UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

BRENT MOHLMAN,

Plaintiff, Civil Action No. 15-11085

Honorable Gerald E. Rosen

v. Magistrate Judge Elizabeth A. Stafford

 

DEUTSCHE BANK NATIONAL

TRUST COMPANY, 

Defendant. 

__________________________/

REPORT AND RECOMMENDATION TO IMPOSE SANCTIONS ON 

PLAINTIFF’S COUNSEL FOR VIOLATION OF THE LOCAL RULES

I. INTRODUCTION

Brent Mohlman filed this suit against Deutsche Bank National Trust 

Company (“Defendant”) challenging the validity of a foreclosure sale of 

residential property located at 19042 Irving, Livonia, Michigan 48152. [R. 

1-2]. On March 31, 2015, Defendant filed a motion to dismiss [R. 3], which 

the Honorable Gerald E. Rosen referred to this Court for report and 

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). [R. 11]. In briefing

the motion, Mohlman’s counsel, F. Anthony Lubkin, repeatedly violated this

Court’s Local Rules (“Local Rules”) and ignored the Court’s warning that 

further noncompliance may result in sanctions. To deter such conduct 

going forward and to ensure he represents all clients in this Court 

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competently and in accordance with the Local Rules, the Court 

RECOMMENDS SANCTIONING1 F. Anthony Lubkin $750 and 

ORDERING that he:

(1) file a declaration affirming that he has read the Local Rules in their 

entirety, including the Electronic Filing Policies and Procedures 

Appendix; 

(2) provide Mohlman a copy of this R & R; and

(3) file a declaration signed by both himself and Mohlman affirming 

that he provided Mohlman a copy of this R & R.

II. BACKGROUND

On May 29, 2015, Mohlman, through counsel, filed his first response 

to Defendant’s motion to dismiss. [R. 10]. The Court struck Mohlman’s

response for failing to comply with the Local Rules:

Mohlman’s response to Defendant’s motion to dismiss fails to 

comply with the ... requirements [of E.D. Mich. LR 5.1(a)(2) and 

(a)(3)]. The font size is noticeably too small; there are no page 

numbers; and it appears that it is less than double-spaced. 

The Comment to E.D. Mich. LR 5.1 warns that “[a]ttempts to 

circumvent the LR in any way may be considered an abusive 

practice which may result in papers being stricken as well as 

sanctions being imposed under LR 11.1.” Although Mohlman 

was not necessarily attempting to circumvent the local rules, 

 1 This recommendation has no bearing on the Court’s resolution of the 

pending Motion to Dismiss [R. 3] or pending Motion for Leave to File SurReply [R. 22], both of which will be decided on the merits.

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the multiple deficiencies in his response show that, at a 

minimum, he neglected to review the rules before filing his 

pleading. 

[R. 12, PgID 384]. 

Mohlman’s second response contained a 30-page brief, in violation of

E.D. Mich. LR 7.1(d)(3)(A)’s page limitation. [R. 13]. The Court struck the 

second response and warned counsel “that any continued failure to comply 

with the Court’s local rules will result in an order to show cause why 

sanctions should not be imposed pursuant to LR 11.1 and Fed. R. Civ. P. 

11(c).” [R. 14, PgID 486]. On June 4, 2015, Mohlman filed a third 

response, which complied with the Local Rules, and Defendant filed a reply 

brief on June 22, 2015. 

On June 30, 2015, Mohlman filed a 12-page sur-reply without leave 

of Court, in violation of the Local Rules. [R. 18]. The Court struck the surreply and ordered counsel to show cause why sanctions should not be 

imposed. [R. 19]. Lubkin filed a response to the order to show cause on 

June 30, 2015 [R. 21], and the Court held a hearing on the matter on July 

22, 2015.

