Opposition Brief — Kaimowitz v. Frederick

Supreme Court, U.S.

FIILED

| SEP 9 1992

No. 92-79 OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

GABE KAIMOWITZ,

BILL FREDERICK, THE ORLANDO TIMES

DR. CALVIN COLLINS, LOTTIE COLLINS,

ON PETITION FOR A WRIT O!

TO THE UNITED STATES COURT OF API

FOR THE ELEVENTH CI!

RESPONDENT'S BRIEF IN

OPPOSITION TO CERTIORARI

Fla Bar N P4545

EUBANKS, HILYARD, RUMBLEY

MEIER & LENGAUER, P.A

P.O. Box $1973

Orlando, Florida P80?

$07) 425-425]

Attornevs for Respondent,

September 9, 1992 BILL FREDERICK.

Washingt « THIEL PRESS « 202) 328 3286

oy

:

ste

-

QUESTIONS PRESENTED

In accordance with rule 15.1, Rules of the Supreme

Court, the Respondent submits that the questions pre-

sented for review by Petitioner do not accurately depict

the issues before this court because they do not accur-

ately reflect conflicts between the circuit courts and they

do not accurately reflect the lower court’s holding.

I. Whether there exists a sharp division in the

circuits regarding whether a claim that has sur-

vived pretrial dismissal motions and received a

full scale trial can be unsupported in fact or

unwarranted in law within the meaning of Rule

11.

Il. Whether there exists a sharp division in the cir-

cuits regarding whether to adopt the “least severe

sanction” test for reviewing Rule 11 sanctions.

III. Whether there exists a sharp division in the cir-

cults regarding whether the collateral costs of

judicial administration, such as juror fees, may be

awarded as a Rule 11 sanction.

['V. Whether the current conflict between the circuits

regarding whether 28 U.S.C. §455(a) mandates

that the cause of a judge’s partiality or bias must

stem from an extrajudicial source, is applicable

to the case at bar.

ns ME ie ES 08 sb BIN | E

0 ae ae

—— a

(12)

TABLE OF CONTENTS

QUESTION PRESENTED

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

POINT I. THERE DOES NOT EXIST A SHARP DIVI-

SION IN THE CIRCUITS REGARDING WHETHER

A CLAIM THAT HAS SURVIVED PRETRIAL DIS-

MISSAL MOTIONS AND RECEIVED A FULL

SCALE TRIAL CAN BE UNSUPPORTED IN FACT

OR UNWARRANTED IN LAW WITHIN THE MEAN-

ING OF RULE 11

POINT II. THERE DOES NOT EXIST A SHARP DIVI-

SION IN THE CIRCUITS REGARDING WHETHER

TO ADOPT THE “LEAST SEVERE SANCTION”

TEST FOR REVIEWING RULE 11 SANCTIONS

POINT III. THERE DOES NOT EXIST A SHARP CON-

FLICT BETWEEN THE CIRCUITS REGARDING

WHETHER THE COLLATERAL COSTS OF JUDI-

CIAL ADMINISTRATION, SUCH AS JUROR’S

FEES, MAY BE AWARDED AS A RULE 11

SANCTION . «ss 4 ce se

POINT IV. THE CURRENT CONFLICT REGARDING

WHETHER 28 U.S.C. §455(a) MANDATES THAT

THE CAUSE OF APPARENT PARTIALITY OR

BLAS MUST STEM FROM AN EXTRA-JUDICIAL

SOURCE IS NOT APPLICABLE TO THE CASE AT

BAR

TABLE OF AUTHORITIES

Cases:

Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813

2 8 OR Ree SS, Ole ee en ee. ek S kx

oy Ue ee Lee a ee ae CMe ar ee. bt

tot OF Bh = 8 Se Re eS 6S: 6. SOS fe

ee vas ar et ee a i er a a

7 2 £8. S 2 Ss 2 ae eS Oe 6 6 ee Se 6 6 S

8 8 0 8 06 68 ee ee eee ee ee eS

a se I ee ae

°° &

e JO

by ’ >

Cases, continued: Page

Anheuser-Busch, Inc. v. Stroh Brewery Co., 750 F.2d

EN ga dk his ho 6 ee wa ba ole we 10

Auvirgan v. Hull, 932 F.2d 1572 (11th Cir. 1991), cert.

COM cee Wis ess 126 LE. 20 818, 112 8.Ct.

al Se yet a 15

Barrios v. Pelham Marine, Inc., 796 F.2d 128, 132 (5th

NG RES eae ee 13

Blue v. Dept. of the Army, 914 F.2d 525 (4th Cir. 1990),

cert, den, sub. nom., Chambers v. United States Dept.

of the Army, __ U.S. ____, 113 L.Ed.2d 645, 111

ee ek ee kA 6 6 ke Rw a ee uk han 16

Brown v, Borough of Chambersburg, 903 F.2d 274 (3rd

Aah Se 12

Business Guides, Inc. v. Chromatic Comm., 498 U.S., __.,

112 L.Ed.2d 1140, 111 S.Ct. 922 (1991).............. 8

Calloway v. Marvel Entertainment Group, 854 F.2d 1452

(2d Cir. 1988), rev’d on other grounds sub nom, Pavelic

& LeFlore v, Marvel Entertainment Group, 493 U.S.

