FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 4, 2001

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 00-13904

Non-Argument Calendar

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D. C. Docket No. 97-02024-CV-UUB

JACK MASSENGALE, 

KENNETH MASSENGALE,

Plaintiffs-Appellants,

versus

MICHAEL RAY, 

NEIL KOLNER, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 4, 2001)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
2

The precise issue in this case is apparently one of first impression in any

circuit—whether a pro se litigant may be awarded attorneys’ fees as sanctions

under Federal Rule of Civil Procedure 11.

Jack and Kenneth Massengale (“Massengale”) appeal the district court’s

order imposing sanctions against them, pursuant to Rule 11, in their pro se federal

diversity action for unlawful acquisition of property. Massengale argues that the

district court erred in awarding $25,000 in sanctions to Neil Kolner, a pro se

defendant who also is a lawyer, based on the value of attorneys’ fees Kolner

incurred in defending the suit. Massengale argues that Kolner is not entitled to

fees for his own legal work. Massengale also argues that Rule 11 sanctions were

not appropriate because Kolner failed to provide the district court with evidence

that Massengale’s case or pleadings (1) had no reasonable factual basis, (2) were

based on a legal theory that had no reasonable chance of success, or (3) were filed

in bad faith or for an improper purpose. He also asserts that the prior litigation

cited by Kolner as evidence of Massengale’s history of bad faith was irrelevant to

the instant case. Finally, Massengale argues that Kolner presented no evidence to

support his contention that he spent over 200 hours and incurred $25,000 in fees

defending the case. 

BACKGROUND
3

Jack Massengale, as a trustee for his minor son, Kenneth Massengale, filed a

federal diversity action for unlawful acquisition of property against (1) Michael

Ray, (2) Neil Kolner, (3) the Sheriff of Dade County, Florida, in his official

capacity, (4) the Clerk of the Circuit Court for Dade County, in his official

capacity, and (5) two unnamed defendants. Massengale subsequently filed an

amended complaint against the same parties. Kolner filed a motion to dismiss the

complaint, which the district court denied. Massengale filed a motion to amend his

complaint along with a second-amended complaint. The district court granted

Massengale’s motion to amend, but found that his second-amended complaint

failed to state a cause of action under either Florida or federal law. The district

court stated that it would allow Massengale an opportunity to refile the secondamended complaint to clearly state a cause of action.

Prior to the district court’s granting Massengale’s motion to amend, Kolner

filed a motion for sanctions pursuant to Rule 11. Kolner argued that Massengale

violated Rule 11 because: (1) Massengale’s pleadings had been filed to harass and

cause unnecessary delay; (2) Massengale’s claims lacked evidentiary support and

were unsupported by existing law; and (3) Massengale continued to practice law

despite having been disbarred. Kolner pointed to assertions he made in his motion

to dismiss to support his claim, as well as various district court orders that he
4

claimed showed Massengale’s violations of the rules. The magistrate judge

recommended that the motion be denied, finding that: (1) the case file did not show

that Kolner had complied with Rule 11's safe-harbor provision, which requires the

challenged party be given twenty-one days to withdraw or correct the challenged

paper or claim; and (2) the district court had denied Kolner’s motion to dismiss

(upon which he had relied to support his motion for sanctions). The district court

reversed the magistrate judge’s report and recommendation and remanded for

consideration of the sanctions issue, finding Kolner had satisfied Rule 11's safeharbor requirement and that the magistrate judge had failed to consider all of the

documents Kolner relied upon in support of his motion.

Massengale refiled his second-amended complaint after the district court

denied Kolner’s first motion to dismiss. Kolner moved to dismiss the secondamended complaint, alleging that the complaint: (1) failed to allege sufficient facts

to support diversity jurisdiction; (2) failed to state a claim upon which relief could

be granted because it did not cite to any relevant Florida or federal law; (3) failed

to join an indispensable party as a plaintiff; and (4) asserted claims against

dismissed defendants. The court granted Kolner’s motion to dismiss, finding that

Massengale improperly alleged claims against dismissed defendants and that he

failed to comply with the court’s prior order to clearly state a cause of action under
1

We affirmed this decision in Massengale v. Ray, 11th Cir. 2000, 210 F.3d 393, (No. 99-

4313, Feb. 15, 2000) (unpublished table decision).

