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Mai v. Nine Line Apparel, Inc.

United States District Court, S.D. Georgia, Savannah Division

October 10, 2019

BRANDY MAI, Plaintiff,
NINE LINE APPAREL, INC., d/b/a Nine Line, a domestic profit corporation, Defendant.



         Before the Court is Defendant's Motion for Sanctions (Doc. 17), Plaintiffs Motion for Sanctions against Defendant (Doc. 22), Defendant's Motion to Seal (Doc. 14}, and Defendant's Motion to Withdraw its Motion to Seal (Doc. 18). For the following reasons, Defendant's Motion for Sanctions (Doc. 17) is GRANTED IN PART AND DENIED IN PART and Plaintiff's Motion for Sanctions Against Defendant (Doc. 22) is DENIED. Additionally, Defendant's Motion to Withdraw its Motion to Seal (Doc. 18) is GRANTED. As a result, Defendant's Motion to Seal (Doc. 14) is DISMISSED.


         Plaintiff Brandy Mai filed this action on November 27, 2018 alleging that she, a female disabled veteran, was subjected to discrimination based on her disability in violation of the Americans with Disability Act as Amended ("ADAA"), retaliation in violation of the ADAA, and discrimination based on her gender in violation of Title VII of the Civil Rights Act of 1964. (Doc. 1.) Defendant answered the complaint on December 27, 2018 (Doc. 6) and the case proceeded to discovery.

         On August 7, 2019, Defendant filed a Motion to Seal seeking an order permitting Defendant to file under seal a motion to enjoin extrajudicial statements. (Doc. 14 at 1.) In the Motion to Seal, Defendant stated that it was seeking the order so that it can "avoid further prejudicing the potential jury pool so that parties have an opportunity to fairly litigate this matter through the Court and not through public statements." (Id. at 2.) Defendant further stated that its contention in the motion to enjoin extrajudicial statements is that "Plaintiff is making public comments regarding this litigation for the express purpose of damaging the reputation of Defendant to the entire public, including any members of the public that would ultimately comprise a jury panel." (Id.) However, while the Motion to Seal was still pending, on August 23, 2019, Defendant filed its Motion for Sanctions (Doc. 17), contending that "[w]hile the Motion to Seal was pending but before the Court could rule, Plaintiff went to the media and sat for a television interview which was broadcast on WSAV and is still posted on WSAV's website and Facebook page." (Doc. 17 at 1.) Defendant requests that this Court sanction Plaintiff's conduct.

         Defendant argues that Plaintiff is attempting to litigate this action, not in the courtroom, but through "ginned-up media publicity designed to smear Nine Line and Capt. Merritt." (Id. at 2.) Specifically, Defendant states that Plaintiffs media campaign began after a failed mediation on June 24, 2019 and that, on July 24, 2019, a Nashville, Tennessee television station, Foxl7, published an article on its website regarding the case. (Id.) The article describes the lawsuit and recites allegations from the complaint. (Doc. 17, Attach. 2.) Plaintiff shared the Foxl7 article on her personal Facebook page with a comment stating "[t]his lawsuit began in 2016 and is still ongoing. It is just coming to light now with media coverage. Not included in the headline: the lawsuit also alleges disability discrimination, and I'm also a veteran." (Doc. 17, Attach. 3 at 1.) In one response to an individual commenting on her post, Plaintiff stated that no one knew about the case and that she "kept it quiet to protect the legal process so my PR background wouldn't get perceived as slander." (Id. at 2.) Plaintiff stated in response to a different comment that "I kept it quiet to protect the legal process and keep it unbiased" and, in response to a comment asking why she did not tell the commenter about the existence of the case, "I had my reasons, mostly to protect the case and prevent biases. Plus, it takes a long time for it to work its way through the legal system. Had it settled throughout that process with a gag order, I didn't want to be in violation of that." (Id. at 3.) After this first article and Facebook sharing post, Defendant filed its Motion to Seal on August 7, 2019.

