Opinion
Cause No. IP00-0459-C-H/K.
July 23, 2004
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Charles H. Sanderson sells and promotes the use of magnetic systems to remove lime scale from water without the use of chemicals. Sanderson has sued defendants Indiana Soft Water Services, Inc and Culligan International ("Culligan") for allegedly distributing and publishing false information disparaging his products. Sanderson seeks relief under the Lanham Act and the common law torts of defamation and product disparagement.
Sanderson's Third Amended Complaint asserted a variety of state law claims and alleged a broad and decades-long conspiracy on the part of Culligan to spread misinformation about his magnetic systems. The court dismissed many of the allegations in the complaint, limiting the case to specific communications occurring within the two-year statute of limitations period. The court also determined that the surviving allegations supported only the Lanham Act, defamation and tortious interference claims. See 2002 WL 31255470 (S.D. Ind. Sept. 20, 2002).
After the January 2003 pre-trial conference, Sanderson voluntarily dismissed the tortious interference claim. On February 9, 2004, the parties stipulated to the dismissal of all claims against defendant Indiana Soft Water Services, Inc., leaving Culligan International Company as the only defendant.
Culligan has moved for summary judgment on all remaining claims. As explained below, the motion is granted as to all remaining claims. Sanderson has not come forward with sufficient evidence to support findings that the communications about which he complains constituted "commercial advertising or promotion" within the meaning of the Lanham Act, or that he was injured by the communications. On the common law claims, a reasonable jury could not find that the communications in question were directed at Sanderson or his products in particular. Absent this essential element, Sanderson's common law claims must fail.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). As required when deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the non-moving party. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999).
Once a party has made a properly supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials that "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996). In deciding a motion for summary judgment, the court may not weigh conflicting evidence and choose from among conflicting reasonable inferences from the evidence. However, when a party has shown that it is entitled to summary judgment, it would be a "gratuitous cruelty" to put the parties and others through the stress of a trial that could have only one outcome. See Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Undisputed Facts
For purposes of defendants' motion, and in light of the foregoing standard, the court treats the following facts as undisputed. Plaintiff Charles Sanderson is the inventor and manufacturer of a number of magnetic devices used to improve certain qualities of water. The idea that magnets could be used to improve the quality of water has been around since at least the late nineteenth century. Pl. Ex. 24. Sanderson has been promoting his products at trade shows sponsored by the Water Quality Association ("WQA") since the late 1970s. Culligan International is one of the largest manufacturers of water treatment products in the world. It does business through a combination of wholly-owned subsidiaries and franchisee dealerships.
Three sets of communications are at issue in this case. The first occurred in the fall of 1999. On October 29, 1999, Mrs. John Dean, a customer interested in buying a water treatment system, received a fax from Gill Parsley of Culligan Water Company of San Diego, Inc. Included in the fax was an article entitled "Do Magnetic and Electromagnetic Water Conditioners Work?" from the journal Water Conditioning and Purification. The article purports to be a brief review of the various scientific studies assessing the effectiveness of magnetic water treatment. The author of the article is skeptical about many of the claims made by the sellers of magnetic devices. The article concludes by calling for more research in the area. Pl. Ex. 24.
Several days after receiving this article, Mrs. Dean called Sanderson's company, Superior Manufacturing, and mentioned the fax that she had received from Culligan of San Diego. Sanderson asked her to fax the article to him and she did so. Mrs. Dean ultimately chose to purchase a magnetic water treatment device from Sanderson. Sanderson Dep. at 15.
Several months later, in January 2000, Vincent Rorick, president of Alpha Water Services, a company that served as a distributor of Sanderson's magnetic water treatment systems, attended the Austin Home and Garden Show in Austin, Texas. During the show, Rorick visited the booth of Jack Boettcher, a dealer of Culligan products. At Boettcher's booth, Rorick obtained an information packet regarding Culligan's products. Included in this packet was a document with the heading "IS THIS THE TYPE OF STUFF YOU WANT FOR YOUR HOME? ?" Rorick Aff. ¶ D. The document contains several quotations from newsletters and magazines critical of magnetic water treatment systems. Pl. Ex. 9 at 2. Also included in the packet obtained by Rorick is a copy of the "Letters to the Editor" section of the March 1995 issue of the journal Water Technology. The letters reprinted in this document apparently were written in response to an article discussing magnetic systems in an earlier issue. Three of the letters criticized magnetic treatment systems; one letter was supportive. Id. at 3.
