The opinion of the court was delivered by: MICHAEL McCUSKEY, District Judge
This case is before the court for ruling on Defendants' Motion
for Rule 11(b) Sanctions (#215). This court agrees with
Plaintiffs that Defendants failed to follow the procedural
requirements of Rule 11(c) of the Federal Rules of Civil
Procedure. Accordingly, Defendants' Motion (#215) is DENIED.
On November 2, 2005, Defendants, City of Kankakee and Mike
Kinkade, filed a Motion for Rule 11(b) Sanctions (#215) and a
Memorandum in Support, with attached exhibits (#216). In their
Motion, Defendants argued that they are entitled to recover the
attorney fees they incurred due to the attempt by Plaintiffs,
Joseph Baptist, Richard Brooks, Price Dumas, Willie Hunt, and
Lamont Upton, to vacate the Agreed Judgment Order (#194) entered
on September 22, 2005, which was based upon a settlement
Plaintiffs agreed to on September 12, 2005. Defendants stated:
Plaintiffs, as contained within their Motion to Alter
or Amend Judgment, have decided, for reasons known
only to them, to turn their backs on the agreement
they made with the Court, with their counsel and with
the Defendants. The record is absolutely clear that
the Plaintiffs were fully advised of all terms of the
settlement agreement in open court and expressed to the court
their agreement with the terms. The Plaintiffs'
effort to alter the Agreed Judgment Order of
September 22, 2005, based upon their contention that
they "didn't understand" is baseless, without factual
support and was done only for the purpose of
harassment of the Defendants and, further, to
needlessly and wrongfully extend this litigation.
Neither the court nor the Defendants should have been
required to do anything in this case other than, as
to Defendants only, ensure that the requirements of
the September 22, 2005 order were met.
Defendants sought attorney fees from Plaintiffs in the amount of
$5,470.00 as a sanction under Rule 11. Defendants submitted
exhibits supporting their claim for attorney fees.
On November 16, 2005, Plaintiffs filed their Response to Motion
for Rule 11(b) Sanctions (#217). Plaintiffs argued that sanctions
cannot be awarded under Rule 11 because Defendants did not comply
with Rule 11's "safe harbor" provision. Plaintiffs also contended
that sanctions are not warranted because they brought their
motion attacking the Agreed Judgment Order for a proper purpose,
based upon the conduct of their former attorney.
In this case, this court agrees with Defendants that
Plaintiffs' actions in agreeing to a settlement in open court, a
settlement which was fully explained to them, and then attempting
to vacate the settlement may certainly be sanctionable conduct.
In its Opinion (#209) which denied Plaintiffs' Motion to Alter
Judgment, this court stated:
The record is crystal clear that Plaintiffs were
advised of all of the terms of the agreement in open
court and expressed to this court their agreement with the terms. The record therefore shows
that Plaintiffs agreed to the settlement, then
apparently had second thoughts about the terms of the
agreement. That is not, obviously, a valid basis for
vacating the Agreed Judgment Order.
However, this court agrees with Plaintiffs that Defendants did
not follow the procedural requirements of Rule 11, so attorney
fees may not be awarded under Rule 11.
Rule 11 requires that a motion "shall be made separately from
other motions or requests and shall describe the specific conduct
alleged to violate" the rule. Methode Elecs., Inc. v. Adam
Techs., Inc., 371 F.3d 923, 926 (7th Cir. 2004), quoting
Fed.R.Civ.P. 11(c)(1)(A). This motion must be served on the
opposing party, but, importantly, "shall not be filed with or
presented to the court unless within 21 days after service of the
motion (or such other period as the court may prescribe), the
challenged paper, claim, defense, contention, allegation, or
denial is not withdrawn or appropriately corrected." Methode
Elecs., 271 F.3d at 926, quoting Fed.R.Civ.P. 11(c)(1)(A).
"Only if the adverse party maintains its position may the movant
inform the court and request sanctions." Nisenbaum v. Milwaukee
County, 333 F.3d 804, 808 (7th Cir. 2003).
Therefore, in order to be entitled to sanctions under Rule 11,
Defendants were required to serve their motion for sanctions on
Plaintiffs and give Plaintiffs the opportunity to withdraw their
Motion to Alter Judgment. See Hamil v. Mobex Managed Servs.
Co., 208 F.R.D. 247, 250 (N.D. Ind. 2002); see also Corley v.
Rosewood Care Ctr. Inc. of Peoria, 142 F.3d 1041, 1058 (7th
Cir. 1998); Manning v. Crockett, 1999 WL 342715, at *4 (N.D.
Ill. 1999). In this case, Defendants have not stated that they
complied with this "safe harbor" provision, and this court must
accept Plaintiffs' assertion that Defendants did not.
Accordingly, Defendants' Motion must be denied on this basis.
See Hamil, 208 F.R.D. at 250; Manning, 1999 WL 342715, at
*4. This court notes that "Rule 11 has not robbed the district
courts of their inherent power to impose sanctions for abuse of
the judicial system." Methode Elecs., 371 F.3d at 927.
Consequently, under certain circumstances, a district court may
impose sanctions on its own motion. See Methode Elecs.,
371 F.3d at 926-27. However, "if the sanction is imposed on the
court's own motion, attorney fees cannot be awarded." Methode
Elecs., 371 F.3d at 926. In this case, Defendants have only
requested attorney fees, and this court cannot award attorney
fees on its own motion.
This court additionally notes that Rule 11 is not the only
basis for awarding sanctions. Attorney fees may also be awarded
under 28 U.S.C. § 1927 against an attorney who "multiplies the
proceedings in any case unreasonably and vexatiously."
28 U.S.C. § 1927; see also Ordower v. Feldman, 826 F.2d 1569, 1574
(7th Cir. 1987) ("If a lawyer pursues a path that a
reasonably careful attorney would have known, after appropriate
inquiry, to be unsound, the conduct is objectively unreasonable
and vexatious."). This court believes that an argument could
certainly be made in this case that the conduct of Plaintiffs'
new counsel has unreasonably and vexatiously multiplied the
proceedings in this case and that he is therefore subject to
sanctions under 28 U.S.C. § 1927. However, Defendants did not
request attorney fees under this statute and have only sought
sanctions against Plaintiffs, not their new attorney.
For all of the reasons stated, this court concludes that
Defendants' Motion (#215) has not provided a basis for allowing
the relief sought and must be denied.
IT IS THEREFORE ORDERED THAT Defendants' Motion for Rule 11(b)
Sanctions (#215) is DENIED.
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