United States District Court, E.D. Virginia, Norfolk Division
S. DAVIS UNITED STATES DISTRICT JUDGE.
the Court is a motion to sanction the United States and its
attorneys, Kent Porter and Lori Wagner, filed on October 11,
2016, by movant and non-party, William A. White
("White"). Mot. for Sanctions 1, ECF No. 218. The
United States responded on October 24, 2016, ECF No. 223, and
White replied on November 7, 2016, ECF No. 233. The motion
for sanctions was referred to a United States Magistrate
Judge for a report and recommendation pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B), Rule 72(b) of
the Federal Rules of Civil Procedure, and Local Civil Rule 72
of the Rules of the United States District Court for the
Eastern District of Virginia. The Magistrate Judge's
Report and Recommendation was filed December 28, 2016, and
recommends denial of White's motion to sanction. R &
R 13, ECF No. 250.
January 13, 2017, White filed objections to the Report and
Recommendation, ECF No. 251, and on January 27, 2017, the
Government responded to White's objections, ECF No. 252.
After receiving the Magistrate Judge's Report and
Recommendation, the Court is required to "make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made." 28 U.S.C. § 636(B)(1); see Reddick v.
White, 456 F.App'x 191, 193 (4th Cir. 2011) (holding
that when a magistrate judge is only empowered to make a
recommendation, such as when evaluating a sanctions motion
"addressed [to] a non-party and  issued after the
conclusion of the underlying litigation, " the district
court's review must be de novo). In conducting a de
novo review, the Court reviews the Magistrate
Judge's Report and Recommendation, and examines the
record, White's objections, the United States'
response to White's objections, and White's reply.
Rule of Civil Procedure 11(b) provides that, by presenting a
pleading to the Court, an attorney certifies that "to
the best of that person's knowledge, information, and
belief formed after an inquiry reasonable under
circumstances, " the pleading:
1. is not being presented for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly increase
the cost of litigation;
3. the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further
investigation or discovery. . . .
Civ. P. 11(b). The party moving for Rule 11 sanctions has the
burden of proving a violation of Rule 11; once that burden is
met, it shifts to the responding party to prove that his or
her conduct was reasonable. See id. 11(c).
evaluating whether a party has violated Rule 11(b)(1)(3), the
Court must examine the pleadings according to a standard of
objective reasonableness. In re Kunstler, 914 F.2d
505, 519 (4th Cir. 1990) (addressing violation of Rule
11(b)(1)); Cabell v. Petty, 810 F.2d 463, 466-67
(4th Cir. 1987)(addressing violation of Rule 11(b) (2)- (3))
. To determine whether a pleading is filed with an improper
purpose, in violation of Rule 11(b)(1), "a court must
ignore evidence of the injured party's subjective
beliefs." In re Kunstler, 914 F.2d 505 at 519.
Instead, the party alleging violation of Rule 11(b)(1) must
demonstrate that the filer lacked a "sincere intent to
pursue [the claim] ." Id. The assertion of a
legal contention violates Rule 11(b)(2) if it has
"absolutely no chance of success under the existing
precedent." Hunter v. Earthgrains Co. Bakery,
281 F .3d 144, 153 (4th Cir. 2002)(internal quotations
omitted). Even if the law could colorably support a claim, a
party violates Rule 11(b)(3) where there is no factual
support for the asserted claims. See id. at 154-55;
Brubaker v. City of Richmond, 943 F.2d 1363, 1373
(4th Cir. 1991) ("[Factual] allegations unsupported by
any information obtained prior to filing [violates
Rule 11]."); Edmonds v. Gilmore, 988 F.Supp.
948, 957 (E.D. Va. 1997) (finding that while plaintiff's
claims were not sufficient to survive motions to dismiss and
for summary judgment, the plaintiff "articulated
objectively reasonable claims'7 and therefore sanctions
would be improper). Finally, the Advisory Committee note to
Rule 11 cautions courts against "using the wisdom of
hindsight, " but instead directs courts to test factual
allegations "by inquiring what was reasonable to believe
at the time the pleading, motion, or other paper was
submitted." Fed.R.Civ.P. 11 Advisory Committee's
argues that the United States, through its attorneys,
"[made] factual contentions knowing that they did not
have evidentiary support." Mot. for Sanctions 1.
According to White, the United States knowingly made false
factual statements when its attorneys claimed that White had
been found to have violated a protective order issued by the
Western District of Virginia, that White had made the
threatening phone call to attorney Mottley, that the
transcript of the actual phone call was subject to a
protective order in the Western District of Virginia, and
that White previously had received the call transcript in
discovery. Id. Having reviewed White's motion
for sanctions, the Magistrate Judge recommended that the
district court deny the motion because White failed to meet
the legal standard to demonstrate that the United States'
attorneys made allegations for an improper purpose,
Fed.R.Civ.P. 11(b)(1), or made allegations without
evidentiary support, Fed.R.Civ.P. 11(b)(3). R & R at 13.
White objects to the Magistrate Judge's Report and
Recommendation for the same reasons that he argued in his
initial motion for sanctions, specifically that the United
States' factual assertions are false and therefore that
the Magistrate Judge erred by failing to find the statements
to be false. Objections to the R & R 1-4, ECF No. 251.
According to White, the Magistrate Judge erred in finding it
"objectively reasonable" for the United States to
assert false factual statements, and thus sanctions should be
Court, upon a de novo review, finds that the
Magistrate Judge correctly evaluated White's motion for
sanctions. Because White's objections are restatements of
his same arguments that were properly analyzed by the
Magistrate Judge in detail in the Report and Recommendation,
the Court finds that White's objections are without
merit. Accordingly, the Court does hereby ADOPT and APPROVE
the findings and recommendations set forth in the Report and
Recommendation filed December 28, 2016. It is, therefore,
ORDERED that White's motion for sanctions, ECF No. 218,
is DENIED and DISMISSED WITH PREJUDICE. White may appeal from
the judgment entered pursuant to this Order by-filing a
written notice of appeal with the Clerk of this
court, United States Courthouse, 600 Granby Street, Norfolk,
Virginia 23 510, within thirty (30) days from the date of
entry of such judgment.
Clerk is DIRECTED to mail or deliver a copy of this Order to
White and to ...