Appendix — Ducote v. Titelman

who made the decision to deny Mrs. Titelman’s motion for a directed

verdict. Similarly, with reference to subpart B, Mrs. Titelman has

not alleged any fact that if it had been presented to the district

attorney, police, or grand jury, would have misled Judge Flournoy.

Although Mrs. Titelman alleges with no specificity that Defendants

Woods and Titelman provided incomplete information ic the

criminal jury, Mrs. Titelman undertook a significant effort to rebut

the state’s case and presented several witnesses, including the

forensic psychologist who evaluated the children in Mississippi, in

support of her contentions against Mr. Titelman and her defense of

justification. Despite her presentation of this evidence, Judge

Flounoy ale denied her renewed motion for directed verdict. At

the time he made that ruling, the Judge had before him all of the

information in the possession of the parties. Mrs. Titelman’s

allegation that Defendants Woods and Titelman “encouraged” other

witnesses to provide “incomplete information” does not show that

other witnesses did so, nor does it show that Judge Floumoy’s

rulings were procured by fraud. Similarly, an accusation that

Defendants “pressured” the District Attorney into bringing charges

or “continued” to participate in the prosecution by “assisting” the

District Attorney, does not have any effect on the rulings of Judge

Flournoy. See Amended Cmplt., {§] 15D, E and F. As the court

explained in its previous order, the involvement of the FBI or the

U.S. Attorney’s Office is immaterial to the instant malicious

prosecution suit based on a state court criminal trial. See id., 4 15G.

Mrs. Titelman’s remaining allegations, again, would not have any

effect on the decision of Judge Floumoy to deny her motions for a

directed verdict. See id., [9 1SH-K.

Mrs. Titelman filed suit against Andrew Charles Titelman,

her ex-husband; Craig Chandler, a detective with the Kennesaw

Police Department; John Mayoue and Pamela Gray, attorneys for

Andrew Charles Titelman; and Diane Woods, a guardian ad litem

appointed to represent the Titelman children during the divorce

proceedings between the Titlemans. Yet Mrs. Titelman’s complaint

is devoid of any allegation of any specific act taken by her ex-

husband, the lawyers, and a police officer that could possibly have

affected Judge Flournoy’s decision given the complete factual record

and full presentation he had of Mrs. Titelman’s defense.

Judge Flournoy’s ruling on probable cause was conclusively

established. The only basis upon which Mrs. Titelman’s suit could

proceed, as the court explained to her counsel, was by showing that

Judge Flournoy’s ruling was procured through fraud or corruption.

There is no allegation that any plotting or scheming done by

Defendants had anything to do with the decision of the Judge. The

court recognizes that Mrs. Titelman raised arguments with respect to

the charging decision of the District Attorney’s Office. As evidenced

by the criminal trial transcript, however, Judge Flournoy was fully

aware of the parties’ competing contentions on this issue and

accepted the state’s argument that the taking could be accomplished

by not returning to Georgia. The court has no occasion to substitute

its judgment for that of a state_court trial judge. In sum, Plaintiff

failed to allege with any particularity the acts by Defendants that

support her complaint of malicious prosecution despite being given

an opportunity by the court to reform her complaint. Plaintiff also

failed to allege that Judge Flournoy’s denials of her motions for a

directed verdict were procured through fraud or corruption.

B. Rule 11

The Eleventh Circuit has identified three types of conduct by

an attorney or party that warrant the imposition of Rule 11 sanctions.

First, sanctions are warranted where a party or attorney files a

pleading or other paper that has no reasonable factual basis. Second,

sanctions are warranted where a party or attorney advances a legal

theory that has no reasonable chance of success under the decisional

or statutory law and that cannot be advanced as a reasonable

argument to reverse, modify, or extend the law. Finally, sanctions

are warranted where a party or attorney files a motion or pleading for

purposes of harassment or delay. See United States v. Milam, 855

F.2d 739, 742 (11" Cir. 1988); accord Baker v. Alderman, 158 F.3d

516, 524 (11" Cir. 1998).

Defendants Mayoue and Gray notified Plaintiff by letter on

September 5, 2001, of their intention to pursue Rule 11 sanctions;

Defendant Chandler notified Plaintiff on December 27, 2001;

Defendant Titelman on September 27, 2001, and Defendant Woods

on November 11, 2001. Defendants Chandler and Woods are the

only Defendants who proffered information on the actual amount of

attorney’s fees they have expended in the litigation. Defendant

Chandler testified that his fees and expenses totaled nearly

$19,937.87. Defendant Woods testified her fees were $11,531.25.

The other Defendants intend to supplement the record with their

demand for attorney’s fees.

Defendants here argue that Plaintiffs conduct in the instant

litigation ccciiee sanctions under all three circumstances addressed

in Rule 11. Specifically, Defendants contend that Plaintiff pursued

litigation in federal court in order to harass Defendants and to

relitigate the issues in her divorce and custody proceedings.

Defendants also assert that the Georgia law governing the effect of

a judge’s denial of a motion for a directed verdict, set forth in

Monroe v. Sigler, 256 Ga. 759 (1987), is clear and Plaintiff did not

have a reasonable argument to modify that law. Finally, Defendants

assert that Plaintiff had no facts to support her complaint. Plaintiff's

sole response to these arguments is her contention that Monroe is not

controlling and a subsequent opinion by the Georgia Court of

Appeals is a sufficient, non-frivolous argument to distinguish

Monroe.

Rule 11 incorporates an objective standard of

“reasonableness under the circumstances.” Donaldson, 819 F.2d at

1556. The court’s inquiry focuses only on the ments of the

objectionable paper “gleaned from facts and law known or available

to the attorney at the time of filing.” Jones v International Riding

Helmets, Inc., 49 F.3d 692, 694-95 (11" Cir. 1995) (emphasis in

original). In this circuit, courts considering Rule 11 sanctions must

engage in a two-step inquiry: (1) whether'the party’s claims are

objectively frivolous; and (2) if so, whether the person who signed

the objectionable papers should have been aware that the claims were

frivolous. See. E.g., Baker, 158 F.3d at 524; Jones, 49 F.3d at 695.

In determining the reasonableness of a paper’s legal basis, “a court

may consider the time available to prepare the pleading; th:

complexity of the legal issues; the plausibility of the argument; and

whether the party is proceeding pro se.” Pelletier v. Zweifel, 921

F.2d 1465, 1514 n.88 (11" Cir. 1991).

c. Analysis

}. Legal and Factual Sufficiency of Plaintiff's

Complaint

At an October 18, 2001 discovery conference, the court

specifically reminded Plaintiff of her obligations under Rule | 1 and

repeatedly warned Plaintiff of the risks attendant to pursuing this

litigation. See Transcript of October 18, 2001, Hearing, at

unnumbered pages 4-5 (“I am satisfied [further pleadings] will be

reviewed carefully for Rule 1 violations. And I’m not absolving

you of any that may have happened in the past, but I am pointing out

to you that Rule 11 exists and you need to be very careful about what

you allege. It’s a whole lot easier for me to let you amend the case

if you got good grounds than it is for me to protect you from paying

fees of your opponent if you didn’t have good grounds.”); at 13 (“I

don’t want to be heavy handed with the Plaintiff, but let me tell you

that the last one of these spite malice contests I had in federal court

that came out of a child custody case ended up costing the plaintiff

and his counsel either 40 or $70,0000 before it was all over with. . .

. I want you to realize that you may be spending your own money

with your zeal. So you may want to be real careful here.”’); at 25 (if

Plaintiff’ s counsel maintains there was no probable cause in the case

“in the face of what seems to be the Georgia law, that if it went to a

jury over a motion for a directed verdict, he may have Rule 11

problems”; if Plaintiff's counsel can allege a theory that there was no

probable cause, he would not face Rule | 1 sanctions later, “if he does

it wrong, it could get expensive.”) at 28 (“But if it turns out you

allege it and you had no reasonable basis on which to allege it, and

they move for Rule 11 sanctions, and they do what they do to - with

the safe harbor provision, then I’ll impose sanctions, That’s what

I'm trying to get you to understand.”’); at 33 (“I am faced, to be

honest with you, with a complaint that reads like a press release and

a gragment of a transcript that reads like there is no case at all here.

