[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 27, 2005
No. 04-16054 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-01790-CV-ORL-22-JGG
CHARLIE P. FOOTMAN, JR.,
Plaintiff,
GEORGE E. OLLINGER,
Interested Party-Appellant,
versus
WANG TAT CHEUNG,
d.b.a. Chinese Food,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 27, 2005)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
George E. Ollinger, an attorney proceeding pro se, appeals the district
court’s order imposing sanctions against him and denying his motion to disqualify
the district court judge. Ollinger filed the motion on behalf of the plaintiff, Charlie
P. Footman, Jr., in a lawsuit for alleged violations of Title III of the Americans
with Disabilities Act. Pursuant to Rule 11 of the Federal Rules of Civil Procedure
and 28 U.S.C. § 1927, the district court imposed sanctions on Ollinger after
determining the following: (1) that Ollinger falsely alleged that Footman was
inflicted with multiple sclerosis (“MS”); (2) that Ollinger falsely alleged that
Footman entered the restroom and attempted to use the facilities at defendant
Wang Tat Cheung’s restaurant; and (3) that Ollinger altered Footman’s answers to
court-ordered interrogatories after the answers had been sworn and notarized.
On appeal, Ollinger argues that the district court abused its discretion by
ordering sanctions against him because he acted reasonably and because the
lawsuit was not frivolous or brought in bad faith. He explains that the false MS
allegation in the amended complaint was the result of a “computer error,” that he
voluntarily struck the allegation, and that Cheung was not prejudiced by the error.
Next, he submits that Footman did in fact enter the restroom at Cheung’s restaurant
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as alleged in the amended complaint, despite the fact that this allegation is
inconsistent with Footman’s interrogatory answers. Finally, Ollinger admits that
he made post-signature alterations to Footman’s sworn interrogatory answers; but,
he argues that these alterations were neither material nor prejudicial and that they
made Footman’s answers more truthful and accurate. Ollinger concludes that he
conducted himself with candor and did not engage in conduct warranting
sanctions.
We review a district court’s imposition of sanctions for an abuse of
discretion. Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1294 (11th Cir. 2002)
(Rule 11); Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003) (28
U.S.C. § 1927). A district court has the discretion to award sanctions pursuant to
Rule 11 under the following circumstances: “(1) when the party files a pleading
that has no reasonable factual basis; (2) when the party files a pleading that is
based on a legal theory that has no reasonable chance of success and that cannot be
advanced as a reasonable argument to change existing law; or (3) when the party
files a pleading in bad faith for an improper purpose.” Anderson v. Smithfield
Foods, Inc., 353 F.3d 912, 915 (11th Cir. 2003) (internal quotations and citations
omitted).
To determine whether to impose Rule 11 sanctions, the court first
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determines “whether the party’s claims are objectively frivolous–in view of the
facts or law–and then, if they are, whether the person who signed the pleadings
should have been aware that they were frivolous; that is, whether he would have
been aware had he made a reasonable inquiry.” Worldwide Primates, Inc. v.
McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996). “The reasonableness of the inquiry
may depend on such factors as how much time for investigation was available to
the signer, [or] whether he had to rely on a client for information as to the facts
underlying the violative document.” Id. (internal quotations and citation omitted).
Pursuant to § 1927, sanctions may be imposed against “[a]ny attorney . . .
who . . . multiplies the proceedings in any case unreasonably and vexatiously.” 28
U.S.C. § 1927. “For sanctions under section 1927 to be appropriate, something
more than a lack of merit is required.” Schwartz, 341 F.3d at 1225. Instead, “[t]he
statute was designed to sanction attorneys who ‘wilfully abuse the judicial process
by conduct tantamount to bad faith,’” but not by conduct constituting mere
negligence. Id. (citation omitted). Bad faith exists “where an attorney knowingly
or recklessly pursues a frivolous claim.” Id.
We find that the district court did not abuse its discretion in imposing
sanctions on Ollinger. Throughout the litigation, Ollinger demonstrated a
consistent pattern of reckless, unprofessional, and unethical conduct including
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filing an amended complaint that contained false and unsupported allegations,
filing interrogatory answers that contradicted allegations in the amended
complaint, submitting multiple unsworn and un-notarized versions of answers to
court interrogatories that purported to be sworn and notarized, and filing a
frivolous motion to disqualify the district court judge. Ollinger’s lack of candor
cast doubt on the merits of Footman’s entire case. Because Ollinger knowingly or
recklessly pursued a frivolous claim based on false and unsupported allegations,
the district court did not abuse its discretion by imposing sanctions against him
pursuant to Rule 11 and 28 U.S.C. § 1927. Accordingly, we affirm as to this issue.
Next, Ollinger argues that the district court judge should have disqualified
herself because of her bias and that the motion seeking the judge’s disqualification
was not frivolous. He submits that the judge’s record of decisions in the
employment litigation context, as well as her conduct in this case, would
objectively lead a reasonably-informed observer to entertain a significant doubt as
to the judge’s impartiality.
In light of the parties’ settlement of the underlying ADA claims in this case,
the doctrine of mootness is determinative. “A case is moot when the issues
presented are no longer ‘live’ or the parties lack a legally cognizable interest in the
outcome. . . . If events that occur subsequent to the filing of a lawsuit or an appeal
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deprive the court of the ability to give the plaintiff or appellant meaningful relief,
then the case is moot and must be dismissed.” Troiano v. Supervisor of Elections
in Palm Beach County, Fla., 382 F.3d 1276, 1282 (11th Cir. 2004) (internal
quotations and citations omitted).
Because the parties amicably settled all claims in this case, any remaining
issues related to the underlying ADA claims, including whether the district court
erred in denying the recusal motion, are moot. Accordingly, Ollinger’s demand for
relief from the order denying the motion to disqualify the district court judge is
moot, and we dismiss the appeal as to this issue.
AFFIRMED IN PART, DISMISSED IN PART.
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