IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

AMAZING GRACE BED & )

BREAKFAST, et al., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 09-0298-WS-N

 )

MAYOR HENRIETTA BLACKMUN, )

et al., )

 )

Defendants. )

ORDER

This matter is before the Court on the plaintiffs’ motion for Rule 11 sanctions. 

(Doc. 26). The defendants have filed a response, (Doc. 32), the plaintiffs declined the

opportunity to file a reply, (Doc. 28), and the motion is ripe for resolution.

As discussed in the Court’s order granting in part the defendants’ motion to

dismiss, (Doc. 27), among the plaintiffs’ claims is one for deprivation of property or

liberty without due process. There can be no due process claim if state law provides the

plaintiffs a process sufficient to remedy the procedural deprivation. (Id. at 5). Here, the

deprivation occurred at the local level, in connection with the decision of the City of

Camden Zoning Board (“the Board”), and state law allows the plaintiffs the right to

appeal the Board’s decision to state court. (Id.). 

In their opening brief on motion to dismiss, the defendants argued that the

plaintiffs had not appealed the Board’s decision and therefore could not successfully

maintain their due process claim. (Doc. 9 at 9-10). In their responsive brief, the plaintiffs

did not assert that they had filed a notice of appeal but only that their ability to proceed

with an appeal had been hampered by the defendants’ failure to release to them a

transcript of the Board’s proceedings. (Doc. 19 at 3). The defendants in reply noted the

plaintiffs’ failure to deny they had taken no appeal. (Doc. 23 at 5). In an unauthorized

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The motion was granted. (Doc. 27 at 1 n.1).

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sur-reply, the plaintiffs for the first time asserted they had appealed the Board’s decision. 

(Doc. 24 at 1-2). They presented no evidence to support the contention. However, the

defendants subsequently filed a motion to supplement or clarify,1

 in which they confirmed

their discovery of documents filed in Circuit Court, two of which contained the words,

“Notice of Appeal.” (Doc. 25 at 2). One of these documents, attached to the defendants’

motion, is a copy of the complaint filed in this Court, with the phrase “Notice of Appeal”

typed on the right side of the style, the words “Circuit Court” handwritten above the

typewritten word “Complaint,” and the stamp of the Circuit Court clerk indicating the

document was filed on May 22, 2009. (Id., Exhibit A). The defendants also

acknowledged another document styled, “Notice of Appeal Decision from Hearing of

4/28/09.” (Doc. 25 at 2). The defendants nevertheless “in no way concede that a proper

appeal has been filed.” (Id.). 

The plaintiffs responded by filing the instant motion for sanctions. As noted, the

defendants’ own filing confirms that a “notice of appeal has been filed.” The plaintiffs’

exhibits reflect that on May 26, the Board, the city council, and federal defendant Andrew

Cromer received certified mailings from the plaintiffs, which are alleged to include

“complaint/appeal.” (Doc. 26 at 14-20). Other exhibits reflect that the Circuit Court

acknowledged payment of the filing fee on May 29, (id. at 22), set the case for July bench

trial on June 26, (id. at 27), and twice continued that setting. (Id. at 24-25). These

documents consistently refer to the case of Stanford Mendenhall v. Mayor Henrietta

Blackmon, Andrew Cromer, et al., CV 2009-00040. 

The defendants admit that the status of a state court appeal “is a matter of public

record.” (Doc. 32 at 3). Nevertheless, they state they were ignorant of the appeal until,

upon receiving the plaintiffs’ sur-reply, counsel contacted defendant Cromer (himself a

lawyer) and learned of a “stack of documents” filed in Circuit Court and, upon review at

the courthouse, discovered that the stack included the “notice of appeal” documents

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Accord In re: Schaefer Salt Recovery, Inc., 542 F.3d 90, 99 (3rd Cir. 2008);

Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 679 (4th Cir. 2005); In

re: Pratt, 524 F.3d 580, 588 (5th Cir. 2008); Winterrowd v. American General Annuity

Insurance Co., 556 F.3d 815, 826 (9th Cir. 2009); Roth v. Green, 466 F.3d 1179, 1192

(10th Cir. 2006).

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The plaintiffs’ motion is choked with over two dozen allegations that the

defendants and their counsel are “lying” and presenting “blatant falsehoods,” and it

includes allegations of “perjury.” The plaintiffs’ pro se status will not shield them from

the consequences of such irresponsible conduct in this Court. 

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mentioned above. (Doc. 25 at 2; Doc. 32 at 2). What remains unclear is why the federal

defendants — who are also defendants in the state case — did not peruse the “public

record” before representing to the Court that no appeal had been filed. 

Equally puzzling is why counsel did not inquire of the defendants whether an

appeal had been filed or, if counsel did inquire, why the defendants did not mention the

pending state lawsuit. Although the defendants assert (without supporting evidence) that

they have not been “served with the documents which were filed,” (Doc. 25 at 2; Doc. 32

at 2), they were clearly served with something on May 26, and the plaintiffs’ evidence

suggests it was, or included, the state court complaint/appeal. (Doc. 26 at 19-20).

These circumstances are troubling, but the plaintiffs’ motion is procedurally

defective. A party seeking sanctions must first serve his adversary with a motion for

sanctions, and he must not file the motion unless the adversary fails to withdraw or

otherwise correct the offending contention within 21 days of service. Fed. R. Civ. P.

11(c)(2). The defendants assert, and the plaintiffs admit, noncompliance with this

requirement. (Doc. 26 at 3; Doc. 32 at 4). Failure to give the required 21-day notice

“forecloses Rule 11 sanctions.” Macort v. Prem, Inc., 208 Fed. Appx. 781, 786 (11th Cir.

2006).2

 Moreover, the defendants’ motion to supplement or clarify properly corrected the

objectionable representation that no appeal had been filed.

For the reasons set forth above, the motion for sanctions is denied.

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DONE and ORDERED this 27th day of January, 2010.

s/ WILLIAM H. STEELE

UNITED STATES DISTRICT JUDGE

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