     Case: 11-60164         Document: 00511754287               Page: 1       Date Filed: 02/10/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                                           FILED
                                                                                       February 10, 2012
                                              No. 11-60164
                                                                                         Lyle W. Cayce
                                                                                              Clerk
MONIQUE DOSS; NADIA HARRIS,

                                                            Plaintiffs – Appellants,

v.

NPC INTERNATIONAL, INCORPORATED; A & D MANAGEMENT
COMPANY, L.L.C.; SHANE BROWN,

                                                            Defendants – Appellees.

----------------------------------------------------------------------------------------------------------------

MONIQUE DOSS; NADIA HARRIS; SHAVONDA GIBBS; ROCHELLE
CHILDS; DARREN CHILDS; LADARIUS JOHNSON; TAMARA GREEN;
DARIUS WEST; ROGER HAWKINS; TAKEERA JOHNSON; LEVAN HARRIS;
JOSEPH DOSS; TYNEETA DOSS; BRENDA CHILDS; JUSTIN CHILDS, A
Minor by and through Brenda Childs as next friend and Natural Guardian,

                                                            Plaintiffs – Appellants,

v.

NPC INTERNATIONAL, INCORPORATED, doing business as Pizza Hut,

                                                            Defendant – Appellee.

----------------------------------------------------------------------------------------------------------------

KIMEYATTER POINTER, a Minor by and through Nancy Pointer as next of kin
and Natural Guardian,

                                                            Plaintiff – Appellant,
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                                              No. 11-60164

v.

NPC INTERNATIONAL, INCORPORATED, doing business as Pizza Hut,

                                                            Defendant – Appellee.

----------------------------------------------------------------------------------------------------------------

MONIQUE DOSS; NADIA HARRIS; SHAVONDA GIBBS; ROCHELLE
CHILDS; DARREN CHILDS; LADARIUS JOHNSON; TAMARA GREEN;
DARIUS WEST; ROGER HAWKINS; TAKEERA JOHNSON; LEVAN HARRIS;
JOSEPH DOSS; TYNEETA DOSS; JUSTIN CHILDS, A Minor by and through
Brenda Childs as next friend and Natural Guardian; NANCY POINTER;
MISHAY HAMPTOM; TARMEISHA HAMPTON,

                                                            Plaintiffs – Appellants,

v.

NPC INTERNATIONAL, INCORPORATED, doing business as Pizza Hut,

                                                            Defendant – Appellee.

----------------------------------------------------------------------------------------------------------------

MONIQUE DOSS; NADIA HARRIS; SHAVONDA GIBBS; ROCHELLE
CHILDS; DARREN CHILDS; LADARIUS JOHNSON; TAMARA GREEN;
DARIUS WEST; ROGER HAWKINS; TAKEERA JOHNSON; LEVAN HARRIS;
JOSEPH DOSS; TYNEETA DOSS; JUSTIN CHILDS, A Minor by and through
Brenda Childs as next friend and Natural Guardian; NANCY POINTER;
MISHAY HAMPTOM; TARMEISHA HAMPTON; KIMEYATTER POINTER, a
Minor by and through Nancy Pointer as next of kin and Natural Guardian,

                                                            Plaintiffs – Appellants,

v.

NPC INTERNATIONAL, INCORPORATED, doing business as Pizza Hut,

                                                            Defendant – Appellee.




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   Case: 11-60164       Document: 00511754287         Page: 3     Date Filed: 02/10/2012

                                       No. 11-60164


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                       USDC No. 4:09-cv-00038-MPM-DAS



