                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0029n.06
                            Filed: January 9, 2007

                                            No. 05-4342

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

IDA S. KATZ,
       Plaintiff-Appellee,

                                                      On Appeal from the
               v.                                     United States District Court for
                                                      the Southern District of Ohio
ARNOLD RABKIN , ET AL.,
     Defendant-Appellants.

______________________________

       Before: KENNEDY and GIBBONS, Circuit Judges; ALDRICH, District Judge*

       KENNEDY, J. Arnold M. Rabkin, et al. seek review of the district court’s denial of their

motion to assess monetary and non-monetary sanctions against Ida S. Katz pursuant to Fed. R. Civ.

P. 11. This appeal is based on assertions that the district court abused its discretion because its

refusal to grant sanctions was based upon erroneous determinations that (1) Katz’s claims had not

been fully litigated in state court and (2) the evidence in the record was insufficient to demonstrate

Katz’s improper purpose in bringing her case in federal court. We hereby assess monetary sanctions

against Katz for filing a frivolous appeal and remand to the district court to determine whether it is

appropriate to assess fees for the trial court proceedings following appellants’ motion for summary

judgment.




       *
         The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio,
sitting by designation.
                                          BACKGROUND

       Ida Katz, the founder and former director of the Save the Animals Foundation, a non-profit

charitable organization, alleges that appellants, the Save the Animals Foundation and several of its

board members (hereinafter “STAF”), have committed a myriad of improprieties related to the

management of the foundation. Katz has instituted state and federal court litigation, in addition to

attempting various administrative remedies, essentially alleging the same improprieties against the

same defendants, all to no avail. The Court of Common Pleas, Hamilton County, Ohio, dismissed

Katz’s state action in its entirety. The state appellate court upheld the dismissal of the vast majority

of Katz’s causes of action but remanded for further proceeding on two claims. Katz did not appeal

the affirmance of the state district court’s dismissal of the majority of her claims, and the Court of

Common Pleas for Hamilton County, Ohio, provided final resolution of the two remanded claims,

dismissing them on the merits pursuant to Ohio Civil Rule 41(B)(1) based on Katz’s failure to

prosecute following her attorney’s withdrawal from the case.

       Despite the resolution of all of her claims on the merits and a lack of any source of federal

jurisdiction, Katz filed her case in federal court before the United States District Court for the

Southern District of Ohio. In agreement with the magistrate’s recommendation, the district court

dismissed the complaint for lack of subject-matter jurisdiction and for failure to state a claim upon

which relief can be granted over Katz’s objections. A separate panel of this court affirmed the

dismissal based on plaintiff’s failure to establish any state action for her 42 U.S.C. § 1983 claim.

       Expressing frustration at the considerable time and money expended to defend against Katz’s

jurisdictionally-insufficient and essentially duplicative federal suit, STAF moved the district court


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to assess sanctions, seeking recoupment of the attorneys’ fees incurred in moving to dismiss the

federal action and in filing the motion for sanctions, as well as an injunction to prevent Katz from

filing future suits against STAF without a magistrate’s pre-approval. The district court denied this

motion for sanctions. STAF here appeals that denial, asserting that Katz’s decision to sign and file

the complaint in federal court was not reasonable under the circumstances within the terms of Rule

11 jurisprudence. Union Planters Bank v. I & J Dev. Co., 115 F.3d 378, 384 (6th Cir. 1997)(citation

omitted.).

                                            ANALYSIS

       We hereby determine that Katz’s actions do warrant the assessment of monetary sanctions.

Although we review the district court’s sanctions determination with the deference prescribed by the

abuse of discretion standard, we must conduct a thorough examination based on this circuit’s Rule

11 jurisprudence and the record before us. See Apostolic Pentecostal Church v. Colbert, 169 F.3d

409, 417 (6th Cir. 1999). Rule 11 requires that:

       . . . to the best of [an unrepresented party’s] knowledge, information, and belief,
       formed after an inquiry reasonable under the circumstances, . . . claims . . . [presented
       to the court in a paper] are warranted by existing law or by a nonfrivolous argument
       for the extension, modification or reversal of existing law or the establishment of
       new law [and] the allegations and other factual contentions have evidentiary support
       or, if specifically so identified, are likely to have evidentiary support after a
       reasonable opportunity for further investigation or discovery . . . .


Fed. R. Civ. P. 11(b). As the district court correctly noted, “[i]n this circuit, the test for the

imposition of Rule 11 sanctions is ‘whether the individual’s conduct was reasonable under the

circumstances.’” Tropf v. Fid. Nat’l Title Ins. Co., 289 F.3d 929, 939 (6th Cir. 2002) (citation

omitted). Here, even if Katz possessed an initial good-faith belief that her claims were cognizable



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in federal court, STAF’s motion to dismiss reasonably should have put her on notice that these

claims were legally insufficient. Accordingly, the law afforded her twenty-one days after service of

the motion for sanctions to withdraw the complaint. Fed. R. Civ. P. 11(c)(1)(A).

        Although the district court did not find sanctions to be appropriate, it failed to consider the

fact that Katz’s underlying complaint had no legally viable basis for federal jurisdiction. While the

court might have considered it reasonable for the plaintiff to believe, as she argued, that the favorable

tax treatment STAF received as a nonprofit would make it subject to suit in federal court, STAF’s

motion to dismiss the case and the district court’s decision to grant that motion surely was sufficient

to notify Katz that her claim was groundless. Instead of resting its decision on this issue, the district

court came to its conclusion that Katz was not behaving unreasonably in bringing the federal case

based on: (1) the notion that all of her state court claims were not dismissed on the merits, which was

an erroneous interpretation of Ohio law, and (2) the fact that discovery had not yet occurred in the

case. See Ohio Civ. R. 41(B) (stating that “[a] dismissal under division (B) [pertaining to

involuntary dismissal] of this rule [for dismissal of actions], operates as an adjudication upon the

merits unless the court, in its order for dismissal, otherwise specifies”) (emphasis added).

        We find the district court’s analysis and conclusion to the contrary to be an abuse of

discretion. Further, the district court’s prior dismissal of Katz’s claims based on the absence of

jurisdiction and failure to state a claim was sufficient to alert a reasonable plaintiff to the frivolous

nature of her case. Nevertheless, Katz, in filing a groundless appeal, forced STAF to incur additional

expenses and waste even more time to continue to defend the case.

        Based on our conclusion that Katz’s frivolous appeal satisfies the standard set in Rule 11,

we assess monetary sanctions in the amount of $500 to deter Katz from instituting further costly and


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unmeritorious litigation. Additionally, we remand the case to the district court with instructions to

award monetary sanctions to the defendants for attorneys’ fees incurred in the trial court following

the filing of the motion to dismiss. It is prudent to permit the district court to determine the full

amount of the sanctions, as it could consider the plaintiff’s financial situation and other relevant

factors unknown to this court in doing so. Because we trust that issuing monetary sanctions in the

form of attorneys’ fees would sufficiently deter Katz from filing additional frivolous actions, we find

it unnecessary to enjoin the plaintiff from instituting future litigation against the defendants without

a magistrate’s approval.



                                          CONCLUSION

        For the foregoing reasons, we REVERSE the district court’s judgment and REMAND for

further proceedings in accordance with this opinion.




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