rule eleven is a ten is intended to deter claims with no factual or legal basis at all creative claims coupled even with ambiguous or in consequential fact dismissal and not punish we appeal the district court's imposition of rule eleven sanctions so you say that rule eleven is designed to sanction deter punish allegations factual allegations that have no basis is there any factual basis for the never paid allegation in the complaint yes there is only about it the there is because this case dealt with a piece rate under the f l s a the fair labor standards  that's at c f r twenty nine dollars c f r seven hundred and seventy eight dollars that's an all or nothing system the employer has to have certain variables one hundred percent correct in order to deviate from the normal payment of overtime dollar of those variables is the amount of weekly hours that the employee works if that very variable is off the whole system fails and therefore our contention from the very beginning of this case was that the plaintiffs or appt in this case was never paid overtime because he claimed that the hours were constantly shaved off of his time in the morning before the shift after the shift and other wives we can do it and we conducted a detailed client interview we filed the complaint as over time never having been paid pursuant to the fair labor standards act that's in our complaint and under rule eight we felt that that met the liberal pleading requirements of that rule when there is no requirement to specify the c f r nor is there any reason or or a political regulation that were that would require us to specify more than that mr sydell when you saw all that this was going south with the district court why did you not just amend the complaint to address what appeared to deadline had passed we were at the summary judgment phase of this case and they sent the ruhleben letter out after all of those deadlines had complied had passed already so when we got the rule eleven letter and which was a draft of their motion basically it was alleging everything it was just saying the case is frivolous we had we did not know specifically that they were complaining about paragraph thirteen i don't even know if they did until we file response they filed their reply and underscored paragraph thirteen says never paid overtime well had they brought that to our attention of the very beginning of the case when they knew about this clearly because they had the plaintiff's records they had the plaintiff's employee file where he signed that he acknowledged that he knew how the system was being paid to him they had all of that information at the very beginning of the case but they waited until after all of those deadlines had expired and there was nothing we could do especially with this particular district judge i can i can tell you that i felt at that time and i still do we would have had no chance at the summary judgment stage to say that we had a good cause to i'm in the complaint beyond the scheduling harder deadlines because good faith would have required diligence and to show that we didn't have the records which we did by that time everybody had the records because we had we had those produced to us as part of the defendant's answer to theirs to our statement of claim at the very beginning of the case so everybody knew that this piece rate system was being used the defendants even said in their initial pleading their response to the statement of claim we defend this case based on c f r seven  knew all of this they just waited until all of those deadlines lapsed and we could do nothing except for defend on the original complaint which we felt still met the liberal pleading requirements of rule eight it was  of the one of the things that either the magistrate judge or the district judge said i forget which one right now was that you purportedly should have taken corrective he had been paid at least some overtime wages as shown by the defendant's wage in our records they have any basis for saying that or you think that was incorrect to well that's the same same position that i just responded to judge paul at the time the plaintiff's deposition was taken remember this was a case where to depose asians occurred the plain of step is ition and the defendants no written discovery was exchanged between the at all in the underlying case they waited until the very end of discovery i believe the last week of discovery way past the amendment deadline to depose the plaintiff he said he went back and forth but his contention was that yes the p show some overtime being paid but he denies that he ever received overtime paid to him properly under under this piece rate system because they were shaving off hours from his time constantly that was his position he filed an resolve every doubt against us when she shouldn't have done that in a rule eleven context we're supposed to get the benefit if there was a doubt everybody knew that this was about the piece rate system there are times in this court has consistently held that the purpose of rule eleven is to give the other side a chance to correct it in this case that chance was taken away even though it's kind of a two sided argument because we feel that the initial pleading under rule eight was proper when we said as per the fairlane labor standards act was it in artful perhaps could we have stated it better in hindsight yes but the district court is not supposed to be looking at in hindsight when it does this is rule eleven they're supposed to be looking at what happened at the time that that pleading was filed now the matter excuse me but if if so if we agree with the district court that in fact the claim was objectively frivolous how can you then argue that relying soley on a client interview without looking at pi records