UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60153
BENNIE WHITEHEAD; ET AL.,
Plaintiffs,
versus
FOOD MAX OF MISSISSIPPI, INC.; ET AL.,
Defendants.
KMART CORPORATION,
Defendant-Appellee,
versus
PAUL S. MINOR,
Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
January 11, 2002
Before POLITZ and BARKSDALE, Circuit Judges, and FALLON,* District Judge.
POLITZ, Circuit Judge:
*
District Judge, Eastern District of Louisiana, sitting by designation.
Paul S. Minor appeals an order imposing sanctions for his execution of a
judgment at a Kmart retail store. Concluding that the trial court erred in its
interpretation and application of Rule 62(f) of the Federal Rules of Civil Procedure, we
reverse.
BACKGROUND
A woman and her daughter were abducted from Kmart’s parking lot. The
offenders raped the victim while holding her child at knife-point. In a jury trial
plaintiffs successfully sued Kmart. Their counsel was the appellant, Paul Minor.
Kmart moved for a new trial, a remittitur, and a stay under Fed. R. Civ. P. 62(b)
pending disposition of its motions. The district court denied these motions and three
days later Minor obtained a Writ of Execution and Fieri Facias from the Clerk of
Court. Accompanied by newspaper and television reporters Minor went to the local
Kmart establishment with two federal marshals and sought execution on the writ by
seizing money assets in the store’s registers and safe. The district court, informed of
Minor’s steps to execute the judgment, instructed the Marshals’ office to cease and
desist pending a telephone conference that afternoon. At the conference, the court
directed Kmart to submit a bond so that all matters would be stayed pending appeal.
Kmart agreed, and also filed its Notice of Appeal, Motion for Stay of Execution of
Judgment Pending Appeal, and Amended Motion for Approval of Supersedeas Bond.
2
Thereafter, Kmart moved for sanctions under Rule 11(b), 11(c)(1)(B), and 28
U.S.C. § 1927, supporting its motion by citing Rule 62(f) of the Federal Rules of Civil
Procedure which provides that a judgment debtor is entitled to a stay as would be
accorded the debtor had the action been maintained in state court. Kmart claimed that
Rule 62(a) of the Mississippi Rules of Civil Procedure provides for an automatic ten-
day stay following the denial of a motion for a new trial. It claimed that Minor’s
actions in executing the judgment contravened that Rule. While Kmart’s motion for
sanctions was pending, we affirmed as to the liability of Kmart but remanded for a new
trial on damages.
The district court thereafter granted Kmart’s motion for sanctions, finding that
Minor “was seeking to em barrass [Kmart] . . .when, in fact, there was no basis
whatsoever in fact or in law for the actions taken on August 21, 1997.” The court
found no basis for Minor’s actions because it concluded that Kmart enjoyed an
automatic stay under federal Rule 62(f) and Mississippi Rule 62(a). The trial court
relied on the language of Rule 62(f) which says that a judgment debtor is entitled to
such stay as would be accorded in state court, and noted that Mississippi Rule 62(a)
would have given Kmart an automatic stay until ten days after the court ruled on its
motion for a new trial. The trial court determined that Minor “failed to make a
reasonable inquiry into the law governing execution of judgments.” Minor appeals this
3
order granting sanctions.
ANALYSIS
We review a district court's decision to invoke Rule 11 under an abuse of
discretion standard,1 giving great deference to an order imposing sanctions because
“the district court is better situated than the court of appeals to marshal the pertinent
facts and apply the fact-dependent legal standard mandated by Rule 11.”2 Even under
this deferential standard, however, a court abuses its discretion when its “ruling is
based on an erroneous view of the law or on a clearly erroneous assessment of the
evidence.”3 We conclude that the trial court erred in its interpretation of Rule 62(f) and
that Minor’s conduct complied with the mandates of Rule 11.
I. Federal Rule 62(f) and Mississippi Rule 62(a)
The district court based its ruling on the specific language of federal Rule 62(f)
and the automatic stay authorized by Mississippi Rule 62(a). Rule 62(f) of the Federal
Rules of Civil Procedure provides in pertinent part that:
[i]n any state in which a judgment is a lien upon the property
of the judgment debtor and in which the judgment debtor is
entitled to a stay of execution, a judgment debtor is entitled,
in the district court therein, to such stay as would be
1
Childs v. State Farm Mut. Automobile Ins. Co., 29 F.3d 1018 (5th Cir. 1994).
