Memorandum and Order

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

J ESSE RAWLS, SR., and MARK Y. : No. 1:13-cv-2867
SUSSMAN, :
:
Plaintiffs, : Hon. J ohn E. J ones III
:
v. :
:
DR. SUSAN KEGERISE, :
:
Defendant. :
MEMORANDUM & ORDER
August 25, 2014
Presently before the Court is Defendants Motion for Sanctions pursuant to
Rule 11 of the Federal Rules of Civil Procedure (Doc. 14), and, also, Plaintiffs
Motion to Strike Defendants Motion for Sanctions (Doc. 15). For the reasons
herein stated, we shall deny Defendants motion, effectively mooting Plaintiffs
motion.
I. BACKGROUND
On November 25, 2013, Plaintiffs, members of the Susquehanna Township
School District Board of Directors, filed a complaint against Defendant, the
Superintendent of the Susquehanna Township School District, and two others, the
Susquehanna Township School Board and the School District. (Doc. 1). In their
1
Case 1:13-cv-02867-JEJ Document 33 Filed 08/25/14 Page 1 of 18
pleading, Plaintiffs alleged a deprivation of their First Amendment rights (Count I)
and sought a declaratory judgment proclaiming Defendant's employment contract
void (Count II), and also requested punitive damages.
1

On J anuary 21, 2014, Plaintiffs filed an Amended Complaint (Doc. 10),
retaining Defendant as the sole adverse party. Again, Plaintiffs advanced a claim
for violation of their First Amendment rights, alleging that Defendant prevented
them from communicating with Susquehanna Township parents, students, teachers,
taxpayers, and residents (Count I), and sought punitive damages (Count II).
Relevantly, the Amended Complaint noted that Defendant's employment contract
required that "[c]riticisms, complaints, and suggestions called to the attention of
the school District shall be referred to the District Superintendent for study,
disposition, or recommendation to the Board of School Directors as appropriate,"
and argued that, under color of this provision, Defendant interfered with their
1
On J anuary 15, 2014, a related matter was removed to our court from the Dauphin
County Court of Common Pleas. See Kegerise v. Rawls, No. 14-cv-67. In that case,
Superintendent Kegerise sought to enjoin Mr. Rawls and Mr. Sussman from participating in
discussions at school board meetings regarding the instant matter (i.e., the federal litigation they
had initiated). Dr. Kegerise filed an Emergency Motion to Remand, which we granted on the
rationale that the two matters were insufficiently related to support supplemental jurisdiction.
Also on that date, counsel for the School Board and District sent a letter to Plaintiffs
notifying them of their intent to seek sanctions under Rule 11. (Doc. 14-3). The letter argued,
among other things, that Plaintiffs First Amendment claim amounted to little more than a
generalized grievance about perceived prerogatives as Board members and that their request
for declaratory judgment lacked subject matter jurisdiction. (Id. pp. 1-2). The notice generally
characterized that Plaintiffs lawsuit is so ill-conceived that it can only have been filed for a
political, not legal purpose. (Id. p. 2).
2
rights to directly communicate with Township residents. (Doc. 10, 14-15).
Plaintiffs stated that there is a single email address through which parents, students,
teachers, and residents may correspond with school board members. (Id. 54).
Under the single email address scheme, the superintendent has the absolute
discretion to determine when an email will be distributed to directors or even if an
email will be disseminated. (Id. 56). Plaintiffs believe that numerous emails
directed to school board members were never forwarded to them by Defendant.
(Id. 90).
In a letter dated February 7, 2014 (Doc. 14-5), Attorney Kutulakis notified
Plaintiffs of Defendant's intent to seek sanctions under Rule 11 of the Federal
Rules of Civil Procedure, and outlined the reasons therefor, if the action was not
discontinued. Plaintiffs voluntarily dismissed the action 25 days later, on March 4,
2014. (Doc. 13).
On March 19, 2014, Defendant filed the instant Motion for Sanctions
pursuant to Rule 11 (Doc. 14). In the Motion, Defendant alleges, among other
things, that Plaintiffs lawsuit was motivated by improper political purposes and
constituted an attempt to harass Defendant. On the same date, Plaintiffs filed a
Motion to Strike Defendant's Motion for Sanctions, arguing that Defendant's
3
motion must be stricken for failure to comply with the procedural requirements of
Rule 11(c)(2). (Doc. 15).