is a reasonable inquiry precint well i don't know that the district court found the whole case to be for of listen i don't think it did all they found that claim obviously under paragraph thirteen that's where the basis for this finding was and so if in fact they were correct how do you then argue that your actions priests were were reasonable well judge  when we got these records from the defendant it was at the very beginning of the case the plaintiff still disavowed that he had received all of his compensation because he claimed that they constantly shaved time off so it's unclear how we would have changed anything had we sent a priest suit letter out to the defendants saying give us all of his time records when the plaintiff was disavowing the accuracy of those to begin with you his mistress dr his position was that those records said what they said but they were inaccurate that's correct what did he what did he admit to about the records of anything at his deposition he said that he was admitted receiving the pay the defendants knew that because it was a direct pay deposit into his account he wasn't given paychecks so he knew that he received all the pay he acknowledged that he received the pay he said that the pay stubs say what they say but that since it was direct pay he didn't have access to that before you know the say that that one allegation of the complaint could have been phrased better should have been phrased better but the whole case was not found to be frivolous and yet she she somehow unearths a sixty thousand dollars sanction based on defendant's records that she even admits and her reported recommendation that she has an extremely hard time sifting through because when they sent the rule eleven motion they were claiming sanctions under the florida statute that the magistrate found completely  meritless and disappointing that they would move for sanctions and at the same time cite to a statute that has no uplink ability whatsoever billing records that made no sense whatsoever and these statutes are supposed to be construed marilee these are sanctioned statutes these chill people's rights attorneys rights and we think that the magistrate abused her discretion and asked for reversal thank you very much you save your time for rebuttal thank you the district judge in affirming the imposition of ruhleben sanctions against counsel because of the broad discretion that the court has the court found here misters idel spoke of the one allegation in the complaint that one allegation was the only claim that was asserted within the complaint that the plaintiff was quote never paid any overtime that was the claim that the district court found when summary judgment was resolved to have been the only they could have prevailed on that claim had the facts or now even if that allegation was completely accurate in other words if you had denied him ninety percent of his overtime wages  complaint would not have been objected lee frivolous right the complaint would have been objectively frivolous because the allegation was that he was never paid any overtime ok mr crisman if a plaintiff does not prevail on to a four claims because the facts don't bear out the losing two claims those that mean at the end of the day that those claims were objective lee frivolous no your hon r these co you can't use the mere fact that you got summary judgment in your favor as a ground for rule eleven award right certainly or are has to be more than that certainly your honor the mere granting of summary judgment does not mean the side that loses isn't subject to a rule eleven violation here i let me ask you let me take you down a set of of questions and i know we're dealing with an abuse of discretion standard and that may at the end of the day help you substantially but if mr a strada provided sworn testimony that your clients billing records wage and hour records were inaccurate how did you get summary judgment in your favor we got summary judgment in our favor because the claim that was asserted the court found based on the testimony and the facts that were presented that the undisputed facts of those records were that the time sheets were presented as they were that was his time the earning statements equaled the time sheets and so there was no dispute that he  dispute there's if you're telling me that there is never a case when an employer's wage in our records are incorrect or have been falsified there are a ton of cases out there with that allegation your honor i am asking you whether or not you can imagine a case where an employer's wage and hour records are not accurate yes your honor ok if you admit of that possibility and an employee says listen they've been shorting me two hours every single week i know what the pay records say but i've been working forty two hours a week and they're logging forty hours every single week do you get summary judgment for the employer under that hypothetical no your honor ok what what was the difference here the difference here was that the claim was that he was never paid any overtime but you can win on that claim that claim sub the claim that you weren't paid some overtime right it necessarily subsumes if the district court found if the district court had found that you did indeed pay him ten percent of the overtime that he was entitled to but denied him ninety percent of the overtime that he was entitled to do you get summary judgment in your favor no your honor ok so the claim of never sub claim of sometimes right they claim the claim of never subsumes a claim of sometimes right in other words one hundred percent of his claim may not have been provable but if he proves seventy percent of his claim he can recover on seventy percent of his claim right he could potentially if that was the claim that