Teno v. Iwanski

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at KNOXVILLE

DOYLE THORNTON TENO, III, )

)

Plaintiff, )

) No. 3:18-CV-159

v. )

) Judge Collier

MYRON IWANSKI, STEVE MEAD, ) Magistrate Judge Guyton

LESLIE MEAD, and STEVE EMERT, )

)

Defendants. )

M E M O R A N D U M

Before the Court is a motion by Defendants Steven Mead and Leslie Mead (the “Meads”)

for the imposition of sanctions under Rule 11 of the Federal Rules of Civil Procedure against

Plaintiff, Doyle Thornton Teno, III, Plaintiff’s counsel, Hugh B. Ward and Mindy L. Nower, and

Plaintiff’s counsel’s law firm, Young Williams & Ward, PC. (Doc. 99.) The Meads seek an award

of $11,613, representing the attorney fees they incurred in this matter beginning on January 31,

2019. (Id. at 1.) Plaintiff responded in opposition (Doc. 104), and the Meads replied (Doc. 107).

Also before the Court is a motion by the Meads to alter or amend the judgment under Rule

59(e) of the Federal Rules of Civil Procedure to allow the imposition of the sanctions they seek.

(Doc. 97.) Plaintiff responded in opposition (Doc. 105), and the Meads replied (Doc. 106).

For the reasons which follow, the Court will GRANT the Meads’ motion for sanctions

(Doc. 99) and DENY their motion to alter or amend the judgment (Doc. 97). Plaintiff, his counsel,

and his counsel’s law firm will be ORDERED to pay a sanction of $11,613 as a deterrent to the

Meads allocated as follows: $2,000 by Plaintiff; $4,806.50 by Plaintiff’s counsel’s law firm;

$3,204.50 by Plaintiff’s lead counsel; and $1,602 by Plaintiff’s secondary counsel.

I. BACKGROUND

This dispute arises out of the 2018 mayoral primary campaign in Anderson County,

Tennessee. Defendant Steve Emert ran an unsuccessful campaign against the incumbent mayor,

Terry Frank, who is not a party to this action. The other three Defendants each supported Emert’s

candidacy: Myron Iwanski, the Trustee of Anderson County and the Chairman of the Anderson

County Finance Committee; Steven Mead (“Steve Mead”), a member of the Anderson County

Board of Commissioners; and Leslie Mead, Steve Mead’s spouse. Plaintiff was the Delinquent

Tax Attorney and Deputy Trustee for Anderson County. He either was politically affiliated with

the incumbent mayor or was identified by Defendants as being so affiliated.

For years, Steve Mead had been creating a document titled “Things You Need to Know

About Mayor Terry Frank” (the “Campaign Document”). (Doc. 67-2 at 8–9 [Steve Mead. Dep. at

18–19]; Doc. 68 at 2 [Steve Mead 1st Aff. ¶ 7].) The version of the Campaign Document at issue

in this lawsuit is eleven pages long and contains fifty-three numbered paragraphs criticizing Mayor

Frank and her administration. (Doc. 68-1.) Criticisms covered such subjects as county finances,

personnel matters, cybersecurity, litigation and other legal matters, Mayor Frank’s interpersonal

style, and allegedly false statements about Steve Mead by Mayor Frank. (Id.)

On November 21, 2017, Steve Mead sent an email to Iwanski, stating “I would love to see

the numbers showing how much our Delinquent Tax Atorny [sic] is getting in total pay and how

much would have come to the County General Fund if Jay would have been appointed instead.”

(Doc. 72-7 at 19.) Iwanski responded with a lengthy email on December 8, 2017, including

statements that Plaintiff “is paid a salary of $35,000 with full time employee benefits in the

Trustee’s office,” and Plaintiff “has earned $76,800 in compensation from the ‘title search’ fees.”

(Id. at 18–19.) Iwanski and Steve Mead may also have had oral communications regarding

Plaintiff and his compensation. (See Doc. 72-21 at 12–13 [Iwanski Dep. at 48–49].)

In or around February 2018, Iwanski received copies of Plaintiff’s Internal Revenue

Service (“IRS”) Forms 1099 for 2016 and 2017 from the Anderson County Clerk and Master,

Harold P. Cousins, whose office had prepared the forms. (Doc. 72-21 at 11–12 [Iwanski Dep. at

43–46]; Doc. 72-2 at 1–2 [Cousins Aff. ¶¶ 4, 5, 7].) No one else asked for or received a copy of

Plaintiff’s 1099s from Cousins’s office. (Doc. 72-2 at 2 [Cousins Aff. ¶ 9].) Iwanski also asked

for and received information about what was on Plaintiff’s IRS Forms W-2, but he did not see or

receive copies of those forms.1 (Doc. 72-21 at 11 [Iwanski Dep. at 42–43].) Iwanski denies that

Steve Mead ever asked to see Plaintiff’s 1099s or W-2s. (Doc. 72-21 at 12–13 [Iwanski Dep. at

48–49].) Steve Mead also denies ever having seen those forms. (Doc. 67-2 at 17 [Steve Mead.

Dep. at 41].)

On April 5, 2018, the Meads distributed the Campaign Document at a campaign event.

According to their deposition testimony, each of the Meads distributed one or two copies of the

Campaign Document at the event. (Doc. 67-1 at 5–6 [Leslie Mead Dep. at 10–11]; Doc. 67-2 at

9, 11 [Steve Mead Dep. at 19, 33].) Richard Burroughs, who reported directly to Mayor Frank,

picked up eight or nine copies of the Campaign Document at the event. (Doc. 67-2 at 23–24.

[Steve Mead Dep. at 60–61].) Steve Mead distributed one other copy of the Campaign Document

after the event to Lou Jones, his own campaign treasurer. (Doc. 67-2 at 12–13 [Steve Mead Dep.

at 35–36].)

1 Plaintiff testified in his deposition that someone told him that Iwanski had asked for and

received a copy of Plaintiff’s Form W-2 for an unspecified year. (Doc. 72-20 at 4–5 [Pl. Dep. at

13–15, 17].) This portion of Plaintiff’s deposition testimony is inadmissible hearsay. Fed. R.

Evid. 801, 802.

As of its distribution on April 5, 2018, Paragraph 25 of the Campaign Document discussed

Plaintiff’s compensation, his IRS Form 1099, and his IRS Form W-2, as follows:

New Delinquent Tax attorney [Plaintiff Teno] has used a full-time county job with

county benefits and other full-time county employees to do this work that he gets

paid for independently by the Clerk and Master. (see 1099s to Doyle Teno) Before

Myron Iwanski was appointed Trustee, Mr. Teno was the highest paid county

worker by the hour. Unfortunately, no one really knew how many hours he worked

since he mostly worked at home and had the Trustee’s staff do his work and

mailings. 1099 for last year was $120,000 (from Clerk and Master) & also got

W-2 for about $40-50,000 and received full county benefits. And now he is

demanding 10% commission on collected late taxes instead of the commission-

approved 1%. He also refuses to turn over any of the Title Reviews he has charged

for… and wants them automatically assessed and charged before they are ever done

to everyone paying late taxes.

(Doc. 68-1 ¶ 25 (emphasis added; errors in original).)

The Meads testified at their depositions that they themselves never saw Plaintiff’s tax

documents, that the reported income numbers in the Campaign Document did not come from

Plaintiff’s tax documents, and that Plaintiff’s tax documents were not attached to the Campaign

Document. (Doc. 67-1 at 7 [Leslie Mead Dep. at 16]; Doc. 67-2 at 14–17 [Steve Mead. Dep. at

38–41].) Steve Mead explained during his deposition that he used the terms “1099” and “W-2” in

the Campaign Document not because he got information from those documents, but rather to

describe the types of income he was discussing, because he has a background in financial services

and he was accustomed to using those terms as a descriptor of income types. (Doc. 67-2 at 14–15,

17–18 [Steve Mead Dep. at 38–39, 41–42].)

Plaintiff filed this action on April 23, 2018 (Doc. 1), just over a week before the May 1,

2018, primary election. Plaintiff’s original complaint asserted a cause of action against Defendants

for inspecting and disclosing Plaintiff’s confidential tax information in violation of 26 U.S.C.

§§ 6103 and 7431. (Id. ¶¶ 29–32.) In his Second Amended Complaint, Plaintiff added a cause of

action for invasion of privacy and unreasonable intrusion into private affairs under Tennessee

common law, based on the same underlying factual allegations. (Doc. 27 ¶¶ 36–42.) Plaintiff

alleged the Campaign Document implied that his Forms 1099 and W-2 were attached to and

distributed with the Campaign Document. (Id. ¶ 25.) Plaintiff further alleged the Meads were

“acting as agents of Defendant Iwanski” when they “obtained, inspected, disclosed and used

Plaintiff’s confidential Tax Return and Return Information,” including his W-2 and 1099. (Id.

¶ 31.)

The Meads filed a motion to dismiss arguing, among other things, that they were not

persons against whom suit could be brought under 26 U.S.C. §§ 6103 and 7431. (Doc. 29.) The

Meads also filed a motion for summary judgment reiterating this argument and asserting discovery

had revealed no evidence to support Plaintiff’s action against them. (Doc. 65.) Plaintiff responded

in opposition to the Meads’ motion for summary judgment on January 31, 2019. (Doc. 72.) It is

from this date that the Meads start their request for attorney fees as a sanction under Rule 11.

On February 6, 2019, after receiving Plaintiff’s response to their motion for summary

judgment, the Meads’ counsel served Plaintiff’s counsel with copies of a draft motion and brief

for sanctions under Rule 11.2 (Doc. 100 [Quist Decl.] ¶ 4; Doc. 100-1.) The Meads’ counsel asked

that Plaintiff dismiss his claims against them, arguing the response to the motion for summary

judgment showed the action had no basis. (Doc. 100-1.) Specifically, the Meads asserted

Plaintiff’s response gave no proof the Meads were acting as Iwanski’s agents or ever saw

Plaintiff’s tax forms. (Id.) The Meads also asserted Plaintiff’s compensation was public

information, the publication of which could not support the state-law cause of action in Count

2 The Meads’ counsel had previously asked Plaintiff’s counsel to explain how the federal

statute could apply to the Meads or dismiss them from the lawsuit on May 14, May 15, May 30,

June 7, and December 21, 2018. (Doc. 100 [Quist Decl.] ¶ 5(a), (b), (d), (e), (f).)

Two. (Id.) Plaintiff did not dismiss his action against the Meads, either within twenty-one days

of February 6, 2019, or thereafter.

On March 29, 2019, the Court granted the Meads’ and the other Defendants’ motions to

dismiss and entered judgment in favor of all Defendants. (Doc. 93.) The Court dismissed

Plaintiff’s federal tax-information-disclosure claims with prejudice, finding Defendants were not

persons who could be sued under the statute. (Doc. 92 at 7–13.) The Court dismissed Plaintiff’s

state-law claims without prejudice because it declined to exercise supplemental jurisdiction over

them. (Doc. 92 at 13–14.)

On April 22, 2019, the Meads filed a motion for Rule 11 sanctions (Doc. 99) and to reopen

the judgment to allow the imposition of such sanctions (Doc. 97). Plaintiff responded in opposition

to each motion (Docs. 104, 105), and the Meads replied (Docs. 106, 107).

II. STANDARD OF REVIEW

Rule 11 of the Federal Rules of Civil Procedure imposes a legal duty on attorneys to certify

any papers filed with the court are legally tenable. Fed. R. Civ. P. 11. It provides in part as follows:

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:

(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).