5

Florida or federal law. The court gave Massengale fifteen days to file an amended

complaint in accordance with its instructions.

Massengale filed an amended complaint, and Kolner then filed a motion to

dismiss the amended complaint or, in the alternative, for summary judgment. 

Kolner argued that the complaint still failed to state a cause of action under Florida

or federal law, and contended that the complaint should be dismissed with

prejudice due to Massengale’s repeated failure to comply with court orders and

rules. Prior to Kolner’s motion, the court had—on two occasions—ordered

Massengale to file a written response explaining why a document submitted with

one of his motions contained different information than the original copy of that

document in the court file. Massengale failed to respond to either court order.

After considering its own orders to show cause and Kolner’s motion to

dismiss, the district court dismissed Massengale’s action with prejudice.1

 Kolner

then filed a motion to reinstate his Rule 11 motion for sanctions, asserting it had

remained pending after the district court’s reversal of the magistrate judge’s report. 

The magistrate judge recommended that Kolner’s motion be denied, as the district

court had already imposed a severe sanction by dismissing Massengale’s complaint
6

with prejudice. The district court reversed the magistrate judge’s decision and

reinstated Kolner’s motion. The district court found that Massengale’s complaint

had been dismissed due to his failure to follow court orders and possible alteration

of exhibits. Because Kolner’s motion for Rule 11 sanctions was based on conduct

that occurred prior to the dismissal of the complaint, the district court reasoned that

the motion warranted review.

Following a hearing, the magistrate judge recommended that Kolner’s

motion for sanctions be granted. The magistrate judge found that Massengale

failed to present evidence demonstrating that he filed his amended complaint in

good faith and that the case had factual and legal support. The magistrate judge

concluded that Rule 11's deterrence goal could be met by imposing a sanction that

would compensate Kolner for the value of attorney’s fees incurred as a result of

Massengale’s conduct. Based on Kolner’s testimony at the hearing, the magistrate

judge determined that $25,000 represented reasonable attorney’s fees for the time

Kolner spent on the case, and that it was the minimum amount that adequately

would deter Massengale from future lawsuits.

The district court adopted the magistrate judge’s report and recommendation

and granted Kolner’s motion for Rule 11 sanctions. This appeal followed.

DISCUSSION
7

We review a district court’s award of Rule 11 sanctions for abuse of

discretion. Baker v. Alderman, 158 F.3d 516, 521 (11th Cir. 1998). Rule 11

sanctions are properly assessed “(1) when a party files a pleading that has no

reasonable factual basis; (2) when the party files a pleading that is based on a legal

theory that has no reasonable chance of success and that cannot be advanced as a

reasonable argument to change existing law; or (3) when the party files a pleading

in bad faith for an improper purpose.” Worldwide Primates, Inc. v. McGreal, 87

F.3d 1252, 1254 (11th Cir. 1996). “[T]he selection of the type of sanction to be

imposed lies within the district court’s sound exercise of discretion.” Donaldson v.

Clark, 819 F.2d 1551, 1557 (11th Cir. 1987) (en banc). If warranted for effective

deterrence, an appropriate sanction may include “an order directing payment to the

movant of some or all of the reasonable attorneys’ fees and other expenses”

incurred as a result of the Rule 11 violation. Fed. R. Civ. P. 11(c)(2). The goal of

Rule 11 sanctions is to “reduce frivolous claims, defenses, or motions, and to deter

costly meritless maneuvers.” Donaldson, 819 F.2d at 1556 (internal quotation

marks and citation omitted). 

Massengale argues that the district court erred in awarding attorney’s fees to

Kolner pursuant to Rule 11 because Kolner represented himself in the case. 

Massengale contends that under Ray v. U.S. Dep’t of Justice, 87 F.3d 1250 (11th
8

Cir. 1996), Kolner is not entitled to fees for his own legal work. Massengale also

argues that the district court was without a proper legal basis for imposing

sanctions pursuant to Rule 11. We consider first whether Rule 11 allows for an

award of attorney’s fees to a pro se litigant.

