United States Court of Appeals,
Eleventh Circuit.
No. 96-3698
Non-Argument Calendar.
Rodni BATTLES, Plaintiff,
James S. Puccio, Movant-Appellant,
v.
CITY OF FT. MYERS, Harold Ford, Martin Lehman, Timothy Kurkimilis, Defendants-
Appellees.
Nov. 13, 1997.
Appeal from the United States District Court for the Middle District of Florida. (No. 95-42-CIV),
Anne C. Conway, Judge.
Before BIRCH, BLACK and CARNES, Circuit Judges.
PER CURIAM:
James Puccio appeals the order taxing costs against him in his capacity as Rodni Battles'
attorney. The issue he raises on appeal is whether the district court abused its discretion in
sanctioning Plaintiff's counsel.
I. BACKGROUND
Puccio represented Battles in a multi-count civil action brought under Florida state law and
42 U.S.C. § 1983 against the City of Fort Myers, two Fort Myers police officers, Martin Lehman
and Timothy Kurkimilis, and Fort Myers' Chief of Police, Harold Ford.
In the complaint, Battles alleged that, while he was standing in the parking lot of a night
club, Lehman and Kurkimilis approached him and asked him to enter the club or leave the property.
Battles further alleged that when he attempted to enter the club, the officers would not allow him
to go inside. Battles alleged that Lehman and Kurkimilis then attacked him from behind, struck him
with a baton, put him in a choke hold, temporarily cut off his air supply, uttered racial epithets,
threatened to kill him, and threw him down onto the ground. At his deposition, Battles testified that
three people witnessed the incident. He further indicated that he could identify Lehman as the
officer who struck him with a baton.
The district court granted summary judgment for Fort Myers on Battles' state law claims
because Battles failed to satisfy an applicable notice requirement. The district court stated, however,
that it could not "find as a matter of law that the Defendants' conduct was "reasonable.' " The district
court therefore denied Defendants' motion to dismiss for failure to prosecute, Defendants' motion
for summary judgment on the § 1983 claims, and the individual Defendants' motion for summary
judgment as to the state law claims.
It is impossible to discern exactly what took place at the two-day trial because Puccio did
not include the trial transcript in the record on appeal. During trial Battles apparently misidentified
an unrelated party who happened to be present in the courtroom as Officer Lehman. Furthermore,
Puccio failed to subpoena any of the witnesses who Battles claimed saw the alleged attack and none
of them appeared at trial to give testimony. After the close of Battles' case, the district court granted
a directed verdict in favor of Fort Myers and Kurkimilis, and after deliberation, the jury found in
favor of Defendant Lehman on all claims.
II. DISCUSSION
Puccio argues on appeal that the district court abused its discretion by imposing sanctions
against him for insufficiently preparing for trial. Puccio asserts that it is unclear under what
authority the district court imposed sanctions, but he argues that the sanctions against him were
inappropriate under any authority, including Fed.R.Civ.P. 11, 28 U.S.C. § 1927, and the inherent
power of the court.
Defendants respond that the district court acted within its authority when it imposed costs
against Puccio. Defendants further assert that this Court must rely on the findings and statements
of the district court because Puccio, by failing to provide a trial transcript, failed to provide a
sufficient record on appeal.
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The district judge found that: (1) Plaintiff introduced little evidence against one of the
officers; (2) the case against that officer was so weak that Plaintiff could not accurately identify the
officer; and (3) Plaintiff failed to introduce any evidence to support the § 1983 claim against the
City of Ft. Myers. Rule 11 grants courts the power to sanction litigants and attorneys who make
assertions without proper evidentiary support. See Fed.R.Civ.P. 11(c). District courts can sanction
litigants and/or attorneys under this rule. Fed.R.Civ.P. 11(c); see also United States v. Milam, 855
F.2d 739, 742 n. 6 (11th Cir.1988). A 1993 amendment to Rule 11 emphasizes an attorney's
continuing obligation to make inquiries, and thus the rule allows sanctions when an attorney
continues "insisting upon a position after it is no longer tenable." Fed.R.Civ.P. 11 advisory
committee's note.
This Court reviews the district court's imposition of Rule 11 sanctions for abuse of
discretion. Attwood v. Singletary, 105 F.3d 610, 612 (11th Cir.1997). "Reasonableness under the
circumstances" is the test to be applied to determine whether an attorney has violated Rule 11.
Donaldson v. Clark, 819 F.2d 1551, 1556 (11th Cir.1987). Factors to be considered include the time
available for investigation, whether the attorney had to rely on information from a client, and the
general plausibility of legal arguments. Id. (citation omitted).
Based on the available record, the district court did not abuse its discretion in imposing
sanctions against Puccio under Rule 11. The district court specifically determined that Puccio did
not make a reasonable inquiry prior to trial to ensure that he could procure evidence to support his
client's positions. Since the sanctions were properly imposed under Rule 11, there is no need to
consider their propriety under either 28 U.S.C. § 1927 or the inherent power of the court.
AFFIRMED.
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