UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WILLIAMS et al.,

Plaintiffs, v. No. 19-cv-183 (EGS) ROMARM S.A.,

Defendant.

MEMORANDUM OPINION

Plaintiffs J.H. (through his legal representatives Norman

Williams and Diane Howe), Kevin Attaway, and Jamel Blakeley

(collectively “Plaintiffs”) bring this action against Defendant

Romarm S.A. (“Romarm”) under the District of Columbia’s Assault

Weapons Manufacturing Strict Liability Statute (“SLA”),

et seq., for damages stemming from two separate

shootings in March 2010, during which firearms manufactured by

Romarm were allegedly used. Pending before the Court is Romarm’s

Motion to Dismiss and a request for the award of costs under

. Upon careful consideration of the motion, the

opposition, the reply thereto, the applicable law, and the

entire record herein, the Court GRANTS IN PART and DENIES IN

PART Romarm’s Motion to Dismiss.1 The Court will also impose

1 Because the Court lacks personal jurisdiction over Romarm, the Court declines to dismiss the Complaint with prejudice. Cf. Bazarian Intern. Financial Associates, L.L.C v. Desarrollos sanctions on Plaintiffs’ counsel pursuant to Rule 11 of the

Federal Rules of Civil Procedure (“Rules”).

I. Factual and Procedural Background

As an initial matter, Plaintiffs’ Complaint is deficient

under the Rules. Rule 8(a) requires a complaint to contain,

among other things, “a short and plain statement of the claim

showing that the pleader is entitled to relief” and “a demand

for the relief sought.” Fed. R. Civ. P. 8(a)(1), (2).

Plaintiffs’ Complaint fails to meet these minimal pleading

standards because, among other things, it contains no claims for

relief, no factual allegations, and no demand for the relief

sought. See generally Compl., ECF No. 1. Rather, the Second

Amended Complaint refers to the dismissal of the case by the

Court of Appeals for the Second Circuit (“Second Circuit”) and

states that plaintiffs are refiling this action. See

at 1 ¶¶

1, 2.

“When a trial court concludes that an initial complaint

fails to satisfy Rule 8, an appropriate remedy is to strike the

complaint . . . and provide the plaintiff with an opportunity to

file an amended complaint that complies with the Rules.”

Achagzai v. Broad. Bd. of Governors,

, 69

Aerohotelo, C.A.,

, 131 n.4 (D.D.C. 2011) (noting that “without subject matter jurisdiction, the Court does not have the power to reach the merits of the case and lacks the power to dismiss with prejudice”). 2 (D.D.C. 2015). However, “the purpose of the rule is to give fair

notice of the claim being asserted so as to permit the adverse

party the opportunity to file a responsive answer, prepare an

adequate defense and determine whether the doctrine of res

judicata is applicable.” Brown v. Califano,

(D.D.C. 1977). Here, despite the failure of the complaint to

meet the minimal pleading standards, the defendant is well aware

of the factual allegations giving rise to this lawsuit and seeks

to have this case dismissed on, inter alia, collateral estoppel

grounds. See Def.’s Mot., ECF No. 9 at 4. Accordingly, since the

Complaint refers to the case as having been dismissed by the

Second Circuit, the Court will assume the underlying facts as

set forth in the Second Circuit opinion to be true for the

purposes of deciding this motion. As stated by the Second

Circuit:

In two separate shootings in the District of Columbia, J.H. was killed, and Jamel Blakeley and Kevin Attaway sustained serious injuries. The firearm used in the shootings was manufactured by the defendant, Romarm, in Romania in the 1970s, and was sold to a dealer in 2006, which imported it to Vermont, whence it was sold to dealers in Ohio and Maryland, and then to an unidentified purchaser. The shootings took place in March 2010. The Amended Complaint does not allege how the firearm ended up in the District of Columbia or who used it to shoot the plaintiffs.

J.H. (by his legal representatives), Blakeley, and Attaway brought claims pursuant to the District of Columbia Strict Liability Act . .

3 . [and] claim that Romarm is strictly liable for any damages caused to them by the shooting because Romarm manufactured the firearm that was used in the shooting and caused their injuries.

Williams v. Romarm, S.A.,

, 22 (2d Cir. 2018)

(“Williams V”).

