Cabell v. PettyCabell v. Petty
Charles J.L. Mangum, Lynchburg, Va., on brief, for appellees.
K.K. HALL, Circuit Judge:
Joan F. Cabell, administratrix of the estate of Charles Leslie Fitz, and certain other individuals instituted a civil action against the Commonwealth of Virginia, William G. Petty, Commonwealth Attorney for the City of Lynchburg, Virginia, and Harvey Gary Watson. The plaintiffs alleged the infliction of constitutional injury in violation of
I.
In December of 1982, Harvey G. Watson, Jr. was convicted of assault with a firearm in the Juvenile and Domestic Relations Court of Lynchburg, Virginia. At some time after sentencing, the weapon used by Watson to commit the assault, a ten-gauge shotgun, was apparently returned to him.1 On August 11, 1983, Watson used the shotgun to fire on various persons residing at 1525 Bedford Avenue in the City of Lynchburg. As a result of the attack, Charles Leslie Fitz was shot in thе back and died instantly. Walter W. Cabell and Kellie Fitz were wounded. Dominique L. Fitz was injured by flying glass caused by the shotgun blast.2 Watson was subsequently convicted of murder and malicious wounding.
On August 30, 1985, Petty filed an answer to the complaint and a motion to dismiss pursuant to
On September 3, 1985, the existence of defenses to the Cabell action was reiterated in a letter sent from Petty‘s counsel to Attorney Mangum. The letter also expressed Petty‘s intent to pursue a motion for attorneys’ fees under Rule 11 unless the case was voluntarily withdrawn by October 16, 1985.
The action was not withdrawn and argument on Petty‘s motion to dismiss took place on October 22, 1985. After listening to the oral argument by Petty‘s counsel, and without responding, plaintiff‘s counsel moved for a voluntary non-suit. On October 25, 1985, the district court dismissed the action without prejudice while reserving the defendant‘s right to request sanctions and fees.
Petty subsequently moved for the imposition of attorneys’ fees pursuant to Rule 11, contending that he and his attorney had expended 34.65 hоurs preparing for a frivolous case. Petty, therefore, requested an award of attorney‘s fees in the amount of $2,598.75. After hearing argument, the district court concluded that “[a]lthough the behavior of plaintiffs’ attorney certainly bordered on a Rule 11 violation,” the absence of any sign of extrinsic bad faith and the attorney‘s status as a sole practitioner rendered an award of fees inappropriate. The court, therefore, denied Petty‘s motion and directed that the action be stricken from the docket.
This appeal followed.
II.
On appeal, Petty contends that the district court incorrectly considered the subjective intent of plaintiff‘s attоrney in determining whether a Rule 11 violation had occurred. We find merit in this contention.
Rule 11 of the Federal Rules of Civil Procedure, as amended in 1983, states in pertinent part that:
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the bеst of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay оr needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney‘s fee.
From both the plain language of the rule itself and the notes of the Advisory Committee, it is clear that the rule imposes upon an attorney a duty to conduct a pre-filing examination of both the facts and the law before instituting legal process. While, as the Advisory Committee noted, the rule was not intended “to chill an attorney‘s creativity,” it was unquestionably expected to “streamline the litigation process by lessening frivolous сlaims or defenses.”
In concluding that the pleadings in this case only “bordered” on a Rule 11 violation, the district court stated that the attorney “may have intended to make a good faith argument for reversal of Pierson and Monell and then changed his mind....”4 The court also found the tactics used by plaintiff‘s counsel did not constitute harassment.
We must disagree with the district court‘s first conclusion while finding its second to be irrelevant to the essential inquiry. On the available record, we can see absolutely no objective indication that plaintiff‘s counsel еver intended to seek a modification of the law. Indeed, counsel‘s statements at oral argument indicate that the action was filed in a speculative effort to find someone financially liable for plaintiffs’ injuries before the statute of limitations expired.
Although the absence of deliberate “harassment” may be a consideration in choosing an appropriate sanction, it is not a factor in determining a violation. Rule 11 does not prohibit merely intentional misconduct. Inexperience, incompetence, willfulness or deliberate choice may all contribute to a violation. Schwarzer, Sanctions under the Nеw Federal Rule 11, A Closer Look, 104 F.R.D. 181, 201 (1985). The Advisory Committee noted that the amended rule set a standard “more stringent than the original good-faith formula.” It was expected, therefore, that a “greater range of circumstances” would trigger a violation.
