Worldwide Primates, Inc. v. McGreal

                     United States Court of Appeals,

                            Eleventh Circuit.

                               No. 95-4607.

               WORLDWIDE PRIMATES, INC., Plaintiff,

               Paul Bass, Esq., Plaintiff-Appellant,

                                    v.

               Shirley McGREAL, Defendant-Appellee.

                              July 16, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 90-2056-CIV-KLR), Kenneth L. Ryskamp,
Judge.

Before COX and BARKETT, Circuit Judges, and BRIGHT*, Senior Circuit
Judge.

     BARKETT, Circuit Judge.

     Attorney Paul Bass appeals the imposition of sanctions against

him in the amount of $25,000 in favor of Shirley McGreal under Rule

11, Federal Rules of Civil Procedure (1993).1         We affirm.

     The full factual and procedural background of this case is set

forth in Worldwide Primates, Inc. v. McGreal, 26 F.3d 1089 (11th

Cir.1994) ("Worldwide I "). Briefly, however, McGreal is an animal

rights   activist,    and   Worldwide    Primates,   Inc.,   is   a   Florida

corporation engaged in the commercial wildlife trade. McGreal sent

two letters to Delta Primate Center, a client of Worldwide.               The

first letter stated, in part, that Worldwide had "received very

damning criticisms from the Department of Agriculture inspectors


     *
      Honorable Myron H. Bright, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
     1
      We use Rule 11 as it read at the time the motion for Rule
11 sanctions first was denied. It has since been amended.
and has tried to undermine inspectors' authority by going over

their heads.         I enclose some relevant documents."             The enclosures,

in essence, verified the truth of McGreal's statements.                              They

included       a    memorandum     from    the    United    States     Department      of

Agriculture, which, consistent with McGreal's assertions, detailed

"major        deficiencies"        in     Worldwide's       operation,          including

unsanitary, inadequate, and damaged animal cages, as well as other

deficiencies "too numerous to mention." The memorandum stated that

"[s]o    far,       [Worldwide     President]       Matthew    Block      has    avoided

allegations of violation of the Animal Welfare Act by successfully

involving seven layers of government in this agency, by invoking

complaints, and allegations of everything from over-inspection to

bigotry."

       The second letter sent by McGreal stated that "[s]hould Delta

patronize the company Worldwide Primates, we invite you to peruse

this animal dealer's notice from the Centers for Disease Control

suspending his license to import primates."                   Enclosed was a letter

from the United States Department of Health and Human Services,

notifying Block that "your registration to import nonhuman primates

into    the    United     States    is    revoked    for    failure       to   implement

appropriate isolation and quarantine procedures."                          This letter

specified no fewer than 46 procedural violations.

       Block       took   the   letters    to    attorney     Bass   to    discuss    the

possibility of suing McGreal.              Block and Bass had known each other

for about 15 years, and Bass had represented Block on numerous

occasions during that time. Block showed Bass the letters, but not

the attachments referenced in the letters that verified the truth
of the statements contained in the letters.             Nor did Bass ask to

see the attachments.       Bass testified that Block told him that, as

a result of the letters, Worldwide "had to do two transactions with

Delta Primates Center ... at no profit, and [had] cost [Block]

money in tying up ... facilities and precluded [him] from making

money in another endeavor."        But Bass did not make any inquiry of

Block regarding these damages, such as the manner, nature or amount

of money lost.

       Thereafter, without doing any further investigation into the

facts on which Worldwide's claim was predicated, Bass filed suit on

behalf of Worldwide against McGreal in state court for tortious

interference with a business relationship.            Copies of both letters

were attached to the complaint, but the supporting enclosures were

not.     McGreal removed the case to federal court, where it was

subsequently dismissed. The district court denied McGreal's motion

for Rule 11 sanctions.          McGreal appealed, and we reversed the

denial    of   sanctions      against     Worldwide    and    remanded      with

instructions     also   to     consider    whether     sanctions    would    be

appropriate against Bass.        On remand, the district court assessed

$25,000 in sanctions against Worldwide and $25,000 against Bass.