Plaintiffs Mr. Williams and Ms. Howe originally filed an

action in the Superior Court for the District of Columbia in

2011. See Copy of D.C. Superior Court Docket No. 2001 CA 002349,

ECF No. 9-1 at 2. Romarm removed the action to the United States

District Court for the District of Columbia, where it was

assigned to Judge Amy Berman Jackson. See Civil Docket for Case

# 11-1924. After both Plaintiffs and Romarm made several

filings, Plaintiffs voluntarily dismissed the action on March

26, 2012. See Notice of Voluntary Dismissal, ECF No. 11. Prior

to dismissing the action before Judge Jackson, Plaintiffs

initiated another action, which was assigned to this Court,

based on the same facts and involving the same parties. See

Civil Docket for Case # 12-436, ECF No. 1.

This Court granted Romarm’s Motion to Dismiss, finding

“that plaintiffs . . . failed to allege personal jurisdiction

over ROMARM” under Foreign Sovereign Immunities Act (“FSIA”) or

the District of Columbia’s long-arm statute. See Williams v.

Romarm,

(D.D.C. 2013) (“Williams I”).

This Court’s decision was later affirmed by the Court of Appeals

4 for the District of Columbia Circuit (“D.C. Circuit”). See

Williams v. Romarm, SA,

(D.C. Cir. 2014) (“Williams

II”).

Based on the same operative facts, Plaintiffs Mr. Williams

and Ms. Howe, plus two additional Plaintiffs, Kevin Attaway and

Jamel Blakely, refiled their claims in a state court in

Maryland, and the action was removed to the District Court for

the District of Maryland (“Maryland District Court”). See

Williams v. Romarm S.A.,

(D. Md. 2015)

(“Williams III”). The issue facing the Maryland District Court

was also whether it had personal jurisdiction over Romarm under

the FSIA.

. Finding that Plaintiffs Mr. Attaway and

Mr. Blakeley were in privity with Plaintiffs Mr. Williams and

Ms. Howe in the case litigated before this Court, the Maryland

District Court held that: (1) under collateral estoppel,

Plaintiffs could not relitigate “whether Romarm is independent

from the Romanian government”; and (2) Plaintiffs had not shown

that Romarm had the “minimum contacts” needed with the State of

Maryland to establish the court’s personal jurisdiction over

Romarm. See

. In 2017, after Plaintiffs filed an

Amended Complaint providing more factual allegations, including

Romarm’s alleged “exclusive sales agreement with a Vermont-based

business,” the Maryland District Court found that a “transfer to

the [United States] District of Vermont [was] ‘in the interest

5 of justice,’” as the case could have been brought in Vermont.

Williams v. Romarm, No. CV TDC-14-3124,

, at *2 (D.

Md. Jan. 9, 2017)(“Williams VI”).

After obtaining an Order to Transfer, Plaintiffs filed an

action in the District Court for the District of Vermont

(“Vermont District Court”). See Williams v. Romarm S.A., No.

2:17-CV-6,

, at *1 (D. Vt. Sept. 1, 2017)

(“Williams IV”). That court found that it did not have “subject-

matter jurisdiction to adjudicate [the] dispute” under FSIA

because Plaintiffs’ allegations were “not ‘based upon’

[Romarm’s] conduct within the meaning of the FSIA, [and] the

direct-effect clause of the ‘commercial activity’ exception does

not apply.” See

. After the Vermont District Court

denied Plaintiffs’ Rule 59 motion to reconsider, the Second

Circuit affirmed the Vermont District Court’s decision. See

Williams V, 751 F. Appx. at 23.

On January 25, 2019, Plaintiffs filed the present action.

See Compl., ECF No. 1. Romarm filed its Motion to Dismiss

pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) on June 18,

2019. See Def.’s Mot. to Dismiss, ECF No. 9 (“Def.’s Mot.”).

Plaintiffs filed their Opposition on August 22, 2019, see Pls.’

Opp’n, ECF No. 18, and Romarm filed its Reply on August 30,

2019. See Reply, ECF No. 19.

The motion is ripe and ready for the Court’s adjudication.

6 II. Legal Standard

Under Rule 12(b)(2), a defendant can move to dismiss a

lawsuit if the court lacks personal jurisdiction over the

defendant. Fed. R. Civ. P. 12(b)(2). A plaintiff bears the

burden of making a prima facie showing that the court has

personal jurisdiction over a defendant. Kurtz v. United States,

(D.D.C. 2011). “A plaintiff must plead

specific facts providing a basis for personal jurisdiction[,]”

and a plaintiff cannot rely on merely conclusory

allegations, Buesgens v. Brown,

(D.D.C.