2
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402 (1990).
3
Matta v. May, 118 F.3d 410, 413 (5th Cir.1997).
4
accorded the judgment debtor had the action been
maintained in the courts of that state.
The court noted in a footnote that this rule applied herein because Kmart was a
judgment debtor against whose property the judgment operated as a lien and it was
entitled to a stay of execution under Rule 62(a) of the Mississippi Rules of Civil
Procedure. That rule provides as follows:
(a) Automatic Stay: Exceptions. Except as stated herein
or as otherwise provided by statute or by order of the court
for good cause shown, no execution shall be issued upon a
judgment nor shall proceedings be taken for its enforcement
until the expiration of ten days after the later of its entry or
the disposition of a motion for a new trial....
The court determined that although Kmart did not move for a stay under either
of these rules, it nonetheless enjoyed a ten-day stay under Rule 62(a) because such a
stay applies automatically after the disposition of a motion for a new trial and federal
Rule 62(f) states that a judgment debtor is “entitled” to any stay applicable in state
court. A close reading of the rule, practical and policy considerations, and a review of
the legal authority addressing this issue persuades us beyond peradventure that the trial
court erred in its application of federal Rule 62(f).
A. Plain Meaning of Rule 62(f)
Although Rule 62(f) provides that a judgment debtor is “entitled” to such stay
as it would receive if the action were brought in state court, we must disagree with the
5
district court that by this choice of language Congress sought to afford the protection
of state staying provisions without requiring parties to file an appropriate motion with
the court. The word “entitled” includes “to grant a legal right to or qualify for.”4
Accordingly, Rule 62(f) bestows upon the federal litigant grounds for securing or
claiming an applicable state law stay in the district court. We must conclude, however,
that the Rule does not afford the protection of a stay applicable under state law, even
if automatic in state court, unless the litigant asserts the rights by filing a proper
motion.5
B. Policy Considerations
Sound policy protocols militate against enforcing state staying provisions in
federal court without requiring the benefitting party to request such relief. Permitting
a party to rely on a state procedural rule without affirmatively seeking its protection
places federal trial judges in a precarious position. In addition to the obvious necessity
of possessing a detailed knowledge of the federal rules, such an interpretation would
require federal judges to master the intricate procedural rules and practice of the
various states. The problems associated with this approach increase exponentially in
4
Black’s Law Dictionary 553 (7th ed. 1999).
5
We note that the use of “entitled” in other federal rules supports this definition. For
example, the rules require that a complaint contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2).
6
diversity cases with complex choice-of-law issues. Cases invoking diversity
jurisdiction could require an in-depth grasp of not only the law of the state in which a
federal judge sits, but the law of any given state. After resolving the choice-of-law
issues, the judge would have to scrutinize the law of the subject state to ensure that
none of the court’s orders violated an automatic stay provision instantly applicable
through Rule 62(f), notwithstanding the fact that the benefitting party filed no motion
identifying the relevant state rule, practice, or procedure. We deem it unwise and
inappropriate and therefore decline to impose such a heavy and unnecessary burden
upon our brethren in the district courts.6
C. Legal Authority
Our review discloses no legal authority supporting the proposition that a party
enjoys protection under a state procedural rule, practice, or procedure applicable
through Rule 62(f), without actively seeking such protection from the district court.
Initially, the federal rules specifically provide that an application for an order by the
court shall be by motion.7 The effect of a stay in this situation is indistinguishable from
obtaining an order because it bars a successful litigant from taking any action on the
6
We note also that Rule 62(f) applies only if certain conditions are met. Requiring a
party to file a motion affords the court the ability to analyze whether the movant presented
sufficient facts to satisfy these conditions.
7
FED. R. CIV. P. 7(b)(1).
7
judgment. Accordingly, a party must file a motion placing both the court and any
adverse party on notice that a stay is sought.
