Commercial Litigation and Arbitration

Rule 11 Sanctions Imposed for Suing a Dog — Hard to Prove “Meeting of the Minds”

Hammary v. Soles, 2013 U.S. Dist. LEXIS 40033 (M.D.N.C. Mar. 22, 2013):

Dyron Hammary has sued several law enforcement officers and a dog for civil rights violations arising out of a traffic stop and his subsequent arrest and imprisonment on later-dismissed cocaine charges. The complaint adequately alleges that the officer who stopped Mr. Hammary, searched his car, and arrested him discriminated against Mr. Hammary based on his race in violation of 42 U.S.C. § 1981 and committed Fourth Amendment violations actionable under 42 U.S.C. § 1983. The complaint also adequately alleges that another officer who interrogated Mr. Hammary after his arrest violated § 1981. As to those claims, Defendants' Rule 12(b)(6) motion to dismiss, (Doc. 16), should be denied; otherwise, the complaint fails to state a claim on which relief may be granted and the motion should be allowed. Defendants' motion for Rule 11 sanctions, (Doc. 22), should be granted to the extent it concerns Mr. Hammary's filing of claims against a police dog, but otherwise is taken under advisement pending a hearing.


Motion for Rule 11 Sanctions

I. The Claim Against Xena

Defendants move for sanctions to the extent Mr. Hammary has attempted to sue the police dog "Xena." This motion has merit.

Rule 11(b)(2) requires attorneys and pro se litigants to certify that the "claims, defenses, and other legal contentions" in their pleadings "are warranted by existing law or by a nonfrivolous argument." Fed. R. Civ. P. 11(b)(2). In practice, this means that attorneys and pro se litigants must "'stop-and-think' before initially making legal . . . contentions" and "conduct a reasonable inquiry into the law and facts before signing pleadings, written motions, and other documents." Fed. R. Civ. P. 11 advisory committee's note (1993); see also Bus. Guides, Inc. v. Chromatic Commc'ns Enters., 498 U.S. 533, 551 (1991) ("[Rule 11] imposes on any party who signs a pleading, motion, or other paper . . . an affirmative duty to conduct a reasonable inquiry into the facts and the law before filing . . . ." (emphasis added)). The "applicable standard is one of reasonableness under the circumstances." Id.

Even taking into consideration Mr. Hammary's pro se status, a reasonable inquiry into the applicable law should have revealed to him that his claims against Xena were frivolous. As set forth more fully in the discussion supra regarding Defendants' Rule 12(b)(6) motion, § 1981 and § 1982 require intentional discrimination, § 1983 applies only to persons acting under color of state law, and § 1985 and § 1986 require, respectively, a "meeting of the minds" between co-conspirators, Simmons, 47 F.3d at 1377 (4th Cir. 1995), and "knowledge" of such a conspiracy, 42 U.S.C. § 1986. It is ridiculous to suggest that a dog is a person or that a dog is capable of purposely discriminating, engaging in a conspiracy, or knowing about a conspiracy. Moreover, Mr. Hammary has failed to identify any North Carolina authority establishing or even suggesting that a dog has the capacity to be sued. [Ed. note: Should have at least cited Sierra Club v. Morton, 405 U.S. 727 (1972) (Douglas, J., dissenting).] On the contrary, the relevant case law treats dogs as personal property without such capacity.

In his response to the motion for sanctions, Mr. Hammary makes no attempt to justify his claims against Xena and ignores Defendants' arguments for sanctions regarding those claims. Given the complete absence of legal support for bringing suit against a dog and the complete absence of a nonfrivolous argument which would support suing a dog, sanctions are appropriate for violation of Rule 11(b)(2). It is possible that the allegations against Xena also violate Rule 11(b)(1), which prohibits filing court papers for an improper purpose, such as harassment, but there is not enough information before the Court at this time to conclude that is the case.

Sanctions imposed under Rule 11 must be "appropriate." Fed. R. Civ. P. 11(c)(1). Determination of an appropriate Rule 11 sanction is generally left to "the sound discretion of the trial court." Fahrenz v. Meadow Farm P'ship, 850 F.2d 207, 210, 211 (4th Cir. 1988). However, the sanction imposed must be "limited to what suffices to deter repetition of the [improper] conduct or comparable conduct by others similarly situated." Fed. R. Civ. P. 11(c)(4); see also Miltier v. Downes, 935 F.2d 660, 665 (4th Cir. 1991) ("The rule in this circuit is that in choosing a sanction, the guiding principle is that the least severe sanction adequate to serve the purposes of Rule 11 should be imposed." (internal quotation marks omitted)).

While Rule 11 itself does not enumerate factors that courts should consider in selecting an appropriate sanction, the Federal Rules Advisory Committee has identified several:

Whether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended to injure; what effect it had on the litigation process in time or expense; whether the responsible person is trained in the law; what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; what amount is needed to deter similar activity by other litigants: all of these may in a particular case be proper considerations.

Fed. R. Civ. P. 11 advisory committee's note (1993); see also 1-2 [Joseph] Sanctions: The Federal Law of Litigation Abuse § 16(D) (2012) (listing additional considerations). Monetary sanctions are a possibility. Fed. R. Civ. P. 11(c)(4). In determining the appropriate amount of a monetary sanction, courts should consider: "(1) the reasonableness of the injured party's requested fees and expenses; (2) the minimum necessary to deter; (3) the sanctioned party's ability to pay; and (4) other factors relating to the severity of the Rule 11 violation." In re Pitts, Nos. 91-2265+, 1992 WL 150190, at *1 (4th Cir. July 2, 1992) (citing In re Kunstler, 914 F.2d 505, 523 (4th Cir. 1990)).

Possible nonmonetary sanctions include reprimanding Mr. Hammary, Baldwin v. Boone, No. 86-7341, 1987 WL 36541, at *1 (4th Cir. Feb. 6, 1987); dismissing counts filed against defendants other than the police dog, see Gardendance, Inc. v. Woodstock Copperworks, Ltd., 230 F.R.D. 438, 450-51 (M.D.N.C. 2005) (citing Doyle v. Murray, 938 F.2d 33, 34 (4th Cir. 1991)) (describing dismissal as a "severe sanction generally reserved for egregious cases" and listing factors courts should consider in determining whether a sanction of dismissal is appropriate); requiring that depositions and other discovery proceedings be conducted in North Carolina; precluding Mr. Hammary from introducing certain evidence; and limiting the relief Mr. Hammary may seek, for example, by denying his claims for punitive damages or litigation expenses, see 1-2 Sanctions at § 16(B)(10) (noting courts' power and discretion to issue appropriate sanctions equivalent or less severe than dismissal of the action).

This matter has previously been set for hearing on March 28, 2013, at which time the Court will hear from the parties about the appropriate sanction.

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