2008). Accordingly, to establish personal jurisdiction over a

defendant, the “plaintiff must allege specific acts connecting

[the] defendant with the forum[.]” Second Amendment Found. v.

U.S. Conf. of Mayors,

(D.C. Cir. 2001)

(quoting First Chicago Int'l v. United Exch. Co.,

(D.C. Cir. 1988)).

III. Analysis

Romarm argues that Plaintiffs’ Complaint “should be

dismissed because (1) the doctrine of collateral estoppel

prevents Plaintiffs from relitigating personal jurisdiction and

subject matter jurisdiction; (2) Plaintiffs’ lawsuit was

untimely filed; and (3) Plaintiffs have otherwise failed to

state a claim upon which relief may be granted.” Def.’s Mot.,

ECF No. 9 at 13. Because the Court concludes that collateral

7 estoppel prevents Plaintiffs from relitigating personal

jurisdiction and finds that issue to be dispositive, it declines

to address Romarm’s alternative arguments for dismissal.

Plaintiffs do not directly respond to Romarm’s arguments,

but in a confusing and disjointed brief argue that: (1) the

Vermont District Court and Second Circuit decisions regarding

lack of subject matter jurisdiction were wrongly decided and

there could be subject matter jurisdiction under District of

Columbia law, Pls.’ Opp’n, ECF No. 18 at 10-18, and (2) there is

personal jurisdiction over Romarm in the District of Columbia,”

id. at 19-27.

A. Plaintiffs’ Claims are Barred under the Doctrine of Collateral Estoppel

Romarm argues that “collateral estoppel prevents Plaintiffs

from relitigating issues related to . . . personal jurisdiction”

because

Plaintiffs previously filed a lawsuit in the District Court for the District of Columbia with identical allegations arising from the same alleged conduct. The issue of personal jurisdiction was litigated by the parties and determined by Judge Sullivan when the case was dismissed for lack of personal jurisdiction. [Williams I],

. The final judgment was then affirmed by the Court of Appeals for the District of Columbia Circuit. Williams [II],

(“For the foregoing reasons, the judgment of the district court is Affirmed.”). Both the District Court and the District of Columbia Circuit found that “due process will not

8 permit the district court to exercise its jurisdiction over Romarm.”

.

Def.’s Mot., ECF No. 9 at 14. Plaintiffs do not directly respond

to Romarm’s collateral estoppel argument, but argue that there

is personal jurisdiction over Romarm in the District of Columbia

because: (i) there is personal jurisdiction over Romarm in

Vermont; and (ii) personal jurisdiction and subject matter

jurisdiction are “‘inextricably intertwined’ in FSIA cases.” id.

at 19-27.

“The preclusive effect of a judgment is defined by claim

preclusion and issue preclusion, [also known as collateral

estoppel,] which are collectively referred to as res judicata.”

Taylor v. Sturgell,

(2008). Under the doctrine

of collateral estoppel, “once a court has decided an issue of

fact or law necessary to its judgment, that decision may

preclude relitigation of the issue in a suit on a different

cause of action involving a party to the first case.” Jahr v.

D.C.,

(D.D.C. 2013) (Sullivan, J.)

(quoting U.S. Postal Serv. v. Am. Postal Workers Union,

(D.C. Cir. 2009)). “By precluding parties from

contesting matters they have already had a full and fair

opportunity to litigate, collateral estoppel conserves judicial

resources, avoids inconsistent results, engenders respect for

judgments of predictable and certain effect, and prevents serial

9 forum-shopping and piecemeal litigation.” Jahr,

(internal quotation marks, brackets, and citations

omitted).

“For a defendant to successfully show that a final judgment

in a prior case precludes the plaintiff from litigating an issue

in the present case, the defendant must demonstrate three

elements: ‘[1] the same issue now being raised was contested by

the parties and submitted for judicial determination in the

prior case; [2] the issue was actually and necessarily

determined by a court of competent jurisdiction in that prior

case; and [3] preclusion in the second case does not work a

basic unfairness to the party bound by the first

determination.’” Massey v. Am. Fed'n of Gov't Employees,

(D.D.C. 2017) (quoting Martin v. Dep't of

Justice,

(D.C. Cir. 2007).

1. The same issue now being raised was contested by the parties and submitted for judicial determination in the prior cases.

