Keller v. Sierra-Cedar, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD C. KELLER, No. 4:22-CV-00013

Plaintiff, (Chief Judge Brann)

v.

SIERRA-CEDAR, LLC,

Defendant.

MEMORANDUM OPINION

DECEMBER 5, 2023

Federal Rule of Civil Procedure 11 provide a vehicle for deterring abuses of the

legal system: imposing sanctions. But sanctions are serious business. Receiving

sanctions signals a severe lack of professionalism and inflicts lasting damage to a

lawyer’s credibility. So while moving for sanctions is a necessary tool to prevent

injustice, such motions are not to be used as a “hardball” litigation tactic. They must be

reserved for transgressions so severe that action is needed to deter future misconduct

and protect the public. In this case, the Defendant asks for sanctions in the form of

dismissal, arguing that the Plaintiff’s claim was frivolous because it was barred by the

statute of limitations. Without commenting on the merits of the statute of limitations

defense, this Court denies the request for sanctions. The statute of limitations arguments

must be resolved on the merits, and not through a Rule 11 motion.

I. BACKGROUND

In January 2022, Edward Keller filed a complaint against Sierra-Cedar, Inc.

(“Sierra-Cedar”), alleging unlawful discrimination in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000 et seq., and the Pennsylvania Human Relations

Act, 43 P.S. § 951 et seq.1 This Court denied Sierra-Cedar’s motion to dismiss as to

Keller’s Title VII claim in October 2022.2 Sierra-Cedar filed its answer in November

2022.3 In October 2023, Sierra-Cedar filed a motion for sanctions, seeking dismissal of

Keller’s case.4 The motion is now ripe for disposition.

II. DISCUSSION

A. Facts

This motion for sanctions flows from the timing with which Keller filed his

complaint in this Court. Keller was employed with Sierra-Cedar from 2017 to 2020.5

Beginning in February 2019, Sierra-Cedar began replacing Keller on various projects

with a younger female employee, Cathy Bass, which resulted in a reduction in Keller’s

billable hours.6 Bass stated that as Sierra-Cedar “had been giving presentations by six

or seven white men,” the “higher-ups” replaced Keller with Bass because “they needed

a ‘skirt.’”7 Keller was ultimately replaced and terminated in February 2020.8 Keller then

1 Doc. 1 ¶¶24-31, 34-39.

2 Docs. 15-16.

3 Doc. 17.

4 Doc. 33.

5 Doc. 1 ¶¶7-21.

6 Id. ¶¶14-19.

7 Id. ¶19.

filed a complaint with the United States Equal Employment Opportunity Commission

(“EEOC”).9 The EEOC declined to take action and authorized Keller to sue Sierra-

Cedar himself.10 He filed suit in this Court in January 2022.11

In its motion to dismiss, Sierra-Cedar contended that Keller filed suit outside of

the applicable 90-day statute of limitations period, which commences upon a plaintiff’s

receipt of his right to sue letter.12 Sierra-Cedar attached an activity log obtained from

the EEOC through a Freedom of Information Act request, which stated that Vistina

Chevalier, a paralegal employed at the law firm representing Keller, had downloaded

the right to sue letter on September 27, 2021.13 Keller denied this claim and maintained

that he first received his right to sue through regular mail on October 8, 2021, placing

his filing within the statute of limitations.14 This Court ultimately refused to credit

Sierra-Cedar’s unauthenticated document on its motion to dismiss.15

After discovery began, Sierra-Cedar shored up its allegation that the right to sue

notice had, in fact, been downloaded by Ms. Chevalier. It first obtained a Declaration

from EEOC Supervisory Investigator Robert K. McMeekin, confirming that the EEOC

Activity Log reflected Chevalier’s download of the notice on September 27, 2021.16

Sierra-Cedar then wrote to Keller’s counsel, attaching McMeekin’s Declaration and

9 Id. ¶6.

10 Id. ¶6; Doc. 1-1.

11 Doc. 1.

12 Doc. 11 at 4-5.

13 Doc. 12-4 at 2.

14 Doc. 13 at 2, 6-7.

15 Doc. 15 at 6.

requesting that Keller withdraw his complaint, which Keller refused.17 Sierra-Cedar

then served a subpoena on Keller’s counsel’s office, requesting the download history

from Ms. Chevalier’s computer and all versions of the notice created or modified.18