An exhaustive review of the jurisprudence reveals no precedent holding that a
party need not file a motion under Rule 62(f). In Van Huss v. Landsberg,8 the Western
District of Missouri heard appellant’s motion to quash garnishments because Missouri
state law provided for an automatic stay until the disposition of a motion for a new trial.
While such a motion was pending plaintiff secured a writ of execution and caused
summons of garnishee to issue. Appellant sought relief under federal Rule 62(f) but
had not filed any motion with the court. The court stated:
At the outset, this Court believes that the defendant should
have filed with the court, with notice to the plaintiff, a
request for a stay under the provisions of Rule 62(f) if he
sought that rule's protection. There are a number of reasons
why such a procedure would seem necessary under this
situation. But, without determining the question of the
necessity of such a motion, this Court will rule on the merits
of this motion to quash.9
While mere dicta, these comments confirm our reading of the plain language of Rule
62(f) and the conclusion that there must be a motion to secure a stay under state law.
Further, in White v. Phillips,10 the Northern District of Georgia rejected appellee’s
8
262 F. Supp. 867 (W.D. Mo. 1967).
9
Id. at 869.
10
88 F.R.D. 263 (N.D.Ga. 1980).
8
claim that Rule 62(f) applied automatically, giving appellant a stay under state law and
requiring him to post a supersedeas bond. The court’s language was unambiguous:
“The Court finds that Fed.R.Civ.P. 62(f) does not serve to automatically stay the
execution of a judgment in the absence of a request for a stay by the appellant, even in
a case such as the instant one in which under the state law a stay would be
automatic.”11
This interpretation is amply supported by the secondary authorities addressing
the issue. In Wright & Miller’s learned treatise on civil procedure, the authors opine:
“Even though the stay may be automatic in state practice, in federal court a party who
seeks the protection of a stay under Rule 62(f) should file with the court, with notice
to the plaintiff, the request for the stay.”12 While the authors footnote this sentence to
Van Huss, their inclusion of this rule reaffirms that the legal authorities considering this
issue unanimously interpret Rule 62(f) to require a party to file a motion before
enjoying the benefits of a stay.
Our reading of the rule, extensive review of the legal authorities, and
11
Id. at 265; See also United States v. Kurtz, 528 F. Supp. 1113, 1114 n.2 (E.D.Pa.
1981) (stating “[b]ecause defendant has not argued that he would be entitled under state law
to a stay, the question of his rights under Rule 62(f) is not before us”).
12
11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2907 (2d ed. 1995).
9
consideration of the practical policy ramifications, disclose no persuasive reason for
holding that a party may enjoy a state law stay under Rule 62(f) without filing a motion
seeking such relief from the court. Accordingly, we conclude and hold that Rule 62(f)
did not operate to grant Kmart the claimed automatic stay.
II. Order Imposing Sanctions
A lawyer routinely certifies that any representations made to the court are not
being presented for any improper purpose, that the legal contentions are warranted by
existing law or the non-frivolous argument for the extension, modification, or reversal
of the same, and that any allegations have evidentiary support.13 In light of its
interpretation of Rule 62(f), the trial court found that Minor failed to make a reasonable
inquiry into the law governing execution of judgments before requesting the writ.14 The
record does not support this finding. Minor did research the relevant case law and
consulted secondary sources. His research revealed at least one case in which a district
court seemingly approved of a similar execution at a Kmart store.15 In addition, the
court found that Minor was “seeking to embarrass the defendant and call attention to
13
FED. R. CIV. P. 11.
14
The stay under Mississippi Rule 62(a) extended for ten days after the court ruled on
Kmart’s motion for a new trial. Minor sought, and received, the Writ of Execution only
three days after the court’s ruling on Kmart’s motion.
15
See Moses v. Kmart Corp., 922 F.Supp. 600 (S.D. Fla. 1966).
10
himself as a tireless laborer of the bar attempting to obtain justice for his client when,
in fact, there was no basis whatsoever in fact or in law for the actions taken on August
21, 1997.” While we recognize the discretion afforded to the district court in the
imposition of sanctions, our interpretation of Rule 62(f) necessarily mandates reversal
of the trial court’s order.