With respect to the first element, in the prior action

before this Court, Plaintiffs Mr. Williams and Ms. Howe brought

the same wrongful death claim under the Survival Act and the

same claim under the SLA, on behalf of their son, alleging

damages stemming from his shooting death with a firearm

allegedly manufactured by Romarm. See Williams I,

. The issue before the Court on Romarm’s Motion to

10 Dismiss was whether the Court had personal jurisdiction over

Romarm under the FSIA and D.C.’s long-arm statute.

.

The Maryland District Court faced the same question and

concluded that collateral estoppel barred the Plaintiffs from

relitigating the question after this Court had already decided

the issue. See Williams III,

. The

court found that even though Mr. Attaway and Mr. Blakeley were

not a party to Williams I, they were in privity with Mr.

Williams and Ms. Howe because their interests “with respect to

the issue of personal jurisdiction over Romarm were identical to

the interests of [Mr.] Williams and [Ms.] Howe in [Williams I]:

they shared the interest of establishing that Romarm was

sufficiently controlled by the Romanian government, such that it

was not a separate and distinct entity that qualifies as a

‘person’ with due process rights for purposes of personal

jurisdiction.” See

. The Maryland District Court also

noted that the four Plaintiffs shared an attorney and that he

acknowledged during oral argument that all four Plaintiffs’

interests were identical.

Then, as now, Plaintiffs’ claims

are based on the same causes of action and factual allegations

and the Court addressed the same issue it is confronting in this

case—whether this Court has personal jurisdiction over Romarm

under FSIA. See Williams I,

. Plaintiffs

essentially concede that the issues involved in this action are

11 the same as were involved in Williams I, even noting that

Plaintiffs seek to “timely re-file this action,” identify the

compliant as the “Second Amended Complaint,” and fail to allege

any new facts. See generally Compl., ECF No. 1.

Accordingly, the Court finds that the first element is met

because the same issue now being raised—personal jurisdiction—

was contested by the parties and submitted for judicial

determination in Williams I and Williams II.

2. The issue was actually and necessarily determined by a court of competent jurisdiction in the prior cases.

The second element is met because the determination of

whether this Court had personal jurisdiction was necessary to

this Court’s February 4, 2013 Order granting the Motion to

Dismiss. As the Court noted, “[u]nder Federal Rule of Civil

Procedure 12(b)(2), a plaintiff bears the burden of establishing

a factual basis for personal jurisdiction over the

defendant(s).” Williams I,

(citing Crane

v. N.Y. Zoological Soc'y,

(D.C. Cir. 1990)).

Plaintiffs were unable to meet their burden in Williams I and do

not attempt to meet the burden in this case as, Plaintiffs do

not identify any changes in law nor does the complaint contain

new factual allegations that would give this Court personal

jurisdiction over Romarm. Accordingly, the Court finds that the

issue of personal jurisdiction over Romarm was actually and

12 necessarily determined by a court of competent jurisdiction in

Williams I and Williams II.

3. Preclusion in this case does not work a basic unfairness to the parties bound by the prior determinations.

There is no basic unfairness to the Plaintiffs here. First,

the Plaintiffs had a full and fair opportunity to litigate the

issue of personal jurisdiction before this Court and the D.C.

Circuit, and they do not contend otherwise. See generally Pls.’

Opp’n, ECF No. 18. And as the Maryland District Court explained—

and this Court agrees—even though Mr. Attaway and Mr. Blakeley

were not a party to Williams I, because they were in privity

with Mr. Williams and Ms. Howe, collateral estoppel barred all

four Plaintiffs from relitigating the question after this Court,

based on the same factual allegations, already decided the

issue. See Williams III,

. Accordingly,

the Court finds that preclusion does not work a basic unfairness

to the Plaintiffs here.

For these reasons, the Court GRANTS Romarm’s Motion to

Dismiss.

B. Plaintiffs’ Counsel is Subject to Sanctions Pursuant to Rule 11

After Romarm filed its motion to dismiss, the Court

directed Plaintiffs to address: (1) why sanctions should not be

imposed pursuant to Rule 11 of the Federal Rules of Civil

13 Procedure; and (2) whether there was any legal basis to commence

this lawsuit in light of the fact that this Court dismissed an

identical lawsuit, filed in 2012, against the same defendant

based on the same facts and claims. See Min. Order of July 29,

2019; see also Fed. R. Civ. P. 11(c)(3).