was asserted i think would i would argue or did i think i would argue in response to the claim of never the cases that i've of the accuracy of the payroll records in the time records lined up and matched up and there was no other claim other than the single claim that he was never paid any over can you grant summary judgment when the employee provide sworn testimony that those records are in accurate that the testimony that was provided at the deposition that's not how the that's not how the district court read the record and the fact that he denied it the records were accurate portions of his testimony were vague and nondescript and then the plaintiff submitted an a half a davit in response to the motion for summary judgment and the affidavit was free wheeling and shapeless and we argued at that point that the deposition was or the affidavit was being submitted in order to contravening contradict the undisputed deposition testimony that had been presented in  all of that submissions to district court resolved that there was no factual dispute here as to his time and pay records as to the claim that was presented and sitting before the court one dollar f l s a claim that he was never paid any overtime wages and in fact he was the claim that he was never there are there are cases certainly out there where the allegation of somebody never being paid over time those would be the instances in which somebody was designated as and as an exempt employee from the f l a say over time laws in which they would have been paid a salary and thus never paid any overtime wages plainest counsel was presented with the pay records six dollars weeks after the complaint was filed showing that in fact his client was paid overtime wages in fact significant overtime wages in more than half of his weeks and more than ten thousand dollars and there was no simple basic precision inquiry that had been conducted and no attempts made to either withdraw the complaint as it was pled to a man the complaint as it was played at any course of the litigation even up through now through this appeal council is as really stated that he's doesn't see a problem in the initial complaint despite all that the district court has found and despite the prior ruling of this court affirming the summary judgment ask you one more question and then i'll let my colleagues jump in if they want when you move for sanctions you move for sanctions in part under a florida statute right we did your honor that was an objective leave frivolous claim right that we ca's a florida statute on sanctions cannot apply does not apply in a federal action based on federal question jurisdiction right it does it does not apply your honor in the district court took that into account indeed you have been sanctioned for making that objective leave frivolous claim and make the mister's idel in his firm respond to it when we have been sanctioned could you have been sanctioned well should you have been sanctioned no your honor the process that would have what case law gave you any inkling of hope that a district court could apply that florida statute in a federal question case under the f l a say that was not properly included in the motion for sanctions and the process is not what i that's not my question to you my question to you is it was an improper reading of the statute it's not it's not an improper reading it's a frivolous reading of the statute should you have been sanctioned for that no your honor no why because you made a claim that had no on f t s which was not served on the you by the look of that i mean we'll you should wield that rule eleven cudgel with caution mr christmas because there's going to come a time when it's going to come around and whack you in the back of the head and maybe you got lucky this time and maybe you win on appeal because of the abuse of discretion standard but if you're playing the what's good for the goose is good for the gander i speak only for myself and not for my colleagues doesn't quite sit right in her sleeves i've said my piece understood your honor rule levon is a serious charge to bring and not one that's brought lightly and that does explain the timing of f t s bringing the rule eleven motion when it did this case lingered for a long time on the district court's docket in part due to a bankruptcy proceeding involving was stayed for more than a year then this i think the way to look at the timing of the motion itself was that f t s answered in april of two thousand and sixteen and within three months of filing an answer the rule eleven motion had been filed and it was on the heels of the deposition testimony that was given and the fact that f t s was now moving for summary judgment god bless you on the record as it existed at that point and so this was not an instance in which f t s was lying in wait to file the rule eleven motion there was also a couple mediation that happened in the case again were eleven motions are as judge jordan noted serious charges to bring and also costly in themselves in order to  bring we think here that the district court appropriately applied its discretion when it found that the motion was timely filed that the claim that was asserted here the single claim was objectively frivolous and that counsel should have been aware of the frivolous nature of the claim and that in setting the award as it did it was a proper and appropriate amount to set because all of the fees that f t s incurred as a result of defending the action were incurred because of the lack of an investigation at the beginning of this lawsuit the district court took into account in setting that amount the fees expended by f t s and also removed the fees that should not have been included in the request but the motion could have been denied solely on the ground