Opinion
Civil Action No. 01-30166-MAP
April 9, 2002
MEMORANDUM REGARDING DEFENDANTS' MOTION FOR RULE 11 SANCTIONS (Docket No. 14)
I. INTRODUCTION
Plaintiff, pro se, a budding lawyer in the Commonwealth of Massachusetts, made the unfortunate decision to begin his career by bringing a frivolous lawsuit against, among others, the Chief Justice of the highest court in the state in which he intends to practice, the Massachusetts Board of Bar Examiners ("BBE"), the National Conference of Bar Examiners ("NCBE") and Erica Moeser, President of the National Conference of Bar Examiners ("Moeser").
The lawsuit, which claimed damages due to an allegedly improper elevation in the passing grade for the ethics exam, drew motions to dismiss from all defendants. In addition, the NCBE and Moeser filed a motion for sanctions and attorney's fees, pursuant to Fed.R.Civ.P. 11. Plaintiff filed a one-paragraph conclusory opposition to th motion but no memorandum elaborating his reasoning, in violation of the Local Rules. He then appeared on the day for oral argument, November 21, 2001, with an extensive written opposition offering numerous previously undisclosed arguments.
After hearing oral presentations, the court gave the defendants until December 7, 2001 to file a reply to plaintiff's expanded opposition and affidavits supporting their claim for attorney's fees. Before the defendants had time to file these papers, however, the plaintiff voluntarily dismissed all of his claims on November 30, 2001.
Thus, the only issue remaining before the court is the motion for sanctions filed by the defendants NCBE and Moeser. For the reasons set forth before, the Motion for Sanctions will be allowed, though in a reduced amount.
II. FACTUAL BACKGROUND
Plaintiff enrolled as a full-time law student at the Massachusetts School of Law in Andover in January 1999. He completed his Legal Ethics course in the spring of 2000 and took the Multi-state Professional Responsibility Exam ("MPRE") in August 2000. Massachusetts at that time required a scaled score of 75 to pass, and plaintiff scored 83.
In January of 2000, the BBE raised the MPRE passing score from 75 to 85, effective March 2001. The rule change had a grandfather clause for those who would take the July 2001 bar exam; they would be permitted to enter the bar with only a 75 score on the MPRE. All others would need an 85. This left the plaintiff, who would not graduate until December 2001, and who therefore would not be able to take the bar examination until February 2002, facing the requirement that he re-take the MPRE in an effort to boost his score to the passing level.
It is not clear from the record whether the plaintiff, in fact, has now re-taken and passed the MPRE.
Charging that the defendants somehow violated his Constitutional and contractual rights by increasing the passing score, plaintiff filed his seventeen-count complaint on September 7, 2001. He sought, among other things, injunctive relief requiring the defendants to accept his score of 83 as passing.
The BBE, Chief Justice Marshall and the other state defendants filed a motion to dismiss all counts as either barred by the Eleventh Amendment or failing to state a claim. The NCBE and Moeser filed a motion to dismiss based on lack of subject matter jurisdiction, failure to state a claim and (in Moeser's case), lack of personal jurisdiction. As noted above, plaintiff failed to file a proper written opposition to these motions, but nevertheless appeared at oral argument ready to present his theories for the first time. As noted, after the court heard oral argument and gave defendants additional time to respond, plaintiff voluntarily dismissed his entire lawsuit.
For purposes of the Motion for Sanctions, it is important to underline three points. First, the plaintiff has never offered the slightest basis for any exercise by this court of personal jurisdiction over the individual defendant Moeser. Second, the plaintiff never offered the slightest evidence, or even substantial allegations, suggesting that either Moeser or the NCBE engaged in any state action. Finally, the record is absolutely clear that neither Moeser nor the NCBE set the passing grade for the exam. Different jurisdictions apparently have different passing grades, and these two defendants never contracted to do anything, except administer the test fairly and grade it, with the question of the passing mark to be left to the individual jurisdiction.
III. DISCUSSION
Even the most cursory examination of the complaint and the filings confirms that the plaintiff failed to conduct a reasonable inquiry into the factual and legal basis for the claims presented in his complaint against either the NCBE or Moeser. Ms. Moeser lacks any contacts, "minimum" or otherwise, with the Commonwealth of Massachusetts; the court therefore lacks personal jurisdiction over her. The court moreover lacks subject matter jurisdiction over both Moeser and the NCBE; they are not state actors. Finally, given that the NCBE administered and scored its exam, as it promised to do, no contract-related claims can be offered against either Moeser or the NCBE.
Despite all this, plaintiff filed a seventeen-count complaint against both the NCRE and Moeser, along with a Motion for Preliminary Injunction. Once the Motion to Dismiss was filed, plaintiff failed to file a timely memorandum supporting his opposition, in violation of Local Rule 7.1(B)(2). This court finds that minimal research would have shown that his claims against the NCBE and Moeser were groundless.
Rule 11 specifically provides for sanctions against "unrepresented part[ies]." In addition, at least one court has recognized that a law student may have some enhanced obligation to recognize obvious deficiencies in his filings. See Levi v. Safeway, 1994 WL 706341, *7 (N.D.Cal. 1994). Here, the defendants have submitted affidavits from attorneys employed by these defendants from the firms of Peabody Arnold, LLP and Fulbright Jaworski, documenting fees in excess of $11,000 incurred as a result of the plaintiff's misconduct.
Plaintiff points out that the defendants did not comply with Fed.R.Civ.P. 11(c)(1)(A). The plaintiff was not served with the Rule 11 motion twenty-one days before it was filed with the court. Nevertheless, the plaintiff does not deny that he received the motion and took no action to withdraw his claims within the 21-day "safe harbor" period.
Under these circumstances, the court may consider what sanction is "sufficient to deter repetition of such conduct or comparable conduct by others similarly situated." Fed.R.Civ.P. 11(c)(2). In the circumstances of this case, the court is persuaded that a sanction in the amount of $2,000.00 is sufficient to satisfy the purposes behind Rule 11. This sanction will be paid on or before June 21, 2002 to counsel for the defendants NCBE and Moeser, Allen N. David of the law firm of Peabody Arnold LLP, 50 Rowes Wharf, Boston, MA, 02110.
A separate Order will issue.
ORDER
For the reasons stated in the accompanying Memorandum, defendants' Motion for Rule 11 Sanctions (Docket No. 14) is hereby ALLOWED. A sanction in the amount of $2,000.00 will be paid on or before June 21, 2002 to counsel for the defendants NCBE and Moeser, Allen N. David of the law firm of Peabody Arnold LLP, 50 Rowes Wharf, Boston, MA 02110.
It is So Ordered.