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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-22318-Civ-WILLIAMS/TORRES

KANAYO DERHEM,

Plaintiff,

v.

BAY HOUSE MIAMI CONDOMINIUM

ASSOCIATION, et al., 

Defendants.

________________________________/

ORDER DENYING DEFENDANTS’ MOTIONS FOR SANCTIONS

This matter is before the Court on Defendants BAY HOUSE MIAMI 

CONDOMINIUM ASSOCIATION, INC. (the “Association”), MIKE DESIMONE, 

JOSHUA PAUL, JAMES PINKERT, ALEJANDRO ENRIQUE UTRERA BADENES, 

and SEAN ZAHNISER motions [D.E. 101, 102, 103, 104, 105, 106] for sanctions filed 

under Fed. R. Civ. P. 11. Plaintiff responded in opposition to the motions on June 

25, 2011 [D.E. 116] and Defendants replied on July 16, 2021 [D.E. 119-121]. After 

careful consideration of the motions, response, replies, relevant authority, and for the 

reasons discussed below, Defendants’ motions are DENIED without prejudice.

I. BACKGROUND

This is a housing discrimination action in which Plaintiff filed a First Amended 

Complaint (“FAC”) against Defendants, pursuant to the Fair Housing Act of 1968,

the Civil Rights Acts of 1866 and 1871, the Florida Civil Rights Act, the Florida 

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Condominium Act, and supplemental claims under state common law. [D.E. 35]. 

According to the FAC, Plaintiff purchased a condo unit from the Association in 

February 2019 and makes many allegations against the Association and the 

individual Defendants involving their alleged discrimination against her for being a 

black transgender woman. The allegations include delaying the closing of her condo, 

imposing unwarranted fines against her, deactivating her key fob, not allowing her 

to run for the condo board, saying derogatory things against her, her family, and her 

guests, and not allowing her to rent her unit out as an Airbnb. Each motion argues

that sanctions are warranted for various reasons, but they are each grounded in 

arguing that Plaintiff’s claims are frivolous for not being supported by facts to 

establish such claims.

II. ANALYSIS

A. Rule 11 Sanctions Standard

“Rule 11 is intended to deter claims with no factual or legal basis at all; creative 

claims, coupled even with ambiguous or inconsequential facts, may merit dismissal, 

but not punishment.” Davis v. Carl, 9106 F.2d 533, 538 (11th Cir. 1990) (emphasis 

in original). Rule 11 sanctions are proper “(1) when a party files a pleading that has 

no reasonable factual basis; (2) when the party files a pleading that is based on legal 

theory that has no reasonable chance of success and that cannot be advanced as a 

reasonable argument to change existing law; or (3) when the party files a pleading in 

bad faith for an improper purpose.” Worldwide Primates, Inc. v. McGreal, 87 F.3d 

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1252, 1254 (11th Cir. 1996) (quoting Jones v. International Riding Helmets, Ltd., 49 

F.3d 692, 694 (11th Cir. 1995)). Federal Rules of Civil Procedure 11(b)(1) and 

11(b)(3) state:

By presenting to the court a pleading, written motion, or other 

paperCwhether by signing, filing, submitting, or later advocating itCan 

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 . . . (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 . . . . Fed. R. Civ. Pro. 11(b)(1), 11(b)(3).

Additionally, Federal Rule of Civil Procedure 11(c)(1) states the following:

If, after notice and a reasonable opportunity to respond, the court 

determines that Rule 11(b) has been violated, the court may impose an 

appropriate sanction on any attorney, law firm, or party that violated 

the rule or is responsible for the violation. Fed. R. Civ. Pro. 11(c)(1).

