Part 1 of 4
Opinion and Orderby Honorable Linda V. Parker
Timothy King, et al. vs. Gretchen Whitmer, et al., Civil Case No. 20-13134
August 25, 2021
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIMOTHY KING, et al.,
Plaintiffs,
v.
GRETCHEN WHITMER, et al.,
Defendants.,
and
CITY OF DETROIT, DEMOCRATIC NATIONAL COMMITTEE, MICHIGAN DEMOCRATIC PARTY, and ROBERT DAVIS,
Intervenor-Defendants.
_____________________________________/
Civil Case No. 20-13134
Honorable Linda V. Parker
OPINION AND ORDERThis lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here.
Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order.Here’s why. America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.
Specifically, attorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.This matter comes before the Court upon allegations that Plaintiffs’ counsel did none of these things. To be clear, for the purpose of the pending sanctions motions, the Court is neither being asked to decide nor has it decided whether there was fraud in the 2020 presidential election in the State of Michigan.1 Rather,
the question before the Court is whether Plaintiffs’ attorneys engaged in litigation practices that are abusive and, in turn, sanctionable. The short answer is yes.
The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.And this case was never about fraud—it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.While there are many arenas—including print, television, and social media—where protestations, conjecture, and speculation may be advanced, such expressions are neither permitted nor welcomed in a court of law. And while we as a country pride ourselves on the freedoms embodied within the First Amendment, it is well-established that an attorney’s freedom of speech is circumscribed upon “entering” the courtroom.2
Indeed, attorneys take an oath to uphold and honor our legal system. The sanctity of both the courtroom and the litigation process are preserved only when attorneys adhere to this oath and follow the rules, and only when courts impose sanctions when attorneys do not. And despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit,
one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way.3 As such, the Court is duty-bound to grant the motions for sanctions filed by Defendants and Intervenor-Defendants and is imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and its own inherent authority.I. Procedural HistoryOn November 3, 2020, a record 5.5 million Michigan residents voted in the presidential election, resulting in then-Former Vice-President Joseph R. Biden, Jr. securing over 150,000 more votes than then-President Donald J. Trump.4 By the following evening, President Biden had been declared the winner in the State.5
Even though Michigan law establishes an extensive procedure for challenging elections, see Mich. Comp. Laws §§ 168.831-.832, .879, Plaintiffs did not avail themselves of those procedures, as they conceded at the July 12, 2021 motion hearing before this Court (ECF No. 157 at Pg ID 5332-33).
Instead, at 11:48 p.m. on November 25, 2020—the eve of the Thanksgiving holiday—Plaintiffs (registered Michigan voters and nominees of the Republican Party to be presidential electors on behalf of the State) filed the current lawsuit against Michigan Governor Gretchen Whitmer, Michigan Secretary of State Jocelyn Benson, and the Michigan Board of State Canvassers. The following lawyers electronically signed the pleading: Sidney Powell, Scott Hagerstrom, and Gregory J. Rohl. (ECF No. 1 at Pg ID 75.) The Complaint listed the following attorneys as “Of Counsel”: Emily P. Newman, Julia Z. Haller, L. Lin Wood, and Howard Kleinhendler. (Id.)
On November 29, a Sunday, Plaintiffs filed, inter alia, an Amended Complaint (ECF No. 6) and an “Emergency Motion for Declaratory, Emergency, and Permanent Injunctive Relief and Memorandum in Support Thereof” (“Motion for Injunctive Relief”) (ECF No. 7). The same attorneys who electronically signed or were listed as “Of Counsel” on the initial complaint signed or were listed on the amended pleading. (ECF No. 6 at Pg ID 957.) The amended pleading also listed Brandon Johnson as additional “Of Counsel.” (Id.)
In their Amended Complaint, Plaintiffs alleged three claims pursuant to 42 U.S.C. § 1983: violations of (Count I) the Elections and Electors Clauses; (Count II) the Fourteenth Amendment Equal Protection Clause; and (Count III) the Fourteenth Amendment Due Process Clause. (ECF No. 6.) Under Count IV, Plaintiffs asserted violations of the Michigan Election Code. (Id.)
Underlying Plaintiffs’ claims were their contentions that Defendants (i) “failed to administer the November 3, 2020 election in compliance with the manner prescribed by the Michigan Legislature in the Michigan Election Code, [Mich. Comp. Laws] §§ 168.730-738” and (ii) “committed a scheme and artifice to fraudulently and illegally manipulate the vote count to make certain the election of Joe Biden as President of the United States.” (See ECF No. 7 at Pg ID 1840 (citing “Compl., Section 1”).) Plaintiffs asserted that their claims were supported by “the affidavits of dozens of eyewitnesses and the statistical anomalies and mathematical impossibilities detailed in the affidavits of expert witnesses.” (ECF No. 6 at Pg ID 873.) Plaintiffs attached hundreds of pages as exhibits to their pleadings, some of which included affidavits from individuals and reports from purported experts. (See ECF Nos. 6-1 to 6-30.) Most of these affidavits had been submitted by different lawyers in prior Michigan lawsuits challenging the 2020 presidential election. These other lawsuits include Costantino v. City of Detroit, No. 20-014780-AW (Wayne Cnty. Cir. Ct. filed Nov. 8, 2020) and Donald J. Trump for President, Inc. v. Benson, No. 1:20-cv-01083 (W.D. Mich. filed Nov. 11, 2020). Plaintiffs cited to these materials in support of the factual allegations in their Amended Complaint and Motion for Injunctive Relief.
