### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 3342

J OSEPH S. M C G REAL

, Plaintiff

,

v.

V ILLAGE OF O RLAND P ARK

, et al.,

Defendants

‐ Appellees

,

A PPEAL OF :

J OHN P. D E R OSE

, Counsel for the Plaintiff,

Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 5135

— Joan Humphrey Lefkow

, Judge

.

____________________

A RGUED M AY 29, 2019

— D ECIDED J UNE 26, 2019

____________________

Before K ANNE

, S YKES

, and B RENNAN

, Circuit Judges

.

K ANNE

, Circuit Judge

. The Village of Orland Park fi red po

‐

lice o ffi cer Joseph McGreal in 2010. McGreal sued, alleging

that the Village fi red him in retaliation for remarks he made2 No. 18

‐ 3342

at a community board meeting. The district court granted

summary judgment for the defendants, fi nding that McGreal

had advanced only speculation to support his claims. We af

‐

fi rmed and also remarked on the dearth of evidence to sup

‐

port McGreal’s allegations.

After we a ffi rmed summary judgment, the district court

granted the defendants’ motion for a tt orney fees and directed

John P. DeRose—McGreal’s a tt orney—to pay $66,191.75 to

the defendants. DeRose now appeals that order. Because the

district court did not abuse its discretion, we a ffi rm.

I. B ACKGROUND

Our 2017 opinion provides a summary of McGreal’s suit.

See McGreal v. Vill. of Orland Park

, 850 F.3d 308, 310 (7th Cir.

2017). Su ffi ce to say, the Village of Orland Park fi red McGreal

from the police force after he spoke at a November 2009 vil

‐ lage board meeting. At the meeting, he suggested several so

‐

lutions to a budgetary shortfall facing the Village. McGreal’s

recommendations would have protected junior o ffi cers from

layo ff s by eliminating bene fi ts enjoyed by more senior o ffi c

‐

ers. McGreal believes that these suggestions motivated his

June 2010 termination. But the Village contends that it fi red

McGreal because he repeatedly engaged in misconduct dur

‐ ing late 2009 and early 2010.

McGreal contested his termination through arbitration.

The arbitrator sustained 75 of the 76 disciplinary charges in

McGreal’s record and concluded that the Village fi red

McGreal for just cause.

In June of 2012, McGreal commenced a federal lawsuit, pro

se

, against the Village and several members of the police de

‐

partment. On October 19, 2012, a tt orney John DeRoseNo. 18

‐ 3342 3

appeared as plainti ff ’s counsel. He promptly fi led an

amended complaint on McGreal’s behalf. After the defend

‐

ants fi led a motion to dismiss, the court dismissed most claims

but permi tt ed several (signi fi cantly narrowed) claims to pro

‐

ceed.

DeRose aggressively pursued discovery: he took twelve

depositions, made 294 document requests, and fi led three mo

‐

tions to compel. During discovery, defense counsel asked

DeRose on multiple occasions to end the litigation. On Febru

‐

ary 3, 2014, defense counsel sent DeRose an email requesting

dismissal of several individual defendants because discovery

had revealed no evidence to support the claims against them.

Then in July 2014, defense counsel sent DeRose a le tt er ad

‐ vancing similar arguments. Defense counsel threatened Rule

11 sanctions in both communications.

After discovery, McGreal voluntarily dismissed six de

‐

fendants but defended against summary judgment on the re

‐ maining four defendants. The district court granted judgment

for defendants. The court began by noting that DeRose’s sum

‐

mary judgment fi lings did not comply with Northern District

of Illinois Local Rule 56.1 (which provides guidelines for sub

‐

mi tt ing a statement of facts at summary judgment). “[T]he

motion could have been granted by simply rejecting plainti ff ’s

Local Rule 56.1 submissions,” but the court opted to resolve

the summary judgment motion on its merits. The court ex

‐ plained that the defendants had o ff ered evidence to support

their theories of defense, and McGreal’s arguments and evi

‐

dence to the contrary were speculative.

On June 6, 2016, McGreal appealed. Several weeks later,

the defendants fi led a motion for a tt orney fees. The defend

‐

ants spent most of the motion arguing that the court should4 No. 18

‐ 3342

award fees under the 42 U.S.C. § 1988 fee

‐ shifting provision.