The following day, we issued an Order (Doc. 16) prescribing an expedited
briefing schedule for the sanctions motion and setting a hearing. The parties fully
briefed the Motion (Docs. 18, 19, 20), and, in addition, Defendant submitted a
supplemental supporting brief (Doc. 21).
We held a hearing on April 22, 2014. At the hearing, Defendants proffer
included various news articles, relevantly reflecting the following: Plaintiffs had
voted against approving Defendants contract on April 22, 2013 (Ex. 9, P48);
Plaintiffs intention to file the underlying lawsuit was announced to the media on
October 31, 2013, days before a school board election (but weeks before it was
actually filed) (Ex. 9, P14-P15); Plaintiffs counsel, Attorney Keisling, had
intended to file the lawsuit on October 31, but decided to delay filing in order to
gather more input from stakeholders and attorneys in the community, and also
based on a request from counsel for Defendant, Attorney Kutulakis, and to make it
clear that the lawsuit was not politically motivated (Ex. 9, P17-P18); on November
1, 2013, Plaintiffs and Attorney Keisling attempted to host a news conference with
respect to the litigation at a district administration building, where, at the same
time, District Solicitor Paul Blunt had called a meeting of school board members
4
but had excluded Plaintiffs (Ex. 9, P19); police were called to the administration
building to respond to some sort of confrontation at the event (id.); at the time
Plaintiffs filed their Amended Complaint in J anuary 2014, dropping the school
board and district from the suit, they released a statement explaining that they
were confident the court would have ultimately struck down the superintendents
contract, but that the litigation had divid[ed] the School Board and hamper[ed]
[their] ability to govern (Ex. 9, P89); they further explained that they were
persisting in their case against Defendant to strike down the First Amendment
violations of the superintendents contract (Ex. 9, P90); and, when they ultimately
voluntarily dismissed their case against Defendant, Plaintiffs issued a statement
that the reasons for filing this action have been corrected as result [sic] of
community and media interest in the case and recent events as [o]ur community
is now aware of the intimidating tactics used by Dr. Kegerises attorney, J ason
Kutulakis, in an attempt to prevent District residents and taxpayers from
communicating with their elected School Board Directors (Ex. 9, P137).
Also at the hearing, the parties offered the testimony of Plaintiffs Rawls and
Sussman and Kathy DelGrande, another member of the Susquehanna Township
School Board. Plaintiff Rawls testified, among other things, that he never
contacted the media concerning the underlying lawsuit and that his attorney
5
handled communications with the media. Plaintiff Rawls also stated that it was his
lawyer who determined when to file the initial complaint, and Attorney Keisling
stipulated on the record that he controlled the logistics of the litigation. Plaintiffs
Rawls and Sussman both testified to their belief that Defendants contract was
illegal and that their First Amendment rights had been violated. Ms. DelGrande
primarily testified concerning the encounter of November 1, 2013, involving
Defendant, Attorney Keisling, and Solicitor Blunt, among others, and she
described Attorney Keislings demeanor as anxious and upset.
2
She also spoke to
the districts email policy relevant to the superintendent.
Following the hearing, the parties submitted additional briefing limited to
the nature of the sanctions sought (Docs. 31, 32).
II. LEGAL STANDARD
Rule 11 is purposed to deter baseless filings in district court and thus . . .
streamline the administration and procedure of the federal courts. Cooter & Gell
v. Hartmarx Corp., 496 U.S. 384, 393 (1990). In relevant part, the Rule provides
that:
by presenting to the court a pleading, written motion, or
other paper--whether by signing, filing, submitting, or
2
In addition, Defendant submitted video footage capturing the encounter, primarily to show Mr.
Keislings aspect and tenor during the meeting. The Court has reviewed the submission and
agrees that it reflects a strained and hostile environment and that Mr. Keisling appeared agitated.
6
later advocating it--an attorney or unrepresented party
certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not being presented for any improper purpose,
such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument
for extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably
based on belief or a lack of information.
FED. R. CIV. P. 11(b). A court may impose sanctions where an attorney, law firm,
or party violates the above provision. See FED. R. CIV. P. 11(c)(1).
From a procedural standpoint, a party seeking sanctions must tender a
motion for sanctions, describing therein the protested conduct, and must serve the
motion on the opposing party before presenting it to the court. See FED. R. CIV. P.
11(c)(2). The opposing party then has a 21-day safe harbor period to withdraw
or correct the challenged paper, thereby escaping sanctions. See id.; In re Schaefer
7
Salt Recovery, Inc., 542 F.3d 90, 99 (3d Cir. 2008). After the period has elapsed,
the movant may file the motion with the court. See FED. R. CIV. P. 11(c)(2).
