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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:22-CV-22671-ALTONAGA/TORRES

DELIO BATISTA, 

CARLOS LOPEZ,

MARIANA LOPEZ and

RAFAELA VALIENTE,

Plaintiffs,

vs.

AVANT ASSURANCE INC., 

REINIER CORTES, AND 

ANDREA GONZALEZ 

QUINTERO,

Defendants.

______________________________/

PLAINTIFFS’ MOTION FOR RULE 11 SANCTIONS

AGAINST DEFENDANT AND ITS COUNSEL

Plaintiffs, Delio Batista, Carlos Lopez, Mariana Lopez, and Rafaela Valiente, request the 

Court to enter an Order sanctioning Defendant, Avant Assurance Inc., and its counsel under Fed. 

R. Civ. P. 11, and the following good cause: 

I. INTRODUCTION

Defendant, Avant Assurance, Inc., litigated this case in a way that the Court was on the 

brink of referring its counsel to The Florida Bar following the attempt to engage in ex parte

communications with the Court and its subsequent (mis)representations about the interactions with 

defense counsel. [ECF No. 26.] The Court determined that these shenanigans would not delay the 

trial but reserved on whether to refer defense counsel based on ethical considerations. Id. The trial 

resulted in a verdict for the Plaintiffs on their breach of contract claim(s) and an award of 

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$177,164.00 in breach of contract damages. [ECF Nos. 104, 106.] The Defendant requested a new 

trial or remittitur by arguing the jury’s verdict was either “speculative,” “against the greater weight 

of the evidence,” and/or “excessive.” [ECF No. 113.] In dispensing with the Defendant’s Motion, 

Magistrate Judge Torres categorized the Defendant’s arguments as “waived” and “meritless.” 

[ECF No. 139.] Rule 11 was designed to curtail the meritless and ill-fated arguments the Defendant 

advanced, and its stubborn refusal to accept the jury’s well-reasoned verdict requires the Court to

sanction the Defendant and its counsel for proceeding with its futile attempt to avoid the jury’s 

decision. The Plaintiffs gave Defendant and its counsel 21 days to consider whether to withdraw 

the Motion for New Trial [ECF No. 113] voluntarily and to abandon the attempt(s) to avoid the 

jury’s verdict (and the final judgment entered thereon), considering the facts and the law 

unequivocally establish that its arguments for a new trial, for remittitur, and to disturb the jury’s 

verdict are meritless and lack any legitimate legal or factual basis. The Defendant’s tactics are 

nothing more than a futile attempt to delay Plaintiffs’ receipt of the money the jury decided they 

earned and for which the Court entered a final judgment. The baseless pursuit of meritless 

arguments for a new trial and remittitur are of the type that entitle Plaintiffs to the imposition 

sanctions contemplated by Rule 11 against the Defendand ant its counsel.

II. FACTUAL HISTORY

1. The Court scheduled this case for trial commencing on Monday, July 10, 2023.

2. On the Friday before the start of the trial, the Court conducted a telephonic hearing 

because the individuals named as Defendants, Reinier Cortes and Andrea Gonzalez Quintero, 

went to the chambers of the Chief Judge of the District Court for the Southern District of Florida, 

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Cecilia Altonaga, and complained that they had not heard from their counsel in weeks and 

requested that the trial be postponed. [ECF Nos. 96-97.]

3. At the hearing, the Court heard from Mr. Cortes, Ms. Gonzalez Quintero, and 

counsel of record. The Court declined to continue the trial and reserved jurisdiction on referring

defense counsel to the Committee on Attorney Admissions, Peer Review, and Attorney Grievance

until after the trial. Id.

4. At trial, Defendants waived the ability to seek post-trial relief from the verdict, 

whether through Rule 59 or appellate review, by failing to allow this Court to address the 

evidentiary issues:

a. Defendants did not contemporaneously object to any testimony about breach of 

contract damages and

b. Defendants did not argue for a directed verdict under Rule 50 before submitting 

the case to the jury.