The decision to award Rule 11 sanctions is within the discretion of the district court. Orlett

v. Cincinnati Microwave, Inc., 954 F.2d 414, 419 (6th Cir. 1992); see also Fed. R. Civ. P. 11

Advisory Committee Notes (1993) (“Advisory Notes”). When deciding whether to impose Rule

11 sanctions, a court should consider “whether an individual’s conduct was reasonable under the

circumstances.” Union Planters Bank v. L & J Dev. Co., 115 F.3d 378, 384 (6th Cir. 1997) (citing

Lemaster v. United States, 891 F2.d 115, 118 (6th Cir. 1989)). This is to be viewed from an

objective standpoint: “A judge should not use hindsight to determine the reasonableness of an

attorney’s acts, but should use an objective standard of what a reasonable attorney would have

done at that time.” In re Triple S Restaurants, Inc., 519 F.3d 575, 579 (6th Cir. 2008) (citing In re

Big Rapids Mall Assocs., 98 F.3d 926, 930 (6th Cir. 1996)). Consistently with this objective

standard, a party or attorney’s good-faith belief in the merits of a case is not enough to avoid

sanctions. Tahfs v. Proctor, 316 F.3d 584, 594 (6th Cir. 2003).

Rule 11 itself does not delineate the factors a court should consider when deciding whether

to impose sanctions. However, the Advisory Notes list several factors a court can consider, which

include:

Whether the improper conduct was willful, or negligent; whether it was part of a

pattern of activity, or an isolated event; whether it infected the entire pleading, or

only one particular count or defense; whether the person has engaged in similar

conduct in other litigation; whether it was intended to injure; what effect it had on

the litigation process in time or expense; whether the responsible person is trained

in the law; what amount, given the financial resources of the responsible person, is

needed to deter that person from repetition in the same case; what amount is needed

to deter similar activity by other litigants.

Fed. R. Civ. P. 11 Advisory Notes.

If, “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 any attorney, law firm,

or party that violated the rule or is responsible for the violation.” Fed. R. Civ. P. 11(c)(1). A

sanction under Rule 11

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 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)(4). The Rule “de-emphasizes monetary sanctions and discourages direct

payouts to the opposing party.” Rentz v. Dynasty Apparel Indus., Inc., 556 F.3d 389, 395 (6th Cir.

2009) (citing Advisory Notes). The “rule recognizes, however, that ‘under unusual circumstances

. . . deterrence may be ineffective unless the sanction not only requires the person violating the

rule to make a monetary payment, but also directs that some or all of this payment be made to

those injured by the violation.’” Id. (quoting Advisory Notes).

III. DISCUSSION

Plaintiff raises three arguments in opposition to the Meads’ motion for sanctions. First,

Plaintiff argues the motion is untimely, in that it was filed after the Court entered judgment in the

Meads’ favor. Second, Plaintiff argues he did not violate Rule 11. Third, Plaintiff argues that

even if he did violate Rule 11, the payment of attorney fees to the Meads is not an appropriate

sanction. The Court will address each argument.

A. Timeliness of Motion for Sanctions

Before a party may file a motion for Rule 11 sanctions, he or she must serve the opposing

party with a copy of the proposed motion. Fed. R. Civ. P. 11(c)(2). If the opposing party

withdraws or corrects the challenged paper, claim, defense, contention, allegation, or denial within

twenty-one days from service of the proposed motion, the motion is not to be filed with the court.

Id. This provision creates a “safe harbor” in which a party may correct problems before becoming

subject to potential sanctions.

Plaintiff argues the Meads’ motion for sanctions is untimely because it was filed after the

entry of final judgement. (Doc. 104.) Plaintiff relies on the Advisory Notes, which state that “a

party cannot delay serving its Rule 11 motion until conclusion of the case.” (Id. at 1 (quoting

Advisory Notes).) Plaintiff further relies on several cases in which the Court of Appeals for the

Sixth Circuit has denied a Rule 11 motion that was filed after a case was closed. (Id. at 1–2.) The

Meads, on the other hand, argue the motion is timely because it was served on Plaintiff more than

twenty-one days before the entry of final judgment, and it was not filed until more than twenty-

one days after that service. (Doc. 107.)

The language of the Advisory Notes on which Plaintiff relies distinguishes between the

service that starts the safe-harbor period and the filing that brings the motion before a court. It is

serving a motion after judgment, not filing it after judgment, that the Note proscribes: “a party

cannot delay serving its Rule 11 motion until conclusion of the case.” Advisory Notes (emphasis

added). This distinction is clear in the statement’s context:

The [1993] revision [of Rule 11] leaves for resolution on a case-by-case basis,

considering the particular circumstances involved, the question as to when a motion

for violation should be served and when, if filed, it should be decided. Ordinarily

the motion should be served promptly after the inappropriate paper is filed, and, if

delayed too long, may be viewed as untimely. In other circumstances, it should not

be served until the other party has had a reasonable opportunity for discovery.

Given the “safe harbor provisions” discussed below, a party cannot delay serving

its Rule 11 motion until conclusion of the case (or judicial rejection of the offending

contention).

Advisory Notes (emphasis added). It makes sense that a party cannot wait until a case is over to

start the twenty-one-day safe-harbor period by serving a proposed motion, because after a case is

closed, it is impossible for the receiving party to correct or withdraw the offending contention. See

Ridder v. City of Springfield, 109 F.3d 288, 295 (6th Cir. 1997) (because a Rule 11 motion cannot

be made unless there is something that can be withdrawn, “a party cannot wait to seek sanctions

until after the contention has been judicially disposed”). If a party’s correction of its alleged fault

is impossible, the safe-harbor period cannot run. The Advisory Notes simply do not address post-

judgment filing of a motion for sanctions that has previously been properly served under the safe-

harbor provision.

Plaintiff relies on Ridder to support his untimeliness argument, pointing to its statement

that the moving party had “given up the opportunity to receive an award of Rule 11 sanctions in

this case by waiting to file the motion until after the entry of summary judgment.” Ridder, 109

F.3d at 297. On its face, this statement supports Plaintiff’s position. In Ridder, however, the

defendant never complied with the safe-harbor provision at all, because it did not serve its motion

on the plaintiff before filing it with the court. Id. at 296. Filing with the court and the first service

of the motion on the plaintiff did not take place until after the court had granted summary judgment

in the defendant’s favor. Id. at 291–92. The reasoning of Ridder thus focuses exclusively on the

defendant’s failure to comply with the safe-harbor provision by serving the motion a copy of the

proposed motion before judgment. Id. at 296.

Ridder’s holding, however, is broader than its reasoning. It extends beyond the failure to

serve the motion before judgment to the failure to file the motion before judgment:

[W]e . . . hold that [defendant] has given up the opportunity to receive an award of

Rule 11 sanctions in this case by waiting to file the motion until after the entry of

summary judgment. . . . In sum, adhering to the rule’s explicit language and overall

structure, we hold that sanctions under Rule 11 are unavailable unless the motion

for sanctions is served on the opposing party for the full twenty-one day “safe

harbor” period before it is filed with or presented to the court; his service and filing

must occur prior to final judgment or judicial rejection of the offending contention.

Id. at 297. As recognized by the Court of Appeals in a subsequent case, Ridder’s inclusion of a

pre-judgment filing requirement is unnecessary to the disposition of the case, making it nonbinding

dicta. Powell v. Squire, Sanders & Dempsey, 182 F.3d 918 (Table), 1999 WL 519186, at *3 (6th

Cir. July 16, 1999). Where the safe-harbor period is started at least twenty-one days before final

judgment, a motion filed after judgment may be timely. Baker v. Bank One, Lexington, N.A., 156

F.3d 1228 (Table), 1998 WL 466437, at *2 (6th Cir. July 30, 1998), disagreed with on other

grounds by Penn, LLC v. Prosper Bus. Dev. Corp., 773 F.3d 764, 768 (6th Cir. 2014).

Plaintiff also relies on Moore v. LaFayette Life Insurance Company, 458 F.3d 416 (6th Cir.

2006). Similarly to the situation in Ridder, there is no indication in Moore that the party seeking

sanctions served its motion on the opposing party before filing it. See id. at 427 (reciting filing of

motion after entry of judgment and filing of appeal). And while the timeliness discussion in Moore

is brief, its implication is that there was no pre-filing service of the motion, because the principles

it invokes are those requiring pre-filing service:

Under the revised Rule 11, sanctions under Rule 11 are only appropriate when a

party is made aware of the offending document as filed with the court and has an

opportunity to withdraw the filing. Fed. R. Civ. P. 11 advisory comm. notes (1993

amendments) (“[A] party cannot delay serving its Rule 11 motion until conclusion

of the case . . .”) This court held as much in Ridder, 209 F.3d at 295 (“A party must

now serve a Rule 11 motion on the allegedly offending party at least twenty-one

days prior to the conclusion of the case or judicial rejection of the offending

contention.”). The parties do not dispute that the Rule 11 motions were made after

the disposition of the case on summary judgment. Therefore any sanction under

Rule 11 constitutes an abuse of discretion.

Id. at 446 (emphasis added). Thus, neither Ridder nor Moore requires this Court to impose a rule

that a motion under Rule 11 must not only comply with the safe-harbor provision, but must also

be filed before the entry of judgment.

In this case, the Meads served a copy of their motion for sanctions on Plaintiff fifty-one

days before the Court entered judgment and seventy-five days before filing the motion. (See Docs.

93, 99, 100 ¶ 4, 100-1.) Plaintiff had the full benefit of the twenty-one-day safe harbor, and chose

not to withdraw the challenged claims. The protective purpose of the safe-harbor provision was

fulfilled in this case. The Meads’ failure to file their Rule 11 motion until after the entry of

judgment does not make their motion untimely.

B. Sanctionable Conduct Under Rule 11

According to the Meads, “Plaintiff and his counsel had an obligation under Rule 11 to stop

pursuing a frivolous lawsuit once, beyond any objective or subjective criteria, it was known to

them that their case was frivolous.” (Doc. 102 at 1.) The Meads argue this happened no later than

January 31, 2019, when Plaintiff responded to their motion for summary judgment.3 (Id.)

The Meads make arguments that implicate three subsections of Rule 11(b), arguing

Plaintiff made unsupported factual contentions, Rule 11(b)(3), took unwarranted legal positions,

Rule 11(b)(2), and acted with an improper purpose, Rule 11(b)(1).4 Before considering those

3 Because the Meads’ motion seeks sanctions beginning only as of the filing of Plaintiff’s

response to the motion for summary judgment, the Court does not consider whether a violation of

Rule 11 occurred before that filing. See Indah v. U.S. Secs. Exch. Comm’n, 661 F.3d 914, 927 (6th

Cir. 2011) (a court may not find a violation of Rule 11 in conduct that goes beyond the specific

conduct identified in motion for sanctions).

4 Plaintiff objects to the Meads’ failure to identify the subsections of Rule 11(b) Plaintiff

is alleged to have violated. (Doc. 104 at 2–3.) The Meads quoted the four subsections of Rule

11(b) in their entirety (Doc. 102 at 2), and included sections in their memo labeled “The Second

Amended Complaint Analyzed Under Existing Law” (id. § III), “Factual Contentions” (id. § IV),

and “Improper Purpose” (id. § V). It appears self-evident to the Court that the Meads’ arguments

regarding a political vendetta fall under subsection (b)(1) (improper purpose), their arguments that

certain of Plaintiff’s legal positions were frivolous fall under subsection (b)(2) (legal contentions

warranted by existing law or nonfrivolous argument for extending, modifying, or reversing), and

their arguments that facts were not supported fall under subsection (b)(3) (factual contentions have

evidentiary support).

arguments, the Court will review the causes of action Plaintiff asserted to provide context for its

Rule 11 analysis.

