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Harvey v. America's Collectibles Network, Inc.

United States District Court, E.D. Tennessee, Knoxville

December 12, 2014

ETHEL HARVEY, Plaintiff,
v.
AMERICA'S COLLECTIBLES NETWORK, INC., d/b/a JEWELRY TELEVISION, Defendants.

REPORT AND RECOMMENDATION

C. CLIFFORD SHIRLEY, Jr., Magistrate Judge.

This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and the referral of the presiding District Judge [Doc. 60].

Now before the Court is a Motion for Sanctions Under Fed.R.Civ.P. 11 and 28 U.S.C. § 1927 [Doc. 59], filed by the Plaintiff. This motion is now ripe for adjudication.[1] For the reasons stated herein, the undersigned will RECOMMEND that the motion be DENIED.

I. BACKGROUND

In her complaint, Plaintiff alleged violations of several federal statutes and state statutes including the Americans with Disabilities Amendment Act ("ADA"), 42 USC §12101 et seq. Plaintiff also asserted retaliatory discharge claims and Tennessee common law claims. On January 20, 2011, the Court entered an Order [Doc. 50], granting the Defendant's Motion for Summary Judgment. On February 23, 2012, the Court of Appeals for the Sixth Circuit entered an Order [Doc. 51], affirming the granting of summary judgment in favor of the Defendant.

On March 26, 2012, the Defendant filed a Motion for Attorney Fees and Expenses [Doc. 54], in which it moved the Court to award it fees and expenses as the prevailing party pursuant to the ADA. Defendant also filled a Bill of Costs. The Plaintiff filed a response in opposition to the request and Bill of Costs. [Doc. 55]. The Plaintiff argued that the Defendant's request for fees and expenses was time-barred because it was not filed within thirty (30) days of the Judgment entered by the Court on January 20, 2011. Additionally, Plaintiff argued that the request for fees and expenses was inconsistent with fundamental notions of fairness.

On May 8, 2012, the Plaintiff filed the instant Motion for Sanctions. In the Motion for Sanctions, Plaintiff moves the Court to award sanctions against the Defendant based upon the filing of the Motion for Attorney Fees and Expenses [Doc. 54]. Again, Plaintiff argues that the request for fees and expenses was time-barred and fundamentally unfair. On May 31, 2012, Defendant filed a timely response in opposition to the Motion for Sanctions [Doc. 63], in which it maintains that the Motion for Sanctions must be denied based upon a lack of proper service. On June 6, 2012, the Defendant filed a Notice of Withdrawal of Motion for Attorney Fees and Expenses and Bill of Costs [Doc. 64]. On June 8, 2012, Plaintiff filed a final reply in support of her requests for sanctions. [Doc. 65]. Plaintiff argues that, despite the withdrawal of the Motion for Attorney Fees and Expenses, an award of sanctions is appropriate.

II. POSITIONS OF THE PARTIES

The Plaintiff moves the Court to award sanctions, pursuant to Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927, based upon the signature of Defendant's counsel on Defendant's Bill of Costs and Motion for Attorney Fees and Expenses. The Plaintiff does not specify the monetary amount of the sanctions sought in her motion, though in an affidavit accompanying her motion, Plaintiff requests $4, 375.00.[2] In support of her request for sanctions, Plaintiff submits that, given the skill and knowledge of Defendant's attorney, "one can only presume [that] the requests are presented for an improper purpose within the meaning of Rule 11(b)(1) and/or the claims and other legal contentions are unwarranted and frivolous within the meaning of Rule 11(b)(2), or both." [Doc. 59 at 1]. In addition, Plaintiff argues that Defendant's counsel should be sanctioned pursuant to § 1927, because Defendant's counsel "unreasonably and vexatiously" multiplied these proceedings.

Plaintiff contends that the Motion for Sanctions was properly served pursuant to United States Mail. [Doc. 65]. Plaintiff argues that even assuming arguendo that Defendant's counsel did not receive a copy of the motion pursuant to the United States Mail, he still received a copy via facsimile and email. [Id.; Doc. 66]. Plaintiff maintains that her motion was properly served and that Defendant and its counsel cannot avail themselves of the safe-harbor provision of Rule 11 of the Federal Rules of Civil Procedure.

Defendant responds that Plaintiff's Motion for Sanctions is procedurally defective. Defendant concedes that defense counsel received a copy of the motion pursuant to email and fax, but Defendant maintains that Plaintiff did not serve a copy of the motion or accompanying letter by regular mail as required by Rule 5 of the Federal Rules of Civil Procedure. [Doc. 63 at 2]. The Defendant argues that the safe-harbor provision of Rule 11 had not expired at the time that it withdrew its Motion for Attorney Fees and Expenses and its Bill of Costs. Defendant maintains that the Motion for Sanctions should be denied as untimely and improper.

III. ANALYSIS

The Court will address the issues raised by the parties' filings in turn.

A. Sanctions Pursuant to Rule 11 of the Federal Rules of Civil ...


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