United States District Court, E.D. Virginia, Norfolk Division
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. Krask United States Magistrate Judge.
matter is before the Court on pro se defendant,
Charles Hines' ("Hines") motion for sanctions
against Willcox and Savage, P.C., requesting sanctions for
Liberty's failure to answer Hines' counterclaims. ECF
No. 102. The motion has been referred to the United States
Magistrate Judge pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B) and Federal Rule of Civil Procedure
72(b). ECF No. 108. For the reasons that follow, the Court
recommends that Hines' motion for sanctions be DENIED.
the procedural history of this action is extensive, the
pertinent filings are outlined below. On December 23, 2015,
Liberty filed this action against Hines, ECF No. 1, and Hines
answered the complaint on November 10, 2016. ECF No. 41. On
December 12, 2016, Hines requested leave to file a
"Counter-Complaint." ECF No. 46. On January 18,
2017, the Court granted Hines 21 days to file his
counterclaim. ECF No. 51.
February 8, 2017, Hines filed a 97-page incomplete
counterclaim ("Partial Counter-Complaint"), ECF No.
52, and a 169-page counterclaim ("Full
Counter-Complaint"), ECF No. 53, which failed to comply
with the Court's signature block and certificate of
service requirements. The Court entered an order, on February
13, 2017, advising Hines that the deficiencies needed to be
corrected within 30 days. ECF No. 55.
filed a motion to dismiss Hines' Partial and Full
Counter-Complaints (ECF Nos. 52, 53), on February 17, 2017,
for failure to comply with Federal Rules of Civil Procedure
8(a), 8(e), and 12(f). ECF No. 56. Hines filed an opposition
to the motion to dismiss on March 10, 2017, ECF No. 58, and
Liberty filed a reply on March 16, 2017, ECF No. 59.
March 15, 2017, Hines filed a 176-page counterclaim
("amended counterclaim"). ECF No. 60. On March 24,
2017, Liberty filed a motion to strike untimely pleadings and
dismiss counterclaim for failure to comply with the
Court's Order, asking the Court to strike or dismiss the
Partial and Full Counter-Complaints, and amended
counterclaim. ECF No. 62. See also ECF No. 63 (Mem.
Court construed representations made in Hines' Full
Counter-Complaint and opposition to the motion to dismiss as
Hines' motion to amend his Full
Counter-Complaint. ECF No. 65. The Court granted the motion
to amend, denied Liberty's motion to dismiss, denied
Liberty's motion to strike, and ordered Liberty to
respond to the Amended Counterclaim. ECF No. 65.
filed a motion to dismiss the amended counterclaim on April
14, 2017, for failure to comply with Federal Rules of Civil
Procedure 8(a), 8(e), and 10(b). ECF No. 66. See
also ECF No. 61 (Mem. in Support). Due to
Hines' apparent delay in receiving the motion to dismiss,
the Court held a telephone conference on June 2, 2017.
See ECF No. 76. The Court explained the posture of
the case, explained that Liberty's motion to dismiss was
properly filed, and ordered Hines to file a single document
responding to the motion by June 16, 2017. Id. Hines
timely filed an opposition on June 16, 2017, ECF No. 77,
Liberty filed a reply on June 22, 2017, ECF No. 78, and Hines
filed a sur-reply on July 13, 2017, ECF No. 79. On July 19,
2017, by report and recommendation, the Court recommended
that Liberty's motion to dismiss the amended counterclaim
be granted without prejudice to Hines filing a second amended
counterclaim. ECF No. 80.
submitted a second amended counterclaim on August 11, 2017,
which was filed subject to defect. ECF No. 82. An order
entered August 28, 2017 directed the Clerk to file the second
amended counterclaim without defect, and directed Liberty to
file a responsive pleading within 21 days. ECF No. 85.
Twenty-one days later, on September 18, 2017, Liberty timely
filed a motion to dismiss Hines' second amended
counterclaim or, in the alternative, stay the counterclaim
pending arbitration. ECF No. 88.
filed a motion for sanctions against Willcox & Savage,
P.C., on October 13, 2017, requesting sanctions due to
Liberty's failure to file an answer to Hines'
counterclaims. ECF No. 102 at 1-2. Liberty filed an
opposition to the motion on October 18, 2017, requesting
attorneys' fees incurred in responding to the motion. ECF
No. 103. On October 26, 2017, eight days after Liberty filed
the opposition, Hines filed a "Narrative on Plaintiffs
ECF 103." ECF No. 107.
Liberty has not filed an answer to Hines' counterclaims,
Liberty has complied with the rules by timely filing
responsive pleadings. A motion to dismiss is a responsive
pleading. Under Rule 12 of the Federal Rules of Civil
Procedure, "[a] party must serve an answer to a
counterclaim or crossclaim within 21 days after being served
with the pleading that states the counterclaim or
crossclaim." Fed.R.Civ.P. 12(a)(1)(B). However, if a
party serves a motion, the time to answer the counterclaim is
postponed, and an answer is not due until fourteen days after
such a motion is denied. Fed.R.Civ.P. 12(a)(4)(A).
case, Liberty has timely filed a responsive pleading to each
of Hines' counterclaims. As outlined above, Liberty moved
to dismiss Hines' two counterclaims filed on February 8,
2017, ECF Nos. 52 and 53, nine days after the counterclaims
were filed. ECF No. 56. Liberty moved to strike ...