Free Response to Motion - District Court of Delaware - Delaware

Case 1 :08-cv—00295-GIVIS Document 32 Filed 08/1 1/2008 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
NlNA SHAHIN :
Plaintiff, :
v. Civil Action No. 08—295—GMS
YOUNG CONAWAY STARGATT
AND TAYLOR, LLP, et al. 1
Defendants.
RESPONSE OF RICHARD H. MORSE TO
PLAINTIFF’S MOTION FOR RULE 11 SANCTIONS
Undersigned counsel objects to the Motion for Sanctions because it is procedurally and
substantively incorrect.
Procedural Deficiencies in Plaintiff’ s Motion
Plaintiff s Rule ll Motion is based, in part, on her contention that undersigned counsel
M violated Rule 3.3 of The Delaware Lawyers Rules of Professional Conduct, which prohibits,
inter alia, false statements of law and failure to disclose controlling authority. But a violation of
the Rules of Professional Conduct cannot be the basis of a judicial sanction at the behest of a
litigant. As the Delaware Supreme Court has observed of the Rules of Professional Conduct:
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"They are not designed to be a basis for civil liability.
Furthermore, the purpose of the Rules can be subverted when they
are invoked by opposing parties as procedural weapons. The fact Q!
that a Rule is a just basis for a lawyer’s self—assessment, or for I
sanctioning a lawyer under the administration of a disczplinary
authority, does not imply that an antagonist in a collateral
proceeding or transaction has standing to seek enforcement ofthe
Rules. " Accordingly, nothing in the Rules should be deemed to
augment any substantive legal duty of lawyers or the extra-
disciplinary consequences of violating such a duty.
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Case 1 :08-cv—00295-GIVIS Document 32 Filed 08/1 1/2008 Page 2 of 4
In re: Appeal oflnfotechnology, Inc., 582 A.2d 215, 218 (Del. 1990), citing The
Delaware Rules of Professional Conduct, Preamble (emphasis added).
The second provision on which plaintiff purports to rely is Fed. R. Civ. P. 11(b)(2),
which makes an attorney’s signature on a pleading a representation that " the claims, defenses,
and other legal contentions are warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing new law." But, as discussed
below, plaintiff s motion does not cite facts showing that undersigned counsel made a false
certification.
Substantive Failure of Plaintiffs Motion
The crux of plaintiff s motion is that she disagrees with the assertion in Young
Conaway’s opening brief that certain statutes on which she relies, 18 US. Code §§ 241, 242, do
not create a private right of action, and the brief s reliance on Lerch v. Boyer, 929 F. Supp. 319
(N .D. Ind. 1996) in support of that position. Disagreement about the relevance of a case,
especially where the movant has failed to present a viable argument for the applicability of that
case, is no basis for a Rule 11 sanction. Rule 11 requires only that a claim or defense be
warranted by existing law or a non-frivolous argument or changing the law.
Plaintiff has failed to show that Young Conaway’s reliance on Lerch is unwarranted. To
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the contrary, Lerch is good law, on point and vitiates one of plaintiffs claims. To dispute Lerch,
and to criticize undersigned counsel, plaintiff advances an argument based on Bivens v. Six
Unknown Named Agents of Federal Bureau 0fNarc0z‘ics, 403 U.S. 3 88 (1971). 1 Vi/hile
plaintiff s argument is confusing, it appears to be that this court must consider Bivens because it
created an implied cause of action for certain constitutional rights violations. Plaintiff s motion

1 It is similar to the Model Rules of Professional Conduct of the American Bar Association,
which this court follows pursuant to Local Rule 83.6. 1
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Case 1 :08-cv—00295-GIVIS Document 32 Filed 08/1 1/2008 Page 3 of 4
for sanctions at 2-3. But, as the briefing submitted to this court on Young Conaway’s Rule
12(b)(6) motion demonstrates, plaintiff did not adequately allege any claim against Young
Conaway for a violation of her constitutional rights. Thus, there was no reason to consider
Bivens. A second reason why undersigned counsel had no reason to consider Bivens was that it
rdeals with claims against federal officers acting under color of federal law, 403 U.S. at 398, and
plaintiff has not alleged that Young Conaway is a federal officer or was acting under color of the
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federal law.
YoUNG CoNAwAY STARGATT & TAYLoR, LLP
Richard H. Morse, (I. D.# 531) 1
The Brandywine Building 1
1000 West Street, 17th Floor ,
P.O. Box 391
Wilmington, Delaware 19899-0391
Telephone: (302) 571 -6651
Facsimile: (302) 576-3 319 _
Email: [email protected]
Attorneys for Defendant
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Dated: August 11, 2008
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Case 1 :08-cv—00295-GIVIS Document 32 Filed 08/1 1/2008 Page 4 of 4
CERTIFICATE OF SERVICE 5
I, Richard H. Morse, hereby certify that on August 11, 2008, I caused to be
electronically filed a true and correct copy of the foregoing document with the Clerk of the Court
using CM/ECF, which will send notification to all counsel of record that such filing is available
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for viewing and downloading.
I further certify that on August 11, 2008, I caused a copy of the foregoing
document to be served by first class mail on the following:
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Ms. Nina Shahin
103 Shinnecock Road
Dover, DE 19904
YOUNG CONAWAY STARGATT & TAYLOR, LLP E
Richard H. Morse (I.D. No. 531)
17th Floor, Brandywine Building
1000 West Street
1¤·.O. Box 391
Wilmington, Delaware 19899-0391
(302) 571-6651
1'I1'lOI`S€[email protected]’l
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