right that you failed to substantiate what sort of hours you logged in response to the allegedly frivolous allegation under the broad discretion that district courts have been evaluating motions for sanctions the district court any party appealing on abuse of discretion standard would have a high bar so yes the district court in evaluating the record in the way the proceedings were before it could have to deny that motion the coup the district court in evaluating the records however has the discretion under this court's standards in the ranger case that rather than going through an evaluating line by line in looking through things the court can set a lump sum award and make some reduction is based on the size of the fee requests that it's made to district court explained why it was removing just shorn res why it was removing certain portions of the fee request and setting the amount that it did if there are no other questions from in brief reply to opposing counsel there have been many many cases and an extreme example is is a case where somebody is only paid cash for years and there are no records why would an attorney doing these kind of cases send out a pre suit letter to ask for records when there are none that is equivalent to what happened in this case there was no duty for us to send out a pre suit letter and we brief that if this panel creates a duty then obviously it will be followed but for a magistrate to come and say that her gripe was that we did not amend this complaint and that the whole case was not frivolous that is her finding she could not find that the statement  claim was frivolous on this record the concern is not with that and i think you have good reasons to not require that sort of absolute priest suit demand for documents from a defendant  case i think is probably more of a case by case scenario but my concern remains whether or not after mr a strada was deposed you had an obligation to take some action to do something whether it's amendment or a with drawl through a letter or something else about his claim that he was never paid any overtime mr crisman says that if you look at testimony in his deposition it was much more equivocal the new thing than you say it was and that he admitted much more than you think he did jordan with our type of plaintiffs that we represent thousands over the years i mean as strong as deposition i'm not going to say that it was typical but it certainly was an extraordinarily ambiguous to where we felt that we had to do that and that was at a time once again passed the amendment deadline this district judge would not have found good cause for us to amend i can tell you that based on other cases and that was my perception at the time and it still is there was nothing we can do this is under rule eleven they didn't move under the court's  t authority or nine hundred and twenty seven they move specifically under rule eleven that requires them to give us notice at a time that we can still correct if necessary they didn't do that and the they saying i mean the reasons for waiting have changed throughout the pleadings their counsel in the court below says that that her reason was that she wanted to make sure that the plane of signed his paystubs and his time sheets well they knew that because they made the direct deposit form so they knew that he cashed his checks opposing counsel says something different on appeal that they wanted to see if i had any additional documents to offer at the time of his deposition either way what why didn't they send us the rule eleven letter when they gave us all the documents at the beginning of the case if this case was so plainly frivolous that those documents were the open and the shut you know that was the hatchet that they were waiting for why not send the letter they don't have to file the motion sim the letter like they're supposed to give us time that's the point of rule eleven and rule eleven requires as per the rule that the specific conduct be illuminated so that opposing counsel has time to do something a reading of the rule eleven motion doesn't do that it contains an extraneous florida statute it claims that we were claiming time and a half as opposed to half time which isn't true we've always claimed this is a half time case because that's as much as the plaintiff would be allowed under seventy seven thousand eight hundred and twelve dollars the motion itself was defective it was too late and we understand that abuse of discretion is a wide wide standard but it must have its limitations i mean if there is a mistake that the magistrate made base on the law or on the facts a clear abuse of discretion then we think that this is the typical case where there should be a reversal i mean yes we acknowledge the broad standard but this case just exhibits a magistrate that went out of her way to to hammer us with a sixty thousand dollars sanction based on prior cases one of them that's been overturned by this court in a published decision the silver case she didn't take into consideration that the daily business reviews already published this article on this particular sanction award which is a gift that keeps giving and giving and giving even until the present day proposing counsel constantly littering the docket and throwing that in our face so for this type of if there was a violation which we ask that you not find but if there was sixty thousand dollars is just way way out of course especially for billing records that the magistrate says that she has a real problem determining any specificity from because they didn't even follow her orders by parsing out what they should have but yet she still on earth sixty thousand dollars so we asked for a reversal and we certainly thank you for listening to us on this case i thank you both very much