, Plaintiff filed a

RICO Case Statement in support of her civil RICO claims against, among other

Defendants, Miles.4 The Title IX claims against Miles were voluntarily dismissed by

Plaintiff on August 20, 2021.5 Plaintiff’s civil RICO claims against Miles were dismissed

with prejudice by this Court’s December 2, 2022 Order and Reasons.6

Now pending before the Court is Miles’ Motion for Rule 11 Sanctions.7 Plaintiff filed

a memorandum in opposition to Miles’ motion.8 Miles filed a reply.9

For the reasons that follow, the Motion for Sanctions by Miles is DENIED.

1 R. Doc. 1.

2 Id.

3 R. Doc. 8.

4 R. Doc. 45.

5 R. Doc. 88.

6 R. Doc. 165.

7 R. Doc. 188.

8 R. Doc. 200.

9 R. Doc. 205.

Nonetheless, counsel for Plaintiff should be mindful of their obligations under Rule 11

and carefully consider the veracity of any information contained in future filings.

BACKGROUND

The facts underlying this case are extensively set forth in the Court’s September 10,

2021 Order and Reasons,10 December 2, 2021 Order and Reasons,11 and June 16, 2022

Order and Reasons.12 On January 24, 2022, Miles filed the instant Motion for Rule 11

Sanctions against Plaintiff and her counsel, Tammye Brown, Bridgett Brown, and Larry

English (“Plaintiff’s counsel”).13

RULE 11 Standard

Federal Rule of Civil Procedure 11(b) provides in pertinent part that:

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 arguments for the extension,

modification, or reversal of existing law or the establishment of new law

. . .14

Rule 11 continues by stating that “[i]f, after notice and a reasonable opportunity to

respond, the court determines that Rule 11(b) has been violated, the court may impose an

appropriate sanction on an attorney, law firm, or party that violated the rule or is

responsible for the violation.”15 “Subparts (b)(1) and (2) of Rule 11 provide independent

10 R. Doc. 107.

11 R. Doc. 165.

12 R. Doc. 254.

13 R. Doc. 229. Bridget Brown withdrew as counsel of record. R. Doc. 211 at p. 1.

14 FED. R. CIV. PRO. 11(b); see also Whitehead v. Food Max of Mississippi, Inc., 332 F.3d 796, 802 (5th Cir.

2003) (en banc).

15 FED. R. CIV. PRO. 11(c)(1).

bases for sanctions.”16 “[V]iolation of either justifies sanctions.”17 An attorney “violates

Rule 11 if he fails to conduct a reasonable inquiry into the law and facts underlying his

motion, or if he makes a motion to delay, harass or increase the costs of litigation.”18

“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.”19 “An attorney’s good faith is . . . [not] enough to protect him

from Rule 11 sanctions.”20 Finally, “[c]ompliance with an attorney’s affirmative duties”—

whether it be establishing a sufficient legal basis or eschewing an improper motive—“is

measured as of the time that the document is signed.”21

In deciding whether a reasonable inquiry into the law has been made, “a district

court may consider how much time the attorney had to prepare the document; whether

the document contains a plausible view of the law; whether the document is filed by an

attorney or a pro se litigant; and the complexity of the legal and factual issues in

question.”22

Likewise, in deciding whether a filing was made for an improper purpose, a court

is to determine whether “it is objectively ascertainable that an attorney submitted a paper

to the court for an improper purpose.”23 Because of the objective inquiry, a district court

may read an improper motive into a document well-grounded in fact and law only under

16 Whitehead, 332 F.3d at 802.

17 Id.

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

19 Whitehead, 332 F.3d at 802 (internal citations and quotation marks omitted); see also Thomas v. Capital

Sec. Servs., Inc., 812 F.2d 984, 988 (5th Cir. 1987) (“Rule 11 compliance is measured generally by an

objective standard of attorney performance.”).

20 Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018, 1024 (5th Cir. 1994).

