In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 04-2254 & 04-2968

U.S. BANK NATIONAL ASSOCIATION, N.D.,

Plaintiff,

v.

MATTIE SULLIVAN-MOORE,

Defendant-Appellee.

APPEAL OF: FISHER & FISHER, P.C.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 02 C 6024—George W. Lindberg, Judge.

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ARGUED JANUARY 11, 2005—DECIDED APRIL 27, 2005

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Before POSNER, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Fisher and Fisher, Attorneys at

Law, P.C. earns its bread and butter representing mortgage

companies and lending institutions in mortgage foreclosure

cases, creditor bankruptcies, evictions, real estate closings,

housing court, and housing related matters. By its own

description, it is a high volume operation, receiving 10,000

to 12,000 cases each year, 4,000 to 5,000 of which are new

foreclosure matters. The firm does not assign one attorney
2 Nos. 04-2254 & 04-2968

to handle a single case, but rather lawyers work on numerous files on a daily basis and several attorneys may work on

any particular matter. 

This approach to its caseload may have exacerbated the

firm’s mishandling of a foreclosure action against Mattie

Sullivan-Moore, who has since died. Working on behalf of

U.S. Bank National Association, N.D., Fisher and Fisher

handled the foreclosure of Sullivan-Moore’s home, located

at 7744 South Carpenter Street, Chicago. The proceedings

got off to a bad start, however, because the complaint misidentified Sullivan-Moore’s common address as 7742 South

Carpenter instead of 7744 South Carpenter. As a result of

this error, Sullivan-Moore never received proper notice of

the proceedings before a judgment of foreclosure was entered, her property was sold, and she was evicted. Although

sympathetic to the initial error, the district court believed

Fisher and Fisher had ample opportunity to rectify the

problem before Sullivan-Moore was evicted. The district

court thus imposed sanctions against Fisher and Fisher,

and it appeals, contending that the sanctions were improperly imposed.

The underlying action stems from a $140,000 loan from

U.S. Bank, taken out by Sullivan-Moore in 2001, when she

was 69 years old. Although the loan was ultimately used to

refinance Sullivan-Moore’s home at 7744 South Carpenter,

the loan application lists the property to be refinanced as

7742 (an adjacent property previously owned by her daughter). This may be why U.S. Bank listed the address as 7742

South Carpenter when it referred the mortgage to Fisher

and Fisher for foreclosure the following year after SullivanMoore failed to make the mortgage payments. Relying on

the referral from U.S. Bank, Fisher and Fisher attorney

Cynthia Sutherin filed the foreclosure complaint in the

district court in August 2002. The complaint contained the

correct legal description of the property, but incorrectly

listed the common address as 7742 South Carpenter. How-
Nos. 04-2254 & 04-2968 3

ever, the consumer installment note and the mortgage

papers attached to the complaint itself correctly identified

the address as 7744 South Carpenter. 

In spite of these documents reflecting the correct address,

Fisher and Fisher continued to rely on the defective address

it had listed in the complaint. Not surprisingly, a process

server given that address was unable to effect personal service. He reported back to Fisher and Fisher that the tenant

at 7742 South Carpenter did not know Sullivan-Moore and

paid rent to an individual named Donna Lillybirde. Just

over a week later, Fisher and Fisher moved for service by

publication. The district court granted the motion and the

notice was published in the Daily Law Bulletin, again listing the common address as 7742 South Carpenter. Fisher

and Fisher went on to obtain a default order and judgment

of foreclosure, and scheduled a special commissioner’s sale

for April 30, 2003. U.S. Bank purchased the property at the

sale.

Shortly after the commissioner’s sale Sutherin discovered

the address error. On May 16 she received calls from both

the tenant at 7742 Carpenter and an attorney for the

property’s owner, complaining about the eviction notice sent

there. These calls prompted Sutherin and another attorney

to examine the file, where they learned that the pleadings

contained the wrong commonly known address for the

property.