1. Plaintiff’s Causes of Action

Plaintiff asserted two causes of action against the Meads: violation of the federal tax-

disclosure statute, 26 U.S.C. §§ 6103 and 7431, and invasion of privacy under Tennessee common

law.

a. Violation of the Tax-Disclosure Statute

In Count One, Plaintiff asserted a cause of action for inspecting and disclosing his

confidential tax information in violation of 26 U.S.C. §§ 6103 and 7431. (Doc. 27 ¶ 36–39.)

Section 6103 of the Internal Revenue Code provides that “[r]eturns and return information

shall be confidential.” 26 U.S.C. § 6103(a). A “return” is defined as

any tax or information return, declaration of estimated tax, or claim for refund

required by, or provided for or permitted under, the provisions of this title which is

filed with the Secretary by, on behalf of, or with respect to any person, and any

amendment or supplement thereto, including supporting schedules, attachments, or

lists which are supplemental to, or part of, the return so filed.

Id. § 6103(b)(1) (emphasis added). “Return information” is defined to include

a taxpayer’s identity, the nature, source, or amount of his income, payments,

receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability,

tax withheld, deficiencies, overassessments, or tax payments, whether the

taxpayer’s return was, is being, or will be examined or subject to other investigation

or processing, or any other data, received by, recorded by, prepared by, furnished

to, or collected by the Secretary with respect to a return or with respect to the

determination of the existence, or possible existence, of liability (or the amount

thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture,

or other imposition, or offense[.]

Id. § 6103(b)(2)(A).

This confidentiality obligation applies to three categories of persons: (1) officers or

employees of the United States, id. § 6103(a)(1); (2) officers or employees of states or of certain

local agencies who receive access to returns or return information under specified subsections of

Section 6103, id. § 6103(a)(2); and (3) other persons, or their officers or employees, who have

access to returns or return information under certain other specified subsections, id. § 6103(a)(3).

The subsections incorporated into 26 U.S.C. § 6103(a)(3) deal with such persons or subjects as a

taxpayer’s consent to release information to a designee, id. § 6103(c), shareholders of corporations,

id. § 6103(3)(1)(D)(3), prison officials, id. § 6103(k)(10), whistleblowers, id. § 6103(k)(13),

cybersecurity, id. § 6103(k)(14), child-support agencies, id. § 6103(l)(13), and persons “to the

extent necessary in connection with the processing, storage, transmission, and reproduction of such

returns and return information, the programming, maintenance, repair, testing, and procurement of

equipment, and the providing of other services, for purposes of tax administration,” id. § 6103(n).

The Court of Appeals for the Seventh Circuit characterized these three categories as, respectively,

“employees of the IRS, state employees to whom the IRS makes authorized disclosures, and

private persons who obtain return information from the IRS with strings attached.” See Hrubec v.

Nat’l R.R. Passenger Corp., 49 F.3d 1269, 1270 (7th Cir. 1995) (discussing earlier version of

statute).

One of the basic policy objectives of Section 6103 is to “assure[] taxpayers that the returns

and information which they supply to the [federal] government in connection with the assessment

and payment of taxes will not become public knowledge.” Crown Cork & Seal Co. v. Penn.

Human Relations Comm’n, 463 F. Supp. 120, 122–23 (E.D. Penn. 1979). The confidentiality

obligation, when it arises, extends to any return or return information the person “obtained . . . in

any manner in connection with his service as such an officer or an employee or otherwise or under

the provisions of this section.” 26 U.S.C. § 6103(a).

Section 7431 of the Internal Revenue Code allows a taxpayer to bring a civil action for

damages if the taxpayer’s return or return information has been subject to knowing or negligent

inspection or disclosure in violation of Section 6103. 26 U.S.C. § 7431(a). But a defendant who

is not in one of the three categories in Section 6103(a) cannot violate Section 6103, and there can

be no claim against him or her under Section 7431. Dietl v. Mirage Resorts, Inc., 180 F. Supp. 2d

1150, 1153 (D. Nev. 2002); see also Hrubec, 49 F.3d at 1270 (defendants must come within the

categories set out in Section 6103 for plaintiff to have a cause of action under Section 7431).

b. Invasion of Privacy

In Count Two, Plaintiff asserted a cause of action for invasion of privacy through an

unreasonable intrusion into his private affairs. (Doc. 27 ¶¶ 40–42.) Tennessee courts recognize

the common-law tort of invasion of privacy when it occurs through an unreasonable intrusion into

the private affairs of another. Givens v. Mullikin ex. Rel. Estate of McElwaney, 75 S.W.3d 383,

411 (Tenn. 2002), superseded on other grounds by statute, Tenn. Code Ann. § 29-26-121(f), as

recognized in Williford v. Klepper, 597 S.W.3d 454, 462 (Tenn. 2020). “One who intentionally

intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or

concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be

highly offensive to a reasonable person.” Id. (quoting Roberts v. Essex Microtel Assocs., II, L.P.,

46 S.W.3d 205, 211 (Tenn. Ct. App. 2001)).

While it is not necessary to show that the defendant publicized the plaintiff’s private

information, a plaintiff must show “an intentional, and objectively offensive, interference with his

or her interest in solitude of seclusion.” Id. at 411–12 (citing Restatement (Second) of Torts § 652B

cmt. a (1977)). Further, “there is no liability for the examination of a public record concerning the

plaintiff.” Id. (quoting Restatement (Second) of Torts § 652B cmt. c (1977)).

The tort has been described as having three elements: “(1) an intentional intrusion, physical

or otherwise; (2) upon the plaintiff’s solitude or seclusion or private affairs or concerns; (3) which

would be highly offensive to a reasonable person.” Burnette v. Porter, No. W2010-01287-COA-

R3-CV, 2011 WL 4529612, at *4 (Tenn. Ct. App. Sept. 30, 2011) (quoting Restatement (Second)

of Torts § 652B (1977)).

Having set out the legal context of Plaintiff’s causes of action, the Court next analyzes

Plaintiff’s factual contentions under Rule 11(b)(3).

2. Plaintiff’s Factual Contentions, Rule 11(b)(3)

The presentation of a pleading, motion, or other paper to the Court, either by filing it or by

advocating for it after it is filed, is a certification “that to the best of the person’s knowledge,

information, and belief, formed after an inquiry reasonable under the circumstances[,] . . . the

factual contentions [it contains] have evidentiary support or, if specifically so identified, will likely

have evidentiary support after a reasonable opportunity for further investigation or discovery.”

Fed. R. Civ. P. 11(b)(3). The Meads argue the following factual contentions violated this

certification no later than when Plaintiff responded to the motion for summary judgment.

Plaintiff did not identify any of these factual contentions as needing “a reasonable

opportunity for further investigation or discovery” to obtain evidentiary support when he

responded to the motion for summary judgment. Therefore, the relevant question as to each factual

contention will be whether it actually had evidentiary support. See id.

a. Whether the Meads Were Iwanski’s Agents

Plaintiff alleged in the Second Amended Complaint that the Meads were “acting as agents

of Defendant Iwanski” when they “obtained, inspected, disclosed and used Plaintiff’s confidential

Tax Return and Return Information.” (Doc. 27 ¶ 31.) In response to the Meads’ motion for

summary judgment, Plaintiff argued the tax-confidentiality statute applied to the Meads because

they were Iwanski’s agents. (See Doc. 72 [Pl.’s Resp. to Mot. for Summ. J.] at 15–18 (discussing

agency and acting-in-concert theories); Doc. 104 [Pl.’s Resp. to Mot. for Sanctions] at 3

(discussing agency argument).) In their motion for sanctions, the Meads argue Plaintiff provided

no evidence to support his allegation that the tax-confidentiality statute applied to them (Doc. 102

at 7), and that Plaintiff’s assertion that the Meads were agents of Iwanski was sanctionable (id. at

4–5).

Plaintiff does not state under what body of law he contends an agency relationship existed

between the Meads and Iwanski. For present purposes, the Court will consider

the classic definition of common-law agency: “Agency is the fiduciary relationship

that arises when one person (a ‘principal’) manifests assent to another person (an

‘agent’) that the agent shall act on the principal’s behalf and subject to the

principal’s control, and the agent manifests assent or otherwise consents so to act.”

Keating v. Peterson’s Nelnet, LLC, 615 F. App’x 365, 372 (6th Cir. 2015) (quoting Restatement

(Third) of Agency § 1.01 (2006)).

The section of Plaintiff’s response to the motion for summary judgment titled “Relevant

Testimony and Documentary Evidence in Support of Plaintiff’s Response” does not mention

agency or point to any facts that could establish a fiduciary relationship between the Meads and

Iwanski. (See Doc. 72 at 2–7.) The remainder of Plaintiff’s response to the motion for summary

judgment does not point to any evidence of agency, either, using generalities such as that the Meads

“acted in concert with Defendant Iwanski’s violation of Section 6103,” or that “Defendants were

aware of and facilitated a violation of Section 6103.” (Id. at 15.) Nor does Plaintiff’s response to

the motion for sanctions attempt to point to any evidence that the Meads had a fiduciary

relationship with Iwanski. (See Doc. 104 at 3 (“Plaintiff further theorized that the Meads were

acting as agents for Iwanski and it was through that and Iwanski’s liability under the statute that

the Meads could be liable.” (emphasis added)).)

The Court concludes that Plaintiff had no evidentiary support for his contention that the

Meads were Iwanski’s agents as of the filing of Plaintiff’s response to the motion for summary

judgment. Plaintiff’s contention that the Meads were Iwanski’s agents therefore violated Rule

11(b)(3) at that time.

b. Whether Plaintiff’s Income Was a Matter of Public Record

In Count Two, Plaintiff claimed the Meads made an unreasonable intrusion into his private

affairs. (Doc. 27 ¶¶ 41–42.) In their motion for sanctions, the Meads argue Plaintiff made the

unsupported factual contention “that Plaintiff’s compensation as Assistant Anderson County

Trustee and Delinquent Tax attorney were [sic] not public record.” (Doc. 102 at 8.) The Meads

point to a lack of evidence that Plaintiff’s compensation amount was private and to the fact that

Plaintiff was later willing to stipulate that his compensation was public record. (Id.) Plaintiff’s

response does not specifically address whether his compensation amount was public or private

information. (See Doc. 104.) Instead, in defending the cause of action he brought in Count Two,

Plaintiff focuses on the private nature of his tax forms. (See, e.g., id. at 4.)

Plaintiff’s Second Amended Complaint did not expressly assert that the amount of his

compensation from Anderson County was private information. (See Doc. 27.) Nor did his

response to the motion for summary judgment make this assertion. (See Doc. 72.)

Some of Plaintiff’s arguments could be read to imply that he claimed his compensation

amounts were private. For example, in responding to the Meads’ motion for summary judgment,

he stated that “Defendants argue that Plaintiff’s invasion of privacy claim cannot be sustained

because Plaintiff’s salary is not private, not highly offensive to a reasonable person, and of

legitimate public concern and Plaintiff states no damages. Defendant’s [sic] argument is

misplaced and contrary to the evidence.” (Doc. 72 at 18 (emphasis added).) Plaintiff followed

that statement, however, only with a discussion of the elements of the tort of unreasonable

intrusion. (Id. at 18–19.) Likewise, in his response to the motion for sanctions, Plaintiff asserts

that “[h]is personal and private information was accessed by unauthorized people and publicized

in political pamphlets in a political race.” (Doc. 104 at 5.)

Such arguments would be consistent with the position that Plaintiff’s compensation was

private information. They would also, however, be consistent with the position Plaintiff did

expressly assert, that his tax forms were the private information into which the Meads intruded.

(See, e.g., Doc. 72 at 10 (responding to Defendants’ argument that Plaintiff’s compensation was

public by arguing that the Campaign Document “explicitly refers to Plaintiff’s IRS Forms W-2

and 1099, not his general salary information.”)