In Ray, we considered whether a district court could award attorney’s fees to

a pro se litigant who was also a lawyer under the fee shifting provision of the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E). The panel relied 

on Kay v. Ehler, 499 U.S. 432 (1991), in which the Supreme Court decided that a

pro se litigant could not be awarded attorneys’ fees under 42 U.S.C. § 1988. The

Court decided that the “overriding statutory concern” of section 1988 was to

encourage the retention of independent counsel by victims of civil rights

violations, and awarding fees to pro se litigants would discourage plaintiffs from

retaining independent counsel. Kay, 499 U.S. at 437. In Ray, we noted that the

fee shifting provisions of the FOIA and section 1988 were “substantially similar.” 

Ray, 87 F.3d at 1251. Thus, we concluded that the statutes should be interpreted

similarly, and that awarding attorney’s fees to pro se litigants under the fee shifting

provision of the FOIA would frustrate the policy of encouraging litigants to retain

independent counsel. See id. at 1251–52.
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The policy underlying Rule 11 is not to encourage litigants to retain

independent counsel; rather, “Rule 11 sanctions are designed to discourage dilatory

or abusive tactics and help to streamline the litigation process by lessening

frivolous claims or defenses.” Donaldson, 819 F.2d at 1556 (internal quotation

marks and citation omitted). Also, “sanctions may be imposed for the purpose of

deterrence, compensation and punishment.” Aetna Ins. Co. v. Meeker, 953 F.2d

1328, 1334 (11th Cir. 1992). “The type and amount of sanction imposed calls for

the proper exercise of a district court’s discretion.” Id. (citing Donaldson, 819

F.2d at 1557). It appears that the district court properly concluded that Massengale

violated Rule 11, and that the court could, in its discretion, impose sanctions

against Massengale. Whether the district court properly exercised its discretion in

this case is another matter. 

While it is true that the purpose behind Rule 11 sanctions is deterrence and

punishment, and not to encourage litigants to retain independent counsel, we

cannot conclude that Rule 11 allows for an award of attorneys’ fees to a pro se

litigant as a sanction. When a district court determines that an “attorney or

unrepresented party” has violated Rule 11(b), it “may . . . impose an appropriate

sanction upon the . . . part[y] that . . . violated subsection (b) . . . .” Fed. R. Civ. P.

11 (b), (c). The sanction imposed may include “an order directing payment to the
2

Kolner specifically sought attorney’s fees as the sanction, as though he had been

represented by counsel, instead of seeking to recover sanctions measured by lost income

resulting from time away from his practice. Therefore we have no occasion to decide whether a

pro se litigant, either a lawyer or a nonlawyer, could properly seek and be awarded a Rule 11

sanction measured by the loss of income that litigant suffered as a result of having to take time

off work to respond to the sanctionable conduct. We reserve that question for future decision.

10

movant of some or all of the reasonable attorneys’ fees and other expenses incurred

as a direct result of the violation.” Fed. R. Civ. P. 11(c)(2). Because a party

proceeding pro se cannot have incurred attorney’s fees as an expense, a district

court cannot order a violating party to pay a pro se litigant a reasonable attorney’s

fee as part of a sanction. In Ray, we observed that: 

[T]he word “attorney” generally assumes some kind of agency (that is,

attorney/client) relationship. The fees a lawyer might charge himself

are not, strictly speaking, “attorney’s fees.” And, where a lawyer

represents himself, legal fees are not truly a “cost” of litigation--no

independent lawyer has been hired (or must be paid) to pursue the . . .

complaint. 

Ray, 87 F.3d at 1251 n.2 (citations omitted). Because Kolner did not incur legal

fees as a cost or expense in representing himself, the district court erred in

awarding $25,000 in attorney’s fees to Kolner as a sanction upon Massengale. 2

The award violated the plain language of Rule 11, and the district court abused its

discretion in imposing it. 

CONCLUSION 
11

We agree with the district court’s conclusion that Massengale violated Rule

11. Because Massengale is a person who signed papers filed with the court, the

district court can impose, within its sound discretion, appropriate sanctions that

would serve Rule 11's deterrent purpose. The district court cannot, however,

impose sanctions including the award of attorney’s fees to a pro se litigant. We

therefore VACATE the order imposing sanctions and REMAND to the district

court for further proceedings consistent with this opinion.