5. The jury deliberated with their recollection of the testimony at trial and with the 

Exhibits used at trial before returning a verdict on July 15, 2023, as follows:

a. $54,511.00 in breach of contract damages to Plaintiff Delio Batista against 

Defendant Avant Assurance, Inc.;

b. $38,957.00 in breach of contract damages to Plaintiff Carlos Lopez, against 

Defendant Avant Assurance, Inc.; 

c. $15,576.00 in breach of contract damages to Plaintiff Mariana Lopez, against 

Defendant Avant Assurance, Inc.; and

d. $68,120.00 in breach of contract damages to Plaintiff Rafaela Valiente, against 

Defendant Avant Assurance, Inc.

[ECF No. 106.]

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6. The Defendant1 timely filed its Motion for Remittitur or New Trial, but which was 

denied without prejudice to renew it after receipt of the trial transcript. [ECF Nos. 113, 114.]

7. The Defendant took an appeal to the Eleventh Circuit Court of Appeal, which is 

pending with Appellate Case No.: 23-13046-F.

8. The Defendant received the trial transcripts on September 11, 2023, and filed its 

Renewed Motion for Remittitur or New Trial on September 21, 2023. [ECF No. 124.]

9. Although Defendant and its counsel were fully aware that Avant Assurance, Inc.

waived any argument regarding the sufficiency of the evidence at trial and that the record at trial 

contained sufficient evidence upon which the jury could award damages to the Plaintiffs, they 

argued otherwise in its Renewed Motion for Remittitur and New Trial. [ECF No. 124.]

10. Plaintiffs responded on October 4, 2023, by pointing out the fallacious legal and 

factual underpinnings of the Renewed Motion for Remittitur or New Trial. [ECF No. 131.]

11. Defendant never addressed any factual or legal points raised by the Plaintiffs in their 

Response. Id.

12. The Court referred Defendant’s Renewed Motion for Remittitur, Or Alternatively, 

New Trial to Magistrate Judge Torres [ECF No. 132], who issued a Report and Recommendation 

on October 31, 2023, and then an Amended Report and Recommendation on November 1, 2023. 

[ECF Nos. 138, 139.].

1 Only Defendant, Avant Assurance Inc. sought post judgment relief, and so the references to 

“Defendant” throughout pertain to the corporate Defendant.

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13. The Report and Recommendation and Amended Report and Recommendation

determined that Defendant’s arguments for remittitur and new trial were futile, not properly 

preserved, and not supported by the facts or the law.

14. Defendant, Avant Assurance Inc., continues to pursue post-trial relief from the 

jury’s verdict and judgment rendered thereon to unreasonably forestall and delay the payment of 

the money Plaintiffs earned, but that the jury determined it failed to pay to Plaintiffs timely. 

15. Plaintiffs served a copy of this Motion on Defendant, Avant Assurance Inc., and its 

counsel on November 6, 2023, more than 21 days ago.

III. THE LAW

Rule 11 includes provisions intended to dissuade litigants and their counsel from pursuing 

claims or defenses for an improper purpose and those that were not legally or factually supported.

In pertinent part, Rule 11 provides that when an attorney signs or files a pleading, motion, 

or other paper, he or she certifies certain things, to the best of his or her knowledge, 

information and belief, formed after an inquiry reasonable under the circumstances: First, 

that the pleading is not being submitted for an improper purpose [Rule 11(b)(1)]; second, 

that the legal contentions are warranted by existing law or by a nonfrivolous argument for 

extending the law [Rule 11(b)(2)]; and third, that 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. [Rule 11(b)(3)]. See Fed. R. Civ. P. 11(b). 

The Rule authorizes courts to sanction attorneys, law firms or parties who have violated 

these provisions. Fed. R. Civ. P. 11(c)(1).

Estrada v. FTS USA, LLC, 2018 WL 1836007, at *2 (S.D. Fla. Jan. 23, 2018), report and recommendation 

adopted, 2018 WL 1811907 (S.D. Fla. Mar. 16, 2018). “The purpose of Rule 11 sanctions is to 

“‘reduce frivolous claims, defenses, or motions, and to deter costly meritless maneuvers.’” Kaplan v. 

DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003) (quoting Massengale v. Ray, 267 F.3d 1298, 

1302 (11th Cir.2001).)

The 1993 Advisory Committee’s notes reflect the requirement for “litigants to ‘stop-andCase 1:22-cv-22671-CMA Document 143 Entered on FLSD Docket 11/28/2023 Page 5 of 12
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think’ before initially making legal or factual contentions.” Fed. R. Civ. P. 11. The Rule provides 

for sanctions to be imposed when a filing is frivolous, legally unreasonable, without factual 

foundation, or is brought for an improper purpose. Specifically, Fed. R. Civ. P. 11(b) provides:

By presenting to the Court a pleading, written motion, or other paper- whether by signing, 

filing, submitting, or later advocating it-an attorney or unrepresented party ce1tifies 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 therein are warranted by 

existing law or by a non-frivolous argument for the extension, modification, or 

reversal of existing law or the establishment of new law; [and]

(3) the factual contentions have evidentiary support or, if specifically so identified, 

will likely to have evidentiary support after a reasonable opportunity for further 

investigation or discovery ....

Rule 11 imposes an affirmative duty on each attorney to conduct a reasonable inquiry into the 

viability of a pleading before it is signed. See Collins v. Walden. 834 F.2d 961 (11th Cir. 1987. In 

addition, an attorney is required “to perform a reasonably thorough and objective investigation of 

the facts before asserting them as bases for [the] causes of action.” Byrne v. Nezhat, 261 F.3d 1075, 

1115 (11th Cir. 2001); Fed R. Civ. P. 1l(b). 

While the “selection of the type of sanction to be imposed lies within the district court’s 

sound exercise of discretion,” Massengale, 267 F.3d at 1301, once a court determines that a party 

violated Rule 11, a court is “mandated to impose sanctions.” Chapman & Cole v. Itel Container Int’l 

B.V., 865 F. 2d 676, 685 (5th Cir. 1989). Sanctions under the Rule can be imposed against a party 

and its counsel. Byrne, 261 F.3d at 1106.

To determine whether a filing is frivolous and subject to Rule 11 sanctions, the Court 

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traditionally engages in a two-step analysis involving “(1) whether the party’s claims are objectively 

frivolous; and (2) whether the person who signed the pleadings should have been aware that they 

were frivolous.” Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998). 

If the first prong of the analysis is met, then the court will move to analyze the second prong, 

which focuses on whether the non-moving party should have been aware the claim was frivolous. 

Id. Concerning the second prong, the court will look to the amount of time that was available for 

investigation before filing the document in question, whether the signing attorney had to rely on a 

client for the underlying facts at issue, and whether the document was based upon a plausible view 

of the law. See Jones, 49 F.3d 692 at 695. In the instant case, both prongs are met.

III. ARGUMENT

No legal basis exists for this Court (or the Eleventh Circuit Court of Appeals) to reduce the 

breach of contract damages awarded to the Plaintiffs to zero or require a retrial, as Defendant 

requests. The trial evidence established that Defendant breached its contract agreements with each 

Plaintiff and caused the damages awarded by the jury. If the Defendant had an issue with the 

reliability of the trial evidence, it was required to object contemporaneously but did not. If the 

Defendant thought that no reasonable jury could find for the Plaintiffs, or if it did not believe that 

the Plaintiffs had introduced admissible evidence establishing the elements necessary to recover on 

their breach of contract claims, it should have moved for relief under Rule 50. The Defendant did 

neither, specifically rejecting the Court’s invitation(s) to seek relief under Rule 50. Defendant and 

its counsel should have never filed or pursued the Renewed Motion for Remittitur or New Trial 

or the appeal, and the continuation of these courses of action in the face of such clear law and facts 

should subject Plaintiff and its counsel to sanctions under Rule 11.

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A. Defendant And Its Counsel Knew That Any Errors Claimed To Have

Occurred During The Trial Were Waived.