Instead of exploring at that point whether Sullivan-Moore

had received adequate process, Fisher and Fisher pressed

forward, moving on May 21 for an order approving the sale

and an order for possession. Its only acknowledgment of the

error came by way of a motion to correct scrivener’s error

filed June 11, a motion Fisher and Fisher now acknowledges was an inappropriate response to the mistake in the

complaint. The district court granted both motions, setting

the stage for Sullivan-Moore’s eviction.
4 Nos. 04-2254 & 04-2968

Thus, although she had never received the requisite notice of the proceedings, Sullivan-Moore was evicted on

August 1, 2003. She moved back in the next day, prompting

Fisher and Fisher to move for a renewed order of possession

so that they could enlist the Cook County Sheriff’s Department to re-evict her.

It was at the hearing on the motion for a renewed order

of possession that the district court learned that SullivanMoore had never been served. Sullivan-Moore appeared at

the hearing with her daughter Delaura Sullivan. Michael

Fisher, an associate who had taken over the case to handle

the eviction, appeared for Fisher and Fisher. Sullivan-Moore

explained that she had not received notice of the foreclosure

before being evicted, and Delaura moved to vacate based on

lack of jurisdiction. Michael Fisher responded that although

he did not have the file for the foreclosure action, SullivanMoore must have been served because she was evicted, and

anyway the case had been “over for almost four months.” In

an attempt to sort out whether Sullivan-Moore had been

served, the district court’s clerk retrieved the court’s

electronic docket. Meanwhile, Michael Fisher located

Sutherin, who had handled the foreclosure and happened to

be in court on another matter. Using the docket sheet the

district court then recounted the attempts at service to the

wrong address (7742). The court concluded that SullivanMoore had never been properly served, a deficiency that

could not have been cured with the correction of the “scrivener’s error.” Faced with this information, Sutherin moved

to vacate the order approving the sale, void the sale, and

vacate the judgment.

Approximately one month later the district court sua

sponte issued an order requiring U.S. Bank and Fisher and

Fisher to show cause why they should not be sanctioned

under Federal Rule of Civil Procedure 11 and 28 U.S.C.

§ 1927. The court identified multiple potential Rule 11 violations, including failing to reasonably review the complaint
Nos. 04-2254 & 04-2968 5

before filing it, which would have revealed Sullivan-Moore’s

correct address, see Fed. R. Civ. P. 11(b)(3), failing to serve

Sullivan-Moore with the motion to correct scrivener’s error,

see Fed. R. Civ. P. 11(b)(1), and advocating—via the motion

for a renewed order of possession—the validity of papers

presented to the court after discovering that the papers

contained errors, see Fed. R. Civ. P. 11(b)(1). 

The district court later discharged U.S. Bank from the

rule to show cause, concluding that any sanctionable behavior was attributable to Fisher and Fisher. While the

show cause order was pending, Sullivan-Moore died, and

the district court appointed her daughter Delaura as a special representative, see 735 ILCS 5/2-1008(b), and substituted her as the defendant. Finally, in response to Fisher

and Fisher’s stipulation that any sanction would run

against the firm as a whole, the district court released the

individual attorneys involved from liability.

After receiving affidavits from Sutherin, Michael Fisher,

and several other Fisher and Fisher attorneys, the district

court issued an order sanctioning the firm. The court

concluded that the initial mistake as to Sullivan-Moore’s

address “was an honest one” for which Fisher and Fisher

should not be faulted. It believed, however, that the firm’s

actions after it learned of the mistake were sanctionable in

several respects. First, once it learned of the error, Fisher

and Fisher should have known that since the attempt at

personal service had been made at the wrong address, the

service by publication was deficient and thus the sale, judgment, and other court orders needed to be vacated. The

court also pointed out that the motion to correct scrivener’s

error could not possibly cure the failure of process, and that

by filing such a motion instead of moving to vacate the

previous orders Fisher and Fisher caused the wrongful

eviction. The court also chastised the firm for seeking to

evict Sullivan-Moore yet a second time after at least two

attorneys who had worked on the case knew (or should have
6 Nos. 04-2254 & 04-2968

known) that Sullivan-Moore had never been served. Finally,

the court rebuked Michael Fisher for what it viewed as his

attempt to prevent Delaura from assisting her “elderly

mother” to communicate with the court at the hearing on

the motion for a renewed order of possession.