Initially, as noted above, because Kmart did not move for a stay under federal
Rule 62(f), it did not enjoy a stay when Minor sought a Writ of Execution. We are
aware of no dispositive authority mandating or even suggesting against the seeking of
such a writ, and Minor’s conduct therefore cannot fairly be characterized as objectively
unreasonable. Further, Kmart’s actions belie their current contention that they enjoyed
a stay under Rule 62(f). Kmart moved for a Rule 62(b) stay pending the court’s ruling
on the post trial motions, which would have been unnecessary if it already enjoyed a
stay under Rule 62(f) because Mississippi Rule 62(a) prevents any execution on a
judgment before “the expiration of ten days after the later of its entry or the disposition
of a motion for a new trial.” While Kmart’s Rule 62(b) motion would protect against
execution during the period after ten days but before the court’s ruling on the post-trial
motions, we find its failure to reference Rule 62(f) until its motion for sanctions highly
suspect. Accordingly, Kmart’s performance herein also persuades that Minor’s actions
were not legally unreasonable.
11
Finally, we conclude that any embarrassment suffered by Kmart as a result of
Minor’s methodology in executing the judgment at the store is insufficient to justify
sanctions under Rule 11. Minor sought to execute on a final judgment for his client.
He appropriately sought and obtained a Writ of Execution in accordance with the
federal rules. Absent exceptional circumstances, the court should not read an ulterior
motive into a document filed for a legitimate purpose because “[i]t is not the role of
Rule 11 to safeguard a defendant from public criticism that may result from the
assertion of non-frivolous claims.”16 Rule 11 treats all filings in the same fashion,
whether a complaint or a motion, and Minor’s decision to seek a writ of execution
passes muster under that Rule.
Kmart’s complaint, stripped to essentials, is the manner of execution,
accompanying the marshals with media representatives. Our decision is not to be taken
as condoning the manner in which Minor executed his lawfully obtained writ. The
intentional use of publicity for the purpose of embarrassing an adversary is patently
inappropriate, but the decision as to any consequences that might flow from such
behavior properly belongs in the hands of the Mississippi authorities and their judgment
call as to proper professional performance and penalties for any failure thereof.
Because of our conclusion that a reversal is in order herein because Minor’s
16
Sussman v. Bank of Israel, 56 F.3d 450, 459 (2d Cir. 1995).
12
conduct was not legally unreasonable and therefore not sanctionable, we do not address
Minor’s motion for a reversal based on the claim that Kmart inappropriately did not
reveal the existence of insurance coverage.
III. Conclusion
Minor’s execution of the judgment at the Kmart store was not sanctionable under
Rule 11. The district court’s order imposing sanctions, therefore, constituted an abuse
of discretion and that order is REVERSED. The three pending motions filed by
appellant on February 26, 2001 are, accordingly, DENIED as moot.
ENDRECORD
13
RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:
Notwithstanding my great admiration for my brethren in the majority, I
respectfully disagree with their holding that the district court abused its discretion in
imposing sanctions, pursuant to Rule 11 of the Federal Rules of Civil Procedure.
Instead, I would hold that the district court acted within its considerable discretion in
ruling that neither Paul S. Minor’s writ-request, nor his conduct during its execution,
was objectively reasonable.
The majority quite properly labels Minor’s “intentional use of publicity for the
purpose of embarrassing an adversary ... patently inappropriate”, Maj. Op. at 12, but
leaves it to a state bar to consider. Instead, we should affirm the action taken by the
district court, the entity in the best position to — and that must — supervise the
conduct of attorneys appearing before it. Regretfully, the majority vacates proper
sanctions against conduct that was not only intended to harass the defendant, but that
was also a flagrant affront to the judicial process. Such conduct made a mockery of the
rule of law.
I.
In May 1997, the district court entered an approximate $3.4 million judgment in
favor of Minor’s clients against Kmart Corporation in an action arising out of heinous
acts by two individuals not associated with Kmart: their horrific abduction of a mother
and her daughter from a Kmart parking lot in Jackson, Mississippi, and the subsequent,
even more horrific, rape of the mother. A jury found Kmart negligent, for failure to
provide adequate parking lot security. See Whitehead v. Food Max of Miss., Inc.,
163 F.3d 265 (5th Cir. 1998).
That June, Kmart timely moved for a remittitur or, alternatively, for a new trial.