21 Id.

22 Thomas, 812 F.2d at 988.

23 F.D.I.C. v. Maxxam, Inc., 523 F.3d 566, 580 (5th Cir. 2008).

exceptional circumstances.24 The key is whether “the improper purpose is objectively

ascertainable.”25

The Court is acutely aware of the interaction between Rule 11 and RICO. Rule 11

requires that any factual claim made have evidentiary support, which is particularly

compelling when a claim, such as RICO, alleges criminal conduct.26 Furthermore, the

United States Court of Appeals for the Fifth Circuit views an attorney's duty under Rule

11 as particularly important in RICO cases. There is a greater possibility of abuse and, as

a result, the Court places a heightened responsibility on attorneys to inquire into the

factual and legal bases of potential claims or defense prior to bringing such suit or risk

sanctions for failing to do so.27

"The court has significant discretion in determining what sanctions, if any, should

be imposed for a violation, subject to the principle that the sanctions should not be more

severe than reasonably necessary to deter repetition by the offending person or

comparable conduct by similarly situated persons."28 Indeed, district courts have wide

latitude to impose sanctions under Rule 11 as district court rulings under Rule 11 are

reviewed for abuse of discretion.29

24 Id.

25 Id. at 580–81.

26 5-Star Premium Finance, Inc. v. Wood, 2000 WL 533941 (E.D. La. 2000).

27 See, e.g., Chapman & Cole v. Itel Containder Int'l B. V., 865 F.2d 676, 685 (5th Cir.1989); Smith v. Our

Lady of the Lake Hospital, 960 F.2d 439, 444 (5th Cir.1992); Moore v. Astra Pharmaceutical Products,

Inc., 1992 WL 245678 (E.D. La.1992).

28 Rule 11 Advisory Committee Note (emphasis added).

29 Whitehead v. Food Max of Miss., Inc., 332 F.3d 796, 802 (5th Cir. 2003).

LAW AND ANALYSIS

I. Exercising its significant discretion, the Court finds Rule 11 sanctions

are not warranted in this case.

A. Plaintiff’s civil RICO and Title IX claims against Miles were not

“clearly foreclosed” by Fifth Circuit precedent because of the

possibility that equitable tolling would apply.

Miles alleges Plaintiff’s counsel30 failed to conduct a reasonable investigation into

the relevant law before filing civil RICO and Title IX claims against Miles because, if they

had, they would have realized Plaintiff’s claims were “clearly foreclosed by Fifth Circuit

precedent.”31 Specifically, in terms of Plaintiff’s civil RICO claims, Miles alleges at the time

of filing Plaintiff’s counsel knew or should have known her claims were time-barred

because: (1) “Civil RICO actions are subject to a four-year statute of limitations” under

Fifth Circuit precedent; (2) “the Fifth Circuit follows the ‘injury discovery’ rule, under

which the limitations period runs from the date ‘when a plaintiff knew or should have

known of h[er] injury’”; and (3) Plaintiff knew or should have known of her injuries in

2013.32 In terms of Plaintiff’s Title IX claims, Miles alleges Plaintiff’s counsel knew or

should have known her claims were time-barred because: (1) the Fifth Circuit has held

the appropriate statute of limitations for a Title IX claim is the state’s personal injury

limitations period, which is one year running from the day the injury or damage is

sustained in Louisiana; and (2) the prescriptive period began to run in 2013 when the

alleged conduct occurred.33

The Fifth Circuit has affirmed a district court’s imposition of sanctions when a

30 Miles contends any sanction imposed by the Court for this alleged violation of Rule 11 should be limited

to Plaintiff’s counsel “[b]ecause the legal theory of a claim is within the province of the attorney.” R. Doc.

188-1 at p. 10 n.7 (citing Skidmore Energy, Inc. v. KPMG, 455 F.3d 565, 567-78 (5th Cir. 2006)).