By way of sanctions, the court ordered all Fisher and

Fisher attorneys admitted in the Northern District of

Illinois and any attorneys joining the firm within two years

to attend or view a sixteen-hour course in federal subject

matter jurisdiction and civil procedure. The court also

ordered Fisher and Fisher to reimburse the estate’s attorney $302.47 in expenses. Fisher and Fisher filed a motion

for reconsideration, but the district court denied it.

On appeal Fisher and Fisher contends that the district

court erred by entering sanctions against it. It also claims

that there is no support in the record for certain factual

findings made by the district court, and attacks the requirement that current and future Fisher and Fisher

attorneys view or attend a sixteen-hour civil procedure

course as unreasonable and excessive.

We review the district court’s decision to award sanctions

under both Rule 11 and § 1927 for an abuse of discretion.

See Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 405

(1990); Corley v. Rosewood Care Ctr., Inc., 388 F.3d 990,

1013-14 (7th Cir. 2004). As relevant here, Rule 11 provides

that by presenting documents to the court, an attorney

certifies to the best of his or her knowledge that (1) they are

not being presented for any improper purpose, (2) the

claims and contentions are warranted by existing law, and

(3) the allegations and factual contentions have evidentiary

support. Here the district court found that Fisher and

Fisher violated Rule 11 by moving forward with SullivanMoore’s eviction even after learning about the incorrect

address in its pleadings. The district court was within its

discretion to conclude that Fisher and Fisher’s course of ac-
Nos. 04-2254 & 04-2968 7

tion after learning of the defective address violated Rule 11.

As the court pointed out, the discovery of the mistaken

address should have prompted “a reasonably competent

second year law student . . . to move to vacate the sale and

judgment, and then to start over with proper service of

process.” Instead, Fisher and Fisher moved to correct a

scrivener’s error, representing to the court, in violation of

Rule 11(b)(2) and (3), that correcting the error would not “in

any way, prejudice any of the parties.”

In its defense Fisher and Fisher makes much of the fact

that because Michael Fisher was handling the eviction as a

separate matter from the foreclosure, he did not know about

the address error when he moved for a renewed order of

possession. But the district court considered this argument

and rejected it, noting that “[t]he failure of the law firm to

have in place a mechanism whereby important information

about the foreclosure proceedings was in the possession of

the attorney handling the eviction is not mitigating, but

rather an aspect of the improper conduct in this case.” We

agree with the district court that Fisher and Fisher’s plea of

ignorance is unavailing. Rule 11 establishes an objective

test, and as we have repeatedly observed, an “empty head

but a pure heart is no defense.” Chambers v. Am. Trans Air,

Inc., 17 F.3d 998, 1006 (7th Cir. 1994) (citation and internal

quotations omitted). Rule 11 “requires counsel to read and

consider before litigating.” Thornton v. Wahl, 787 F.2d

1151, 1154 (7th Cir. 1986). Neither the firm’s caseload nor

its practice of shuffling cases from one attorney to another

within the firm excuses the type of negligent action that

caused Sullivan-Moore to be evicted.

Likewise, we see no abuse of discretion in the district

court’s assessment that Fisher and Fisher’s reckless approach warranted an award of expenses under 28 U.S.C.

§ 1927. That section permits a district court to award expenses incurred on account of attorney behavior that “multiplies the proceedings . . . unreasonably and vexatiously.”
8 Nos. 04-2254 & 04-2968

Fisher and Fisher acknowledges that its mistake regarding

the address came to the attention of at least two of its

attorneys on May 16, over two months before SullivanMoore was evicted. In the interim, Fisher and Fisher sought

and received an order approving the sale and filed the

motion to correct scrivener’s error. And although Fisher and

Fisher had Sullivan-Moore’s correct address by then, it

failed to serve her with a copy of the motion, thus obviating

any opportunity for her to bring the situation to the court’s

attention before she was evicted two months later. The

district court was within its discretion to conclude that this

behavior unreasonably and vexatiously multiplied the

proceedings. See Finance Inv. Co. (Bermuda) v. Geberit AG,

165 F.3d 526, 533 (7th Cir. 1998); Fox Valley Constr.

Workers Fringe Benefit Funds v. Pride of Fox Masonry &

Expert Restorations, 140 F.3d 661, 666-67 (7th Cir. 1998).