And so! want to make sure that plaintiffs have got their guns loaded

and I want to make sure they are taking this seriously. . . . I’m being

very candid with what I’m doing here as a manager of this case. If

you want to protect yourself on Rule 11 sanctions, read the law.”).

Despite these clear admonitions, Plaintiff filed an amended

complaint that the court determined in its August 8, 2002 order, was

wholly insufficient to cure the deficiencies in the first complaint. As

the court noted in its order, Plaintiffs initial complaint failed to

make specific claims against the named Defendants and failed to

allege that Judge Flournoy’s order was procured through fraud or

corruption. The court granted Plaintiff additional time to amend her

complaint and address these deficiencies. In heramended complaint, ©

Plaintiff added an allegation that Defendant Chandler falsely testified

before a Cobb County Grand Jury in December 2000 and that

Defendants Woods and Titelman “provided knowingly false and/or

incomplete material information to the criminal jury.” As the court

noted in its order, however, on its face, Plaintiff cannot show that the

provision of “incomplete” information satisfies the elements of

malicious prosecution in Georgia. Plaintiff also added a summary of

allegations that “all defendants directly and jointly” aided in the

malicious prosecution. Finally, despite the specific instruction of the

court that Plaintiff should allege facts that would show that Judge

Flournoy’s order was tainted by fraud and corruption, Plaintiff failed

altogether to amend her complaint to address this deficiency. As the

court had explained in its August 8 order, the summary of allegations

did not cure Plaintiff's complaint of its “shotgun” nature or its

deficiencies with respect to Judge Flournoy’s ruling. The court finds

it relevant that at the time Plaintiff was granted !eave to amend her

complaint, Plaintiff had already taken the depositions of Cobb

County District Attorney Patrick H. Head, prosecuting attorney

Francie Hakes and Rose Wing of the District Attorney’s Office in the

instant litigation. Plaintiff also had access to the entirety of the

testimony in her criminal trial. Despite the availability of this

information, Plaintiff failed to allege in her amended complaint facts

against each Defendant with any particularity and failed to allege that

Judge Flournoy’s ruling was procured through fraud or corruption.

As the court explained above, even when considering Plaintiff's

general allegations, none would affect whether Judge Flournoy’s

ruling was the product of fraud or corruption. When a plaintiff fails

to respond to a court’s order for a more particular pleading, “the

court should strike his pleading, or, depending on the circumstances,

dismiss the case and consider the imposition of monetary sanction.”

Byrne v Nezhat, 261 F.3d 1075, 1129-34 (11" Cir.2001) (discussing

the problems occasioned by shotgun pleadings).’

Any lawyer facing prosecution of this suit would have run

into the undistinguishable precedent of Monroe which holds that the

denial of a directed verdict after the presentation of the state’s

evidence - in the absence of fraud or corruption - conclusively

establishes probable cause for the purposes of a malicious

prosecution suit. Plaintiff's lawyer had no choice but to show that

Judge Flournoy’s decision was procured by fraud. On the basis of

the criminal trial record available to all parties, every fact now

alleged to be critical was known by Judge Flournoy when he made

his decision. Further, it 1s apparent to this court that Plainuff’s

counsel cannot articulate how any individual Defendant procured by

deceit or fraud Judge Flournoy’s rulings. There is simply no nexus

1. Although the court is not convinced that Plaintiff forwarded a

reasonable argument to distinguish the “mandatory inference”

required by Monroe, the court finds the lack of factual support for

Plaintiff's allegations, as well as it determination that Plaintiff

pursued this litigation for the purpose of harassment to be sufficient

bases on which to impose sanctions.

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between the alleged actions of Defendants and the ruling made by the

Judge. Under Byrne and Rule 11, therefore, the court finds that

monetary sanctions are appropriate. rae

2. Harassment

Additionally, in Pelletier v. Zweifel, 921 F.2d 1465 (11" Cir.

1991), the Eleventh Circuit instructed district courts when

considering whether a claim was filed and prosecuted in bad faith “to

examine the circumstantial evidence at hand and ask, objectively,

whether an ordinary person standing in the party’s or counsel’s shoes

would have prosecuted the claim.” /d. At 1515. In making this

assessment, the Pelletier court considered the “shotgun” nature of the

plaintiffs’ pleadings which were “replete with factual allegations that

could not possibly be material to any of the causes of actions they

assert.” Jd. At 1517-18. The court also found that plaintiffs’ counsel

had prosecuted the case in bad faith because he knew at the outset

that plaintiffs’ claims were meritless. /d. At 1520. Finally, the court

determined that monetary sanctions were warranted. /d. At 1521.

With these guidelines in mind, the court has considered the

information presented by the parties at the October 18 discovery

conference as well as all pleadings filed in this case and finds that

Plaintiff abused the litigation process by using the instant federal suit

as an attempt to relitigate the issues involved in the underlying

divorce and custody proceedings. Plaintiff continued to take this

tactic despite specific and clear wamings from the court that this

strategy was not relevant to Plaintiff's cause of action for malicious

prosecution and would not be tolerated. For example, in its first

order issued in this litigation, the court directed that certain

statements be stricken from Plaintiff's complaint. Specifically, the

court instructed Plaintiff that the letter written by some members of

the jury that deliberated in her criminal trial would not be considered

by this court because the jury had not made any findings with respect

to maliciousness while they were empaneled as a jury. Despite this

ruling and discussion of this issue at the discovery conference,

Plaintiff repeated and referred to the contents of the jury letter in her

response to Defendants ‘ motions to dismiss. Moreover, Plaintiff's

argument that such a letter rendered the denial of her motion for a

directed verdict by Judge Flournoy to be “invalid” is without any

basis in the law.

Similarly, the court reminded Plaintiff that her defense in the

criminal prosecution - that she took the children to Mississippi to protect

them from their father - was not an issue in the malicious prosecution

suit. See Hearing Transcript, at 37 (advising Plaintiff's counsel that

allegations of sexual abuse were not to be raised). Despite these clear

admonitions, Plaintiff again raised these issues in her response to

Defendants’ motions to dismiss and motions for sanctions. Plaintiff

alleged that Mr. Titelman did sexually abuse the children and his

testimony in the criminal] trial to the contrary was fraudulent and

deceitful. Plaintiff argues that had Mr. Titelman admitted his guilt during

her criminal prosecution, Judge Flournoy “would have directed a verdict

of acquittal in a heartbeat and would have ordered Mr. Titelman’s arrest.”

See Supplemental Motion, at 4. Furthermore, in her response to

Defendants’ motions for sanctions, Plaintiff contends that “it is well

documented that child molesters routinely pass polygraphs.” See

Response, at 1-2 n.1. As explained in its previous order, these allegations

do not show that Judge Flournoy’s ruling was procured through fraud or

corruption and are irrelevant to Plaintiffs claim of malicious

prosecution. When he ruled on Plaintiff's motions for directed verdict,

Judge Flournoy had before him Mrs. Titelman’s contention that she took

the children to Mississippi to protect them from their father and Mr.

Titelman’s testimony to the contrary. Thus, no fraud was perpetrated

against Judge Flournoy with respect to the allegations of sexual abuse.

Furthermore, as the court explained above, none of Plaintiff's allegations

in her amended complaint was relevant to the central issue of whether

Judge Flournoy’s ruling was procured through fraud or corruption.

Finally, in analyzing the circumstantial evidence available to the

court, it is evident from statements made by Plaintiff's counsel that the

federal suit was not undertaken for legitimate purposes, but rather was an

attempt to elicit further discovery for use in Plaintiffs underlying divorce

and custody proceedings and as a sidelight to Plaintiff's and Plaintiff's

counsel’s personal crusade against Defendants in this litigation. On April

29, 2002, Plaintiff's counsel wrote an open letter to the Members of the

Cobb County Bar and the Metro Atlanta Mental Health Professionals in

which he recounts Plaintiffs disagreements with the manner in which the

state courts and Defendant Woods acted during the divorce and custody

proceedings. Plaintiff then forwarded her counsel’s letter and a personal

recollection to numerous people. In her personal statement, Plaintiff

asserts that “we are[] taking it to the peers of those who are guilty, and

we are charging these people to hold Diane Woods and Elizabeth King

accountable. We will continue to fight in both state and federal court.”

See Supplemental Pleading of Diane Woods, Exh. 6 (emphasis added).”

