J ESSE RAWLS, SR., and MARK Y. : No. 1:13-cv-2867 SUSSMAN, : : Plaintiffs, : Hon. J ohn E. J ones III : v. : : DR. SUSAN KEGERISE, : : Defendant. : MEMORANDUM & ORDER August 25, 2014 Presently before the Court is Defendants Motion for Sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure (Doc. 14), and, also, Plaintiffs Motion to Strike Defendants Motion for Sanctions (Doc. 15). For the reasons herein stated, we shall deny Defendants motion, effectively mooting Plaintiffs motion. I. BACKGROUND On November 25, 2013, Plaintiffs, members of the Susquehanna Township School District Board of Directors, filed a complaint against Defendant, the Superintendent of the Susquehanna Township School District, and two others, the Susquehanna Township School Board and the School District. (Doc. 1). In their 1 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 1 of 18 pleading, Plaintiffs alleged a deprivation of their First Amendment rights (Count I) and sought a declaratory judgment proclaiming Defendant's employment contract void (Count II), and also requested punitive damages. 1
On J anuary 21, 2014, Plaintiffs filed an Amended Complaint (Doc. 10), retaining Defendant as the sole adverse party. Again, Plaintiffs advanced a claim for violation of their First Amendment rights, alleging that Defendant prevented them from communicating with Susquehanna Township parents, students, teachers, taxpayers, and residents (Count I), and sought punitive damages (Count II). Relevantly, the Amended Complaint noted that Defendant's employment contract required that "[c]riticisms, complaints, and suggestions called to the attention of the school District shall be referred to the District Superintendent for study, disposition, or recommendation to the Board of School Directors as appropriate," and argued that, under color of this provision, Defendant interfered with their 1 On J anuary 15, 2014, a related matter was removed to our court from the Dauphin County Court of Common Pleas. See Kegerise v. Rawls, No. 14-cv-67. In that case, Superintendent Kegerise sought to enjoin Mr. Rawls and Mr. Sussman from participating in discussions at school board meetings regarding the instant matter (i.e., the federal litigation they had initiated). Dr. Kegerise filed an Emergency Motion to Remand, which we granted on the rationale that the two matters were insufficiently related to support supplemental jurisdiction. Also on that date, counsel for the School Board and District sent a letter to Plaintiffs notifying them of their intent to seek sanctions under Rule 11. (Doc. 14-3). The letter argued, among other things, that Plaintiffs First Amendment claim amounted to little more than a generalized grievance about perceived prerogatives as Board members and that their request for declaratory judgment lacked subject matter jurisdiction. (Id. pp. 1-2). The notice generally characterized that Plaintiffs lawsuit is so ill-conceived that it can only have been filed for a political, not legal purpose. (Id. p. 2). 2 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 2 of 18 rights to directly communicate with Township residents. (Doc. 10, 14-15). Plaintiffs stated that there is a single email address through which parents, students, teachers, and residents may correspond with school board members. (Id. 54). Under the single email address scheme, the superintendent has the absolute discretion to determine when an email will be distributed to directors or even if an email will be disseminated. (Id. 56). Plaintiffs believe that numerous emails directed to school board members were never forwarded to them by Defendant. (Id. 90). In a letter dated February 7, 2014 (Doc. 14-5), Attorney Kutulakis notified Plaintiffs of Defendant's intent to seek sanctions under Rule 11 of the Federal Rules of Civil Procedure, and outlined the reasons therefor, if the action was not discontinued. Plaintiffs voluntarily dismissed the action 25 days later, on March 4, 2014. (Doc. 13). On March 19, 2014, Defendant filed the instant Motion for Sanctions pursuant to Rule 11 (Doc. 14). In the Motion, Defendant alleges, among other things, that Plaintiffs lawsuit was motivated by improper political purposes and constituted an attempt to harass Defendant. On the same date, Plaintiffs filed a Motion to Strike Defendant's Motion for Sanctions, arguing that Defendant's 3 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 3 of 18 motion must be stricken for failure to comply with the procedural requirements of Rule 11(c)(2). (Doc. 15). The following day, we issued an Order (Doc. 16) prescribing an expedited briefing schedule for the sanctions motion and setting a hearing. The parties fully briefed the Motion (Docs. 18, 19, 20), and, in addition, Defendant submitted a supplemental supporting brief (Doc. 21). We held a hearing on April 22, 2014. At the hearing, Defendants proffer included various news articles, relevantly reflecting the following: Plaintiffs had voted against approving Defendants contract