Before DEMOSS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       In this consolidated action, the plaintiffs-appellants appeal the district
court’s summary judgment in favor of defendant-appellee NPC International,
Inc. The appellants’ counsel also appeals the district court’s affirmance of the
magistrate judge’s order sanctioning the appellants’ counsel for unnecessarily
filing multiple lawsuits on behalf of the same plaintiffs. For the following
reasons, we AFFIRM the district court’s grant of summary judgment and
REVERSE and REMAND the district court’s affirmance of the magistrate
judge’s sanction order.
                                              I.
       On January 18, 2009, the plaintiffs-appellants, who were all members of
the St. Paul Missionary Church in Itta Bena, Mississippi, participated in a
“Daniel’s Fast,” in which they refrained from eating any food between 12:00 a.m.
and (approximately) 3:00 p.m. on January 18, 2009. After completing the
Daniel’s Fast, the appellants ate a mid-afternoon meal at defendant-appellee
NPC International, Inc.’s (NPC) Pizza Hut restaurant in Greenwood,
Mississippi. This meal included servings of chicken wings and Meat Lovers
pizza. Within thirty to sixty minutes after the commencement of the meal, some
of the appellants allegedly began to experience one or more of the following
symptoms: vomiting, nausea, cramps, diarrhea, asthma attack, and headache.
The appellants, including some who were not actually experiencing symptoms

       *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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but wanted to be “checked out,” then sought treatment at the Greenwood Leflore
Hospital (GLH).1        Within twenty-four hours, however, nearly all of the
appellants who actually experienced symptoms had recovered and only one
appellant, Monique Doss, later returned to GLH for additional treatment.
       After the incident, the Mississippi State Department of Health (MSDH)
began investigating whether Pizza Hut caused the various symptoms allegedly
suffered by the appellants. The MSDH tested stool samples, samples of leftover
food “that were boxed for takeaway by church members and returned to the
restaurant after the onset of illness, [and] chicken wings reported as
undercooked by the church group and returned from the table.” The MSDH also
noted a “non-critical” violation2 involving raw chicken: “The temperature of raw
chicken located adjacent to the deep fryer was measured at 93 [degrees
Fahrenheit] which exeed[ed] the maximum cold holding temperature [of 41
degrees Fahrenheit].” The raw chicken was held at that temperature for an
unknown length of time.
       At the conclusion of its investigation, the MSDH made the following
noteworthy conclusions:
       Clinical laboratory results were not particularly useful, as
       specimens were collected after resolution of illness. Eight stool
       specimens were collected from church group members who ate at
       the restaurant; five from individuals who were ill and three from
       non-ill persons. Neither the S. aureus specimen typing nor
       exterotoxin testing were consistent from one specimen to the other,
       indicating unrelated organisms that were not from a single source.
       Results also indicated the presence of B. cereus in 2 non-ill persons.
       These bacteria can be found in up to 43% of well persons.



       1
        The specific complaints and diagnoses of each appellant are set forth in the chart that
is appended to this opinion.
       2
         The MSDH noted other violations when they returned to the restaurant on January
19th and 20th. The appellants have not established a nexus between these subsequent
violations and their food poisoning allegations; therefore, we need not further discuss these
subsequent violations in this opinion.

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      Inspection of the restaurant was notable in that chicken wings
      [were] held at inappropriate temperatures for an unknown length
      of time. Food specimens that were evaluated in the PHL and FDA
      were negative for S. aureus, Staphlococcal enterotoxins and volatile
      or semi-volatile chemicals.

      The results of this investigation do not clearly explain the illnesses
      among the persons who ate at Pizza Hut on the afternoon of
      January 18, 2009. If there was a toxin in the food prepared that
      afternoon, one would expect a higher attack rate among those who
      ate at or from Pizza Hut but were not associated with the church
      group. The only illnesses outside the church group were among one
      household, and their illness was very mild. Environmental
      investigation revealed raw chicken kept at inappropriate
      temperatures, however the length of time the chicken was kept at
      this temperature is not known, and the bacteria that produce toxins
      that can sometimes cause gastrointestinal illness with a short
      incubation period (S. aureus and B. cereus) are not the typical
      bacteria found in raw chicken. Raw chicken can certainly contain
      pathogenic bacteria, usually bacteria with fairly long incubation
      periods (12-36 hours), inconsistent with the incubation period in this
      outbreak. The evidence regarding this incident does not provide an
      answer to the cause of the illness among the persons involved.
      After the MSDH investigation, the appellants’ counsel initiated a total of
five negligence lawsuits against NPC based upon the Pizza Hut incident. First,
appellants Monique Doss and Nadia Harris filed a negligence action (the “first
action”) against NPC, A & D Management Company, LLC, and Shane Brown in
the Leflore County Circuit Court. See Doss v. NPC Int’l, Inc., 2010 WL 3021533,
at *1 (N.D. Miss. July 29, 2010).      Arguing that A & D and Brown were
improperly joined, NPC removed the first action to federal court. Id. The
appellants responded by filing a motion to remand the case to state court. Id.
      While the appellants’ motion to remand was pending, the appellants’
counsel filed a second negligence action against NPC in Leflore County Circuit
Court on behalf of Doss, Harris, and the following new plaintiffs: Shavonda
Gibbs, Rochelle Childs, Darren Childs, Ladarius Johnson, Tamara Green, Darius
West, Roger Hawkins, Takeera Johnson, Levan Harris, Joseph Doss, Tyneeta

