The Litigious President: Sanctions

“Nor, to my knowledge, have any other lawsuits (frivolous or otherwise) by or against the former President been commenced. But is there more litigation to come?”

—The Blank Page, New Matter, 4th Quarter 2022

The answer to that question is a big fat “Yes.”

In Donald J. Trump v. Hillary R. Clinton et al.1, United States District Judge Donald M. Middlebrooks, in a scathing opinion, ordered the case dismissed and, subsequently, sanctioned the former president (hereinafter, “Mr. Trump” or “Plaintiff”) and his lead attorney, Alina Habba, Esquire, and Habba Madeiro and Associates, jointly and severally, in the amount of $1,004,263.622. The suit was commenced on March 24, 2022. On Defendants’ motion to dismiss, Plaintiff amended the Complaint; the Amended Complaint contained 819 numbered paragraphs over 193 pages, named 31 defendants, 10 “John Does” (described as fictitious and unknown persons) and 10 “ABC corporations,” the latter being identified as fictitious and unknown entities.

Plaintiff’s overall theory of the case was set forth in the first 527 paragraphs of the initial 118 pages of the Amended Complaint. In short, Mr. Trump alleged that the Defendants “. . . acting in concert …maliciously conspired to weave a false narrative that their opponent, Donald J. Trump, was colluding with a hostile foreign sovereignty. The actions taken in furtherance of their scheme - falsifying evidence, deceiving law enforcement, spreading disinformation [sic] through the media and exploiting highly sensitive data sources - are so outrageous that even the events of Watergate pale in comparison.” Amended Complaint, Paragraph 1. (The next 818 paragraphs of the amended pleading were similar in texture.)

The Amended Complaint contained 16 counts: violations of RICO on theft of trade secrets, obstruction of justice and wire fraud (Count I); RICO conspiracy (Count II); injurious falsehood (Count III); conspiracy to commit injurious falsehood (Count IV); malicious prosecution (Count V); conspiracy to commit malicious prosecution (Count VI); violations of the Computer Fraud and Abuse Act (Count VII); theft of trade secrets (Count VIII); violations of the Stored Communications Act (Count IX); various conspiracy charges and theories of agency, including respondeat superior (Counts X through XVI).

I. The Dismissal

The District Court dismissed the Amended Complaint and the entire action with prejudice as to all of the Defendants, with the exception of the John Does, the ABC corporations and the United States Government.3 Regarding the latter three, the suit was dismissed without prejudice.

In his 65 page well written, thoroughly analytical and excellently reasoned opinion, Judge Middlebrooks initially focused on the pleadings. Rule 8 of the Federal Rules of Civil Procedure, as the learned jurist observed, requires that a complaint (or, as in the instant case, an amended complaint) filed in Federal Court contain a short and plain statement of the claim “showing that the pleader is entitled to relief.” Fed. R. Civ. Pr. 8(a)(1). Each allegation must be stated in numbered paragraphs and limited as far as practicable to a single set of circumstances. Fed.

R. Civ. Pr. 10.

District Judge Middlebrooks noted that the Amended Complaint is “neither short nor plain, and it certainly does not establish that plaintiff is entitled to any relief.” Trump v. Clinton, supra,

Order on Motions to Dismiss, 4.

This writer has perused the Amended Complaint. Many of the 819 paragraphs contain multiples of sentences, consisting of what our English grammar teachers would have referred to as “run-on.” Perhaps they can be categorized as “Faulkner sentences”. (Although William Faulkner, despite his lengthy sentences and paragraphs, wrote in acceptable grammar.) There were numerous quotations; and no fewer than 293 footnotes with references to various public reports and findings. As stated by the District Judge, annotations are inconsistent with Rule 8. “But if a party chooses to include such references, it is expected that they be presented in good faith . . . That is not the case here.” Id.,5. The Court described the Amended Complaint as a “quintessential” shotgun pleading. “Such pleadings waste judicial resources and are an unacceptable claim for relief.4 Id.,7.

3The Government was substituted for the federal defendants.

4For a definition of shotgun pleading, see Weland v. Palm Beach County, 792 F.3d 1313, 1321-1323 (11th Cir. 2015), cited in the Order on Motions to Dismiss, 7-8.

Subsequent to addressing the Amended Complaint (which, in and of itself, may have justified a dismissal), the Court proceeded to explain why dismissal was appropriate, not only under Rule 8, but pursuant to Rule 12(b)(6); that is, failure to state a claim upon which relief can be granted.

As stated by the Court at the outset: “ . . . [T]he claims presented in the Amended Complaint are not warranted under existing law. In fact, they are foreclosed by existing precedent, including decisions of the Supreme Court.” Id.,4.

The Court concluded that Plaintiff’s RICO claims were barred by the statute of limitations (commencing when Mr. Trump knew or should have known of the alleged violations); however, “even if the Plaintiff’s claims were timely, they still fail at every step of the analysis.” Order on Motions to Dismiss, 30. And with respect to the balance of Plaintiff’s claims, the Court thoroughly and succinctly analyzed how and why each failed to state a cause of action.

II. Sanctions

Now, for the good part.

