Case 2:20-cv-13134-LVP-RSW ECF No. 120, PageID.

4995 Filed 04/23/21 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TIMOTHY KING, MARIAN SHERIDAN,

JOHN HAGGARD, CHARLES RITCHARD,
JAMES HOOPER, DAREN RUBINGH,
Plaintiffs, No. 2:20-cv-13134
v. Hon. Linda v. Parker
Mag. R. Steven Whalen
GRETCHEN WHITMER, in her
official capacity as the Governor of the
State of Michigan, JOCELYN
BENSON, in her official capacity as
Michigan Secretary of State and the
Michigan BOARD OF STATE
CANVASSERS,
Defendants,
and

CITY OF DETROIT, DEMOCRATIC

NATIONAL COMMITTEE and
MICHIGAN DEMOCRATIC PARTY,
Intervenor-Defendants.

Stefanie Lambert Junttila (P71303)

Attorney for Plaintiffs
500 Griswold Street, Suite 2340
Detroit, MI 48226
(313) 963-4740
attorneystefanielambert@gmail.com

Scott Hagerstrom (P57885)

Attorney for Plaintiffs
222 West Genesee
Lansing, MI 48933
(517) 763-7499
scotthagerstrom@yahoo.com
Case 2:20-cv-13134-LVP-RSW ECF No. 120, PageID.4996 Filed 04/23/21 Page 2 of 16

Gregory J. Rohl (P39185)

Attorney for Plaintiffs
41850 West 11 Mile Road, Suite 110
Novi, Michigan 48375
(248) 380-9404
gregoryrohl@yahoo.com

Heather S. Meingast (P55439)

Erik A. Grill (P64713(
Assistant Attorneys General
Attorneys for Defendants
PO Box 30736
Lansing, Michigan 48909
(517) 335-7659
meingasth@michigan.gov
grille@michigan.gov

David Fink (P28235)

Attorney for Intervenor City of Detroit
38500 Woodward Avenue, Suite 350
Bloomfield Hills, Michigan 48304
(248) 971-2500
dfrink@finkbressack.com

Mary Ellen Gurewitz (P25724)

Attorney for Intervenor DNC/MDP
423 North Main Street, Suite 200
Royal Oak, Michigan 48067
(313) 204-6979
maryellen@cummingslawpllc.com

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Case 2:20-cv-13134-LVP-RSW ECF No. 120, PageID.4997 Filed 04/23/21 Page 3 of 16

PLAINTIFFS' RESPONSE TO DEFENDANTS WHITMER AND BENSON'S

SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR SANCTIONS
UNDER 28 U.S.C. § 1927

Plaintiffs, Timothy King, Marian Sheridan, John Haggard, Charles Ritchard,

James Hooper, and Daren Rubingh ("Plaintiffs"), by and through their counsel, file

this their Response to Defendants Whitmer and Benson's Supplemental Brief in

Support of Motion for Sanctions under 28 U.S.C. § 1927.1

QUESTION PRESENTED

Whether sanctions can be imposed under Section 1927 for the mere filing of a

substantial complaint supported by sworn affidavits and in violation of the core of the

Constitution: the Right to Petition the government for grievance.

INTRODUCTION AND BACKGROUND

Defendants Whitmer and Benson have filed a supplemental brief in support of

their motion for sanctions under 28 U.S.C. § 1927. The purpose of their brief is to

direct this Court to a lawsuit filed the United States District Court, District of

1 State Defendants cite to NCMIC Ins. Co. v. Smith, 375 F. Supp. 3d 831, 836 (S.D.
Ohio 2019) to support their motion for leave to file a Supplemental brief. But that
case, however, makes clear that the standard for leave rests on the question of
prejudice. Id. Plaintiffs are the ones suffering prejudice from Defendants repeated
and dilatory filings asking for the imposition of sanctions and for disbarment of
plaintiffs' attorneys. As the Court knows from prior filings, Defendants have tried
their best to stir up public outrage against Plaintiffs through ad hoc press interviews
and press announcements where they maliciously accuse plaintiffs and their
attorneys of having blood on their hands for having caused the January 6 riots at the
Capitol. [ECF 112]. Indeed, the Attorney General's office put out a public statement
announcing the filing of this most recent Supplemental brief filled with the same
incendiary, self-promoting bluster as in previous announcements. See
https://www.michigan.gov/ag/0,4534,7-359-92297 47203-556385--,00.html. But
Plaintiffs were not given an opportunity to oppose Defendants' submission.
Defendants filed the Motion for Leave on April 6, 2021 and the Court granted the
Motion by text Order on April 9, 2021.