on April 22, 2013 (Ex. 9, P48); Plaintiffs intention to file the underlying lawsuit was announced to the media on October 31, 2013, days before a school board election (but weeks before it was actually filed) (Ex. 9, P14-P15); Plaintiffs counsel, Attorney Keisling, had intended to file the lawsuit on October 31, but decided to delay filing in order to gather more input from stakeholders and attorneys in the community, and also based on a request from counsel for Defendant, Attorney Kutulakis, and to make it clear that the lawsuit was not politically motivated (Ex. 9, P17-P18); on November 1, 2013, Plaintiffs and Attorney Keisling attempted to host a news conference with respect to the litigation at a district administration building, where, at the same time, District Solicitor Paul Blunt had called a meeting of school board members 4 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 4 of 18 but had excluded Plaintiffs (Ex. 9, P19); police were called to the administration building to respond to some sort of confrontation at the event (id.); at the time Plaintiffs filed their Amended Complaint in J anuary 2014, dropping the school board and district from the suit, they released a statement explaining that they were confident the court would have ultimately struck down the superintendents contract, but that the litigation had divid[ed] the School Board and hamper[ed] [their] ability to govern (Ex. 9, P89); they further explained that they were persisting in their case against Defendant to strike down the First Amendment violations of the superintendents contract (Ex. 9, P90); and, when they ultimately voluntarily dismissed their case against Defendant, Plaintiffs issued a statement that the reasons for filing this action have been corrected as result [sic] of community and media interest in the case and recent events as [o]ur community is now aware of the intimidating tactics used by Dr. Kegerises attorney, J ason Kutulakis, in an attempt to prevent District residents and taxpayers from communicating with their elected School Board Directors (Ex. 9, P137). Also at the hearing, the parties offered the testimony of Plaintiffs Rawls and Sussman and Kathy DelGrande, another member of the Susquehanna Township School Board. Plaintiff Rawls testified, among other things, that he never contacted the media concerning the underlying lawsuit and that his attorney 5 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 5 of 18 handled communications with the media. Plaintiff Rawls also stated that it was his lawyer who determined when to file the initial complaint, and Attorney Keisling stipulated on the record that he controlled the logistics of the litigation. Plaintiffs Rawls and Sussman both testified to their belief that Defendants contract was illegal and that their First Amendment rights had been violated. Ms. DelGrande primarily testified concerning the encounter of November 1, 2013, involving Defendant, Attorney Keisling, and Solicitor Blunt, among others, and she described Attorney Keislings demeanor as anxious and upset. 2 She also spoke to the districts email policy relevant to the superintendent. Following the hearing, the parties submitted additional briefing limited to the nature of the sanctions sought (Docs. 31, 32). II. LEGAL STANDARD Rule 11 is purposed to deter baseless filings in district court and thus . . . streamline the administration and procedure of the federal courts. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). In relevant part, the Rule provides that: by presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or 2 In addition, Defendant submitted video footage capturing the encounter, primarily to show Mr. Keislings aspect and tenor during the meeting. The Court has reviewed the submission and agrees that it reflects a strained and hostile environment and that Mr. Keisling appeared agitated. 6 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 6 of 18 later advocating it--an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. FED. R. CIV. P. 11(b). A court may impose sanctions where an attorney, law firm, or party violates the above provision. See FED. R. CIV. P. 11(c)(1). From a procedural standpoint, a party seeking sanctions must tender a motion for sanctions, describing therein the protested conduct, and must serve the motion on the opposing party before presenting it to the court. See FED. R. CIV. P. 11(c)(2). The opposing party then has a 21-day safe harbor period to withdraw or correct the challenged paper, thereby escaping sanctions. See id.; In re Schaefer 7 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 7 of 18 Salt Recovery, Inc., 542 F.3d 90, 99 (3d Cir. 2008). After the period has elapsed, the movant may file the motion with the court. See FED. R. CIV. P. 11(c)(2). Once a motion has been filed, a district court must review the protested representations for reasonableness under the circumstances, inquiring what was reasonable to believe at the time the filing was submitted. Dura Systems, Inc. v. Rothbury Investments, Ltd., 886 F.2d 551, 556 (3d Cir. 1989) (citations omitted). The court should consider a number of factors, including whether the filing was based on a plausible interpretation of the law. See id. At its essence, Rule 11 imposes on counsel a duty to look before leaping and may be seen as a litigation version of the familiar railroad crossing admonition to stop, look, and listen. Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986). In applying the objective standard of reasonableness, the wisdom of hindsight should be avoided. Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir. 1988). Although the Rule imposes a duty of reasonable inquiry as to both facts and law, it is not intended to chill an attorney's enthusiasm or creativity in pursuing factual or legal theories, Dura Systems, 886 F.2d at 556 (quoting FED. R. CIV. P. 11 (advisory committee notes)), and, in general, sanctions are appropriate only in the exceptional circumstance where a claim or motion is patently unmeritorious or 8 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 8 of 18 frivolous, Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 289 (3d Cir. 1991) (citation and internal quotation marks omitted). III. DISCUSSION Defendants Motion for Sanctions is predicated on her position that Plaintiffs pleading was presented for an improper purpose and, also, that their legal claims were not warranted by existing law. Plaintiffs counter that sanctions do not lie because, among other things, Defendant failed to comply with the procedural requirements of Rule 11. We first address Plaintiffs argument based on procedure. A. Whether Defendant satisfied Rule 11(c)(2)s procedural requirements As discussed above, Rule 11 provides for a safe harbor period, which is triggered by service of the motion for sanctions and purposed to allow amendment or withdrawal of the challenged paper. Thus, the Rule states that [t]he motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service . . .. FED. R. CIV. P. 11(c)(2). As a threshold matter, Plaintiffs contend that sanctions may not be imposed because Defendant did not serve the Motion upon Plaintiffs before filing it as required by Rule 11(c)(2), but rather, presented them with a letter. Defendant 9 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 9 of 18 argues that she substantially complied with the service requirement by tendering a letter to Plaintiffs describing the sanctionable conduct. (Doc. 14-5). The Third Circuit has not explicitly decided this issue. In a non-precedential opinion, the Third Circuit has indicated that service of a notification letter, rather than the motion for sanctions, may satisfy Rule 11's safe harbor provision. See In re Mondelli, 508 Fed. Appx. 131, 135 (3d Cir. 2012). However, in a subsequent published pronouncement, the Court observed that several courts of appeals have disagreed with Mondellis conclusion, ruling that a notification letter or other warning did not satisfy Rule 11's procedural requirements. See In re Miller, 730 F.3d 198, 204 n.5 (3d Cir. 2013) (citing, inter alia, Roth v. Green, 466 F.3d 1179, 1192 (10th Cir. 2006); Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998)). We are persuaded by the reasoning of the cases diverging from Mondelli and, therefore, join the numerous other courts that have held that informal notice of an imminent motion for sanctions does not satisfy Rule 11's procedural requirement. See, e.g., Roth, 446 F.3d at 1192 (notification letter); Barber, 146 F.3d at 710 (same); Soccer Shots Franchising v. Lookingland, No. 13-928, 2013 WL 5408642, at *2 (M.D. Pa. Sept. 25, 2013) (email correspondence); Gottschalk v. City & Cnty. of San Francisco, 964 F. Supp. 2d 1147, 1168-69 (N.D. Cal. 2013) (same); Bourdier v. Derm. & Aesthetics Inst., LLC, No. 11-237, 2013 WL 486971, 10 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 10 of 18 at *3 (M.D. La. Feb 6, 2013) (warnings in a Status Report, Rule 11 demand letter, and relevant claim for attorneys fees in counterclaim). See generally 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 1337.2 (3d ed.) (collecting cases). Significantly, the plain language of Rule 11 mandates service of the motion, see Roth, 466 F.3d at 1192; Barber, 146 F.3d at 710, and the Advisory Committee Notes reinforce a strict interpretation. Pertinently, the Advisory Committee Notes encourage the movants counsel to give informal notice to the other party, whether in person or by a telephone call or letter, . . . before proceeding to prepare and serve a Rule 11 Motion. FED. R. CIV. P. 11, Advisory Committee Notes, 1993 Amendments (emphasis added). As observed by the Tenth Circuit, this commentary clearly suggest[s] that warning letters . . . are supplemental to, and cannot be deemed an adequate substitute for, the service of the motion itself. Roth, 466 F.3d at 1192. In addition, the Advisory Committee Notes articulate the gravity of a motion for sanctions, emphasizing the