Blanca DePaul, an employee of Alpha Water Services, also attended the Austin show and visited Boettcher's booth. At the booth, DePaul overheard Culligan personnel make the following statements: (1) "You'll be very sorry if you buy those magnets, because they never work"; (2) "Those magnet companies are `fly-by-night' operations that don't honor their guarantees or warranties"; and (3) "Right now, magnet water treatment systems are under investigation and will soon be taken off the market." DePaul Aff. ¶ D.
Sanderson claims that these communications made by Culligan or its agents defamed and disparaged him and his products. He seeks damages under the Lanham Act and the common law torts of defamation and product disparagement.
Discussion
I. Lanham Act Claims
Section 43(a) of the Lanham Act provides in relevant part:
Any person who . . . in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or another's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act.15 U.S.C. § 1125(a)(1)(B). The Seventh Circuit has identified the essential elements of a claim under this section as: (1) a false statement of fact by the defendant in a commercial advertisement about its own or another's product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by a loss of goodwill associated with its products. Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 819 (7th Cir. 1999).
The principal issue in this case centers on the first element — requiring a false statement in "commercial advertising or promotion" — which prevents Section 43(a)(1)(B) of the Lanham Act from creating a general federal tort of commercial defamation. Sanderson has failed to come forward with evidence of any distributions that could be considered "commercial advertising or promotion" within the meaning of the Lanham Act.
Three specific communications are at issue: (1) the distribution, in November 1999, of an article entitled "Do Magnetic and Electromagnetic Water Conditioners Work" to Mrs. John Dean; (2) the distribution, at the Austin Home and Garden Show in January 2000, of an informational pamphlet containing a publication with the heading "IS THIS THE TYPE OF STUFF YOU WANT FOR YOUR HOME?" to Vincent Rorick; and (3) several oral statements made by representatives of Jack Boettcher, a Culligan dealer, to people at the same Austin Home and Garden Show.
The Lanham Act and its legislative history do not define the phrase "commercial advertising or promotion." See Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 734 (9th Cir. 1999); Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1383 (5th Cir. 1996). Some courts facing the issue have noted that the terms "advertising" and "promotion" should be given their "plain and ordinary meanings." American Needle Novelty, Inc. v. Drew Pearson Marketing, Inc., 820 F. Supp. 1072, 1077 (N.D. Ill. 1993) (single letter did not amount to "commercial advertising or promotion"). In seeking a more precise definition for "commercial advertising or promotion" under § 43(a) of the Lanham Act, several federal Courts of Appeals have adopted the four-part test set forth in Gordon Breach Science Publishers v. American Inst. of Physics, 859 F. Supp. 1521, 1535-36 (S.D.N.Y. 1994):
In order for representations to constitute "commercial advertising or promotion" under Section 43(a)(1)(B), they must be: (1) commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendant's goods or services. While the representations need not be made in a "classic advertising campaign," but may consist instead of more informal types of "promotion," the representations (4) must be disseminated sufficiently to the relevant purchasing public to constitute "advertising" or "promotion" within that industry.
See, e.g., Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 58 (2d Cir. 2002); Proctor Gamble Co. v. Haugen, 222 F.3d 1262, 1273-74 (10th Cir. 2000); Coastal Abstract Serv., 173 F.3d at 735; Seven-Up, 86 F.3d at 1384.