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Case 2:20-cv-13134-LVP-RSW ECF No. 120, PageID.4998 Filed 04/23/21 Page 4 of 16

Columbia, styled US Dominion, Inc. et al v. Powell, et al, 21-cv-00040-CJN (D.D.C.

2021) ("Dominion Action"). Defendants' argument is that a Sydney Powell "all but

admits that she and her co-counsel here have engaged in sanctionable conduct before

the court." Defendants' Brief, at 1. Defendants' new argument fails for the reasons set

forth in this brief.

On January 8, 2021, Dominion Voting Systems and its affiliates sued Sidney

Powell in federal court in the District of Columbia for defamation. But this was not

an isolated lawsuit. Dominion also sued Rudolph Guliani (Case No. 1:21-cv-00231)

and My Pillow and Michael J. Lindell (Case No. 1:21-cv-00445). Simultaneously with

the filing of each lawsuit, Domininon filed multiple "Notice of Designation of Related

Civil Cases Pending in this or other United States Court." Dominion wanted the court

and everyone else to know that each case was not mutually exclusive but were all

connected. Defendants in this case did not tell this Court about these related cases or

their impact in each other.

In its lawsuit against Ms. Powell, Dominion claimed that Ms. Powell made

false and defamatory statements about its voting machines and software used in the

2020 general election through a number of tweets and appearances on television and

radio, and at rallies and press conferences. (ECF 118-2, Exhibit B at p. 74-119.) Ms.

Powell moved to dismiss the complaint under FRCP 12(b)(6) arguing, among other

things, that she cannot be held liable for defamation because all her statements were

based on facts she had presented to courts around the country through sworn

affidavits, declarations, expert reports and documentary evidence. In her brief, Ms.

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Case 2:20-cv-13134-LVP-RSW ECF No. 120, PageID.4999 Filed 04/23/21 Page 5 of 16

Powell was making that point that as a matter of law, opinions are not statements of

fact. This is a simple concept that is part of well-developed federal jurisprudence.

Indeed, based on case law, Ms. Powell's statements are not legally considered "fact."

Rather, by placing her statements in the broad and specific context of political debate,

there are legally considered "opinion." "When 'the bases for . . . the conclusion are

fully disclosed, no reasonable reader would consider the term anything but the

opinion of the author drawn from the circumstances related.'" Biospherics, Inc. v.

Forbes, Inc. 151 F.3d 180, 185 (4th Cir. 1998) (quoting Chapin v. Knight-Ridder, Inc.,

993 F.3d 1087, 1093 (4th Cir. 1993)); see also Moldea v. N.Y. Times Co., 22 F.3d 310,

317 (D.C. Cir. 1994) ("Because the reader understands that such supported opinions

represent the writer's interpretation of the facts presented, and because the reader is

free to draw his or her own conclusions based upon those facts, this type of statement

is not actionable in defamation.")

The national media misunderstood this statement and widely panned it as "an

admission." Of course we should expect this from the media. However, the State

Defendants know better. Rather than accept the statement as a legal arguments –

for which it was intended in the context of a legal documents – the State Defendants

have now contrived a so-called "admission" from the Dominion brief that says Ms.

Powell concedes that her election fraud theories were not believable, or that she never

investigated the claims she brought in this court. In fact, the State Defendants

intentionally mislead this Court when they state:

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Case 2:20-cv-13134-LVP-RSW ECF No. 120, PageID.5000 Filed 04/23/21 Page 6 of 16

Addressing statements made by Plaintiffs in this action, Ms. Powell

concedes in the Dominion Action that "no reasonable person would
conclude that the statements were truly statements of fact."

