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Sears, Roebuck and Co. v. Riggs Distler & Co., Inc.

United States District Court, Fourth Circuit

September 6, 2013

SEARS, ROEBUCK AND CO.,
v.
RIGGS DISTLER & CO., INC. RIGGS DISTLER & CO., INC
v.
VALERIE WHITESIDE

MEMORANDUM OPINION AND ORDER

SUSAN K. GAUVEY, Magistrate Judge.

Pending before the Court is Valerie Whiteside's Motion for Order Finding Defendant/Third-Party Plaintiff Riggs Distler & Co., Inc. ("Riggs") and its Counsel, Eccleston and Wolf ("E&W"), in Violation of Federal Rules of Civil Procedure 11 (ECF No. 34) and her Motion for Sanctions Against Defendant/Third-Party Plaintiff Riggs and Its Counsel, Eccleston and Wolf. (ECF No. 35). For reasons set forth below, the Court GRANTS in part and DENIES in part both the Motion for Order (ECF No. 34-2) and the Motion for Sanctions (ECF No. 35).

Background

The motions currently before the Court stem from a complaint filed by Sears, Roebuck, and Co. ("Sears") against defendant Riggs Distler & Co., Inc. Defendant Riggs is a Maryland company contracted by Baltimore Gas and Electric to replace an underground electrical cable at the White Marsh Mall. Id. at ¶6. The Complaint alleged that, while replacing the cable, the defendant's employees negligently struck a water main near the Sears store on August 22, 2008, resulting in a gush of water that damaged plaintiff's equipment, created a power outage, and caused the store to close. Id. at ¶¶ 7-8.

On November 17, 2011, defendant filed a Third Party Complaint ("TPC") against Ms. Valerie Whiteside (ECF No. 20). The TPC alleged that Ms. Whiteside, as general manager of the Mall at all relevant times, was employed by and an agent of General Growth Properties, Inc. ("GGP"). (ECF 20, 3). The TPC contained two counts against Ms. Whiteside. Count 1 is for indemnification: from "any and all liability if Riggs [] struck an unmarked, underground water main during the performance of its... work on the White Marsh Mall property, " and is thus obligated to indemnify Riggs in any judgment entered against it related to the water main. Id . Count 2 is for contribution: that in the event that Ms. Whiteside is not required to indemnify Riggs, she is required to contribute to the satisfaction of any judgment against Riggs because Riggs would not have begun its excavational work but for Ms. Whiteside's agreement to assume liability. Id. at 4.

Ms. Whiteside moved to dismiss the TPC on January 20, 2012, challenging, as insufficient, defendant's allegations of liability against her. (ECF No. 27). On March 1, 2012 Ms. Whiteside filed her Motion for Order Finding Defendant/Third-Party Plaintiff Riggs Distler and Co., Inc. and its Counsel, Eccleston and Wolf, in Violation of Federal Rule of Civil Procedure 11 (ECF No. 34) and on the same day Ms. Whiteside filed her Motion for Sanctions against Defendant/Third-Party Plaintiff Riggs Distler and Co., Inc. and Its Counsel, Eccleston and Wolfe (ECF No. 35), complaining about the same alleged misconduct as was the subject of her other motion, but asking as relief the dismissal of the TPC with prejudice, an award of Ms. Whiteside's attorney's fees and costs in filing her motion and in defending the suit and other appropriate relief. Ms. Whiteside's motion to dismiss was granted by this Court on April 20, 2012. The Court found that "the TPC, on its face, fails to state a valid claim for relief against Ms. Whiteside and must be dismissed." (ECF No. 46, 6). The Court found that a plain reading of the TPC characterizes Ms. Whiteside as an agent of the mall and that as a purported manager she is an agent of the mall, as a matter of law. (ECF No. 46, 7).