If Plaintiff had contended that his income from Anderson County was private, the Court

would be constrained to find that the assertion had no evidentiary support and violated Rule

(11)(b)(3). However, given the lack of an express assertion by Plaintiff that his compensation

from Anderson County was private information, as well as his emphasis on his tax forms as the

private information at issue in the lawsuit, the Court concludes Plaintiff did not contend that his

compensation from Anderson County was private information. Plaintiff cannot have violated Rule

11(b)(3) as to a contention he did not make.

c. Whether the Meads Saw or Distributed Plaintiff’s Tax Forms

As discussed in the preceding section, the private information at the heart of Plaintiff’s

lawsuit was not the amount of compensation Plaintiff received from Anderson County, but rather

his tax forms themselves—copies of his Forms 1099 and W-2. See supra § III(B)(2)(b). Both of

Plaintiff’s causes of action against the Meads thus involved the factual question of whether the

Meads had seen or distributed any of Plaintiff’s tax forms. Count One, under the tax-

confidentiality statute, could only have succeeded if the Meads had inspected Plaintiff’s tax forms

or distributed them to third parties. See 26 U.S.C. § 7431(a). Count Two, under Tennessee

common law, could likewise only have succeeded if the Meads had seen or distributed Plaintiff’s

tax forms. See Givens, 75 S.W.3d at 411–12.

The Meads argue that, as of the time Plaintiff responded to their motion for summary

judgment, there was no evidence they had ever seen or distributed copies of his tax forms. (Doc.

102 at 8.) The Meads testified in their depositions that they never saw Plaintiff’s tax forms and

that Plaintiff’s tax forms were not attached to the Campaign Document when they distributed it.

(Doc. 67-1 at 7 [Leslie Mead Dep. at 16]; Doc. 67-2 at 14–15, 17 [Steve Mead Dep. at 38–39, 41].)

Plaintiff responds that he did provide evidence that the Meads saw and distributed his tax

forms: the Campaign Document itself. (Doc. 104 at 4.) That document, which Steve Mead wrote

and which both of the Meads distributed, stated “(see 1099s to Doyle Teno),” and “1099 for last

year was $120,000 (from Clerk and Master) & also got W-2 for about $40–50,000.” (See Doc.

72 at 5 (quoting Campaign Doc. ¶ 25).) Plaintiff argues that Steve Mead testified that the

Campaign Document was “truthful and accurate,” and he therefore must have seen the forms,

because the Campaign Document cannot have been truthful and accurate “if it cite[d] to a source

which he [Steve Mead] ha[d] not seen.” (Doc. 104 at 4 (without citation to Steve Mead’s

testimony).) As to distribution, Plaintiff argues that “[t]he document specifically states ‘(see 1099s

to Doyle Teno),’ as though Plaintiff’s 1099s were an attachment to the document or available upon

request.” (Id.) Plaintiff further argues that it is permissible for a plaintiff to prove his or her case

through circumstantial evidence. (Id.)

The Court must decide whether Plaintiff’s contentions that the Meads saw and distributed

his tax documents had evidentiary support as of the filing of his response to the motion for

summary judgment. See Rule 11(b)(3). “[I]f a party has evidence with respect to a contention that

would suffice to defeat a motion for summary judgment based thereon, it would have sufficient

‘evidentiary support’ for purposes of Rule 11.” Fed. R. Civ. P. 11 Advisory Notes. Because the

Meads seek sanctions as of the filing of Plaintiff’s response to the motion for summary judgment,

the Court will first consider whether Plaintiff could have defeated summary judgment by showing

a genuine issue of material fact as to whether the Meads saw or distributed his tax forms.

In considering a motion for summary judgment, a court is not to weigh the evidence.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, it is to view the evidence,

including all reasonable inferences, in the light most favorable to the nonmoving party. Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc.

v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). Nevertheless, a plaintiff’s factual contentions

at the summary-judgment stage require more than a scintilla of evidence. Hartsel v. Keys, 87 F.3d

795, 799 (6th Cir. 1996). There must be “evidence on which the jury could reasonably find for

the plaintiff.” Id. (quoting Liberty Lobby, 477 U.S. at 252). Thus,

[w]hen the moving party has carried its burden under Rule 56(c), its opponent must

do more than simply show that there is some metaphysical doubt as to the material

facts . . . . Where the record taken as a whole could not lead a rational trier of fact

to find for the nonmoving party, there is no “genuine issue for trial.”

Scott v. Harris, 550 U.S. 372, 380 (2007) (alterations in original) (quoting Matsushita, 475 U.S.

at 586–87).

i. Distribution of Plaintiff’s Tax Forms

The Court considers Plaintiff’s distribution contention first. The statement “(see 1099s to

Doyle Teno)” in the Campaign Document is not a direct assertion that any of Plaintiff’s 1099s

were attached to the Campaign Document. It could, however, give rise to an inference that some

number of Plaintiff’s 1099s were attached to, and therefore distributed with, the Campaign

Document. Plaintiff implicitly acknowledges that this is only an inference, rather than direct

evidence. (See Doc. 72 at 5 (Campaign Document “is stated to suggest that multiple versions of

Plaintiff’s IRS Form 1099 were attached”) (emphasis added); see also id. at 9–10 (Campaign

Document “explicitly references details of Plaintiff’s IRS Form W-2 and IRS Form 1099, and

implies that these items were attached for distribution”) (emphasis added).) In fact, Plaintiff also

acknowledges that the “see 1099s” language could instead give rise to an inference that Plaintiff’s

1099s instead of being attached, would have been available for review upon request. (Doc. 104 at

4 “[t]he document specifically states ‘(see 1099s to Doyle Teno),’ as though Plaintiff’s 1099s were

an attachment to the document or available upon request”) (emphasis added).)

There is no other evidence that Plaintiff’s tax forms were attached to the Campaign

Document. The Campaign Document’s second reference to Plaintiff’s tax forms, “1099 for last

year was $120,000 (from Clerk and Master) & also got W-2 for about $40–50,000,” neither states

nor implies that any of Plaintiff’s 1099s or W-2s were attached.

Nor has Plaintiff submitted testimony from any of the people to whom the Meads gave the

Campaign Document to the effect that Plaintiff’s tax forms were attached to the Campaign

Document. To be sure, the Meads testified during their depositions that they did not know the

names of most of the people to whom they had given the Campaign Document. (Doc. 67-1 at 5–

6 [Leslie Mead Dep. at 10–11]; Doc. 67-2 at 9, 12 [Steve Mead Dep. at 19, 35].) This was so

despite Plaintiff’s counsel asking the Meads about specific names in connection with giving out

the Campaign Document at the campaign event. (See id.) But Steve Mead did identify Jones and

Burroughs as having received the document, one at the campaign event, and one after it. (Doc.

67-2 at 13, 23–24 [Steve Mead Dep. at 36, 60–61].) And Plaintiff did not present testimony from

either of them that the Campaign Document had attachments.

Plaintiff has also not submitted direct evidence that the Meads received copies of Plaintiff’s

tax forms, which would have been a necessary prerequisite to their distributing them. Instead,

there is evidence that Iwanski and Steve Mead had written and oral discussions about Plaintiff’s

compensation amounts, none of which evidence any transfer to (or viewing of) the forms by Steve

Mead.5

Because the inference from the “see 1099s” language does not extend to Plaintiff’s Forms

W-2, and because there is no other evidence that the tax forms were attached, there is no evidence

that any of Plaintiff’s W-2s were attached to or distributed with the Campaign Document.

Plaintiff’s contention that the Meads distributed his tax forms is therefore without evidentiary

support so far as Plaintiff’s W-2s are concerned. The Court turns next to Plaintiff’s 1099s.

It would have been impossible for this record as a whole to have led a rational trier of fact

to find that the Meads had distributed Plaintiff’s 1099s. Plaintiff therefore could not have avoided

summary judgment by arguing there was a genuine issue of fact as to distribution of his 1099s.6

5 Iwanski, for example, testified that Steve Mead sent him “a request for information, a

comparison of how much it was costing to use [Plaintiff], and I sent him information. We may

have talked briefly as a follow up . . . .” (Doc. 72-21 at 12–13 [Iwanski Dep. at 48–49].) An email

exchange between Steve Mead and Iwanski is also in the record, in which Steve Mead said “I

would love to see the numbers showing how much our Delinquent Tax Atorny [sic] is getting in

total pay and how much would have come to the County General Fund if Jay would have been

appointed instead,” and Iwanski replied with a lengthy email, including statements that Plaintiff

“is paid a salary of $35,000 with full time employee benefits in the Trustee’s office,” and Plaintiff

“has earned $76,800 in compensation from the ‘title search’ fees.” (Doc. 72-7 at 18–19.) Steve

Mead, similarly, testified that he got information for the Campaign Document from various

sources, including public documents and information from Iwanski. (Doc. 72-22 at 5–6, 10–11

[Steve Mead Dep. at 20–21, 39–41].) Plaintiff’s compensation, as discussed above, was public

information.

6 Even Plaintiff’s opposition to the motion to dismiss implicitly acknowledged that he

would need more evidence than the mere ambiguous inference from the Campaign Document to

sustain his case once he got beyond the motion-to-dismiss stage. In response to the motion to

dismiss, Plaintiff stated as follows: “The plain language of the [Campaign] Document states that

either the IRS Forms were attached to it or could be referenced by requesting the materials from

Defendants. Discovery is necessary for Plaintiff to make a determination on that matter, but

either is sufficient at this stage.” (Doc. 45 at 10 (emphasis added).) Once discovery was complete

and Plaintiff had to respond to the summary judgment motion, however, he continued to rest only

on the inference from the Campaign Document, rather than reconsidering his claim.

See Scott, 550 U.S. at 380. An inference must be reasonable for a Court to consider it in assessing

whether there is a genuine issue of material fact as to a motion for summary judgment. See

Matsushita Elec., 475 U.S. at 587. To infer that Plaintiff’s 1099s were attached to the Campaign

Document based only on the statement “(see 1099s to Doyle Teno)” would have been

unreasonable. The inference itself, as Plaintiff has acknowledged (see Doc. 104 at 4), was

ambiguous. And Plaintiff produced no evidence that there was an attachment from any other

source, even though he knew the names of at least two people who had received the Campaign

Document from one of the Meads. On the record as a whole, this unreasonable inference leaves

nothing more than a “metaphysical doubt” that copies of Plaintiff’s 1099s were distributed with

the Campaign Document. See Scott, 550 U.S. at 380.

Put another way, Plaintiff’s factual contentions required more than a scintilla of evidence

to survive the Meads’ motion for summary judgment. See Hartsel, 87 F.3d at 799. A “scintilla”

of evidence is “[a] spark or trace” of evidence. Scintilla, Black’s Law Dictionary (11th ed. 2019).

If a single inference, which Plaintiff himself identifies as being capable of an alternative

construction, and which is contradicted by all of the other relevant evidence in the case, is not a

scintilla, it is hard to picture what is.

Having concluded that Plaintiff’s contention that the Meads distributed his 1099s would

have failed at the summary-judgment stage, the Court turns to the next question: did Plaintiff’s

inference that Plaintiff’s Form 1099s were attached to the Campaign Document qualify as

“evidentiary support” under Rule 11(b)(3) for the contention that the Meads distributed his 1099s?

See Fed. R. Civ. P. 11 Advisory Notes (“That summary judgment is rendered against a party does

not necessarily mean, for purposes of th[e] certification, that [a party] had no evidentiary support

for its position.”) To answer this question, the Court must consider whether Plaintiff’s “conduct

was reasonable under the circumstances.” See Union Planters Bank, 115 F.3d at 384.

One of Plaintiff’s summary-judgment exhibits was a demand letter dated April 12, 2018,

from Hugh B. Ward, Esq., to the Meads (the “April 2018 Letter”).7 (See Doc. 72-12 [Pl.’s Ex.