Sierra-Cedar alleges that the parties discussed confidentiality concerns about the

subpoena, but that Keller’s counsel ultimately refused to provide any responsive data.19

According to Sierra-Cedar, the firm’s IT Expert represented in March 2023 that he had

examined Ms. Chevalier’s hard drive but found no available download history for the

day of September 27, 2021.20

As this contention had contradicted the EEOC’s activity log and as Keller’s

counsel had not responded to the subpoena, Sierra-Cedar raised the issue with this Court

in a telephone status conference held in April 2023.21 The parties agreed to retain a

neutral expert to analyze the hard drive and provide data responsive to the subpoena,

and they jointly retained Jim Vaughn to perform a forensic analysis.22 Sierra-Cedar has

attached the results of the analysis to its motion. The report concludes that Chevalier

did, in fact, download and save a document on September 27, 2021, titled “2021-9-

27+Keller+161.pdf.”23 That document was opened one second after download, and a

pdf titled “Dismissal and Notice of Rights 9-27-21.pdf” was saved to the computer’s “S

17 Doc. 35-6.

18 Doc. 35-7.

19 Doc. 35 at 8-9.

20 Id.

21 Docs. 28, 35 at 5.

22 Doc. 35 at 9-10.

drive” three and a half minutes later.24 Following Vaughn’s report, Keller no longer

contests that Chevalier downloaded the dismissal and notice of rights on September 27,

2021.25

Based on the findings of Vaughn’s report, Sierra-Cedar wrote to Keller’s counsel

again on August 14 and August 20, 2023, requesting that Keller withdraw his complaint

with prejudice.26 Sierra-Cedar alleges that it contacted Keller’s counsel again by phone

on August 22, 2023, to discuss the expert report and request that he withdraw the

complaint.27 On each occasion, Keller’s counsel refused.28 Sierra-Cedar contacted

Keller’s counsel one final time on September 28, 2023, stating that it would file this

motion for sanctions if the complaint was not withdrawn within twenty-one days.29

Sierra-Cedar now moves for sanctions due to the refusal of Keller’s counsel to withdraw

his complaint, and requests sanctions in the form of dismissal of Keller’s case.30

B. Legal Standard

Federal Rule of Civil Procedure 11 requires every pleading to be signed by an

attorney of record, or by that party personally.31 That signature is more than a

formality—it “certifies” four guarantees “to the best of the person’s knowledge,

information, and belief, formed after an inquiry reasonable under the circumstances.”32

24 Id.

25 Doc. 37 at 3-5.

26 Doc. 35-9.

27 Doc. 35 at 10.

28 Id. at 10.

29 Doc. 35 at 10; see Fed. R. Civ. P. 11(c)(2).

30 Docs. 33, 35.

31 Fed. R. Civ. P. 11(a).

The signature attests (1) that the pleadings are not presented for an improper purpose,

(2) that the claims, defenses, and other legal contentions are nonfrivolous, (3) that the

factual contentions have or will likely have evidentiary support, and (4) that any denials

of factual contentions are warranted on the evidence, or reasonably based on belief or a

lack of information.33

Anyone who signs a pleading has a personal, nondelegable responsibility of

certifying the truth and reasonableness of that document.34 If the parties have violated

Rule 11(b), the court may impose “an appropriate sanction,” either by motion or sua

sponte.35 “Each of the rule’s [four] elements imposes an independent duty on the signer

of the paper; the violation of any one of them triggers the sanctions provisions of the

rule.”36

As amended, Rule 11 also extends to an attorney’s “later advocating” the

contents of the signed document.37 As stated in the Advisory Committee’s Notes to the

1993 Amendment, “a litigant’s obligations with respect to the contents of these papers

. . . include reaffirming to the court and advocating positions contained in those

pleadings and motions after learning that they cease to have any merit.”38 If after

discovery it becomes apparent that a plaintiff’s claims are unsupported, he has a duty

33 Id.

34 Business Guides, Inc. v. Chromatic Comm’s Enterprises, Inc., 498 U.S. 533, 547 (1991).

35 Fed. R. Civ. P. 11(c)(1)-(3).

36 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1335 (4th ed.

2023).