The sanctions levied on Mr. Trump and his lawyers were premised on two grounds: first, Rule 11 of the Federal Rules of Civil Procedure; second, a court’s “inherent power.” As for Rule 11, the Court, citing Massengale v. Ray, 267 F.3d 1298 (11th Cir. 2001), noted that “sanctions are properly assessed (1) when a party files a pleading that has no reasonable factual basis; (2) when the party files a pleading that is based on a legal theory that has no reasonable argument to change an existing law; or (3) when a party files a pleading in bad faith for an improper purpose [emphases mine].” “Here, all three are true.” Trump v. Clinton, Order Granting Motion for Sanctions, 4. The pleadings in this case, observed Judge Middlebrooks, contained factual allegations that were either “knowingly false or made with reckless disregard of the truth.” Id.,5. To put it mildly, “the Amended Complaint was, in its entirety, frivolous.” Id.,9. The second basis for sanctions is a court’s inherent power, which includes the ability to assess fees and costs against the litigant, the latter’s lawyer (or lawyers) or both, when either has acted “in bad faith, vexatiously, wantonly, or for excessive reasons.” Order on Sanctions, 5; citing Chambers v. Nasco, Inc., 501 U.S. 32, 44-46 (1991).

The Court distinguished Rule 11 from the inherent

Continued on page 14

Continued from page 13 power: “Rule 11 is backward looking, limited to pleading and motion abuse.” The purpose of the inherent power to sanction a party is to “vindicate judicial authority without resorting to contempt of court and to make a nonviolating party whole.” Id.,6. Moreover, the inherent power serves as a deterrent and extends to the full range of litigation abuses, and (or) where the attorney’s conduct is so egregious that it could have only been committed in bad faith. Roadway Express, Inc. V. Piper, 447 U.S. 752 (1980).

In the instant case, Judge Middlebrooks comments: “Here, we are confronted with a lawsuit that should never have been filed, which was completely frivolous, both factually and legally, and was brought in bad faith for an improper purpose.” Order on Sanctions, 6. The judge took judicial notice that Plaintiff is a prolific and sophisticated litigant, who repeatedly employs the courts to seek revenge on political adversaries.5 “He is the mastermind of strategic abuse of the judicial process and he cannot be seen as a litigant blindly following the advice of a lawyer. He knew full well the impact of his actions. As such . . . sanctions should be imposed upon Mr. Trump and his lead counsel, Ms. Habba.” Id.,6.

Judge Middlebrooks points to “a pattern of abuse of the courts,” and discusses it (as opinionated as his Opinion is) while focusing on specific cases: Trump v. Pollitzer Board; Trump v. New York Attorney General; Trump v. Twitter; Trump v. CNN.6

It is axiomatic that in any award for attorney’s fees and costs (punitive or otherwise), those fees and costs must be reasonable and shall be carefully scrutinized. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983); Rode v. Dellaciprete, 892 F.2d 1177 (3rd Cir. 1990). And the party seeking fees has the burden of proving that the requested fees and costs are reasonable. Rode, 1183. In Trump v. Clinton, the District Judge analyzed Defendants’ fee applications to determine the reasonableness in light of (a) the attorneys’ hourly rates; (b) the time spent; and (c) the lodestar, including, among other things, the block billing entries. All of the objections lodged by Plaintiff and his counsel were overruled. The total sanction: over one million dollars.

III. Appeals

Mr. Trump and his attorney have appealed the Dismissal and both Orders for Sanctions to the Eleventh

Circuit Court of Appeals. A bond was posted with the District Court in the amount of $1,004,263.62. After having read the Amended Complaint, the Dismissal and the two Sanction Orders, I believe that it is safe for me to predict the outcome of the appeals: AFFIRMED in toto. If this turns out to be correct, then there will, most likely, be another appeal (a cert petition) to the SCOTUS. Will at least four of the nine vote to grant? That one I will not (and cannot) predict.

IV. The Aftermath

Well, the class is dismissed, except for Alina and Donald. “You must stay after school in detention. That is your punishment (sanction) for your conduct (albeit, misconduct). This will teach you a lesson.” Or will it?

V. Counsel

Although Pennsylvania has no Rule 11, there is 42 Pa.C.S. Section 2503: Right of Participant to Receive Counsel Fees. Aside from the statute, does the State Court have an inherent power to impose sanctions? I think so. See: Shiedmakers Enterprises v. Beechwood et al., 34 Chester County Reports 394 (1986), in which The Honorable Lawrence E. Wood imposed, as “taxable costs,” the sum of $30,000 against attorney G. Eugene Beechwood, Jr. (to the exclusion of the other Beechwood defendants): “Based on the record, it appears to me that G. Eugene Beechwood was arbitrary and vexatious, . . . and should be taxed $30,000 as costs, representing plaintiff’s attorneys fees.” Shiedmakers, Conclusions of Law, No. 6, 34 Chester County Reports 394, 402. Accord, Decree Nisi, Id.,403.

VI. Conclusion Attorney Alina Habba is a graduate of Widener University Law School. Will she receive the year’s Alumni Award? Will she appear on the Law School’s website under notable alumni? “Citizens [lawyers], hear me out, this could happen to you.” The Kingston Trio, Introduction to Charlie on the MTA (recorded in 1959).

VII. Federal Practice

In my last article, I said that Donald J. Trump v. United States of America7 could be an introductory chapter to a text on federal jurisdiction. (See: The Blank Page, New Matter, 4th Quarter, 2022.) Trump v. Clinton could be another chapter (maybe two). Perhaps these cases will be the start of a treatise: Trump on Federal Practice; Forward by Alina Habba, Esquire, Preface by Judge Aileen M. Cannon.

5The judge does not specifically employ the term “judicial notice.” This is my own observation and interpretation.

6See: Trump v. Clinton, Order for Sanctions, 21-34. The Judge’s focus was probably on the cases in which he thought that the litigation abuses were most pronounced. But there are potentially dozens (or even scores) more, including (but far from limited to) those cases in Federal and State courts challenging the 2020 election.

7U.S.D.C. Sou. Dist. Fl., 22 cv-81294-AMC [Aileen M. Cannon], reversed, CA 11th Cir., No. 22-13005 (2022).

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