“In this circuit, a court confronted with a motion for Rule 11 sanctions first 

determines whether the party’s claims are objectively frivolous in view of the facts or 

law and then, if they are, whether the person who signed the pleadings should have 

been aware that they were frivolous; that is, whether he would’ve been aware had he 

made a reasonable inquiry. If the attorney failed to make a reasonable inquiry, then 

the court must impose sanctions despite the attorney’s good faith belief that the 

claims were sound. The reasonableness of the inquiry may depend on such factors 

as how much time for investigation was available to the signer; whether he had to 

rely on a client for information as to the facts underlying the [violative document]; . . 

. or whether he depended on forwarding counsel or another member of the bar.”

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Worldwide Primates, Inc., 87 F.3d at 695 (quoting Mike Ousley Productions, Inc. v. 

WJBF-TV, 952 F.2d 380, 382 (11th Cir. 1992)); see also Byrne v. Nezhat, 261 F.3d 

1075, 1105 (11th Cir. 2001). “Although sanctions are warranted when the claimant 

exhibits a ‘deliberate indifference to obvious facts,’ they are not warranted when the 

claimant’s evidence is merely weak but appears sufficient, after a reasonable inquiry, 

to support a claim under existing law.” Baker v. Adelman, 158 F.3d 516, 524 (11th 

Cir. 1998) (citations omitted). 

B. The Motions are Premature

Upon review of the supporting record, there is certainly a valid basis to argue 

that, if true, Plaintiff’s entire case may lack all factual foundation and could 

demonstrate bad faith litigation that warrants material sanctions. But these

motions are presently unpersuasive for at least two independent reasons. First, the 

motions represent an improper attempt to convert a dispute over the factual 

allegations and legal arguments in Plaintiff’s complaint into a sanctions dispute. 

Defendants’ motions are an alternative remedy to seek disposition on the merits of 

this case via Rule 11. Yet, a Rule 11 motion is not an avenue to either seek 

repleading under Rule 12 or to seek judgment on the merits of a case under Rule 56. 

Instead, its purpose is to determine whether a party or attorney has abused the 

judicial process. See Bigford v. BESM, Inc., 2012 WL 12886184, at *2 (S.D. Fla. Oct. 

12, 2012) (“‘Rule 11 should not be used to raise issues as to the legal sufficiency of a 

claim or defense that more appropriately can be disposed of by a motion to dismiss, a 

motion for judgment on the pleadings, a motion for summary judgment, or a trial on 

the merits.”’) (quoting In re New Motor Vehicles Canadian Export Antitrust 

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Litigation, 244 F.R.D. 70, 74 (D. Me. 2007) (denying Rule 11 motion without prejudice 

to its renewal “if and when [Defendant] obtains summary judgment”) (citations 

omitted)); see also Safe-Strap Co., Inc. v. Koala Corp., 270 F. Supp. 2d 407, 417-21 

(S.D.N.Y. 2003) (discussing that Rule 11 sanctions are not a substitute for motions 

for summary judgment). Yet, much of the arguments in the pending motions focus 

on how vague and implausible the FAC’s allegations are – which are issues properly 

addressed on a motion to dismiss. Indeed, the record shows that motions to dismiss 

have been filed that sets forth those same contentions under Rule 12, where they 

belong.

As the plain language of Rule 11 indicates, “an attorney . . . certifies that to the 

best of the person’s knowledge, information, and belief, formed after an inquiry 

reasonable under the circumstances” that a court document “is not being presented 

for an improper purpose”, “the claims, defenses, and other legal contentions are 

warranted by existing law,” and the “factual contentions have evidentiary support . . 

. .” Fed. R. Civ. Pro. 11(b). If that turns out to be not the case, as evidenced by the 

Court granting a Defendant’s dispositive motions, then sanctions relief would then 

be appropriate. Because Defendants are pursuing this particular relief under the 

guise of Rule 11 motions, Defendants’ motions must be DENIED without prejudice.