We are left with the unavoidable conclusion that plaintiff‘s counsel violated Rule 11 by filing the action below. The weight of existing law overwhelmingly favored the defendants, while the record appears devoid of any factual or legal investigation conducted by plaintiffs’ counsel as an effort to formulate an alternative argument in favor of his clients.
It does not follow, however, that Petty is automatically entitled to an award of attorneys’ fees. While some sanction is required when an infraction occurs, the determination of what is “appropriate” is still a matter left to the sound discretion of the district court. In choosing a sanction “[t]he basic principle ... is that the least severe sanction adequаte to serve the purpose should be imposed.” Schwarzer, 104 F.R.D. at 201.5 On remand, many of the same factors erroneously considered by the district court in ruling on the initial motion for sanctions may be reconsidered at the proper stage of the process. We hold only that the district court must take some action in light of the сlear rule violation that will serve the essential goal of education and deterence underlying Rule 11.
III.
For the foregoing reasons, the judgment of the district court is reversed and the matter remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
BUTZNER, Senior Circuit Judge, dissenting:
I applaud the majority‘s restraint with respect to the award of attornеy fees to William G. Petty. Nevertheless, I dissent because even a reprimand is inappropriate. The district court properly held that the plaintiffs’ attorney did not violate Rule 11.
Rule 11 imposes liability at the time of signing. The attorney‘s signature certifies “his knowledge, information, and belief formed after reasonable inquiry.” The advisоry committee‘s notes, which envision the need for some prefiling inquiry, clearly state that “[t]he standard is one of reasonableness under the circumstances.” The notes urge the court to discover “what was reasonable to believe at the time the pleading ... was submitted,” explaining that the determination “may depend on such factors as how much time for investigation was available to the signer....”
In this case, plaintiff‘s attorney stated, before the district court, in his brief on appeal, and at oral argument that he filed to meet the statute of limitations. At the time of filing, the attorney had reasonable grounds to believe that Harvey Watson had wounded plaintiffs and killed their kin with a gun which the Virginia court or its officers had wrongfully returned to him after his conviction for unlawfully using.
The plaintiffs’ attorney based his action on
Although the plaintiffs’ attorney did not discuss the merits of his complaint at the hearing in the district court, the court recognized that he may have intended to make a good faith argument for modification of the law. The record supports the district court. Both the plaintiffs’ attorney‘s brief and oral argumеnt contain legal arguments for the application of qualified rather than absolute immunity for the prosecutor who conducted the trial after which a gun was returned to Watson in violation of a court order. These arguments have a sound basis in law. Distinguishing Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), which held that a prosecutor has absolute immunity when engaged in judicial activities, recent cases have held that a prosecutor only has a qualified immunity when carrying out administrative or investigative functions. See Kadivar v. Stone, 804 F.2d 635, 637 (11th Cir.1986). Furthermore, this court has held that a state probation officer‘s act which simply involved his obedience to a court order, was ministerial and, under Virginia law, not entitled to immunity. See Semler v. Psychiatric Institute of Washington, D.C., 538 F.2d 121, 127 (4th Cir.1976).
The advisory committee‘s notes emphasize that Rule 11 “is not intended to chill an attorney‘s enthusiasm or creativity in pursuing factual or legal theories.” Plaintiffs’ attorney‘s creativity in seeking to argue the theory of qualified immunity was squarely within the scope of Rule 11.
Additionally, to satisfy Rule 11 the attorney who signs a pleading certifies that, besidеs having a basis in fact and law, his action is not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless costs. Plaintiffs’ attorney cannot be faulted on this ground. He sought compensation for his clients, the innocent victims of murder and assault. Far from being improper, this рurpose reflects the lawyer‘s duty to pursue his clients’ cause and resolve doubts as to the bounds of the law in their favor. See Va.Code of Professional Responsibility EC7-3 (1983); Model Rules of Professional Conduct Rule 3-1 comment (1983).
Strong policy considerations support efforts to compensate the victims of crime. The General Assembly of Virginia has made the following declaration of legislative intent:
The General Assembly finds that many innocent persons suffer personal physical injury or death as a result of criminal acts or in their efforts to prevent crime or apprehend persons committing or attempting to commit crimes. Such persоns or their dependents may thereby suffer disability, incur financial hardships or become dependent upon public assistance. The General Assembly finds and determines that there is a need for governmental financial assistance for such victims of crime. Therefore, it is the intent of the General Assembly that aid, care and supрort be provided by the Commonwealth as a matter of moral responsibility for such victims of crime.
The district court gave careful consideration to the motion for sanctions. It clearly stated its findings and conclusions. They are well grounded in fact and law. Dissenting, I would affirm its judgment.