The Seventh Circuit, however, expressed "serious doubts" about this formulation, at least to the extent it equates "commercial advertising or promotion" with "all commercial speech that the first amendment allows the federal government to regulate." First Health Group Corp. v. BCE Emergis Corp., 269 F.3d 800, 803 (7th Cir. 2001). The Seventh Circuit's view of "commercial advertising or promotion" is narrower: advertising, which involves the "dissemination of prefabricated promotional material," is "a form of promotion to anonymous recipients, as distinguished from face-to-face communication." Id. at 803-04.
Whatever the mode of communication, all courts agree that there must be some sort of significant dissemination of misinformation to the relevant public to trigger the protections of Section 43(a)(1)(B). What can be termed "significant" will "undeniably vary from industry to industry" depending on the size of the relevant market. American Needle, 820 F. Supp. at 1078; accord, Sports Unlimited, Inc. v. Lankford Enters., 275 F.3d 996, 1005 (10th Cir. 2002); Seven-Up, 86 F.3d at 1385; Gordon Breach, 859 F. Supp. at 1535. Thus, a single letter sent to one person in the context of a large and nationwide market for roofing materials has been held not to amount to "commercial advertising or promotion." See Garland Co. v. Ecology Roof Sys., Corp., 895 F. Supp. 274, 279 (D. Kan. 1995) (granting motion to dismiss); see also Fashion Boutique, 314 F.3d at 58 (affirming summary judgment for defendant; 27 oral statements in a marketplace of thousands of customers not "commercial advertising or promotion"); Sports Unlimited, 275 F.3d at 1004-05 (affirming summary judgment for defendant; dissemination of information to two customers where plaintiff made 150 bids a year was not "commercial advertising or promotion"); Cavalier Telephone, LLC v. Verizon Virginia, Inc., 208 F. Supp. 2d 608, 618 (E.D. Va. 2002) (unspecified number of isolated contacts in market of several million telecommunications customers not "commercial advertising or promotion"), aff'd, 330 F.3d 176 (4th Cir. 2003); American Needle, 820 F. Supp. at 1078 (single letter in context of licensed headwear market not "commercial advertising or promotion"); cf. Coastal Abstract, 173 F.3d at 735 (misrepresentation made to one of three potential clients sufficient to show "commercial advertising or promotion"); Seven-Up, 86 F.3d at 1386 (statements made to 11 out of 74 potential customers sufficient to show "commercial advertising or promotion").
With these cases in mind, the undisputed facts in this case show that the distributions of the allegedly disparaging printed materials in November 1999 and January 2000 did not rise to the level of "commercial advertising or promotion." Plaintiff Sanderson has acknowledged that the relevant market for water purification and treatment systems consists of "millions of potential customers" located throughout the entire world. Pl. Supp. Resp. to Interrog. Nos. 20(a), (b). In this context, two individual communications, each directed to a single potential customer, are insufficient to show "commercial advertising or promotion" within the meaning of the Lanham Act. The Lanham Act targets only "representations [that] are part of an organized campaign to penetrate the relevant market." Fashion Boutique, 314 F.3d at 57. The Lanham Act leaves such isolated and sporadic communications like the November 1999 fax sent to Mrs. Dean and the January 2000 pamphlet given to Rorick to be addressed under the common law of torts like defamation and interference with a business relationship. See American Needle, 820 F. Supp. 1072, 1077 n. 2.
The evidence regarding the oral statements allegedly overheard at the Culligan booth is too vague to support Sanderson's allegations of an organized campaign to disparage his products. The sum of the evidence comes from the affidavit of Ms. Blanca DePaul, an employee of Alpha Water Systems, which at the time was a dealer of magnetic water systems. DePaul testified that she visited Boettcher's booth at the Austin Home and Garden Show and overheard Culligan personnel say: (1) "You'll be very sorry if you buy those magnets, because they never work."; (2) "Those magnet companies are `fly-by-night' operations that don't honor their guarantees or warranties."; (3) "Right now, magnet water treatment systems are under investigation and will soon be taken off the market." DePaul Aff. ¶ D. DePaul, however, fails to mention to whom, besides herself, these comments were directed.