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                                  No. 11-60164

Doss, Brenda Childs, and Justin Childs. Id. The second action’s complaint
stated that each individual plaintiff sought no more than $75,000.00 in actual
damages. Id. NPC nevertheless removed the second action to federal court
based upon the complaint’s request for punitive damages. Id.
      Next, the appellants’ counsel filed a third negligence action against NPC
in the County Court of Leflore County on behalf of Kimeyatter Pointer. Id. The
complaint sought a recovery below $75,000.00 and did not request punitive
damages. Id. However, Pointer’s subsequent deposition testimony revealed her
belief that her claim was worth more than $75,000.00, prompting NPC to remove
the third action to federal court. Id.
      The appellants’ counsel then filed a fourth negligence action against NPC
in Leflore County primarily on behalf of individuals named in the second action,
including, Monique Doss, Nadia Harris, Shavonda Gibbs, Rochelle Childs,
Darren Childs, Ladarius Johnson, Tamara Green, Darius West, Roger Hawkins,
Takeera Johnson, Levan Harris, Joseph Doss, Tyneeta Doss, and Justin Childs.
Id. The fourth action also named three new plaintiffs: Nancy Pointer, Mishay
Hampton, and Tarmeisha Hampton. Id. As in the third action, deposition
testimony revealed that some plaintiffs valued their cases at over $75,000.00,
which prompted NPC to remove the fourth action to federal court. Id.
      Finally, appellants’ counsel filed a fifth negligence action against NPC in
Leflore County Circuit Court on behalf of all the previously named plaintiffs. Id.
NPC removed this fifth action to federal court. Id.
      After finding that federal jurisdiction existed in the five actions, the
district court consolidated the cases into one proceeding. Id. The district court
also dismissed A & D and Brown from the case due to their lack of involvement
in the underlying incident. Id.
      The magistrate judge then imposed sua sponte sanctions against the
appellants’ attorneys for filing the five lawsuits because the lawsuits “needlessly
increase[d] the cost of litigation” in contravention of Federal Rule of Civil

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Procedure 11(b)(1). Id. at *2. The magistrate ordered the appellants’ counsel to
pay NPC’s attorney’s fees and appellants’ counsel appealed the sanctions order
to the district court. Id. The district court affirmed the magistrate’s imposition
of sanctions but reversed the specific award of attorney’s fees, finding that Rule
11 does not authorize a court to grant attorney’s fees as part of a sua sponte
sanction. Id. at *4-5.
      Moreover, in response to the appellants’ counsel’s claim that the
magistrate judge lacked authority to sanction them for state court filings, the
district court stated, in the alternative, that “Mississippi state courts impose the
same duties as those imposed by federal courts under Mississippi’s substantially
similar Rule 11.” Id. at *4 (citing Miss. R. Civ. P. 11). The district court then
explained that it had the authority to apply Mississippi’s Rule 11 against the
appellants’ attorneys. Id.
      On remand, the magistrate judge ordered the appellants’ attorneys to pay
monetary sanctions in the amount of $5,000.00 to the court by October 4, 2010.
Doss v. NPC Int’l, Inc., 2010 WL 3950578, at *2 (N.D. Miss. Oct. 7, 2010). Once
again, the appellants’ attorneys appealed the magistrate’s decision to the
district court. Id. The attorneys argued that “the court-ordered amount would
be a financial hardship on them and their legal practice” and that “the amount
could prevent further access to this court for the parties they represent[ed].” Id.
The district court affirmed the magistrate’s order to pay $5,000.00 in sanctions
but reversed the ordered date of payment. Id. at *3. Instead of requiring
payment by October 4, 2010, the district court ordered the appellants’ counsel
to “tender $5,000.00 on the fifth day following the date of entry of a final order
terminating this litigation.” Id.
       Next, on February 24, 2011, the district court granted NPC’s motion for
summary judgment, finding that the appellants had failed to establish the
breach of duty and causation elements of their negligence action. Doss v. NPC