If they did not realize it before, the Amended Report and Recommendation made clear 

that the Defendant (through its trial counsel) unequivocally waived any argument about the trial’s 

results by failing to object simultaneously. 

As we discuss below, the problem with Defendants’ argument is that they repeatedly waived 

this “sufficiency of the evidence” argument throughout the trial. A review of the record 

reveals that, not only that Defendants twice neglected to move for relief under Federal Rule 

of Civil Procedure 50, which is the appropriate vehicle for attacking the sufficiency of the 

evidence, but also that Defendants never objected to Plaintiffs’ evidence as improperly 

calling for speculation. It is too late to do so now, and therefore Defendants are not entitled 

to their requested relief.

[ECF No. 139 at 3.] The Amended Report and Recommendation solidifies that the Defendant’s 

trial blunders were fatal to the arguments advanced post-trial because “Defendants effectively 

failed to object to the sufficiency of Plaintiffs’ evidence at a time that would have permitted the trial 

judge to avoid the purported error.” Id., at 6. The Amended Report and Recommendation 

continued by recognizing that “Defendants thus waived any argument that such damages were 

unsupported by the evidence in the case.” Id., at 12-13. The Defendant and its counsel are savvy 

enough to know that waived objections and arguments cannot be resurrected after the jury returns 

its verdict. Nonetheless, they continue their futile post-judgment litigation to forestall Plaintiffs from 

receipt of money the jury found should have been paid over a year ago. 

B. The Defendant Was On Notice That Its Arguments Were “Meritless”

The Amended Report and Recommendation may as well have incorporated a blaring siren 

with flashing red lights to warn the Defendant that any continued effort to pursue the “meritless” 

arguments would not be well-received by the Court. The Amended Report and Recommendation 

provides that “...the argument that this verdict was so manifestly against the weight of the evidence 

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is meritless.” [ECF No. 139 at 11] [emphasis added]. By continuing to pursue post-judgment relief, 

whether in this Court or the Eleventh Circuit Court of Appeals, the Defendant and its counsel do 

so in the face of the Court’s categorization of its arguments as “meritless.” It is rare for a Court to 

use the term “meritless” to describe a litigant’s arguments, and doing so is a harbinger for the 

imposition of sanctions for continued litigation. See Zinman v. Nova Se. Univ., Inc., 2021 WL 4025722, 

at *22 (S.D. Fla. Aug. 30, 2021) (“Furthermore, Plaintiff's decision to advance the argument, after 

both Judge Bloom and the Court in this case had given him indication that his claim was meritless, 

is worse still.”), report and recommendation adopted sub nom. Zinman v. Nova Se. Univ., 2021 WL 

4226028 (S.D. Fla. Sept. 15, 2021), aff'd sub nom. Zinman v. Nova Se. Univ., Inc., 2023 WL 2669904 

(11th Cir. Mar. 29, 2023). Upon a finding of a meritless argument, sanctions are all but required.

Collar v. Abalux, Inc., 2018 WL 3328682, at *24 (S.D. Fla. July 5, 2018) (sanctioning attorney for 

advancing “meritless” argument).

If someone violates Rule 11, a court must, upon motion or its own initiative, impose on the 

person who signed the pleading, a represented party, or both, an “appropriate sanction, 

which may include an order to pay to the other party or parties the amount of the 

reasonable expenses incurred because of the filing of the pleading, motion, or other paper, 

including a reasonable attorney's fee.” Fed.R.Civ.P. 11; see Thomas v. Capital Sec. Servs., Inc.,

836 F.2d 866, 876 (5th Cir.1988) (en banc) (once a violation of Rule 11 is found, the Court 

must impose appropriate sanctions on the plaintiffs or plaintiffs' attorney).

Howard v. Liberty Mem'l Hosp., 752 F. Supp. 1074, 1080 (S.D. Ga. 1990). The Court properly 

sanctions Defendant and its counsel.

C. Plaintiff And Its Counsel Knew The Arguments Were Meritless.

The second prong of the court’s inquiry into whether sanctions are appropriate considers 

whether the individual signing and certifying the assertions should have been aware that they were 

frivolous; “that is, whether he would have been aware had he made a reasonable inquiry.” 