The State Defendants' attorneys should know better; and indeed, should be

sanctioned for filing this frivolous brief based on the intentional misrepresentation of

a legal argument. As explained herein, the snippets of partial sentences and

paragraphs taken out of context by the State Defendants to sow a false narrative and

a phony argument do not support their frivolous motion for $11,000 in sanctions.

These State Defendants have actually engaged in the very same conduct they try to

condemn. They pathetically believe that such malicious and unethical conduct will

bolster their political careers. This Court should not be misguided by the State

Defendants' continued frenzy of frivolous and repetitive filings, even though, sadly

enough, they are brought by the highest officers in the state.

ARGUMENT

The Dominion Action involves claims of defamation and deceptive trade

practices – claims entirely separate, on law and on the facts, from the matter before

this Court. (ECF 118-2, Exhibit B at pp. 74-124.) Dominion alleges that Ms. Powell

made false and defamatory statements through a number of tweets and appearances

on television and radio, and at rallies and press conferences. (ECF 118-2, Exhibit B

at p. 74-119.) Ms. Powell responded with a Memorandum of Law in Support of

Defendants' Motion to Dismiss (hereinafter referred to as the "Memorandum"),

under, among other things, FRCP 12(b)(6), which discussed Dominion's failure to

state a claim because the offensive statements attributable to Ms. Powell alleged in

Dominion's complaint are constitutionally protected and not actionable. (See ECF

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118-2, Exhibit A.) Similar motions were filed in the related actions by My Pillow,

Michael J. Lindell, and Rudolph Guiliani, which also point of the reasons why

Dominion's collective lawsuits will be dismissed. See Exhibits C and D.

Defendants misrepresent the arguments of Ms. Powell's counsel in the

Memorandum, stating that in "discussing statements that form the very foundation

of this action, she admits that 'no reasonable person would conclude that the

statements were truly statements of fact.'" (ECF 118-2 at p. 6.) Using this out of

context snippet, Defendants attempt to link Ms. Powell's legal arguments on a Rule

12(b)(6) motion to a defamation claim in a case pending in the United States District

Court for the District of Columbia, to the frivolous sanctions motion filed against her

here under § 1927. This is nonsense.

The Dominion Memorandum's explanation that "no reasonable person would

conclude that the statements were truly statements of fact" was not an admission

that the complaint filed in this court was not based on facts. A simple reading of the

full context of the brief demonstrates nothing of the sort. Specifically, the statement

was made as part of a full discussion of how, under applicable Colorado law (Dominion

is a Colorado company), Powell's statements would not be actionable for defamation

because she disclosed the underlying facts supporting her statements and

her statements were legally opinion.

The Memorandum first sets out a general discussion of the applicable

defamation law. There, the Memorandum cites the two-step test set down by the

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Case 2:20-cv-13134-LVP-RSW ECF No. 120, PageID.5002 Filed 04/23/21 Page 8 of 16

Colorado Supreme Court in Keohane v. Stewart, 882 P.2d 1293 (Colo. 1994) for how

to determine whether statements are actionable for defamation:

In Keohane, the Colorado Supreme Court identified a two-step inquiry

to determine whether a statement is protected. The first is whether the
statement is "sufficiently factual to be susceptible of being proved true
or false." Id. (quoting Milkovich, 497 U.S. at 20). The second is whether
"reasonable people" would conclude that the assertion is one of
fact. Id. . . .

Of particular importance in evaluating the actionability of a

statement is whether the underlying facts on which it is based
have been disclosed. In NBC Subsidiary, decided the same day as
Keohane, the Colorado Supreme Court applied this test in determining
that two broadcasts stating that the plaintiff's living-will package was a
"scam," and that plaintiff's customers had been "totally taken" were not
actionable. 879 P.2d at 7-8. Discussing the United States Supreme
Court's decision in Milkovich, the Colorado Supreme Court noted that
the statements were based on facts disclosed during the broadcasts. The
Court thus concluded:

[Milkovich] unquestionably excludes from defamation liability

not only statements of rhetorical hyperbole – the type of speech
at issue in the Bressler-Letter Carriers-Falwell cases – but also
statements clearly recognizable as pure opinion because
their factual premises are revealed. Both type of assertions
have an identical impact on readers – neither reasonably
appearing factual – and hence are protected equally under the
principles espoused in Milkovich.