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                                   No. 11-60164

Int’l, Inc., 2011 WL 754891, at *2-3 (N.D. Miss. Feb. 24, 2011). This appeal
followed.
                                       II.
      The appellants raise two issues on appeal. First, they contend that the
district court erred in granting NPC’s motion for summary judgment. Second,
the appellants’ counsel argues that the district court erred in affirming the
magistrate’s $5,000.00 sanction.
      We review a summary judgment de novo, applying the same standard as
the district court. Trinity Universal Ins. Co. v. Emp’rs Mut. Cas. Co., 592 F.3d
687, 690 (5th Cir. 2010). “Summary judgment should be affirmed if, viewing the
evidence in the light most favorable to the non-moving party, there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Access Mediquip L.L.C. v. UnitedHealthcare Ins. Co., 662 F.3d
376, 378 (5th Cir. 2011) (citations and internal quotation marks omitted).
      “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original). A dispute as to a material fact is genuine
“if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. at 248.
      Summary judgment must be entered “against a party who fails to make
a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting
Celotex v. Catrett, 477 U.S. 317, 322 (1986)). “Even if we do not agree with the
reasons given by the district court to support summary judgment, we may affirm
the district court’s ruling on any grounds supported by the record.” Lifecare
Hosps., Inc. v. Health Plus of La., Inc., 418 F.3d 436, 439 (5th Cir. 2005).

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        We review Rule 11 sanctions for abuse of discretion and factual findings
for clear error. Health Net, Inc. v. Wooley, 534 F.3d 487, 497 (5th Cir. 2008). “A
district court abuses its discretion if it imposes sanctions based on (1) an
erroneous view of the law or (2) a clearly erroneous assessment of the evidence.”
Skidmore Energy, Inc. v. KPMG, 455 F.3d 564, 566 (5th Cir. 2006).
1.      The District Court did not Err in Granting NPC’s Motion for
        Summary Judgment
        NPC offered as summary judgment evidence the MSDH report, which
concluded that, after testing stool and food samples, “the evidence regarding [the
Pizza Hut] incident does not provide an answer as to the cause of the illness
among the persons involved.” Second, NPC presented an affidavit of its expert,
Dr. Ernest Williams, who, upon review of the appellants’ medical records and
the MSDH report, concluded that there were “several inconsistencies with what
the plaintiffs have put forth in terms of there being a direct illness being brought
about due to consuming contaminated food while at Pizza Hut.” Dr. Williams’
affidavit also stated that “one very likely theory [to explain the cause of the
appellants’ symptoms] would be that the plaintiffs had contracted an intestinal
virus, referred to commonly as ‘stomach flu’ or ‘intestinal flue.’” Third, the
appellants’ medical records, which are summarized in the attached appendix,
showed that not one appellant was diagnosed with food poisoning on January 18,
2009, and many received diagnoses that were unrelated to food poisoning.3

       3
         Likewise, many of the diagnoses that were potentially related to food poisoning were
not reached through any testing of stool or vomitous sample—as no such testing
occurred—but through conversations between the appellants and their treating physicians.
For instance, Kimeyatter Pointer and Joseph Doss were both diagnosed with “exposure to
undercooked food” after reporting that they began to vomit upon seeing what they considered
to be undercooked chicken wings. The medical personnel at GLH did not test the chicken
wings to determine whether they were, in fact, undercooked. Likewise, the physicians did not
test Pointer and Doss for the toxins or bacteria that are typically associated with undercooked
food. In this circumstance, such medical diagnoses—which rely strictly on information related
to a physician by a patient—are accorded little weight in Mississippi. See John Morrell & Co.
v. Shultz, 208 So. 2d. 906, 907 (Miss. 1968) (finding that the defendant’s motion for a directed
verdict should have been granted because the plaintiff’s food poisoning case hinged upon the
plaintiff’s “testimony as to what she thought caused her illness and the doctor’s opinion formed