eS Wee Sas Ca 6 < ab bw ocak 606k a6 12-13

Christiansburg Garment Co. v. EEOC, 434 U.S. 412

0 Ge 1]

Coleman v, General Motors Corp., 667 F.2d 704 (8th

Ny a ae Gah 4a 6.4 A 5 AA BRAD MK a 12

Cooter & Gell v. Hartmarx Co., 496 U.S. 384 (1990)....... 9

Crawford Fitting Co, v. J.T. Gibbons, Inc., 482 U.S. 437

a Eas MA 4.6 Ao 6 6b w Sew eae 046-04 Wee we 16

Eisenberg v. University of New Mexico, 936 F.2d 1131

| ee re 17

Foster v. Mydas Associates, Inc., 943 F.2d 139 (1st Cir.

Ee la nk a ae a 64% Wek Week «SK we ee e008 a 12

Greenberg v. Hilton Int’l. Co., 870 F.2d 926 (2d Cir. 1989),

vacated on other grounds, 875 F.2d 39 (2d Cir.

CT aa hee 6 eck ae a Ok we Oe a eK Rae Rew eK OO 11

Cases, continued: Page

Healey v. Chelsea Resources, Ltd., 947 F.2d 611 (2d Cir.

POPEE DRS RK AER Cee Ee ahead ee Ree ee 8,9

Jennings v. Joshua Independent School District, 877 F.2d

313 (5th Cir. 1989) cert. den. 496 U.S. 935

(ees sk a oe ee re eh os ate ae ee ee 10-11

Langer v. Monarch Life Insurance Co., 966 F.2d 786, (3d

EOE Ss 50 eee ee Lea 14

LeMaster v. United States, 891 F.2d 115 (6th Cir.

Crise: PE OO EO Pe eet a Pee Mie 11,13

Lewts v. Brown & Root, Inc., 711 F.2d 1287 (5th Cir.

1983) cert. den. 467 U.S. 1231 (1984) .............. 12

Mann v. G&G Mfg., Inc., 900 F.2d 953 (6th Cir. 1990)

cert. den. sub. nom., Sloan v. G&G Mfg., Inc.,

—— U.S. __., 112 L.Ed.2d 398, 111 S.Ct. 382

CRW 568 5:06 6 0 wb eo hae ee ee on ink 11,13

Mthaltk v. Pro Arts, Inc., 851 F.2d 790 (6th Cir. | 10

Muthig v. Briant Point Nantucket, Inc., 838 F.2d 600

[oa Ge RO eae kw 8 ew ew eee :Z

National Association of Govt. Emplovees, Inc. v. National

Federation of Fed. Employees, 844 F.2d 216 (5th Cir.

PE 653s a AGS AES OT STR ha Ree 10

Norton Tire Co., Inc. v. Tire Kingdom Co., Inc., 858 F.2d

Smaw. haem Gals SOE os 6 sch oso aw ak awe eee aun 15

Olivert v. Thompson, 803 F.2d 1265 (2d Cir. 1986) cert.

den, sub. nom. Suffolk County v. Graseck, 480 U.S.

OW LENO 5-46 wR ERO ee ee 14

Panzardi-Alvarez v. United States, 879 F.2d 975, (1st Cir.

1989) cert. den. 493 U.S. 1082 ae aig ae 17

Roleston v, Eldridge, 848 F.2d 163 (11th Cir. 1988)....... 15

Searle & Co. v. Cohn, 455 U.S. 404 eS bak ka a tee 18

Sullivan v. School Board of Pinellas County, 773 F.2d 1182

[ae ee SD os os ee es ice ak ee 1]

Cases, continued: Page

Thomas v, Capital Security Serv., Inc., 836 F.2d 866 (5th

Cie, ED) ee SOC. Ss. 0 6s ee eee ee ee eee eee ee 14

United States v. Cepeda Reves, 577 F.2d 754 (1st Cir.

ho, | rr eee rarer eae re es ee ark 17-18

United States v. Chantal, 902 F.2d 1018 (1st Cir. 1990)..... 17

United States v. Cowden, 545 F.2d 257 (1st Cir. 1976),

cert. den.. 439 U.S. FSO LAB ih sn ee wd eee eee 18

United States v. Grinnel Corp., 384 U.S. 563 (1966) ....... 18

United States v. Kelly, 712 F.2d 884 (1st Cir. i989) ....... 17

United States v. Mitchell, 886 F.2d 667 (4th Cir. 1989)..... 18

Waller v. United States, __- U.S. __ , 119 L.Ed.2d 239,

LAD S.C. ZES1 (IGRE) occ eae ana et eee here eee een 17

White v. Raymark Indus., 783 F.2d 1175 (4th Cir.