Plaintiffs asked the Court to, inter alia, decertify the election results and order Defendants “to transmit certified election results that state that President Donald Trump is the winner of the election . . . .” (ECF No. 6 at Pg ID 955; ECF No. 7 at Pg ID 1847.) Plaintiffs maintained that this Court had to issue this relief by December 8, 2020, because, on that date, the results of the election would be considered conclusive. (See ECF No. 6 at Pg ID 890; ECF No. 7 at Pg ID 1846-47.)
By December 1, motions to intervene had been filed by the City of Detroit (“City”) (ECF No. 5), Detroit resident and Michigan voter Robert Davis (ECF No. 12), and the Democratic National Committee and Michigan Democratic Party (“DNC/MDP”) (ECF No. 14). As of that date, however, Plaintiffs had not yet served Defendants with the pleadings or the Motion for Injunctive Relief. Thus, on December 1, the Court entered a text-only order to hasten Plaintiffs’ actions to bring Defendants into the case and enable the Court to address Plaintiffs’ pending motions. Plaintiffs served Defendants on December 1 (ECF No. 21), and the Court thereafter granted the motions to intervene (ECF No. 28) and entered an expedited briefing schedule with respect to Plaintiffs’ Motion for Injunctive Relief (ECF No. 24).
On December 7, the Court issued an opinion and order denying Plaintiffs’ motion and thereby declining to grant Plaintiffs the relief they wanted, which the Court noted was “stunning in its scope and breathtaking in its reach” as it sought to “disenfranchise the votes of the more than 5.5 million Michigan citizens who . . . participat[ed] in the 2020 General Election.” (ECF No. 62 at Pg ID 3296.) The Court concluded that Plaintiffs’ lawsuit was subject to dismissal based on any one of several legal theories: (i) their claims were barred by Eleventh Amendment immunity; (ii) their claims were barred under the doctrine of laches; (iii) they lacked standing; (iv) their claims were moot; and (v) abstention was appropriate under the doctrine set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). (Id. at Pg ID 3301-24.) But the Court also concluded that Plaintiffs were not likely to succeed on the merits of their claims. (Id. at Pg ID 3324-28.)
As to Plaintiffs’ claim that Defendants violated the Elections and Electors Clauses by deviating from the requirements of the Michigan Election Code, the Court pointed out that Plaintiffs failed to “explain how or why such violations of state election procedures automatically amount to violations of the clauses” (id. at Pg ID 3324), and case law did not support Plaintiffs’ attempt to expand the Constitution that far (id. at Pg ID 3325). Thus,
the Court found, Plaintiffs’ Elections and Electors Clauses claim was “in fact [a] state law claim[] disguised as [a] federal claim.” (Id. at Pg. ID 3324.)
With respect to Plaintiffs’ attempt to establish an equal protection claim based on the theory that Defendants engaged in tactics to, among other things, switch votes for Former President Trump to votes for President Biden, the Court found the allegations to be based on nothing more than belief, conjecture, and speculation rather than fact. (Id. at Pg ID 3326-28.) As to the due process claim, the Court noted that Plaintiffs abandoned it. (Id. at Pg ID 3317 n.5.)
The day after the Court issued its decision, attorney Stefanie Lynn Junttila entered her appearance in this matter (ECF No. 63) and filed a Notice of Appeal to the “Federal Circuit” on behalf of Plaintiffs (ECF No. 64). The notice was updated on December 10 to reflect the proper appellate court (namely, the Sixth Circuit Court of Appeals).
On December 11, 2020, Sidney Powell, Stefanie Lynn Junttila, and Howard Kleinhendler filed a petition for writ of certiorari in the United States Supreme Court. (See ECF No. 68.) In the petition, when urging immediate Supreme Court review, Plaintiffs wrote: “Once the electoral votes are cast [on December 14, 2020] subsequent relief would be pointless.” (ECF No. 105-2 at Pg ID 4401.)
On December 15, 2020, the City served a letter (“Safe Harbor Letter”) and motion (“Safe Harbor Motion”) on Plaintiffs’ attorneys, threatening sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. (ECF No. 161-3; see also ECF No. 95 at Pg ID 4118-19 (acknowledging service of the motion).) Specifically, counsel for the City sent the Safe Harbor Letter and Safe Harbor Motion via electronic mail and first-class mail to Sidney Powell, Gregory Rohl, Stefanie Lynn Junttila, Scott Hagerstrom, L. Lin Wood, and Howard Kleinhendler. (ECF No. 161-3 at Pg ID 6058-67.)
In the meantime,
the Supreme Court did not rule on Plaintiffs’ petition for writ of certiorari by December 14.6 On December 22, Davis filed a motion seeking sanctions against Plaintiffs and their counsel pursuant to the Court’s inherent authority and 28 U.S.C. § 1927. (ECF No. 69.) On the same day, motions to dismiss were filed by Defendants (ECF No. 70), the DNC/MDP (ECF No. 72), and the City (ECF No. 73). The City’s motion to dismiss included four paragraphs discussing why Plaintiffs and Plaintiffs’ counsel should be sanctioned pursuant to § 1927.7 (Id. at Pg ID 3576-78.) And all three motions to dismiss reflected that concurrence had been sought, but not obtained, from Plaintiffs’ counsel. (See ECF No. 70 at Pg ID 69; ECF No. 72 at Pg ID 3434; ECF No. 73 at Pg ID 3545.) Plaintiffs’ response to Davis’ sanctions motion was due on January 5, 2021, and their responses to the motions to dismiss were due on January 12. See E.D. Mich. LR 7.1(e).