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       In order to survive summary judgment, the appellants were required to
respond to NPC’s evidence with contrary evidence to establish a genuine issue
of material fact. See Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010)
(“Once a party meets the initial burden of demonstrating that there exists no
genuine issue of material fact for trial, the burden shifts to the non-movant to
produce evidence of the existence of such an issue for trial.”) (citation omitted).
The appellants failed to meet this burden.
       The appellants provided evidence from their medical records indicating
that at least some of them claimed to have fallen ill after eating chicken wings
at Pizza Hut. They also showed that, on January 18, 2009, some chicken, which
was discovered by MSDH, was kept for an unknown length of time at 93 degrees
Fahrenheit in the Pizza Hut kitchen. Finally, the appellants presented the
affidavit of a Pizza Hut employee who testified that Pizza Hut was having
sewage issues on the date of the incident. This evidence fails to create a genuine
issue of material fact regarding causation.
       Most importantly, the appellants failed to present any scientific or medical
evidence linking their alleged symptoms to the chicken.4 To the contrary, the
summary judgment evidence overwhelmingly indicated that such a link was
lacking. The MSDH report, for example, explained that their tests did not
reveal the presence of consistent types of bacteria in the appellants’ stool
samples and that such consistency would have been expected in a food poisoning
case. Similarly, the MSDH also reported that the vast majority of non-church


from the history of the illness related to him”).
       4
         In Mississippi food poisoning cases, medical and/or scientific evidence is generally a
pre-requisite to satisfying the element of causation. See, e.g., John Morrell & Co., 208 So. 2d.
at 907; L.W. ex rel. Ware v. Tyson Foods, Inc., 2011 WL 3476574, at *3 (S.D. Miss. Aug. 9,
2011) (denying defendant’s motion for summary judgment primarily because the plaintiff “was
tested and found to have campylobacter bacteria”). But see CEF Enters.,Inc. v. Betts, 838 So.
2d 999, 1004 (Miss. Ct. App. 2003) (explaining that expert medical testimony is unnecessary
when the negligence action is based upon the presence of a foreign object, such as a roach or
decomposing bug, in the food consumed by the plaintiff) (citations omitted).

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group patrons of Pizza Hut on January 18, 2009 did not get sick, which is
inconsistent with typical food poisoning cases. Critically, the MSDH’s report
also concluded that it was unlikely the chicken wings caused the appellants’
alleged symptoms because the “bacteria that produce toxins that can sometimes
cause gastrointestinal illness with a short incubation period (S. aureus and B.
cereus) are not the typical bacteria found in raw chicken.”5 The appellants’
failure      to   rebut    this   evidence–which       was    largely    corroborated       by
Dr. Williams–supports the district court’s grant of summary judgment on
causation.6 See Liberty Lobby, 477 U.S. at 252 (a genuine issue does not exist
where the evidence “is so one-sided that one party must prevail as a matter of
law”).
         In this negligence case, the appellants were required to show that NPC
owed them a duty, breached that duty, and proximately caused their injuries
and damages. Betts, 838 So. 2d at 1003. NPC moved for summary judgment,
relying on evidence that the meal at Pizza Hut did not cause the appellants’
alleged symptoms. The appellants have failed to offer sufficient evidence in
rebuttal. See McNeal v. Bar S Food Co., 110 F.3d 794 (table), 1997 WL 119910,
at *1 (5th Cir. 1997) (holding that summary judgment was appropriate because
the record “taken as a whole [did] not suffice to reasonably support an
affirmative factual finding–as opposed to a mere suspicion, speculation, or
conjecture–either that the bologna was actually toxic or that what plaintiff



         5
         The MSDH also explicitly noted that the above-temperature chicken that was
“negative for S. aureus, Staphlococcal enterotoxins and volatile or semi-volatile chemicals.”
         6
          Based on appellants’ failure to properly designate their experts, the district court
struck all of their experts (and corresponding affidavits) except Dr. Paula Spence-Evans, who
was one of the physicians that treated the appellants at GLH. However, as appellants
concede, based on the same improper designation, the district court limited Dr. Spence-Evans’
testimony to information provided in her medical reports. These medical reports do not give
rise to a genuine issue of material fact regarding causation. Thus, given the district court’s
limitation of Dr. Spence-Evans’ testimony, there is nothing in Dr. Spence-Evans’ affidavit that
would suffice to create a genuine issue of material fact.

