# Opposition Brief — Kaimowitz v. Frederick

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0959%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 915

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0959%3A2. Public record. Not legal advice.