     Case: 14-50093      Document: 00513216672         Page: 1    Date Filed: 10/02/2015




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

                                                                                FILED
                                                                            October 2, 2015
                                    No. 14-50093
                                  Summary Calendar                           Lyle W. Cayce
                                                                                  Clerk


ROWLAND J. MARTIN, JR., Successor in Interest to Moroco Ventures L.L.C.,

                                                 Plaintiff-Appellant

v.

EDWARD BRAVENEC, Esquire; LAW OFFICE OF MCKNIGHT AND
BRAVENEC; 1216 WEST AVENUE, INCORPORATED,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-414


Before JOLLY, PRADO, and ELROD, Circuit Judges.
PER CURIAM: *
       Rowland J. Martin, Jr., proceeding pro se, appeals orders of the district
court awarding attorney’s fees to Edward Bravenec, the Law Office of
McKnight and Bravenec, and 1216 West Avenue, Incorporated, under FED. R.
CIV. P. 11, and striking his pleadings opposing an award of fees. 1



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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

       1Edward Bravenec, the Law Office of McKnight and Bravenec, and 1216 West
Avenue, Incorporated will be referred to collectively as Bravenec.
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                                  No. 14-50093

      In 2010, Martin filed a pro se complaint against Bravenec and other
entities alleging multiple causes of action predicated upon a foreclosure
dispute.   Bravenec filed a motion for summary judgment that included a
request for sanctions.    The district court granted summary judgment to
Bravenec but declined to impose the sanctions requested because Bravenec
failed to comply with the procedural requirements of FED. R. CIV. P. 11(c)(2).
However, the district court sua sponte ordered Martin to show cause why
financial sanctions should not be imposed. Believing that Martin failed to
comply with the show cause order, the district court entered an order directing
the clerk of court not to accept additional motions or complaints from Martin
without the court’s permission. On appeal, we affirmed the entry of summary
judgment but did not address the issue of sanctions, as it was not before the
court. See Martin v. Grehn, 546 F. App’x 415 (5th Cir. 2013).
      After this Court’s opinion issued, Bravenec moved the district court to
expunge a lis pendens lien Martin filed that alleged that the disputed property
was subject to ongoing litigation in federal court. The district court granted
the motion, and the lien was expunged. Because this Court had not issued the
mandate in Martin’s appeal, he filed a new lis pendens lien asserting anew
that the disputed property was subject to ongoing litigation in federal court,
which lead Bravenec to file a motion for sanctions under FED. R. CIV. P. 11 and
TEX. R. CIV. P. 65. Bravenec asked the district court to impose a term of
confinement or, alternatively, award attorney’s fees in the amount of $10,000.
Without holding a hearing or ordering a response from Martin, the district
court entered an order on December 5, 2013, denying the request for
confinement and granting the request for attorney’s fees. The district court
concluded that it was appropriate to award Bravenec attorney’s fees because
the district court previously found that Martin violated FED. R. CIV. P. 11(b)(1),



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(2) and Martin failed to respond to the district court’s show cause order.
However, rather than grant Bravenec $10,000 as requested, the district court
ordered Bravenec to file a supplemental motion setting forth the fees actually
incurred during the litigation.    Upon receipt of Bravenec’s supplemental
motion, the district court determined that Bravenec incurred $7,710 in fees
and entered an order on December 27, 2014, awarding that amount to
Bravenec.   Martin attempted to object to the original and supplemental
motions for attorney’s fees on two separate occasions. However, the first set of
pleadings was entered on the docket after the district court’s December 5, 2013,
order issued, and the district court ordered the second set of pleadings stricken
on December 30, 2013, on the grounds that the pleadings violated the no filing
sanction previously imposed.
      On January 27, 2014, Martin noticed his intention to appeal the district
court’s orders granting attorney’s fees, affixing the amount of fees to be
awarded, and striking his objections. Martin makes two arguments on appeal.
First, the district court plainly erred in not exercising supplemental
jurisdiction under Sampliner v. Motion Picture Patents Co., 255 F. 242 (2d Cir.
1918), rev’d on other grounds, 254 U.S. 233 (1920), and applying Texas law to
adjudicate his claims against Bravenec. Second, the district court abused its
discretion in awarding Bravenec attorney’s fees under Rule 11.
      This Court exercises jurisdiction under 28 U.S.C. § 1291, which provides
for an appeal from final orders of the district court. See Southern Travel Club,
Inc. v. Carnival Air Lines, Inc., 986 F.2d 125, 130-32 (5th Cir. 1993). The
district court’s order awarding attorney’s fees under Rule 11 is not final until
the amount to be awarded is determined. Id. at 131. In this case, the order
affixing attorney’s fees entered on December 27, 2013, and Martin timely filed