31 R. Doc. 188-1 at p.10

32 Id. (internal quotations omitted).

33 Id. at p. 14-15.

reasonable investigation would have revealed that RICO allegations were “clearly

foreclosed” by long-standing Fifth Circuit precedent.34 In this case, the Court dismissed

the civil RICO claims against Miles in a fifty-four-page Order and Reasons dated

December 2, 2021 because the claims were time-barred under Fifth Circuit precedent.35

Additionally, Plaintiff voluntarily dismissed her Title IX claims against Miles on August

20, 2021.36

However, the Court cannot conclude Fifth Circuit precedent on the relevant

statutes of limitation for civil RICO and Title IX claims “clearly precluded” Plaintiff’s

claims because there was a possibility equitable tolling would apply—an argument

advanced by Plaintiff in these proceedings. The Fifth Circuit definitively listed some

possible bases for equitable tolling of a limitations period, though not all.37 Notably,

Plaintiff asked the Court to recognize a previously unrecognized equitable tolling

category—namely, mental incapacity preventing an individual from pursuing her legal

rights. The Fifth Circuit previously declined to rule on the availability of mental incapacity

as an additional basis for equitable tolling.38 As a result, there is no clear Fifth Circuit

precedent resolving the issue one way or another. Obviously, at the time Plaintiff initially

filed suit in federal court, this Court had not yet ruled whether equitable tolling was

available. Relevant here is the Court’s December 2, 2022 Order and Reasons, which,

34 Bruno v. Starr, 247 Fed. Appx. 509 (5th Cir. 2007).

35 R. Doc. 165.

36 R. Doc. 88.

37 See, e.g., Chappell v. Emco Machine Works Co., 601 F.2d 1295, 1302-03 (5th Cir. 1979) (recognizing three

bases for equitable tolling, namely: (1) the pendency of a suit between the same parties in the wrong forum;

(2) plaintiff’s unawareness of the facts giving rise to the claim because of the defendant’s intentional

concealment of them; and (3) the EEOC’s misleading the plaintiff about the nature of her Title VII claim);

see also Love v. National Medical Enterprises, 230 F.3d 765 (5th Cir. 2000) (recognizing fraudulent

concealment as a basis for the application of equitable tolling in the context of a civil RICO claim).

38 Hood v. Sears Roebuck & Co., 168 F.3d 231, 233 (5th Cir. 1999) (declining to rule on whether to adopt

mental incapacity as a fourth basis for equitable tolling, concluding the plaintiff in that case failed to

sufficiently plead equitable tolling).

relying on the Court’s September 10, 2021 Order and Reasons, decided equitable tolling

was unavailable for Plaintiff’s civil RICO claims on the basis of mental incapacity.39 In its

September 10, 2021 Order and Reasons, the Court, recognizing the uncertainty of this

area of the law, concluded, even if mental incapacity was a fourth basis for equitable

tolling, it would not apply to Plaintiff because “she continued working full-time

throughout the period when she was allegedly incompetent to pursue her legal rights

under Title IX,” “took on increased job responsibilities,” and “was functioning at a high

level throughout the relevant period.”40 Indeed, “Plaintiff did not allege she was mentally

incompetent and unable to manager her affairs.”41 The Court did not conclude in any of

its Orders and Reasons that Plaintiff was making a crafty (but ultimately unsuccessful)

legal argument on an unsettled area of the law sufficient to give rise to a finding of

sanctionable conduct.42 On the instant motion, the Court again declines to do so.

Imposing sanctions under these circumstances would “chill vigorous advocacy,”43

“creativity,” and “stifle enthusiasm.”44 “[A] trial court should not impose Rule 11 sanctions

for advocacy of a plausible legal theory, particularly where . . . the law is arguably

unclear.”45 Accordingly, the Court, exercising its significant discretion, declines to impose

sanctions on this basis.

39 R. Doc. 165.

40 R. Doc. 107 at pp. 16-17.

41 Id. at p. 16.

42 See generally R. Doc. 165 (citing R. Doc. 107).

43 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990).