IOGG) 6 kee hae es Wh eh be eee ee eee tee eee 16

Statutes:

28 U.S.C. 6 EGR, 20 sc be eee eee eee 18

20 USSG. SEBS. . cces o vee 660 h oe eee eee 17,18

26 U.S.C. SIGQO... cs tec ce cies ae ee eka ene eee 16

28 U.5.G. SIGE. oc cakes een tee vee ean eee 15, 16

42 U.S.C. $1068 (1968). 6. ee cee eens ee eee 8

Rules:

Fed. R. Cav. B. 1) ww ccc cv ase teen ee eee eee passim

Fed, BR. Civ. F. 2G 2 ncn 0 eee ce ew tke eee eek ee eee 16

Fed. R. Civ. BP. 5G oct ie nea e ee eee wee ewe eveens 13

Miscellaneous:

Fed. R. Civ. P. 11 Advisory Committee’s Note ........... 9

No. 92-79

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

GABE KAIMOWITZ,

Petitioner,

BILL FREDERICK, THE ORLANDO TIMES,

DR. CALVIN COLLINS, LOTTIE COLLINS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT’S BRIEF IN

OPPOSITION TO CERTIORARI

RESPONDENT’S BRIEF

IN OPPOSITION TO CERTIORARI

The Respondent, Bill Frederick, requests that this

Court deny the Petition for Wnt of Certiorari seeking

review of the per curiam affirmance by the Eleventh

Circuit Court of Appeals entered March 11, 1992.

l

9

STATUTES AND REGULATIONS INVOLVED

28 U.S.C. §144

Whenever a party to any proceeding in a district court

makes and files a timely and sufficient affidavit that the

judge before whom the matter is pending has a personal

bias or prejudice either against him or in favor of any

adverse party, such judge shall proceed no further therein,

but another judge shall be assigned to hear such pro-

ceeding.

The affidavit shall state the facts and the reasons for

the belief that bias or prejudice exists, and shall be filed

not less than ten days before the beginning of the term

at which the proceeding is to be heard, or good cause

shall be shown for failure to file it within such time.

A party may file only one such affidavit in any case.

It sha’ be accompanied by a certificate of counsel of

record stating that it is made in good faith.

28 U.S.C. §455

(a) Any justice, judge, or magistrate of the United

States shall disqualify himself in any proceeding in

which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following

circumstances:

(1) Where he has a personal bias or prejudice con-

ceming a party or personal knowledge of disputed evi-

dentiary facts concerning the preceeding.

28 U.S.C. §1920

A judge or clerk of any court of the United States may

tax as costs the following:

(1) Fees of the clerk and marshal;

c

ad

(2) Fees of the court reporter for all or any part of the

stenographic transcript necessarily obtained for use in

the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers

necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compen-

sation of interpreters, and salaries, fees, expenses, and

costs of special interpretation services under section

1828 of this title.

A bill of costs shall be filed in the case and, upon

allowance, included in the judgment or decree.

28 U.S.C. § 1927

Any attorney or other person admitted to conduct

cases in any court of the United States or any Territory

thereof who so multiplies the proceedings in any case

unreasonably and vexatiously may be required by the

court to satisfy personally the excess costs, expenses,

and attorneys’ fees reasonably incurred because of such

conduct.

42 U.S.C. § 1988

In any action or proceeding to enforce a provision

of sections 1977, 1977A, 1981, 1982, 1983, 1985 of

this title, title LX of Public Law 92-318, ot title VI of

the Civil Rights Act of 1964, the court, in its discretion,

may allow the prevailing party, other than the United

States, a reasonable attorney’s fee as part of the costs.

ein

4

Federal Rule of Civil Procedure 1 |

Every pleading, motion, and other paper of a party

represented by an attorney shall be signed by at least

one attorney of record in the attorney’s individual

name, whose address shall be stated. A party who is not

represented by an attomey shall sign the party’s plead-

ing, motion or other paper and state the party’s address.

Except when otherwise specifically provided by rule or

statute, pleadings need not be verified or accompanied

by affidavit. The rule in equity that the averments of an

answer under oath must be overcome by the testimony

of two witnesses or of one witness sustained by corro-

borating circumstances is abolished. The signatures of

an attomey or party constitutes a certificate by the

signer that the signer has read the pleading, motion, or

other paper, that to the best of the signer’s knowledge,

information, and belief formed after reasonable inquiry

it is well grounded in fact and is warranted by existing

law or a good faith argument for the extension, modifi-

cation, or reversal of existing law, and that it is not inter-

posed for any improper purpose, such as to harass or to

cause unnecessary delay or needless increase in the cost

of litigation. If a pleading, motion, or other paper is not

signed, it shall be stricken unless it is signed promptly

after the omission is called to the attention of the pleader

or movant. If a pleading, motion, or other paper is

signed in violation of this rule, the court, upon motion

or upon its own initiative, shai! impose upon the person

who signed it, a represented party, or both, an approp-

nate sanction, which may include an order to pay to the

party or parties the amount of the reasonable expenses

incurred because of the filing of the pleading, motion, or

other paper, including a reasonable attorney’s fee.

5

STATEMENT OF THE CASE

The Respondent, Bill Frederick, cannot accept the

Petitioner’s statement of the case because it also incor-

porates argument for the Petitioner’s position. On Feb-

ruary 27, 1989 the Petitioner, who is an attorney, filed

a pro se Complaint for Injunctive Relief and Damages in

the United States District Court for the Middle District

of Florida. (R 1-1) Defendants named in the Complaint

included The Orlando Times, a weekly newspaper tar-

geted to African-Americans, the owner and publisher of

the newspaper, Dr. Calvin Collins, and his wife, Lottie

Collins, who acted as the manager of the newspaper.