13].) Although Mr. Ward is one of Plaintiff’s attorneys, he wrote the April 2018 Letter not in that

capacity, but as counsel for Burroughs, the person Steve Mead identified as having taken multiple

copies of the Campaign Document at the campaign event.

The April 2018 Letter stated as follows:

Our firm represents Richard Burroughs.

It is our understanding that you both possessed and claimed ownership of

the enclosed document on public display with campaign materials on behalf of

County mayoral candidate Steve Emert at the Oak Ridge Civic Center this past

April 5th. Our client has asked us to advise him regarding the appropriate legal

remedies to determine liability and seek monetary damages against those

responsible for its defamatory passages, unlawful disclosures, and publication.

To complete our review please forward to the undersigned [certain

information about the document] . . . . Of course, at this stage, we cannot compel

you to forward the requested information. Once, however, possible legal action is

commenced discovery, subpoena authority and depositions will afford an

opportunity to seek this material under the authority of the Court.

7 The parties did not make arguments about the April 2018 Letter in the motion for

sanctions. The Court came across the April 2018 Letter (Doc. 72-12) while trying to locate Exhibit

12 to Plaintiff’s response to the motion for summary judgment in connection with a different

factual contention by Plaintiff, because the exhibit stickers on Plaintiff’s exhibits to his response

to the motion for summary judgment do not match the exhibit numbers in ECF. (See infra

§ III(B)(2)(d), discussing Pl.’s Ex. 12, found at Doc. 72-11.)

Notice and an opportunity to respond regarding conduct that allegedly violates Rule 11 is

an important part of the scheme set out by Rule 11. Indah, 661 F.3d at 928. A court therefore

cannot sanction conduct under Rule 11 other than the conduct identified in the motion for sanctions

or a court’s own show-cause order. Id. at 927. The Court considers the April 2018 Letter not as

potentially sanctionable conduct itself, but for what it shows about the circumstances in which

Plaintiff was operating when he opposed the Meads’ motion for summary judgment.

(Doc. 72-12 at 1 (emphasis added).) The remainder of Plaintiff’s Exhibit 13 consists of the eleven-

page Campaign Document. (Id. at 2–12.) There are no attachments to the Campaign Document

in Exhibit 13, nor is there any indication in the letter itself that any attachments have been omitted.

The April 2018 Letter shows two facts that are relevant to the present analysis. First, it

shows that within a week of the campaign event, Plaintiff’s counsel was in possession of at least

one copy of the Campaign Document that had come from the Meads at the campaign event. That

Plaintiff’s counsel sent a demand letter to the Meads about the Campaign Document without

referring to or including any attached tax documents tends to show that the copy of the Campaign

Document Plaintiff’s counsel received had no such attachments.

Second, the April 2018 Letter shows that, also within a week of the campaign event,

Plaintiff’s counsel was in communication with Burroughs, who had gotten multiple copies of the

Campaign Document at the campaign event. Burroughs was antagonistic enough to the Meads to

be willing to have a demand letter threatening possible litigation sent on his behalf. However, by

the time Plaintiff had to respond to the Meads’ motion for summary judgment, he had never

submitted evidence from Burroughs as to whether Plaintiff’s tax forms were attached to the

Campaign Document. It strains credulity to think that if Burroughs could have truthfully testified

that he received copies of Plaintiff’s tax forms with the Campaign Document, Plaintiff would have

omitted all reference to such evidence from his case entirely.

The April 2018 Letter thus tends to show both that the copies of the Campaign Document

the Meads distributed at the campaign event did not include Plaintiff’s tax forms, and that

Plaintiff’s counsel knew this before Plaintiff’s lawsuit was ever filed. Before discovery, it might

have been reasonable for Plaintiff’s counsel to seek discovery on whether copies of Plaintiff’s tax

forms were distributed with other versions of the Campaign Document or at other times. Once

discovery was concluded, however, and given the lack of any evidence from Burroughs,

continuing to insist that Plaintiff’s tax forms were distributed with the Campaign Document was

not reasonable under the circumstances.

The Court has already concluded that Plaintiff’s contention about the Meads’ distributing

his W-2’s was without evidentiary support. Considering the weakness and unreasonable nature of

the inference about Plaintiff’s 1099s from the Campaign Document’s language, the direct evidence

that they were not attached, the lack of other evidence that they were attached, and the implications

of the April 2018 Letter, the Court concludes that Plaintiff’s contention that the Meads distributed

his 1099s was also without evidentiary support, no later than the filing of Plaintiff’s response to

the motion for summary judgment. Plaintiff’s entire contention about distribution, as to both of

the Meads, therefore violated Rule 11(b)(3) as of that time.

ii. Seeing Plaintiff’s Tax Forms

The Court turns next to Plaintiff’s contention that the Meads saw his tax documents. As

with distribution, Plaintiff relies only on the language of the Campaign Document to support this

contention: “(see 1099s to Doyle Teno),” and “1099 for last year was $120,000 (from Clerk and

Master) & also got W-2 for about $40–50,000.” (See Doc. 72 at 5 (quoting Campaign Doc. ¶ 25).)

Also as with distribution, the Campaign Document does not contain a direct assertion that either

of the Meads had seen Plaintiff’s tax documents.

The language of the Campaign Document does not raise an inference that Leslie Mead,

who was not an author of the document, had seen Plaintiff’s tax forms. Nor can Plaintiff rely on

any inference that either of the Meads would have seen Plaintiff’s tax forms as attachments to the

Campaign Document, because the Court has concluded that there is no evidentiary support for the

contention that they were attached. See supra § III(B)(2)(c)(i). Therefore, Plaintiff’s contention

that Leslie Mead saw his tax forms was without evidentiary support and violated Rule 11(b)(3).

As to Steve Mead, who wrote the Campaign Document, the citation to Plaintiff’s 1099s

and recitation of the amount of compensation on his 1099 and W-2 for the previous year could

give rise to an inference that he had seen Plaintiff’s 1099s and W-2s.8

Steve Mead testified during his deposition that he never saw Plaintiff’s tax documents.

(Doc. 67-2 at 14–17 [Steve Mead. Dep. at 38–41].) Steve Mead testified that he got information

for the Campaign Document from various sources, including public documents reporting

Plaintiff’s compensation and Iwanski. (Doc. 72-22 at 5–6, 10–11 [Steve Mead Dep. at 20–21, 39–

41].) Plaintiff’s compensation, as discussed above, was public information. (See supra

§ III(B)(2)(b).) Iwanski also testified that he communicated with Steve Mead about Plaintiff and

Plaintiff’s compensation. (Doc. 72-21 at 12–13 [Iwanski Dep. at 48–49].) At least one such email

exchange between Steve Mead and Iwanski is in the record, and it does not involve any viewing

of Plaintiff’s tax documents by Steve Mead. (Doc. 72-7 at 18–19.)

Steve Mead also testified during his deposition that he used the terms “1099” and “W-2”

in the Campaign Document not because he got the information from those documents, but rather

to describe the types of income he was discussing, because he has a background in financial

services and he was accustomed to using those terms as a descriptor of income types. (Doc. 67-2

at 14–15, 17–18 [Steve Mead. Dep. at 38–39, 41–42].)

8 Plaintiff argues that, beyond just giving rise to an inference, Steve Mead must have seen

the forms, because otherwise he could not have testified in his deposition that the numbers in the

Campaign Document citing those forms was “truthful and accurate.” (Doc. 104 at 4.) This

argument fails to explain why Steve Mead’s testimony about the accuracy of the Campaign

Document is credible, but his testimony in the same deposition about where he did (and did not)

get the information in the Campaign Document is not credible. It also ignores Steve Mead’s

testimony about the things he would have changed in the Campaign Document if he could, namely

what he described as his use of the terms 1099 and W-2 to, as he described it, identify types of

income, rather than actual sources of data. (See Doc. 67-2 at 14–15, 17–18 [Steve Mead Dep. at

38–39, 41–42].)

The inference from the Campaign Document that Steve Mead had seen Plaintiff’s tax forms

is stronger than the inference that the tax forms were attached to the Campaign Document. “([S]ee

1099s),” as Plaintiff conceded, could imply either that Plaintiff’s 1099s were attached to the

document or that they were available for reference. It could also imply that, if the reader were able

to track the 1099s down through some other means, they would support the statements in the

Campaign Document. The Court concludes that the inference that Steve Mead had seen Plaintiff’s

tax forms, by contrast, is reasonable, and at least arguably constituted more than a scintilla of

evidence. The Court is unable to say with confidence that a rational trier of fact could never have

found for Plaintiff on whether Steve Mead had seen Plaintiff’s tax forms on this record. See

Matsushita, 475 U.S. at 586–87. Because Plaintiff could arguably have shown a genuine issue of

material fact as to whether Steve Mead had seen Plaintiff’s tax forms at the summary-judgment

stage, the Court concludes Plaintiff did not violate Rule 11(b)(3) as to that contention.

As explained above, Plaintiff’s contention that Leslie Mead had seen Plaintiff’s tax

documents violated Rule 11(b)(3) as of the filing of Plaintiff’s response to the motion for summary

judgment. Plaintiff’s contention that Steve Mead had seen Plaintiff’s tax documents, by contrast,

had some evidentiary support. The contention as to Steve Mead therefore did not violate Rule

11(b)(3) as of the filing of Plaintiff’s response to the motion for summary judgment.

d. Whether Iwanski Gave Steve Mead Details of Plaintiff’s Income

on March 31, 2018

The Meads argue Plaintiff made the following assertion, in his response to the motion for

summary judgment, which was unsupported by or contrary to the record: “On March 31, 2018,

after Defendant Iwanski received Plaintiff’s 2016 and 2017 IRS Forms 1099, he provided

Defendant Mead with specific details of Plaintiff’s income information. (Steve Mead Dep. pp.

50–51; Ex. 12).” (Doc. 102 at 7–8.) The Meads argue that “[n]owhere in Steve Mead’s deposition,

let alone on pages 50–51, does Steve Mead testify that on March 31, 2018, Mr. Iwanski provided

him details of Plaintiff’s income information.” (Id. at 8.) Plaintiff does not address this argument

in his response to the motion for sanctions. (See Doc. 104.)

The Meads are correct that the portion of Steve Mead’s deposition Plaintiff cited does not

support the contention Plaintiff says it does. However, Plaintiff also cited his own Exhibit 12 to

his response to the motion for summary judgment, which included a copy of an email exchange

between Iwanski and Steve Mead. (See Doc. 72-11 at 6–7.) That email exchange discussed

Plaintiff’s compensation and the money that Anderson County and its taxpayers might save if

someone else were in Plaintiff’s position as Delinquent Tax Attorney. (Id.) The exhibit shows

Steve Mead sent an inquiry to Iwanski on November 21, 2017, Iwanski responded on December

8, 2017, and Steve Mead forwarded the email to himself on March 31, 2018. (Id.) Plaintiff thus

gave evidentiary support for all but a March 31, 2018, date for the communication.

In his statement of facts, Plaintiff used the erroneous March 31, 2018, date to assert that

the communication took place after Iwanski admittedly received copies of Plaintiff’s 2016 and

2017 IRS Forms 1099 in February 2018. (Doc. 72 at 3.) Plaintiff did not, however, use the

erroneous March 31, 2018 date in his argument section or elsewhere in his response.9 Given

Plaintiff’s lack of use of the erroneous date elsewhere, the Court concludes this was a careless

citation error by Plaintiff. Therefore, the Court will not consider it as a violation of Rule 11(b)(3).