They also argued that the court should sanction DeRose pur

‐

suant to Federal Rule of Civil Procedure 11.

On March 6, 2017, we a ffi rmed the judgment for the de

‐

fendants. 850 F.3d 308. Like the district court, we found that

McGreal had “o ff ered no admissible evidence showing that

he [was] entitled to relief.” Id. at 310. Several months later, the

district court granted the defendants’ motion for fees. Instead

of relying on § 1988 fee

‐ shifting, the court concluded that “un

‐

der Rule 11, McGreal’s counsel’s summary judgment fi lings

were not well grounded in fact or warranted by existing law

or a good faith argument for the extension, modi fi cation, or

reversal of existing law.” Ultimately, the court ordered

DeRose to pay $66,191.75 in fees (the amount defendants in

‐

curred in preparing their Rule 11 le tt ers, seeking summary

judgment, and requesting a tt orney fees). DeRose promptly

appealed.

II. A NALYSIS

We review the imposition of Rule 11 sanctions for abuse of

discretion. N. Illinois Telecom, Inc. v. PNC Bank, N.A.

, 850 F.3d

880, 883 (7th Cir. 2017). “An abuse of discretion may be estab

‐

lished if the district court based its decision on an erroneous

view of the law or a clearly erroneous evaluation of evidence.”

Id. Rule 11 requires a tt orneys to certify that every court fi ling

advances arguments warranted by existing law or a nonfriv

‐

olous argument for extending the law. Fed. R. Civ. P. 11(b)(2).

Similarly, the factual contentions a tt orneys advance must

have evidentiary support or be likely to have evidentiary sup

‐

port after a reasonable opportunity for further investigation.

Id. at 11(b)(3).No. 18

‐ 3342 5

In his brief on appeal, DeRose fi rst argues that the defend

‐

ants did not follow the Rule 11 procedures for seeking sanc

‐

tions. Speci fi cally, Rule 11(c)(2) speci fi es that a party may fi le

a “motion for sanctions,” “but it must not be fi led or be pre

‐

sented to the court if the challenged paper, claim, defense,

contention, or denial is withdrawn or appropriately corrected

within 21 days after service or within another time the court

sets.” In other words, Rule 11(c)(2) creates a safe

‐ harbor. The

moving party must serve the motion on the alleged violator

and permit twenty

‐ one days to remedy the violation.

DeRose correctly notes that defense counsel never served

him with a motion before seeking sanctions. Rather, they sent

him le tt ers and emails raising their concerns and threatening

sanctions. A le tt er is not a motion, and, under the law of eight

circuits, these informal communications would not satisfy the

Rule 11(c)(2) requirements. See Penn, LLC v. Prosper Bus. Dev.

Corp

., 773 F.3d 764, 768 (6th Cir. 2014) (explaining that the Sec

‐

ond, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Cir

‐

cuits all require strict compliance). The Seventh Circuit, how

‐

ever, interprets Rule 11(c)(2) di ff erently.

In Nisenbaum v. Milwaukee Cty.

, we held that the defend

‐

ants “complied substantially” with Rule 11(c) when they sent

opposing counsel “a ‘le tt er’ or ‘demand’ rather than a ‘mo

‐

tion.’” 333 F.3d 804, 808 (7th Cir. 2003). We are the sole circuit

to adopt this “substantial compliance” theory, and other cir

‐

cuits have subsequently criticized our analysis as cursory and

atextual. See, e.g.

, In re Pra tt

, 524 F.3d 580, 588 (5th Cir. 2008)

(“[T]he Seventh Circuit provided li tt le analysis and cited no

authority for its holding.”); Roth v. Green

, 466 F.3d 1179, 1193

(10th Cir. 2006) (similar); see also Manrique v. United States

, 137

S. Ct. 1266, 1272 (2017) (indicating that, if properly raised,6 No. 18

‐ 3342

mandatory claim

‐ processing rules are “unalterable” (citation

omi tt ed)); In re Wade

, No. 18

‐ 2564, 2019 WL 2482413, at *3 (7th

Cir. June 14, 2019) (applying Manrique to claim

‐ processing

rules in bankruptcy cases).

