Opinion
02 C 7635
February 12, 2003
OPINION
Before me is Nextel's unanswered motion for Rule 11 sanctions. Sanctions are sought for the act of alleging, inter alia, facts which would support a class action, to wit, that the license agreement at issue between the named parties was "based on a form agreement that [Nextel] provided to Brighton. Upon information and belief, [Nextel] has used the same form agreement to establish license agreements with many property owners throughout the country." It is undisputed now that the agreement here is not a form agreement. Nextel says that plaintiff and its counsel could not have made this allegation had they conducted any investigation at all. Nextel made the usual admonishments to plaintiff and its counsel. Nothing happened. They filed a motion for sanctions after waiting the appropriate period of time, and I gave time to answer the motion. Indeed, I gave more than one opportunity to reply, even an oral response might do. But there is no response and lead counsel for the plaintiff have not appeared even though I ordered them to do so. Indeed, the class allegations were not withdrawn until 5 February 2003 well after the time to respond to the sanctions motion had passed. The motion for sanctions is uncontested. What is also uncontested is the statement of Nextel that: It is clear that Brighton Commons and its counsel decided that they wanted to leverage a garden variety breach of contract case into a purported nationwide class action. . . . [T]he situation is even more egregious than usual because there is a virtual identity of the lawyer and the client: the managing members of Brighton Commons, . . . Messer and Stilp, are two of the three attorneys who have filed appearances for Brighton Commons.
It is difficult to see why such a serious allegation would remain unanswered if it were not true and, looking at the history of this case, it appears to my eyes to be true.
I therefore grant the motion, find that there has been a violation of Rule 11, and set the matter down for further hearing on the issue of the nature and size of the sanction. I specifically order that the principals of Messer and Stilp, Ltd. appear at this hearing. The hearing is to be held at 11:00 am on 25 February 2003.