Furthermore, Defendants aver, and Plaintiff does not deny, that Plaintiff

has already attempted to insert the limited discovery that took place in the

instant litigation into her ongoing divorce and custody proceedings. As

_2. The court GRANTS Defendant Woods’ motion for leave to file

supplemental pleading to motion for Rule 11 sanctions [73-1].

27-A

the court painstakingly explained to Plaintiff in the October 18 discovery

conference; federal court is not the forum to relitigate her complaints

from the underlying divorce and custody proceedings. The court

explained to Plaintiff the elements of malicious prosecution in Georgia

and the deficiencies Plaintiff would need to cure in order to survive

Defendants’ motions to dismiss. Plaintiff chose not to cure those

deficiencies.

Plaintiff and her counsel may desire to engage in a public

relations campaign to discredit her divorce and custody proceedings, but

federal court is not the appropriate forum for that campaign. Based on

the facts and circumstances available to the court, it is clear that Plaintiff

and her counsel did not initiate the instant litigation in an attempt

properly to pursue a malicious prosecution claim. Rather, Plaintiff and

her counsel saw a suit in federal court simply as another forum for their

public relations campaign. Rule 11 sanctions may be imposed for “the

purpose of deterrence, compensation, and punishment.” Aetna Ins. Co.

v. Meeker, 953 F.2d 1328, 1334 (11" Cir. 1992). The court determines

that monetary sanctions are appropriate in this case. The court believes

that sanctions will deter such behavior in the future while not chilling an

attorney’s appropriate zeal in pursuing novel legal theories.

As such, the court GRANTS Defendants’ motions for Rule 11

sanctions against Plaintiff's counsel.’ Defendants Titelman, Chandler,

Mayoue, Gray, and Woods are DIRECTED to file a petition for

attorney’s fees within fifteen (15) days from the filing date of this order.

In considering attorney’s fees, the court is guided by the instructions of

Norman v. Housing Authority, 836 F.2d 1292 (11" Cir. 1988), and ACLU

v. Barnes, 168 F.3d 423 (11" Cir. 1999), and expects Defendants’ fee

petitions to be filed in conformance with those cases. After Defendants

have submitted their fee petitions, Plaintiff's counsel has fifteen (15)

3.The court would be authorized to impose sanctions on both

Plaintiff and her counsel if information before the court showed

specifically that Plaintiff, herself, violated Rule 11. See Baker v.

Alderman, 158 F.3d 516, 526 (11" Cir. 1998). Although the court has

available Plaintiff's e-mail forwarding the letter of Plaintiffs counsel,

Plaintiff's counsel’s is the only signature on her complaint, and Plaintiff

did not attend the October 18, 2001, discovery conference where the

court set for the basis for much of its instant order. As stich, the court

imposes monetary sanctions on Plaintiff's counsel only.

29-A

days to pay the attorney’s fees to Defendants or file objections with the

court.

I] Conclusions

The court GRANTS Defendants Mayoue and Gray’s motion for

sanctions pursuant to Rule 11 [58-1]; GRANTS Defendant Chandler’s

motion for Rule i1 sanctions [59-1]; GRANTS Defendant Titelman’s

motion for sanctions pursuant to Rule 11 [62-1]; GRANTS Defendant

Woods’ motion for Rule 11 sanctions [71-1]; and GRANTS Defendant

Woods’ motion for leave to file supplemental pleading to motion for Rule

11 sanctions [73-1].

SO ORDERED this 16" day of September 2002

J. OWEN FORRESTER

UNITEDSTATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

WENDY JANE TITELMAN,

Plaintiff,

CIVIL ACTION

vs. ; NO. 1:01-CV-1845-JOF

ANDREW CHARLES TITELMAN Filed JUL 29 2003

CRAIG CHANDLER, JOHN MAYOUE, :

PAMELA GRAY, DIANE WOODS,

Defendants.

ORDER

This matter is before the court on motion for clarification [89-2];

Detendant Woods’ motion for attorney’s fees [90-1]; Defendants Mayoue

and Gray’s motion for attorney’s éees [91-1]; Defendant Titelman’s

motion for attorney’s fees [92-1]; Defendant Chandler’s motion for

attorney’s fees [93-1}; motion for hearing [99-1]; and Defendant

Chandler’s motion for leave to file sur-reply [100-1].

I. Procedural History

The facts and circumstances surrounding this case are set forth

in detail in the court’s prior orders of November 8, 2001, August 8, 2002,

and September 17, 2002. In its last order, the court granted Defendants’

motions for sanctions against Plaintiff's counsel pursuant to Rule 11.

The court directed Defendants to file petitions for attorney’s fees in

accordance with the dictates of Norman v. Housing Authority, 836 F.2d

1292 (11" Cir. 1988), and ACLU v. Barnes, 168 F.3d 423 (11" Cir.

1999). Defendants each filed the required fee petitions, and Plaintiff did

not respond, indicating no opposition. See LR 7.1B, N.D. Ga.

Subsequently, Plaintiff's local counsel, Michael Hirsh, filed a motion for

clarification or modification arguing that he should not be liable for any

portion of the Rule | 1 sanctions imposed by the court. Defendants Gray,

Mayoue, Woods, and Chandler opposed Mr. Hirsh’s motion. The court

held a hearing on April 23, 2003, to consider Mr. Hirsh’s arguments.

Il. Discussion

A. Motion for Clarification or Modification

Richard Ducote, an attorney in Louisiana, contacted Michael

1. The court GRANTS Mr. Hirsh’s motion for hearing {99-1}.

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Hirsh, an attorney in Georgia, to act as local counsel in Plaintiff's

lawsuit. Mr. Hirsh signed Plaintiff's initial complaint and signed Mr.

Ducote’s pro hac vice application. Mr. Hirsh attended a conference held

on October 16, 2001, representing Plaintiff, and Mr. Ducote participated

in that conference by telephone. During the conference, the court put

both of Plaintiff's counsel on notice as to the court’s concerns about

Plaintiff's complaint and the potential for sanctions pursuant to Rule 11

up to and including an award of attorney’s fees expended by all

Defendants. The court gave Plaintiff the opportunity to file an amended

complaint to cure the defects pointed out by the court. Plaintiff did file

an amended complaint which the court determined was inadequate as a

matter of law. Mr. Ducote actually signed the amended complaint and

while Mr. Hirsh did not put a signature on the document, he and his firm

are listed on the amended complaint as local counsel for Plaintiff. Mr.

Hirsh never withdrew re counsel and remained on the certificate of

service for all pleadings entered in the case. Mr. Hirsh did file a change

of address notification.

Mr. Hirsh contends that he should not be subject to the Rule 11

sanctions imposed by the court because he did not sign the amended

complaint and therefore has taken no action which would etleoer Rule 11.

He states that Rule 11 provides that if a pleading is not signed, the court

should strike it. Mr. Hirsh further contends that he was acting pro bono

in his capacity as local counsel and did not expect any compensation for

his efforts. He argues that he did oP act in “bad faith,” and therefore the

court cannot impose sanctions against him pursuant to Rule 11. Mr.

Ducote also provided an affidavit testifying that Mr. Hirsh took “no part

in drafting the Amended Complaint, signing the Amended Complaint,

filing the Amended Complaint, or in any subsequent advocacy of

anything in the Amended Complaint.” Affidavit of Richard Ducote,

November 21, 2002. Mr. Ducote further averred that he was “fully and

solely responsible for the content of the pleadings and the strategy

employed by Plaintiff.” /d.

Defendants contends that Mr. Hirsh acted as local counsel

throughout the litigation and did not disavow Plaintiffs amended

complaint with his name and bar number even if he did not actually affix

his signature to the document. Defendants argue that Mr. Hirsh’s

continued representation of Plaintiff, including filing a change of address

notification in this case constitute the “later advocacy” that triggers Rule

11. Defendants further contend that as local counsel, Mr. Hirsh is

responsible for the conduct of Mr. Ducote acting pro hac vice upon the

application proffered by Mr. Hirsh.’

The court does not doubt the sincerity of Mr. Hirsh’s belief that

he did not engage in this litigation in bad faith. However, there is no

“bad faith” requirement to tigger the imposition of Rule 1] sanctions.

See Hashemi v. Campaigner Publications, Inc.,784 F.2d 1581, 1583 (11"

Cir. 1986) (noting that 1983 amendment to Rule 11 abrogated the bad

faith standard in favor of more stringent objective standard). The court

also has no reason to doubt the testimony of Mr. Ducote that he, and not

Mr. Hirsh, drafted the amended complaint. Mr. Hirsh, however, need not

2. The court GRANTS Defendant Chandler’s motion for leave

to file sur-reply [100-1].