Once a motion has been filed, a district court must review the protested
representations for reasonableness under the circumstances, inquiring what was
reasonable to believe at the time the filing was submitted. Dura Systems, Inc. v.
Rothbury Investments, Ltd., 886 F.2d 551, 556 (3d Cir. 1989) (citations omitted).
The court should consider a number of factors, including whether the filing was
based on a plausible interpretation of the law. See id. At its essence, Rule 11
imposes on counsel a duty to look before leaping and may be seen as a litigation
version of the familiar railroad crossing admonition to stop, look, and listen.
Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986). In applying the
objective standard of reasonableness, the wisdom of hindsight should be
avoided. Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir. 1988).
Although the Rule imposes a duty of reasonable inquiry as to both facts and law,
it is not intended to chill an attorney's enthusiasm or creativity in pursuing factual
or legal theories, Dura Systems, 886 F.2d at 556 (quoting FED. R. CIV. P. 11
(advisory committee notes)), and, in general, sanctions are appropriate only in the
exceptional circumstance where a claim or motion is patently unmeritorious or
8
frivolous, Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 289 (3d
Cir. 1991) (citation and internal quotation marks omitted).
III. DISCUSSION
Defendants Motion for Sanctions is predicated on her position that
Plaintiffs pleading was presented for an improper purpose and, also, that their
legal claims were not warranted by existing law. Plaintiffs counter that sanctions
do not lie because, among other things, Defendant failed to comply with the
procedural requirements of Rule 11.
We first address Plaintiffs argument based on procedure.
A. Whether Defendant satisfied Rule 11(c)(2)s procedural
requirements
As discussed above, Rule 11 provides for a safe harbor period, which is
triggered by service of the motion for sanctions and purposed to allow amendment
or withdrawal of the challenged paper. Thus, the Rule states that [t]he motion
must be served under Rule 5, but it must not be filed or be presented to the court if
the challenged paper, claim, defense, contention, or denial is withdrawn or
appropriately corrected within 21 days after service . . .. FED. R. CIV. P. 11(c)(2).
As a threshold matter, Plaintiffs contend that sanctions may not be imposed
because Defendant did not serve the Motion upon Plaintiffs before filing it as
required by Rule 11(c)(2), but rather, presented them with a letter. Defendant
9
argues that she substantially complied with the service requirement by tendering a
letter to Plaintiffs describing the sanctionable conduct. (Doc. 14-5).
The Third Circuit has not explicitly decided this issue. In a non-precedential
opinion, the Third Circuit has indicated that service of a notification letter, rather
than the motion for sanctions, may satisfy Rule 11's safe harbor provision. See In
re Mondelli, 508 Fed. Appx. 131, 135 (3d Cir. 2012). However, in a subsequent
published pronouncement, the Court observed that several courts of appeals have
disagreed with Mondellis conclusion, ruling that a notification letter or other
warning did not satisfy Rule 11's procedural requirements. See In re Miller, 730
F.3d 198, 204 n.5 (3d Cir. 2013) (citing, inter alia, Roth v. Green, 466 F.3d 1179,
1192 (10th Cir. 2006); Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998)).
We are persuaded by the reasoning of the cases diverging from Mondelli
and, therefore, join the numerous other courts that have held that informal notice of
an imminent motion for sanctions does not satisfy Rule 11's procedural
requirement. See, e.g., Roth, 446 F.3d at 1192 (notification letter); Barber, 146
F.3d at 710 (same); Soccer Shots Franchising v. Lookingland, No. 13-928, 2013
WL 5408642, at *2 (M.D. Pa. Sept. 25, 2013) (email correspondence); Gottschalk
v. City & Cnty. of San Francisco, 964 F. Supp. 2d 1147, 1168-69 (N.D. Cal. 2013)
(same); Bourdier v. Derm. & Aesthetics Inst., LLC, No. 11-237, 2013 WL 486971,
10
at *3 (M.D. La. Feb 6, 2013) (warnings in a Status Report, Rule 11 demand letter,
and relevant claim for attorneys fees in counterclaim). See generally 5A CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE
1337.2 (3d ed.) (collecting cases).