In addition, under Rule 62(b) of the Federal Rules of Civil Procedure, it requested a
stay of execution of judgment, pending resolution of its post-trial motions. The motions
were denied in mid-August.
Three days later, Minor requested, and obtained, from the district court clerk a
writ of execution for the judgment. Although the district court did not make a finding
of fact on this point, Kmart asserts, and Minor does not dispute, that he notified the
media about the forthcoming writ-execution. Thereafter, with invited media
representatives present, Minor, accompanied by United States Marshals, entered the
Kmart and began to execute on the judgment, by seizing currency in the store’s cash
registers and its vault.
While at Kmart, Minor was interviewed by the media; subsequently, reports
about the writ-execution, including Minor’s extremely intemperate statements, were,
among other things, presented in at least three television newscasts. In those broadcast
15
interviews, and even though it was only three days after denial of the new trial motion
and significant time remained for Kmart to file a notice of appeal and post a
supersedeas bond, Minor: characterized Kmart’s actions as arrogant and outrageous
and asserted it would not pay the judgment; charged his clients had been victimized
twice by Kmart, once by being abducted there and once by Kmart’s not paying the
judgment; and proclaimed he was there to ensure Kmart did what it was supposed to
do.
While the writ-execution was in progress, and upon learning of Minor’s actions,
the district court directed him to cease and desist and set a teleconference with the
parties. During that conference, the district court directed Kmart to submit a
supersedeas bond, which was later approved.
A few days after Minor’s attempted execution of judgment, Kmart moved for
sanctions, pursuant to Rule 11. It asserted Minor violated a ten day stay of execution
of judgment, claimed to be in effect pursuant to Rule 62(f) of the Federal Rules of Civil
Procedure, which incorporates Rule 62(a) of the Mississippi Rules of Civil Procedure.
Federal Rule 62(f) provides:
Stay According to State Law. In any state in which
a judgment is a lien upon the property of the
judgment debtor and in which the judgment debtor is
entitled to a stay of execution, a judgment debtor is
entitled, in the district court held therein, to such stay
16
as would be accorded the judgment debtor had the
action been maintained in the courts of that state.
FED. R. CIV. P. 62(f) (emphasis added). Mississippi Rule 62(a)
provides in part:
Automatic Stay; Exceptions. Except as stated
herein or as otherwise provided by statute or by order
of the court for good cause shown, no execution shall
be issued upon a judgment nor shall proceedings be
taken for its enforcement until the expiration of ten
days after the later of its entry or the disposition of a
motion for a new trial.
MISS. R. CIV. P. 62(a) (emphasis added).
According to Kmart, because, under Mississippi Rule 62(a), a ten day stay is
automatic in Mississippi state courts after disposition of a new trial motion, the
application of that rule, through Federal Rule 62(f), resulted in such a stay for Kmart.
It also asserted that Minor, without justification, appeared at the Kmart with the media
and “orchestrated damage to Kmart, its business and goodwill”.
Minor responded that, following denial of the new trial motion, Kmart had not
moved under Federal Rule 62(f) for the Mississippi Rule 62(a) automatic stay.
Therefore, according to Minor, no stay had been in effect.
After reviewing the precedent regarding Rule 62(f), the district court ruled: a
motion is not a prerequisite to such a stay; and Kmart was protected by it. Whitehead
17
v. K Mart, No. 3:95-cv-827WS, at 14 (S.D. Miss. 31 Mar. 1999) (Whitehead-USDC).
The district court concluded that Minor had failed to make a “reasonable inquiry into
the law governing execution of judgments in the instant case”, and was, therefore,
subject to sanction. Id. at 15. Regarding Minor’s collateral media-actions, the district
court found: “It is clear ... that [Minor] was seeking to embarrass [Kmart] and call
attention to himself as a tireless laborer of the bar attempting to obtain justice for his
client when, in fact, there was no basis whatsoever in fact or in law for the actions
taken on August 21, 1997”. Id. at 16-17.
As a result, Minor was ordered to pay Kmart approximately $8,000 — the
attorney’s fees it incurred in opposing execution of judgment. Id. at 17. Although
Kmart requested a public apology by Minor, the district court determined that
publication of its sanctions opinion would suffice. Id. (Pending appeal of its ruling,
that opinion has not been published.)