3. Plaintiff’s Legal Contentions, Rule 11(b)(2)

Having considered whether Plaintiff’s factual contentions violated Rule 11(b)(3), the Court

turns next to Plaintiff’s legal contentions under Rule 11(b)(2). The presentation of a pleading,

9 Plaintiff referred to the same email elsewhere in his statement of facts to support the

contention that Iwanski provided year-to-date income information about Plaintiff to Steve Mead

on the correct date of December 8, 2017. (Doc. 72 at 3 (citing Doc. 72-7).)

motion, or other paper to the Court, either by filing it or by advocating for it after it is filed, is a

certification “that to the best of the person’s knowledge, information, and belief, formed after an

inquiry reasonable under the circumstances[,] . . . 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.” Fed. R. Civ. P. 11(b)(2). The Meads argue Plaintiff’s

claims and legal contentions violated this certification no later than when Plaintiff responded to

the motion for summary judgment.

a. Whether the Meads Were Subject to Suit Under the Tax-

Confidentiality Statute

The Meads argue Plaintiff’s claim against them in Count One for violation of the federal-

tax-confidentiality statute was frivolous. (Doc. 102 at 5.) As support, they argue Plaintiff never

explicitly pleaded that the statute applied to them and never identified the subsection of the statute

that would apply to them, instead relying only on the frivolous assertion that the Meads were liable

under the statute because they were Iwanski’s agents.

Plaintiff responds that he did plead that the tax-document statutes applied to the Meads,

and he argues that he made a good-faith argument about the statute’s applicability to the Meads,

albeit one with which this Court disagreed when it granted the Meads’ motion to dismiss. (Doc.

104 at 3–4.) Plaintiff argues Rule 11 should not be used “to deter novel legal arguments or cases

of first impression.” (Id. at 3 (quoting Laborers Local 938 Joint Health & Welfare Trust Fund v.

B.R. Starnes Co. of Fl., 827 F.2d 1454, 1458 (11th Cir. 1987).) Plaintiff argues his attempt to

apply the statute to the Meads as “other persons” was in good faith, that the situation was not

subject to controlling authority, and that he distinguished potentially relevant case law in good

faith. (Id.) In describing his argument for the applicability of the statute, he restates his theory

that “the Meads were acting as agents for Iwanski and it was through that and Iwanski’s liability

under the statute that the Meads could be liable.” (Id.)

Plaintiffs’ response to the motion for sanctions thus seeks to justify his statutory cause of

action against the Meads on two legal grounds: first, because they could have been “other persons”

under the statute; and second, because they could have been agents of Iwanski.

i. Applicability of the “Other Person” Language

The “other person” language appears in § 6103(a)(3): “no other person (or officer or

employee thereof) who has or had access to returns or return information under [certain other

subsections of § 6103] . . . shall disclose any return or return information obtained by him in any

manner . . . under the provisions of this section. . . .” Plaintiff’s argument that “[t]he statute allows

‘other persons’ to be liable’” is problematic for two reasons. (See Doc. 104 at 3.)

First, Plaintiff’s response to the motion for sanctions appears to be the first time he has

argued that the Meads, of themselves, came within the scope of subsection (a)(3). In the Second

Amended Complaint, Plaintiff did not identify a subsection of 26 U.S.C. § 6103 into which the

Meads could fit. (Doc. 27 ¶ 38 (citing only § 7431(a)(2), which creates the cause of action).) For

Iwanski, by contrast, Plaintiff identified two specific subsections, 6103(a)(2) and 6103(n), as it is

incorporated into Section 6103(a)(3). (Doc. 27 ¶ 37.) Nor did Plaintiff argue the Meads on their

own came within Section 6103 in response to the Meads’ motion to dismiss (see Doc. 45 at 5–6

(arguing against the Meads based on agency only), or in response to the motion for summary

judgment (see Doc. 72 at 15–18 (same)).

Second, the reference to “other person[s]” in subsection (a)(3) is limited to persons who

“ha[ve] or had access to returns or return information under” certain other listed subsections of

§ 6103. 26 U.S.C. § 6103(a)(3). The list of subsections is long, but their content is specific. (See,

e.g., supra § III(B)(1)(a) (summarizing some of the subsections incorporated into 26 U.S.C.

§ 6103(a)(3).) Plaintiff has made no effort, now or in previous filings, to explain how the Meads

could fit into any of those categories. Plaintiff’s reference to the broad language “other person[s]”

therefore cannot help to justify his tax-confidentiality cause of action against the Meads.

ii. The Agency Argument

Plaintiff’s other, and primary, argument for applying the tax-confidentiality statute to the

Meads is that the Meads were liable because they were Iwanski’s agents. The Court has already

concluded that Plaintiff’s factual contention that the Meads were Iwanski’s agents violated Rule

11(b)(3). (Supra § III(B)(2)(a).) The Court also ruled in connection with the Meads’ motion to

dismiss that Plaintiff’s agency argument was not meritorious. (Doc. 92 at 8.) The Court must now

consider whether Plaintiff’s agency argument was “warranted by existing law or by a nonfrivolous

argument for extending, modifying, or reversing existing law or for establishing new law.” See

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

“Arguments for extensions, modifications, or reversals of existing law or for creation of

new law do not violate subdivision (b)(2) provided they are ‘nonfrivolous.’” Fed. R. Civ. P. 11

Advisory Notes. The Court is to take into account “the extent to which a litigant has researched

the issues and found some support for its theories even in minority opinions, in law review articles,

or through consultation with other attorneys” in determining whether a litigant has violated Rule

11(b)(2). Id.

The Court concludes that Plaintiff’s agency argument was neither “warranted by existing

law” nor “by a nonfrivolous argument for extending, modifying, or reversing existing law or for

establishing new law.” See Fed. R. Civ. P. 11(b)(2). The Court does not reach this conclusion

because it rejected Plaintiff’s agency argument when it granted the Meads’ motion to dismiss.

Rather, the Court reaches this conclusion because, as the Court phrased the matter at that time,

there was “neither legal support nor logic for extending liability under Section 7431 to persons not

included in Section 6103 merely because those persons are alleged to be agents of someone who

is.” (See Doc. 92 at 8.)

Plaintiff’s main affirmative argument for extending liability to alleged agents seems to

have been that it would advance the statute’s purpose of protecting the confidentiality of tax

returns. (See Doc. 72 at 15, 17; see also Doc. 104 at 3 (“The statute allows ‘other persons’ to be

liable. Plaintiff, in good faith, applied the present facts to the stated policy objective of the statute

and the three relevant cases that he could find . . . .”).) But if enhancing confidentiality were

enough to extend liability under the statute, everyone would be liable, and the statute’s detailed

scheme would be meaningless. This is not a legally sufficient basis to argue for extending liability

to non-enumerated persons under the statute.

“Although arguments for a change of law are not required to be specifically so identified,

a contention that is so identified should be viewed with greater tolerance under the rule.” Fed. R.

Civ. P. 11 Advisory Notes. Plaintiff did not indicate that his position might be seeking a change

in the law until he responded to the motions for sanctions. (Compare Doc. 72 at 15–18 (not

mentioning a change in law) with Doc. 104 at 3 (“Rule [11] is intended to deter frivolous suits, not

to deter novel legal arguments or cases of first impression.”) (alteration in original; citation

omitted).) Plaintiff’s agency argument is therefore not entitled to the greater tolerance appropriate

for an explicit request for a change in the law.

As Plaintiff argues in his response to the motion for sanctions, he did attempt to distinguish

three cases in which courts had found no liability under the statute for persons outside the statute,

arguing those cases “lack[ed] the necessary ‘avenue of the government’ requirement to fall under

§6103 and §7431.” (Doc. 72 at 16–17.) While distinguishing contrary cases may help remove an

obstacle to reaching the legal result a party wants, it does not provide an affirmative rationale for

extending the reach of a statute. Moreover, Plaintiff’s grounds for distinguishing those cases,

based on an “‘avenue of the government’ requirement,” was legally unsound. The statute sets out

multiple specific scenarios in which a person could be subject to Section 6103, not a vague

requirement that there be some involvement of an “avenue of the government.” See 26 U.S.C.

§ 6103(a).

Finally, Plaintiff has offered no reasoning or authority to support the extension of liability

to agents of persons named in the statute. As the Court previously stated, “[a]gency is . . . a

common-law construct under which a principal may be bound by the actions of his or her agents—

not the other way around.” (Doc. 92 at 7–8, citing Jones v. Federated Fin. Reserve Corp., 144

F.3d 961, 965 (6th Cir. 1998).) What Plaintiff sought was not just a change in law, but one that

would upend the long-established principles governing an agency relationship.

The Court concludes that Plaintiff’s contention that the Meads would have been subject to

suit under Sections 7431 and 6013 of the Internal Revenue Code if they had been the agents of

Iwanski was frivolous, unwarranted by existing law, and not supported by a nonfrivolous argument

for extending, modifying, or reversing existing law or establishing new law. It therefore violated

Rule 11(b)(2) as of the filing of Plaintiff’s response to the motion for summary judgment.

b. Whether Plaintiff Was Damaged by Disclosure of His Income

Amount

The Meads argue Plaintiff’s assertion that he was damaged by the Meads’ public disclosure

of his compensation was frivolous, because Plaintiff’s compensation from Anderson County was

a matter of public record. (Doc. 102 at 5.) The Court has concluded Plaintiff did not assert that

the amount of his compensation, itself, was private information. (Supra § III(B)(2)(b).) The Court

accordingly concludes that Plaintiff’s related legal contention, although not always clearly

expressed, was that the disclosure of copies of his tax forms caused him damages. Because

Plaintiff did not clearly contend that he was damaged by the disclosure of his compensation

amounts, there can have been no violation of Rule 11(b)(2) as to the contention.

4. Plaintiff’s Purpose, Rule 11(b)(1)

Having considered Plaintiff’s factual and legal contentions under Rule 11(b)(3) and (b)(2),

the Court turns next to Plaintiff’s purpose under Rule 11(b)(1). The presentation of a pleading,

motion, or other paper to the Court, either by filing it or by advocating for it after it is filed, is a

certification “that to the best of the person’s knowledge, information, and belief, formed after an

inquiry reasonable under the circumstances[,] . . . it is not being presented for any improper

purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”

Fed. R. Civ. P. 11(b)(1).

The Meads argue Plaintiff’s lawsuit was filed and continued after January 31, 2019, as a

way of getting political payback against them. (Doc. 102 at 8–9.) Steve Mead has submitted an

affidavit explaining his belief that the lawsuit was, from the beginning and throughout its

prosecution, “no more than political posturing and payback and had nothing to do with Mr. Teno

allegedly being damaged.” (Doc. 101 at 2 [Steve Mead 2d Aff. ¶ 5].) He avers that both Plaintiff

and one of his attorneys, Mr. Ward, have a political vendetta or agenda against him. (Id. at 3–4

[Steve Mead 2d Aff. ¶¶ 5(a), (b)].)

Steve Mead’s affidavit sets out four reasons why he believes Mr. Ward has a vendetta

against him. First, in 2016, Mr. Ward ran against him for election as an Anderson County

Commissioner, losing by a margin of almost two to one.10 (Id. at 3 [Steve Mead 2d Aff. ¶ 5(a)(i)].)

10 The affidavit states that Steve Mead “understand[s] [Mr. Ward] was embarrassed by”

the margin of his loss. (Doc. 101 at 3 [Steve Mead 2d Aff. ¶ 5(a)(i)].) An affidavit must be made

on personal knowledge. See Fed. R. Evid. 602. The basis of Steve Mead’s knowledge on this

point is not clear, but it appears to be either hearsay or speculation. The Court will not consider

this portion of the affidavit.

