UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

RONALD THOMAS, 

 

 Plaintiff, Civil Action No. 

 09-CV-13632 

vs. 

 HON. MARK A. GOLDSMITH 

BARRY SCHWAB, 

 

 Defendant. 

______________________/ 

OPINION AND ORDER DENYING DEFENDANT’S 

MOTION FOR ATTORNEY FEES AND COSTS 

This matter is presently before the Court on Defendant Barry Schwab’s motion 

seeking attorney fees and costs from Plaintiff’s former attorney, Arnold S. Weintraub and the 

Weintraub Group, PLC (collectively, “Weintraub parties”) (Dkt. 109). The Weintraub parties 

filed a response (Dkt. 112), and Schwab filed an untimely reply (Dkt. 113).1

 The Court 

originally set this matter for a hearing; however, upon review of the motion papers, the Court 

concludes that oral argument would not aid the decisional process. See E.D. Mich. 7.1(f). 

For the reasons that follow, the motion will be denied. 

In his motion, Schwab asks the Court to impose sanctions against the Weintraub 

parties in the amount of $41,208.60 pursuant to the Court’s inherent authority. This is not, 

however, the first time Schwab has requested sanctions against the Weintraub parties. On 

June 8, 2011, Schwab filed a motion under Federal Rule of Civil Procedure 11, requesting 

 

1

 Schwab’s reply brief, which was filed 21 days after the Weintraub parties filed their 

response brief, is inexplicably two weeks late, and therefore stricken from the record. See 

E.D. Mich. LR 7.1(e) (“reply brief supporting a nondispositive motion must be filed within 7 

days after service of the response”). 

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sanctions against the Weintraub parties and others (Dkt. 67).2 The Court granted the motion 

on December 16, 2011 (Dkt. 80), but later vacated the grant of sanctions against the 

Weintraub parties after it came to light that Schwab failed to comply with Rule 11(c)(2)’s 

mandatory safe-harbor provision as to the Weintraub parties (Dkt. 108). 

In his June 8, 2011 motion for sanctions, Schwab stressed the importance of 

complying with (in Schwab’s own words) Rule 11’s “mandatory” safe-harbor provision as an 

“absolute prerequisite” to an award of Rule 11 sanctions (Dkt. 67). Yet despite his actual 

knowledge of Rule 11’s mandatory safe-harbor provision, Schwab sat idly by as the Court – 

many months later – imposed sanctions against the Weintraub parties despite the now 

uncontested fact that Schwab had failed to satisfy the safe-harbor provision as to the 

Weintraub parties.3

Courts have refused to invoke their inherent authority to impose sanctions where the 

party requesting sanctions has unclean hands. See, e.g., S. Shore Ranches, LLC v. Lakelands 

Co., LLC, No. 09-CV-105, 2010 WL 2546112, at *5 (E.D. Cal. Jun. 18, 2010) (“Both parties 

have a form of ‘unclean hands,’ and the Court will not use its inherent authority to reward 

one party over the other.”). Here, Schwab has unclean hands because he sought – and was 

awarded – sanctions against a party without first complying with Rule 11’s safe-harbor 

provision as to the sanctioned party, despite unequivocal actual knowledge of both the 

 

2

 Although the Weintraub parties filed this lawsuit on behalf of Plaintiff, the Weintraub 

parties were permitted to withdraw from the case at a fairly early stage, at which time new 

counsel filed an appearance on behalf of Plaintiff. In his June 8 motion for sanctions under 

Rule 11, Schwab did not explicitly specify who he was seeking Rule 11 sanctions against 

other than to say “Plaintiff’s counsel,” but later documents filed by Schwab in connection 

with the sanctions proceedings clarify that sanctions were being sought against the Weintraub 

parties, among others. See Dkt. 92 (wherein Schwab proposed that the Weintraub parties be 

responsible for 60% of the total sanctions awarded). 

3

 As the Court has already determined in its order vacating the imposition of Rule 11 

sanctions against the Weintraub parties (Dkt. 108), “the Rule 11 sanctions entered against the 

Weintraub parties must be vacated because it is undisputed that [Schwab] did not comply 

with the safe-harbor provision as to the Weintraub parties.” 

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existence and mandatory operation of Rule 11’s safe harbor. For this reason, the Court 

denies Schwab’s motion. 

In addition, the Court denies Schwab’s motion because, as the Weintraub parties 

correctly argue, the motion is really a motion for reconsideration of the Court’s October 24, 

2012 opinion (Dkt. 108) vacating the grant of sanctions against the Weintraub parties. The 

present motion is properly construed as a motion for reconsideration of the Court’s October 

24 opinion because the present motion seeks the same relief (sanctions) against the 

Weintraub parties for the same underlying conduct (filing and maintaining this lawsuit) as did 

Schwab’s original June 8, 2011 motion. The only difference between the two sanctions 

motions is the legal theory under which relief is sought, with the original motion seeking 

sanctions under Rule 11 and the present motion seeking sanctions under the Court’s inherent 

authority. Schwab cannot at this stage invoke a different legal theory in support of relief that 

was previously requested and adjudicated. See Smith ex rel. Smith v. Mt. Pleasant Pub. 

Schs., 298 F. Supp. 2d 636, 637 (E.D. Mich. 2003) (“[A] motion for reconsideration is not 

properly used as a vehicle to . . . advance positions that could have been argued earlier but 

were not.”). 

For these reasons, the Court will not impose sanctions against the Weintraub parties 

pursuant to its inherent authority, and Schwab’s motion (Dkt. 109) is denied. 

SO ORDERED. 

Dated: December 14, 2012 s/Mark A. Goldsmith 

 Flint, Michigan MARK A. GOLDSMITH 

 United States District Judge 

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 December 14, 

2012. 

 s/Deborah J. Goltz 

 DEBORAH J. GOLTZ, Case Manager 

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