On January 3, Plaintiffs filed a motion seeking an extension of time (until January 19) to respond to Davis’ sanctions motion, citing counsel’s current assignments and the need for more time to prepare a response. (ECF No. 74 at Pg ID 3598.) The Court granted Plaintiffs’ request. (ECF No. 76.) On January 12, Plaintiffs sought an extension of time (also until January 19) to respond to the pending motions to dismiss, again citing the need for more time to research the claims advanced in the motions. (ECF No. 82.) The Court granted this request, as well.
On January 14, Plaintiffs filed what was docketed as a response to all three pending motions to dismiss, but the single response brief addressed only the § 1927 sanctions requested in the City’s motion to dismiss. (ECF No. 85.) On the same day, Plaintiffs filed notices voluntarily dismissing this case as to Defendants (ECF Nos. 86, 88, 90), the City (ECF No. 87), and the DNC/MDP (ECF Nos. 89, 91). Plaintiffs moved to voluntarily dismiss Davis a few days later. (ECF No. 92.) On January 26, 2021, the parties stipulated to the dismissal of the matter on appeal. (See ECF No. 101.)
In the meantime,
on January 5, the City filed a Rule 11 “Motion for Sanctions, for Disciplinary Action, for Disbarment Referral and for Referral to State Bar Disciplinary Bodies.” (ECF No. 78.) On January 28, Governor Whitmer and Secretary of State Benson (hereafter “the State Defendants”) filed a “Motion for Sanctions Under 28 U.S.C. § 1927.” (ECF No. 105.) All sanctions motions—including Davis’—were fully briefed thereafter.
On June 8, the Court scheduled a motions hearing for July 6 and, on June 17 ordered “[e]ach attorney whose name appears on any of Plaintiffs’ pleadings or briefs” to “be present.” (ECF No. 123.) On June 28, Plaintiffs sought to adjourn the hearing due to Junttila’s planned vacation (ECF No. 126), a request the opposing parties (except Davis) did not contest (ECF No. 126 at Pg ID 5201). The Court granted the request and eventually the hearing was scheduled for July 12. (ECF No. 147.) Prior to the hearing, Plaintiffs’ attorneys (except Junttila) retained counsel to represent them.8 (ECF Nos. 127-140, 148.)
The Court conducted an almost six-hour virtual hearing on July 12. At the beginning of the hearing, the Court explained that each question was directed to all attorneys and, if no other attorney commented or added to the initial response to a question, the Court would find that all other attorneys agreed with the answer placed on the record. (ECF No. 157 at Pg ID 5314.) At the end of the hearing, the Court indicated that the attorneys could file supplemental briefs and supporting affidavits (id. at Pg ID 5424, 5506-07, 5513, 5515, 5517), and thereafter entered an order setting deadlines for those briefs (see ECF No. 150). Supplemental briefs were subsequently filed (ECF Nos. 161-62, 164-65), as were responses thereto (ECF Nos. 166-171). No attorney filed an affidavit.
II. Sanctions MotionsThe State Defendants and Intervenor-Defendants rely on 28 U.S.C. § 1927, Federal Rule of Civil Procedure 11, and the Court’s inherent authority as the sources for sanctioning Plaintiffs and/or their counsel. In this section, the Court summarizes the arguments made in each sanctions motion. In the next section, the Court discusses the law that applies to each source of authority.
A. Governor Whitmer & Secretary of State BensonThe State Defendants seek sanctions against Plaintiffs’ counsel under § 1927 or, alternatively, the Court’s inherent authority.
The State Defendants contend that sanctions are appropriate pursuant to § 1927 for two reasons. “First, Plaintiffs’ counsel unreasonably and vexatiously multiplied the proceedings in this litigation by failing to dismiss the case when their claims became moot, which plainly occurred upon the vote of Michigan’s electors on December 14, if not earlier.” (ECF No. 105 at Pg ID 4337.) “[S]econd, Plaintiffs’ counsel knew or should have known that their legal claims were frivolous, but counsel pursued them nonetheless, even after the Court’s opinion concluding that Plaintiffs were unlikely to succeed on the merits of their claims for multiple reasons,” which included “the weakness of their legal claims and the lack of factual support.” (Id. at Pg ID 4367.) And, the State Defendants argue, sanctions pursuant to the Court’s inherent authority are appropriate because “Plaintiffs’ claims were meritless, their counsel should have known this, and their real motive in filing suit was for an improper purpose.” (Id. at Pg ID 4369-74.)
In a supplemental brief filed in support of their motion for sanctions on April 6, 2021,
the State Defendants also identify three specific allegations that they contend were not well-grounded in fact:
1. “‘[T]he absentee voting counts in some counties in Michigan have likely been manipulated by a computer algorithm,’ and [] at some time after the 2016 election, software was installed that programmed tabulating machines to ‘shift a percentage of absentee ballot votes from Trump to Biden.’”
2. “Smartmatic and Dominion were founded by foreign oligarchs and dictators to ensure computerized ballot-stuffing and vote manipulation to whatever level was needed to make certain Venezuelan dictator Hugo Chavez never lost another election.”
3. “The several spikes cast solely for Biden could easily be produced in the Dominion system by preloading batches of blank ballots in files such as Write-Ins, then casting them all for Biden using the Override Procedure (to cast Write-In ballots) that is available to the operator of the system.”(ECF No. 118-2 at Pg ID 4804-05 (citing ECF No. 6 at Pg ID 874 ¶ 5, 916-17 ¶ 124, 922 ¶ 143).)