Also named as a Defendant was Bill Frederick, the Mayor

for the City of Orlando, Florida. Bill Frederick was sued

in both his individual and official capacities.

The Petitioner was | Consulting Managing Editor of

The Orlando Times from November 1, 1986, until March,

1987. In March of 1987 the Petitioner was terminated

by the newspaper Respondents. The owners of the news-

paper testified that they terminated the Petitioner for

being insubordinate. (R 7-188 through 208) Petitioner

contends that he was discharged by the newspaper as

part of an active conspiracy among the Respondents to

violate Petitioner’s civil rights. He claimed that the Col-

linses, whom are black, discriminated against him on the

basis of his race and ethnicity. Petitioner is a white

Jewish male.

Following his termination from The Orlando Times,

Petitioner filed a lawsuit alleging violations of 42 U.S.C.

§1981, 1983 and 1985. The Complaint alleged that

Mayor Frederick had used his political power to have

Petitioner terminated. Petitioner claimed that Frederick

and The Orlando Times conspired to cause Petitioner's

6

termination from the newspaper and ruin his reputation

among African-Americans in the Orlando area.

Respondent Frederick filed a Motion to Dismiss the

Complaint. (R 1-14) Soon thereafter Frederick filed a

Motion for Rule 11 Sanctions contending that Petition-

er’s lawsuit and Complaint were frivolous. (R 1-19) The

District Court judge denied the Motion to Dismiss and

deferred ruling upon the Rule 11 motion until the com-

pletion of trial. (R 1-14, 71) In his order denying one of

these Motions for Summary Judgment the court wrote:

“The court is unable to determine if there are any

issues of fact against the Mayor. The court must

await testimony at trial to see if sanctions will be

appropnite against the Plaintiff for failing to prove

any issues against the Mayor which are not frivo-

lous.”” (R 2-71)

During the trial each of the individually named

Respondents took the stand. Dr. Collins and Lottie

Collins conceded that they were responsible for the

decision to terminate the Petitioner from The Orlando

Times. (R 7-57-277; R 9-48-81) They testified the

Petitioner was terminated for insubordination. Dr. and

Mrs. Collins emphatically denied that Mayor Bill Fred-

erick had any part in the decision to terminate the Peti-

tioner.

The Mayor also emphatically denied having any con-

versations with the Collinses about the Petitioner. (R

8-134, 135) Furthermore, the Petitioner failed to pre-

sent any evidence to suggest that the Collinses or Mayor

Bill Frederick had ever discussed the Petitioner and his

employment at The Orlando Times. Respondent Fred-

erick moved for a directed verdict at the close of Peti-

tioner’s Case in Chief which was denied in part and

-

/

granted in part. (R 8-183 through 233) On November

9, 1990 the jury returned a verdict in favor of all the

Respondents on the claims presented by the Petitioner.

The court entered a judgment for Respondents and also

entered an “Order to Show Cause”’ requiring Petitioner

to show cause why he should not be found responsible

for Rule 11 Sanctions. (R 3-119) Prior to a hearing upon

the Order to Show Cause, Petitioner filed with the Elev-

enth Circuit a Petition for Writ of Mandamus. Petitioner

sought to stay the lower court proceedings and further

asked the judge be disqualified or recused from presiding

over the case. The Eleventh Circuit denied Petitioner’s

Petition for Wnt of Mandamus on November, 19, 1990.

(R 3-136)

On November 16, 1990 the trial court ordered sanc-

tions from the bench and required Petitioner to pay

Defendants courts costs and counsel fees. (R 3-135) On

December 17, 1990 the tnal court entered an Order

stating that “[b]ased on the evidence adduced at the

hearing and on the court’s observations of the pleadings

and of the trial, the court determined that this lawsuit

was frivolous and vexatious from the beginning.” (R 4-

148) During the hearing the court stated why it had

not previously disposed of the Petitioner’s case by way

of Motion to Dismiss or Motion for Summary Judgment.

“Plaintiff contends that the Complaint must have

had some merit because it withstood Defendant’s

Motion to Dismiss and Motions for Summary Judg-

ment and because the court sent the case to the jury

for deliberation on the merits rather than direct a

verdict in favor of Defendants at the close of Plain-

tiff’s case. The court, however, allowed the case to

go to trial not because Plaintiff presented sufficient

evidence to withstand the pretrial motions, but

‘

|

4

|

‘|

Z

8

because the court wanted to see whether Plaintiff

could present any evidence at trial... Finally,

Plaintiff has repeatedly accused the court of preju-

dice. As a result, the court sent the case to the

jury not because of a perceived factual basis for the

claim, but because it wanted Plaintiff to receive a

jury verdict. Only then would Plaintiff know that

the outcome of the case was based on the merits

rather than on judicial bias.” (R 4-148-3 and 4)

The court ordered Petitioner to pay sanctions and

attorney's fees imposed jointly under Rule hl, Fed. R.