Second, and relatedly, Defendants’ motions must be denied because it is 

premature at this stage of the litigation. As the Eleventh Circuit has found, Rule 11 

sanctions are ordinarily not determined until the end of a case:

Although the timing of sanctions rests in the discretion of the trial judge, 

it is anticipated that in the case of pleadings the sanctions issue 

under Rule 11 normally will be determined at the end of the litigation, 

and in the case of motions at the time when the motion is decided or 

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shortly thereafter.

Donaldson v. Clark, 819 F.2d 1551, 1555 (11th Cir. 1987) (quotation marks and 

citation omitted). The Eleventh Circuit’s position is consistent with the Rules 

Advisory Committee that “anticipated that in the case of pleadings the sanctions 

issue under Rule 11 normally will be determined at the end of the litigation. . . 

.” Fed. R. Civ. P. 11 (Advisory Committee Notes, 1983 Amendment); see 

also Lichtenstein v. Consolidated Serv. Group, Inc., 173 F.3d 17, 23 (1st Cir. 

1999) (emphasizing that “[c]ourts should, and often do, defer consideration of certain 

kinds of sanctions motions until the end of [the litigation] to gain a full sense of the 

case and to avoid unnecessary delay of disposition of the case on the merits. This is 

a sensible practice where [as here] the thrust of the sanctions motion is that 

institution of the case itself was improper”); Hallwood Realty Partners, L.P. v. 

Gotham Partners, L.P., 2000 WL 528633, at *1 (S.D.N.Y. May 2, 2000) (denying Rule 

11 motion without prejudice “to renewal at conclusion of litigation”); Wright and 

Miller, Federal Practice and Procedure: Civil 3d § 1337.1 (2004) (stating that when 

“the challenged conduct is the institution of the action itself . . . the question whether 

there has been a Rule 11 violation generally is not decided until after the litigation is 

completed, in order to avoid delaying the disposition of the merits of the case”).

Given the facts of this case, we see no reason to deviate from the preferred 

practice described above. If Defendants prevail and seek to pursue the motions for 

sanctions, the Court would at that point have to take a hard look at the record to 

determine if the case was in fact sanctionable. 

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Defendants’ motions are also premature because Rule 11 contemplates a twostep, objective inquiry. See Baker, 158 F.3d at 524. “Applying that test is not 

feasible at this stage of the litigation, as it is not possible to determine on this record 

if the allegations” in the complaint “are objectively frivolous in view of the law and 

facts, whether Plaintiff and its counsel should have been aware that the allegations 

were frivolous after making a reasonable inquiry, and whether [Plaintiff’s complaint] 

is baseless.” KB Home v. Smith, 2014 WL 12621583, at *2 (M.D. Fla. May 7, 2014). 

Because Rule 11 sanctions should ordinarily be reserved at the end of a case, 

Defendant’s motions must be DENIED. See, e.g., Baker, 158 F.3d at 523 (“Although 

the timing of sanctions rests in the district judge’s discretion, Rule 11 sanctions 

‘normally will be determined at the end of litigation.’”).

We note that, in the event that a renewed and amended motion for sanctions 

is filed after judgment for any single Defendant, the Court will entertain such a 

motion relating back to the date of the filing of the original motion. There is 

authority that a Rule 11 motion is untimely if first filed after judgment is already 

entered. Here, Defendants have certainly placed Plaintiff on notice of the 

frivolousness of the case well beforehand. And if there is merit to the motions’

contentions, Plaintiff is well advised to take action now as Rule 11 contemplates. So, 

if any of the motions are renewed at a later stage, the relief sought will be deemed 

timely and adjudicated accordingly (so long as Defendants comply with the 

requirements of Local Rule 7.3). For now, the motion are DENIED with leave to 

renew. 

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III. CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that 

Defendants’ motions for sanctions [D.E. 10, 102, 103, 104, 105, 106] are DENIED

without prejudice and with leave to renew. 

DONE AND ORDERED in Chambers at Miami, Florida, this 26th day of 

July, 2021.

/s/ Edwin G. Torres 

EDWIN G. TORRES

United States Magistrate Judge

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