B. City of DetroitThe City seeks sanctions against Plaintiffs and Plaintiffs’ counsel for violating Rule 11.
The City first argues that the Complaint was filed for an improper purpose, in contravention of Rule 11(b)(1). The City supports this assertion by pointing to (i) the hurdles that previously barred Plaintiffs’ success, including Eleventh Amendment immunity, mootness, laches, standing, and the lack of merit as to the claims under the Constitution and state statutory law; (ii) the lack of seriousness and awareness of deficiency evinced by Plaintiffs’ failure to serve Defendants before this Court hastened them via its December 1, 2020 text-only order; and (iii)
Plaintiffs’ counsel’s attempt “to use this Court’s process to validate their conspiracy theories,” “undermin[e] our democracy,” and “overturn[] the will of the people” as evinced by statements made by some of Plaintiffs’ attorneys. (ECF No. 78 at Pg ID 3636-43.)
The City also contends that Plaintiffs’ claims were not well-grounded in law, in contravention of Rule 11(b)(2). This is so, the City argues, not only because of Eleventh Amendment immunity, mootness, laches, and standing, but also because the factual allegations could not support Plaintiffs’ claims or the relief they requested. (Id. at Pg ID 3658-62.)
The City further contends that Plaintiffs’ allegations were not well-grounded in fact, in contravention of Rule 11(b)(3):
1. Plaintiffs alleged that “Republican challengers were not given ‘meaningful’ access to the ballot processing and tabulation at the Absent Voter Counting Board located in Hall E of the TCF Center,” knowing that the assertion lacked evidentiary support because it was rejected in Costantino, the state court case decided before Plaintiffs filed the Complaint (id. at Pg ID 3644 (citing Am. Compl. at ¶¶ 13, 42, 47, 57, 59-61));
2. Plaintiffs alleged that “Republican challengers were exclusively barred from entering the TCF Center,” knowing that the assertion was rejected in Costantino (id. at Pg ID 3645 (citing Am. Compl. at ¶¶ 62-63));
3. Plaintiffs alleged that some absentee ballots were “pre-dated,” knowing that the assertion was rejected in Costantino (id. at Pg ID 3645-46 (citing Am. Compl. at ¶¶ 88, 90));
4. Plaintiffs alleged that ballots were “counted more than once,” knowing that the assertion was both rejected in Costantino and “conclusively disproven by the Wayne County canvass” (id. at Pg ID 3646-47 (citing Am. Compl. at ¶ 94));
5. Plaintiffs alleged that a “software weakness” in Dominion machines “upended Michigan’s election results,” knowing that the “two instances of errors [to which Plaintiffs cite]—one in Antrim County and one in Oakland County (Rochester Hills)”—did not constitute evidentiary support for the allegation (id. at Pg ID 3647-49);
6. Plaintiffs “intentional[ly] lie[d]” by filing the partially redacted declaration of “Spider”—who Plaintiffs identified as “a former US Military Intelligence expert” and “former electronic intelligence analyst with the 305th Military Intelligence”—which was signed by Joshua Merritt, who never completed the entry-level training course at the 305th Military Intelligence Battalion and is not an intelligence analyst (id. at Pg ID 3651-52 (citing Am. Compl. at ¶¶ 17, 161));
7. Plaintiffs “intentional[ly] lie[d]” by filing the declaration of Russell James Ramsland, Jr., who claimed (i) that there were “reports of 6,000 votes in Antrim County that were switched from Donald Trump to Joe Biden and were only discoverable through a hand counted manual recount,” when “there were no hand recounts in Michigan as of that date”; (ii) “statistically improbable” voter turnouts, including a turnout of 781.91% in North Muskegon, where the publicly-available official results were known, as of election night, to be approximately 78%, and a turnout of 460.51% (or, elsewhere on the same chart, 90.59%) in Zeeland Charter Township, where it was already known to be 80%”; and (iii) that “‘ballots can be run through again effectively duplicating them,’” when there were “safeguards in place to prevent double counting of ballots in this way” (id. at Pg ID 3652-54 (emphasis in original)); and
9. Plaintiffs “intentional[ly] lie[d]” by filing the “analysis” of William M. Briggs, who relied on “survey” results posted in a tweet by Matt Braynard and the “survey” “misrepresents Michigan election laws”; “disregards standard analytical procedures”; contains “a baffling array of inconsistent numbers”; and includes “conclusions [that are] without merit” (id. at Pg ID 3654-58).The City maintains that monetary sanctions sufficient to deter future misconduct by counsel must include the amount counsel collected in their fundraising campaign to challenge the 2020 election, as well as the attorneys’ fees Defendants incurred to defend against Plaintiffs’ claims. (Id. at Pg ID 3662-63.) The City also seeks an injunction barring Plaintiffs and their counsel from filing future actions in this District without obtaining approval from a judicial officer and asks the Court to refer counsel for discipline and disbarment.9 (Id. at Pg ID 3664, 3666-69.)
C. DavisDavis seeks sanctions against Plaintiffs and their counsel pursuant to the Court’s inherent authority and § 1927, based on many of the same legal and factual deficiencies set forth by the State Defendants, the City, and this Court in its December 7 decision. (ECF No. 69.)
III. Applicable Law
A. Sanctions Pursuant to 28 U.S.C. § 1927“Section 1927 provides that any attorney ‘who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess of costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.’” Ridder v. City of Springfield, 109 F.3d 288, 298 (6th Cir. 1997) (quoting 28 U.S.C. § 1927).
The purpose of a sanctions award under this provision is to “deter dilatory litigation practices and to punish aggressive tactics that far exceed zealous advocacy.” Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006).
Section 1927 imposes an objective standard of conduct on attorneys, and courts need not make a finding of subjective bad faith before assessing monetary sanctions. Id. (citing Jones v. Cont’l Corp., 789 F.2d 1225, 1230 (6th Cir. 1986)).
