Trial Practice and Procedure - Philip W. Savrin and Kelley R. Purdie

• Publication year: 2002

Trial Practice and Procedureby Philip W. Savrin^* and

Kelley R. Purdie^**

I. Introduction

This Article surveys the year 2001 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

II. Federal Civil Procedure

A. Rule 11 Sanctions and Pro Se Parties

In Massengale v. Ray,¹ the court considered an issue of first impression: Whether attorney fees could be awarded to a pro se defendant pursuant to Federal Rule of Civil Procedure ll.² The case involved two pro se litigants. The plaintiff, Massengale, filed a diversity action against several defendants and alleged wrongful acquisition of property. In the course of the litigation, Massengale amended his complaint twice and was allowed by the district court to refile his second amended complaint to clearly state a cause of action under either Florida law or federal law.³ Before the district court granted Massengale's motion to amend, however, defendant Konler filed a motion for Rule 11 sanctions, arguing that Massengale violated the rule because his pleadings: (1) were filed to harass and cause unnecessary delay; (2) were unsupported by law or evidence; and (3) because "Massengale continued to practice law despite having been disbarred."⁴

Prior to ruling on the Rule 11 motion, the district court dismissed the case with prejudice on Kolner's motion after Massengale failed to comply with the court's order to show cause. Kolner then filed a motion to reinstate his Rule 11 motion for sanctions, and the district court agreed, finding that the motion was based on conduct that occurred prior to the dismissal of the complaint. The district court thereafter adopted a magistrate judge's report and recommendation to award $25,000 in reasonable attorney fees for the time Kolner spent on the case, agreeing that it was the minimum amount that would adequately deter Massengale from future lawsuits.⁵

Massengale appealed the district court's decision, arguing that under Ray v. United States Department of Justice,⁶ Kolner was not entitled to receive attorney fees because he performed his own legal work.⁷ The Eleventh Circuit, reviewing the decision under an abuse of discretion standard, examined the policy behind Rule 11 sanctions.⁸ The court noted that the policy behind not awarding attorney fees in Ray was the overriding concern that victims retain independent counsel in civil rights cases, not simply because the plaintiff was pro se.⁹ The policy behind Rule 11 sanctions in general, however, is not to encourage independent counsel but rather to discourage "'dilatory or abusive tactics and help to streamline the litigation process by lessening frivolous claims or defenses.'"¹⁰

Despite holding that the rationale behind Rule 11 sanctions was deterrence and punishment rather than encouraging litigants to obtain independent counsel, the court nonetheless concluded that pro se litigants are not entitled to attorney fees under the rule.¹¹ Rule 11, the court noted, allows district courts to impose sanctions upon a party who violates the rule, including '"an order directing payment to the movant of some or all of the reasonable [attorney] fees and other expenses incurred as a direct result of the violation.'"¹² Because a pro se litigant cannot have incurred attorney fees as an "expense" of litigation, a district court cannot award that amount as a part of the sanction.¹³

B. Discovery Sanctions

Another Eleventh Circuit case in 2001 that dealt with the issue of sanctions was Lipscher v. LRP Publications, Inc.¹⁴ In Lipscher, the court addressed another issue of first impression: Whether Rule 37(b)(2), which allows district courts to impose sanctions for failure to comply with discovery orders, also authorizes sanctions for failure to comply with a discovery protective order.¹⁵ Ultimately the court held that because a "protective order is not an order to 'provide or permit discovery,'..。。。。。. such orders do not fall within the scope of Rule 37(b)-(2)."¹⁶

In Lipscher, Law Bulletin Publishing Company ("Law Bulletin") sued a competitor, LRP Publications, Inc. ("LRP"), alleging claims under the Lanham Act as well as state law claims of breach of contract and unfair competition. The action was removed to federal court whereupon the district court entered a directed verdict for LRP on the Lanham Act claim and the jury returned a verdict for Law Bulletin on the breach of contract claim with an award of nominal damages. Both sides appealed.¹⁷