The affidavits of both DePaul and Rorick, her employer, contain the following statement referring to the 2000 Austin Home and Garden Show: "At that event I was told by a customer of mine that a Culligan Dealer, also exhibiting at the Home Show, was making disparaging remarks about magnetic treatment, and distributing information about magnetics." DePaul Aff. ¶ C; Rorick Aff. ¶ E. Culligan's hearsay objection to these points is sustained. The court has not considered this portion of the DePaul and Rorick affidavits.
On the record before the court, only one person — DePaul — heard the allegedly disparaging statements made by unspecified "Culligan personnel." As discussed above, a single oral communication in the context of a market of millions of customers is insufficient to show "commercial advertising or promotion," especially in light of the Seventh Circuit's decision in First Health Group, 269 F.3d at 803-804 (distinguishing advertising from "face-to-face communication" or a "person-to-person pitch"). See also Licta Co. Inc. v. Goldberg, 812 F. Supp. 403, 408 (S.D.N.Y. 1993) (observing that "isolated individualized oral comments about competitors are at the opposite pole from clearly definable media advertising or printed material containing specific verifiable or disprovable statements and given wide distribution in commerce").
Sanderson responds in conclusory fashion by asserting, without citing any relevant evidence in the record, that Culligan's dissemination of disparaging materials extends beyond the specific instances alleged in his complaint. Sanderson claims that misleading materials continue to be distributed by Culligan "wide and far." Pl. Br. at 12-13. To the extent that Sanderson is referring to a publication in January 1996, nearly four years before the incidents at issue here, the court has already dismissed that portion of the complaint based on the statute of limitations. See 2002 WL 31255470, at *2 (S.D. Ind. Sept. 20, 2002). To the extent that Sanderson is referring to unspecified disseminations of disparaging materials occurring within the limitations period, this argument fails due to the total absence of evidentiary support for his allegations. The Seventh Circuit has often said that summary judgment is, to put it bluntly, the "put up or shut up" moment in a lawsuit, when a party must show what evidence he has that would convince a trier of fact to accept his version of events. E.g., Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 901 (7th Cir. 2003). At the summary judgment stage, a plaintiff must present evidence — as opposed to mere allegations or promises of evidence to be produced in the future — of communications sufficient to come within the Lanham Act's protections. Sports Unlimited, 275 F.3d at 1004 (affirming grant of summary judgment). Because Sanderson has failed to do that here, Culligan is entitled to summary judgment on the Lanham Act claims.
Culligan is also entitled to summary judgment on an independent ground, the lack of injury. Based on plaintiff's evidence, the audiences for the deceptive statements made by Culligan consisted of (1) a customer who purchased a Sanderson product despite Culligan's communications; (2) the owner of a company dealing in Sanderson's products; and (3) an employee of the company dealing in Sanderson's products. Given that these are the only recipients identified by Sanderson, a fact-finder would be unable to find that the statements materially deceived their audience or that Sanderson was injured as a result.
The evidence shows that Rorick's company, Alpha Water Systems, eventually stopped selling Sanderson's products. However, there is no indication that this occurred as a result of the misrepresentations alleged here. To the contrary, Sanderson testified that Rorick "had very good success with magnetics. . . ." Sanderson Dep. at 21.
Sanderson argues that he is not required to prove that Culligan's alleged statements materially deceived consumers because the statements were "literally, explicitly or unambiguously false on their face." P. Br. at 15-16. The Seventh Circuit considered and rejected an identical argument in First Health Group:
Lack of actual confusion is irrelevant, First Health insists, because (a) [defendant's] statements were "actually false" rather than just misleading, and (b) it seeks prospective relief in addition to damages. For reasons we have already given the use of "PPO" by a non-directed network is not "actually false." But First Health's argument also is incorrect as a matter of law. Section 43(a)(1)(B) offers relief only to one who "is or is likely to be damaged by" the misrepresentation. Proof of likely confusion is essential to show injury — actual or potential — without which there is not even a case or controversy.269 F.3d at 805-806 (citation omitted). For this reason as well, Culligan is entitled to summary judgment on the Lanham Act claim.