Id. at 12 (brackets in original) (citing Phantom Touring, Inc. v. Affiliated

Publications, 953 F.2d 724, 731 n.13 (1st Cir. 1992)).

This makes sense, because "when a defendant provides the facts

underlying the challenged statements, it is 'clear that the
challenged statements represent his own interpretation of those
facts,' which 'leav[es] the reader free to draw his own
conclusions.'" Bauman v. Butowsky, 377 F. Supp. 3d 1, 11 at n. 7
(D.D.C. 2019) (quoting Adelson v. Harris, 973 F. Supp. 2d 467, 490
(S.D.N.Y. 2013), aff'd 774 F.3d 803 (2d Cir. 2014)). "When 'the bases
for … the conclusion are fully disclosed, no reasonable reader
would consider the term anything but the opinion of the author
drawn from the circumstances related.'" Biospherics, Inc. v. Forbes,
Inc. 151 F.3d 180, 185 (4th Cir. 1998) (quoting Chapin v. Knight-Ridder,

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Case 2:20-cv-13134-LVP-RSW ECF No. 120, PageID.5003 Filed 04/23/21 Page 9 of 16

Inc., 993 F.3d 1087, 1093 (4th Cir. 1993)); see also Moldea v. N.Y. Times
Co., 22 F.3d 310, 317 (D.C. Cir. 1994) ("Because the reader
understands that such supported opinions represent the writer's
interpretation of the facts presented, and because the reader is
free to draw his or her own conclusions based upon those facts,
this type of statement is not actionable in defamation.") (quoting
Moldea v. New York Times Co., 15 F. 3d 1137, 1144-45 (D.C. Cir. 1994)).

Memorandum, pp 20-22 (ECF 118-2, Exhibit A pp 20-22.)

It is against this legal backdrop, that the Memorandum continued to make the

point that: "Given the highly charged and political context of the statements, it is

clear that Powell was describing the facts on which she based the lawsuits she filed

in support of President Trump." Memorandum at 32.

The Memorandum also focused on the First Amendment protections afforded

to Ms. Powell's statements. It elaborated on the Constitutional basis for public debate

on matters of public concern, arguing that Powell's claims were opinions and legal

theories of matters relating to a free and fair election, stating:

In short, the speech at issue here is not actionable. As political

speech, it lies at the core of First Amendment protection; such
speech must be "uninhibited, robust, and wide-open." N.Y. Times
Co., 376 U.S. at 270. Additionally, in light of all the circumstances
surrounding the statements, their context, and the availability of
the facts on which the statements were based, it was clear to
reasonable persons that Powell's claims were her opinions and
legal theories on a matter of utmost public concern. Those
members of the public who were interested in the controversy
were free to, and did, review that evidence and reached their own
conclusions—or awaited resolution of the matter by the courts
before making up their minds. Under these circumstances, the
statements are not actionable. Keohane, 882 P.2d at 1299; NBC
Subsidiary, 879 P.2d at 11, 12; Milkovich, 497 U.S. at 20.

(ECF 118-2, Exhibit A at p. 33.)

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Additionally, Ms. Powell's statements discussed in the Dominion

Memorandum were made as part of "the normal process of litigating issues of

momentous significance and immense public interest." (ECF 118-2, Exhibit A at p.

34.) As cited in the Memorandum, these are the very rights protected by the First

Amendment – and those that are applied with particular force where a party

"[r]esort[s] to the courts to seek vindication of constitutional rights" or "employs

constitutionally privileged means of expression to secure constitutionally guaranteed

civil rights." NAACP v. Button, 371 U.S. 415, 442-43 (1963).

Defendants' bad-faith arguments are further revealed in their effort to twist

the free speech arguments of Powell's counsel in the Dominion Action. Defendants

allege that Powell:

tacitly admits that neither she nor her co-counsel made any effort
to investigate the veracity they relied upon in bringing Plaintiffs'
claims, arguing that "[l]awyers involved in fast-moving litigation"
cannot be held to account for blindly relying on statements that
"turn out not to be true."

(ECF 118-2 at p. 7.)