Pursuant to Rule 11,

, and the Court’s

inherent authority, Romarm argues that it should be awarded

costs, expenses, and attorneys’ fees incurred by the filing of

the motion to dismiss. Def.’s Mot., ECF No. 9 at 22. Romarm

contends that “[i]n this case, not only is there no justifiable

basis for Plaintiffs’ pending lawsuit, but Plaintiffs’ counsel’s

conduct has demonstrated that the lawsuit was filed in bad faith

and without a legitimate basis.” Id.2

Rule 11 provides as follows: By presenting to the court a pleading, written motion, or other paper--whether by signing,

2 Pursuant to

, “[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.” The Court has inherent authority to sanction an attorney who has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Chambers v. NASCO, Inc.,

(1991). Because the Court has determined that Plaintiffs’ counsel should be sanctioned under Rule 11, the Court does not reach the issue of whether Plaintiffs’ counsel’s conduct is also sanctionable pursuant to Section 1927 and the Court’s inherent power. See

(noting that “when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules rather than the inherent power”). 14 filing, submitting, or later advocating it-- an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) 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;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. P. 11(b). Accordingly, “[u]nder Rule 11, sanctions

may be imposed if a reasonable inquiry discloses the pleading,

motion, or paper is (1) not well grounded in fact, (2) not

warranted by existing law or a good faith argument for the

extension, modification, or reversal of existing law, or (3)

interposed for any improper purpose such as harassment or delay.”

Westmoreland v. CBS Inc.,

(D.C. Cir. 1985).

The court is expected to avoid using the wisdom of hindsight and should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was

15 submitted. Thus, what constitutes a reasonable inquiry may depend on . . . whether the pleading, motion, or other paper was based on a plausible view of the law . . . .

Fed. R. Civ. P. 11 Advisory Committee’s Notes to 1983 Amendment.

“Rule 11 . . . imposes an objective standard of reasonable

inquiry which does not mandate a finding of bad faith.”

Chambers,

. Finally, the Court has “discretion to

determine both whether a Rule 11 violation has occurred and what

sanctions should be imposed if there has been a violation.”

Cobell v. Norton,

(D.D.C. 2002) (internal

quotation marks and citation omitted).

In response to the Court’s Minute Order of July 29, 2019,

Plaintiffs’ counsel, Daniel Wemhoff (“Mr. Wemhoff”), submitted a

declaration in which he avers that:

[N]one of the filing and re-filings I have made on behalf of my clients, in the above styled case over the past 8 years, has been fanciful, revengeful or designed to waste court resources, but always in the belief that personal and subject matter jurisdiction is available under this incredibly murky statute (the FSIA) now that personal jurisdiction was ordered leading to subject matter jurisdiction under Law of the Case established in the second re-filing in Maryland. Particularly, this re-filing comes after the Second Circuit’s unpublished “Summary Order”, which it claims “does not have precedential effect” and is “without prejudice” on jurisdictional grounds.

Pls.’ Opp’n, ECF No. 18 at 6. Mr. Wemhoff further argues that

the legislative history of the FSIA indicates that Congress

16 intended to provide plaintiffs with access to the courts.

Finally, Mr. Wemhoff argues that he believes “this case to be

one of first impression as it depends exclusively on a unique

‘state’ law, the District of Columbia’s ‘Strict Liability Act’

(SLA), which if interpreted correctly, exposes Romarm to civil

liability.”

.

In its reply brief, Romarm argues that “Plaintiffs’

counsel’s conduct has demonstrated that the lawsuit was filed in

bad faith and without any legitimate basis [because it] is

axiomatic that, to sustain a civil lawsuit, both personal

jurisdiction and subject matter jurisdiction elements must be

met,” and Plaintiffs have been told by several district courts

and courts of appeal that they have not met that burden. Def.’s

Reply, ECF No. 19 at 9.

Here, the question is whether the Complaint is based on a

plausible view of the law. See Fed. R. Civ. P. 11 Advisory

Committee’s Notes to 1983 Amendment. As an initial matter, and

as noted above, the Complaint is devoid of factual allegations

and legal claims. As the facts and legal claims are identical to

those in the appeal before the Second Circuit, the Court has

determined that Plaintiffs’ claims should be dismissed on

collateral estoppel grounds.

Although his arguments are not entirely clear, Mr. Wemhoff

contends that his filings do not merit sanctions for several

17 reasons. See Pls.’ Opp’n, ECF No. 18 at 4-9. First, Mr. Wemhoff

argues that “personal jurisdiction was ordered” by the Maryland

District Court, was assumed by the Vermont District Court, and

therefore personal jurisdiction became the “law of the case.”

