United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SANCTIONS
MATTER comes before the Court following a hearing upon
Defendant Beems' Motion for Imposition of Rule 11
Sanctions and Sanctions Pursuant to 28 U.S.C. §1927,
filed on September 26, 2018 (Doc. 50).
Having reviewed the parties' pleadings, the applicable
law and after considering counsel's arguments presented
at the hearing, the Court finds that Defendant's motion
is granted with regard to sanctions under §1927.
filed this action alleging that she was sexually assaulted by
Defendant William Beems while she was a student at Monte
Vista Elementary approximately twenty years ago, in violation
of various federal statutory provisions and state tort law.
Plaintiff filed this lawsuit on December 20, 2017 in the
Second Judicial District, County of Bernalillo and Defendants
removed the case to federal court under federal question
jurisdiction (28 U.S.C. §1331). The Court ultimately
dismissed all federal claims in the lawsuit and remanded the
case back to state court, declining to exercise supplemental
jurisdiction over the state law claims. The complaint
contains six counts:
Count I: Sexual Assault, Abuse and Battery against Defendant
Count II: Negligence and Premises Liability;
Count III: Vicarious Liability and Premises Liability;
Count IV: Negligent and Intentional Infliction of Emotional
Count V: Violations of Plaintiff's Due Process, Equal
Protection and Constitutional Rights (state and federal); and
Count VI: Outrage, Systemic Failure and Prima Facie Tort.
Defendant Lauer's Motion to Dismiss
29, 2018, the Court granted Defendant Lauer's motion to
dismiss Counts IV and V based on Plaintiff's failure to
assert plausible claims against that Defendant, finding that
the complaint was factually insufficient and failed to
identify how Ms. Lauer's conduct violated Plaintiff's
constitutional rights. Doc. 33. The Court also found that
Defendant Lauer was entitled to qualified immunity on the
federal claims because Plaintiff failed to show that the law
was sufficiently clearly established to where Ms. Lauer would
have known that her conduct as alleged in the complaint would
violate Plaintiff's constitutional rights. In that
decision, the Court denied Defendant Lauer's motion to
dismiss as to the state law claim in Count II brought under
the New Mexico Tort Claims Act (“Tort Claims
Act”) asserting negligence and premises liability.
Plaintiff had alleged that Ms. Lauer was on notice regarding
Defendant Beems' conduct toward Plaintiff and had failed
to report it, and since the Court was required to view facts
favorably to Plaintiff under a Rule 12(b)(6) standard, Count
II was not dismissed. The Court also expressed concern about
the quality of the drafting of the complaint, stating:
“In short, the drafting of the complaint indicates
either a sloppiness and lack of due care on Plaintiff's
counsel's part, or an unfamiliarity with the various
federal legal theories Plaintiff's counsel purports to
raise in this case.” Doc. 33 at 7. Attorney Charles H.
Kalm is counsel of record for the Jane Doe Plaintiff in this
Defendant Beems' Motion to Dismiss
August 27, 2018, the Court granted Defendant Beems'
motion to dismiss Plaintiff's federal and state law
claims for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1)
and for lack of merit under Rule 12(b)(6). Doc. 48. The Court
found that Plaintiff's claims brought under 42 U.S.C.
§1983, Title IX and Title VII were time-barred and were
not subject to any tolling or continuing violation doctrine
that would extend the three-year limitations period
applicable to §1983 claims for personal injury in New
Mexico and dismissed the federal claims with prejudice under
Rule 12(b)(6). The Court also declined to exercise
supplemental jurisdiction over Plaintiff's state law
claim, remanding the case to state court.
addition, Defendant Beems sought sanctions. In addressing
that request, the Court again expressed concern “over
the manner in which Plaintiff's counsel has litigated
this case, ” see Doc. 48 at 13, and deferred
ruling on the sanctions issue pending briefing by parties,
which has now been completed. Id.
motion, Defendant seeks sanctions under both Fed.R.Civ.P. 11
and 28 U.S.C. §1927, and contends that Plaintiff filed a
baseless and frivolous lawsuit against him and pursued the
action in bad faith. Defendant argues that it would have been
obvious to any reasonable and competent attorney that
Plaintiff's claims would be time-barred under the
applicable statute of limitations depriving the Court of
subject matter jurisdiction. In addition, relevant case law
from the Tenth Circuit would have indicated to an attorney
showing minimal due diligence in researching the matter that
most of Plaintiff's federal claims were subject to
dismissal under Tenth Circuit precedent. Plaintiff's
counsel contends that he presented Plaintiff's federal
claims based on legal theories that a reasonable and
competent attorney could believe had merit, and that
sanctions are not warranted.
district court has discretion under Rule 11 of the Federal
Rules of Civil Procedure, 28 U.S.C. §1927 and its
inherent equitable powers to impose costs against an attorney
as a sanction. See Chambers v. NASCO, Inc., 501 U.S.
32, 4849 (1991) (recognizing a court's inherent equitable
power to sanction an attorney).
Rule 11, the attorney, in signing a pleading, affirms that,
after making a reasonable inquiry, he believes in good faith
that the pleading is well grounded both in fact and in law.
Cotner v. Hopkins, 795 F.2d 900, 903 (10th Cir.
1986). However, Rule 11 contains a “safe-harbor”
provision which requires a party to serve a copy of its Rule
11 motion on the other party and to give that party an
opportunity (generally 21 days) to withdraw or correct the
challenged document before filing the sanctions motion with
the court. At the hearing, defense counsel advised the Court
that he had not provided any notice, much less a Rule 11
motion to Plaintiff's counsel at any time, but urged the
Court to accept the pleadings related to the motion to
dismiss as substitute for the “safe harbor”
motion requirement. This the Court cannot do, as Rule 11 is
quite explicit in that it requires notice in the form of a
motion to satisfy the “safe harbor” requirement,
and the Tenth Circuit has held that it is an abuse of
discretion to grant Rule 11 sanctions if a defendant does not
comply with that requirement. See Roth v. Green, 466
F.3d 1179, 1191-92 (10th Cir.2006). (district court abused
discretion where all defendants sent plaintiff's counsel