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Simmone Graham, Aka Simmone v. City of South Lake Tahoe

May 24, 2011

SIMMONE GRAHAM, AKA SIMMONE
ADELYN CORAHAM, PLAINTIFF,
v.
CITY OF SOUTH LAKE TAHOE, SOUTH LAKE TAHOE POLICE DEPARTMENT, AND TERRY DANIELS
THE CITY OF SOUTH LAKE TAHOE, SANCTIONS CITY OF SOUTH LAKE TAHOE POLICE DEPARTMENT AND TERRY DANIELS, DEFENDANTS.



ORDER GRANTING DEFENDANTS' AMENDED MOTION FOR RULE 11

This matter comes before the Court on Defendants' City of South Lake Tahoe, South Lake Tahoe Police Department, and Terry Daniels ("City Defendants") Motion for Rule 11 Sanctions (Doc. #43) against Plaintiff's counsel, including William O'Mara, Stephen Scheerer, and the O'Mara Law Firm, P.C. The City Defendants request that the sanctions take the form of an award of attorneys' fees in the amount of $6,900.00. Plaintiff's counsel opposes the motion.*fn1

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's Complaint is predicated upon an incident which 3 occurred on August 31, 2008. The California Highway Patrol 4 ("CHP") stopped Plaintiff as she was driving and caused her to 5 undergo field sobriety testing. Plaintiff claims that she was 6 mistaken for an intoxicated person when she was actually suffering 7 from multiple sclerosis. Plaintiff was unable to successfully 8 pass field sobriety testing. She was arrested and taken into 9 custody at the El Dorado County jail located in the City of South Lake Tahoe. Plaintiff claims she was denied her medication for multiple sclerosis. Plaintiff sued eleven named defendants for discrimination based on the ADA, 42 U.S.C. § 1983, and Civil Code § 52.1, in addition to negligence and attorneys' fees. The Court granted all of the defendants' motions to dismiss without leave to amend (Doc. #44).

After being served with this lawsuit in late December 2010, counsel for City Defendants claim they continually contacted the O'Mara law firm requesting to be dismissed on the grounds that the City Defendants had no involvement in the stop, arrest, testing, or custody of Plaintiff. On January 31, 2011, counsel for City Defendants, Nira Feeley, contacted counsel for Plaintiff, Stephen Scheerer, via phone. Ms. Feeley requested that the City Defendants be dismissed from the lawsuit. Ms. Feeley provided Mr. Sheerer with a copy of the Declaration of Kathy Bolinger, Police Records Supervisor, showing that the City Defendants had no involvement in the incident giving rise to Plaintiff's claim. On February 10, 2011, City Defendants served Plaintiff's counsel with the motion for sanctions and on March 3, 2011 City Defendants filed the motion for sanctions with the Court. 3

II. OPINION

1. Legal Standard 6

1. Rule 11 Sanctions

Rule 11 requires that pleadings and motions contain 8 allegations and factual contentions which "have evidentiary 9 support," and the claims and other legal contentions must be "warranted by existing law or by a non-frivolous argument." Fed.R. Civ. P. 11 (b)(2)-(3). When, as here, a "complaint is the primary focus of Rule 11 proceedings, a district court must conduct a two-prong inquiry to determine (1) whether the complaint is legally or factually baseless from an objective perspective, and (2) if the attorney has conducted a reasonable and competent inquiry before signing and filing it." Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002) (internal quotations and citation omitted). The word "frivolous" is used "to denote a filing that is both baseless and made without a reasonable and competent inquiry." In re Keegan Management Co., Securities Litigation, 78 F.3d 431, 434 (9th Cir. 1996).

B. Claims for Relief

1. Rule 11 Sanctions

City Defendants argue that the Court should impose Rule 11 sanctions on Plaintiff's counsel because Plaintiff's counsel failed to conduct a reasonable and factual inquiry before filing the case and the Complaint only used the collective term "Defendants" when describing the various allegations, thus denying City Defendants the ability to ascertain the claims 2 against them. City Defendants also contend that Plaintiff's 3 counsel should be sanctioned because they maintained this 4 lawsuit against City Defendants after being made aware that City 5 Defendants had no involvement in the incident. Plaintiff's 6 counsel does not oppose City Defendants' arguments concerning 7 the frivolousness of the Complaint, but instead counters that 8 City Defendants failed to abide by the safe harbor rule. Though 9 the motion for sanctions was mailed on February 10, 2011, Plaintiff's counsel claims it was not received until February 14, 2011. Since the motion for sanctions was filed on March 3, 2011, which is less than 21 days after the alleged receipt of the motion, Plaintiff's counsel argues that City Defendants failed to properly comply with the safe harbor rule.

"The safe harbor provision gives an attorney the opportunity to withdraw or correct a challenged filing by requiring a party filing a Rule 11 motion to serve the motion 21 days before filing the motion." Retail Flooring Dealers of America, Inc. v. Beaulieu of America, LLC, 339 F.3d 1146, 1150 (9th Cir. 2003); see Fed. R. Civ. P. 11(c)(1)(A). Federal Rules of Civil Procedure 5(b)(2)(C) states that service may be made by "mailing [a paper] to the person's last known address -- in which event service is complete upon mailing." The Court finds that since City Defendants mailed the Motion for Rule 11 Sanctions to Plaintiff's counsel on February 10, 2011 (Doc. #43, Exh. A), and waited 22 days to file the motion on March 3, 2011, City Defendants properly complied with the safe harbor rule.

Furthermore, the Court finds that Plaintiff's action 2 against City Defendants was frivolous. The Complaint consisted 3 of vague and indiscernible allegations against City Defendants.

The allegations against City Defendants were baseless as City 5 Police records show that Plaintiff was not stopped, arrested, 6 tested or taken into City Defendants' custody. See Declaration 7 of Kathy Bolinger, Police Records Supervisor, City of South Lake Tahoe, Exh. B. The fact that City Defendants have no connection 9 to the incident in Plaintiff's Complaint demonstrates that Plaintiff's counsel failed to comply with their duty to investigate. Even if Plaintiff's counsel had limited time to investigate prior to filing the Complaint, they should have dismissed City Defendants from the suit after being contacted by City Defendants' counsel and being shown evidence that City Defendants had no involvement in the ...


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