IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PETER KEENAN, :

Plaintiff :

:

v. : Civil Action No.: 02-CV-4420

:

UNUM PROVIDENT CORPORATION :

Successor-In-Interest to PAUL REVERE :

LIFE INSURANCE COMPANY and :

JOSEPH P. REILLY INSURANCE AGENCY :

Defendants :

ORDER

AND NOW, this day of , 2002, upon

consideration of the Plaintiff’s Motion for Sanctions and the Defendant UNUM Provident

Corporation‘s Motion to Dismiss and Plaintiff’s Response thereto, and Defendant, having been

served with the Motion for Sanctions on July 30, 2002 and not withdrawing the Motion to Dismiss,

it is hereby ORDERED and DECREED that Plaintiff’s Motion For Sanctions is granted and said

Defendant is ORDERED to pay the sum of $1628.50 to Law Offices of Jonathan Wheeler, P.C., said

sum representing the counsel fees and costs incurred in responding to Defendant’s Motion to 

Dismiss. 

By the Court:

_________________________________

J.

Case 2:02-cv-04420-AB Document 10 Filed 09/13/2002 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PETER KEENAN, :

Plaintiff :

:

v. : Civil Action No.: 02-CV-4420

:

UNUM PROVIDENT CORPORATION :

Successor-In-Interest to PAUL REVERE :

LIFE INSURANCE COMPANY and :

JOSEPH P. REILLY INSURANCE AGENCY :

Defendants :

PLAINTIFF’S MOTION FOR SANCTIONS

PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 11(b)

Plaintiff, Peter Keenan, by and through his attorney, Law Offices of Jonathan Wheeler, P.C.,

does hereby file this Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 11(b) and in

support thereof avers the following:

1. This is a lawsuit instituted by Peter Keenan against his disability insurance company,

UNUM Provident Corporation, Successor-In-Interest to Paul Revere Life Insurance Company, and

the insurance agent who sold him the policy, Joseph P. Reilly Insurance Agency. The suit raised

causes of action for breach of contract, bad faith and negligence and was brought in the Philadelphia

Court of Common Pleas, May Term, 2002, No. 003862. 

2. On July 3, 2002, Defendant, UNUM, filed a Notice of Removal to the District Court.

However, Defendant failed to serve a copy on Plaintiff as certified by counsel in the Certificate of

Service attached to the Petition for Removal. Eventually, Plaintiff received Notice of the Removal

and filed a Motion for Remand on July 24, 2002. The Notice of Removal and Motion for Remand

are part of the record to the Court and are incorporated by reference.

Case 2:02-cv-04420-AB Document 10 Filed 09/13/2002 Page 2 of 8
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3. On or about July 12, 2002, Defendant served a copy of a Motion to Dismiss upon

Plaintiff.

4. Plaintiff has filed a Response in Opposition to the Defendant’s Motion to Dismiss on July

24, 2002, and in support thereof, has presented the Court with proof that the policy sold to Plaintiff

by Defendant’s agent was not established or maintained by an employer, therefore, the policy is not

subject to ERISA. The Plaintiff’s Response is a part of the record and incorporated by reference.

5. At all times relevant hereto, Plaintiff was a public adjuster providing services as an

independent contractor to a company called Personal Public Adjusters until 1990.

6. In his Motion to Dismiss, Plaintiff has presented IRS Forms 1099 for the years 1986, 1987

and 1988, to demonstrate that hewasself-employed and the recipient of non-employee compensation

from Personal Public Adjusters.

7. In his Response to Defendant’s Motion to Dismiss, Plaintiff directed the court to Exhibit

“A” of Plaintiff’s Complaint, specifically, the Application for Insurance, Part I, Section M, which

demonstrated that premiums for the policy were to be paid by the proposed insured, Plaintiff herein.

8. As additional evidence, Plaintiff presented a billing invoice and check for payment which

evidenced that premiums were billed to Plaintiff and paid by Plaintiff directly.

9. The information set forth above was known or should have been known by UNUM,

particularly because it received premiums by Plaintiff and was privy to his Application which

demonstrated that the policy was maintained and/or established by Mr. Keenan.

10. The allegations and factual contentions set forth in Defendant’s Motion to Dismiss were

not supported by meaningful evidence.

11. Defendant’s conduct in removing the Plaintiff’s case brought in the Philadelphia Court

Case 2:02-cv-04420-AB Document 10 Filed 09/13/2002 Page 3 of 8
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of Common Pleas and in thereafter filing a factually unsupported Motion to Dismiss demonstrates

that the Motion was presented for an improper purpose in that it has caused unnecessary delay and

a needless increase in the cost of litigation.

12. Plaintiff’s counsel has attached an Affidavit which demonstrated the time expended and

the cost involved in preparing a response to the frivolous Motion to Dismiss of Defendant. See

Affidavit of Counsel attached hereto as Exhibit “A”.

13. Plaintiff is entitled to expenses and attorneys’ fees involved in responding to Defendant’s

Motion pursuant to Federal Rule of Civil Procedure 11(c)(1)(A).

14. Federal Rule of Civil Procedure 11 (2) also authorizes other sanctions which are

sufficient to deter conduct which constitutes an improper purpose and disregard of the facts and law.

WHEREFORE, Plaintiff respectfully requests that the Court grant the within Motion for

Sanctions and enter an Order requiring Defendant to reimburse Plaintiff’s counsel for fees and

expenses incurred in the response of Defendant’s Motion to Dismiss and any other deterrent

sanctions which the Court deems appropriate.

Respectfully submitted,

LAW OFFICES OF JONATHAN WHEELER, P.C.