Second, two years later, Mr. Ward was the treasurer for Steve Mead’s unsuccessful opponent in

the 2018 election. (Id. [Steve Mead 2d Aff. ¶ 5(a)(ii)].) Third, Plaintiff’s lawsuit against the

Meads, Emert, and Iwanski was filed “just in time to hit the local newspaper” before the mayoral

primary in which Mayor Frank defeated the Meads’ candidate, Emert. (Id. [Steve Mead 2d Aff.

¶ 5(a)(iii)].) Fourth, Steve Mead was responsible for a resolution by the Anderson County

Commission barring attorneys who had previously represented clients in suits against the County

from later representing the County, and this category included Mr. Ward. (Id. [Steve Mead 2d

Aff. ¶ 5(a)(iv)].)

As to Plaintiff, Steve Mead states that he (Steve Mead) “has been a very vocal critic of the

county outsourcing the delinquent tax attorney work that Mr. Teno is now doing.” (Id. at 3–4

[Steve Mead 2d Aff. ¶ 5(b)].) Taking that work back into the Anderson County government would,

Steve Mead argues, cause a dramatic reduction in Plaintiff’s income, from his position as the

highest-paid person in the Anderson County government. (Id.)

In response, Plaintiff asserts, without citation to authority, that “[t]he presence of politics

is not a ground for determining there is an improper purpose.” (Doc. 104 at 5.) He characterizes

Steve Mead’s assertions as “unfounded and absurd.” (Id.) As to Mr. Ward, Plaintiff asserts “[i]t

is appalling that Defense counsel would even suggest that another member of the Bar brought a

lawsuit on behalf of a client for his own political vendetta,” and it is beneath the dignity of the

Court to address the issue. (Id.) As to Plaintiff, he argues the Meads’ allegation is untrue, that the

Meads used Plaintiff as a pawn in their own feud with Mayor Frank, and that Plaintiff has no

vendetta in any case “because all of Mr. Mead’s attempts at political subterfuge that in anyway

[sic] affected Plaintiff were unsuccessful.” (Id.)

Plaintiff has submitted an affidavit of Mr. Ward. (Doc. 104-1.) It refers to Steve Mead’s

allegations that Mr. Ward acted out of a vendetta, and then states, “Defendant Steve Mead’s

statements are bizarre, false, reckless, malicious, and irrelevant.” (Id. at 2 [Ward Aff. ¶¶ 5, 6].)

The affidavit contains no specific denials of any facts alleged in Steve Mead’s affidavit. Instead,

it says Mr. Moore mentions “Steve Mead’s falsities” only “to note their lack of propriety, and the

affront to this Court, on the part of [the Meads’ counsel] by offering aspersions in the service of a

client.” (Id. [Ward Aff. ¶ 7].) The affidavit does not directly mention the allegations in Steve

Mead’s affidavit as they relate to Plaintiff. Plaintiff has also not submitted an affidavit of his own

in opposition to the Meads’ motion for sanctions.

Presenting or advocating a written paper violates Rule 11(b)(1) if it is done “for any

improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of

litigation.” Fed. R. Civ. P. 11(b)(1). The analysis of an improper purpose under Rule 11(b)(1)

resembles the analysis of bad faith or an improper purpose under a court’s inherent power to

sanction a party by shifting fees. See BDT Prods., Inc. v. Lexmark Intern., Inc., 602 F.3d 742, 752

(6th Cir. 2010). Under that standard, pursuing an action that is without merit may be evidence of

bad faith, but a court “must find something more than that a party knowingly pursued a meritless

claim or action at any stage of the proceedings.” Id. at 753 & 752 n.4 (emphasis in original).

“Harassing the opposing party, delaying or disrupting litigation, hampering the enforcement of a

court order, or making improper use of the courts are all examples of the sorts of conduct that will

support a finding of bad faith or improper purpose,” but such conduct may not be shown only by

knowing pursuit of a meritless claim. Id. at 754.

Plaintiff argues the Court should not address the Meads’ allegations about Plaintiff’s and

his counsel’s alleged motivations, because to do so would be beneath, or an affront to, the Court.

(Doc. 104 at 5; Doc. 104-1 at 2 [Ward Aff. ¶ 7].) The Federal Rules of Civil Procedure require

the Court to resolve any allegations that a paper has been presented for an improper purpose. See

Fed. R. Civ. P. 11(b)(1). The Court therefore does not have the option to reject those allegations

on the grounds that they are beneath the Court.

Plaintiff also argues that the presence of politics is not a proper foundation for finding an

improper purpose under Rule 11. (Doc. 104 at 5.) However, courts have found an improper

purpose based on political motivations or personal vendettas. See, e.g., Collins v. Daniels, 916

F.3d 1302, 1320–22 (10th Cir. 2019) (adding parties for political reasons and without legal basis

is an improper purpose under Rule 11); Knipe v. Skinner, 19 F.3d 72, 77 (2d Cir. 1994) (filing

action without good-faith legal basis to “pursue a personal agenda against [a government entity]”

violates Rule 11) (under previous version of Rule 11); Scott v. Sanders, 789 F. Supp. 2d 773, 776

(E.D. Ky. 2011) (pursuing “personal vendetta” against persons not involved in a lawsuit by

submitting an affidavit attacking them is an improper purpose under Rule 11(b)(1)).

Plaintiff asserts that Steve Meads’ allegations are false, unfounded, bizarre, absurd and

malicious. (Doc. 104 at 5; Doc. 104-1 at 2 [Ward Aff. ¶ 6].) These assertions are not sufficient to

defeat Steve Mead’s specific allegations. The Court cannot, based on a blanket denial, conclude

that Mr. Ward did not run against Steve Mead unsuccessfully in 2016, that Mr. Ward was not the

treasurer for a 2018 candidate who also ran unsuccessfully against Steve Mead, or that Steve Mead

was not responsible for a resolution that effectively prevented Mr. Ward from representing

Anderson County in cases going forward. (Doc. 101 at 3 [Steve Mead 2d Aff. ¶ 5(a)(i), (ii), (iv)].)

Moreover, it is undisputed that Plaintiff’s lawsuit was filed approximately a week before the 2018

mayoral primary election, as Steve Mead’s affidavit states (see Doc. 1 (lawsuit filed April 23,

2018); Doc. 72 [Pl.’s Resp. to Mot. Summ. J.] at 5 (primary election was held on May 1, 2018)),

and there is other uncontradicted evidence in the record that the lawsuit received local news

coverage a few days before Mayor Frank won the election by a narrow margin, (see Doc. 68 at 3

[Steve Mead 1st Aff. ¶¶ 10, 11]). The record also contains evidence to support the assertion in

Steve Mead’s affidavit that Steve Mead was a vocal critic of Plaintiff’s compensation and work as

Delinquent Tax Attorney for Anderson County. (See Doc. 68-1 [Campaign Document] ¶ 25; Doc.

72-7 at 19 (Steve Mead email to Iwanski asking how much Anderson County and taxpayers could

save if someone else were in Plaintiff’s role as Delinquent Tax Attorney).)

All of the foregoing are objective facts which Plaintiff and Mr. Ward could have shown

were false, if indeed any of them were false. Lacking any evidence to contradict them other than

a blanket denial, however, and finding support for some of them elsewhere in the record, the Court

credits them. Based on these facts, in addition to the meritless nature of most of Plaintiff’s claims

and contentions against the Meads, the Court finds that Plaintiff and his counsel brought the lawsuit

for the improper purpose of harassing the Meads for their own personal and political reasons,

independently of any merits the action may have had.

Steve Mead’s affidavit addresses facts that existed as of the filing of the initial complaint.

He also averred, however, that these facts continued to influence Plaintiff and his counsel in

continuing to prosecute the action. (Doc. 101 at 2 [Steve Mead 2d Aff. ¶ 5].) The Meads’ motion

seeks sanctions based on Plaintiff’s actions as of the filing of the response to the motion for

summary judgment. (Doc. 99 at 1.) The Court concludes that Plaintiff’s response to the motion

for summary judgment and his choice to keep prosecuting his case against the Meads after that

time violated Rule 11(b)(1).

C. Sanctions

The Court has concluded that Plaintiff violated Rule 11(b) in multiple ways as of January

31, 2019, and until the dismissal of the lawsuit. (See supra §§ III(B)(2)(a), (2)(c), (3)(a), 4.) The

questions remaining are, first, whether sanctions are appropriate for those violations; second, the

form and amount of any such sanctions; and third, against whom any such sanctions should be

assessed.

1. Whether Sanctions Are Appropriate

Factors for a court to consider in deciding whether to impose Rule 11 sanctions include

Whether the improper conduct was willful, or negligent; whether it was part of a

pattern of activity, or an isolated event; whether it infected the entire pleading, or

only one particular count or defense; whether the person has engaged in similar

conduct in other litigation; whether it was intended to injure; what effect it had on

the litigation process in time or expense; whether the responsible person is trained

in the law; what amount, given the financial resources of the responsible person, is

needed to deter that person from repetition in the same case; what amount is needed

to deter similar activity by other litigants.

Fed. R. Civ. P. 11 Advisory Notes.

The Court has found multiple significant violations of Rule 11(b) by Plaintiff. His factual

contention that the Meads were Iwanski’s agents violated Rule 11(b)(3). (Supra § III(B)(2)(a).)

That factual contention was crucial to Plaintiff’s tax-disclosure-statute cause of action against the

Meads in Count One. Plaintiff’s legal contention that the Meads were subject to the tax-disclosure

statute violated Rule 11(b)(2), which would have been fatal to Count One, even if Plaintiff had

provided any factual support for it. (Supra § III(B)(3)(a).) Plaintiff’s factual contention that the

Meads distributed Plaintiff’s tax forms violated Rule 11(b)(3), as did his factual contention that

Leslie Mead had seen his tax forms. (Supra § III(B)(2)(c)(i), (ii).) Those two findings together

were fatal to Plaintiff’s cause of action against Leslie Mead in Count Two, for invasion of privacy.

They also left Plaintiff’s cause of action against Steve Mead in Count Two dependent on a single

inference that Steve Mead had seen Plaintiff’s tax forms. And Plaintiff’s improper purpose in

prosecuting the lawsuit as a whole violated Rule 11(b)(1). (Supra § III(B)(4).)

All of the relevant Advisory Note factors point to the conclusion that sanctions are

appropriate. Plaintiff’s conduct was willful, rather than negligent. The April 2018 Letter

demonstrates that Plaintiff’s counsel had good reason to doubt, from the beginning, whether

Plaintiff’s tax forms were attached to the Campaign Document. Plaintiff also implicitly

acknowledged in his response to the motion to dismiss that he would need more evidence of

distribution than the Campaign Document to sustain his case once he got beyond that stage. (See

Doc. 45 at 10 (“Discovery is necessary for Plaintiff to make a determination on that matter . . . .”).)

Once discovery was complete, however, he continued to rest only on that ambiguous inference

from the Campaign Document.

Plaintiff’s conduct infected his entire action against the Meads, rather than one particular

count or defense. Count One was factually and legally frivolous as to both of the Meads. Despite

the Court’s dismissal of Count Two without prejudice, and Plaintiff’s consequent assertion that

Count Two could still be pursued in state court (Doc. 104 at 6), Plaintiff’s conduct infected that

count, as well. Count Two was factually frivolous as to Leslie Mead, and it hung by the slimmest

factual thread as to Steve Mead. Moreover, Plaintiff’s entire action against the Meads was infected

with the improper purposes of Plaintiff and his counsel.

Plaintiff’s conduct was part of a pattern of activity, rather than an isolated event, in that he

made multiple unsupported factual allegations and unwarranted legal contentions. Given the

Court’s finding on an improper purpose, Plaintiff’s maintenance of his action against the Meads

was intended to injure. Because Plaintiff’s conduct infected the entire lawsuit and was continued

for an improper purpose, it had a significant effect on the litigation process in time and expense.

And, finally, both Plaintiff and his counsel are trained in the law.