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Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996). In this action, neither 

Defendant nor its counsel have any excuse for seeking relief from the jury’s verdict or the final 

judgment. The Defendant could have, but did not, file a Reply to try and argue against a (a) finding 

of waiver or (b) the other arguments supportive of the jury’s verdict and final judgment. This failure 

was a tacit acknowledgment that Defendant had no retort to the arguments against waiver, the 

jury’s verdict, or the final judgment rendered thereon. 

Defense counsel is a seasoned appellate attorney whose practice is “dedicated to appellate 

practice and litigation support.” (https://www.alexanderappeals.com/samuel-alexander.) Mr. 

Alexander’s website boasts that he is “dedicated almost exclusively to appeals” and has no excuse 

for continuing to pursue relief based on arguments that are, at best, “meritless.” The continued 

pursuit of relief – whether in the form of a new trial or remittitur – is frivolous, and the Defendant’s

experienced appellate counsel knows better.

D. Defendant And Its Counsel Should Be Sanctioned.

Having established that the Defendant’s arguments against the jury’s verdict and judgment 

thereon are “meritless’” the second prong of the court’s inquiry into whether sanctions are 

appropriate considers whether the individual signing and certifying the assertions should have been 

aware that they were frivolous; “that is, whether he would have been aware had he made a 

reasonable inquiry.” Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996). In this 

action, neither Defendant nor its counsel have any excuse for pursuing any post-judgment relief.

The Amended Report and Recommendation explains in detail how and why the 

Defendant’s objections to discovery were “waived” and how its arguments are “meritless.” [ECF 

No. 139.] Under the circumstances, there is no excuse to continue pursuing post-judgment relief, 

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and experienced appellate counsel knows better than to advocate for waived objections or make 

meritless arguments. Yet, the post-judgment litigation continues.

The monetary sanctions properly awarded are calculated by determining the number of 

hours reasonably expended on the Defendant’s attempt to obtain a new trial or reduce the jury’s 

verdict multiplied by a reasonable hourly rate, known as the “lodestar approach.” See Bivins v. Wrap 

It Up, Inc., 380 Fed. Appx. 888, 890 (11th Cir. 2010). The Eleventh Circuit utilizes a 12-prong test 

to determine what constitutes a reasonable hourly rate. Id. Also, the reasonable number of hours 

expended is the hours that the Court finds were reasonably spent in obtaining the result for the 

client. See Norman v. Haus. Author. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) 

(abrogated on other grounds). In this case, Plaintiffs ask that the Court sanction the Defendant and 

its counsel commensurate with the amount spent addressing the Defendant’s Motion for New Trial 

filed on August 3, 2023, and all ensuing time and efforts in this Court as related to the Defendant’s 

attempt to avoid or reduce the jury’s verdict and the final judgment rendered thereon.

V. CONCLUSION

WHEREFORE Plaintiffs, Delio Batista, Carlos Lopez, Mariana Lopez, and Rafaela 

Valiente, request that the Court enter sanction Defendant and its counsel pursuant to Rule 11.

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LOCAL RULE 7.1 CERTIFICATION

Counsel for the movant conferred with all parties or non-parties who may be affected by 

the relief sought in the motion in a good faith effort to resolve the issues raised in the motion and 

represents that he emailed defense counsel to address the issues raised herein on November 3, 

2023, then sent a copy of this Motion to defense counsel on November 6, 2023, and thereafter 

spoke with defense counsel on November 7, 2023, satisfying the requirements imposed by both 

Rule 11 and Local Rule 7.1.

Dated this 28th day of November 2023.

s/Brian H. Pollock, Esq.

Brian H. Pollock, Esq.

Fla. Bar No. 174742

brian@fairlawattorney.com

FAIRLAW FIRM

135 San Lorenzo Avenue

Suite 770

Coral Gables, FL 33146

Tel: 305.230.4884

Fax: 305.230.4844

Counsel for Plaintiff

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