Motion for Sanctions, Fattah v. IRS, FBI, DOJ

8/12/2019 Motion for Sanctions, Fattah v. IRS, FBI, DOJ

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

CHAKA FATTAH, JR., : CIVIL ACTION

Plaintiff :

:

v. : No. 14-1092-TJS

:

UNITED STATES OF AMERICA, et al., :

Defendants

PLAINTIFFS MOTION FOR SANCTIONS PURSUANT TO FED. R. CIV. P. 11

COME NOW Plaintiff Chaka Fattah, Jr., hereby moves this Court for entry of an

Order of sanctions against Defendants United States of America and Internal Revenue

Service or their Counsel, pursuant to Fed. R. Civ. P. 11(b) and in support thereof, state as

follows:

This Motion for Sanctions is specifically regarding Defendants Motion for Summary

Judgment (Doc. 14 & 14-1, IV.) and Defendants Reply Brief (Doc. 16, D.).

1. Rule 11(b)

Rule 11(b) states that By presenting to the court a pleading, written motion, or other

paperwhether by signing, filing, submitting, or later advocating itan attorney or

unrepresented party certifies that to the best of the persons knowledge, information, and

belief, formed after an inquiry reasonable under the circumstances: (1) it is not being

presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly

increase the cost of litigation; and further (2) the claims, defenses, and other legalcontentions are warranted by existing law or by a nonfrivolous argument for extending,

modifying, or reversing existing law or for establishing new law;(3) the factual contentions

have evidentiary support or, if specifically so identified, will likely have evidentiary support

after a reasonable opportunity for further investigation or discovery; and (4) the denials of


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factual contentions are warranted on the evidence or, if specifically so identified, are

reasonably based on belief or a lack of information.

2. How Rule 11(b) relates to Defendants Brief for Summary Judgment (Doc. 14-1, IV.)

Rule 11(b)(3) requires that the factual contentions have evidentiary support asshown above. Defendants Reply Brief (Doc.16, page 9) states Plaintiff is incorrect that the

Secretary took such action. There is no evidentiary support in the record to support that

factual contention. That is a violation of Rule 11(b)(3). Defendants did not identify the

likelihood of evidentiary support under Rule 11(3)(b) if specifically so identified, will

likely have evidentiary support after a reasonable opportunity for further investigation or

discovery. The Declaration of Dennis L. Bohn submitted by Defendants does not address

whether or not a decision was made related to the civil penalties.The statement Plaintiff is incorrect that the Secretary took such action. (Id.) is also a

violation of Rule 11(b)(4), since it is a denial of Plaintiff factual contention that the IRS

has already made a decision, as it did in this case(Doc. 15-1, page 39) and that any

contention that the IRS did not make a decision as it relates to the refund of these 5 penalties

is simply false (Doc. 15-1, page 39). Defendants did not identify that the denial was

reasonable based on either belief or lack of information under Rule 11(b)(4), specifically so

identified based on belief or a lack of information. That is a violation of Rule 11(b)(4).

Rule 11(b)(1) states that a signed pleading or motion submitted to the Court that an

attorney certifies that the document is not being presented for any improper purpose, such

as to harass, cause unnecessary delay, or needlessly increase the cost of litigation. Plaintiff

submits that the purpose of the motion for summary judgment was to unnecessarily delay this

litigation. Specifically, Plaintiff had to spend time preparing by researching case law, and

otherwise doing research to respond to Defendants claims regarding the statute of limitations

which delayed filing the responses (Doc. 15, 15-1, 17), and ultimately may have delayed the

Courts decision in this matter.

Since the factual contention that the IRS did not make a decision as it relates to

refunding the civil penalties assessed to Plaintiff did not have evidentiary support in violation

of Rule 11(b)(3) and 11(b)(4), the defense was not warranted by existing law or by a


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nonfriviolous argument in violation of Rule 11(b)(2). The statute of limitations defense

was not a legitimate defense because it has no evidence to support it. The Defendants

submitted no declaration, no letter from the IRS, just merely the representations of Defense

counsel. They would have this Court believe that a request to refund penalties was submittedin November 2013, and simply vanished into thin air.

3. Appropriate Sanctions

In addition or in the alternative to the commonly claimed sanction of awarding

fees and expenses to the movant, Rule 11 allows other sanctions. Subsection (c)(2) provides

that the sanction may consist of, or include, directives of a non monetary nature. The

Advisory Committee (Notes) to the 1993 amendments to Rule 11 state: The court has

available a variety of possible sanctions to impose for violations, such as striking theoffending paper; issuing an admonition, reprimand, or censure; requiring participation in

seminars or other educational programs; ordering a fine payable to the court; referring the

matter to disciplinary authorities.

The Notes further identify factors to consider in determining what sanctions, if any,

should be imposed under Rule 11. Whether the improper conduct was willful, or negligent;

whether it was part of a pattern of activity, or an isolated event; whether it infected the entire

pleading, or only one particular count or defense; whether the person has engaged in similar

conduct in other litigation; whether it was intended to injure; what effect it had on the

litigation process in time or expense whether the responsible person is trained in the law;

what amount, given the financial resources of the responsible person, is needed to deter that

person from repetition in the same case; what amount is needed to deter similar activity by

other litigants

InBullard v. Chrysler Corp., 925 F. Supp 1180, 1191 (E.D. Tex. 1996), the court

examined such factors and imposed sanctions upon an attorney for making a baseless factual

allegation, including assessing a fine of $2,500 against the attorney, publicly reprimanding

him, ordering him to complete ten hours of continuing legal education in ethics, and referring

the matter to the state bar disciplinary authorities for further investigation. See alsoJennings

v. Joshua Indep. Sch. Dist., 948 F.2d 194, 199 (5th Cir. 1991)(Private of public reprimands


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or fixed compensatory or punitive fines may be less severe [than shifting of attorney fees]

and equally or more effective).

A number of the factors cited by the Advisory Committee count against Defendants

here. First, it was intended to injure by arguing that there should be summary judgmentbecause the court does not have jurisdiction. Second, Plaintiff believes the conduct was

willful because after the issue was raised in Plaintiffs response (Doc. 15-1), the Defendants

continued to argue about the statute of limitations in their reply (Doc. 16).

Plaintiff asks the Court to examine such factors, identified in the Advisory Committee

Notes, in the present matter. Plaintiff suggests a fine, payable to the Court, of $1,000 per

violation of Rule 11. Plaintiff alleges four (4) violations of Rule 11 in this filing.

4. CONCLUSION

For the foregoing reasons, Plaintiff Chaka Fattah, Jr. requests that this Court enter an

Order of sanctions against Defendants United States of America and Internal Revenue

Service or their Counsel (1) specifically finding that Defense counsel filed two documents

with this Court containing factual contentions in violations of Rule 11 and a legal claim in

violation of Rule 11, (2) requiring Defense counsel to submit a copy of such finding to the

Plaintiff and (3) for such other and further relief that this court deems just and proper.

Respectfully submitted,

_________________________

CHAKA FATTAH, JR., Pro Se

5783 Nassau Road

Philadelphia, PA 19131

Phone: 215-301-8125

Email: [email protected]
mailto:[email protected]?subject=

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Motion for Sanctions, Fattah v. IRS, FBI, DOJ