protective function of the safe harbor provision in providing a formal warning to a party: [t]o stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the [rule] provides that the safe harbor period begins to run only upon service of the motion. FED. R. CIV. P. 11, Advisory 11 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 11 of 18 Committee Notes, 1993 Amendments (emphasis added); see also Roth, 466 F.3d at 1192 (The safe harbor provisions were intended to protect litigants from sanctions whenever possible in order to mitigate Rule 11's chilling effects, formalize procedural due process considerations such as notice for the protection of the party accused of sanctionable behavior, and encourage the withdrawal of papers that violate the rule without involving the district court. (citing 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 1337.2, at 722 (3d ed. 2004) (internal quotation marks and alteration omitted))). It would therefore wrench both the language and purpose of . . . the Rule to permit an informal warning to substitute for service of a motion. Barber, 146 F.3d at 710. As Defendant provided Plaintiffs with a warning letter and did not serve the actual motion upon the parties, we find that Defendant has failed to comply with the Rules requirements. On this basis alone, we could deny Defendants motion for sanctions. See Soccer Shots, 2013 WL 5408642, at *2 n.4. However, even if Defendant had fulfilled the procedural prerequisites, we additionally find that the motion for sanctions would fail on the merits. B. Whether Plaintiffs' claim was brought for an improper purpose (Rule 11(b)(1)) Defendant argues that Plaintiffs lawsuit was brought for improper political reasons and also to harass Defendant. Defendant notes that Plaintiffs announced 12 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 12 of 18 their intention to file an action mere days before the November 5, 2013, school board election, thereby positioning Plaintiff Rawls, who successfully won re- election, as the most anti-administration candidate. By delaying actual filing of the Complaint until November 25, 2013, Defendant observes that Plaintiffs avoided scrutiny of their factually and legally baseless causes of action until after the election was concluded. (Doc. 18, p. 5). In addition, Defendant advances that Plaintiffs tacitly admitted that their action was politically motivated by stating that the issues underlying the suit were resolved by community and media attention. In terms of harassment, Defendant alleges that the action served to escalate Plaintiffs general grievances about school district policy and that their averments relate to political questions on which they were outvoted on the school board. A plaintiffs alleged improper purpose must be objectively tested. See Lieb, 788 F.2d at 157. As to harassment, the filing must do more than annoy or vex the movant. Accord Zaldivar v. City of Los Angeles, 780 F.2d 823, 832 (9th Cir. 1986) (Harassment under Rule 11 focuses upon the improper purpose of the signer, objectively tested, rather than the consequences of the signer's act, subjectively viewed by the signer's opponent; finding sanctionable harassment where the plaintiffs filed successive complaints based on previously rejected propositions of law), abrogated on other grounds by Cooter & Gell, 496 U.S. 384. Courts are 13 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 13 of 18 likely to reject an allegation of impropriety where the underlying claim is determined to be reasonable and not frivolous. See, e.g., Flaherty v. Torquato, 623 F. Supp. 55, 59-60 (W.D. Pa. 1985). Examined objectively, we cannot conclude that Plaintiffs submissions to the Court were filed for an improper purpose. Even taking a broad view of this proceeding (and not focusing solely on the Amended Complaint, the pleading targeted by the Motion for Sanctions), we cannot deduce that the litigation preeminently served a political aim, especially considering that the first complaint was filed with the Court after Plaintiff Rawls was successfully reelected to the school board. To the extent Defendant alleges that the Amended Complaint was filed to harass, we certainly recognize that this litigation involves much antipathy, and that various allegations of the Amended Complaint casting Defendant and her counsel poorly are arguably excessive and immaterial. However, viewed dispassionately, Plaintiffs filings do not rise to the level of harassment, and it is notable that Defendants supporting argument alleges no more than an escalation of general grievances and disagreements amongst the parties. Moreover, our rejection of Defendants accusation of impropriety is further bolstered by the determination infra that Plaintiffs filing was not patently unmeritorious. C. Whether Plaintiffs claim was unwarranted by existing law and/or frivolous (Rule 11(b)(2)) 14 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 14 of 18 Defendant argues that the Plaintiffs cause of action is frivolous for the following reasons: (1) lack of standing; (2) failure to show a constitutional deprivation; and (3) failure to join a necessary party. As stated, a plaintiffs claim must be reasonable under the circumstances, and a party should not be sanctioned merely because his nonfrivolous argument is ultimately found to be unjustified. See Dura Sys., Inc., 886 F.2d at 556. Among other factors, a court should consider the plausibility of the legal position advocated in gauging the reasonableness of the pleading. See Mary Ann Pensiero, Inc., 847 F.2d at 95. 