Civ. P., and 492 U.S.C. §1988. Petitioner was ordered

to pay $27,203.50 in attorney’s fees to Defendant

Frederick; $8,018.75 in attorney’s fees to The Orlando

Times Defendants; and $2,138.55 to be paid to the court

to compensate for the administrative costs and expenses

of the proceeding, particularly juror’s fees. (R 4-148)

The Eleventh Circuit affirmed without Opinion and

denied Petitioner’s Motion for Rehearing and Suggestion

of Rehearing en banc.

REASONS FOR DENYING THE WRIT

POINT I

THERE DOES NOT EXIST A SHARP DIVISION IN THE

CIRCUITS REGARDING WHETHER A CLAIM THAT HAS

SURVIVED PRETRIAL DISMISSAL MOTIONS AND

RECEIVED A FULL SCALE TRIAL CAN BE UNSUP.

PORTED IN FACT OR UNWARRANTED IN LAW WITHIN

THE MEANING OF RULE 11.

This Court has held that the main objective of Rule 1]

is not to reward Parties who are victimized by litigation;

it is to deter baseless filings and curb abuses. Business

Guides, Inc. v. Chromatic Comm., 498 Win, ee , 112

L.Ed.2d 1140, 1160, 111 S.Ct. 922 (1991),

9

Like the imposition of costs, attorney’s fees, and con-

tempt sanctions, a Rule 11 sanction is not a judgment on

the action’s merits, but simply requires the determination

of a collateral issue, which may be made after the prin-

cipal suit’s termination. Cooter & Gell v. Hartmarx Co.,

496 U.S. 384 (1990). The time when sanctions are to be

imposed rests on the discretion of the trail judge. How-

ever, it is anticipated that in the case of pleadings, the

sanctions issue under Rule 11 normally will be deter-

mined at the end of the litigation. Fed. R. Civ. P. 11

Advisory Committee’s Note.

The crux of the Petitioner’s argument is that the Sec-

ond, Fifth and Sixth Circuits have held that a claim sur-

viving pretrial dismissal motions and receiving a full

scale trial are not frivolous within the meaning of Rule

11. The Petitioner, however, fails to cite any case law

from these circuits that makes such a broad declaration.

Petitioner has relied on dicta to support his position

and hence, has misstated the law. The Petitioner cites

Healey v. Chelsea Resources, Ltd., 947 Fed.2d 611 (2nd

Cir. 1991) for the proposition that the denial of a sum-

mary judgment motion demonstrates that the claimant’s

testimony is not incredible or inadequate as a matter of

law. The court in Healey made it very clear that:

While we do not mean to imply that an attorney

automatically gains immunity from Rule 11 sanc-

tions whenever he has successfully fended off a

motion for summary judgment, we cannot, in light

of the pretrial record here, uphold the District

Court’s ruling that counsel should have known

Healey’s trial testimony would be deemed so incred-

ible that his claims would be found frivolous.

(emphasis added)

10

Id. at 626. Healey does not stand for the proposition

that if a claim has survived a summary judgment motion

absent fraud or other egregious misconduct, no sanction-

able violations of Rule 11 can be imposed.

In Mthaltk v. Pro Arts, Inc., 851 F.2d 790, 794 (6th

Cir. 1988), the Petitioner relies on the court’s dicta

rather than the court’s holding to support his argument.

(“If [plaintiff’s] claims were so frivolous, we find it

remarkable that the district court would allow the case

to go to tnial”.) It is Hornbook law that dicta is not

binding in subsequent cases as legal precedent and it

certainly cannot rise to the level of creating a sharp

division between the circuits. See é.g., Anheuser-Busch,

Inc. v. Stroh Brewery Co., 750 F.2d 63] (8th Cir. 1984)

(Holding that the presence of a very brief statement in

a case from another circuit made in an entirely different

factual context should not be seen as establishing a rule

of law.)

Petitioner has also cited the case of National Associa-

tion of Govt. Employees, Inc. v. National Federation of

Fed. Employees, 844 F.2d 216, 223 (5th Cir. 1988)! for

' The Petitioner claims that there exists a sharp division in

the circuits regarding whether a claim that has survived pretrial

dismissal motions and received a full scale trial can be unsup-

ported in fact or unwarranted in law within the meaning of Rule

11. The Petitioner has cited National Association of Govt. Em-

pioyees v. National Federation of Fed. Employees, 844 F.9d

216 (5th Cir. 1988) and Mihalik v. Pro Arts, 851 F.2d 790 (6th

Cir. 1988) for the proposition that claims surviving through trial

are not frivolous within the meaning of Rule 11. However, the

Petitioner has also cited cases from the same circuits for the prop-

Osition that a claim’s survival through trial bears no relation to the

sanctions practice. See e.g., Jennings v. Joshua Independent

School District, 877 F.2d 313. (5th Cir. 1989) cert. den., 496

[footnote continued]

11

the proposition that Rule 11 sanctions are inappropriate

where a court has denied a directed verdict and suggested

settlement. The court actually held that since the filing

of the original Complaint was not redundant, and that

the Complaint was well grounded, there could be no basis

for Rule 11 sanctions. /d. at 224. The Petitioner has

mistaken the court’s dictum in reference to 28 U.S.C.

§ 1927 to mean that Rule 11 sanctions are inappropriate

if a case has survived a motion for directed verdict.