II. Defamation and Product Disparagement Claims
Sanderson has brought state law claims for libel, slander and product defamation stemming from the same underlying incidents as the Lanham Act claims. The libel and slander claims are best discussed together under the general heading of defamation.
Culligan is entitled to summary judgment on these claims because the allegedly defamatory statements did not refer specifically to Sanderson or his products. "Defamatory words are not actionable unless they refer to some ascertained or ascertainable person, and that person must be the plaintiff." Schrader v. Eli Lilly and Co., 639 N.E.2d 258, 261 (Ind. 1994), quoting Lee v. Weston, 402 N.E.2d 23, 30 (Ind.App. 1980) (affirming summary judgment where allegedly defamatory statement did not refer to plaintiffs). This principle follows from the very definition of defamation. "Defamation is that which tends to injure reputation or to diminish esteem, respect, goodwill or confidence in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff." Branham v. Celadon Trucking Services, Inc., 744 N.E.2d 514, 522 (Ind.App. 2001). Thus the tort seeks to redress reputational harm suffered by a person.
As Culligan has pointed out, none of the allegedly defamatory statements mention or refer even obliquely to Sanderson. Indeed, many are not statements of fact at all and thus cannot be proved true or false. See, e.g., Pl. Supp. Resp. to Interrog. Nos. 20(a), (b) ("If you've already been misled about magnets' unsubstantiated capabilities, contact the Attorney General's Office at. . . ."). Most of the printed statements are excerpts or reprints from other articles criticizing the merits of magnetic water treatment systems. The only reference in any of these statements to an actual seller of magnetic systems is a general one: " Those magnetic companies are `fly-by-night' operations that don't honor their guarantees or warranties." DePaul Aff. ¶ D (emphasis added). Because Sanderson has not come forward with any evidence that this statement referred to him or his company specifically, Culligan is entitled to summary judgment on the defamation claims.
For essentially the same reason, summary judgment is also granted with respect to Sanderson's state law "product disparagement" claim. What Sanderson calls "product disparagement" has also been described by commentators as "disparagement of property," "slander of goods," "commercial disparagement," "trade libel," and "injurious falsehood." See Prosser and Keaton on the Law of Torts § 128, at 963 (5th ed. 1984); Restatement (Second) of Torts §§ 623A, 624 (1977). Although Sanderson has not cited any application of the tort in Indiana, it appears that there is at least some limited recognition of the cause of action in the state. See generally, Raybestos Products Co. v. Younger, 54 F.3d 1234, 1236 (7th Cir. 1995) (applying Indiana law; affirming without discussion of relevant merits jury's verdict in favor of plaintiff on defamation and injurious falsehood claims). The tort differs from defamation in that it seeks to protect economic interests rather than reputational interests. American Academic Suppliers, Inc. v. Beckley-Cardy, Inc., 922 F.2d 1317, 1323 (7th Cir. 1991) (applying Illinois and Ohio law). But as under the law of defamation, a statement is not actionable unless it is clear from its content and context that it refers specifically to the plaintiff's products. See Speiser, Krause Gans, The American Law of Torts § 33.5, at 1021 (1992); see also Heritage Mut. Ins. Co. v. Advanced Polyner Technology, Inc., 97 F. Supp. 2d 913, 932 (S.D. Ind. 2000) (collecting cases interpreting "product disparagement" in the context of insurance policies insuring against advertising injury; "[t]he insured's lack of any direct reference to a competitor's goods or products repeatedly has compelled courts to find that the underlying plaintiff has not alleged an advertising injury under this disparagement offense.").
Sanderson's assertion that he was "for many years, the only exhibitor of magnetic water conditioning devices" at WQA trade shows would still not allow a reasonable jury to infer that every statement ever made that was generally critical of magnetic systems was directed at Sanderson's products in particular. In arguing that it would, Sanderson attempts to invoke the doctrine of "group libel, which Judge Sharp discussed but rejected in Gintert v. Howard Publ'ns, Inc., 565 F. Supp. 829, 832 (N.D. Ind. 1983). According to the doctrine, a person who defames a group or class of persons may be held liable to an individual belonging to that class if (1) the class is so small that the defamatory statement could reasonably have been understood to refer to that individual; or (2) the circumstances of publication reasonably give rise to the conclusion that the statement referred to that individual. Restatement (Second) of Torts § 564A.