Fisher and Fisher also attacks certain factual findings

underpinning the court’s decision to award sanctions. Fisher

and Fisher points to three supposed “findings” by the district court: that its failure to respond properly to the mistaken address was part of a “cover-up,” that its conduct was

“indicative of a larger pattern of violations of the rules of

civil procedure,” and that its conduct accelerated SullivanMoore’s death. Although a sanctions award that rests on a

clearly erroneous assessment of the evidence would be an

abuse of discretion, Cooter, 496 U.S. at 405, there is no clear

error here.

As to the court’s finding of a “cover-up,” neither its order

imposing sanctions nor the order denying Fisher and

Fisher’s Rule 59(e) motion mentions a “cover-up.” It is true

that the district court construed Michael Fisher’s conduct

at the hearing on the renewed order of possession as an

attempt to prevent Sullivan-Moore from explaining that she

had never been served. At the start of the hearing Delaura

attempted to assist Sullivan-Moore, and Michael Fisher objected on the ground that she was not an attorney and thus
Nos. 04-2254 & 04-2968 9

could not represent Sullivan-Moore. Fisher and Fisher now

argues that there was nothing improper about the objection.

Although the objection could be understood as one made for

a legitimate reason, we cannot say that the district court

clearly erred in concluding otherwise. The district court was

in the best position to assess Michael Fisher’s intentions,

and nothing Fisher and Fisher presents on appeal calls the

court’s judgment into question. See Maynard v. Nygren, 372

F.3d 890, 892 (7th Cir. 2004).

The same can be said for the remaining factual findings

Fisher and Fisher challenges. Although Fisher and Fisher

disputes the district court’s observation that the firm’s

conduct was indicative of a “larger pattern of violations of

the rules of federal civil procedure by the attorneys of Fisher

and Fisher,” as “unsupported,” it offers nothing to undercut

the observation. Given the numbers Fisher and Fisher itself

advanced regarding its caseload, this case was not its first

before Judge Lindberg, and he was entitled to make an

assessment based on his firsthand observations in those

proceedings. See Vollmer v. Publishers Clearing House, 248

F.3d 698, 710 (7th Cir. 2001) (district court entitled to

consider party’s past conduct in imposing and fashioning

sanctions). Finally, the district court was entitled to entertain the possibility that the stress of the eviction may have

exacerbated any health problems Sullivan-Moore, an elderly

woman, may have faced. Fisher and Fisher simply provides

no convincing alternatives to the factual findings it challenges on appeal. We are thus hard-pressed to conclude that

the findings are clearly erroneous.

That leaves the firm’s contention that the sanctions themselves are unreasonable. The district court has wide latitude to determine what sanctions should be imposed for a

Rule 11 violation, and may impose non-monetary sanctions

when appropriate to deter repetition of the offending

conduct. See Jimenez v. Madison Area Technical Coll., 321

F.3d 652, 657 (7th Cir. 2003). Although Fisher and Fisher
10 Nos. 04-2254 & 04-2968

now protests the requirement that all its attorneys view or

attend a civil procedure course, it waived any objection to

such a requirement in the district court. First, it stipulated

that any sanctions would run against the firm and not individual attorneys. Then in its Rule 59(e) motion Fisher and

Fisher attacked the requirement as casting too broad a net

by requiring all Fisher and Fisher attorneys to participate

in the civil procedure course. In response, the district court

asked the firm to provide a list of attorneys responsible for

the violations so that the sanctions could be more narrowly

tailored. Instead of complying, Fisher and Fisher withdrew

its request for the court to reconsider the scope of the sanction and explicitly agreed to both the length of the course

and the requirement that all current and future Fisher and

Fisher employees attend. Thus, it has waived the argument.

See Blickenstaff v. R.R. Donnelly & Sons Co. Short Term

Disability Plan, 378 F.3d 669, 681 (7th Cir. 2004); Bishop v.

Gainer, 272 F.3d 1009, 1015 (7th Cir. 2001). And even if the

issue had been preserved, we see nothing excessive or

overly burdensome in the court’s order that Fisher and

Fisher attorneys attend a sixteen-hour course in civil procedure.

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-27-05