BOCA VIEW CONDOMINIUM ASSOCIATION, INC.

v.

LEPSELTER

MAGISTRATE JUDGE’S IMPOSITION OF RULE 11 SANCTIONS

This matter is before the Court on Plaintiff’s Counsels’ Objection to Magistrate Judge at docket entry 71, Plaintiff’s Counsels’ Amended Objection to Magistrate Judge at docket entry 75, and Plaintiff’s Objections at docket entry 73. The Court OVERRULES these objections for two reasons.

First, if the applicable standard of review of the Magistrate Judge’s imposition of Rule 11 sanctions is a determination whether the Magistrate Judge’s ruling was clearly erroneous or contrary to law, the Court finds that the Magistrate Judge’s ruling was not clearly erroneous or contrary to law. See 28 U.S.C. § 636 (permitting a district court judge to reconsider any pretrial matter decided by a magistrate judge that is clearly erroneous or contrary to law).

Second, if the applicable standard of review of the Magistrate Judge’s ruling is a de novo review,¹ the Court finds that it would have imposed Rule 11 sanctions for precisely the same reasons that the

First, counsel never sought the protection of Rule 11’s safe harbor provision, whether before or after the August 28 hearing. Instead of distancing themselves from the sanctionable

legal argument set forth in the Magistrate Judge’s Order, counsel pressed the same arguments at the hearing, waited until the Magistrate Judge entered his Report and Recommendation and then, in the form of an objection, pressed the same sanctionable legal argument as before while making irrelevant personal attacks on the Defendants in this case. E.g., DE 62 at 2-3 (“[C]ontrary to Magistrate Judge Matthewman’s perception, it is Defendants who have demonstated a decadelong, systematic . . . harrassment against [Plaintiff]. . . . Defendant[s’ counsel] had a relationship in representing other disgruntled unit owners and ‘straw people.’”).

Second, counsel had plenty of time (far in excess of Rule 11’s twenty-one day safe habor provision) both before and after the August 28 hearing to move to withdraw as counsel, amend the Complaint, or abandon sanctionable legal arguments. Counsel did not do so.

Third, the Court has closely reviewed the transcript of the August 28 hearing. DE 60. That transcript reflects that counsel did have notice that the Rule 11 motion applied to them:

Id. at 93. The transcript indicates that the Defendants served the Rule 11 motion upon counsel: Counsel for the Defendants: [T]he motion had been filed and a copy of the motion had already been provided to them before the formal appearance in the case.

Id. at 94; see also DE 76 at 5. The Rule 11 motion was specifically directed to “Plaintiff and Plaintiff’s counsel,” and it was based not only upon the Plaintiff’s filing of the Complaint, but also upon the “advancement” of the Complaint, which later-arriving counsel did of course do. DE 26 at 1, 30.

Fourth, it is immaterial that counsel began to represent the Plaintiff after the Complaint, motion to dismiss, and motion for sanctions were filed in this case. As one district court observed: It would be strange if the Court were to find that substituting counsel could not be held responsible for prior pleadings that they later advocate. This would allow for one set of attorneys to file a lawsuit that violated Rule 11, for those attorneys to withdraw their appearance, and then for the incoming attorneys to continue the lawsuit without sharing any of the responsibility for its lack of merit.

Vehicle Operation Techs. LLC v. Am. Honda Motor Co. Inc., 67 F. Supp. 3d 637, 654 (D. Del. 2014).3 Fifth, to the extent counsel now argues that, as a procedural matter, Defendants’ Rule 11 motion needed to be amended, needed to be re-served, or some other related ground for denial, such arguments were never raised before the Magistrate Judge.4 Pursuant to Williams v. McNeil,

Finally, counsel never moved to amend prior responses to include such arguments, for leave to file an independent response on behalf of counsel, or leave to file a sur-reply to the Rule 11 motion. Instead, counsel waited to see how the Magistrate Judge would tule, and filed nothing. Counsel’s failure to raise these arguments to the Magistrate Judge is not harmless error. By failing to make these arguments, the Magistrate Judge was unable to hear argument or take evidence on the issue, such as evidence of service or evidence of notice. Stated differently, counsel was sanctioned for pursuing groundless, needless litigation in federal court, but by failing to make their arguments before the Magistrate Judge, counsel has again needlessly prolonged litigation. The Court exercises its discretion not to consider newly-raised arguments the Magistrate Judge had no opportunity to consider, and for all of the foregoing reasons, the Court OVERRULES all objections to the Magistrate Judge’s order imposing sanctions. DONE AND ORDERED in Chambers, West Palm Beach, Florida, this 27th day of October, 2023. yf Jee² \

ROBIN L. ROSENBERG

UNITED STATES DISTRICPJUDGE

legally sanctionable argument. DE 60 at 93 (“We were still within the safe harbor, but we still had to advocate for the Cour expresses no opinion on the proper quantification of awardable fees, given counsel’s later appearance in this case, as that matter remains pending before the Magistrate Judge.