II.
The able majority errs in two critical respects: (1) deciding, as it does, whether
a motion is required to trigger a stay under Rule 62(f) is unnecessary, because at issue
is whether, pursuant to Rule 11, Minor’s actions were objectively reasonable in the
light of then existing legal authority; and (2) the majority discounts Minor’s media-
actions and leaves to a state bar the task entrusted to federal courts under Rule 11.
18
Rule 11 provides in pertinent part:
By presenting to the court (whether by signing, filing,
submitting, or later advocating) a pleading, written motion,
or other paper, an attorney ... is certifying that 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 or to
cause unnecessary delay or needless increase
in the cost of litigation; [and]
(2) the claims, defenses, and other legal
contentions therein are warranted by existing
law or by a nonfrivolous argument for the
extension, modification, or reversal of existing
law or the establishment of new law....
FED. R. CIV. P. 11(b) (emphasis added). Each obligation must be satisfied; violation
of either justifies sanctions. See, e.g., Walker v. City of Bogalusa, 168 F.3d 237, 241
(5th Cir. 1999). And, in reviewing compliance vel non with each obligation, “the
standard under which an attorney is measured is an objective, not subjective, standard
of reasonableness under the circumstances”. Childs v. State Farm Mut. Auto. Ins.
Co., 29 F.3d 1018, 1024 (5th Cir. 1994).
The imposition of Rule 11 sanctions is reviewed for an abuse of discretion. E.g.,
Lulirama Ltd., Inc. v. Axcess Broad. Servs., Inc., 128 F.3d 872, 884 (5th Cir. 1997).
“This standard is necessarily deferential because, based on its ‘[f]amaliar[ity] with the
19
issues and litigants, the district court is better situated than the court of appeals to
marshal the pertinent facts and apply the fact-dependent legal standard mandated by
Rule 11.’” Id. (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402 (1990);
emphasis added). Accordingly, as the majority recognizes, we owe “great deference”
to the sanctions order. Maj. Op. at 4.
The nature of sanctions authorized by Rule 11 reflects the considerable
discretion vested in the district court:
A sanction imposed for violation of this rule shall be limited
to what is sufficient to deter repetition of such conduct or
comparable conduct by others similarly situated. Subject
to the limitations in subparagraphs (A) and (B), the sanction
may consist of, or include, directives of a nonmonetary
nature, an order to pay a penalty into court, or, if imposed
on motion and warranted for effective deterrence, an order
directing payment to the movant of some or all of the
reasonable attorneys’ fees and other expenses incurred as a
direct result of the violation.
FED. R. CIV. P. 11(c)(2) (emphasis added). As noted, sanctions are appropriate for
violation of either of the above-quoted Rule 11 obligations.
A.
The majority deals primarily with whether, under Federal Rule 62(f), a motion
is necessary to trigger the Mississippi Rule 62(a) automatic stay. Because resolution
of this issue is unnecessary, a large part of the majority opinion is dictum. Under Rule
20
11, in
assessing an attorney’s legal claims, this court has held that
he need not provide an absolute guarantee of the correctness
of the legal theory advanced in the papers he files. Rather,
the attorney must certify that he has conducted reasonable
inquiry into the relevant law. Then, regardless of whether
the attorney’s view of the law is erroneous, sanctions can be
imposed only if his position can fairly be said to be
unreasonable from the point of view of both existing law and
its possible extension, modification, or reversal.
FDIC v. Calhoun, 34 F.3d 1291, 1296 (5th Cir. 1994) (internal quotation marks and
citations omitted). Accordingly, we should focus on: whether Minor undertook a
reasonable inquiry into authority regarding Rule 62(f); and, if he did, whether his
actions were objectively reasonable.
In a supplemental affidavit in opposition to the sanctions motion, Minor states
he undertook an inquiry into the applicability of Rule 62(f) and determined, under Van
Huss v. Landsberg, 262 F. Supp. 867 (W.D. Mo. 1967), and 11 WRIGHT, MILLER &
KANE, FEDERAL PRACTICE & PROCEDURE § 2907 (1995), that, because Kmart had not
filed a motion seeking a stay under Rule 62(f), no stay was in effect. He also stated he
“relied on the fact that [, when it had earlier moved for a new trial,] Kmart had
requested a stay under Fed. R. Civ. P. 62(b), which was unnecessary if Kmart believed
that it was automatically entitled to a stay under Rule 62(f), and was inconsistent with
any claim to a Rule 62(f) stay”.