A court need only determine that “an attorney reasonably should know that a claim pursued is frivolous.” Id. (quoting Jones, 789 F.2d at 1230). “Simple inadvertence or negligence, however, will not support sanctions under § 1927.” Salkil v. Mount Sterling Twp. Police Dep’t, 458 F.3d 520, 532 (6th Cir. 2006) (citing Ridder, 109 F.3d at 298); see also Red Carpet Studios, 465 F.3d at 646 (holding that “§ 1927 sanctions require a showing of something less than subjective bad faith, but something more than negligence or incompetence”). Ultimately, “[t]here must be some conduct on the part of the subject attorney that trial judges, applying collective wisdom of their experience on the bench, could agree falls short of the obligations owed by a member of the bar to the court . . . .” Ridder, 109 F.3d at 298 (quoting In re Ruben, 825 F.2d 977, 984 (6th Cir. 1987)).
B. Sanctions Pursuant to Rule 11(b) and (c)10Rule 11(b) reads, in part:
By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies to the best of the person’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new 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 . . . .11
Fed. R. Civ. P. 11(b) (emphasis added). Much of the italicized language was added to Rule 11 in 1993. See Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendment). Also added in 1993 was the provision in subsection (c) allowing for the sanctioning of attorneys other than presenters who are “responsible” for a violation of the rule. Id.; Fed. R. Civ. P. 11(c)(1). As the Advisory Committee Notes explain: “The revision permits the court to consider whether other attorneys in the firm, co-counsel, other law firms, or the party itself should be held accountable for their part in causing a violation.” Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendment).
Any sanction imposed pursuant to Rule 11 “must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.” Fed. R. Civ. P. 11(c)(4). This is because “the central purpose of Rule 11 is to deter baseless filings in district court.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). Thus,
“[e]ven if the careless litigant quickly dismisses the action, the harm triggering Rule 11’s concerns has already occurred[,]” and “the imposition of such sanctions on abusive litigants is useful to deter such misconduct.” Id. at 399.
Rule 11 “de-emphasizes monetary sanctions and discourages direct payouts to the opposing party.” Rentz v. Dynasty Apparel Indus., Inc., 556 F.3d 389, 395 (6th Cir. 2009) (quoting Ridder, 109 F.3d at 294 (citing Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendment))).
“The amended rule recognizes, however, that ‘under unusual circumstances deterrence may be ineffective unless the sanction not only requires the person violating the rule to make a monetary payment, but also directs that some or all of this payment be made to those injured by the violation.’” Id. (quoting Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendment)). In addition, a variety of possible sanctions are available under Rule 11, including, but not limited to, “requiring participation in seminars or other education programs; ordering a fine payable to the court; [and] referring the matter to disciplinary authorities.”12 Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendment).
In the Sixth Circuit, the test for imposing Rule 11 sanctions is “whether the individual’s conduct was objectively reasonable under the circumstances.” Nieves v. City of Cleveland, 153 F. App’x 349, 352 (6th Cir. 2005) (citing Jackson v. Law Firm of O’Hara, Ruberg, Osborne & Taylor, 875 F.2d 1224, 1229 (6th Cir. 1989)).
To determine objective reasonableness, the court must ask “whether the position advanced by a party was supported by a reasonable inquiry into the applicable law and relevant facts.” Advo Sys., Inc. v. Walters, 110 F.R.D. 426, 430 (E.D. Mich. 1986) (citations omitted). Whether a “reasonable inquiry” was conducted “is judged by objective norms of what reasonable attorneys would have done.” In re Big Rapids Mall Assoc., 98 F.3d 926, 930 (6th Cir. 1996). “Courts must not ‘use the wisdom of hindsight,’ but must instead test what was reasonable to believe at the time the pleading, motion, or other paper was submitted.” Gibson v. Solideal USA, Inc., 489 F. App’x 24, 29-30 (6th Cir. 2012) (quoting Merritt v. Int’l Ass’n of Machinists and Aerospace Workers, 613 F.3d 609, 626 (6th Cir. 2020)).
This objective standard is “intended to eliminate any ‘empty-head pure-heart’ justification for patently frivolous arguments.” Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendment); Tahfs v. Proctor, 316 F.3d 584, 594 (6th Cir. 2003) (
“A good faith belief in the merits of a case is insufficient to avoid sanctions.”).1. SignaturesPlaintiffs’ lawyers argue that no attorney can be sanctioned whose name appeared only in typewritten form; that no attorney besides Plaintiffs’ local counsel has appeared or signed a document filed in this matter; and that the Court lacks jurisdiction to sanction any attorney who did not personally appear or sign a document filed in this matter. (ECF No. 95 at Pg ID 4116-18.) Yet, the local attorneys assert that, although they signed the filings, they did not prepare them and thus should not be responsible for them. (See ECF No. 157 at Pg ID 5322-24, 5359, 5523; ECF No. 111-1 at Pg ID 4597 ⁋⁋ 2, 4, 6, 7, 9, 15.) As such, no attorney wants to take responsibility now that sanctions are sought for filing this lawsuit.In this age of electronic filing, it is frivolous to argue that an electronic signature on a pleading or motion is insufficient to subject the attorney to the court’s jurisdiction if the attorney violates the jurisdiction’s rules of professional conduct or a federal rule or statute establishing the standards of practice. As set forth earlier, Sidney Powell, Scott Hagerstrom, and Gregory Rohl electronically signed—at least—the Complaint, Amended Complaint, and Motion for Injunctive Relief. The remaining attorneys, except Junttila, were listed as “Of Counsel” on one or more of the pleadings.13 The cases Plaintiffs cite to support their argument that non-signing attorneys cannot be sanctioned were decided before the 1993 amendments to Rule 11. (See ECF No. 95 at Pg ID 4116-17.)