37 Fed. R. Civ. P. 11(a).

“not to persist” with the claim.39 Therefore, subsequent decisions have imposed

sanctions for a plaintiff’s failure to withdraw a complaint due to its preclusion by a

statute of limitations, albeit under extreme circumstances.40

Rule 11(b) violations for filing frivolous claims do not require that the attorney

subjectively act in bad faith. “The court can impose sanctions for violations of Rule 11,

even if the claims were brought in good faith, so long as the attorney failed to conduct

a reasonable inquiry into the matter.”41 “Rule 11, however, is not a strict liability

provision, and a showing of at least culpable carelessness is required before a violation

of the Rule can be found.”42

Even if incorrect, a party’s argument is not considered frivolous so long as it is

not patently unreasonable to conclude that it is “warranted by existing law or by a

nonfrivolous argument for extending, modifying, or reversing existing law or for

establishing new law.”43 “A district court presented with a Rule 11 motion for sanctions

must determine whether the accused attorney’s conduct was ‘objectively reasonable

under the circumstances.’ Sanctions are to be applied only ‘in the exceptional

circumstance where a claim or motion is patently unmeritorious or frivolous.”44 This

standard is doubly objective. It asks whether “a reasonable attorney would have

39 Id.

40 See, e.g., Huntsman v. Perry Local Schools Bd. of Educ., 379 F.App’x 456, 463 (6th Cir. 2010).

41 Jackson v. Hall Cnty Gov’t, Georgia, 568 F.App’x 676, 679 (11th Cir. 2014).

42 Credit Control Servs., Inc. v. Noble Sys. Corp., No. 12-11321-JLT, 2013 U.S. Dist. LEXIS

173912, at *4-5 (D. Mass. 2013) (quoting CQ Int’l Co. v. Rochem Int’l, Inc., USA, 659 F.3d

53, 60 (1st Cir. 2011)).

43 Fed. R. Civ. P. 11(b)(2).

44 Anderson v. Bd. of Sch. Directors of Millcreek Twp. Sch. Dist., 574 F.App’x 169, 175 (3d Cir.

believed plaintiff[’s] complaint to be well-founded in fact based on what a reasonable

attorney would have known at the time.”45

C. Rule 11 Analysis

1. The Parties’ Arguments

As the frivolousness of Keller’s case hinges on the strength of Sierra-Cedar’s

statute of limitations defense, the Court briefly sets out the applicable law and the

parties’ arguments. Title VII employment discrimination suits are subject to two filing

deadlines. An initial complaint must be filed with the EEOC within 180 days of the

adverse employment action, or 300 days if there has been cross-filing with a state

agency.46 If the EEOC decides not to prosecute the case, it will issue a right to sue letter.

This triggers the second filing deadline: if the complainant wishes to bring a civil action

herself, he must file his complaint within 90 days of his receipt of the right to sue

letter.47

The filing window does not begin until the plaintiff’s receipt of the notice.48 The

90-day period is treated as a statute of limitations.49 It is strictly construed and “in the

absence of some equitable bases for tolling, a civil suit filed even one day late is time-

barred and may be dismissed.”50 “Equitable tolling is generally appropriate in Title VII

cases only when ‘the defendant has actively misled the plaintiff; when the plaintiff in

45 In re Keegan Mgmt. Co. Securities Litig., 78 F.3d 431, 435 (9th Cir. 1996) (describing this as

an “objective-objective” test).

46 42 U.S.C. § 2000e-5(e)(1).

47 42 U.S.C. § 2000e-5(f)(1).

48 Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999).

49 Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001).

some extraordinary way was prevented from asserting her rights; or when the plaintiff

timely asserted her rights in the wrong forum.”51

As discussed, some courts have imposed sanctions under Rule 11 where a

complaint is frivolous because it is “clearly barred by . . . the statute of limitations” and

defendant’s counsel has notified plaintiff’s counsel of this fact.52 Therefore, Sierra-

Cedar contends that Keller’s initial filing and his case as it exists now are frivolous.53

Keller no longer disputes whether the notice was downloaded, nor does he contest that

the EEOC notice was effective from the date of receipt.54 But Keller responds by

arguing that, due to the doctrine of equitable tolling, the statute of limitations does not

bar his claim.55

Keller cites to Third Circuit precedent explaining that Title VII’s time limitations

are not jurisdictional, and, being analogous to a statute of limitations, are subject to

equitable modifications such as tolling.56 Tolling is a well-recognized equitable

doctrine which federal courts may apply to Title VII actions.57 “Under equitable tolling,

plaintiffs may sue after the statutory time period for filing a complaint has expired if

they have been prevented from filing in a timely manner due to sufficiently inequitable

51 Carter v. Keystone, 360 F.App’x 271, 272-73 (3d Cir. 2010) (quoting Seitzinger, 165 F.3d at

240).

