Rowland Martin, Jr. v. Charles Grehn , 627 F. App'x 310 ( 2015 )


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  •      Case: 14-50093      Document: 00513216672         Page: 1    Date Filed: 10/02/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT    United States Court of Appeals
    Fifth Circuit
    FILED
    October 2, 2015
    No. 14-50093
    Summary Calendar                           Lyle W. Cayce
    Clerk
    ROWLAND J. MARTIN, JR., Successor in Interest to Moroco Ventures L.L.C.,
    Plaintiff-Appellant
    v.
    EDWARD BRAVENEC, Esquire; LAW OFFICE OF MCKNIGHT AND
    BRAVENEC; 1216 WEST AVENUE, INCORPORATED,
    Defendants-Appellees
    Appeals from the United States District Court
    for the Western District of Texas
    USDC No. 5:11-CV-414
    Before JOLLY, PRADO, and ELROD, Circuit Judges.
    PER CURIAM: *
    Rowland J. Martin, Jr., proceeding pro se, appeals orders of the district
    court awarding attorney’s fees to Edward Bravenec, the Law Office of
    McKnight and Bravenec, and 1216 West Avenue, Incorporated, under FED. R.
    CIV. P. 11, and striking his pleadings opposing an award of fees. 1
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    1Edward Bravenec, the Law Office of McKnight and Bravenec, and 1216 West
    Avenue, Incorporated will be referred to collectively as Bravenec.
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    No. 14-50093
    In 2010, Martin filed a pro se complaint against Bravenec and other
    entities alleging multiple causes of action predicated upon a foreclosure
    dispute.   Bravenec filed a motion for summary judgment that included a
    request for sanctions.    The district court granted summary judgment to
    Bravenec but declined to impose the sanctions requested because Bravenec
    failed to comply with the procedural requirements of FED. R. CIV. P. 11(c)(2).
    However, the district court sua sponte ordered Martin to show cause why
    financial sanctions should not be imposed. Believing that Martin failed to
    comply with the show cause order, the district court entered an order directing
    the clerk of court not to accept additional motions or complaints from Martin
    without the court’s permission. On appeal, we affirmed the entry of summary
    judgment but did not address the issue of sanctions, as it was not before the
    court. See Martin v. Grehn, 546 F. App’x 415 (5th Cir. 2013).
    After this Court’s opinion issued, Bravenec moved the district court to
    expunge a lis pendens lien Martin filed that alleged that the disputed property
    was subject to ongoing litigation in federal court. The district court granted
    the motion, and the lien was expunged. Because this Court had not issued the
    mandate in Martin’s appeal, he filed a new lis pendens lien asserting anew
    that the disputed property was subject to ongoing litigation in federal court,
    which lead Bravenec to file a motion for sanctions under FED. R. CIV. P. 11 and
    TEX. R. CIV. P. 65. Bravenec asked the district court to impose a term of
    confinement or, alternatively, award attorney’s fees in the amount of $10,000.
    Without holding a hearing or ordering a response from Martin, the district
    court entered an order on December 5, 2013, denying the request for
    confinement and granting the request for attorney’s fees. The district court
    concluded that it was appropriate to award Bravenec attorney’s fees because
    the district court previously found that Martin violated FED. R. CIV. P. 11(b)(1),
    2
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    No. 14-50093
    (2) and Martin failed to respond to the district court’s show cause order.
    However, rather than grant Bravenec $10,000 as requested, the district court
    ordered Bravenec to file a supplemental motion setting forth the fees actually
    incurred during the litigation.    Upon receipt of Bravenec’s supplemental
    motion, the district court determined that Bravenec incurred $7,710 in fees
    and entered an order on December 27, 2014, awarding that amount to
    Bravenec.   Martin attempted to object to the original and supplemental
    motions for attorney’s fees on two separate occasions. However, the first set of
    pleadings was entered on the docket after the district court’s December 5, 2013,
    order issued, and the district court ordered the second set of pleadings stricken
    on December 30, 2013, on the grounds that the pleadings violated the no filing
    sanction previously imposed.
    On January 27, 2014, Martin noticed his intention to appeal the district
    court’s orders granting attorney’s fees, affixing the amount of fees to be
    awarded, and striking his objections. Martin makes two arguments on appeal.
    First, the district court plainly erred in not exercising supplemental
    jurisdiction under Sampliner v. Motion Picture Patents Co., 
    255 F. 242
    (2d Cir.
    1918), rev’d on other grounds, 
    254 U.S. 233
    (1920), and applying Texas law to
    adjudicate his claims against Bravenec. Second, the district court abused its
    discretion in awarding Bravenec attorney’s fees under Rule 11.
    This Court exercises jurisdiction under 28 U.S.C. § 1291, which provides
    for an appeal from final orders of the district court. See Southern Travel Club,
    Inc. v. Carnival Air Lines, Inc., 
    986 F.2d 125
    , 130-32 (5th Cir. 1993). The
    district court’s order awarding attorney’s fees under Rule 11 is not final until
    the amount to be awarded is determined. 
    Id. at 131.
    In this case, the order
    affixing attorney’s fees entered on December 27, 2013, and Martin timely filed
    3
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    his notice of appeal on Monday, January 27, 2014.           See FED. R. APP. P.
    4(a)(1)(A).
    With respect to the first issue, Martin appears to challenge the district
    court’s entry of summary judgment against Bravenec on the ground that
    summary judgment would have been improper if the district court correctly
    exercised supplemental jurisdiction and applied Texas law to the adjudication
    of his claims. However, this Court previously affirmed the district court’s grant
    of summary judgment, and Martin does not explain why he did not or could
    not raise the arguments asserted now in his earlier appeal of the judgment.
    Thus, this issue is without merit. See Ward v. Santa Fe Indep. Sch. Dist., 
    393 F.3d 599
    , 607-08 (5th Cir. 2004) (reiterating that a party cannot raise an issue
    on appeal that could have been raised in an earlier appeal in the same case).
    To the extent that this claim was raised below, it was properly denied.
    Turning to the second issue, the district court may sanction a party,
    including a pro se litigant, under Rule 11 if it finds that the litigant filed a
    pleading for an improper purpose or that the pleading was frivolous. See FED.
    R. CIV. P. 11(b) & (c); Whittington v. Lynaugh, 
    842 F.2d 818
    , 820-21 (5th Cir.
    1988). Sanctions may be imposed upon a party’s motion if the motion is “made
    separately from any other motion,” the motion describes the specific conduct
    that allegedly violates Rule 11(b), and the motion is served on the party to be
    sanctioned 21 days before it is filed in district court. See Marlin v. Moody
    National Bank, N.A., 
    533 F.3d 374
    , 378 (5th Cir. 2008) (citing FED. R. CIV.
    P. 11(c)(2)). Alternatively, the court may sua sponte order a party to show
    cause why conduct specifically described in the order has not violated Rule
    11(b). See 
    id. (citing FED.
    R. CIV. P. 11(c)(3)). Although the district court need
    not hold a hearing, it must provide the litigant notice of the proposed sanctions
    and the opportunity to be heard to satisfy Rule 11 and the Due Process Clause.
    4
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    See Merriman v. Sec. Ins. Co. of Hartford, 
    100 F.3d 1187
    , 1191-92 (5th Cir.
    1996). The court reviews an award of sanctions under Rule 11 for abuse of
    discretion. See 
    Marlin, 533 F.3d at 377
    . A district court “necessarily abuses
    its discretion in imposing sanctions if it bases its ruling on an erroneous view
    of the law or a clearly erroneous assessment of the evidence.” Elliott v. Tilton,
    