For purposes of Rule 11,
an attorney who is knowingly listed as counsel on a pleading, written motion, or other paper “expressly authorize[d] the signing, filing, submitting or later advocating of the offending paper” and “shares responsibility with the signer, filer, submitter, or advocate.”14 Morris v. Wachovia Sec., Inc., No. 3:02cv797, 2007 WL 2126344, at *9 (E.D. Va. 2007) (emphasis removed) (quoting Gregory P. Joseph, Sanctions the Fed. Law of Litig. Abuse, § 5(E)(1) at 110 (3d ed. 2000)). “The Court need not go through ‘mental gymnastics,’ as pre-1993 courts sometimes felt compelled to do, see Sanctions, § 5(E)(1) at 109, in order [to] hold [the attorney] to account under Rule 11.” Id.
Notably, because Rule 11 only requires a signature by “at least one attorney,” Fed. R. Civ. P. 11(a), documents are frequently presented to federal courts which list several attorneys as counsel but contain the signature of only one. Regardless, as amended in 1993, Rule 11 allows for sanctions “on any attorney . . . that violated the rule or is responsible for the violation.” Fed. R. Civ. P. 11(c)(1) (emphasis added). Moreover, Michigan Rule of Professional Conduct 8.5(a) reads:
“A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction.” (emphasis added).
By agreeing to place their names on pleadings and/or motions, counsel are responsible for those submissions and will be held accountable.15
2. L. Lin WoodAt the July 12 hearing, Wood maintained that the Court lacks jurisdiction to sanction him because he played no role in drafting the Complaint, did not read any of the documents with respect to the Complaint, was not aware of the affidavits attached to it, and did not give permission for his name to be specifically included in this action.
When the Court asked Wood if he gave permission to have his name included on the pleadings or briefs, Wood answered:I do not specifically recall being asked about the Michigan complaint, but I had generally indicated to Sidney Powell that if she needed a, quote/unquote, trial lawyer that I would certainly be willing and available to help her.[16]
In this case obviously my name was included. My experience or my skills apparently were never needed so I didn’t have any involvement with it.
Would I have objected to be included by name? I don’t believe so . . . .
(ECF No. 157 at Pg ID 5360.) The Court then asked Wood if he gave Powell permission to include his name on the filings in this matter, to which he responded:
I didn’t object to it, but I did not know – I actually did not know at the time that my name was going to be included, but I certainly told Ms. Powell in discussions that I would help her if she needed me in any of these cases, and in this particular matter apparently I was never needed so I didn’t have anything to do with it.
(Id. at Pg ID 5360-61.)
Wood then denied being served with the motion for sanctions and stated that he was present only at the hearing because the Court required him to be there. (Id.) According to Wood, he only discovered that he had been included as counsel for Plaintiffs in this matter when he saw a newspaper article about the sanctions motion: “I didn’t receive any notice about this until I saw something in the newspaper about being sanctioned.” (Id. at Pg ID 5362, 5366 (emphasis added).)
When the Court turned to Powell and asked whether she told Wood his name was being placed on the pleading, Powell first answered:My view, your honor, is that I did specifically ask Mr. Wood for his permission. I can’t imagine that I would have put his name on any pleading without understanding that he had given me permission to do that.
(Id. at Pg ID 5371.) Powell then suggested that perhaps there was “a misunderstanding” between her and Wood.17 (Id.) And Kleinhendler did not recall whether he spoke to Wood before Wood’s name was included on the pleading. (Id.)
The Court does not believe that Wood was unaware of his inclusion as counsel in this case until a newspaper article alerted him to the sanctions motion filed against him and this is why.First, the City’s motion for sanctions was filed on January 5, 2021. (ECF No. 78.) At no time between that date and the July 12 hearing did Wood ever notify the Court that he had been impermissibly included as counsel for Plaintiffs in this action. Almost a month before the motion hearing, the Court entered an order requiring “[e]ach attorney whose name appears on any of Plaintiffs’ pleadings or briefs” to be present at the hearing. (ECF No. 123.) Wood still did not submit anything to the Court claiming that his name was placed on those filings without his permission.
No reasonable attorney would sit back silently if his or her name were listed as counsel in a case if permission to do so had not been given.
Second, Wood is not credible. 18 He claims that he was never served with the City’s motion for sanctions; however, counsel for the City represents that the motion was sent to Wood via e-mail and regular mail. (ECF No. 157 at Pg ID 5363-64.) Kimberly Hunt, the office manager for the City’s attorneys, affirms in an affidavit that she mailed via First Class U.S. Mail a copy of the Safe Harbor Letter and the Safe Harbor Motion to Wood, among others, on December 15, 2020, and that no copies were returned as undeliverable. (ECF No. 164-3 at Pg ID 6393 ¶¶ 5, 8.) And despite being told that he had the opportunity to attach an affidavit to his supplemental brief in order to put his oath behind his factual assertions (see ECF No. 157 at Pg ID 5517), Wood surprisingly chose not to do so.19, 20
More importantly, Wood’s social media postings undermine his current assertions, as do his statements in other court proceedings. As discussed during the July 12 hearing,
on the day the City e-mailed copies of the Safe Harbor Letter and Safe Harbor Motion to Plaintiffs’ counsel, Wood tweeted a link to an article containing a copy of the motion, stating “[w]hen you get falsely accused by the likes of David Fink and Mark Elias . . . in a propaganda rag like Law & Crime, you smile because you know you are over the target and the enemy is runningscared [sic]!” (ECF No. 164-6 at Pg ID 6424; ECF No. 157 at Pg ID 5369-70.)