Pls.’ Opp’n, ECF No. 18 at 6-8. Mr. Wemhoff misunderstands the

rulings of the Maryland District and Vermont District Courts.

The Maryland District Court transferred the case to Vermont

after concluding that the case could have been brought in

Vermont, see Williams VI,

, at *2, but the Vermont

District Court decided the case on subject matter jurisdiction

grounds without reaching personal jurisdiction, see Williams IV,

, at *6. In any event, Plaintiffs’ counsel

provides no legal authority for why, even if the Vermont

District Court could exercise personal jurisdiction over Romarm

in Vermont, this Court can exercise personal jurisdiction over

Romarm in the District of Columbia in view of this Court’s

dismissal of these same claims for lack of personal jurisdiction

and the D.C. Circuit’s affirmation of that dismissal.

Mr. Wemhoff relies on U.S. Fidelity and Guaranty Co. v.

Braspetro Oil Services, Co.,

(2d Cir. 1999) to

support his argument that filing this action in the District of

Columbia is proper because personal jurisdiction and subject

matter jurisdiction are “inextricably intertwined” in FSIA

cases. Pls.’ Opp’n, ECF No. 18 at 22. In Braspetro, the district 18 court denied the defendant’s motion to dismiss for lack of

subject matter jurisdiction and lack of personal jurisdiction

under FSIA and the defendant sought interlocutory review of that

decision. See

. To exercise pendent jurisdiction

over the defendant’s personal jurisdiction argument, the Second

Circuit needed to determine whether, pursuant to Second Circuit

precedent, that argument was “inextricably intertwined” with the

defendant’s subject matter jurisdiction argument, and the Court

determined that it was.

. Accordingly, this case

provides no support for counsel’s argument that this case is

properly refiled in the District of Columbia.

Mr. Wemhoff finds it significant that the Second Circuit’s

decision in Braspetro is without precedential effect, and that

it was “without prejudice.” Pls.’ Opp’n, ECF No. 18 at 21-22. But

the lack of precedential effect in Braspetro lends no support to

Mr. Wemhoff’s argument for refiling this action in this Court.

Braspetro does not provide any legal support for this Court to

exercise personal jurisdiction over Romarm.

Next, Mr. Wemhoff argues that Congress intended to provide

plaintiffs with access to the Courts with the enactment of FSIA,

but he provides no new legal support or factual assertions to

meet his burden of establishing that this Court has personal

jurisdiction over Romarm. Finally, even if this is a case of

19 first impression under the SLA, Mr. Wemhoff again provides no

new legal support or factual assertions to support personal

jurisdiction over Romarm. Thus, at the time Plaintiffs’ counsel

filed the Complaint in this case, it was not reasonable for him

to believe that the Complaint was based on a plausible view of

the law. Accordingly, it is appropriate for the Court to impose

sanctions. See Del Canto v. ITT Sheraton Corp.,

(D.D.C. 1994) (noting that “it is without doubt

appropriate to impose some sanction under Rule 11 in order to

deter repetition of the unacceptable conduct of counsel and

‘comparable conduct by others similarly situated.’” (quoting

Fed. R. Civ. P. 11(c)(2))).

Given that the Court has determined that Rule 11 sanctions

are appropriate, the question becomes what sanction is

appropriate. Romarm seeks costs, expenses, and attorney’s fees

associated with the filing of the Motion to Dismiss. Def.’s

Mot., ECF No. 9 at 22. Rule 11(c) provides that a court may

impose sanctions in response to a motion pursuant to Rule

11(c)(1)(A), or on its own initiative pursuant to Rule

11(c)(1)(B), but limits the types of sanctions that may be

imposed:

A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a 20 penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.

Fed. R. Civ. P. 11(c). Although the D.C. Circuit has not

addressed this aspect of Rule 11, the Second Circuit has

interpreted “[t]he rule [to] preclude[] a court from awarding

attorneys’ fees on its own initiative.” Nuwesra v. Merrill Lynch

Fenner and Smith Inc.,

(2d Cir. 1999) (citing

Advisory Committee's Notes to 1993 Amendment (“a monetary

sanction imposed after a court-initiated show cause order [is]

limited to a penalty payable to the court.”)).