52 Huntsman, 379 F.App’x at 463; Moore v. Air Methods, Inc., No. 3:14-CV-0684, 2015 U.S.

Dist. LEXIS 98879, at *15-16 (M.D. Pa. July 29, 2015).

53 Doc. 35 at 17.

54 Doc. 37 at 3-5.

55 Id. at 5-8.

56 Doc. 37 at 5 (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3d Cir.

1994)).

57 Baldwin Cnty Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984); Carter, 360 F.App’x 272-72

circumstances.”58 The Supreme Court of the United States’ decision in Baldwin County

Welcome Center v. Brown listed several examples of when equitable tolling should be

applied by federal courts, and Keller cites to one such example: where “the court misled

the plaintiff, and, as a result, the plaintiff believed he had done everything required of

him.”59

Arguing that his case is “closely analogous,” Keller contends that the EEOC was

“standing in place of the court” when it sent the right to sue letter.60 It follows, Keller

explains, that when the paper letter received by regular mail stated that Keller must file

suit within 90 days of receipt, Keller was misled, as his actual filing deadline was

triggered by Ms. Chevalier’s earlier download of his notice. Keller also provides dicta

from the United States Courts of Appeals for the Third and Eighth Circuits stating that

plaintiffs may justifiably rely on written communications from the EEOC in the

equitable tolling context.61 Finally, Keller cites to an Eighth Circuit case, Anderson v.

Unisys Corp., in which misleading language in a letter from the Minnesota Department

of Human Relations stating that the statute of limitations was one year rather than 300

days did toll the statute of limitations.62

Sierra-Cedar cites to the Western District of Pennsylvania’s decision in Gilson

v. State Police, in which a member of the attorney’s office staff misplaced his right to

58 Seitzinger, 165 F.3d at 240.

59 Doc. 37 at 6 (citing Baldwin, 466 U.S. at 151).

60 Id.

61 Id. at 7 (citing Robinson v. Dalton, 107 F.3d 1018 (3d Cir. 1997) and Jennings v. Am. Postal

Workers Union, 672 F.2d 712, 714-15 (8th Cir. 1982)).

sue letter.63 In a footnote containing no analysis, Gilson stated that this did not present

a scenario in which “the plaintiff in some extraordinary way was prevented from

asserting her rights.”64 Sierra-Cedar also cites to two other in-Circuit district court

decisions, which both found that counsel’s failure to open the EEOC’s link and read the

right to sue letter in a timely manner did not justify tolling the statute of limitations.65

Finally, Sierra-Cedar notes that in each cited case where equitable tolling was applied

to an EEOC letter’s language, the plaintiff was pro se, which impacted the court’s

analysis.66

2. Analysis

Sierra-Cedar first advocates for sanctions based on Keller’s initial filing of a

complaint, but this can be dismissed with little analysis. Even assuming that the

effective date of receipt was marked by Chevalier’s download of the notice, filing the

complaint was still not objectively unreasonable. Clearly, an objective inquiry is not

conducted with “the wisdom of hindsight;” it does not assess information unknown to

the attorney filing the complaint.67 The Court sees no reason to doubt the allegation that

Chevalier, the firm’s paralegal, never notified Keller’s attorneys of the online notice

63 Doc. 39 at 4 (citing Gilson v. State Police, 175 F.Supp. 3d 528, 561 n.28 (W.D. Pa. 2016)).

64 Gilson, 175 F.Supp. at 561 n.28.

65 Doc. 39 at 4 (citing Panconi v. Abington Hospital-Jefferson Health, 604 F.Supp. 3d 290 (E.D.

Pa. 2022) and McNaney v. Sampson & Morris Grp., Inc., No. 2:21-cv-1809, 2022 U.S. Dist.

LEXIS 63608, at *8-9 (W.D. Pa. Apr. 5, 2022)).

66 Doc. 39 at 10.

67 Gaiardo v. Ethyl Corp., 835 F.2d 479, 484 (3d Cir. 1987) (“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 . . . was submitted”) (quoting Eavenson, Auchmuty &

Greenwald v. Holtzman, 775 F.2d 535, 540 (3d Cir. 1985)); Christiansburg Garment Co. v.

she downloaded. So based on the information available at the time, the only notice

Keller’s counsel was aware of when filing the complaint was the notice Keller received

through regular mail.