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suffered from was actually food poisoning”); Miller v. Lykes Bros.-Ripley S.S. Co.,
98 F.2d 185, 186 (5th Cir. 1938) (finding that appellant failed to satisfy its
burden of proof regarding causation because “[t]he most that any of appellant’s
medical witnesses would say was that there was a possibility or strong liklihood
that food poisoning could [have] cause[d] [appellant’s sickness]”). Accordingly,
we need not address the other three elements of the appellants’ negligence claim,
and we affirm the district court’s grant of summary judgment in favor of NPC.
See Little, 37 F.3d at 1075 (Summary judgment must be entered “against a party
who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of
proof at trial.”) (quoting Celotex, 477 U.S. at 322).
2.      The District Court Abused its Discretion in Sanctioning
        Appellants’ Counsel
        The appellants’ counsel argues that the magistrate judge and district court
lacked the authority to sanction them for improperly filing repetitive lawsuits
on behalf of the same plaintiffs in state court, even though the petitions were
later removed to federal court.      We disagree.       The district court had the
authority to impose sanctions in the case. However, we reverse and remand
because those sanctions should have been imposed in accordance with the law
of the state where the pleading was initially filed before the case’s removal to
federal court.
        The appellants cite our decision in Positive Software to support their
contention that the federal courts lack the authority to sanction their pre-
removal state court conduct. See Positive Software Solutions, Inc. v. New
Century Mortg. Corp., 619 F.3d 458 (5th Cir. 2010). In Positive Software, we
held that the district court lacked the inherent authority to impose sanctions for
conduct committed during a court-ordered arbitration proceeding. Id. at 461.
Here, the appellants’ reliance on Positive Software is misplaced. The Fifth
Circuit has explicitly held that federal courts have the authority to issue

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sanctions under state law when a party commits a sanctionable act in a state
court action that is later removed to federal court. See Tompkins v. Cyr, 202
F.3d 770, 787 (5th Cir. 2000).
      We nevertheless hold that the district court abused its discretion when it
affirmed the magistrate judge’s sanctions pursuant to Federal Rule 11. Our
decision in Tompkins established that “the federal rules do not apply to filings
in state court, even if the case is later removed to federal court.” Id. Instead,
state pleading rules apply to cases that are initially filed in state court and later
removed to federal court. Id. Thus, the district court abused its discretion by
applying an erroneous view of the law when it affirmed the magistrate judge’s
imposition of sanctions pursuant to Federal Rule 11.
      Specifically, the magistrate judge imposed a $5,000.00 sanction under
Federal Rule 11 because the appellants’ counsel “needlessly increas[ed] the cost
of litigation” by filing multiple lawsuits in state court. Doss, 2010 WL 3021533,
at *2. The district court affirmed this penalty but reversed the date upon which
the $5,000.00 payment would be due to the court. Doss, 2010 WL 3950578, at
*3.
      We reverse and remand the district court’s affirmance because Mississippi
Rule 11 does not contain the same breadth as Federal Rule 11. With regard to
sanctions, Mississippi Rule 11 states, in pertinent part:
      If any party files a motion or pleading which, in the opinion of the
      court, is frivolous or is filed for the purpose of harassment or delay,
      the court may order such a party, or his attorney, or both, to pay to
      the opposing party or parties the reasonable expenses incurred by
      such other parties and by their attorneys, including reasonable
      attorneys’ fees.
Miss. R. Civ. P. 11(b) (emphasis added). Unlike Federal Rule 11, Mississippi
Rule 11 does not provide for sanctions based upon needlessly increasing the cost
of litigation. Furthermore, Mississippi Rule 11 requires a determination that
the offending pleading be “filed for the purpose of harassment or delay.” Federal


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Rule 11 is broader, proscribing pleadings from “being presented for any improper
purpose, such as to harass, cause unnecessary delay, or needlessly increase the
cost of litigation.” Fed. R. Civ. P. 11(b)(1) (emphasis added). Thus, on remand,
the court must determine whether the appellants’ counsel’s conduct was
sanctionable under Mississippi Rule 11.7
                                              III.
       For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment and REVERSE and REMAND the district court’s affirmance
of the magistrate judge’s sanction order.