    64 F.3d 213
    , 215 (5th Cir. 1995).
    In this case, the district court award of attorney’s fees fails to comport
    with the requirements of Rule 11 and denied Martin due process. First, the
    district court erroneously found that Martin did not respond to its show cause
    order from 2012. In fact, Martin did respond, albeit inarticulately, on January
    11, 2013, and January 14, 2013. Next, the district court appears to have
    granted Bravenec’s motion for attorney’s fees without considering Martin’s
    objections and motions for reconsideration. The district court’s original order
    granting the motion entered on the docket prior to Martin’s objections and fails
    to acknowledge the objections. Likewise, the final order assessing the amount
    to be paid also fails to reference Martin’s December 5, 2013, pleadings and was
    entered before Martin’s December 27, 2013, objections and motion for
    reconsideration, which the district court ordered stricken.
    Although the district court may properly enjoin vexatious litigation and
    sanction the same, it may not exercise its authority in a manner that deprives
    a litigant of his constitutional rights. See Qureshi v. United States, 
    600 F.3d 523
    , 525-26 (5th Cir. 2010). Thus, the district court abused its discretion when
    it struck Martin’s objections. Notably, Martin withdrew the lis pendens lien of
    which Bravenec complained upon receiving Bravenec’s motion for sanctions
    and filed a subsequent lis pendens lien that referenced only state court
    litigation. That is the purpose of the 21-day “safe harbor” provision: to provide
    a litigant the opportunity to withdraw challenged pleadings and thereby avoid
    5
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    sanctions. See In re Pratt, 
    524 F.3d 580
    , 586-87 (5th Cir. 2008). Finally,
    Bravenec suggested below that the district court’s December 2012 show cause
    order satisfied the “safe harbor” provision but cited no authority to support
    that assertion, and this court has strictly construed the requirements of FED.
    R. CIV. P. 11(c)(2). See, e.g., 
    Pratt, 524 F.3d at 586-87
    ; 
    Marlin, 533 F.3d at 378
    -
    79; Brunig v. Clark, 
    560 F.3d 292
    , 298 n.20 (5th Cir. 2009). Because Bravenec
    did not comply with the safe harbor provision, the district court is deemed to
    have awarded the attorney’s fees on its own motion, which is improper under
    Rule 11. See 
    Marlin, 533 F.3d at 379
    ; 
    Brunig, 560 F.3d at 298
    . As this Court
    explained in Marlin, sanctions awarded on the court’s initiative under Rule 11
    “are limited to nonmonetary sanctions or a monetary penalty paid to the court.”
    
    See 533 F.3d at 379
    .
    AFFIRMED in part, VACATED in part, and REMANDED. Martin’s
    motion to strike Bravenec’s brief is DENIED. Martin’s other motions are
    DENIED AS MOOT.
    6