Commercial Litigation and Arbitration

Sanctions Inappropriate under Rule 37 If 37(a)(1) Meet-&-Confer Duty Unsatisfied — Rule 11 Sanctions Unavailable If Safe Harbor Ignored — District Court Not Authorized to Suspend Fed. R. Civ. P.

Bush v. Chancery Court, 2018 U.S. App. LEXIS 30239 (6th Cir. Oct. 25, 2018):

Thomas K. Bush, proceeding pro se, appeals the district court's order dismissing his complaint and denying several motions he filed in this case related to the probate proceedings concerning his father's estate. This appeal has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

In his complaint, Bush alleged that the defendants committed numerous violations of state and federal criminal laws and rules of conduct in relation [*2]  to state probate proceedings. He also filed multiple motions seeking, among other things, to suspend the Federal Rules of Civil Procedure and to impose sanctions. In a single order, the district court dismissed Bush's complaint without prejudice and denied each of his motions. This appeal followed.

HN1[ ] We review an order dismissing a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure de novo. U.S. Citizens Ass'n v. Sebelius, 705 F.3d 588, 597 (6th Cir. 2013). HN2[ ] To survive dismissal, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). A complaint must therefore allege facts that make it reasonable to infer that the defendant is liable for the claimed misconduct, as opposed to making unsupported legal conclusions or offering speculation in support of a claim. See id. at 679.

Bush's complaint lacks any viable claims, so we agree with the district court's decision to dismiss his complaint under Rule 12(b)(6). Bush principally alleged that the defendants had violated various state and federal criminal statutes, and he sought to impose criminal liability in this civil case. He failed to state a claim because HN3[ ] "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Town of Castle Rock v. Gonzales, 545 U.S. 748, 767 n.13, 125 S. Ct. 2796, 162 L. Ed. 2d 658 (2005) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973)) [*3] . He also claimed that certain attorney defendants violated Tennessee's Rules of Professional Conduct, butHN4[ ]  a violation of those rules "should not itself give rise to a cause of action against a lawyer." Tenn. Sup. Ct. R. 8, Preamble & Scope. Lastly, Bush claimed that certain defendants breached their fiduciary duties. Yet he failed to plead facts supporting those claims. For example, he did not allege what duties the defendants owed him or how those defendants violated their duties.

Bush does not specifically challenge the district court's denial of his miscellaneous motions. To the extent he seeks to challenge that portion of the district court's order, we affirm the district court's decision because none of his motions had any merit. To start, in his construed HN5[ ] motion for reconsideration, he did not show "(1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice." Louisville/Jefferson Cty. Metro Gov't v., L.P., 590 F.3d 381, 389 (6th Cir. 2009) (quoting Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App'x 949, 959 (6th Cir. 2004)). And his request to further amend his complaint would have been futile because, as the district court observed, his "proposed amendments fail[ed] to meet even the bare essentials of a plausible claim to relief." See, e.g., Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962) (recognizing "futility [*4]  of amendment" as reason to deny leave to amend). He also moved to suspend the Federal Rules of Civil Procedure in two separate motions, but the district court properly denied both of those motions because it was not authorized to suspend those rules and because those rules unquestionably apply to all civil proceedings. The district court also properly denied Bush's motion to add parties because simply adding parties—and not additional factual allegations—would still leave his complaint unable to state "a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Finally, in three different motions, Bush sought sanctions under Rules 11(b) and 37 of the Federal Civil Rules of Procedure. Yet he did not comply with Rule 11's "safe harbor" provision. See Ridder v. City of Springfield, 109 F.3d 288, 297 (6th Cir. 1997) ("[S]anctions under Rule 11 are unavailable unless the motion for sanctions is served on the opposing party for the full twenty-one day 'safe harbor' period before it is filed with or presented to the court . . . ."). Nor did he certify that he had "in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." Fed. R. Civ. P. 37(a)(1). So sanctions were not appropriate under either rule.

In conclusion, for all these reasons, we AFFIRM the [*5]  district court's order dismissing Bush's complaint and denying his various motions. We also DENY all pending motions.


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