21
Minor’s reliance on Van Huss was not objectively reasonable. There, the
district court’s observation that the defendant should have filed a stay request with the
court is, as Minor admits, dictum. In Van Huss, subsequent to a new trial denial, the
defendant never requested a stay of execution of judgment. The plaintiff then requested
a writ of execution and “caused summons of garnishee to be issued and served”. 262
F. Supp. at 868. The defendant moved to quash, asserting that, under Rule 62(f) and
Missouri law, he was entitled to a stay. Id. at 868-69.
The district court observed that “the defendant should have filed with the court
... a request for a stay under the provisions of Rule 62(f) if he sought that rule’s
protection.... But, without determining the question of the necessity of such a motion,
this Court will rule on the merits of this motion to quash”. Id. at 869 (emphasis added).
Here, the district court correctly noted that, “when [the Van Huss court] expressed [its]
personal belief that a motion should be made before one may seek a stay under Rule
62(f), [the court] was not stating as a matter of law what Rule 62(f) requires”.
Whitehead-USDC, at 8.
Likewise, Minor’s reliance on 11 W RIGHT, MILLER & KANE, FEDERAL PRACTICE
& PROCEDURE § 2907 (1995) did not provide an objectively reasonable basis for his
conduct. That treatise merely advises: “Even though the stay may be automatic in
state practice, in federal court a party who seeks the protection of a stay under Rule
22
62(f) should file with the court ... the request for the stay”. Id. (emphasis added). It
goes without saying that the use of the term “should” does not convey to the objectively
reasonable reader that a motion is required. Instead, this language conveys the message
that filing a motion is a prudent course of action. Furthermore, for this proposition, the
treatise relies upon the Van Huss dictum.
Turning to other authorities now relied upon by Minor and the majority, Minor
looks to Moses v. K-Mart Corp., 922 F. Supp. 600 (S.D. Fla. 1996), rev’d in part, 136
F.3d 140 (11th Cir. 1998), where the district court approved a judgment creditor’s
execution of a judgment prior to approval of a supersedeas bond. Although Minor cited
Moses in his response to the sanctions motion and in his initial affidavit in support of
that response, he did not list Moses in his supplemental affidavit as authority upon
which he relied in seeking the writ.
Nevertheless, as Minor admits, Moses does not address the requirements of Rule
62(f). Moreover, Moses is distinguishable. There, the judgment creditor waited three
months after the stay of execution had expired and informed the district court it was
seeking to execute judgment. Id. at 601-02. In contrast, Minor waited only three days
after the new trial denial, at which point, according to Minor, any stay expired; and,
other than the writ- request to the court clerk, Minor did not disclose to the district
court his intentions to execute on that judgment.
23
Any reliance by Minor on White v. Phillips, 88 F.R.D. 263 (N.D. Ga. 1980),
was also objectively unreasonable. Although Minor now relies upon White, he did not
cite it in either his response to the sanctions motion or in his initial affidavit; and,
consistent with his treatment of Moses, he did not cite White in his supplemental
affidavit as authority upon which he relied in seeking the writ.
In any event, the judgment creditor in White moved, pursuant to Federal Rule
62(a), that the judgment debtor be required to post a supersedeas bond. According to
the creditor, an appellee creditor, under Georgia law, may obtain an order requiring an
appellant debtor to post bond. The court concluded that Federal Rule 62(a) was not
applicable, but that Federal Rule 62(f) was. It ruled, however, that the debtor did not
have to post bond because he had not moved for a stay under Rule 62(f). And, it
observed that Rule 62(f) “does not serve to automatically stay the execution of a
judgment in the absence of a request for a stay by the appellant, even in a case such as
the instant one in which under the state law a stay would be automatic”. Id. at 265.
