IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

DEBORAH K. RUSSELL, et. al.,

Plaintiff, Case No. 2:14-cv-13134

vs. Hon. Lawrence P. Zatkoff

SANILAC COUNTY, et. al.,

Defendants.

DEBORAH K. RUSSELL JOHN B. McNAMEE (P27939)

In Pro Per Plaintiff JOHN B. MCNAMEE, P.C.

6957 Burnsline Road Attorney for Defendant Borkowski

Lexington, MI 48450 1423 Pine Grove Avenue

(810) 710-7076 Port Huron, MI 48060

(810) 982-2020

GREGORY T. STREMERS (P45006) JOHN G. FEDYNSKY (P65232)

TOUMA WATSON WHALING COURY MICHIGAN DEPT. OF ATTORNEY GENERAL

CASTELLO & STREMERS, PC Attorney for Defs. MI Dept of Human Services,

Attorney for Defs. Sanilac County, Russell Heidi Krause, Kris Kreger, Jaymie Reinke,

Clark, Heather Zang, David Clabeusch, Shelley Marnar, Jodi Shinn, Deborah Walbecq,

and Eric Scott William Weston, and Steve Yeager

316 McMorran Blvd. 525 W. Ottawa Street

Port Huron, MI 48060 Lansing, MI 48933

(810) 987-7700 (517) 373-1110

BRIAN D. EINHORN (P13130)

COLLINS EINHORN FARRELL PC

Attorney for Defendant Judge Ross

4000 Town Center, Suite 909 

Southfield, MI 48075-1473 

(248) 355-4141 

DEFENDANT ELAINE BORKOWSKI’S MOTION FOR SANCTIONS 

PURSUANT TO FED. R. CIV. P.11

COMES NOW Defendant Elaine Borkowski and hereby moves this Court for entry of an 

Order of sanctions against Plaintiff Deborah K. Russell, pursuant to Fed. R. Civ. P. 11(b) and in 

support thereof, state as follows:

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I. INTRODUCTION

Defendant Borkowski is a sole practitioner in Sanilac County, Michigan. Defendant 

Borkowski has incurred significant out of pocket attorney fees defending this frivolous lawsuit. 

The federal courts are not a vehicle for litigants, whether pro se or represented, to harass others 

by filing frivolous claims which wholly lack any conceivable merit under the existing facts or 

laws.

Rule 11 sanctions in this matter are appropriate to deter future abusive litigation that may 

be contemplated by Plaintiff Russell, and to compensate Defendant Borkowski for the amounts 

that have been incurred in responding to the instant matter.

II. PERTINENT FACTS

Plaintiff Deborah Russell disagreed with the Michigan Circuit Court decision to suspend 

her grandparenting time when the Michigan Department of Human Services removed her 

grandchildren from her son’s care. Due to the fact that she disagreed with Michigan’s lawful 

suspension of her grandparenting time, Plaintiff Russell responded by suing any person or entity 

that was involved with the Michigan Circuit Court Child Protective Services court case.

Defendant Elaine Borkowski was a court appointed attorney who was paid approximately

$100.00 per court appearance and received no other compensation for the work she did in 

between court appearances in her capacity as guardian ad litem for the minor child in the 

Michigan court case. Defendant Borkowski, in her role of guardian ad litem, had no effect 

whatsoever on the court’s decision to suspend the Plaintiff’s grand parenting time. Nonetheless, 

due to this frivolous lawsuit she has had to incur more than $2,000.00 in costs and attorney fees 

which have been paid directly out of her pocket. Simply put, this frivolous lawsuit has cost her 

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almost two times as much to defend when compared to the amount she was paid as a court 

appointed attorney.

On October 17, 2014, Defendant Borkowski filed a Rule 12 Motion because Defendant 

Borkowski believes this case lacks subject matter jurisdiction, the Plaintiff does not have 

standing and because the Plaintiff failed to state a claim. For the purpose of this Motion, 

Defendant Borkowski incorporates the Statement of Facts, Law and Argument in her Rule 12 

Motion by reference. 

III. APPLICABLE LAW AND ARGUMENT

Rule 11 allows a court to impose sanctions on a party who has presented a pleading, 

motion or other paper to the court without evidentiary support or for “any improper purpose.” 

See Fed. R. Civ. P. Rule 11(b). An improper purpose may be inferred from the filing of 

frivolous papers. See In re Kunstler, 914 F.2d 505, 518 (4th Cir. 1990). The standard is an 

objective one; whether a reasonable party would have acted in a particular way. See Chambers 

v. NASCO Inc., 501 U.S. 32, 47 (1991). “The reasonableness of the conduct involved is to be 

viewed at the time counsel or the party signed document alleged to be the basis of the Rule 11 

sanction.” Sussman v. Salem, Saxon and Nielsen, P.A., 150 F.R.D. 209, 213 (M.D. Fla. 1993). 

The purpose of Rule 11 sanctions is to “reduce frivolous claims, defenses, or motions, and to 

deter costly meritless maneuvers.” Massengale v. Ray, 267 F.3d 1298, 1302 (11th Cir. 2001); see 

also, Sussman, 150 F.R.D. at 213 (“this Court recognizes Rule 11’s objectives, which include: 

(1) deterring future litigation abuse (2) punishing present litigation abuse, (3) compensating 

victims of litigation abuse, and (4) streamlining court dockets and facilitating case 

management.”).

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Three (3) types of conduct warrant Rule 11 sanctions: (1) when a party files a pleading 

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

that has no reasonable chance of success and that cannot be advanced as reasonable argument to 

change existing law; and (3) when a party files a pleading in bad faith or for improper purpose.” 

Didie v. Howes, 988 F.2d 1097 (11th Cir. 1993) (citations omitted). Rule 11 sanctions are 

mandatory when a signed paper is submitted to the court under the aforementioned conditions. 