The group libel theory does not save Sanderson's defamation claims. First, the concept of group libel has never been accepted by an Indiana court. Gintert, 565 F. Supp. at 833 (granting summary judgment for defendants). In fact, Indiana's libel statute explicitly emphasizes the requirement that the plaintiff be the subject of the defamatory statements: "In an action for libel or slander, it is sufficient to state generally that the defamatory matter published or spoken was about the plaintiff. If the defendant denies the allegation, the plaintiff must prove at trial the facts showing that the defamatory matter was published or spoken about the plaintiff." Ind. Code § 34-15-1-1. Second, Sanderson has cited no cases, in Indiana or elsewhere, in which the group libel theory has been extended to apply to product disparagement claims. Finally, even the limited group libel concept stated in the Restatement (Second) would not help Sanderson in this case. According to the evidence, there are many sellers of magnetic systems — including Culligan itself — and nothing Sanderson has submitted would allow a jury to find that the allegedly defamatory statements should be read as singling out his products in particular.
III. Defendants' Motion for Sanctions
Finally, the court must address defendants' motion for sanctions pursuant to 28 U.S.C. § 1927. The motion is based on plaintiff Sanderson's October 20, 2003 filing of a motion for a preliminary injunction. Culligan viewed the motion as a completely groundless effort to harass it. Culligan's counsel prepared and served on Sanderson's counsel a draft motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. Since the 1993 amendment to Rule 11, the rule has required a party to serve such a motion on the opposing party at least 21 days before filing the motion to give the opposing party an opportunity to withdraw the offending submissions. Fed.R.Civ.P. 11(c)(1)(A). In response to the Rule 11 "warning shot," Sanderson and his counsel withdrew the motion for preliminary injunction.
Culligan then filed its motion for sanctions pursuant to Section 1927, which authorizes monetary sanctions against an attorney "who so multiplies the proceedings in any case unreasonably and vexatiously." The fees which Culligan seeks are those it incurred in preparing the draft Rule 11 motion that prompted withdrawal of the motion for preliminary injunction. Culligan claims that those fees were nearly $12,000. Section 1927 does not contain the "warning shot" requirement, and Culligan has cited several cases noting the differences between Rule 11 and Section 1927. See, e.g., Smith v. CB Commercial Real Estate Group, 947 F. Supp. 1282, 1285-86 (S.D. Ind. 1996) (Barker, C.J.) (finding Rule 11 motion was untimely but awarding partial sanction under § 1927); see also Heghmann v. Fermanian, 2000 WL 1742122, *2 (D. Maine Nov. 27, 2000) (awarding sanctions under § 1927 when Rule 11 motion was untimely).
To decide Culligan's motion for sanctions, the court need not undertake a complete discussion of the relationship between Rule 11 and Section 1927. See generally Hutchinson v. Pfeil, 208 F.3d 1180 (10th Cir. 2000) (comparing the two grounds for sanctions). At least when the motion for sanctions seeks as relief only the costs of preparing the Rule 11 "warning shot," such an award of sanctions under Section 1927 would effectively nullify the warning shot provision of Rule 11(c)(1)(A). The court therefore exercises its discretion under Section 1927 to deny Culligan's motion for sanctions.
Conclusion
Sanderson's Lanham Act claims fail because the communications at issue were not "commercial advertising or promotion" within the meaning of the Lanham Act. His defamation and product disparagement claims fail because a jury could not reasonably read the communications to refer to Sanderson or his products specifically. Accordingly, the court grants defendants' motion for summary judgment in its entirety, which disposes of all remaining claims in this case. All other pending motions are denied. Final judgment will be entered accordingly.
So ordered.