       7
        We also note that Mississippi Rule 11 does not explicitly authorize sanctions that are
paid directly to the court, such as the $5,000.00 in this case. Instead, the focus of the rule is
upon payment of the reasonable expenses of the opposing party.

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                                APPENDIX

Name                      Final Diagnosis                Additional Notes
Monique Doss              “Enteritis–non food            Doss complained of
                          poisoning”                     vomiting and diarrhea;
                                                         Doss returned to GLH
                                                         on 1/21/09 and was
                                                         diagnosed with
                                                         gastroenteritis
Mishay Hampton            “Enteritis–non food            Hampton was two
                          poisoning”                     months pregnant and
                                                         complained of vomiting
Nadia Harris              “Enteritis–non food            Harris’s chief complaint
                          poisoning”                     was vomiting after
                                                         eating boneless wings
Tarmeisha Hampton         “Enteritis–non food            Hampton complained
                          poisoning”                     that her head was
                                                         spinning (the rest of
                                                         her complaints are
                                                         illegible)
Sharonda Gibbs            “poss[ible] toxin              n/a
                          exposure”
Darron Childs             “poss[ible] toxin              Childs did not report
                          exposure”                      feeling any symptoms
                                                         but was sent to be
                                                         “checked out”
Ladarius Johnson          “poss[ible] toxin              Johnson denied feeling
                          exposure”                      pain but was sent to be
                                                         “checked out”
LeVan Harris              “poss[ible] toxin              Harris denied feeling
                          exposure”                      any pain and his
                                                         symptoms were
                                                         apparently resolved
                                                         before arriving to GLH




                                     15
 Case: 11-60164      Document: 00511754287        Page: 16       Date Filed: 02/10/2012

                                    No. 11-60164

Darius West                   “poss[ible] toxin              West complained of
                              exposure”                      small amounts of
                                                             nausea and vomiting
                                                             but his symptoms were
                                                             apparently resolved
                                                             before arriving to GLH;
                                                             West also denied
                                                             feeling any pain at
                                                             GLH
Roger Hawkins                 “poss[ible] toxin              Hawkins reported
                              exposure”                      feeling hot and
                                                             experiencing back pain
Justin Childs                 “exposure to                   Childs experienced
                              undercooked food”              cramps
Joseph Doss                   “exposed to                    Doss reported that he
                              undercooked food”              “started vomiting after
                                                             looking at some hot
                                                             wings that were
                                                             undercooked”
Rochelle Childs               “N/V? 2nd to                   Childs complained that
                              undercooked food;              she was “trying to
                              possible collective            vomit” and that she
                              hysteria; asthma               threw up at Pizza Hut
                              attack”8
Kimeyatter Pointer            “N/V? 2nd to                   Pointer reported
                              undercooked food;              vomiting after someone
                              possible mass hysteria”        saw blood in the
                                                             chicken wings
Tyneeta Doss                  “N/V? 2nd to                   Doss reported that she
                              undercooked food;              ate some undercooked
                              possible GERD”                 wings at Pizza Hut
Nancy Pointer                 No diagnosis because           Pointer reported that
                              Pointer left the               her chief complaint was
                              emergency room before          a cough and she denied
                              receiving treatment            feeling pain



    8
        The “N/V” apparently stands for “nausea and vomiting.”

                                          16
 Case: 11-60164   Document: 00511754287   Page: 17     Date Filed: 02/10/2012

                              No. 11-60164

Tamara Green             “(1) UTI (2) pregnant”      Green reported 2-3
                                                     weeks of nausea; Green
                                                     was unaware that she
                                                     was pregnant; her
                                                     pregnancy was
                                                     discovered at GLH
Takerra Johnson          “hypoglycemia” (and         Johnson reported that
                         other illegible             her chief complaint was
                         diagnoses)                  “headache”




                                   17