44 Photocircuits Corp. v. Marathon Agents, Inc., 162 F.R.D. 449, 451 (E.D.N.Y. 1995) (citing Securities

Indus. Ass'n v. Clarke, 898 F.2d 318, 322 (2d Cir. 1990)).

45 CJC Holdings, Inc. v. Wright & Lato, Inc., 989 F.2d 791, 793 (5th Cir. 1993).

B. Fifth Circuit precedent does not support imposing sanctions even

if Plaintiff’s civil RICO claims against Miles were “legally

defective.”

Miles also asks the Court to impose sanctions because Plaintiff did not properly

allege predicate acts of criminal conduct against Miles in support of her civil RICO claims

because “[l]umping the ‘RICO defendants’ together in such overly broad and amorphous

allegations does not satisfy the pleading requirements for Civil RICO.”46 Additionally,

Miles asks the Court to impose sanctions because Plaintiff “failed to allege the requisite

continuity to establish a pattern of racketeering” and failed to “illuminate how the acts

levied against Miles . . . led to the injuries about which she complained.”47

In Snow Ingredients, Inc. v. Snowizard, Inc., the Fifth Circuit reviewed a district

court’s denial of a defendant’s motion for sanctions on appeal. 48 Sellers of snowballs

brought an action against their competitor and their counsel under civil RICO. In a

decade’s worth of litigation where “[e]ach party . . . attempted to use the courts to freeze

the other out of the sno-ball market,”49 the district court dismissed the plaintiff’s claims

under Rule 12(b)(6) and denied the defendant’s motion for sanctions. In the defendant’s

motion for sanctions, they alleged the plaintiff’s civil RICO claims were legally

irredeemable and sanctionable because the plaintiff was unable to plead facts satisfying

the pleading requirements for the various predicate criminal acts it alleged.50 The Fifth

Circuit, relying on St. Germain v. Howard, concluded that it would not be in keeping with

Fifth Circuit precedent to find an abuse of the district court’s “significant discretion” to

46 R. Doc. 205 at p. 5.

47 R. Doc. 188-1 at p. 13.

48 A district court’s grant or denial of a motion to strike is subject to an abuse of discretion standard of

review. Snow Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 512, 527 (5th Cir. 2016).

49 Id. at 517.

50 Id. at 528.

impose sanctions when, in prior cases before the Fifth Circuit, it declined to sanction an

attorney who did not even attempt to allege predicate acts in the civil RICO context.51

Because the plaintiff in Snow Ingredients attempted to allege a predicate act, the district

court did not abuse its significant discretion by denying the defendant’s motion for

sanctions.52

Applied to this case, even if Plaintiff’s attempt to plead predicate acts by Miles fell

short of pleading requirements for civil RICO, Fifth Circuit precedent does not support

an imposition of sanctions. In fact, “[i]t would hardly be in keeping with [St. Germain v.

Howard], where [the Fifth Circuit] refused to impose . . . sanctions on a party that

advanced a civil-RICO claim without even attempting to plead a predicate criminal

offense,” for this Court “to sanction an attorney who attempted to plead a criminal

offense, albeit unsuccessfully.”53 Likewise, by extension, Plaintiff did attempt, albeit

unsuccessfully,54 to allege the requisite continuity and proximate cause required to

sustain a civil RICO claim in her pleadings. Given that attempt and the Fifth Circuit’s

reasoning in Snow Ingredients, the Court exercises its “significant discretion” to deny the

foregoing grounds for Rule 11 sanctions.

C. At such an early stage of litigation, it cannot be said Plaintiff has

no “evidence to support the allegations that Miles or [his] attorney

participated in . . . a predicate . . . RICO activity.”

