The BankAtlantic Motion for Rule 11 Sanctions.

This is a very interesting read, particularly in light of recent efforts to return Rule 11 to the mandatory/no safe harbor regime we had in place during the go-go 80s, which many argue was a bust for reasons having little to do with having any judicial sympathy for vexatious litigants.

"All Pending Motions DENIED As Moot" Merely Scrivener's Error!

 Stearns Weaver is on a roll.

In the wake of Judge Ungaro's BankAtlantic order comes this order from Judge Lenard, upholding sanctions awarded to Stearns Weaver for discovery violations in a case that was otherwise dismissed.

I found this part interesting:

Nor did this Court’s Order Dismissing Case moot the pending Motion for Sanctions.  Federal Rule of Civil Procedure 11 motions for sanctions are collateral to the original proceeding and therefore may be considered after the action is no longer pending. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990); Montgomery & Larmoyeux by Montgomery v. Philip Morris, Inc., 19 F. Supp. 2d 1334, 1335 (S.D. Fla. 1998) (Gold, J.) (district court may award attorney’s fees following remand in a separate order). The phrase “all pending motions are DENIED as moot,” as written in the Court’s form Order of Dismissal, is merely a scrivener’s error that should not preclude Defendants from continuing to exercise their prerogative to move for sanctions.

I'm always fascinated by things like this.

I agree Rule 11 sanctions are collateral and can be considered after the action is concluded, but what to do with the form order and the boilerplate language denying all pending motions as moot?

Is it sufficient to dismissively term it a "form Order" and "merely a scrivener's error" or do the words in an Order, form or not, have their unambiguously plain effect?

And how should that analysis inform us when we deal with other boilerplate language in other form documents that purport to have legal consequences?

Finally, if the words "DENIED as moot" are of no legal significance, then why are those words always there in the first place?

I hate scriveners!

Rule 11 Motions -- Please Use Sparingly.

We all know lawyers who love to threaten sanctions.  They write nasty letters, throw around 57.105 and generally try to bully their way through a lawsuit.  These lawyers are especially annoying at depositions, or at hearings where the judge can't or won't control the courtroom.

Sometimes this is client-driven, other times the lawyer is just not very skilled and falls back on threats and bluster -- this is easier than actually drafting a summary judgment motion that will be granted..

Of course, there are also times when such a motion is appropriate and in fact necessary.

Judge Hoeveler just entered an order (isn't it great he's still entering orders?) on a Rule 11 motion in a workplace discrimination case where the "sanctionable" conduct seems to be about fundamentally disputed issues of fact:

In moving for sanctions, Goodyear submits that the plaintiffs factual claims about harassment are patently false and frivolous.  In support of this position, Goodyear provided affidavits by Flores and Galeano, in which they generally deny discriminating against the plaintiffs. In particular, Mr. Flores states that he routinely hired Cubans and 'never harbored any race/national origin animus against Cubans." Further, he states that the plaintiffs were fired for lawful reasons; specifically: (1) Mr. Pardon was fired for violating Goodyear's policy on damaging customers' cars while parking them in the mechanic's service bays; (2) Mr. Carbrera was fired for insubordination, for refusing to stand on the sidewalk with an advertisement placard during part of his shift; and (3 ) Mr. Milo wasn't fired at all, but voluntarily resigned (albeit in the context of a salary dispute) . Mr. Galeano makes similar exculpatory statements concerning the fourth plaintiff, Mr. Girard--who, incidentally, was Mr. Galeano' s former roommate, in addition to being his subordinate at Goodyear. Both Flores and Galeano also submit that it was actually the plaintiffs who instigated the verbal jousting, calling the supervisors (who are of Honduran and Nicaraguan heritage) "arrow throwers," and constantly making fun of Mr. Flores for being "fat. " Goodyear served these affidavits, along with a copy of its Rule 11 motion, upon the plaintiffs and waited twenty-one days before filing the Rule 11 motion with the Court, as required by Rule 11 (c) (2) .

The plaintiffs responded by submitting the plaintiffs' answers to the defendant's interrogatory requests, in which the plaintiffs basically elaborate on the factual allegations included in the complaint about the racial slurs, misconduct, and hostile environment at Goodyear. The written statements made by the plaintiffs in response to discovery requests tend to support their pleadings, and the Court cannot conclude that this lawsuit is frivolous. Although the affidavits by Mr. Flores and Mr. Galeano are probative evidence against the plaintiffs claims, the parties' conflicting accounts of what happened simply demonstrate that there are fact disputes that, if resolved in favor of the plaintiffs, may allow them to prevail. In any event, the defendants have not met their relatively high burden of showing the lawsuit is so baseless in law or fact to justify Rule 11 sanctions.

And this motion was brought why?