King v. Whitmer
CIVIL 20-13134 (E.D. Mich. Aug. 25, 2021)
he was identified as co-counsel for Plaintiffs, and
as a result, shares the responsibility with the other
lawyers for any sanctionable conduct.
3. Emily Newman & Gregory Rohl
Newman contends that she had a limited role in
this lawsuit, having “not play[ed] a role in drafting
the complaint” and spending “maybe five hours on
[the matter]” “from home.” (ECF No. 157 at Pg.
ID 5317-18, 5324.) Therefore, Newman argues,
she should not be subject to sanctions.
By placing her name on the initial and amended
complaints, Newman presented pleadings to the
Court asserting that Defendants committed
constitutional and state law violations. Newman
does not suggest that her name was included
without her permission. In addition, Newman does
not cite case law suggesting that an attorney may
not be sanctioned under Rule 11 or any other
source of sanctions authority if the time spent on
the relevant lawsuit does not surpass an
unidentified threshold. (See generally ECF No.
168.) And Newman's responsibility for any Rule
11 violation is not diminished based on where
those working hours were spent (particularly
during a global pandemic when many individuals
were working remotely from home). See
Fed.R.Civ.P. 11 Advisory Committee Notes (1993
Amendment) (“[S]anction[s] should be imposed
on the persons-whether attorneys, law firms, or
parties-who have violated the rule or who may be
determined to be responsible for the violation....
The revision permits the court to consider whether
other attorneys in [a] firm, co-counsel, other law
firms, or the party itself should be held
accountable for their part in causing a violation, ”
even if they were not “the person actually making
the presentation to the court.”); see Morris, 2007
WL 2126344, at *9. So long as the attorney bears
some responsibility, the attorney may be
sanctioned. Fed.R.Civ.P. 11(c)(1).
In an affidavit filed in this case, Rohl stated that at
“approximately 6:30 PM” on the day this lawsuit
was filed, he “was contacted by an associate who
asked Rohl if he would assist in litigation
involving alleged election fraud in Michigan.”
(ECF No. 111-1 at Pg ID 4597.) He thereafter
received a copy of “the already prepared” 830page initial complaint and Rohl “took well over an
hour” to review it. (Id.) “[M]aking no additions,
deletions or corrections” to the Complaint (id. at
Pg ID 4598), Rohl had his secretary file it at 11:48
p.m. (Id. at Pg ID 4597; ECF No. 1.)
To the extent Rohl asserts he should not be
sanctioned because he read the pleading only on
the day of its filing, the argument does not fly.
Rule 11(b) “obviously require[s] that a pleading,
written motion, or other paper be read before it is
filed or submitted to the court, ” Fed.R.Civ.P. 11
Advisory Committee Notes (1993 Amendment),
and the Court finds it exceedingly difficult to
believe that Rohl read an 830-page complaint in
just “well over an hour” on the day he filed it. So,
Rohl's argument in and of itself reveals
sanctionable conduct. Rule 11(b) also explains
that, by presenting a pleading to the court, an
attorney certifies that “to the best of the person's
knowledge, information, and belief, formed after a
reasonable inquiry under the circumstances, ” the
complaint is not being filed for an improper
purpose and is well-grounded in law and fact.
Fed.R.Civ.P. 11(b) (emphasis added). The Court
finds it even more difficult to believe that any
inquiry Rohl may have conducted between the
time he finished reading the Complaint and 11:48
p.m. could be described as a “reasonable” one. But
also, Rohl cannot hide behind his co-counsel. As a
signer of the complaints, Rohl certified to the
Court that the claims asserted were not frivolous.
Moreover, because his co-counsel were not
admitted to practice in the Eastern District of
Michigan, the complaints could not have been
filed without Rohl's signature. See E.D. Mich. LR
83.20(f)(1), (i)(1)(D)(i). Therefore, to the extent
Rohl contends that he was only helping cocounsel,
he still failed to fulfill his obligations as an officer
of the court.
4. Safe Harbor Requirement
15
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