By: /s/

Jonathan Wheeler, Esquire

Attorney I.D. No. 12649

Attorney for Plaintiff, Peter Keenan

1270 One Penn Center

1617 John F. Kennedy Blvd.

Philadelphia, PA 19103

(215) 568-2900

Case 2:02-cv-04420-AB Document 10 Filed 09/13/2002 Page 4 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PETER KEENAN, :

Plaintiff :

:

v. : Civil Action No.: 02-CV-4420

:

UNUM PROVIDENT CORPORATION :

Successor-In-Interest to PAUL REVERE :

LIFE INSURANCE COMPANY and :

JOSEPH P. REILLY INSURANCE AGENCY :

Defendants :

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF MOTION

FOR SANCTIONS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 11 (b)

Federal Rule of Civil Procedure 11 authorizes the imposition of sanctions against an attorney

or unrepresented party who has filed a written motion, pleading or other paper that is not supported

by existing law or factual evidence.

The Rule provides that a separate Motion for Sanctions will not be filed with the Court

unless, within twenty-one (21) days of service of the Motion, the challenged paper is not withdrawn.

Attorneys’fees and costs expended in defending a frivolous motion are appropriate sanctions.

The Defendant has filed a Motion to Dismiss on federal pre-emption grounds when it knew

or should have known that the policy sold to Plaintiff was not subject to ERISA in that it was not

established or maintained by an employer.

At all relevant times, Plaintiff was not an employee but was a self-employed independent

subcontractor. See Plaintiff’s Motion for Remand and Plaintiff’s Response in Opposition to

Defendant’s Motion to Dismiss and Exhibits attached thereto which are part of the record and

incorporated by reference. 

Case 2:02-cv-04420-AB Document 10 Filed 09/13/2002 Page 5 of 8
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The evidence presented to the Court in the aforementionedIN THE AFOREMENTIONED

Motion and Response demonstrates that the filings of Defendant were presented to harass or cause

unnecessary delay or needless increase in the cost of litigation because there was simply no legal

basis or factual basis for Defendant’s contention that Plaintiff’s policy was a policy subject to

ERISA.

WHEREFORE, Plaintiff respectfully requests that the Court grant Plaintiff’s Motion for

Sanctions as set forth in the attached Order.

Respectfully submitted,

LAW OFFICES OF JONATHAN WHEELER, P.C.

By: /s/

Jonathan Wheeler, Esquire

Attorney I.D. 12649

1270 One Penn Center

1617 John F. Kennedy Blvd.

Philadelphia, PA 19103

(215) 568-2900

Attorney for Plaintiff,

Peter Keenan

Dated:__________

Case 2:02-cv-04420-AB Document 10 Filed 09/13/2002 Page 6 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PETER KEENAN, :

Plaintiff :

:

v. : Civil Action No.: 02-CV-4420

:

UNUM PROVIDENT CORPORATION :

Successor-In-Interest to PAUL REVERE :

LIFE INSURANCE COMPANY and :

JOSEPH P. REILLY INSURANCE AGENCY :

Defendants :

CERTIFICATE OF SERVICE

I, Jonathan Wheeler, Esquire, hereby certify that a true and correct copy of Plaintiff’s Motion

for Sanctions was served this date upon the following counsel of record via United States First Class

Mail, postage prepaid:

Andrew F. Susko, Esquire Joseph P. Reilly Insurance Agency

Kevin C. Cottone, Esquire 1200 Bustleton Pike, Suite 10

White and Williams LLP Feasterville, PA 19053

1800 One Liberty Place

Philadelphia, PA 19103

LAW OFFICES OF JONATHAN WHEELER, P.C.

By: /s/

Jonathan Wheeler

Dated:_________________________

Case 2:02-cv-04420-AB Document 10 Filed 09/13/2002 Page 7 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PETER KEENAN, :

Plaintiff :

:

v. : Civil Action No.: 02-CV-4420

:

UNUM PROVIDENT CORPORATION :

Successor-In-Interest to PAUL REVERE :

LIFE INSURANCE COMPANY and :

JOSEPH P. REILLY INSURANCE AGENCY :

Defendants :

AFFIDAVIT

I, Jonathan Wheeler, Esquire, being duly sworn, hereby depose and say:

1. I am fully familiar with the facts in the above captioned case, and I am counsel for the

Plaintiff, Peter Keenan. I am more than 21 years of age and competent to testify to the following

allegations.

2. I am principal and sole practitioner, rendering legal services in the Law Office of Jonathan

Wheeler, P.C. My currently hourly billing rate is $250.00 for the type of matter above captioned.

3. Pursuant to Defendant Insurance Company’s Motion to Dismiss served on or about July

12, 2002, I researched, prepared, and drafted the Plaintiff’s Response in Opposition to Defendant’s

Motion.

4. I spent a total of 6.0 hours in the preparation of the Response in Opposition to

Defendants’s Motion to Dismiss, totaling $1,500.00 in counsel fees.

5. I have further expenses in postage and photocopying in the amount of $128.50.

SWORN TO AND SUBSCRIBED By: /s/

BEFORE ME THIS _______ DAY Jonathan Wheeler, Esquire

OF ___________________, 2002. Attorney I.D. No. 12649

1270 One Penn Center

1617 John F. Kennedy Blvd.

____________________________ Philadelphia, PA 19103

NOTARY PUBLIC (215) 568-2900

Attorney for Plaintiff,

Peter Keenan

Case 2:02-cv-04420-AB Document 10 Filed 09/13/2002 Page 8 of 8