UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MONTGOMERY BLAIR SIBLEY , Case No.:Case 1:15-cv-00730 (JEB) PLAINTIFF , PLAINTIFF ’S MEMORAND UM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR EXTENSION OF TIME OF DEFENDANT MC CONNELL TO RESPOND TO PLAINTIFF ’S MOTION TO REMAND
VS.
THE HONORABLE MITCH MCCONNELL, AND THE HONORABLE JOHN A. BOEHNER , DEFENDANTS. ______________________________________/
Plaintiff, Montgomery Blair Sibley (“Sibley”), files this, his Memorandum of Points and Authorities in Opposition to Motion for Extension of Time of Defendant McConnell to Respond to Plaintiff’s Motion to Remand, and for grounds in support thereof states: On June 17, 2015, counsel for Defendant McConnell, as a courtesy, emailed to Sibley his Motion for Extension of Time of Defendant McConnell to Respond to Plaintiff’s Motion to Remand. Sibley opposes that Motion as no compelling reasons are advanced by Defendant McConnell for delay in response to Sibley’s motion to remand. In support of the motion, counsel for Defendant McConnell stated: “The issues presented by Plaintiff’s motion are of sufficient complexity to require additional time for the preparation of Defendant’s Response. Because briefing has not yet been completed on Defendant’s Motion to Dismiss, disposition of the Motion To Remand is likely to remain pending until this Court addresses the Motion To Dismiss.” (Def. Motion, p. 2). First, this issue is not complex: This Court either has subject matter jurisdiction or it does not. In the latter case, no further inquiry is possible as this Court is obligated to remand. Second, to maintain that: “disposition of the Motion To Remand is likely to remain pending until this Court
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addresses the Motion To Dismiss” evidences a profound – and troubling coming from a Special Assistant United States Attorney – misunderstanding of the nature of subject matter jurisdiction. This Court may not address the pending motions to dismiss until it decides the Motion to Remand. In the event that the Court grants Defendant McConnell’s Motion, Sibley requests that the Court re-set the deadline for responding to the pending Motions to Dismiss to allow Sibley adequate time to file his response after the Court has ruled upon Sibley’s Motion to Remand. WHEREFORE, Sibley respectfully requests that Defendants’ Motion for Extension of Time of Defendant McConnell to Respond to Plaintiff’s Motion to Remand be denied. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. First class mail on (i) Peter R. Maier, Special Assistant United States Attorney, Counsel for Defendant, The Honorable Mitch McConnell, 555 4th St., N.W., Washington, D.C. 20530, Telephone: (202) 252-2578, (
[email protected]) and (ii) William Pittard, Deputy General Counsel, Counsel for The Honorable John A. Boehner, Office of General Counsel, United States House of Representatives, 219 Cannon House Office Building, Washington, District of Columbia 20515, Telephone: (202) 225-9700, (
[email protected]) this June 18, 2015. MONTGOMERY BLAIR SIBLEY Plaintiff 402 King Farm Blvd, Suite 125-145 Rockville, Maryland, 20850 202-643-7232
[email protected]
By: __________________________ Montgomery Blair Sibley
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MONTGOMERY BLAIR SIBLEY , Case No.:Case 1:15-cv-00730 (JEB) PLAINTIFF , PLAINTIFF ’S REPLY TO DEFENDANT MC CONNELL ’S OPPOSITION TO PLAINTIFF ’S MOTION FOR RULE 11 SANCTIONS
VS.
THE HONORABLE MITCH MCCONNELL, AND THE HONORABLE JOHN A. BOEHNER , DEFENDANTS. ______________________________________/
Plaintiff, Montgomery Blair Sibley (“Sibley”), replies to Defendant McConnell’s Opposition to Plaintiff’s Motion for Rule 11 Sanctions and states: I.
DEFENDANT MC CONNELL 'S COUNSEL MISREPRESENTS RULE 11 Defendant McConnell counsel commences his response to Sibley's Rule 11 motion, by
quoting Murchison v. Kirby, 27 F.R.D. 14, 19 (S.D.N.Y. 1961) for the proposition that: “An attorney’s filing violates Rule 11 ‘only when it appears beyond peradventure that it is a sham and false and that its allegations are devoid of factual basis.’” Murchinson, a 1961 case, was referring to a prior Rule 111 and dealt with sham factual allegations – not a complete failure to understand the lack of any legal authority for the proposition that this Court has subject matter jurisdiction.
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In 1961, Rule 11 read: “Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, * * *. The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; * * *. If a pleading * * * is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false * * *. For a wilful violation of this rule, an attorney may be subjected to appropriate disciplinary action.” 1
II.
EVEN A FIRST YEAR LAW STUDENT COULD PREDICT THAT A REMOVAL M UST FAIL IF TAKEN TO A COURT WITHOUT SUBJECT MATTER JURISDICTION Next, Defendant McConnell's counsel cites Roeder v. Islamic Republic of Iran, 195 F. Supp.
2D 140, 184 (D.D.C. 2002) for the proposition that he is not subject to sanction. Yet Roeder argues for the exact opposite conclusion. In Roeder, the court observed: Unlike other professions, in the practice of law basic competence and ethical obligations are enforceable and intertwined. Every time an attorney files a document in federal court, she must certify to the Court that the legal arguments contained therein, "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." Fed. R. Civ. P. 11. . . .What these requirements mean in practice is that ignorance is no excuse for an attorney. An attorney can not carry out the practice of law like an ostrich with her head in the sand, ignoring her duty to research and acknowledge adverse precedent and law. Attorneys are not free to assert any and all legal arguments they wish on behalf of their clients, without regard to existing precedent. Notably, counsel for Defendant McConnell has failed to cite any legal argument to support the notion that this Court has subject matter jurisdiction. Rather, in a bizarre legal manueuve, counsel for Defendant McConnell (i) removed this matter from D.C. Superior Court and then (ii) made a Rule 12(b)(1) motion to dismiss upon the grounds that this Court lacks subject matter jurisdiction. Thus, contrary to Defendant McConnell's counsel assertion that: “Obviously, an attorney need not predict the course of litigation correctly on pain of Rule 11 sanctions”, an attorney must know before he affixes his signature to a pleading that there is some basis for the legal assertion contained therein. Simply put, there exists no argument to support the removal grounded in the: “existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law” as it relates to Sibley’s “standing” and subject matter jurisdiction. 2
Indeed, counsel for Defendant McConnell’s suggestion that the Court take up the motion to dismiss before deciding the motion to remand can only be described as asinine. This Court is bound to consider the 12(b)(1) motion first, since the Rule 12(b)(6) challenges become moot if this court lacks subject matter jurisdiction. Accord: SMR Techs., Inc. v. Aircraft Parts, 2004 U.S. Dist. LEXIS 4741 (W.D. Tenn. Mar. 23, 2004)(“Determining whether subject matter jurisdiction exists is a preliminary issue which must be resolved before the court may hear any other issue in the matter.”); Bell v. Hood, 327 U.S. 678, 682, (1946)(motion to dismiss for failure to state a cause of action may be decided only after establishing subject matter jurisdiction, since determination of the validity of the claim is, in itself, an exercise of jurisdiction). III.
DEFENDANT MC CONNNELL HAS MISSED THE OFFERED SAFE -HARBOR Finally, and desperately, counsel for Defendant McConnell seeks to avoid the implications
of the looming sanctions to be visited upon him from this impartial-to-the-parties court by claiming that he was deprived of Rule 11's safe-harbor provsion as: “A comparison of a motion the Plaintiff provided to counsel for Defendant on June 2, 2015 for the purpose of ascertaining whether Defendant consented to it with the motion Plaintiff has now filed shows that they differ.” The difference is immaterial. First, the motion remained the same in both documents: lack of standing depriving this Court of subject matter jurisdiction. In fact, the only difference between the two documents is that the legal arguments in the first document were verbose and were reduced for brevity's sake in the second document. But the gravman of the two motions was the same. Every court that has heard this argument of non-material differences between the served and
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filed Rule 11 motion has rejected this hyper-technical argument and so should this Court.2
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Accord: Abreu v. Alutiiq-Mele, LLC , 2012 U.S. Dist. LEXIS 136478 (S.D. Fla. Aug. 3, 2012)(“The undersigned further rejects Plaintiff's objection that Defendant's Verified Motion with regard to Rule 11 sanctions must be denied because Defendants failed to file the exact same motion as that served upon Plaintiff earlier. . . . Defendants, however, appear to raise the same substantive arguments in both versions. . . . Thus, even if the served and filed motions were not identical, Plaintiff cannot claim that she was not on notice as to the primary bases of Defendants' contentions for seeking sanctions. Given the substantive similarity of the served and filed motions with regard to Rule 11, the undersigned denies Plaintiff's objection to the Verified Motion on this basis.”); Ideal Instruments, Inc. v. Rivard Ins., 243 F.R.D. 322, (N.D. Iowa 2007)(“While it is certainly true that the Motion For Sanctions is in a different format than the November 14, 2006, draft motion, in that it is a "combined" motion and brief, the court finds that the additional material included in the "combined" motion and brief is the fuller argument that one would expect to find in a separate brief in support of a Rule 11 sanctions motion. Rule 11 says nothing about requiring service of the brief in support of a Rule 11 motion to trigger the twenty-one day "safe harbor." See FED. R. CIV. P. 11(c)(1)(A). . . Thus, the court concludes that supplementation of the draft Rule 11 motion with a brief or supporting argument when the Rule 11 motion is ultimately filed does not mean that the motion ultimately filed is improper.”); Thompson v. United Transp. Union, 167 F. Supp. 2d 1254 (D. Kan. 2001)(“Plaintiff also maintains that defendant's motion does not comply with Rule 11's "safe harbor" provision. . . .While it is undisputed that defendant served plaintiff's counsel with a Rule 11 motion in July 2000, plaintiff claims that the motion defendant filed with the court on January 2, 2001 is a "distinctly different" motion. According to plaintiff, then, the safe harbor provision has not been satisfied because defendant's pro hac vice counsel essentially "ambushed" plaintiff's counsel with the present Rule 11 motion. The court has reviewed the motion served on plaintiff's counsel in July 2000 and has compared that motion to the motion filed with the court in January 2001. The motions are the same in all significant aspects. The motion served on plaintiff's counsel in July 2000 contains the same allegations of sanctionable conduct as the motion filed with the court and contains the same legal arguments (including the same case citations) as the motion filed with the court. . . In this respect, then, the "safe harbor" provision has not been violated.”); Matrix IV, Inc. v. American Nat. Bank & Trust Co., 649 F.3d 539 (7th Cir. 2011)(“Gateway put Matrix on notice of its intent to seek sanctions by a letter sent two weeks after Matrix filed its initial complaint. In this letter Gateway noted that "[i]n light of the judgment in the bankruptcy matter and the failure to allege any involvement by Gateway Park, LLC," filing the new claims was sanctionable under Rule 11. Gateway told Matrix it would seek sanctions if Matrix did not voluntarily dismiss the complaint and that the letter served "as notice of [its] intention to seek sanctions if and when the counts against Gateway Park, LLC are dismissed." . . . Moreover, we have held that a letter informing the opposing party of the intent to seek sanctions and the basis for the imposition of sanctions—like the one Gateway sent in this case—is sufficient for Rule 11 purposes. See, e.g., Fabriko Acquisition Corp. v. Prokos, 536 F.3d 605, 610 (7th Cir.2008) (finding a letter informing offending party of sanctions to be adequate); Nisenbaum v. Milwaukee Cnty., 333 F.3d 804, 808 (7th Cir. 2003)”). 4
Finally, Defendant McConnell and his counsel's removal clearly warrant sanction. Accord: Martin v. Franklin Capital Corp., 546 U.S. 132 (2005)(“[a]bsent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal."); In re Adoption of Baby C., 323 F. Supp. 2d 1082 (D. Kan. 2004) (remanded for lack of subject matter jurisdiction and untimely removal; attorney's fees assessed). WHEREFORE, Plaintiff respectfully requests that this Court enter its order imposing sanctions upon: (i) Defendant, The Honorable Mitch McConnell, (ii) Peter R. Maier, counsel for Defendant, The Honorable Mitch McConnell, and/or (iii) the United States Attorney’s Office and its lawyers that have violated Rule 11 by awarding to Plaintiff his expenses incurred as a direct violation of Rule 11, the reasonable expenses and attorney’s fees incurred in presenting this motion and for such other and further relief as the Court deems equitable and just. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. First class mail on (i) Peter R. Maier, Special Assistant United States Attorney, Counsel for Defendant, The Honorable Mitch McConnell, 555 4th St., N.W., Washington, D.C. 20530, Telephone: (202) 252-2578, (
[email protected]) and (ii) William Pittard, Deputy General Counsel, Counsel for The Honorable John A. Boehner, Office of General Counsel, United States House of Representatives, 219 Cannon House Office Building, Washington, District of Columbia 20515, Telephone: (202) 225-9700, (
[email protected]) this June 19, 2015. MONTGOMERY BLAIR SIBLEY Plaintiff 402 King Farm Blvd, Suite 125-145 Rockville, Maryland, 20850 202-643-7232
[email protected]
By: __________________________ Montgomery Blair Sibley 5