Significantly, the plain language of Rule 11 mandates service of the
motion, see Roth, 466 F.3d at 1192; Barber, 146 F.3d at 710, and the Advisory
Committee Notes reinforce a strict interpretation. Pertinently, the Advisory
Committee Notes encourage the movants counsel to give informal notice to the
other party, whether in person or by a telephone call or letter, . . . before
proceeding to prepare and serve a Rule 11 Motion. FED. R. CIV. P. 11, Advisory
Committee Notes, 1993 Amendments (emphasis added). As observed by the Tenth
Circuit, this commentary clearly suggest[s] that warning letters . . . are
supplemental to, and cannot be deemed an adequate substitute for, the service of
the motion itself. Roth, 466 F.3d at 1192. In addition, the Advisory Committee
Notes articulate the gravity of a motion for sanctions, emphasizing the protective
function of the safe harbor provision in providing a formal warning to a party:
[t]o stress the seriousness of a motion for sanctions and to define precisely the
conduct claimed to violate the rule, the [rule] provides that the safe harbor period
begins to run only upon service of the motion. FED. R. CIV. P. 11, Advisory
11
Committee Notes, 1993 Amendments (emphasis added); see also Roth, 466 F.3d at
1192 (The safe harbor provisions were intended to protect litigants from sanctions
whenever possible in order to mitigate Rule 11's chilling effects, formalize
procedural due process considerations such as notice for the protection of the party
accused of sanctionable behavior, and encourage the withdrawal of papers that
violate the rule without involving the district court. (citing 5A CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 1337.2, at
722 (3d ed. 2004) (internal quotation marks and alteration omitted))).
It would therefore wrench both the language and purpose of . . . the Rule to
permit an informal warning to substitute for service of a motion. Barber, 146
F.3d at 710. As Defendant provided Plaintiffs with a warning letter and did not
serve the actual motion upon the parties, we find that Defendant has failed to
comply with the Rules requirements. On this basis alone, we could deny
Defendants motion for sanctions. See Soccer Shots, 2013 WL 5408642, at *2 n.4.
However, even if Defendant had fulfilled the procedural prerequisites, we
additionally find that the motion for sanctions would fail on the merits.
B. Whether Plaintiffs' claim was brought for an improper purpose
(Rule 11(b)(1))
Defendant argues that Plaintiffs lawsuit was brought for improper political
reasons and also to harass Defendant. Defendant notes that Plaintiffs announced
12
their intention to file an action mere days before the November 5, 2013, school
board election, thereby positioning Plaintiff Rawls, who successfully won re-
election, as the most anti-administration candidate. By delaying actual filing of the
Complaint until November 25, 2013, Defendant observes that Plaintiffs avoided
scrutiny of their factually and legally baseless causes of action until after the
election was concluded. (Doc. 18, p. 5). In addition, Defendant advances that
Plaintiffs tacitly admitted that their action was politically motivated by stating that
the issues underlying the suit were resolved by community and media attention. In
terms of harassment, Defendant alleges that the action served to escalate Plaintiffs
general grievances about school district policy and that their averments relate to
political questions on which they were outvoted on the school board.
A plaintiffs alleged improper purpose must be objectively tested. See Lieb,
788 F.2d at 157. As to harassment, the filing must do more than annoy or vex the
movant. Accord Zaldivar v. City of Los Angeles, 780 F.2d 823, 832 (9th Cir. 1986)
(Harassment under Rule 11 focuses upon the improper purpose of the signer,
objectively tested, rather than the consequences of the signer's act, subjectively
viewed by the signer's opponent; finding sanctionable harassment where the
plaintiffs filed successive complaints based on previously rejected propositions of
law), abrogated on other grounds by Cooter & Gell, 496 U.S. 384. Courts are
13
likely to reject an allegation of impropriety where the underlying claim is
determined to be reasonable and not frivolous. See, e.g., Flaherty v. Torquato, 623
F. Supp. 55, 59-60 (W.D. Pa. 1985).
Examined objectively, we cannot conclude that Plaintiffs submissions to the
Court were filed for an improper purpose. Even taking a broad view of this
proceeding (and not focusing solely on the Amended Complaint, the pleading
targeted by the Motion for Sanctions), we cannot deduce that the litigation
preeminently served a political aim, especially considering that the first complaint
was filed with the Court after Plaintiff Rawls was successfully reelected to the
school board. To the extent Defendant alleges that the Amended Complaint was
filed to harass, we certainly recognize that this litigation involves much antipathy,
and that various allegations of the Amended Complaint casting Defendant and her
counsel poorly are arguably excessive and immaterial. However, viewed
dispassionately, Plaintiffs filings do not rise to the level of harassment, and it is
notable that Defendants supporting argument alleges no more than an escalation
of general grievances and disagreements amongst the parties. Moreover, our
rejection of Defendants accusation of impropriety is further bolstered by the
determination infra that Plaintiffs filing was not patently unmeritorious.