The gravamen of Sierra-Cedar’s motion is not Keller’s initial filing, but his

refusal to withdraw the complaint later in the litigation.68 Weighing the case law

presented by both parties, Keller’s argument is not frivolous. If a party reaches the

wrong outcome on a “fact intensive, close call” application of law, there is no ground

for sanctions.69 And as an equitable doctrine, tolling is necessarily fact-specific,

depending upon nebulous considerations such as fairness and “extraordinary

circumstances.”70 Other in-Circuit district court decisions have in fact applied equitable

tolling to misleading language contained in a right to sue letter where plaintiffs were

represented by counsel.71 But even absent such case law, accepting Sierra-Cedar’s

argument that tolling has been rejected in similar in-Circuit district court cases would

68 It is not actually clear at which point Sierra-Cedar believed Keller’s failure to withdraw became

sanctionable. So the Court explains why even at the most extreme point in time, Keller still did

not violate Rule 11.

69 C.H. Robinson Worldwide, Inc. v. Lobran, 695 F.3d 758, 767 (8th Cir. 2012).

70 See, e.g., Commonwealth of Pennsylvania v. Allegheny Energy, Inc., No. 2:05-cv-885, 2008

U.S. Dist. LEXIS 93800, at *16 (W.D. Pa. Nov. 18, 2008) (“The equitable tolling test is very

fact-intensive.”); Urinvoli v. Cathel, 546 F.3d 269 (3d Cir. 2008) (“A statute of limitations ‘can

be tolled when principles of equity would make [its] rigid application unfair.’”) (quoting

Shendock v. Dir., Office of Workers’ Comp. Programs, 893 F.2d 1458, 1462 (3d Cir. 1990));

Muchinski v. Wilson, 694 F.3d 308, 329 (3d Cir. 2012) (“The extraordinary circumstances

prong [of the tolling test] requires that the petitioner ‘in some extraordinary way be[] prevented

from asserting his or her rights.’”) (quoting Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir.

2005)).

71 See Pyun v. Colvin, No. 16-2633, 2016 U.S. Dist. LEXIS 177168, at *13-14 (E.D. Pa. Dec. 22,

2016); Elchik v. Akustica, Inc., No. 12-578, 2013 U.S. Dist. LEXIS 53376, at *55 (W.D. Pa.

Mar. 6, 2013) (Lenihan, M.J.), report and recommendation adopted, 2013 U.S. Dist. LEXIS

not justify sanctions. “Courts do not penalize litigants who try to distinguish adverse

precedents [or] argue for the modification of existing law.”72

The Eastern District of Pennsylvania’s decision in Love v. Merck & Co. is

instructive.73 In Love, the plaintiff argued that because a plaintiff’s good faith effort to

exhaust grievance procedures can toll the statute of limitations, the statute of limitations

for his two-month-late complaint should be tolled because he was waiting for his NLRB

charge to be resolved during that time.74 On the merits, the Love court rejected the

argument, noting that the analogy was unfounded, that two in-Circuit district court

decisions and five out-of-Circuit court of appeals decisions had held the opposite, and

that the plaintiff’s argument partially relied on his misreading of the case he was

analogizing to.75

Yet that court still found sanctions inappropriate, for reasons that apply as much

here; the moving party did not present a Third Circuit decision squarely foreclosing the

application of equitable tolling, and there was no reason to believe that the tolling

argument was made in bad faith.76 In addition to his loose analogy to Baldwin County,

Keller has gone far beyond the plaintiff in Love by providing an out-of-Circuit case

72 Nisenbaum v. Milwaukee Cnty, 333 F.3d 804 (7th Cir. 2003) (Easterbrook J.); see also Rode

v. United States, 812 F.Supp. 45, 48 (M.D. Pa. 1992) (sanctions inappropriate where plaintiff’s

counsel had cited out-of-Circuit opinions and did not exhibit lack of good faith); Foreman v.

Wadsworth, 844 F.3d 620, 626-27 (7th Cir. 2016) (even if counsel “believed it would be futile”

to make an argument for modifying existing precedent to the district court, doing so is not

sanctionable because attorney is still required “to present a nonfrivolous argument for changing

the law to the district court rather than raising it for the first time on appeal.”).