See Schramek v. Jones, 161 F.R.D. 119, 122 (M.D. Fla. 1995) (emphasis added).

Like an attorney, “[a] pro se litigant is subject to Rule 11, which imposes sanctions for 

the filing of baseless or frivolous lawsuits.” Id. 

Although Rule 11 specifically contemplates sanctions in the form of an award of 

attorneys fees, the award of fees “is but one of several methods of achieving the various goals of 

Rule 11.” See Doering v. Union County Bd. of Chose Freeholders, 857 F.2d 191, 194 (3d Cir. 

1988). In fact, Rule 11 states that “[t]he sanction may include nonmonetary directives.” See

Rule 11(c)(4).

Rule 11 does not enumerate factors a court should consider in deciding the appropriate 

sanction for a Rule 11 violation. See Fed. R. Civ. P. 11 Advisory Committee Notes (1993). 

Rather, a trial court has broad discretion to choose the nature and the amount of the sanction to 

achieve the deterrent purposes of Rule 11. See DiPaolo v. Moran, 407 F.3d 140, 146 (3rd Cir. 

2005).

IV. AS APPLIED

1. No Reasonable Factual Basis.

Plaintiff’s pleading has no reasonable factual basis. The Plaintiff was upset that she had 

her grandparenting time suspended. In her Complaint, only one paragraph is devoted to 

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Defendant Borkowski. In that paragraph, Plaintiff states that Defendant Borkowski withdrew at 

some point during the child protective proceedings because she had previously represented 

Plaintiff’s son in a previous court case. This had no effect on her grandparenting time and thus 

her pleadings have no reasonable factual basis.

2. Plaintiff filed a pleading that is not based on a legal theory that has a reasonable 

chance of success.

Defendant Borkowski is a privately employed attorney. Defendant Borkowski is not a 

state actor (see Rule 12 Motion filed on October 17, 2014 by Defendant Borkowski). The 

Plaintiff’s claims that Defendant Borkowski violated her First, Fourth and Fourteenth 

Amendment rights have no reasonable chance of success. Plaintiff although pro se, has failed to 

do her due diligence in familiarizing herself with applicable federal law before filing this lawsuit.

Rule 11 imposes an affirmative duty of inquiry. See Holgat v. Baldwin, 425 F. 3d 671, 

675-77 (9th Cir. 2004) (an attorney must conduct an objectively reasonable inquiry into the facts 

of law to make sure the complaint is well-founded).

3. Plaintiff filed the pleading in bad faith and for an improper purpose.

The Plaintiff disagreed with a state court’s finding that the temporary suspension of her 

grandparenting time was in the children’s best interests due to the fact that Child Protective 

Services had removed the children from her son. Due to the factual finding made by the 

Michigan Circuit Court, Plaintiff now asks this Court to reiterate the same issues to punish 

anyone involved at the state court decision making level. The Plaintiff brought this lawsuit in 

bad faith and to harass Defendant Borkowski and anyone else involved with the Michigan state 

court case.

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V. CONCLUSION

For the foregoing reasons, Defendant Elaine Borkowski respectfully requests that this 

Court enter an Order of sanctions against Plaintiff Russell and award Defendant Elaine 

Borkowski reasonable attorney’s fees in the amount of $2,000.00 incurred in responding to the 

instant action. 

Respectfully submitted,

Dated: December 16, 2014 /s/ John B. McNamee

JOHN B. McNAMEE (P27939)

Attorney for Defendant Borkowski

1423 Pine Grove Avenue

Port Huron, MI 48060

(810) 982-2020

mcnameelaw@msn.com

RULE 11(c)(2) CERTIFICATE

Pursuant to Rule 11(c)(2), I hereby certify that on the 13th day of November, 2014, I 

served by first class mail, postage prepaid, upon Plaintiff, Deborah K. Russell, a copy of the 

foregoing Defendant Elaine Borkowski’s Motion for Sanctions Pursuant to Fed. R. Civ. P. 11, 

together with a letter stating as follows:

Pursuant to Fed. R. Civ. P. 11(c)(2), attached is a service copy of 

the Fed. R. Civ. P. 11 Motion for Sanctions of Defendant Elaine 

Borkowski (“Motion for Sanctions”) which we are providing to 

you. We demand you dismiss with prejudice your claims against 

Defendant Elaine Borkowski within 21 days of the date of this 

letter. If you refuse to dismiss your claims against Defendant 

Elaine Borkowski, then we will be forced to file the attached 

Motion for Sanctions with the Court.

/s/ John B. McNamee

John B. McNamee

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CERTIFICATE OF FILING AND SERVICE

I hereby certify that on December 16, 2014, I electronically filed the foregoing 

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS 

COMPLAINT using the ECF system which will send notification of such filing to Plaintiff 

Deborah K. Russell (debkruss@yahoo.com) (In Pro Per Plaintiff), and counsel of record,

Gregory T. Stremers (gtstremers@twwcc.com), John G. Fedynsky (fedynskyj@michigan.gov), 

and Brian D. Einhorn (brian.einhorn@ceflawyers.com).

I hereby further certify that on December 16, 2014, I mailed by United State Postal 

Service the same to the following non-ECF participants:

Elizabeth V. Weisenbach

Attorney at Law

128 W. Huron Avenue

Bad Axe, MI 48413

Heather Main

Attorney at Law

48 S. Elk Street

P.O. Box 286

Sandusky, MI 48471

Respectfully submitted,

Dated: December 16, 2014 /s/ John B. McNamee

JOHN B. McNAMEE (P27939)

Attorney for Defendant Borkowski

1423 Pine Grove Avenue

Port Huron, MI 48060

(810) 982-2020

mcnameelaw@msn.com

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