Petitioner has also cited Sullivan v. School Board of

Pinellas County, 773 F.2d 1182 (11th Cir. 1985) for the

proposition that a claim surviving attack by pretrial

motion and going to trial is not apt for Rule 11 sanctions

absent special circumstances. In this instance, the Peti-

tioner has completely misstated the holding in Sullivan.

The court did not even make a single reference to Rule

11. The court instead was making reference to attorney’s

fees under Title VII.2_ Furthermore, Sullivan stated that

U.S. 935 (1990); LeMaster v. United States, 891 F.2d 115 (6th

Cir. 1989) and Mann v. G&G Mfg, Inc., 900 F.2d 953 (6th Cir.

1990) cert. den. sub. nom. Sloan v. G&G Mfg., Inc., —— US.

____ 112 L.Ed.2d 398, 111 S.Ct. 387 (1990). This shows that

there does not exist a true conflict between the circuits, but

rather that sanctions are best considered on a case by case basis.

2The standard for attorney’s fees under Title VII is quite

clear. “If plaintiff’s case, viewed as a who.e, was objectively

‘frivolous, unreasonable, or without foundation’, the court should

award fees even though plaintiff survived motion to dismiss for fail-

ure to state a claim or for summary judgment.” Greenberg v. Hil.

ton Int’l. Co., 870 F.2d 926, 940 (2d Cir. 1989), vacated on other

grounds, 875 F.2d 39 (2d Cir. 1980). (quoting Christianburg Gar-

ment Co. v. EEOC, 434 U.S. 412 (1978)). “Cases that are ulti-

mately viewed as frivolous may well survive motions to dismiss

under a system of notice pleading that does not require factual

detail and even motions for summary judgment in which the evi-

dence may be presented in sketchy fashion and credibility may not

[footnote continued]

‘

;

j

12

while it is an important factor in determining whether a

claim is frivolous to look at whether the trial court dis-

missed the case prior to trial or held a full-blown trial on

the merits, that was only a general guideline and not a

hard and fast rule. Determinations regarding frivolity

are to be made on a case by case basis. /d. at 1189.

In Foster v. Mydas Associates. Inc., 943 F.2d 139, the

court held that:

“The circuits are in agreement that where fees are

sought by a prevailing defendant against an unsuc-

cessful plaintiff in a civil nghts case, one relevant

factor will often be whether the plaintiff succeeded

in making out a prima facie case — a circumstance

which may well prompt a reviewing tribunal to ask

whether the plaintiff’s case withstood summary

judgment and/or directed verdict motions. But that

factor, standing alone, is not entitled to decretory

significance.”

Id. at 144. See also, Muthig v. Brant Point Nantucket.

Inc., 838 F.2d 600, 606 (1st Cir. 1988) (summary judg-

ment standard and Rule 11 standard are not necessarily

or inevitably congruent); Calloway v. Marvel Entertain-

ment Group, 854 F.2d 1452, 1473 (2d Cir. 1988), rev'd

be taken into account. Indeed, in analogous circumstances, we

have affirmed an award of fees to defendants in cases that were

sufficient to go to the jury.” Id. at 940. Numerous other circuits

have awarded sanctions to prevailing defendants in Title VII cases

despite the fact that plaintiffs were allowed to present their cases.

See e.g., Lewis v. Brown & Root, Inc., 711 F.2d 1287 (5th Cir.

1983) cert. den. 467 U.S. 1231 (1984); Coleman v. General Motors

Corp., 667 F.2d 704 (8th Cir. 1981). The Standard for § 1988

claims is also very clear. See €.g., Brown v. Borough of Chambers-

burg, 903 F.2d 274, 279 (3rd Cir. 1990 (The denial of a motion

for a directed verdict has not, as a matter of law, foreclosed con-

sideration of a defendant’s later request for fees based on the friv-

olousness of the claim.)

13

on other grounds sub nom. Pavelic v. LeFlore v. Marvel

Entertainment Group, 493 U.S. 120 (1989) (it is entirely

possible that a baseless factual claim will survive a motion

for summary judgment); Barnos v. Pelham Manne, Inc.,

796 F.2d 128, 132 (5th Cir. 1986) (holding that Rule 11

sanctions are appropriate despite the fact that claim sur-

vived a motion for summary judgment.); LeMaster v.

U.S., 891 F.2d 115, 121 (6th Cir. 1989) (all courts

addressing this issue have concluded that mere survival of

a summary judgment motion, in which all facts are con-

strued in the non-movant’s favor, does not insulate a

party from sanctions if it is later determined that all

factual claims were groundless. (emphasis added)); Mann

v. G&G Mfg., Inc., 900 F.2d 953, 961 (6th Cir. 1990)

cert. den. sub. nom. Sloan v. G&G Mfg., Inc., —— US.

__ 112 L.Ed.2d 398, 111 S.Ct. 387 (1990) (given the

significant differences between a motion for summary

judgment and a Rule 11 motion, it is not surprising that

a district court’s ruling on a Rule 56 motion for summary

need not determine the outcome of the district court’s

ruling on a Rule 11 motion for sanctions.)

The Petitioner has demonstrated no true, acknowl-

edged conflict between any of the decisions cited and

the ruling of the Eleventh Circuit in this case.