Bass now appeals.

         An appellate court reviews all aspects of the district

court's Rule 11 determination for an abuse of discretion. Jones v.

International    Riding      Helmets,   Ltd.,   49    F.3d   692,   694   (11th

Cir.1995) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,

405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990)).

       We have previously stated that "Rule 11 stresses the need for
some prefiling inquiry." Mike Ousley Productions, Inc. v. WJBF-TV,

952 F.2d 380, 382 (11th Cir.1992).       Rule 11 sanctions are proper

"(1) when a 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."     Jones, 49 F.3d at 694.   Imposition of sanctions on the

attorney rather than, or in addition to, the client is sometimes

proper "since it may well be more appropriate than a sanction that

penalizes the parties for the offenses of their counsel."        See id.

      In this circuit, a court confronted with a motion for Rule 11

sanctions     first   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.       Id.   If the attorney

failed to make a reasonable inquiry, then the court must impose

sanctions despite the attorney's good faith belief that the claims

were sound.    Id.    The reasonableness of the inquiry "may depend on

such factors as how much time for investigation was available to

the signer;    whether he had to rely on a client for information as

to the facts underlying the [violative document];        ... or whether

he depended on forwarding counsel or another member of the bar."

Ousley Productions, 952 F.2d at 382 (quoting Advisory Committee

Note to Rule 11, as amended in 1983).

         We need not dwell on the first issue of whether Worldwide's
claim was objectively frivolous because we so found in Worldwide I.

See 26 F.3d at 1092.     Likewise, we find that Bass failed to make a

reasonable inquiry into the facts on which Worldwide's claim was

predicated. Had Bass made such a reasonable inquiry, he would have

discovered   that    Worldwide's   tortious    interference     claim    was

frivolous.

      We stated in Worldwide I that a necessary element of a claim

for   tortious   interference   with   a   business    relationship     under

Florida law requires proof of damage to the plaintiff as a result

of the breach of the relationship.         Id. at 1091.     Yet Bass never

conducted any independent inquiry into whether Worldwide had been

damaged by McGreal's letters.      Instead, Bass took as fact what his

long-time client Block had simply asserted:            Worldwide had been

damaged by McGreal's letters because it had to "do two transactions

at no profit."      Indeed, Bass apparently failed to question Block

about the damages, or obtain or examine any data to support the

assertion or ascertain what amounts, if any, had been lost.           At the

time Bass filed the complaint, he apparently had no idea how he

intended to prove the elements of his claim.          Nor did he attempt to

ascertain from Delta how the McGreal letters had impacted Delta's

relationship with Worldwide. Had Bass contacted Delta's president,

Dr. Peter Gerone, or any other official at Delta, he would have

learned that Gerone was already on record as having told Block that

McGreal's letters would have no effect on Delta's relationship with

Worldwide, that Gerone considered the reports to be "ancient

history," and that Gerone saw Worldwide as a legitimate importer

with whom he intended to continue the same business relationship.
Thus, even the most minimal investigation would have alerted Bass

to the lack of any damages resulting from McGreal's letters, and

that   any     "claim"   for   tortious    interference    against    McGreal

therefore would be frivolous.

       Bass argues, however, that he was under no obligation to

conduct   an    independent    investigation    of   the   facts   underlying

Worldwide's claim before filing suit, and that he could rely on

representations made to him by his long-time client, Block.               We

disagree, and hold that, under Rule 11, an attorney must make a

reasonable inquiry into both the legal and factual basis of a claim

prior to filing suit.      Bass does not argue that he lacked the time

to investigate the facts, that he was forced to rely solely on

Block for information, or that he had to depend on forwarding

counsel or another attorney.        See Ousley Productions, 952 F.2d at

383.    Absent such extenuating circumstances, an attorney cannot

simply rely on the conclusory representations of a client, even if

the client is a long-time friend.         The district court did not abuse

its discretion in entering sanctions against Bass in this case.

Accordingly, the district court's imposition of sanctions in the

amount of $25,000 against Bass is AFFIRMED.