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actually have signed the amended complaint in order for Rule 11 to be

impl.cated: In Turner v. Sunguard Business Systems, Inc., 9L F.3d 1418

(11" Cir. 1996), the court considered the imposition of Rule 1] sanctions

against counsel who had substituted for the plaintiffs original counsel in

an employment discrimination case. The substitute counsel had argues

that because he did not sign the plaintiff's original complaint, he had

taken no action that triggered Rule 11. Jd at 1421. The court held,

however, that counsel’s argument “ignore[{d] the plain language of Rule

11, which merely requires ‘papers’ to be ‘present[ed]’ to the court.” Jd.

Further, the court noted that Rule 11 applies to all papers filed in a suit.

Id. The court found that because counsel had filed a notice of appearance

in the case, he was “later advocating” that the “factual contentions [in the

complaint} ha[d] evidentiary support.” /d. (noting that by filing a notice

of appearance, counsel had essentially refiled the plaintiff's complaint).

Here, Mr. Hirsh filed a change of address notification with the court. As

the notice of appearance in 7urner, the court finds this is sufficient “later

advocacy” to trigger Rule 11 sanctions.’

Mr. Hirsh cannot claim that he was unaware of the litigation

tactics employed by Mr. Ducote because Mr. Hirsh is on the certificate

of service for every pleading filed in the case. He received Defendants’

Rule 11 “safe harbor” letters and the orders of this court. Yet, Mr. Hirsh

did not give any indication that he did not support Plaintiff's strategic

decisions. Most notably, Mr. Hirsh did not withdraw as counsel.

Furthermore, the court cannot ignore the duties Mr. Hirsh took

on when he agreed to act as local counsel for Mr. Ducote. Mr. Hirsh

signed Mr. Ducote’s pro hac vice application without which Mr. Ducote

would not have had access to this court. Under this court’s local rules,

Mr. Hirsh, as local] counsel, is also required to sign every pleading that

3. For the reasons stated in Turner, the court finds that Robinson v.

National Cash Register Co., 808 F.2d 1119 (S™ Cir. 1987) and Harris v.

Marsh, 1988 U.S. Dist. LEXIS 13071 (E.D.N.C. Sept. 30, 1988), cited by

Mr. Hirsh in his “supplemental authority” brief, are inapposite. Here, the

court determined that Mr. Hirsh “later advocated” Plaintiff's amended

complaint when he filed a notice of change of address. In Robinson and

Harris, the court considered only whether the attorney placed his actual

signature on a pleading.

37-A

is filed with the court by a pro hac vice attorney; a duty Mr. Hirsh’s “no

signature” defense ignores. See LR 83.1B(2). Under these

circumsiances, the court finds it has no choice but to include Mr. Hirsh

in its order granting Rule 11 sanctions. To do otherwise would be to

ignore the responsibilities and duties incumbent on local counsel. See,

e.g., Sanders v. Russell, 401 F.2d 241, 248 (5" Cir. 1968) (use of local

counsel “satisfies the reasonable interest of the District Court in having

a member of its Bar, who is subject to the court’s general control, be

professionally responsible for the litigation and who can be served with

papers, can be notified of hearings and can be held accountable if

anything reflecting on the Court of an abuse of its process occurs during

the course of the litigation.”). The court DENIES Mr. Hirsh’s motion for

clarification [89-1} or modification [89-2].

B. Attorney’s Fees

In order to analyze an application for attorney’s fees, the court

must first “multiply hours reasonably expended by a reasonable hourly

rate.” Norman vy, Housing Auth., 832 F.2d 1292, 1299 (11" Cir. 1988).

“A reasonable hourly rate is the prevailing market rate in the relevant

legal community for similar services by lawyers of reasonably

comparable skills, experience, and reputation.” Jd. “Satisfactory

evidence at a minimum is more than the affidavit of the attorney

performing the work.” /d. If a party provides only an affidavit from the

attorney who performed the work, the court must apply “its own

knowledge and expertise concerning reasonable and proper fees.” Jd. At

1303. The court must next look at whether the hours charged are

reasonable, excluding “excessive, redundant or otherwise unnecessary”

hours. /d. At 1301 (citation and quotation omitted). The “fee applicant

bears the burden of establishing entitlement and documenting the

appropnate hours and hourly rates.” ACLU v. Barnes, 168 F.3d 423,427

(11" Cir. 1999). That burden includes “supplying the court with specific

a detailed evidence from which the court can determine the reasonable

hourly rate.” /d. (citing Norman, 836 F.2d at 1303).

1. Defendant Titelman

Defendant Titelman seeks total attorney’s fees in the amount of

$30,769.74 for work done by Thomas E. Cauthorn III and John E. Hall,

Jr. Mr. Cauthorn testified that his billing rate is $250 per hour and he

billed Defendant Titelman $10,946.25. Mr. Cauthorn testified that he

also billed $533.38 in costs that were not awarded in the bill of costs.

Mr. Cauthorn did not testify as to the billing rates of any other

individuals affiliated with his law firm and did not provide the affidavit

of any attorney indicating that his billing rate is reasonable for attorneys

of his experience in this area of the law. Furthermore, although Mr.

Cauthorn provided the invoices sent to his client, he did not provide a

total number of hours he worked on this matter to the court. The billing

invoices submitted to the court list a variety of individuals who worked

on this matter. As such, the court cannot ascertain which of the items

listed on the invoices are actually being charged in his fee petition.

Furthermore, although Mr. Cauthorn has limited his expenses request to

those expenses not covered in the bill of costs, he has not indicated to the

court what expenses are sought in the $533.38 request. Thus, the court

awards only $5,000 in attorney’s fees requested by Mr. Cauthorn on

behalf of Defendant Titelman and awards no costs.

Defendant Titelman also provided the affidavit of attorney John

E. Hall, Jr., of Hall, Booth, Smith & Slover, P.C., to support his request

for attorney’s fees of $19,104.50. Mr. Hall testified that his billing rate

is $130 per hour. He further testified that the billing rates of attorneys

Jack Gresh and Abdi Ammari were $110 per hour; paralegals Robin

Correll, Marti Hendrix, and Mr. Gresh (prior to his becoming an attorney

licensed in the state of Georgia) billed at $85 per hour. Mr. Hall billed

53.3 hours; Mr. Gresh, 33.8, and Ms. Ammari, 14.7. Ms. Correll billed

15.7, Ms. Hendrix, 1.6, and Mr. Gresh, 77.0. Mr. Hall also stated that his

firm had expended $185.61 in costs not awarded in the bill of costs.

Mr. Hall did not provide the affidavit of any attorney indicating

that their billing rates are reasonable for attorneys of their experience in

this area of the law. In its judgment, the court finds that an hourly rate

of $130 for a partner, $110 for an associate, and $85 for a paralegal is

reasonable. In exercising its billing judgment, the court disallows the

following fees: Robin Correll - September 20, 2001 (0.2), September 25,

2001 (0.8), September 26, 2001 (0.3), and October 12, 2001 (0.3); Jack

Gresh - October 2, 2001 (1.0), October 3, 2001 (11.0), October 22, 2001

(2.4), October 23, 2001 (0.2), October 24, 2001 (2.5), December 27, 2001

(1.0), and July 31, 2002 (1.0). These generally cover telephone

conferences with co-counsel, duplicative efforts, and research relating to

pro hac vice status of Plaintiff's counsel, which the court does not find

integral to the legal defense of Defendant Titelman. Although Mr. Hall

has limited his expenses request to those expenses not covered in the bill

of costs, he has not indicated to the court what expenses are sought in the

$185.61 request. Thus, the court does not award any costs. In sum, the

court disaliows $1809.50 in attorney’s fees on Mr. Hall’s affidavit and

allows $17,295.00. The total fees awarded for Defendant Titelman’s

defense is $22,295.00.

2; Defendant Chandler

J. Anderson Davis testified that he bills at a rate of $125 per

hour; his associate, Kristy Cordle, bills at $110 per hour; and their

paralegal, Becca Coble, at $65 per hour. The attorneys billed 110 hours

in Defendant Chandler’s defense and Ms. Coble billed 39 hours. The

total legal fees requested are $27,412.00 and expenses are $6,528.80, for

a total of $33,940.80. Defendant Chandler provided the affidavit of

attorney Ronald R. Womack of The Womack Law Firm to affirm that the

rates billed by Defendant Chandler’s attorneys are reasonable.

Defendant Chandler also submitted the billing invoices to support his fee

petition.

Defendant Chandler seeks $6,528.80 in costs. A review of the

documents indicates these costs encompass such ttems as photocopying,

mailing, and computer research. The court notes, however, that costs in

the amount of $5,813.46 were awarded in favor Defendant Chandler on

September 3, 2002. Defendant Chandler does not show to the court

whether any of the costs he seeks in his Rule 11 motion were already

awarded in his bill of costs. Thus, the court declines to award any costs

to Defendant Chandler.

In exercising its billing judgment, the court disallows the

following fees from Ms. Coble: August 29, 2001 (0.9), April 23, 2002

(0.4), April 29, 2002 (1.0), Mary 29, 2002 (0.6), July 10, 2002 (0.7), and

July 12, 2002 (0.9); from Ms. Cordle: September 19, 2001 (0.5),

September 20, 2001 (0.5), September 21, 2001 (2.0), and February 15,

2002 (0.4); from Mr. Davis: November 21, 2001 (0.7), January 11, 2002

(0.3), June 13, 2002 (0.5), July 10, 2002 (0.3), September 13, 2002 (0.8),

September 17, 2002 (0.3), and September 18, 2002 (0.4). These

generally cover categories of case status preparation and litigation plans,

notification to insurers, and appellate work which the court finds are not

relevant to the legal defense of Defendant Chandler. In sum, the court

disallows $1079 and allows $26,333.

3: Defendant Woods

Defendant Woods seeks $15,637.50 in attorney’s fees. Woods’

attorney Jerry Gentry testified that his regular billing rate is $225 per

hour, but as a professional courtesy to Defendant Woods he was billing

at $125 per hour. Mr. Gentry provided the affidavit of Theodore

Freeman to certify that $125 was a reasonable hourly rate for his

services. Mr. Gentry also testified that he expended 125.10 hours in

representing Defendant Woods. Mr. Gentry attached the actual billing

records of his services to Defendant Woods as well as a summary of

those services in support of his petition for attorney’s fees. The court has

reviewed the billing invoices provided by Mr. Gentry and determines that

all charges are supported in the record. Accordingly, the court awards

Defendant Woods’ attorney’s fees of $15,637.50.

4. Defendants Mayoue and Gray

James T. McDonald, Jr. and Robert S. Huestis provided legal

services on behalf of Defendants Mayoue and Gray. Mr. McDonald

expended a total of 53.50 hours at a rate of $175 per hour for a total of

$9,362.50. Mr. Huestis expended 120 hours at an hourly rate of $110 for

a total of $13,200. In the fee petition, Messrs. McDonald and Huestis

provided billing invoices and a summary of the legal work conducted for

Defendants Mayoue and Gray. They did not, however, provide the

affidavit of any attorney indicating that their billing rates are reasonable

for attorneys of their experience in this area of the law.

In its judgment, the court finds that an hourly rate of $175 for a

partner and $110 for an associate is reasonable. In exercising its billing

judgment, the court disallows the following fees from Mr. McDonald.

August 3, 2001 (0.4), August 7, 2001 (0.4), August 8, 2001 (0.1), August

13, 2001 (0.1), August 15, 2001 (0.5), August 21, 2001 (0.1), September

9, 2001 (0.4), September 10, 2001 (0.3), September 11, 2001 (0.3),

September 12, 2001 (0.1), October 18, 2001 (1.6), November 2, 2001

(0.1), December 31, 2001 (6.4), February 4, 2002 (0.1), February 5, 2002

(0.3), February 6, 2002 (0.2), February 7, 2002 (0.2), February 20, 2002

(0.4), April 11, 2002 (0.2), June 11, 2002 (0.3), August 18, 2002 (0.3),

August 21, 2002 (0.1), August 28, 2002 (0.2), and September 13, 2002

(0.3). The court also disallows the following from Mr. Huestis: August

9, 2001 (1.8), August 21, 2001 (0.3), August 31, 2001 (0.2), October 4,

2001 (0.8), October 8, 2001 (0.3), February 6, 2002 (1.7), September 6,

2002 (0.3, and September 11, 2002 (0.3). These generally cover

categories of notification of case status to insurance carrier, research of

time deadlines, and telephone conversations with media representatives

concerning the case, which the court finds are not relevant to the legal

defense of Mayoue and Gray. In sum, the court disallows $1922 and

allows $20,640.05 in attorney’s fees for Defendants Mayoue and Gray.

Il Conclusion

The court DENIES Mr. Hirsh’s motion for clarification [89-1] or

modification [89-2]; GRANTS Defendant Woods’ motion for attorney’s

fees [90-1]; GRANTS Defendants Mayoue and Gray’s motion for

attorney’s fees [91-1]; GRANTS Defendant Titelman’s motion for

attorney’s fees [92-1]; GRANTS Defendant Chandler’s motion for

attorney’s fees [93-1]; GRANTS Mr. Hirsh’s motion for hearing [99-1];

and GRANTS Defendant Chandler’s motion for leave to file sur-reply

[100-1].

Mr. Hirsh and Mr. Ducote are DIRECTED jointly and severally

to pay attorney’s fees of $22,295 to Defendant Titelman, $26,333 to

Defendant Chandler, $15,637.50 to Defendant Woods, and $20,640.05

to Defendants Mayoue and Gray. The total fees awarded are $84,905.55.

These fees must be paid within fifteen (15 ) days from the date of this

‘order or Mr. Ducote’s pro hac vice admission to the United States

District Court the Northern District of Georgia is suspended.

SO ORDERED this 29" day of July 2003.

J. OWEN FORRESTER

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

WENDY JANE TITELMAN,

Plaintiff,

‘ CIVIL ACTION

vs. NO. 1:01-cv-1845-JOF

ANDREW CHARLES TITELMAN

CRAIG CHANDLER, JOHN MAYOUE, :

PAMELA GRAY, DIANE WOODS,

Defendants.

DGMENT

This action having come before the court, Honorable J. Owen

Forrester, United States District Judge, for consideration of defendants’

motion(s) for attorney’s fees, and the court having granted said

motion(s), it is 3

Ordered and adjudged that defendant Titelman recover $22,295,

defendant Chandler recover $26,333, defendant Woods recover

$15,637.50, defendants Mayoue and Gray recover $20,640.05 from Mr.

Hirsh and Mr. Ducote JOINTLY AND SEVERALLY as reasonable

attorney’s fees.

Dated at Atlanta, Georgia this 29" day of July, 2003.

LUTHER D. THOMAS

Clerk of court

By: Andrea Gee, Deputy Clerk

Prepared, filed, and entered

in the Clerk’s Office

July 30, 2003

Luther D. Thomas

Clerk of Court

By: Deputy Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-14429

D. C. Docket No. 01-01845-CV-JOF-1

MICHAEL R. HIRSH, Filed Jun 02 2005

RICHARD L. DUCOTE,

Movants-Appellants,

versus

ANDREW CHARLES TITELMAN

CRAIG CHANDLER, et. al.,

Defendants-Appellees.

Appeals from the United States District Court

for the Norther District of Georgia

(February 8, 2005)

Before BARKETT, MARCUS and SUHRHEINRICH,, Circuit Judges.

*Honorable Richard F. Suhrheinrich, United States Circuit Judge for

the Sixth Circuit, sitting by designation.

51-A

PER CURIAM:

Richard L. Ducote and Michael R. Hirsh, counsel for Plaintiff

Wendy Titelman, appeal from the district court’s order imposing

sanctions on them pursuant to Rule 11 of the Federal Rules of Civil

Procedure, and awarding attorney’s fees in favor of Appellees.’ Because

the district court did not abuse its discretion, we affirm.

A

This appeal stems from an underlying malicious prosecution

action filed by Ms. Titelman in the United States District Court for the

Northem District of Georgia, which in turn arose out of underlying -

divorce and child custody proceedings between Andrew and Wendy

Titelman. The divorce decree awarded sole legal and physical custody

of the Titelmans’ two minor children to Mr. Titelman; Ms. Titelman

received weekend and holiday visitation privileges. After Ms. Titelman

2. This Court has granted Hirsh’s motions to dismiss from his appeal,

with prejudice, defendants Andrew Charles Titelman, Craig Chandler,

and Diane Woods. In this decision, we affirm the district court’s

judgment as to the remaining parties.