POINT II

THERE DOES NOT EXIST A SHARP DIVISION IN THE

CIRCUITS REGARDING WHETHER TO ADOPT THE

“LEAST SEVERE SANCTION” TEST FOR REVIEWING

RULE 11 SANCTIONS.

The circuits are not in sharp conflict regarding whether

to adopt the “lease severe sanction” test for reviewing

Rule 11 sanctions.

14

The basis of the Petitioner’s second argument is that

under the “least severe sanction” standard, courts invok-

ing Rule 11 may impose only the least severe sanction

adequate to serve the purposes of the rule. The Peti-

tioner, however, fails to cite any case law that makes such

a statement. Rather, the cases cited by the Petitioner

hold that the sanction imposed should be the least severe

sanction adequate to the purpose of Rule 11. See, e.g.,

Thomas v. Capital Secunty Serv., Inc., 836 F.2d 866,

878 (5th Cir. 1988) (en banc) (emphasis added).

The circuit courts have unanimously emphasized the

discretion of the district courts to impose an appropriate

sanction. A district court may impose sanctions once a

violation of Rule 11 is found, but the district court

retains broad discretion in determining the “appropriate”

sanction under the rule. Thomas at 878.

Furthermore, the remaining circuits, including the

Eleventh Circuit, have consistently focused primarily on

the deterrent purpose of Rule 11, asking what sanction

will discourage future frivolous litigation and poor law-

yering practices without punishing the offending party or

counsel beyond the point of adequate deterrence. See

e.g., Langer v. Monarch Life Insurance Co., 966 F.2d

786 (3rd Cir. 1992) (agreeing with the Fifth Circuit

that whatever the ultimate sanction imposed, the district

court should utlize the least severe sanction that furthers

the purposes of Rule 11). See also Oliveri v. Thompson,

803 F.2d 1265, 1281 (2d Cir. 1986) cert. den. sub. nom.

Suffolk County v. Graseck, 980 U.S. 918 (1987) (hold-

ing that it lies well within the district court’s discretion

to temper the amount to be awarded against an offend-

15

ing attorney by a balancing consideration of his ability

to pay).°

The case cited by the Petitioner to demonstrate a con-

flict in the Eleventh Circuit is inapplicable. In Avirgan

vy. Hull, 932 F.2d 1572 (11th Cir. 1991), cert. den.,

____US., 116 L.Ed.2d 813, 112 S.Ct. 913 (1992), the

court affirmed more than a million dollars in sanctions

based upon the bad faith exception to 28 U.S.C. 81927

and Federal Rule of Civil Procedure 11. Id. at 1582.

Petitioner has misstated the holding in Avirgan because

the sanction award was not based primarily on Rule 11.

Both the instant case and prior Eleventh Circuit deci-

sions have focused primarily on reasonable sanctions to

deter abuse without punishing the offending party or

counsel beyond the point of adequate deterrence. See

e.g., Norton Tire Co., Inc. v. Tire Kingdom Co., Inc.,

858 F.2d 1533, 1536 (11th Cir. 1988) (holding that

although binding precedent plainly foreclosed plaintiff’s

antitrust claim, the trial judge did not abuse his discre-

tion by refusing to impose Rule 11 sanctions.); Roleston

v. Eldridge, 848 F.2d 163, 165-66 (11th Cir. 1988) (hold-

ing that refusal to impose sanctions under Rule 11

against civil rights plaintiff who should have known that

his federal civil rights complaint lacked merit was not an

abuse of discretion.). Petitioner has demonstrated no

true, acknowledged conflict between any of the decisions

cited and the ruling of the Eleventh Circuit in this case.

3he court was making reference to both Rule 11 and 28

U.S.C. §1927.

lo

POINT Ill

THERE DOES NOT EXIST A SHARP CONFLICT BE-

TWEEN THE CIRCUITS REGARDING WHETHER THE

COLLATERAL COSTS OF JUDICIAL ADMINISTRATION.

SUCH AS JUROR’S FEES, MAY BE AWARDED AS A

RULE 11 SANCTION,

The cases cited by the Petitioner to demonstrate con-

flict are inapplicable. The Petitioner has cited Blue v.

Dept. of the Army, 914 F.2d 525, 548 (4th Cir. 1990),

cert. den. sub. nom., and Chambers v. United States

Dept. of the Army, __ U.S. __ 113 L.Ed.2d 645,

111 S.Ct. 1580 (1991), for the proposition that judicial

and support staff salaries could not be shifted to either

counsel or to a party as a Rule 11 sanction. The Case is

inapplicable because sanctions were awarded based upon

Rules 11 and 16 of the Federal Rules of Civil Procedure,

the “bad faith” exception to the American rule, and 28

U.S.C. §1927. Furthermore, the sanctions dealing with

court costs utilized 28 U.S.C. §1920.

In Blue, the court stated, “we do not hold that it is

never appropriate for a district court to assess against a

party nominal court expenses not provided for in 28

U.S.C. §1920 .. . However, [because of the] magnitude

[of the sanctions] we therefore set aside the sanctions

for court salaries, leaving intact the imposition of court

costs for the expenses of the clerk of the court and the

court reporter which are authorized under 28 U.S.C.