Here, Romarm did not file a Rule 11 motion despite having

notified Plaintiffs’ counsel on May 19, 2019 that it intended to

do so. Ex. G to Def.’s Mot., ECF No. 9-7 at 4. Accordingly, the

Court is without authority to award attorneys’ fees and other

expenses. See Nuwesra, 178 F.3d at 95.

Rule 11 provides that “[a] sanction imposed under this rule

must be limited to what suffices to deter repetition of the

conduct or comparable conduct by others similarly situated” and

that the sanction may include “an order to pay a penalty into

court.” Fed. R. Civ. P. 11(c)(4). The Court is cognizant of Mr.

Wemhoff’s duty to zealously represent his clients, but he is

also bound by Rule 11 to ensure that his filings with the Court

21 are based on a plausible view of the law so that the Court and

counsel are not subjected to needless litigation costs. See

Westmoreland,

(“Rule 11 is specifically

designed to deter groundless litigation tactics and stem

needless litigation costs to court and counsel.”). Accordingly,

the Court has determined in its discretion that Mr. Wemhoff

shall pay to the Clerk of the Court a $1,000 penalty. The Court

finds that this sanction is “not more severe than reasonably

necessary to deter repetition of the conduct by the offending

person or comparable conduct by similarly situated persons.”

Fed. R. Civ. P. 11 Advisory Committee's Notes to 1993 Amendment;

see also Reynolds v. United States Capitol Police Board,

, 27 (D.D.C. 2004) (ordering $1,000 penalty to be paid

to the Clerk of Court for continuing legal education); see also

Del Canto,

(ordering $500 penalty to be paid

to the registry of the court “to be used as scholarships for

continuing education courses on Rule 11 to be paid equally to

two young lawyers with five to ten years of experience in

litigating for individuals on a contingent fee basis, in order

to educate them and thereby deter the conduct of at least two

lawyers from Rule 11 violations”).

22 Finally, the Court notes that Mr. Wemhoff3 has a history of

violating the rules of this Court. When initially filing this

action, Mr. Wemhoff was not a member in good standing in this

Court, pursuant to Local Civil Rule (“LCR”) 44.1(a) because he

had not paid his renewal fee as required under LCR 83.9(a). In

addition, Mr. Wemhoff’s initial filing was labeled “SECOND

AMENDED COMPLAINT,” see Amended Compl., ECF No. 1, and had

attached as his Memorandum in Support, a document titled

“PLAINTIFFS' AMENDED COMPLAINT PURSUANT TO FRCP RULE 15 (a)(2)

and (c)” which had apparently been filed in the Maryland

District Court. See Am. Compl., ECF No. 1-3. Mr. Wemhoff

eventually came into compliance with LCR 83.9(a) by paying his

renewal fee and refiling his initial filing with a corrected

title, “Complaint.” See Compl., ECF No. 2. However, in both his

initial filing and corrected filing, Mr. Wemhoff failed to

comply with LCR 40.5(b)(4) because he identifies Williams V, as

decided in the Second Circuit, as the only related case. See

Notice, ECF No. 1-4; see also Notice, ECF No. 4. Mr. Wemhoff

also failed to comply with this rule in 2012 by failing to

3 The Court takes notice that, in 2016, the District of Columbia Court of Appeals found that Mr. Wemhoff violated District of Columbia Rules of Professional Conduct 1.6(a) (revealing a client confidence or secret without authorization or other justification), 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal), and 8.4(d) (engaging in conduct that seriously interferes with the administration of justice). In re Wemhoff,

(D.C. 2016). 23 notify this Court of a related case then pending before Judge

Amy Berman Jackson, see Civil Action No. 11-1924, when he filed

the same complaint in Civil Action No. 12-436, which was

assigned to this Court. Having found that Mr. Wemhoff violated

Local Civil Rule 40.5(b)(4) multiple times, this Court will

refer Mr. Wemhoff to the District of Columbia Bar Disciplinary

Counsel and to the United States District Court for the District

of Columbia Committee on Grievances.

III. Conclusion

For the reasons set forth above, the Court GRANTS IN PART

and DENIES IN PART Romarm’s Motion to Dismiss and dismisses

Plaintiff’s Complaint in its entirety.

Because it was not reasonable for Plaintiffs’ counsel to

believe that the Complaint was based on a plausible view of the

law, the Court imposes sanctions against Mr. Wemhoff in the form

of a $1,000 penalty to be paid to the Clerk of Court.

A separate Order accompany this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge April 1, 2020

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