Having concluded that sanctions are appropriate, the Court considers the form and amount

of sanctions that should be ordered.

2. Form and Amount of Sanctions

The Meads seek an award of $11,613, representing the attorney fees they incurred in this

matter beginning on January 31, 2019. (Doc. 99 at 1.) They have submitted an affidavit from

Steve Mead that these fees totaled $11,613 from January 31, 2019, through the filing of the motion.

(Doc. 101 at 2 [Steve Mead 2d Aff. ¶ 3].) They have also submitted a declaration from their

counsel setting out the same amount, attaching a description of the services provided since that

date, stating that the work and time represented by the descriptions were necessary for the

representation, and that the hourly rates of $225 per hour for lead counsel and $140 per hour for

the associate attorney were reasonable for the Knoxville area and their respective experience.

(Doc. 100 at 4–5 [Brian Quist Decl. ¶¶ 6–9]; Doc. 100-8 [itemized statement of services].)

Counsel’s declaration also contains an analysis of the criteria for determining a reasonable fee

under Rule 1.5(a) of the Tennessee Rules of Professional Conduct. (Id. at 5–8 [Quist Decl. ¶ 10].)

Plaintiff does not object to the amount of the sanction the Meads seek or to any part of the

Meads’ submission regarding the fees they incurred to their attorneys. (See Doc. 104 at 6–7.) The

Court has reviewed the Meads’ counsel’s billing statement and finds the work completed to have

been necessary and appropriate, and the amount of the fee to have been reasonable.

A sanction under Rule 11 “must be limited to what suffices to deter repetition of the

conduct or comparable conduct by others similarly situated.” Fed. R. Civ. P. 11(c)(4). Factors to

be considered include

the nature of the violation committed, the circumstances in which it was committed,

the circumstances (including the financial state) of the individual to be sanctioned,

and those sanctioning measures that would suffice to deter that individual from

similar violations in the future. The court should also consider the circumstances of

the party or parties who may have been adversely affected by the violation.

Orlett, 954 F.2d at 420 (quoting American Judicature Society, Studies of the Justice System, Rule

11 in Transition: The Report of the Third Circuit Task Force on Federal Rule of Civil Procedure

11, at 12 (1989)) (discussing sanctions under previous version of Rule 11).

Considering the nature and circumstances of Plaintiff’s multiple violations and what would

be sufficient to deter Plaintiff in future, as well as Plaintiff’s failure to object to the amount of the

sanctions based on his or his counsel’s financial state, the Court concludes that $11,613, the

amount of the sanction the Meads seek, is no greater than necessary to deter repetition of this

conduct. The Court further finds this no more than necessary in light of the Meads’ financial

situation. As presented in Steve Mead’s second affidavit, the Meads’ attorney fees for the entirety

of their defense have been $28,336; the Meads are retired senior citizens with a small amount of

additional compensation from Steve Mead’s work as a County Commissioner and in financial

services; and the Meads had to cancel their long-planned fiftieth anniversary trip to Alaska because

they could no longer afford to pay for it.

The Meads ask that the sanction be paid to them. (Doc. 99 at 1.) Plaintiff objects, arguing

that “the present matter is not appropriate for a monetary sanction for attorney fees.” (Doc. 104 at

6.)

A sanction under Rule 11, “if imposed on motion and warranted for effective deterrence,”

may include “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)(4). As

explained in the Advisory Notes:

Since the purpose of Rule 11 sanctions is to deter rather than to compensate, the

rule provides that, if a monetary sanction is imposed, it should ordinarily be paid

into court as a penalty. However, under unusual circumstances, particularly for

(b)(1) violations, deterrence may be ineffective unless the sanction not only

requires the person violating the rule to make a monetary payment, but also

directs that some or all of this payment be made to those injured by the violation.

Accordingly, the rule authorizes the court, if requested in a motion and if so

warranted, to award attorney’s fees to another party. Any such award to another

party, however, should not exceed the expenses and attorneys’ fees for the services

directly and unavoidably caused by the violation of the certification requirement.

If, for example, a wholly unsupportable count were included in a multi-count

complaint or counterclaim for the purpose of needlessly increasing the cost of

litigation to an impecunious adversary, any award of expenses should be limited to

those directly caused by inclusion of the improper count, and not those resulting

from the filing of the complaint or answer itself.

Fed. R. Civ. P. 11 Advisory Notes (emphasis added).

The Court concludes that this case presents the kind of unusual circumstances that would

make deterrence ineffective unless Plaintiff is required to make a payment to the Meads. The

Court has found a violation of Rule 11(b)(1), which the Advisory Notes identify as particularly

suitable for this unusual form of sanctions. Moreover, as discussed above, Plaintiff’s conduct

infected his entire action against the Meads, notwithstanding the fact that one count against one of

the Meads had a minimal piece of evidentiary support. (See supra § III(C)(1).)

Therefore, the Court will order a payment to the Meads of their reasonable attorney fees

beginning on January 31, 2019, in the amount of $11,613, as a deterrent measure. Given the

extensive nature of the violations and the fact that they infected the prosecution of the entire action

against the Meads from and after January 31, 2019, the Court concludes this to be the amount

directly resulting from Plaintiff’s violations. See Fed. R. Civ. P. 11(c)(4).

The Court next considers whether this payment should be ordered against Plaintiff, his

counsel, or Plaintiff’s counsel’s law firm.

3. Against Whom Sanctions Should Be Ordered

If, “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 any attorney, law firm,

or party that violated the rule or is responsible for the violation.” Fed. R. Civ. P. 11(c)(1). A

sanction under Rule 11

should be imposed on the persons—whether attorneys, law firms, or parties—who

have violated the rule or who may be determined to be responsible for the violation.

The person signing, filing, submitting, or advocating a document has a

nondelegable responsibility to the court, and in most situations is the person to be

sanctioned for a violation.

Fed. R. Civ. P. 11 Advisory Notes.

Where there has been a violation of Rule 11 as to legal contentions, sanctions against the

attorney making or advocating for the offending legal contentions are appropriate. Because of the

violations of Rule 11(b)(2) in this case (see supra § III(B)(3)(a)), sanctions will be ordered against

Plaintiff’s counsel. Sanctions against Plaintiff’s counsel are also appropriate given counsel’s

improper purpose in maintaining the lawsuit. (See supra § III(B)(4).) In addition, there is no

indication that Plaintiff’s violations of Rule 11(b)(3) as to factual contentions were not, at least in

part, attributable to Plaintiff’s counsel. (See supra § III(B)(2)(a), (c)(i), (c)(ii).)

“Absent exceptional circumstances, a law firm must be held jointly responsible for a

violation committed by its partner, associate, or employee” when a motion for sanctions is granted.

Fed. R. Civ. P. 11(c)(1). The Court sees no exceptional circumstances here, nor has Plaintiff

argued for any. The Court will accordingly order sanctions against Plaintiff’s counsel’s law firm

in the same amount as sanctions against Plaintiff’s counsel.

As to Plaintiff himself, “[s]anctions that involve monetary awards (such as a fine or an

award of attorney’s fees) may not be imposed on a represented party for causing a violation of

subdivision (b)(2), involving frivolous contentions of law. Monetary responsibility for such

violations is more properly placed solely on the party’s attorneys.” Id. Here, the Court has found

not just a violation of Rule 11(b)(2), but also violations of Rule 11(b)(3) and 11(b)(1). Plaintiff is

a trained and licensed attorney. Given the Court’s findings as to Plaintiff’s unsupported factual

contentions (see supra § III(B)(2)(a), (c)(i), (c)(ii)) and improper purpose for maintaining the

lawsuit (see supra § III(B)(4)), the Court will order sanctions against Plaintiff’s counsel. Because

Plaintiff was a represented party in this action and therefore cannot be held responsible for the

legal violations, the Court will order a smaller share of the sanction against Plaintiff than against

his counsel and his counsel’s law firm.

One third of the amount of the $11,613 sanction would be $3,871. The Court will order

that Plaintiff, Doyle Thornton Teno, III, pay the Meads approximately half of that amount, $2,000.

That leaves $9,613 to be allocated between Plaintiff’s counsel and Plaintiff’s counsel’s law firm.

The Court will split the remaining amount equally between Plaintiff’s counsel and Plaintiff’s

counsel’s law firm. Plaintiff’s counsel’s law firm will accordingly be ordered to pay $4,806.50.

Plaintiff’s lead counsel, Mr. Ward, will be ordered to pay the larger share of the remaining amount,

$3,204.50, and Plaintiff’s secondary counsel, Ms. Nower, will be ordered to pay the smaller share

of the remaining amount, $1,602.

D. Motion to Alter or Amend Judgment

The Meads have filed a separate motion to alter or amend the judgment under Rule 59(e)

of the Federal Rules of Civil Procedure, in order to allow the Court to impose the sanctions they

seek under Rule 11. (Doc. 97.)

Plaintiff responded in opposition, arguing the Meads have not provided grounds on which

the Judgment Order should be amended. (Doc. 105 at 1.) Plaintiff also argues that the Meads’

motion erroneously states that motions under Rule 11 do not have an outside filing deadline;

Plaintiff relies on the arguments he made regarding timeliness in response to the Meads’ motion

for sanctions in this regard. (Id. at 2.) Plaintiff also argues that “the Meads are attempting to

evade the ‘outside deadline’ of Rule 11 motions by amending the very document which concludes

the case and prevents them from filing a proper motion for Rule 11 sanctions.” (Id.)

In reply, the Meads represent that they sought to alter or amend the judgment as a

precaution, and so that, if sanctions were ordered against Plaintiff, Plaintiff could appeal that order

as part of the amended final judgment. (Doc. 106 at 1.) The Meads further state that they would

have no objection to the Court’s denying their motion to alter or amend if the Court does not find

it to be “a required or useful prerequisite.” (Id. at 2.)

A court “may grant a timely Rule 59 motion to alter or amend judgment [1] to correct a

clear error of law; [2] to account for newly discovered evidence or an intervening change in the

controlling law; or [3] to otherwise prevent manifest injustice.” Volunteer Energy Servs., Inc. v.

Option Energy, LLC, 579 F. App’x 319, 330 (6th Cir. 2014) (quoting Doran v. Comm’r of Soc.

Sec., 467 F. App’x 446, 448 (6th Cir. 2012)).

The Meads’ motion does not suffer from any infirmities related to timeliness. A party may

file a motion to alter or amend a judgment “no later than 28 days after entry of the judgment.”

Fed. R. Civ. P. 59(e). The Meads’ motion satisfies that requirement. (Compare Doc. 93 with Doc.

97.) Nor, contrary to Plaintiff’s assertion, are the Meads incorrect that it is permissible to file their

motion for sanctions after entry of judgment. (See supra § III(A).) This also means that amending

the judgment to incorporate an award of sanctions against Plaintiff is not necessary for reasons of

timeliness.

Based on the lack of necessity to grant the motion to alter or amend in order to grant the

Meads’ motion for sanctions, Plaintiff’s opposition to the motion to alter or amend, and the Meads’

acquiescence in the Court’s denying the motion to alter or amend, the Court will DENY the

motion.

IV. CONCLUSION

The Court will GRANT the Meads’ motion for sanctions (Doc. 99) and DENY the Meads’

motion to alter or amend the judgment (Doc. 97). A payment of $11,613 will be ordered to be

paid to the Meads as a sanction: $2,000 by Plaintiff, Doyle Thornton Teno, III; $4,806.50 by

Plaintiff’s counsel’s law firm, Young Williams & Ward, PC; $3,204.50 by Plaintiff’s lead counsel,

Hugh B. Ward; and $1,602 by Plaintiff’s secondary counsel, Mindy L. Nower.

An appropriate order will enter.

/s/____________________________

CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE