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Bruce Kerner, et al v. Eti Environmental Lab

November 14, 2011

BRUCE KERNER, ET AL., PLAINTIFFS,
v.
ETI ENVIRONMENTAL LAB, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Peter C. Economus

MEMORANDUM OPINION AND ORDER

This matter is before the Court for consideration of Defendants ETI Environmental Laboratory, AAA Simon Holding, LLC, and Robert K. Simon's Motion for Sanctions Under Fed.R. Civ.P. 11. (Doc. # 52.) Plaintiffs Bruce and Mindy Kerner filed a Memorandum in Opposition (doc. # 70) to which Defendants filed a Reply (doc. # 72). For the following reasons, this Court DENIES Defendants' motion.

I.Background

Plaintiffs Bruce and Mindy Kerner filed this action in Franklin County, Ohio Common Pleas Court on September 9, 2009, and Defendants filed a Notice of Removal on November 30, 2009. (Doc. # 1.) Simultaneous with their Notice, Defendants filed a Motion to Dismiss, seeking dismissal of all of Plaintiffs claims against them. (Doc. # 5, filed November 30, 2009.) On December 23, 2009, Plaintiffs voluntarily dismissed without prejudice their claims against Defendants, although claims against Defendants Omni Group, Inc. and Dennis Markferding remained. (Doc. # 7.) With leave of court, Plaintiffs filed an Amended Complaint on December 29, 2010, in which they renewed claims against Defendants. (Doc. # 22.) In their Amended Complaint, Plaintiffs alleged claims of breach of contract, breach of implied-in-fact contract, promissory estoppels, conversion, replevin, fraud, intentional infliction of emotional distress, and negligent infliction of emotional distress.*fn1 These claims were alleged to arise out of all of the defendants' work to evaluate, remove, clean, and dispose of Plaintiffs' personal property, which was contaminated as the result of a non-party's alleged negligence.

On February 24, 2011, Defendants filed a Motion to Dismiss for Failure to State a Claim, seeking dismissal of all of Plaintiffs' claims against them. (Doc. # 34.) After several extensions of time, briefing was complete, and, on August 9, 2011, this Court granted Defendants' motion.*fn2 (Doc. # 55.)

Defendants request an award of sanctions against Plaintiffs and their counsel, Golden & Meizlish Co., LPA, in the form of attorneys' fees and costs that were incurred as a result of defending all of the claims Plaintiffs filed against them. (Motion, page 2.) Defendants move under Rule 11 of the Federal Rules of Civil Procedure.

II.Standard of Review

Rule 11 provides in relevant part as follows:

By presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it-an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(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; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a belief or a lack of information.

Fed.R.Civ.P. 11(b). The rule also provides that: [i]f, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly ...


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