1. Standing Defendant argues that Plaintiffs lacked standing because the school board as a whole did not elect to undertake legal action against Defendant, and according to Defendant, members of collegial bodies do not have standing to file a suit which the body itself has declined to initiate. See Bender v. Williamsport Area School District, 475 U.S. 534, 535 (1986) (stating that a school board member may not step into the shoes of the board to perfect an appeal that the [board] itself has declined to take). Bender, upon which Defendant relies, appears distinguishable as that case involved a lone school board member seeking to file an appeal on behalf of the board as a whole. Moreover, it seems to us to be both logical and 15 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 15 of 18 appropriate that school board members should have standing to defend their own constitutional rights. Based on the above, Plaintiffs presumption that they had standing was not so unreasonable as to warrant sanctions. 2. Constitutional claim Defendant argues against the validity of Plaintiffs central claim that Defendant violated their First Amendment rights by interfering with direct communication between the school board and township residents. Defendant states that the policy that communications directed to the school district be filtered through the superintendent for her review and recommendation as memorialized in her contract was implemented by the school board and demonstrates no constitutional violation on her part. Even if Plaintiffs experienced a constitutional deprivation, Defendant argues that Plaintiffs waived their rights by agreeing to Defendants employment contract. Notably, Defendant characterizes Plaintiffs claims as frivolous for failure to state a claim upon which relief could be granted. (Doc. 20, p. 7). However, this, the measure for a motion to dismiss, is far more expansive and encompassing than the patently unmeritorious standard guiding our sanctions inquiry. As Defendant acknowledges by implication, although Plaintiffs claims may have been somewhat ill-conceived and vulnerable to 12(b)(6) dismissal, they were not 16 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 16 of 18 beyond reason. 3. Indispensable parties Here, Defendant argues that the School District was a necessary party to Plaintiffs action because, as a party to Defendants employment contract, it would be harmed by a ruling voiding or enjoining the enforcement of the contract. Again, based on Rule 11s high threshold, such an alleged procedural defect would not support sanctions and would be appropriately addressed by a motion to dismiss. Having determined that Defendants motion for sanctions fails for procedural noncompliance, and also on the merits, we need not discuss the nature of the sanctions available. Finally, inasmuch as Plaintiffs seek attorneys fees and costs incurred in defending against the Motion, see FED. R. CIV. P. 11(c)(2), they provide little meaningful argument demonstrating that such an allocation is justified, and we do not believe it is warranted. IV. CONCLUSION It cannot be denied that this case involves long-running and deep-seated pathology. Regrettably, the discord amongst the parties has embodied a divisive force within the Susquehanna Township School District, manifesting at times as outright hostility, and has undoubtedly had a deleterious effect on the larger 17 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 17 of 18 community, including parents and students. Moreover, the muckraking in this matter is not limited to the parties but has been exacerbated by counsel, as well. Yet, despite the bad blood and behavior outside of the courtroom, sanctions are inappropriate as applied to this litigation. At bottom, we do not find that Plaintiffs claims were patently unmeritorious or the product of an improper purpose. Nor do we find that Plaintiffs are entitled to their fees and costs. We will thus leave all parties where we found them, which is the just and proper result under the circumstances of this unfortunate fracas. NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. Defendants Motion for Sanctions (Doc. 14) is DENIED. 2. Plaintiffs Motion to Strike Defendants Motion for Sanctions (Doc. 15) is DENIED AS MOOT. s/ J ohn E. J ones III J ohn E. J ones III United States District J udge 18 Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 18 of 18