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his notice of appeal on Monday, January 27, 2014.           See FED. R. APP. P.
4(a)(1)(A).
      With respect to the first issue, Martin appears to challenge the district
court’s entry of summary judgment against Bravenec on the ground that
summary judgment would have been improper if the district court correctly
exercised supplemental jurisdiction and applied Texas law to the adjudication
of his claims. However, this Court previously affirmed the district court’s grant
of summary judgment, and Martin does not explain why he did not or could
not raise the arguments asserted now in his earlier appeal of the judgment.
Thus, this issue is without merit. See Ward v. Santa Fe Indep. Sch. Dist., 393
F.3d 599, 607-08 (5th Cir. 2004) (reiterating that a party cannot raise an issue
on appeal that could have been raised in an earlier appeal in the same case).
To the extent that this claim was raised below, it was properly denied.
      Turning to the second issue, the district court may sanction a party,
including a pro se litigant, under Rule 11 if it finds that the litigant filed a
pleading for an improper purpose or that the pleading was frivolous. See FED.
R. CIV. P. 11(b) & (c); Whittington v. Lynaugh, 842 F.2d 818, 820-21 (5th Cir.
1988). Sanctions may be imposed upon a party’s motion if the motion is “made
separately from any other motion,” the motion describes the specific conduct
that allegedly violates Rule 11(b), and the motion is served on the party to be
sanctioned 21 days before it is filed in district court. See Marlin v. Moody
National Bank, N.A., 533 F.3d 374, 378 (5th Cir. 2008) (citing FED. R. CIV.
P. 11(c)(2)). Alternatively, the court may sua sponte order a party to show
cause why conduct specifically described in the order has not violated Rule
11(b). See id. (citing FED. R. CIV. P. 11(c)(3)). Although the district court need
not hold a hearing, it must provide the litigant notice of the proposed sanctions
and the opportunity to be heard to satisfy Rule 11 and the Due Process Clause.



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See Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 1187, 1191-92 (5th Cir.
1996). The court reviews an award of sanctions under Rule 11 for abuse of
discretion. See Marlin, 533 F.3d at 377. A district court “necessarily abuses
its discretion in imposing sanctions if it bases its ruling on an erroneous view
of the law or a clearly erroneous assessment of the evidence.” Elliott v. Tilton,
64 F.3d 213, 215 (5th Cir. 1995).
      In this case, the district court award of attorney’s fees fails to comport
with the requirements of Rule 11 and denied Martin due process. First, the
district court erroneously found that Martin did not respond to its show cause
order from 2012. In fact, Martin did respond, albeit inarticulately, on January
11, 2013, and January 14, 2013. Next, the district court appears to have
granted Bravenec’s motion for attorney’s fees without considering Martin’s
objections and motions for reconsideration. The district court’s original order
granting the motion entered on the docket prior to Martin’s objections and fails
to acknowledge the objections. Likewise, the final order assessing the amount
to be paid also fails to reference Martin’s December 5, 2013, pleadings and was
entered before Martin’s December 27, 2013, objections and motion for
reconsideration, which the district court ordered stricken.
      Although the district court may properly enjoin vexatious litigation and
sanction the same, it may not exercise its authority in a manner that deprives
a litigant of his constitutional rights. See Qureshi v. United States, 600 F.3d
523, 525-26 (5th Cir. 2010). Thus, the district court abused its discretion when
it struck Martin’s objections. Notably, Martin withdrew the lis pendens lien of
which Bravenec complained upon receiving Bravenec’s motion for sanctions
and filed a subsequent lis pendens lien that referenced only state court
litigation. That is the purpose of the 21-day “safe harbor” provision: to provide
a litigant the opportunity to withdraw challenged pleadings and thereby avoid



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sanctions. See In re Pratt, 524 F.3d 580, 586-87 (5th Cir. 2008). Finally,
Bravenec suggested below that the district court’s December 2012 show cause
order satisfied the “safe harbor” provision but cited no authority to support
that assertion, and this court has strictly construed the requirements of FED.
R. CIV. P. 11(c)(2). See, e.g., Pratt, 524 F.3d at 586-87; Marlin, 533 F.3d at 378-
79; Brunig v. Clark, 560 F.3d 292, 298 n.20 (5th Cir. 2009). Because Bravenec
did not comply with the safe harbor provision, the district court is deemed to
have awarded the attorney’s fees on its own motion, which is improper under
Rule 11. See Marlin, 533 F.3d at 379; Brunig, 560 F.3d at 298. As this Court
explained in Marlin, sanctions awarded on the court’s initiative under Rule 11
“are limited to nonmonetary sanctions or a monetary penalty paid to the court.”
See 533 F.3d at 379.
      AFFIRMED in part, VACATED in part, and REMANDED. Martin’s
motion to strike Bravenec’s brief is DENIED. Martin’s other motions are
DENIED AS MOOT.




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