52-A

failed to return the children following a scheduled visitation, Mr.

Titelman swore out a misdemeanor arrest affidavit alleging that Ms.

Titelman had interfered illegally with the child custody order. An arrest

warrant was subsequently issued for Ms. Titelman for felony interstate

interference with custody.

Ms. Titelman was subsequently tned on the felony charge. At

the trial, Ms. Titelman moved twice for a directed verdict of acquittal.

The trial court denied both motions, but the jury eventually found her not

guilty.

Ms. Titelman then filed a malicious prosecution action against

Mr. Titelman, Craig Chandler, John Mayoue, Pamela Gray and Diane

Woods. Ms. Titelman claimed that the five defendants had conspired to

initiate and tnaintain the prosecution in order to punish her for seeking

to protect the children from Mr. Titelman’s alleged sexual abuse and to

protect those who covered up the alleged abuse. In support of these

allegations, Ms. Titelman attached a copy of an undated letter written by

six members of the jury to the Cobb County District Attorney and to the

Superior Court judge presiding over the custody case, stating those

jurors’ view that the prosecution had been improper.

The initial complaint was signed both by Ducote ~ a Louisiana

lawyer admitted pro hac vice to the Northern District of Georgia to

represent Ms. Titelman in her malicious prosecution case — and Hirsh,

who was local counsel in this case and represented Ms. Titelman during

the initial criminal trial.

At the discovery conference, the district court excluded the jury

letter and all references to “the dispute over harassment of the children

by the husband.” The district court also entered a stay of discovery on

all matters except those concerning the district attorney’s office

responsible for the prosecution. The court then required Ms. Titelman

to present a more definite statement alleging the elements of the

malicious prosecution tort under Georgia law and “what each defendant

did that got them sued.” The court explained that Ms. Titelman’s case as

pled was flawed fatally because (1) the criminal trial judge’s denial of

her motions for a directed verdict established probable cause for the

criminal prosecution, and (2) no information suggested that the state trial

judge’s rulings were corrupt or obtained by fraud.

Hirsh attended the discovery conference as local counsel, and

Ducote attended by telephone. The district court explicitly warned both

Hirsh and Ducote that the “allegations .. . will be reviewed carefully for

Rule 11 violations. And I’m not absolving you of any that may have

- happened in the past, but I am pointing out to you that Rule 11 exists and

you need to be very careful about what you allege.” Indeed, the court

warned Ducote and Hirsh several more times to be careful with their

allegations “because you may be spending your own money,” and

advised Ducote that ifhe insisted on resubmitting the pleadings based on

his suggested interpretation of Georgia malicious prosecution law, he was

“liable to end up paying for [his[ own entertainment.” “If you want to

protect yourself on Rule |! sanctions,” the court added, “read the law.”

Ms. Titelman subsequently filed an amended complaint in large

part unchanged from the original complaint, other than the addition of

several vague allegations regarding the defendants’ conspiratorial

behavior. Only Ducote signed the amended complaint, but the signature

page included Hirsh’s name, Georgia bar number, law firm, address, and

designation as local counsel.

Appellees filed motions to dismiss the amended complaint and

motions for Rule 11 sanctions. Meanwhile, Hirsh filed a notice of

change of address identifying himself as counsel of record.

The district court granted Appellees’ motions to dismiss the

amended complaint. The district court also imposed Rule 11 sanctions,

ordering Ducote and Hirsh jointly and severally to pay Appellees

$84,905.55 in attorney’s fees. After the district court awarded sanctions,

Hirsh moved to withdraw as local counsel.

We affirmed the district court’s dismissal of malicious

prosecution action in a related appeal, Titelman v. Titelman, No. 0?-

14879 (11" Cir. Oct. 29, 2004); and we now affirm the district court’s

imposition of Rule 11 sanctions.

Il.

We review for abuse of discretion the district court’s imposition

of Rule 11 sanctions. Anderson v. Smithfield Foods, Inc., 353 F.3d 912,

915 (11" Cir. 2002). A district court may award Rule 11 sanctions when

a party files a pleading: (1) without a reasonable factual basis; (2) ona

legal theory that has no reasonable chance of success and that cannot be

advanced as a reasonable argument to change existing law; or 3) in bad

faith for an improper purpose. Id.

In arguing that the district court abused its discretion to award

sanctions, Ducote reiterates many of the same arguments he presented in

Ms. Titelman’s previous appeal of the dismissal order (Titelman, 02-

14879). We rejected each argument in that appeal and reject them for the

same reasons in this case.

To summarize the discussion in prior appeal, Goergia law

requires : plaintiff claiming malicious prosecution to show, among other

things, that the prosecution was instigated without probable cause. See

Ga. Code Ann. § 51-7-40; Wal-Mart Stores, Inc. v. Blackford, 449 S.E.

2d 293, 294 (Ga. 1994). The criminal trial judge’s denials of Ms.

Titelman’s motions for a directed verdict “constitute[] a binding

57-A

determination of the existence of probably cause,” unless she alleged that

the trial judge’s rulings were obtained through fraud or corruption.

Monroe v. Sigler, 353 S.E.2d 23, 25 (Ga. 1987). But Ms. Titelman’s

amended complaint failed to allege that the trial judge’s rulings were

obtained through fraud or corruption, despite the district court’s

instructing Ms. Titelman’s lawyers to allege these facts with particularity

and allowing her to conduct discovery on the Cobb County District

Attorney’s Office. The amended complaint, therefore, was without a

reasonable factual and legal basis, even after the district court’s warnings

of the possibility of Rule 11 sanctions.’

Ducote’s attempts to distinguish this case from Monroe are

without merit. Monroe was decided by the Georgia Supreme Court, and

thus controlled the district court’s decision. See Three Palms Pointe, Inc.

v. State Farm Fire & Cas. Co., 362 F.3d 1317, 1318 (11" Cir. 2004)

(stating that, in a diversity action, a federal court must apply substantive

2. Because the amended complaint was without a reasonable factual or

legal basis, we need not address Ducote’s argument that he did not file

the amended complaint for an improper purpose.

58-A

state law and “must decide the case the way it appears the state’s highest

court would”) (citation and internal quotation marks omitted). None of

the cases Ducote cites for support came from the Georgia Supreme Court;

nearly all are from Georgia’s intermediate appellate courts. A number of

his citations are to dissenting opinions. Moreover, none of the decisions

actually create the exceptions to Monroe that Ducote seeks to invoke. It

is clear to us, and should have been clear to Ducote, that Monroe

compelled the dismissal of the amended complaint. The district court did

not abuse its discretion in sanctioning Ducote.

Hirsh argues that sanctions against him were not proper because

Ducote was required to have local counsel sign all pleadings, and because

Hirsh did not sign the amended complaint. The district court or

Appellees’ lawyers, Hirsh suggests, should have alerted Hirsh to this

omission, after which the pleading could have been stricken if he still

failed to sign the amended complaint. Because he claims he did not sign,

submit, file, or later advocate the amended complaint, Hirsh asserts that

he is not subject to Rule 11 sanctions and that he can not be held

responsible for Ducote’s sanctionable conduct. Hirsh further contends

that his status as local counsel was not necessary for Ducote to practice

before the Northern District of Georgia, and thus that the district court

should not have blamed him for “opening the door” for Ducote.’

Hirsh’s arguments ignore the plain meaning of Rule 11 and his

role in the larger case. Rule 11 allows for sanctions when a “paper” is

“present[ed]” to the court, whether by “signing, filing, submitting, or

later advocating.” See Fed. R. Civ. P. 11(b). Hirsh appeared as local

counsel. He signed the original complaint. He was present at the

discovery conference and participated in depositions. The district court

specifically warned him of the applicability of Rule 11 because the

allegations in the initial complaint were untenable. Although Hirsh did

not sign the amended complaint, he was listed in it as local counsel. He

3. Hirsh also argues that he should not be sanctioned if either Ms.

Titelman or Ducote prevails in his or her respective appeal. He further

notes that the district court could grant his motion for exoneration --

pending at the time he filed his initial appellate brief — which would

render his appeal moot. Since both Ms. Titelman’s and Ducote’s appeals

have failed, and Hirsh’s motion has been denied, these arguments are

without factual basis.