$1920.” Jd. at 548. The other two cases mentioned by

the Petitioner, White v. Raymark Indus., 783 F.2d 1175

(4th Cir. 1986) and Crawford Fitting Co. v. J.T. Gibbons,

Inc., 482 U.S. 437 (1987) are both inapplicable because

they do not even mention Rule 11.

The circuits are in agreement that in certain circum-

stances it may be appropriate for a district judge to

17

impose Rule 11 sanctions in the form of a fine and that

the district judge is free to fine an attorney for the

court’s time, but that fine mnust be based on court costs

and paid to the clerk’s office. See Eisenberg v. University

of New Mexico, 936 F.2d 1131, 1136 (10th Cir. 1991).

Once again the Petitioner has failed to demonstrate a

true conflict between any of the decisions cited and the

ruling of the Eleventh Circuit in this case. There is noth-

ing to support the Petitioner’s argument that court costs

may not be awarded as a Rule 11 sanction.

POINT IV

THE CURRENT CONFLICT REGARDING WHETHER 28

U.S.C. R455(a) MANDATES THAT THE CAUSE OF

APPARENT PARTIALITY OR BIAS MUST STEM FROM

AN EXTRAJUDICIAL SOURCE IS NOT APPLICABLE

TO THE CASE AT BAR.

Finally, the Petitioner has demonstrated a true acknowl-

edged conflict between the circuits. The circuits are in

conflict regarding whether 28 U.S.C. §445(a) requires

that the cause of apparent partiality or bias must stem

from an extrajudicial source. See e.g., Waller v. United

States, __ U.S. —— 119 L.Ed.2d 239, 112 S.Ct. 2321

(1992) (White and O’Conner, J.J., dissenting from

denial of certiorari because of conflict on this issue).

The First Circuit has held that the source of the

asserted bias/prejudice in a 28 U.S.C. §455(a) claim can

originate explicitly in judicial proceedings. United States

v. Chantal, 902 F.2d 1018, 1022 (lst Cir. 1990). See

also, Panzardi-Alvarez v. United States, 879 F.2d 975,

983-984 (1st Cir. 1989) cert. den. 493 U.S. 1082 (1990);

United States v. Kelly, 712 F.2d 884, 889-890 (lst Cir.

1983); United States v. Cepeda Penes, 577 F.2d 754,

18

758 (1st Cir. 1978); United States v. Cowden, 545 F.2d

257, 265 (Ist Cir. 1976), cert. den., 430 U.S. 909 (1977).

Other circuits have explicitly rejected the First Cir-

cult’s approach to 28 U.S.C. §455(a). See e.g., United

States v. Mitchell, 886 F.2d 667, 671 (4th Cir. 1989)

(holding that “the alleged bias must derive from an extra-

judicial source. It must result in an opinion on the merits

on a basis other than that learned by the judge from his

participation in the matter.”’) (quoting Jn re Beard, 811

F.2d 818, 827 (4th Cir. 1987))

Although the Petitioner has brought up the issue of

the district judge’s recusal practice, the Petitioner has

never brought up the issue of whether the source of the

district judge’s bias stemmed from an extrajudicial

source. Neither the district court nor the court of appeals

addressed this question directly. There is no mention of

the alleged bias stemming from an extrajudicial source

in the opinion of either the trial court or the ruling of

the court of appeals. See, Searle & Co. v. Cohn, 455

U.S. 404, 414 (1982) (reasoning that it is unwise to

pass upon the constitutionzlity of an issue in light of

the fact that the lower court: in the case did not address

the issue.).

Furthermore, this Court has already had an oppor-

tunity to rule on bias and an extrajudicial source with

reference to 28 U.S.C. §144. See, United States v.

Grinnel Corp., 384 U.S. 563, 583 (1966) (holding that

the alleged bias and prejudice to be disqualifying must

stem from an extrajudicial source and result in an opin-

ion on the merits on some basis other than what the

Judge learned from his participation in the case.)

In addition, the recusal practice of the district judge

in this case does not conflict with any decisions of this

19

court. See e.g., Aetna Life Insurance Co. v. Lavoue, 475

U.S. 813, 821 (1986) (stating that only in the most

extreme cases would disqualification of a judge on the

basis of general bias or prejudice be required in a civil

case.) There is nothing to support the Petitioner's argu-

ment that the recusal practices of the district judge

conflicted with decisions of this court.

CONCLUSION

The Petitioner has demonstrated no true, acknowl-

edged conflict between any of the decisions cited and

the ruling of the Eleventh Circuit in this case in regards

to the first three issues. As far as the fourth issue is

concerned, the current conflict between the circuits is

not applicable to the case at bar. For these reasons,

the Petition for Writ of Certiorari to review the ruling

of the United States Court of Appeals for the Eleventh

Circuit should be denied.

Respectfully submitted,

JEFFREY G. SLATER

Fla Bar No. 0324345

EUBANKS, HILYARD, RUMBLEY

MEIER & LENGAUER, P.A.

P.O. Box 4973

Orlando, Florida 32802

(407) 425-4251

Attorneys for Respondent,

BILL FREDERICK.

September 9, 1992