73 No. 04-4878, 2005 U.S. Dist. LEXIS 917 (E.D. Pa. Jan. 21, 2005).

74 Id. at *11.

75 Id. at *8-11.

with analogous facts and in-Circuit dicta suggesting that equitable tolling may be

available in similar circumstances.

These facts distinguish Keller’s case from Moore v. Air Methods, Inc., relied

upon by Sierra-Cedar. In Moore, where the plaintiff alleged that his union breached the

duty of representation, the plaintiff’s only argument that the statute of limitations had

not expired by the time of filing was that such claims do not accrue until a union stops

actively representing an employee.77 But after receiving a notice from the union,

informing plaintiff in “the clearest language that the Union was not going to pursue his

grievance further or take any further action on his behalf,” that plaintiff’s only reason

for alleging the union’s continued representation was an unanswered email that he

subsequently sent to the representative.78

My colleague, the Honorable Robert D. Mariani, held that it was objectively

unreasonable to believe that the union continued representing the plaintiff under these

facts, and therefore continuing the litigation was frivolous.79 Unlike Keller’s case,

Moore addressed no analogy to well-established yet fact-bound law, but rather dealt

with an undisputed fact to which the legal principle did not apply. And Keller’s EEOC

letter, unlike the unambiguous letter received in Moore, does not stand in clear

contradiction to his legal argument, as it states: “it is prudent that your suit be filed

77 Moore, 2015 U.S. Dist. LEXIS 98879, at *17 (citing Childs v. Pennsylvania Federation

Brotherhood of Maintenance of Way Employees, 831 F.2d 429, 436 (3d Cir. 1987)).

78 Id. at 18-19.

within 90 days of the date this Notice was issued to you (as indicated where the Notice

is signed) or the date of the postmark or record of receipt, if later.”80

Because the letter states that a plaintiff has 90 days from the date of receipt to

file a claim, a reasonable attorney could non-frivolously argue that Keller’s EEOC letter

was sufficiently misleading to justify equitable tolling. Sierra-Cedar argues that

language elsewhere in the letter implicitly suggests that the letter is intended for litigants

without attorneys, and therefore, Keller should have inferred that its statute of

limitations instructions did not apply to him.81 Regardless of the merits of this

argument, it is certainly too exacting and fact-bound to justify imposing sanctions, as

the more extreme facts in Moore demonstrate. The precise line between frivolous and

non-frivolous arguments is itself fact-bound and difficult to define, but the difference

between Keller’s case and Love, on one hand, and Moore, on the other, is clear.

While analyzing frivolousness peripherally implicates a case’s merits, a motion

for sanctions should never simply substitute for a merits decision. “Rule 11 should not

be used to raise issues as to the legal sufficiency of a claim or defense that more

appropriately can be disposed of by a . . . motion for summary judgment.”82 “Though

[Sierra-Cedar] may well be vindicated in the end, a Rule 11 motion ‘should not be

employed . . . to test the legal sufficiency or efficacy of allegations in the pleadings

80 Doc. 37 at 8.

81 Doc. 39 at 5-6; Doc. 39-1 (“If you intend to consult an attorney, you should do so promptly . .

. [g]ive your attorney a copy of this Notice.”).

where other motions are available for those purposes.’”83 As the Supreme Court of the

United States cautioned in Christiansburg Garment Co. v. EEOC:

[I]t is important that a district court resist the understandable temptation

to engage in post hoc reasoning by concluding that, because a plaintiff did

not ultimately prevail, his action must have been unreasonable or without

foundation. This kind of hindsight logic could discourage all but the most

airtight claims, for seldom can a prospective plaintiff be sure of ultimate

success . . . . Even when the law or the facts appear questionable or

unfavorable at the outset, a party may have an entirely reasonable ground

for bringing [or continuing] suit.”84

D. Sanctions Analysis

Finally, even if a Rule 11 violation had occurred, imposing any sanction—but

especially the dismissal requested by Sierra-Cedar—would be inappropriate.

Dismissal under Rule 11 is a “sanction of last resort”85 “reserved for the rare case

involving extreme misbehavior by the offending party such as fraud, contempt, and

willful bad faith.”86 Dismissal is only a legitimate sanction under Rule 11 when lesser

sanctions would be ineffective or are unavailable.87 “When determining whether

dismissal is an appropriate sanction, courts should consider (1) the extent of the party’s

personal responsibility, (2) the prejudice his actions have caused his adversary, (3) any

history of such conduct, (4) any evidence of bad faith, (5) the effectiveness of other

83 State Farm Mut. Auto Ins. Co. v. Ficchi, No. 10-555, 2012 U.S. Dist. LEXIS 63282, at *58

(E.D. Pa. 2012) (quoting Fed. R. Civ. P. 11 advisory committee note to 1993 amendment).

84 434 U.S. 412, 421-22 (1978).

85 Liggon-Redding v. Estate of Robert Sugarman, 659 F.3d 258 (3d Cir. 2011); Poulis v. State

Farm Fire and Cas. Co., 747 F.2d 863, 869 (3d Cir. 1984) (“dismissal must be a sanction of

last, not first, resort.”).

86 5A Wright & Miller § 1336.3.

87 Marina Mgmt. Servs., Inc. v. Vessel My Girls, 202 F.3d 315 (D.C. Cir. 2000); Williams v.

sanctions, and (6) the merit of the dismissed pleading.”88 The Third Circuit has also

noted that because “we have increasingly emphasized visiting sanctions directly on the

delinquent lawyer, rather than on a client who is not actually at fault,” “we do not favor

dismissal of a case when the attorney’s delinquencies – not the client’s – necessitate

sanctions.”89 Indeed, no case cited by Sierra-Cedar actually upheld the sanction of

dismissal.90

Here, there is no conduct meriting a “last resort” to dismissal under Rule 11. At

the very worst, Keller’s counsel is accused of refusing withdrawal in pursuit of a

dubious argument; this is far from fraud, contempt, or willful bad faith, and poses far

less of a threat to the public and the justice system. No evidence demonstrates that

dismissal is necessary to prevent future misconduct, nor is there any history of prior

sanctions necessitating this last resort measure. Keller’s counsel may have some

responsibility for inadequately monitoring their paralegals, but the most prejudice

which has resulted, even if this Court later grants Sierra-Cedar’s motion for summary

judgment, is a modest extension to the length of this suit. With no history of misconduct,

no evidence of bad faith, and no unsuccessful attempt to rectify misconduct with lesser

88 CUTTR Holdings LLC v. Patinkin, No. 5-cv-4537, at *12 (D. N.J. Feb. 7, 2008) (citing

Poulis,747 F.2d at 868); see also Carter v. Einstein Medical Ctr., 804 F.2d 805, at 807 (3d Cir.

1986) (articulating similar factors for district courts to consider when weighing whether to

impose dismissal as a sanction).

89 Carter, 804 F.2d at 807-808.

90 See id. at 808 (“We conclude that the complaint in this case should be reinstated and plaintiff

given a reasonable time to secure new counsel or proceed pro se.”); Sebastian Int’l, Inc. v.

Consumer Contacts (PTY), Ltd., No. 87-1995, 1988 U.S. Dist. LEXIS 3462, at *29 (D. N.J.

Mar. 11, 1988) (“[P]laintiff’s claims are not so devoid of fact as to merit summary dismissal

under Rule 11 at this juncture.”); Moore, 2015 U.S. Dist. LEXIS 98879, at *29 (“The sanction

sanctions, there is no reason to impose dismissal, and doing so would likely be an abuse

of this court’s discretion.

III. CONCLUSION

Sierra-Cedar’s motion confuses the merits with sanctionable conduct. It is

therefore crucial to reiterate that this decision does not touch upon the merits of Keller’s

equitable tolling arguments. Because sanctions are unwarranted even if the Court

accepts Sierra-Cedar’s legal conclusion, there is no need to decide the underlying issue

to analyze whether Keller’s complaint is frivolous. This is especially important given

that “[a] motion for sanctions must be made separately from any other motion.”91

Sierra-Cedar has indicated in its briefings that it intends to move separately for

summary judgment,92 and the Court will only resolve that issue with the benefit of full

briefing by both parties.

Keller’s initial filing and refusal to withdraw his complaint are not sanctionable

under Rule 11, and even if they were, this Court would exercise its discretion not to

impose sanctions. Nor is any conduct alleged by Sierra-Cedar which would justify the

severe sanction of dismissal. Accordingly, Sierra-Cedar’s motion for sanctions is

denied. An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

91 Fed. R. Civ. P. 11(b)(c)(2).