60-A

filed a change of address notification after Appellees moved to dismiss

the amended complaint, in effect reaffirming his status as local counsel.

And he did not move to withdraw until after the district court imposed

sanctions.

In other words, “[b]y appearing in this case, [Hirsh] affirmed to

the court that the case had arguable merit. In this sense, it was as if

[Hirsh] had refiled the complaint. To use Rule I I's words, he was ‘later

advocating’ that the ‘factual contentions [in the complaint] have

999

evidentiary support.’” Turner v. Sungard Bus. Sys., Inc., 91 F.3d 1418,

1421 (11" Cir. 1996). And by agreeing to act as local counsel for

Ducote, Hirsh was ensuring the district court that he was “professionally

responsible for the litigation” and could “be held accountable if anything

reflecting on the Court or an abuse of its process occur[red] during the

course of the litigation.” Sanders v. Russell, 401 F.2d 241, 248 (Stgh Cir.

1968). We would ignore the purpose of Rule 11 — and Hirsh’s

4. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11" Cir. 1981) (en

banc), this Court adopted as binding precedent all decision of the former

Fifth Circuit handed down prior to October 1, 1981.

61-A

responsibilities as local counsel — were we not to affirm the district

court’s imposition of sanctions against him.°

Quite simply, because the district court did not abuse its

discretion in imposing Rule 11 sanctions against Ducote and Hirsh, we

affirm.

AFFIRMED.

A True Copy - Attested

Clerk U.S. Court of Appeals.

Eleventh Circuit

By: Deputy Clerk

Atlanta, Georgia

5. Because we find that the amended complaint as filed raised no claim

with a reasonable chance of success, we reject Hirsh’s argument that the

district court’s imposition of sanctions was premature and should have

been delayed at least until after discovery was completed.

62-A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-14429-BB

MICHAEL R. HIRSH, Filed APR 15 2005

RICHARD L. DUCOTE,

Movants-Appellants,

versus

ANDREW CHARLES TITELMAN

CRAIG CHANDLER, et. al.,

Defendants-Appellees.

On Appeal from the United States District Court for the

Northem District of Georgia

Before: BARKETT, MARCUS and SUHRHEINRICH , Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member of this panel

nor other Judge in regular active service on the Court having requested

that the Court be polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule 35-5), the Petition(s) for

Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

*Honorable Richard R. Suhrheinrich, United States Circuit Judge for the

Sixth Circuit, sitting by designation

63-A

+

3

42

ne Supreme Court. U.S.

C) FILED

Fa AUG 1 7 2005

No. 05-99

SPT Ce OF THE CLERK

IN THE

Supreme Court of the United States

RICHARD DUCOTE,

Petitioner,

V,

ANDREW TITELMAN, CRAIG CHANDLER,

JOHN MAYOUE, PAMELA GRAY and DIANE WOODS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS

FOR THE ELEVENTH CIRCUIT

-BRIEF IN OPPOSITION FOR RESPONDENTS

JOHN MAYOUE AND PAMELA GRAY

JAMES T. MCDONALD, JR.

Counsel of Record

RoBERT S. HuESTIS

_Swirt, CurRRIE, MCGHEE & Hiers, LLP

The Peachtree, Suite 300

1355 Peachtree Street, NE

Atlanta, Georgia 30309

(404) 874-8800

Counsel for Respondents

~ John Mayoue and Pamela Gray

196127 - g

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

j

QUESTION PRESENTED

Whether the Eleventh Circuit correctly found the District

Court did not abuse its discretion in imposing Rule 11

Sanctions where (a) the pleadings were set forth for improper

purposes and harassment; (b) the legal theory advanced had

no reasonable chance of success under decisional and

statutory law, and no good faith argument was set forth to

reverse, modify or extend Georgia law of malicious

prosecution; and, (c) such sanctions were premised on the

absence of any reasonable factual basis to assert a malicious

prosecution action?

il

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

RULE 1] SANCTIONS WERE

CORRECTLY IMPOSED FOR ATTORNEY

DUCOTE’S HARASSMENT AND

IMPROPER PURPOSES

RULE 11 SANCTIONS WERE

CORRECTLY IMPOSED FOR ATTORNEY

DUCOTE’S FRIVOLOUS MODIFICATION

ARGUMENT

RULE 11 SANCTIONS WERE

CORRECTLY IMPOSED FOR ATTORNEY

DUCOTE’S FAILURE TO SET FORTH

ANY EVIDENTIARY SUPPORT

CONCLUSION

TABLE OF CITED AUTHORITIES

Page

Cases

Aetna Ins. Co. v. Meeker, 953 F.2d 328 (11" Cir.

Anderson v. Dist. Bd. of Trustees of Cent. Fl. Comm.

Coll., 77 F.3d 364 (11" Cir. 1996)

Anderson v. Smithfield Foods, Inc., 353 F.3d 912

(11° Cir. 2003)

Atlantic Zayre, Inc. v. Meeks, 194 Ga. App. 267,

390 S.E.2d 398 (1990)

Bi-Lo, Inc. v. McConnell, 199 Ga. App. 154, 404

S.E.2d 327 (1991)

Booker v. Eddins, 183 Ga. App. 449, 359 S.E.2d 211

(1987), overruled on other grounds, Cincinnati

Insurance Company v. Premier Tractor and

Trailer Repair, Inc., 192 Ga. App. 243, 384 S.E.2d

449 (1989)

Davis v. Trusthouse Forte- Hotels Worldwide, Inc.,

195 Ga. App. 768, 395 S.E.2d 235 (1991)

Griffin v. Georgia Power Co., 186 Ga. App. 565,

367 S.E.2d 565 (1988)

iv

Cited Authorities

Page

Haile v. Pittman, 194 Ga. App. 105, 389 S.E.2d 564

(1989)

Kelly v. Serna, 87 F.3d 1235 (11" Cir. 2002)

Martin v. Reitz, 152 Ga. App. 854, 264 S.E.2d 305

(1980)

Melton v. La Calamito, 158 Ga. App. 820, 282 S.E.2d

393 (1981)

Monroe y. Sigler, 256 Ga. 759, 353 S.E.2d 23 (1987)

passim

Moses v. Revco Discount Drug Centers of Georgia,

Inc., 164 Ga. App. 73, 296 S.E.2d 384 (1982) ...

Pelleteir v. Zweifel, 921 F.2d 1465 (11" Cir. 1991)

Strategic Income Fund, LLC v. Spear, Leeds &

Kellogg Corp., 305 F.3d 1293 (11" Cir. 2002) ...

Wingster v. Huntley's Jiffy Stores, Inc., 200 Ga. App.

252, 407 S.E.2d 481 (1991)

Wolf Camera, Inc. v. Royter, 253 Ga. App. 254, 558

S.E.2d 797 (2002)

Cited Authorities

Statutes

O.C.G.A. § 51-7-40

Rules

Fed. R. Civ. P. 11

Sup. Ct. R. 15.2

l

INTRODUCTION

Attorney Ducote’s Petition does not meet any of the

Rule 10 criteria. Contrary to Attorney Ducote’s contentions,

the Eleventh Circuit in no way departed from “the accepted

and usual course of judicial proceedings ...” The law

surrounding Fed. R. Civ. P. 11 relied upon by the Courts

below is settled in areas pertinent to this Court’s inquiry.

Likewise, the degree of deference owed by the Eleventh

Circuit to the District Court is clear: The Court of Appeals

will “review for an abuse of discretion the District Court’s

imposition of sanctions under Rule 11.” Anderson -v.

Smithfield Foods, Inc., 353 F.3d 912, 915 (11 Cir. 2003),

citing Massengale v. Ray, 267 F.3d 1298, 1301 (11" Cir.

2001).

Attorney Ducote’s Petition focuses only upon the

argument he attempted to modify the law of malicious

prosecution in Georgia. The District Court found and the

Eleventh Circuit agreed Rule 11 sanctions were also

appropriately imposed on Attorney Ducote because the claims

he submitted against the prevailing parties below were

submitted for improper purposes, for harassment, and were

devoid of any factual support. This is especially true as to

Respondents Mayoue and Gray. Fed. R. Civ. P. 11(b)(1), (3).