Miles also asks the Court to impose sanctions because “Plaintiff does not have a

single shred of evidence to support the allegations that Miles or Miles’ attorney

51 Id. at 529 (citing St. Germain et al. v. Howard et al., 556 F.3d 261 (5th Cir. 2009)).

52 Id.

53 Id. (citing St. Germain et al., 556 F.3d at 261).

54 See generally R. Doc. 254.

participated in . . . a predicate . . . RICO activity.”55 In support of this contention, Miles’

motion and reply detail how the Taylor Porter billing records do not support Plaintiff’s

factual allegations of predicate acts of RICO conduct by Miles.56

Rule 11(c) limits the subject matter of a motion for sanctions to violations of the

assurances enumerated in Rule 11(b).57 This includes only the improper presentation to

the Court of “a pleading, written motion, or other paper” through “signing, filing,

submitting, or later advocating it” when one of four circumstances are not true “after an

inquiry reasonable under the circumstances.”58 Notably, one circumstance is when the

factual contentions have no evidentiary support.59 Where there has not been a reasonable

opportunity for further investigation or discovery, courts may deny the Rule 11 sanctions

motions because sanctions are an extraordinary remedy.60

In this case, the Court dismissed RICO allegations against Miles at the pretrial

motions stage—before discovery even began—and not on grounds relating to a lack of

factual basis.61 Therefore, the Court cannot say that, after further “reasonable opportunity

for . . . discovery” “Plaintiff [would] not have a single shred of evidence to support the

allegations that Miles or Miles’ attorney participated in . . . a predicate . . . RICO activity.”62

In this case, Plaintiff’s counsel may have had an incorrect impression of the underlying

facts, and may not have pursued every possible avenue of investigation before filing

55 Id. at p. 9. Additionally, Miles highlights Plaintiff’s statement in her opposition that “at this early stage of

the proceedings[, the Plaintiff] has placed into the record an extortionary amount of evidence to support

her RICO Claims.” It is safe to assume, as a matter of professional courtesy, Plaintiff’s counsel intended to

write an “extraordinary” amount of evidence, not “extortionary.”

56 R. Doc. 188 (Miles’ motion); see also R. Doc. 205 (Miles’ reply).

57 FED. R. CIV. PRO. 11(c).

58 Id.

59 Id.

60 FED. R. CIV. PRO. 11(b)(3).

61 See R. Doc. 165.

62 R. Doc. 254 at p. 9.

pleadings, but those facts alone do not constitute a Rule 11 violation. In opposition,

Plaintiff argues her counsel did conduct a reasonable investigation before filing, and that

as the case progressed, her counsel dismissed claims and amended pleadings to reflect

the changing landscape of a case with complicated legal issues and multiple actors. Rule

11 does not require the fullest possible inquiry—only a “reasonable inquiry.”63

Accordingly, this ground for Rule 11 sanctions is also denied, consistent with the broad

discretion afforded to district courts to determine whether sanctions are appropriate.°4

CONCLUSION

Plaintiff's counsel are forewarned that the Court will continue to view all pleadings

carefully and will be especially attentive to these issues as the case progresses. All counsel

are reminded of their obligation to remain civil and avoid ad hominem attacks against

opposing counsel—no matter how frustrated they are by the situation. It is the Court’s

role, not either counsel’s, to admonish parties. In this instance, while circumstances were

certainly not altogether tidy and orderly, the Court—exercising its significant discretion—

has not found any sanctionable conduct.

Accordingly;

IT IS ORDERED that Miles’ motion for Rule 11 sanctions is DENIED.

New Orleans, Louisiana, this 4th day of October, 2022.

See —___

SUSIE ono

UNITED STATES DISPRICT JUDGE

63 FED. R. CIv. PRO. 11(b).

64 Plaintiff's opposition to the instant motion asserts Miles’ motion was filed for an improper purpose in

violation of Rule 11. R. Doc. 200. While the Court finds Miles’ motion for sanctions is not meritorious, the

Court does not believe the motion was filed for an improper purpose, and to the extent Plaintiff and her

counsel requests sanctions, the Court would decline to impose them.

11