On January 5, 2021, the day the City filed the motion, Wood tweeted a link to an article with the motion, stating that it was “unfair” for the City to seek sanctions against him. (ECF No. 164-7 at Pg ID 6426.) In a federal courtroom in the Eastern District of New York on January 11, Wood acknowledged that the City was “trying to get [him] disbarred.” (ECF No. 164-12 at Pg ID 6506.)
Even more importantly, prior to the July 12 hearing, Wood took credit for filing this lawsuit.21 In a brief submitted in the Delaware Supreme Court, Wood claimed, through his counsel:
[Wood] represented plaintiffs challenging the results of the 2020 Presidential election in Michigan and Wisconsin. . . . In the days and weeks following the [General Election of 2020], Wood became involved in litigation contesting the election’s results or the manner votes were taken or counted in critical “swing states.” Among those cases in which Wood became involved were lawsuits in Wisconsin, Michigan, and Wood’s own suit in the State of Georgia.
(ECF No. 164-13 at Pg ID 6525-26 (emphasis added) (internal citation omitted).)
These statements are binding on Wood. See K.V.G. Props., Inc. v. Westfield Ins. Co., 900 F.3d 818, 822 (6th Cir. 2018) (citing Fed. R. Evid. 801(d)(2)) (noting that
pleadings, which are judicial admissions, “are binding legal documents that can be admitted as evidence against that party in subsequent proceedings”).22
For these reasons, while Wood now seeks to distance himself from this litigation to avoid sanctions,
the Court concludes that he was aware of this lawsuit when it was filed, was aware that he was identified as co-counsel for Plaintiffs, and as a result, shares the responsibility with the other lawyers for any sanctionable conduct.3. Emily Newman & Gregory RohlNewman contends that she had a limited role in this lawsuit, having “not play[ed] a role in drafting the complaint” and spending “maybe five hours on [the matter]” “from home.” (ECF No. 157 at Pg. ID 5317-18, 5324.) Therefore, Newman argues, she should not be subject to sanctions.
By placing her name on the initial and amended complaints, Newman presented pleadings to the Court asserting that Defendants committed constitutional and state law violations. Newman does not suggest that her name was included without her permission. In addition, Newman does not cite case law suggesting that an attorney may not be sanctioned under Rule 11 or any other source of sanctions authority if the time spent on the relevant lawsuit does not surpass an unidentified threshold. (See generally ECF No. 168.) And Newman’s responsibility for any Rule 11 violation is not diminished based on where those working hours were spent (particularly during a global pandemic when many individuals were working remotely from home). See Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendment) (“[S]anction[s] should be imposed on the persons—whether attorneys, law firms, or parties—who have violated the rule or who may be determined to be responsible for the violation. . . . The revision permits the court to consider whether other attorneys in [a] firm, co-counsel, other law firms, or the party itself should be held accountable for their part in causing a violation,” even if they were not “the person actually making the presentation to the court.”); see Morris, 2007 WL 2126344, at *9. So long as the attorney bears some responsibility, the attorney may be sanctioned. Fed. R. Civ. P. 11(c)(1).
In an affidavit filed in this case,
Rohl stated that at “approximately 6:30 PM” on the day this lawsuit was filed, he “was contacted by an associate who asked Rohl if he would assist in litigation involving alleged election fraud in Michigan.” (ECF No. 111-1 at Pg ID 4597.) He thereafter received a copy of “the already prepared” 830-page initial complaint and Rohl “took well over an hour” to review it. (Id.) “[M]aking no additions, deletions or corrections” to the Complaint (id. at Pg ID 4598), Rohl had his secretary file it at 11:48 p.m. (Id. at Pg ID 4597; ECF No. 1.)
To the extent Rohl asserts he should not be sanctioned because he read the pleading only on the day of its filing, the argument does not fly. Rule 11(b) “obviously require[s] that a pleading, written motion, or other paper be read before it is filed or submitted to the court,” Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendment), and the Court finds it exceedingly difficult to believe that Rohl read an 830-page complaint in just “well over an hour” on the day he filed it. So, Rohl’s argument in and of itself reveals sanctionable conduct. Rule 11(b) also explains that, by presenting a pleading to the court, an attorney certifies that “to the best of the person’s knowledge, information, and belief, formed after a reasonable inquiry under the circumstances,” the complaint is not being filed for an improper purpose and is well-grounded in law and fact. Fed. R. Civ. P. 11(b) (emphasis added). The Court finds it even more difficult to believe that any inquiry Rohl may have conducted between the time he finished reading the Complaint and 11:48 p.m. could be described as a “reasonable” one. But also, Rohl cannot hide behind his co-counsel. As a signer of the complaints, Rohl certified to the Court that the claims asserted were not frivolous. Moreover, because his co-counsel were not admitted to practice in the Eastern District of Michigan, the complaints could not have been filed without Rohl’s signature. See E.D. Mich. LR 83.20(f)(1), (i)(1)(D)(i). Therefore, to the extent Rohl contends that he was only helping co-counsel, he still failed to fulfill his obligations as an officer of the court.