This argument is false. The Memorandum never stated that lawyers cannot be

held to account. Instead, the Memorandum justifies lawyers being afforded the same

type of Constitutional protections as journalists, stating, "[l]awyers involved in fast-

moving litigation concerning matters of transcendent importance, who rely on sworn

declarations, are entitled to no less protection" than journalists. (ECF 118-2, Exhibit

A at p. 37.) The Memorandum further noted that that journalists – and thus lawyers

– who sometimes repeat statements from sources that "turn out not to be true," would

lose the protection afforded to them by the Supreme Court in N.Y. Times Co. v.

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Sullivan if they were "drawn into long court battles designed to deconstruct the

accuracy of sources on which they rely." (ECF 118-2, Exhibit A at pp. 36-37.)

Unable to argue the merits, Defendants would have this Court accept their

false premise that "Ms. Powell asserts that the First Amendment excuses her co-

counsel and her from having to investigate the veracity of the statements on which

she based Plaintiffs' claims in this case." (ECF 118-2 at p. 8.) This is a remarkably

inaccurate statement that tries to obscure the distinction between a defamation

defense and the standard for sanctions. Again, the Memorandum was making an

argument based on existing defamation law that Dominion's complaint was

insufficient because First Amendment protections are so robust that:

reckless conduct is not measured by whether a reasonably

product man would have published, or would have investigated
before publishing. There must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts
as to the truth of his publication.

(ECF 118-2, Exhibit A at p. 37, citing St. Amant v. Thompson, 397 U.S. 727, 731

(1968).)

In sum, there is no admission by Ms. Powell in the Dominion Action that the

facts presented to this Court were false or non-believable. There is no admission that

Ms. Powell failed to investigate the facts before bringing this case.

Defendants' tired and speculative assertions cannot form the basis of a 1927

motion. 28 USC § 1927 speaks to counsel that "multiplies the proceedings in any case

unreasonably and vexatiously."2 As set forth in plaintiffs' prior submissions, there is

2 Specifically, 28 USC § 1927 provides: "Any attorney or other person admitted to

conduct cases in any court of the United States or any Territory thereof who so

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no basis whatsoever to apply section 1927 here. This action was commenced by a

complaint filed on Wednesday evening November 25, 2020 [ECF 1], Thanksgiving

Eve, and amended on Sunday November 29, 2020 [ECF 6]. The case was effectively

ended by the court's decision on December 7, 2020 [ECF 62], which held, among other

things that plaintiffs lacked standing and hence this Court has no subject matter

jurisdiction. There simply is no way, under these undisputed facts, that counsel

multiplied the proceedings "unreasonably and vexatiously." None of the cases cited

by Defendants come within miles of imposing sanctions on the facts we have here.

Salkil v. Mount Sterling Twp. Police Dep't., 458 F.3d 520, 532 (6th Cir. 2006),

cited by Defendants, is inapposite. There, the Sixth Circuit in fact reversed an order

imposing sanctions under Rule 11 and § 1927. Salkil, 458 F.3d at 527. While it noted

that the district court's determination that the party lacked standing "was probably

correct," the Sixth Circuit observed that the standing issue "was not a proper basis

for Rule 11 sanctions" and that the attorney's failure to recognize the standing issue

"most certainly did not constitute egregious misconduct." Id. at 530, 532. Similarly,

Defendants also find no support in Jones v. Continental Corp., 789 F.2d 1225, 1232

(6th Cir. 1986). That court, while addressing a Rule 60(b) post trial motion, in fact

held that "an award of attorneys' fees against a losing plaintiff in a civil rights action

is an extreme sanction, and must be limited to truly egregious cases of misconduct."

Defendants further cite Shrock v. Altru Nurses Registry, 810 F.2d 658, 661-662

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."

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(7th Cir. 1987), which is inapplicable. That case involved a suit by a pro se plaintiff

who did not investigate the factual basis of his lawsuit and the Court found that the

fact that he was unrepresented did not excuse his failure to investigate. Shrock, 810

F.2d at 662. That is not the case here.

