Stone v. Wolff Properties LLC

MEMORANDUM **

Nonparty attorney Richard J. Stone appeals the district court’s order sanctioning him sua sponte pursuant to Rule 11 of the Federal Rules of Civil Procedure. We reverse.

The Local Rules for the District of Oregon provide that the first paragraph of every motion (save a motion for a temporary restraining order) must certify that “[t]he parties made a good faith effort through personal or telephone conferences to resolve the dispute and have been unable to do so....” LR 7.1(a)(1)(A). In connection with a motion for summary judgment filed on behalf of his client, Stone certified that “the parties have made good faith efforts through meetings and telephone conferences to resolve the issues raised by this motion but have been unable to do so.” Following an order to show cause and a hearing, the district court determined that Stone’s certification “was without basis in fact” and cited him for violating Rule 11(b).

The district court clearly erred in finding that the certification lacked any basis in fact. Stone had, in fact, conferred with opposing counsel regarding possible resolution of the dispute, both before and shortly after the action was filed. It is true that…

dissenting.

Because the majority misreads the record and usurps the district court’s fact-finding function, I respectfully dissent.

In his amended motion for summary judgment, Stone certified “that the parties have made good faith efforts through meetings and telephone conferences to resolve the issues raised by the motion but have been unable to do so.” Altamont Summit Apartments LLC v. Wolff Properties LLC, 2002 WL 31971832 , at *3 (D.Or.2002) (emphasis added). The majority finds that this certification “accurately reflected historical events.” Maybe so, but the context and wording were such as to be deceptive. Nonetheless, the majority holds that the district court clearly erred in finding that the certification lacked any basis in fact. But how can discussions held months before the motion was filed and even before the lawsuit was commenced be accurately characterized as “meetings and conferences” held “to resolve the issues raised in the motion?” At the time the meetings and conferences were held, the substance of the motion was not even within the contemplation of the parties — no one could then know what the issues to be raised in a future motion would be, how they would…