In the underlying lawsuit, Law Bulletin accused LRP of covertly obtaining subscriptions of its jury verdict reporter by posing as a law firm and thereafter using the publication as the basis for its Illinois jury verdict newsletter.¹⁸ Discovery in the case was difficult because, as the district court noted, when competitors are engaged in litigation "it often appears that part of the strategy is to find out what the competitor is doing and using that for [one's] economic advantage in the future."¹⁹

As a result, the district court limited discovery to liability, stayed discovery on matters relating to damages, and granted a protective order to LRP regarding its implementation of third party jury verdict publications.²⁰

After the jury's verdict for Law Bulletin, a second round of discovery began to determine the issue of damages. After more discovery disputes, the district court granted LRP's motion for summary judgment on damages and awarded Law Bulletin nominal damages only.²¹

Law Bulletin appealed the district court's dismissal of its state law and Lanham Act claims as well as the nominal damage award. LRP filed a cross-appeal, arguing that the district court erred by refusing to dismiss the breach of contract claims based on Copyright Act preemption and by denying its request for attorney fees and costs as a prevailing party under the Lanham Act.²²

After affirming the district court's other holdings, the Eleventh Circuit addressed the issue of first impression: Whether Rule 37(b)(2) allows sanctions to be awarded for violations of protective orders.²³ The district court sanctioned Law Bulletin and its legal counsel for failure to return documents that were subject to a protective order, awarding LRP its attorney fees, costs, and expenses in connection with its motion for such sanctions.²⁴ Law Bulletin argued on appeal that: (1) the protective order was ambiguous; (2) Law Bulletin's failure to return documents was "substantially justified;" and (3) Rule 37 applies only to cases in which a party fails to comply with court-ordered discovery as opposed to a protective order.²⁵

The Eleventh Circuit's analysis on the issue began and ended with Law Bulletin's third argument invoking Rule 37.²⁶ Despite LRP's argument that the Advisory Committee Notes to Rule 37 indicated that protective orders were within the scope of Rule 37 sanctions, the court was not persuaded.²⁷ The court reasoned that "the Notes refer to Rule 26(c) [protective orders] only in connection with rules authorizing 'orders for discovery.'"²⁸ Because a "protective order is not 'an order to provide or permit discovery,'" the court held that "such orders do not fall within the scope of Rule 37(b)(2)."²⁹

III. Civil Rights

In Rayburn v. Hogue,³⁰ the Eleventh Circuit addressed yet another issue of first impression: Whether foster parents contracting with the Department of Family and Children's Services ("DFACS") are state actors for purposes of liability under 42 U.S.C. Sec. 1983.³¹ The case arose as a result of plaintiffs' allegations of sexual, mental, and physical abuse at the hands of their foster parents and other foster children in the home. Plaintiffs brought claims under Sec. 1983 against DFACS and the Hogues (the foster parents) for violations of their substantive and procedural due process rights under the Fifth and Fourteenth Amendments, as well as state law claims for breach of contract, negligence, and intentional infliction of emotional distress.³²

In their answer, defendants denied all claims and raised the defenses of qualified immunity, state sovereign and official immunity, and failure to state a claim. Furthermore, the Hogues argued that they were not state actors for Fourteenth Amendment purposes, and that even if they were, the law was not clearly established.³³ Defendants then moved for and were granted summary judgment "on all counts, with the exception of the Fourteenth Amendment substantive due process claim against the Hogues."³⁴ Even though the district court found that the Hogues were state actors, it found that they were not entitled to qualified immunity because: (1) the law was clearly established in regard to foster parents, and (2) there was a jury question about whether the Hogues had actual knowledge about the alleged abuse of plaintiffs.³⁵

On appeal the Eleventh Circuit addressed whether the Hogues were state actors for Sec. 1983 purposes.³⁶ Quoting Harvey v. Harvey,³⁷ the court noted that "'[o]nly in rare circumstances can a private party be viewed as a 'State actor' for section 1983...