Standard of Review

Rule 11(b) of the Federal Rules of Civil Procedure stipulates that by signing a pleading, written motion, or other paper, an attorney or unrepresented party certifies to "the best of the person's knowledge, information and belief formed under a reasonable inquiry under the circumstances" that the document is not presented for an improper purpose. FED. R. CIV. P. 11(b). Specifically, such a document must contain legal contentions "warranted by existing law" or contain a non-frivolous argument for establishing new law, as well as present factual contentions that are already or likely will be supported by evidence. Id . Rule 11(c) of the Federal Rules of Civil Procedure grants the Court the ability to impose sanctions on attorneys, law firms, or parties responsible for making representations to the Court that violate Rule 11(b). FED. R. CIV. P. 11(c).

The purpose of Rule 11 is "to deter baseless filings in District Court and thus... streamline the administration and procedure of the federal courts." Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 393, 110 S.Ct. 2447, 2454 (1990)(citing Advisory Committee Note on Rule 11, 28 U.S.C. App., p. 576). However, Rule 11 is not designed "to chill an attorney's enthusiasm or creativity in pursuing factual or legal theories." Brubaker v. City of Richmond , 943 F.2d 1363, 1373 (4th Cir. 1991)(quoting FED. R. CIV. P. 11, notes of advisory committee on 1983 amendment).

The Fourth Circuit has held that "[t]he decision to impose sanctions or award attorney's fees under [Rule] 11 lies within the sound discretion of the district court." Western Md. Wireless Connection v. Primo Zini , 601 F.Supp.2d 634, 639-40 (D. Md. 2009)(citing Deadwyler v. Volkswagen of America, Inc. , 884 F.2d 779, 784 (4th Cir. 1989)). Rule 11 inquiries should consider "whether a reasonable attorney in like circumstances would believe his actions to be factually and legally justified. " Id . (emphasis added)(citing Artco Corp. v. Lynnhaven Dry Storage Marina, Inc. , 898 F.2d 953, 956 (4th Cir. 1990)). Sanctions are only warranted if a "reasonable attorney in like circumstances could have not believed his actions to be legally justified." Hunter v. Earthgrains Co. Bakery , 281 F.3d 144 (4th Cir. 2002)(citing In re Sargent , 136 F.3d 349, 352 (4th Cir. 1998)). In other words, a legal claim may be "so inartfully pled that it cannot survive a motion to dismiss" but not rise to the level of sanctions unless it has "absolutely no chance of success under the existing precedent." Id . (citing Simpson v. Welch , 900 F.2d 33, 36 (4th Cir. 1990); In re Sargent , 136 F.3d at 352).

Arguments

Ms. Whiteside argues that the TPC contains factual contentions unsupported by the evidence, as well as unjustified legal contentions. (ECF No. 34-2, 7-11). First, movant argues the TPC stated as fact, without any evidence and contrary to sworn testimony that Ms. Whiteside agreed to personally indemnify Riggs. (ECF No. 34-2, 7). Second, Ms. Whiteside suggests that even if the TPC should be read to mean that she agreed to indemnification on behalf of her principal, she would still not be personally liable under theories of agency because (a) her principal was fully disclosed and (b) she would have acted within the scope of her authority. Id. at 7-8. Finally, Ms. Whiteside argues that the defendant fails to allege any facts that would support a claim for contribution. Id. at 9.

Riggs responds that a Rule 11 sanction is improper because the TPC was based in fact and law. (ECF No. 47, 2). Specifically, Riggs notes that the TPC was based on facts showing that Ms. Whiteside failed to sufficiently and timely identify her principal (i.e., referring to White Marsh Mall rather than White Marsh Mall, LLC). Id . Therefore, Riggs argues, a claim for personal liability would be proper under agency law. Id . Additionally, Riggs asserts that the claim for contribution is legally supported insofar as Ms. Whiteside was actively negligent. Id. at 10. Riggs also argues that the sanction would be improper because Riggs offered to dismiss the TPC, but Ms. Whiteside rejected the offer and demanded a dismissal with prejudice. Id. at 11. Finally, defendant notes that if any Rule 11 sanction ...


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