United States District Court, W.D. Oklahoma
TRIBAL COUNCIL OF THE CHEYENNE AND ARAPAHO TRIBES OF OKLAHOMA, et al. Plaintiffs,
BRIAN FOSTER, et al., Defendants.
PATRICK R. WYRICK UNITED STATES DISTRICT JUDGE
the Court is Defendant Eddie Hamilton's Motion for
Sanctions against Plaintiffs and Plaintiffs' counsel
filed December 28, 2017. On January 11, 2018, Plaintiffs filed a
response, and on January 18, 2018, Defendant filed a
requests that the Court impose sanctions upon Plaintiffs and
Plaintiffs' counsel based on alleged violations of
Fed.R.Civ.P. 11 and 28 U.S.C. § 1927, and pursuant to
the Court's inherent authority. Defendant has failed to
establish that such sanctions are appropriate.
Rule 11 sanctions are inappropriate because Defendant did not
comply with Rule 11's “safe harbor”
provision. That provision “requires a copy of
the actual motion for sanctions to be served on the
person(s) accused of sanctionable behavior at least
twenty-one days prior to the filing of that
delivered a draft of the Motion for Sanctions to
Plaintiffs' counsel on December 6, 2018, but not the
actual to-be-filed motion. Indeed, the Motion for Sanctions
that was subsequently filed on December 28, 2017, is
substantially different from the draft that was served on
Plaintiffs' counsel. Thus, the actual Motion for
Sanctions to-be-filed with the Court was not served on
Plaintiff and Plaintiffs' counsel twenty-one days prior
argues that this failure should be overlooked because the
Motion for Sanctions “contains no substantive changes
when compared to the draft” that was
served. Substantial compliance, however, is not
sufficient in this circuit. This is so because Rule 11
requires that “the motion must be served under Rule 5,
” and makes no allowance for service of a draft.
Counsel who served a draft of their summary judgment motion
on opposing counsel after filing a different final version
would undoubtedly not be in compliance with Rule 5.
A party who, in the Rule 11 context, serves a draft on
opposing counsel but then files a different document is
likewise not in compliance with Rule 5. This being so, Rule
11's requirement that “the motion must be served
under Rule 5” was not satisfied.
without this deficiency in service, Defendant's motion
does not establish that sanctions are appropriate. Defendant
contends Rule 11 was violated by Plaintiffs and
Plaintiffs' counsel in that (1) the factual contentions
contained in the Complaint lack evidentiary support, (2) the
legal contentions and requested relief are not supported by
law, and (3) the Complaint was filed for an improper
purpose. The first and third of these contentions
are predicated on facts that are not part of the record,
while the second is a legal disagreement that is not so
one-sided so as to warrant sanctions.
same reason, sanctions against Plaintiffs' counsel are
not justified under 28 U.S.C. § 1927. This statute
allows the Court to require an attorney who unreasonably or
vexatiously multiplies proceedings in a case to pay certain
costs, expenses, and attorney's fees caused by his or her
conduct. Defendant argues that Plaintiffs'
failure to dismiss the action as to Defendant upon
notification “that the claims . . . are meritless and
run afoul of Rule 11” “unreasonably and
vexatiously multiplied these proceedings and warrants
sanctions under § 1927.” Section 1927 sets out
“an extreme standard” and “a court should
make such an award only in instances evidencing a serious and
standard disregard for the orderly process of
justice.” Defendant's motion does not
establish that the conduct of Plaintiffs and their counsel
rise to such a level. The action was, after all, voluntarily
dismissed on January 8, 2018, shortly after the Motion for
Sanctions was filed. Sanctions against Plaintiffs'
counsel are not warranted under Section 1927.
sanctions are inappropriate pursuant to the Court's
inherent authority to discretionarily impose sanctions for
bad faith conduct. The gist of Defendant's argument for
sanctions on this basis is that alleged violations of Rule 11
and Section 1927 demonstrate bad faith and abuse of process
sufficient to warrant sanctions. Given that the Court has
concluded that Defendant has not established that either Rule
11 or Section 1927 sanctions are appropriate, Defendant's
inherent authority argument must therefore also fail.
Defendant's Motion for Sanctions is
IS SO ORDERED
 Dkt. 13.