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Estate of Strong v. City of Northglenn

United States District Court, D. Colorado

December 14, 2018

THE ESTATE OF JAMES STRONG JR., LANHISHA RICHMOND, Individually and as Natural Parent of minors J.S. and T.S.R., MARCUS STRONG, and HOWARD MITCHELL JR., Plaintiffs,


          S. Kato Crews, United States Magistrate Judge.

         This Recommendation addresses Defendants Nicholas Wilson (“Wilson”) and Jason Schlenker's (“Schlenker”) Motion for Sanctions Pursuant to Fed.R.Civ.P. 11(c) (“Motion”), filed on June 19, 2018. [ECF. #81.] Plaintiffs did not file a response. The Motion was referred to the Magistrate Judge by Memorandum dated June 19, 2018. [ECF. #82.] Having reviewed the Motion, the entire case file, and the prevailing law, the Court RECOMMENDS the Motion be GRANTED and the false arrest claims against these Defendants be dismissed for failure to comply with Rule 11. The Court FURTHER RECOMMENDS an award of reasonable attorney's fees and costs to Wilson and Schlenker (collectively, “Defendants”) to be paid by Plaintiffs' attorney.


         This civil action arises out of the fatal shooting of James Strong, Jr. (“Strong”), by local police officers. On a night in May 2015, Strong, various of his family members, and a friend, were asleep in Strong's home when police officers (including Wilson and Schlenker) entered on a “no knock warrant.” [See ECF. #84 at p.2.] Strong picked up a gun and fired at what he believed to be an intruder entering his bedroom. The “intruder” was Wilson, who returned fire. [Id.] At some point, Schlenker entered the bedroom and repeatedly shot Strong. [Id.] Strong died from his injuries. [Id.] Following the shooting, police officers handcuffed and jailed the Plaintiffs, and took the minor children from the home and placed them in state custody. [Id.]

         Plaintiffs filed their Amended Complaint on August 15, 2017 [ECF. #33]. They asserted nine claims against the municipal and individual defendants. Pertinent to this Recommendation, Lanhisha Richmond (“Richmond”) and Howard Mitchell, Jr. (“Mitchell”) (collectively, “Plaintiffs”), brought false arrest claims against Wilson and Schlenker.[1] They alleged that Wilson and Schlenker “restricted their freedom of movement, imposing an unlawful [restraint] upon them, arresting them, and transporting them to the police station to be detained in a cell . . . in violation of [their] Fourth and Fourteenth Amendment” rights. [ECF. #33 at ¶¶141-49, 161-96.]

         During their respective depositions, [2] Richmond and Mitchell testified they did not know the identity of the officers who placed them in restraints and took them to the police station. [ECF. #81-1 (Richmond deposition); ECF. #81-2 (Mitchell deposition).] In addition, Wilson and Schlenker submitted affidavits stating they were not involved in the detention, transport, or questioning of Richmond, Mitchell, or the minor children.[3] [ECF. #81-3 (Wilson affidavit); ECF. #81-4 (Schlenker affidavit).]

         On June 19, 2018, Defendants moved to dismiss the false arrest claims as lacking factual support in violation of Fed.R.Civ.P. 11. [ECF. #81 at pp.4-5.] They also requested an award of reasonable attorney's fees incurred in filing the Motion and conducting discovery on these claims. [Id. pp.5-6.] When Plaintiffs failed to file a response to the Motion, this Court issued an Order to Show Cause as to why the Motion should not be granted. [ECF. #96.] Plaintiffs did not respond to the show cause order. Therefore, the Motion stands unopposed.


         Rule 11 provides that by presenting a pleading, written motion, or other paper, to the court, “an attorney…certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:” (1) the filing is not presented for any improper purpose; (2) the claims and legal contentions are warranted by existing law or a non-frivolous argument for the extension, modification or reversal of existing law; and, (3) “the factual contentions have evidentiary support, or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed.R.Civ.P. 11(b). See also Monument Builders of Greater Kansas City, Inc. v. Am. Cemetery Ass'n of Kan., 891 F.2d 1473, 1484-85 (10th Cir. 1989) (Rule 11 requires counsel to conduct a reasonable inquiry).

         Rule 11 establishes a standard of objective reasonableness. Adamson v. Bowen, 855 F.2d 668, 673 (10th Cir. 1988). The test for imposition of Rule 11 sanctions is whether counsel's conduct was reasonable under the circumstances of the case. Ridder v. City of Springfield, 109 F.3d 288, 293 (6th Cir. 1997). It does not require a finding of subjective bad faith on the part of the offending attorney. Cf. Scott v. Boeing Co., 204 F.R.D. 698, 700 (D. Kan. 2002) (noting that an attorney's subjective good faith belief in the merits of an argument will not suffice to satisfy the standard of objective reasonableness).

         The duty of candor established under Rule 11 exposes counsel to sanctions for continuing to advocate a position after learning that it ceases to have merit or is no longer tenable. Young v. Corbin, 889 F.Supp. 582, 585 (N.D.N.Y. 1995). Ultimately, Rule 11 seeks to curb abuses of the litigation process. Bus. Guides, Inc. v. Chromatic Commc'ns Enters., Inc., 498 U.S. 533, 542 (1991). A Rule 11 violation occurs where it is patently clear that a claim has absolutely no chance of success under the existing precedents, and where no reasonable argument can be advanced to extend, modify, or reverse the law as it stands. Harrison v. Luse, 760 F.Supp. 1394, 1399 (D. Colo. 1991).

         Further, Rule 11 is not intended to function as a fee-shifting provision or to reward parties who are victimized by litigation. See, e.g., Tidik v. Ritsema, 938 F.Supp. 416, 426 (E.D. Mich. 1996); Watson v. City of Salem, 934 F.Supp. 666, 667 (D.N.J. 1996).[4]

[I]n determining whether (and what) sanctions are appropriate, a court should consider: “(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; ... (3) the culpability of the litigant, ” [and] (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance.” Before a court orders dispositive sanctions, it should also consider the efficacy of lesser sanctions.

Grady v. Broderson, No. 13-cv-00752-REB-NYW, 2015 WL 1384371, at *4 (D. Colo. Mar. 23, 2015) (quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992)). “[T]he Ehrenhaus factors should be considered even in cases that do not involve dispositive sanctions.” Id. (citing Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90, 102 (D. Colo. 1996)).


         A. Whether Plaintiffs or their Counsel Violated Rule 11

         The first question is whether Plaintiffs violated Rule 11 by bringing and maintaining their false arrest claims against Wilson and Schlenker. For the reasons stated below in Section B, the Court finds that Plaintiff's counsel, ...

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