In his response to the show cause order and during the hearing, 

Lubkin claimed that he did not invoke this Court’s jurisdiction but that the

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suit was removed from state court2; that he “was only admitted to federal 

practice a few years ago” and he does not litigate in federal court often; that 

he had limited exposure to the Local Rules; that he has difficulty using 

“office computer equipment”; and that due to a recent relocation, he has 

had computer troubles and connectivity troubles which made it difficult to 

access the Local Rules. [R. 21, PgID 647-48]. The Court notes that Lubkin 

appeared more contrite at the hearing than in his written response to the 

order to show cause. However, he still made excuses that lacked merit.

III. DISCUSSION

Pursuant to LR 11.1, this Court has the discretion to impose an 

appropriate sanction on an attorney who knowingly violated the Local 

Rules. E.D. Mich. LR 11.1. “The procedures for imposing sanctions and 

the nature of sanctions shall be as set out in Fed. R. Civ. P. 11(c).” Id. 

Under Rule 11(c), “If, after notice and a reasonable opportunity to respond, 

the court determines that Rule 11(b)3 has been violated, the court may 

impose an appropriate sanction on any attorney ... that violated the rule or 

is responsible for the violation.” Fed. R. Civ. P. 11(c) (footnote added). In 

 2 This claim is factually untrue. Lubkin did not begin representing Mohlman

until after this case was removed from state court; he chose to submit to 

the jurisdiction of federal court. [R. 5]. 

3 “[R]eferences in Fed. R. Civ. P. 11(c) to violations of ‘Rule 11(b)’ are 

deemed to be references to violations of the Local Rules.” E.D. Mich. LR 

11.1.

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determining whether sanctions are warranted, the Court “may consider past 

conduct of the individual responsible for violating Rule 11.” Lucero ex rel. 

Lucero v. Detroit Pub. Schools, No. 01-72792, 2005 WL 1983077, at *2 

(E.D. Mich. Aug. 15, 2005) (Hood, J.). After considering the relevant 

information, including Lubkin’s conduct here, his past conduct, and the 

applicable case law, the Court finds that sanctions are warranted. 

When practicing in this Court, an attorney must follow the Local 

Rules. See Carpenter v. City of Flint, 723 F.3d 700, 710 (6th Cir. 2013)

(“[C]ounsel has a clear obligation to familiarize himself with a district court’s 

local rules and to follow them . . . .”). All attorneys, whether seasoned or 

novice, are required to abide by the Court’s rules, and whether a suit was 

removed from state court is irrelevant. 

Furthermore, Lubkin’s claim that he was unaware of the requirements 

of the Local Rules because he does not litigate in federal court often is 

contrary to the evidence. Lubkin has practiced in this district since at least 

2010, see Davenport v. Genesee County, No. 10-13503, Doc. # 5 (E.D. 

Mich. Sept. 3, 2010), and an ECF search of his name shows he has been 

counsel of record in 14 different matters in this Court. Moreover, Lubkin

has been warned numerous times in other cases for failing to comply with 

the Local Rules. See, e.g., Davis v. Hite, No. 15-10161, Text-Only Order 

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(E.D. Mich. May 1, 2015) (striking amended complaint filed by Lubkin for 

failing to comply with LR 5.1(a)(2)’s requirement that pleadings be doublespaced); Smith v. City of Davison, No. 11-10363, Doc. # 9 (E.D. Mich. 

March 31, 2011) (order to show cause why sanctions should not be 

imposed for Lubkin’s continued failure to complete ECF registration after 

the Court directed him to do so twice and held a telephone status 

conference solely to address his continued noncompliance with LR 5.1.1); 

Davenport v. Genesee County, No. 10-13503, Docs. # 6, 8, 15 (E.D. Mich.)

(three notices of failure to comply with LR 5.1.1 requiring electronic filing 

and warning that further noncompliance may result in sanctions under LR 

11.1). 

In Carpenter v. City of Flint, No. 11-10304, Doc. # 26 (E.D. Mich. 

