Whitehead v. K Mart Corp., CIV.A. 3:95CV827WS.
| Decision Date | 30 March 1999 |
| Docket Number | No. CIV.A. 3:95CV827WS.,CIV.A. 3:95CV827WS. |
| Citation | 202 F.Supp.2d 525 |
| Parties | Bennie WHITEHEAD, Susan Whitehead, Individually and as Mother and Adult Next Friend of Amy Whitehead, a Minor Plaintiffs v. K MART CORPORATION Defendant |
| Court | U.S. District Court — Southern District of Mississippi |
Ross Robert Barnett, Jr., J. Tayloe Simmons, Jr., Barnett Law Firm, Jackson, Ms, Ross F. Bass, Jr., Phelps Dunbar, Jackson, MS, Paul S. Minor, Stephen B. Simpson, Minor and Associates, Biloxi, MS, for Bennie Whitehead, Susan Whitehead, Individually and as Mother and adult next friend of Amy Whitehead, a minor, plaintiffs.
Henry Gray Laird, III, James D. Holland, Page, Kruger & Holland, P.A., Jackson, MS, Don Keller Haycraft, Khristina Deluna Miller, Liskow & Lewis, New Orleans, LA, for K Mart Corporation, John Does, defendants.
ORDER GRANTING SANCTIONS
Before the court is the defendant's motion asking this court to impose sanctions upon plaintiffs' attorney, Paul S. Minor. Defendant's motion is predicated upon Rule 111 of the Federal Rules of Civil Procedure and upon Title 28 U.S.C. § 1927.2 This court has reviewed the briefs, heard the argument of counsel and, notwithstanding Minor's objection, finds that defendant's motion has merit and that this court should impose appropriate sanctions upon the plaintiffs' attorney.
On May 27, 1997, this court entered a judgment in the amount of approximately 3.4 million dollars in the above-styled and numbered cause in favor of the plaintiffs after a jury verdict determining that the defendant was liable to the plaintiffs. Plaintiffs had charged, and the jury had agreed, that defendant K-Mart Corporation had negligently failed to provide safe premises for plaintiffs who had been kidnapped from defendant's parking lot, unattended by security, and later sexually assaulted.
After entry of judgment, the defendant timely moved for a new trial3 or for remittitur on June 9, 1997. The defendant also asked for stay of execution of judgment under Rule 62(b)4 of the Federal Rules of Civil Procedure pending disposition of its motion for new trial or to alter or amend the judgment which was made pursuant to Rule 59. This court entered Orders denying defendant's request for a new trial; denying the motion for remittitur; and denying the Rule 62(b) motion for stay on August 18, 1997. This court's denial of the defendant's motion for stay under Rule 62(b) may have been superfluous since the request for a new trial and the motion for a remittitur were denied at the same time.5 This court's Orders, however, did not address, nor was the court asked to address, the provisions of Rule 62(f) of the Federal Rules of Civil Procedure which provides in pertinent part that "[i]n any state in which a judgment is a lien upon the property of the judgment debtor and in which the judgment debtor is entitled to a stay of execution, a judgment debtor is entitled, in the district court therein, to such stay as would be accorded the judgment debtor had the action been maintained in the courts of that state."
Three days after this court's Orders denying new trial, remittitur and stay, the plaintiffs obtained a writ of execution on this court's judgment from the Clerk of the Court. Plaintiffs' attorney then went to a K-Mart Corporation facility in Jackson, Mississippi, and attempted to execute this court's judgment by seizing the proceeds of that store's cash registers and safe. According to the defendant, plaintiffs' attorney engaged in press manipulation, accusing K-Mart of irresponsibility and failure to pay its just debts while charging that the judgment amount obtained in this court was past due because of K-Mart's refusal to pay. Because of the actions of the plaintiffs' attorney, the story the plaintiffs' attorney sought to communicate to the media, that of K-Mart failing to pay a just and past-due judgment obtained in federal court, was widely circulated. Furthermore, says defendant, the plaintiffs' attorney claimed to be acting with the authority of this court when he attempted to execute the judgment.
Upon being made aware of the course of action taken by the plaintiffs' attorney in his attempt to execute this court's judgment, this court directed the plaintiffs' attorney through the United States Marshal's office to cease and desist pending a telephone conference with the court. At this conference, the defendant was directed to submit to the court and to the plaintiffs' attorney a proper supersedeas bond so that all matters in this case might be stayed pending appeal. Defendant's counsel reserved the right to submit a motion for sanctions. The bond for the amount of 125% of the judgment was submitted to and approved by the court and by the plaintiffs' attorney. Then, on August 26, 1997, after having reserved the right to do so, the defendant filed this motion for sanctions.