This language is dictum; at issue in White was whether the judgment debtor was
required to move for a stay under Federal Rule 62(f) in order to be required to post
bond, not whether a motion was required to qualify for an automatic stay granted by
state law. As noted, Minor also asserted in his supplemental affidavit that, because
Kmart had moved for a stay under Federal Rule 62(b) when it had earlier moved for a
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new trial, such action was inconsistent with any belief that, post-denial of that motion,
a stay existed pursuant to Federal Rule 62(f). Reliance upon this theory was not
objectively reasonable either. Obviously, Kmart’s utilizing an alternative method for
securing a stay pending a ruling on its new trial motion did not operate to abandon a
stay emanating from another source, such as Federal Rule 62(f), following the ruling.
Because of policy considerations concerning varying state law, the majority
concluded a motion is required to trigger Federal Rule 62(f) because the converse
would be “unwise and inappropriate and [it] therefore decline[d] to impose such a
heavy and unnecessary burden upon our brethren in the district courts”. Maj. Op. at
7. But, surely, such burden-shifting considerations are not part of the decisional
calculus for an attorney seeking to comply with Rule 11. In short, what the majority
observes is quite true: there is no clear authority that a motion under Federal Rule 62(f)
is not necessary to trigger the Mississippi Rule 62(a) automatic stay. Id. at 9-10. But,
the converse is also true: there is no authority that a motion is required.
Therefore, the objectively reasonable course of action would have been to have
sought clarification from the district court. This is because of: (1) the lack of an
express motion requirement in Rule 62(f); (2) the uncertain nature of the law regarding
Rule 62(f); and (3) the clear language of Mississippi Rule 62(a) that, at least in
Mississippi courts, there is an automatic ten day stay of execution from the date of a
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new trial motion denial.
Accordingly, Minor’s writ-request was not objectively reasonable and warrants
the imposition of Rule 11 sanctions. Restated, the district court did not abuse its
discretion in awarding sanctions on that basis.
B.
As discussed, the district court had another, independent basis for the award:
its finding that Minor’s conduct during the attempted writ-execution was “for [a
proscribed] improper purpose”, see FED. R. CIV. P. 11(b)(1): harassing Kmart. For this
point, Minor’s attempted execution of judgment is not the issue; his underlying
“improper purpose” is. Again, his conduct is subject to a standard of objective
reasonableness. See Childs, 29 F.3d at 1024.
The majority concludes
that any embarrassment suffered by Kmart as a result of
Minor’s methodology in executing the judgment at the store
is insufficient to justify sanctions under Rule 11. Minor
sought to execute on a final judgment for his client. He
appropriately sought and obtained a Writ of Execution in
accordance with the federal rules. Absent exceptional
circumstances, the court should not read an ulterior motive
into a document filed for a legitimate purpose....
Maj. Op. at 12 (emphasis added). It then states that, while it does not condone Minor’s
actions, and while, in fact, those actions were “patently inappropriate”, any discipline
should flow from a state bar. Id.
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The majority’s “exceptional circumstances” exception is present here. Minor’s
conduct is precisely the type Rule 11 is designed to address and remedy; and the
district court’s fact-based determination that the writ-request was for the purpose of
harassing Kmart, as evidenced by the totally unnecessary and collateral media-play, is
entitled to great deference.
Certainly, that finding was not clearly erroneous. It was against the backdrop
of earlier improper actions by Minor during trial. For example, the district court had
sanctioned him $1,000 for failing, when an objection was made, to respond to the court,
rather than to opposing counsel, despite the court’s instructions to Minor to do so. See
Whitehead, 163 F.3d at 277 n.3.
The district court did not abuse its discretion. It spoke with counsel for the
parties, including Minor, on the day of the incident and was, needless to say, in a far,
far better position than we to rule on Rule 11 sanctions. Obviously, this is why we
review its decision under a very deferential abuse of discretion standard.
III.
For the foregoing reasons, I would hold the district court did not abuse its
discretion in imposing Rule 11 sanctions. Because my esteemed brethren in the
majority hold otherwise, I must respectfully dissent.
In any event, in the light of the majority’s conclusion that Minor’s “intentional
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use of publicity for the purpose of embarrassing an adversary is patently inappropriate”
and is for a state bar to consider, Maj. Op. at 12, it is hoped that, at the very least, the
district court will so refer this matter.
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