Even if the lower Courts’ decision to impose sanctions was

based solely on the unreasonableness of Attorney Ducote’s

legal argument to modify the law, that decision is

well-supported. Attorney Ducote knew then and knows now

his arguments for modification of such law were frivolous

and intended only to cover his improper purposes and

harassment.

2

STATEMENT OF THE CASE _

The pertinent facts are set out in the Orders of the District

Court and the Eleventh Circuit included in the Appendix to

the Petition for Writ of Certiorari. These Respondents do

not repeat those facts here, but pursuant to this Court’s

Rule 15.2, address Attorney Ducote’s misstatements of fact

and law.

First, he contends following the underlying state court

criminal trial of Mrs. Titelman, “the jury sent a scathing letter

to the District Attorney.” (Petition, p. 4). This is untrue.

As noted by the Eleventh Circuit, a juror sent a letter signed

by five (5) other jurors. [53-A] Regardless, the District Court

struck “all references or exhibits in the complaint relating to

the correspondence by the jury and. . . to harassment of the

children by Defendant Titelman . . .” [Record below, Vol. II-

.40-pg. 2-4] That ruling stands unchallenged on appeal.

Next, Attorney Ducote claims that because Judge

Flournoy found the question of reasonable doubt was for the

jury, he made no finding “that the evidence is sufficient as a

matter of law to support a conviction . . .” (Petition, p. 6)

This an incorrect statement of fact and law. By denying

Mrs. Titelman’s motions for directed verdict, Judge Flournoy

found, as a matter of law, sufficient evidence to enable the

jury, as the trier of fact, to find each and every element of the

guilt of the accused beyond a reasonable doubt. Monroe v.

Sigler, 256 Ga. 759, 761, 353 S.E.2d 23, 25 (1987).

Next, Attorney Ducote wrongly claims the Eleventh

Circuit “appears to adopt a blanket rule that it is per se

improper to craft a legal argument from intermediate court

opinions and dissents.” (Petition, p. 9). The Eleventh Circuit

adopted no such rule. It had no obligation to point out ad

seriatim why Ducote’s construction of Georgia law of

malicious prosecution is incorrect. The Eleventh Circuit

correctly found his cited cases were neither factually nor

legally controlling.

Attorney Ducote’s most egregious mischaracterization

comes from his claim that he has “simply attempted

to reasonably advocate for his client.” (Petition, p. 11)

What Attorney Ducote did below, and what he continues to

do now, is in no way reasonable. It is abusive. As the District

Court found, the genesis of the suit against Respondents was

to re-litigate and obtain discovery for the underlying divorce

and child custody proceedings; wage a public relations

campaign against the defendants; provide further publication

of Mrs. Titleman’s allegations of sexual abuse against her

ex-husband; and, for other improper purposes unrelated to a

malicious prosecution claim in Federal Court. [23-29-A]-

Finally, Attorney Ducote never, despite embroiling these

Respondents in litigation since July 13, 2001, and being

instructed by the trial court to be specific, attributed one

wrongful act to them. Attorney Ducote’s conduct has been

and remains extremely abusive, and Rule 11 sanctions were

appropriately granted.

REASONS FOR DENYING THE PETITION

Rule 11 provides several alternative grounds for the

imposition of sanctions. If “subdivision (b) has been violated”

in any respect, the District Court, at its discretion, may

“impose an appropriate sanction upon the attorneys ...

responsible for the violation.” Fed. R. Civ. P. 11(c). Attorney

Ducote violated subsections (b){1), (2) and (3) as correctly

4

found by the District Court and affirmed by the Eleventh

Circuit. Attorney Ducote’s Petition does not address these

other valid grounds for the imposition of Rule 11 sanctions:

improper purpose, harassment, needless increase in the cost

of litigation, and the absence of factual and evidentiary

support. Fed. R. Civ. P.(b)(1), (3). His Petition only addresses

his dissatisfaction with malicious prosecution law. Fed. R.

Civ. P. 11(b)(2). Therefore, the Petition is inadequate and

s' ould be denied.

RULE 11 SANCTIONS WERE CORRECTLY

IMPOSED FOR ATTORNEY DUCOTE’S

HARASSMENT AND IMPROPER PURPOSES

Attorney Ducote and Mrs. Titelman pursued the

malicious prosecution case to harass the Respondents.

This is demonstrated by Attorney Ducote’s continued

reference here to documents and information which clearly

had no relationship to the malicious prosecution action. The

District Court struck the “jury letter,” but Ducote continues

to reference it. His reliance on the inflammatory allegation

Mr. Titelman sexually molested his children was deemed

irrelevant to the malicious prosecution action. Attorney

Ducote continues to make the allegation.

The District Court cited to the letter from Attorney

Ducote to the Members the Cobb County Bar and Metro

Atlanta Health Professionals wherein he states that “we are

taking it to the peers of those who are guilty, and we are

charging those people to hold Diane Woods and Elizabeth

King accountable. We will continue to fight in both State

and Federal Court.” [27-A] It was clear to the District Court

Attorney Ducote was using the Federal forum in an improper

manner by waging a “public relations campaign to discredit

5

her (Mrs. Titelman’s) divorce and custody proceedings. . .”

[28-A] Such improper use of the Federal forum gave rise to

Rule 11 sanctions supported by Aetna Ins. Co. v. Meeker,

953 F.2d 328, 1334 (11" Cir. 1992) and Pelleteir v. Zweifel,

921 F.2d 1465 (11" Cir. 1991). [23-28-A]

Attorney Ducote does not address any of these other

clearly supported reasons (harassment and improper purpose)

for the imposition of Rule 11 sanctions in his Petition.

This failure alone warrants the denial of Ducote’s Petition

for Certiorari.

RULE 11 SANCTIONS WERE CORRECTLY

IMPOSED FOR ATTORNEY DUCOTE’S

FRIVOLOUS MODIFICATION ARGUMENT

Attorney Ducote’s Petition focuses solely on the Georgia

law of malicious prosecution in his attempt to justify the

filing of the original and amended complaints against

Respondents. His attempt to modify Georgia law was

frivolous and unsupported and not the motivation for the

Complaints. O.C.G.A. § 51-7-40 provides as follows:

“A criminal prosecution which is carried on maliciously and

without any probable cause and which causes damage to the

person prosecuted shall give him a cause of action.”

In Monroe v. Sigler, 256 Ga. 759, 762, 353 S.E.2d 23 (1987),

the Georgia Supreme Court granted certiorari to consider

whether a judicial determination of probable cause made in

the course of a criminal prosecution supports probable cause

in a civil action for malicious prosecution. In Monroe, the

defendant related events to the magistrate who issued an

arrest warrant. /d. The plaintiff's counsel moved for directed

verdict of acquittal at the close of her criminal trial. /d.

Having heard all of the evidence, the trial court denied the

ek,

motion, finding the evidence sufficient to authorize a jury to

determine guilt beyond a reasonable doubt. Jd. On appeal

the trial court’s denial of the motion for directed verdict was

found to constitute a binding determination of probable cause

in the civil case:

When the trial judge, having heard all of the

State’s evidence, considers a motion on behalf of

the accused (the accused being present and given

an opportunity to be heard in support of the

motion); and when the trial judge rules that the

evidence is sufficient as a matter of law to support

a conviction (that is, it is sufficient to enable a

rational trier of fact to find each and every element

of the guilt of the accused beyond a reasonable

doubt), we can see no reason why such a holding

~— unreversed and in the absence of fraud or

corruption — should not suffice as to the existence

of probable cause. -

Monroe, 256 Ga. App. 761. See also Bi-Lo, Inc. v. McConnell,

199 Ga. App. 154, 404 S.E.2d 327 (1991) (the defendant in

a malicious prosecution action is entitled to a judgment as a

matter of law where the plaintiff was shown to have moved

unsuccessfully for a directed verdict of acquittal in the

underlying criminal proceeding). Where the facts are not in

dispute in establishing probable cause, the question is for

the Court to determine and not a jury. Booker v. Eddins, 183

Ga. App. 449, 359 S.E.2d 211 (1987), overruled on other

grounds, Cincinnati Insurance Company v. Premier Tractor

and Trailer Repair, Inc., 192 Ga. App. 243, 384 S.E.2d 449

(1989).

Probable cause in this regard may be defined as

the existence of such facts and circumstances in