Aug. 28, 2012), the Court dismissed plaintiff’s (Lubkin’s client) complaint for 

failure to prosecute and for repeated violations of the Local Rules after 

multiple warnings, stating in part:

It is utterly perplexing that Plaintiff’s response and surreply to 

the order to show cause are again single-spaced, in violation of 

Local Rule 5.1(2). This court’s October 17, 2011 order 

specifically notified plaintiff of this Local Rule, made an 

exception for the October 14, 2011 filing, and warned plaintiff 

that future failure to comply would not be tolerated. Plaintiff has 

repeatedly failed to comply with the Local Rules and with the 

orders of this Court....

Id., Doc. # 26, PgID 138. Although the Sixth Circuit reversed because 

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dismissal with prejudice was too severe of a sanction, it concurred that 

Lubkin’s “conduct in pursuing his client’s claims was inept, improper, and 

unprofessional,4

” and “that the district court had good cause to impose 

some sanction on Carpenter or his attorney, given the continued 

violations of the local filing rules.” Carpenter, 723 F.3d at 704, 709-10

(footnote in original) (emphasis added). Thus, Lubkin was well aware of his 

obligation to comply with the Local Rules, yet he repeatedly filed pleadings 

that violated their requirements. Sanctions are warranted under these 

circumstances. 

In fashioning an appropriate sanction under Rule 11, “deterrence is 

the primary goal[;] the minimum amount necessary to deter the sanctioned 

party is the proper [amount].” Lucero, 2005 WL 1983077, at *2. Moreover, 

the Court can issue “directives of a non-monetary nature” in addition to, or 

instead of imposing monetary sanctions. Id. When imposing a monetary 

sanction, the Court must consider the sanctioned party’s ability to pay. Id.

(“The idea is not to bankrupt an attorney, but to deter him from repeating 

the conduct prohibited by Rule 11.”). 

Counsel’s assertion in a previous case provides a helpful point of 

 4 “Indeed, [Lubkin] has continued his pattern of inflammatory language and 

noncompliance with procedural filing rules. See Fed. R. App. P. 

32(a)(5)(A) (requiring proportionally spaced typeface in briefs to be 14-point 

or larger).”

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reference in determining the appropriate monetary sanction. In a 

September 2013 pleading, counsel averred that his client “paid only a 

nominal sum of less than One Thousand Dollars, representing a mere six 

(6) hours of work, at the agreed-upon, reduced ‘hardship’ rate....” Myers v. 

Residential Credit Solutions, Case No. 13-10361, Doc. # 26, PgID 348 

(E.D. Mich. Sept. 24, 2013). Using those figures, counsel’s reduced

billable rate is approximately $166 per hour. Based on that reference point 

and in light of counsel’s repeated disregard of the Local Rules both in this 

case and in the past, the Court finds that $750 is an appropriate sanction to 

achieve the deterrence sought. This amount is well below a full day of 

work for Lubkin even when billing at a reduced rate, which will not bankrupt

counsel or cause him a major financial strain, but should deter further

careless noncompliance with the Local Rules. 

Furthermore, the Court finds certain non-monetary sanctions are 

appropriate. Lubkin should be required to file a declaration affirming that 

he has read the Local Rules in their entirety and that he fully understands 

their requirements. This should eliminate his excuse that he did not fully 

understand the Local Rules in future cases. Moreover, to prevent Lubkin 

from billing Mohlman for the time he spent correcting the errors he made in 

responding to Defendant’s motion, and from passing along his monetary 

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sanctions to Mohlman as costs or fees, counsel should be required to 

provide Mohlman a copy of this R & R, swear that he has done so in the 

declaration, and have Mohlman sign the declaration stating he received a 

copy of the R & R.

IV. CONCLUSION

To deter him from filing pleadings that violate the Local Rules going 

forward, the Court RECOMMENDS entering an Order that imposes the 

above SANCTIONS on Lubkin.

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: September 3, 2015

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

P. 72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

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might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on September 3, 2015.

s/Marlena Williams 

MARLENA WILLIAMS

Case Manager

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