C. Whether Plaintiffs claim was unwarranted by existing law and/or
frivolous (Rule 11(b)(2))
14
Defendant argues that the Plaintiffs cause of action is frivolous for the
following reasons: (1) lack of standing; (2) failure to show a constitutional
deprivation; and (3) failure to join a necessary party.
As stated, a plaintiffs claim must be reasonable under the circumstances,
and a party should not be sanctioned merely because his nonfrivolous argument is
ultimately found to be unjustified. See Dura Sys., Inc., 886 F.2d at 556. Among
other factors, a court should consider the plausibility of the legal position
advocated in gauging the reasonableness of the pleading. See Mary Ann Pensiero,
Inc., 847 F.2d at 95.
1. Standing
Defendant argues that Plaintiffs lacked standing because the school board as
a whole did not elect to undertake legal action against Defendant, and according to
Defendant, members of collegial bodies do not have standing to file a suit which
the body itself has declined to initiate. See Bender v. Williamsport Area School
District, 475 U.S. 534, 535 (1986) (stating that a school board member may not
step into the shoes of the board to perfect an appeal that the [board] itself has
declined to take). Bender, upon which Defendant relies, appears distinguishable
as that case involved a lone school board member seeking to file an appeal on
behalf of the board as a whole. Moreover, it seems to us to be both logical and
15
appropriate that school board members should have standing to defend their own
constitutional rights. Based on the above, Plaintiffs presumption that they had
standing was not so unreasonable as to warrant sanctions.
2. Constitutional claim
Defendant argues against the validity of Plaintiffs central claim that
Defendant violated their First Amendment rights by interfering with direct
communication between the school board and township residents. Defendant
states that the policy that communications directed to the school district be filtered
through the superintendent for her review and recommendation as memorialized
in her contract was implemented by the school board and demonstrates no
constitutional violation on her part. Even if Plaintiffs experienced a constitutional
deprivation, Defendant argues that Plaintiffs waived their rights by agreeing to
Defendants employment contract.
Notably, Defendant characterizes Plaintiffs claims as frivolous for failure
to state a claim upon which relief could be granted. (Doc. 20, p. 7). However,
this, the measure for a motion to dismiss, is far more expansive and encompassing
than the patently unmeritorious standard guiding our sanctions inquiry. As
Defendant acknowledges by implication, although Plaintiffs claims may have
been somewhat ill-conceived and vulnerable to 12(b)(6) dismissal, they were not
16
beyond reason.
3. Indispensable parties
Here, Defendant argues that the School District was a necessary party to
Plaintiffs action because, as a party to Defendants employment contract, it would
be harmed by a ruling voiding or enjoining the enforcement of the contract. Again,
based on Rule 11s high threshold, such an alleged procedural defect would not
support sanctions and would be appropriately addressed by a motion to dismiss.
Having determined that Defendants motion for sanctions fails for
procedural noncompliance, and also on the merits, we need not discuss the nature
of the sanctions available.
Finally, inasmuch as Plaintiffs seek attorneys fees and costs incurred in
defending against the Motion, see FED. R. CIV. P. 11(c)(2), they provide little
meaningful argument demonstrating that such an allocation is justified, and we do
not believe it is warranted.
IV. CONCLUSION
It cannot be denied that this case involves long-running and deep-seated
pathology. Regrettably, the discord amongst the parties has embodied a divisive
force within the Susquehanna Township School District, manifesting at times as
outright hostility, and has undoubtedly had a deleterious effect on the larger
17
community, including parents and students. Moreover, the muckraking in this
matter is not limited to the parties but has been exacerbated by counsel, as well.
Yet, despite the bad blood and behavior outside of the courtroom, sanctions are
inappropriate as applied to this litigation. At bottom, we do not find that Plaintiffs
claims were patently unmeritorious or the product of an improper purpose. Nor do
we find that Plaintiffs are entitled to their fees and costs. We will thus leave all
parties where we found them, which is the just and proper result under the
circumstances of this unfortunate fracas.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. Defendants Motion for Sanctions (Doc. 14) is DENIED.
2. Plaintiffs Motion to Strike Defendants Motion for Sanctions (Doc.
15) is DENIED AS MOOT.
s/ J ohn E. J ones III
J ohn E. J ones III
United States District J udge
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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

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