4. Safe Harbor RequirementAt least 21 days before submitting a Rule 11 motion to a court, the movant must serve “[t]he motion” on the party against whom sanctions are sought and the motion “must describe the specific conduct that allegedly violates Rule 11(b).” Fed. R. Civ. P. 11(c)(2). As indicated above, the City served a copy of its Rule 11 motion on Plaintiffs’ counsel at least 21 days before it was filed.23 Plaintiffs argue that the City failed to comply with this “safe harbor” provision because the brief in support of the motion, which was filed later, was not included. (See ECF No. 95 at Pg ID 4118-19; ECF No. 161 at Pg ID 5805-06.) According to Plaintiffs, the City’s motion “makes only conclusory statements and blanket assertions regarding the alleged violations of Rule 11 and fails altogether to ‘describe the specific conduct that allegedly violates Rule 11(b).’” (ECF No. 95 at Pg ID 4119 (quoting Fed. R. Civ. P. 11(c)(2)).)
Rule 11, however, requires service of only “[t]he motion” to trigger the commencement of the 21-day safe harbor period. See Fed. R. Civ. P. 11(c)(2) (“The motion must be served . . . .”); see also Star Mark Mgmt. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 682 F.3d 170, 176 (2d Cir. 2012) (citing Ideal Instruments, Inc. v. Rivard Instruments, Inc., 243 F.R.D. 322, 339 (N.D. Iowa 2007)) (finding that the defendant’s delivery of its sanctions motion met the procedural requirements of the safe harbor provision of Rule 11(c)(2) despite not serving at that time supporting affidavits or a memorandum of law); Burbidge Mitchell & Gross v. Peters, 622 F. App’x 749, 757 (10th Cir. 2015) (quoting Star Mark, 682 F.3d at 176 and “join[ing] the Second Circuit in declining ‘to read into the rule a requirement that a motion served for purposes of the safe harbor period must include supporting papers such as a memorandum of law and exhibits’”). As Plaintiffs’ attorneys correctly point out (see ECF No. 161 at Pg ID 5805-06), the Local Rules for the Eastern District of Michigan require a motion to be accompanied by a brief, see E.D. Mich. LR 7.1(d)(1)(A), and judges in this District strike motions not complying with this requirement, see, e.g., Williams Huron Gardens 397 Trust v. Waterford Twp., No. 18-12319, 2019 WL 659009, at *1 (E.D. Mich. Jan. 26, 2019). But this speaks to when a motion is filed. Moreover, the issue here is not whether the City complied with the District’s local rules; rather, it is whether the City satisfied Rule 11’s safe harbor requirements.
The Safe Harbor Motion the City served on Plaintiffs’ counsel on December 15, 2020, “describe[s] the specific conduct that allegedly violates Rule 11(b).” Fed. R. Civ. P. 11(c)(2). Specifically, the City asserted violations of subdivisions (b)(1)-(3) of the rule:
1. “Initiat[ing] the instant suit for improper purposes, including harassing the City and frivolously undermining ‘People’s faith in the democratic process and their trust in our government.’ . . .
[U]nderst[anding] that the mere filing of a suit (no matter how frivolous) could, without any evidence, raise doubts in the minds of millions of Americans about the legitimacy of the 2020 presidential election.” (ECF No. 161-3 at Pg ID 6060 (quoting ECF No. 62 at Pg ID 3329-30).)
2. Asserting “causes of action . . . in the Complaints (ECF Nos. 1 and 6), Emergency Motion for Declaratory, Emergency, and Permanent Injunctive Relief and Memorandum in Support Thereof (ECF No. 7), and Emergency Motion to Seal (ECF No. 8) [that] were frivolous and legally deficient under existing law and because Plaintiffs failed to present any non-frivolous arguments to extend, modify, or reverse existing law.” (ECF No. 161-3 at Pg ID 6061.) The City then went on to detail the legal deficiencies as to Plaintiffs’ Elections and Electors Clauses, Equal Protection Clause, and Due Process Clause claims, and further argued that Plaintiffs lacked standing and their claims were moot and barred by laches. (Id. at Pg ID 6061-63.)
3. Raising “factual contentions . . . in the complaints and motions [which were] false.” (Id. at 6063.) The City wrote further: “The key ‘factual’ allegations from the supposed fact witnesses, some of whom attempt to cloak their identities while attacking democracy, have been debunked. The allegations about supposed fraud in the processing and tabulation of absentee ballots by the City at the TCF Center have been rejected by every court which has considered them.” (Id. at Pg ID 6064.)
Plaintiffs’ attorneys maintain that the City’s motion was deficient because it “did not cite a single case or fact supporting [its] arguments” (ECF No. 161 at Pg ID 5806) and “fail[ed] to identify any specific factual allegation or witness that lacks evidentiary support” (ECF No. 95 at Pg ID 4119). Plaintiffs’ attorneys do not identify any authority requiring case citations in a Rule 11 motion to satisfy the safe harbor requirements.24 Moreover, the failure to identify specific facts or witnesses has no bearing on the adequacy of the motion as to the claimed violations of Rule 11(b)(1) or (2).
And as to the claimed violations of Rule 11(b)(3), the motion was specific as to the violative conduct: All of the allegations discussed in the Rule 11(b)(3) analysis below (with the exception of one) concern supposed fraud in the processing and tabulation of absentee ballots by the City at the TCF Center (see infra 68-78)—just as the City specifically identified. And the one exception concerns a key factual allegation that was debunked in Costantino. (See ECF No. 31-15 at 2440-41.) Moreover, in the Safe Harbor Motion, the City expressly refers to its response to Plaintiffs’ Motion for Injunctive Relief “for a detailed debunking of Plaintiffs’ baseless factual contentions.”25 (ECF No. 161-3 at Pg ID 6064 (citing ECF No. 39 at Pg ID 2808-2[8]33).)