Plaintiffs submitted hundreds of pages of exhibits, scholarly articles,

government sources, Congressional statements and sworn declarations and affidavits

from both fact witnesses and experts in support of their claims. State Defendants

admittedly argued in the most recent motion for sanctions that while this case has

not required the filing of numerous pleadings by defense counsel, given the length

and complexity of Plaintiffs' filings, the novel claims and unprecedented relief

requested, the case has involved significant review, research, and drafting. (See ECF

105, p. 28).

A more recent Seventh Circuit decision affirmed a denial of sanctions

explaining that "[t]he federal courts have the inherent power to impose a wide range

of sanctions upon parties for abusive litigation. This inherent power, however, is

limited to "cases in which a litigant has engaged in bad-faith conduct or

willful disobedience of a court's orders." Id. at 799 (citing Chambers v. NASCO,

Inc., 501 U.S. 32, 47, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991); see also Mach v. Will

County Sheriff, 580 F.3d 495, 501 (7th Cir. 2009)), (emphasis added).

Further, the Sixth Circuit recently reiterated the high bar for imposing

sanctions under 28 U.S.C. § 1927 when it held:

In our view, sanctions should generally be reserved only for "truly

egregious cases of misconduct." (Williams v. Shelby Cnty. Sch. Sys., 815

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F. App'x 842, 846 (6th Cir. 2020) (quoting Ridder, 109 F.3d 288, 299 (6th
Cir. 1997)).

Saenz v. Kohl's Dep't Stores, Inc., 2020 FED App. 0618N (6th Cir. 2020), 2020 U.S.

App. LEXIS 34753, *11, 15, 2020 WL 6393335. The Sixth Circuit has also stated that

the test for whether sanctions should be imposed is whether the attorney's conduct

was objectively reasonable under the circumstances, which is a mixed question

of law and fact. Business Guides v Chromatic Communications Enterprises, Inc., 498

U.S. 533, 544 (1991); Mann v. G & G Manufacturing, Inc., 900 F.2d 953, 958 (6th Cir.

1990) (citations omitted). While the district court is given some discretion to

determine whether the conduct of the attorney was reasonable, the court "is expected

to avoid using the wisdom of hindsight and should test the signor's conduct by

inquiring what was reasonable to believe at the time the pleading, motion, or other

paper was submitted." Mann, Id. (citations omitted).

Moreover, the Supreme Court observed in considering a similar statute

providing for recovery of attorney's fees for frivolous claims:

[I]t is important that a district court resist the understandable

temptation to engage in post hoc reasoning by concluding that, because
a plaintiff did not ultimately prevail, his action must have been
unreasonable or without foundation. This kind of hindsight logic would
discourage all but the most airtight claims, for seldom can a prospective
plaintiff be sure of ultimate success.

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978).

State Defendants have not presented any admissible evidence to permit this

Court to conclude that any counsel in this case engaged in egregious misconduct.

They simply parrot newspaper articles, general statements from officials who did not

appear in this action and were not subject to cross-examination, and a general self-

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righteous indignation by the political left against anyone who would possibly

challenge the results of an election held in Michigan. Let us not forget that the State

of Texas, joined by 18 other state Attorney Generals, asked the United States

Supreme Court to throw out Michigan's 2020 election results because they were the

result of fraud. [ECF 93]. Clearly, the allegations set forth in the Complaint here were

not a singularly held belief by one set of attorneys, as the State Defendants would

have this Court believe.

CONCLUSION

Defendants' latest filing is not good-faith legal argument. It is political bluster

and a continued abuse of process. The State Defendants' motion for sanctions should

be denied.

Dated: April 23, 2021 /s/ Stefanie Lambert Juntilla

Stefanie Lambert Junttila (P71303)
Attorney for Plaintiffs
500 Griswold Street, Suite 2340
Detroit, MI 48226
(313) 963-4740
attorneystefanielambert@gmail.com

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CERTIFICATE OF SERVICE

I hereby certify that on April 23, 2021, I electronically filed the foregoing
document with the Clerk of this Court using the ECF system, which will send
notification of such filing to all attorneys of record registered for electronic filing.
/s/ Stefanie Lambert Junttila
STEFANIE LAMBERT JUNTTILA
(P71303)
Attorney for the Plaintiffs
500 Griswold Street, Ste. 2340
Detroit, MI 48226
(313) 963-4740
attorneystefanielambert@gmail.com

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