Defendant argues that, in view of Rule 62(f) of the Federal Rules of Civil Procedure and Rule 62(a) of the Mississippi Rules of Civil Procedure, plaintiffs' execution of judgment was premature since it was unsupported by the applicable since law; wholly unauthorized; and pursued vexatiously to unnecessarily multiply litigation, as well as to embarrass and humiliate the defendant. Defendant claims that its good will and business reputation were maligned by the misrepresentations of plaintiffs' attorney concerning the judgment in this case. In pursuing his ostentatious play to the news media, says defendant, the plaintiffs' attorney ignored the rules applicable in the State of Mississippi pertaining to stays of execution of judgments obtained in the United States District Courts of Mississippi when he conducted a premature execution of the judgment only three days after this court's orders denying new trial on August 18, 1997.
Had this case been brought in the appropriate Mississippi court, says defendant, the defendant, as a judgment debtor against whose property the judgment operated as a lien,6 would have been entitled to an automatic stay of ten days after this court's disposition of the motion for new trial pursuant to Rule 62(a) of the Mississippi Rules of Civil Procedure. Rule 62(a) of the Mississippi Rules of Civil Procedure provides in pertinent part that "no execution shall be issued upon a judgment ... until the expiration of ten days after its entry or the disposition of a motion for a new trial, whichever last occurs." (emphasis added). In the instant case, judgment was entered on May 27, 1997. However, the defendant timely moved on June 9, 1997, for a new trial, for remittitur, and for stay. The defendant's motions were denied on August 18, 1997. According to Rule 62(f) of the Federal Rules of Civil Procedure, argues defendant, the defendant was entitled to whatever stay would have been accorded under state law. Mississippi's Rule 62(a) provides that no execution could be issued on the plaintiffs' judgment until ten (10) days after this court had ruled on the defendant's motion for new trial. Thus, says defendant, it was entitled to rely on the provisions of the Mississippi rule.
While reserving its right to sue plaintiffs' attorney for defamation and abuse of process, the defendant asks this court to impose monetary sanctions equal to the attorney fees incurred by the defendant in the process of opposing the plaintiffs' execution of judgment; to award damages incurred by the defendant due to the actions of plaintiffs' attorney; and to require plaintiffs' attorney Paul S. Minor to cause to be published in the Clarion Ledger, a newspaper of general circulation, a printed apology to this court, and to the employees and customers of K-Mart for the actions taken on August 21, 1997. The defendant asks that Paul S. Minor be required to distribute this apology to other news media with the same vigor as was exercised on August 21, 1997. The defendant wants said apology to state that Paul S. Minor appeared at K-Mart to execute judgment with the assistance of United States Marshals, but without proper legal basis for doing so. Defendant also asks that the publication of the apology in the Clarion Ledger occupy at least the same amount of space as did the news reports generated by Minor's actions. Finally, the defendant asks this court to assess monetary damages, if any, incurred by the Clerk of this court and the United States Marshals as the result of Paul S. Minor's use and/or abuse of their services.
The plaintiffs' attorney responds that the 10-day stay under Rule 62(a) of the Federal Rules of Civil Procedure had expired in the instant case because the defendant never specifically moved for a stay pursuant to Rule 62(f). Thus, says plaintiffs' attorney, the defendant no longer was entitled to a stay of execution after August 18, 1997. The plaintiffs' attorney relies on the case of Van Huss v. Landsberg, 262 F.Supp. 867, 869 (W.D.Mo.1967), and other cases, for the proposition that the defendant should have filed a motion for a stay under Rule 62(f) after judgment was entered in order to have benefit of that form of stay of execution. Failure to have done so prior to this court's August 18, 1997, denial of the defendant's motion for new trial, says plaintiffs' attorney, now precludes defendant's reliance upon Rule 62(f).
This court has reviewed closely the Van Huss decision and is unpersuaded that this case stands for the proposition that one must file a motion for stay under Rule 62(f) prior to being entitled to the benefit of the stay under state law. In Van Huss v. Landsberg, Judge Collinson there stated that he ...
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Whitehead v. Food Max of Mississippi, Inc.
...to a stay under Federal Rule 62(f); and Kmart was protected by the stay against the attempted execution. Whitehead v. Kmart Corp., 202 F.Supp.2d 525, 529-32 (S.D.Miss.1999). Concomitantly, the court concluded that Minor had "failed to make a reasonable inquiry into the law governing executi......
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Whitehead v. Food Max of Mississippi, Inc.
...the court concluded that Minor had "failed to make a reasonable inquiry into the law governing execution of judgments. . . ." Id. at 532. The court also ruled Minor "was seeking to embarrass [Kmart] and call attention to himself as a tireless laborer of the bar attempting to obtain justice ......
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Payne v. Univ. of S. Miss.
...would be met, and Plaintiff would be entitled to the same stay of execution available in state court. See Whitehead v. K Mart Corp., 202 F. Supp. 2d 525, 531 (S.D. Miss. 1999) (MISS. CODE ANN. § 11-7-191 treats judgments as liens or encumbrances on property). However, as noted above, judgme......