DeRose’s argument that the defendants should have

served him with their Rule 11 motion—not just emails and

le tt ers—is directly foreclosed by our holding in Nisenbaum

. And DeRose does not ask us to overrule Nisenbaum —he re

‐ peatedly disavowed that argument at oral argument. Even if

DeRose did advance this argument, he’s waived it. He didn’t

argue before the district court that the defendants failed to

comply with Rule 11(c)(2) until his motion for reconsideration

of the order imposing sanctions. Laserage Tech. Corp. v. La

‐

serage Labs., Inc.

, 972 F.2d 799, 804 (7th Cir. 1992) (explaining

that raising issues or arguments for the fi rst time in a motion

for reconsideration do not preserve them for appeal) (citing

Bally Export Corp. v. Balicar, Ltd.

, 804 F.2d 398, 404 (7th Cir.

1986))). Accordingly, we leave any reconsideration of Nisen

‐

baum for another day. See also N. Ill. Telecom, Inc.

, 850 F.3d at

887–88.

DeRose also argues that the district court abused its dis

‐

cretion because he agreed to represent McGreal in good faith

and after careful consideration. That argument is inadequate

for two reasons. First, the district court sanctioned DeRose for

his decision to defend against summary judgment. The court

didn’t question DeRose’s decision to represent McGreal or

seek discovery. The sanctionable behavior was DeRose’s de

‐

cision to continue litigating after discovery revealed no evi

‐

dence to support McGreal’s claims.

Second, “Rule 11 requires counsel to study the law before

representing its contents to a federal court. An empty headNo. 18

‐ 3342 7

but a pure heart is no defense.” Thornton v. Wahl

, 787 F.2d

1151, 1154 (7th Cir. 1986). The test is objective. An a tt orney

cannot avoid sanctions by claiming subjective good faith if a

reasonable inquiry into the facts and law would have revealed

the frivolity of the position. Cuna Mut. Ins. Soc. v. O ffi ce &

Prof’l Emp. Int ʹ l Union, Local 39

, 443 F.3d 556, 560 (7th Cir.

2006); Harlyn Sales Corp. Pro fi t Sharing Plan v. Kemper Fin.

Servs., Inc

., 9 F.3d 1263, 1270 (7th Cir. 1993).

In other words, DeRose’s duty to conduct a reasonable in

‐ vestigation into the law and facts supporting McGreal’s

claims did not end after he chose to represent McGreal. That

duty renews at each stage of the litigation, including sum

‐

mary judgment. In fact, the duty compounds. An a tt orney

might reasonably believe that discovery will reveal eviden

‐ tiary support. After discovery, an a tt orney may proceed only

if that hypothetical evidence has materialized.

And the district court did not abuse its discretion when it

found that DeRose violated Rule 11 by opposing summary

judgment. The district court found that McGreal lacked evi

‐

dence to support at least one element of each claim. And we

agreed, fi nding that McGreal hadn’t produced any admissible

evidence on the claims he appealed. 850 F.3d at 310.

DeRose didn’t just disregard the complete lack of evi

‐

dence. The district court found that DeRose’s “responses to

defendants’ statements of material facts were laden with dis

‐ ingenuous and misleading statements.” And, as already men

‐

tioned, DeRose’s statement of facts did not comply with the

Local Rule 56.1 standards. 1 Viewed in totality, DeRose’s

1 That failure is particularly difficult to understand because the district

court, in its standing order, directs counsel to read Malec v. Sanford

, 1918 No. 18

‐ 3342

summary judgment submissions fell short of the Rule 11 re

‐ quirements. The district court did not abuse its discretion by

imposing sanctions.

III. C ONCLUSION

A tt orneys must satisfy Rule 11’s requirements during the

entire pendency of the litigation. Discovery revealed an u tt er

lack of evidentiary support for McGreal’s claims, but DeRose

defended against summary judgment anyway. Accordingly,

we AFFIRM the district court’s sanctions against DeRose.

F.R.D. 581 (N.D. Ill. 2000), before submitting statements of fact under Lo

‐

cal Rule 56.1. And the court in Malec admonished DeRose himself for fail

‐

ure to comply with the same local rule. Id. at 582–87.