         Defendant goes on to state that, on August 19, 2019, Savannah television station WSAV aired an interview with Plaintiff during which she discussed this action. (Doc. 17 at 3.) The interview and an accompanying article have been published by WSAV to its website and Facebook pages. (Id.; Doc. 17, Attach. 4 (WSAV s website); Doc. 17, Attach. 5 (WSAV's Facebook page).) In the article, Plaintiff states that she "was not a veteran that they helped," that Defendant "cited excessive phone use and lack of attendance as the reason" for her salary reduction and demotion, and stated that Merritt was the individual who informed her that she could not conduct interviews because they wanted a man to do them and then "proceeded to yell at me, get in my face threaten me, said he just wanted to strangle me."[1] (Doc. 17, Attach. 4.) The post on WSAV's Facebook page received numerous comments, seemingly both in support of and in opposition to Plaintiffs position, and at the time the page was saved, the post had 452 comments and 98 shares. (Doc. 17, Attach. 5.)

         Plaintiff also shared this interview and article on her own Facebook page with the caption of her post reading "Discrimination. Assault. Gag order motions. News interviews." (Doc. 17, Attach. 6.) Plaintiff's Facebook post, at the time Defendant saved the post, had 57 comments and 6 shares. (Id.) In response to a comment telling Plaintiff not to read the comments on the original post, Plaintiff replied "I'm a marketing and PR guru. Of course I'm reading them." (Id. at 2.) In another comment, an individual states that "Your story needs to be heard. If they weren't afraid of what will be found out, they wouldn't be trying to silence you." (Id.) In response, Plaintiff stated "I've waited in silence for years and haven't said a word, and I've only shared news articles that are public information." (Id.) Defendant also contends that Plaintiff has previously employed a similar tactic of exerting extrajudicial pressure on court proceedings in a child custody action that was before Judge Morse on the Chatham County Superior Court. (Id.) Defendant states that Plaintiff wrote an opinion piece published in Connect Savannah expressing her frustrations with Judge Morse and supporting an opposing candidate for the judicial seat. (Id.; Doc. 17, Attach. 7.)

         Defendant claims that the timing of the media attention is not accidental and follows a failed mediation and now a "pay me or else" type of strategy is being employed. (Doc. 17 at 4.) Defendant argues that this conduct should be sanctioned as Plaintiff is seeking to taint a potential jury pool and that the Court has inherent authority to sanction such conduct. Defendant requests complete dismissal of Plaintiff's case. (Doc. 17 at 10.) Plaintiff has responded in opposition to Defendant's motion for sanctions. (Doc. 19.)


         The Eleventh Circuit has recognized that" '[c]ourts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.'" Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1320 (11th Cir. 2002) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43, 501 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991)). "This power 'must be exercised with restraint and discretion' and used 'to fashion an appropriate sanction for conduct which abuses the judicial process.'" Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017) (quoting Chambers, 501 U.S. at 44-45, 111 S.Ct. at 2132-33). "A court may exercise this power to sanction the willful disobedience of a court order, and to sanction a party who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Id. (internal citations and quotation marks omitted).

         The key element to unlocking the court's inherent ability to sanction is a finding of bad faith. Id. "The inherent-powers standard is a subjective bad-faith standard." Id. Examples of conduct rising to the level of bad faith include knowingly or recklessly making a frivolous argument, arguing a meritorious claim simply to harass an opponent, delaying or disrupting the litigation, and hampering the enforcement of a court order. Thomas, 293 F.3d at 1320 (quoting Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998)}. In addition, the Court's imposition of any sanction must comport with due process by providing the individual subject to possible sanction with proper notice and an opportunity to be heard. Id. at 1320-21; In re Mroz, 65 F.3d 1567, 1575-76 (11th Cir. 1995). Notice can come from the party seeking sanctions, from the court, or from both, and the accused must be given an opportunity to respond to the invocation of such sanctions and to justify his actions. In re Mroz, 65 F.3d at 1575-76. "In assessing whether a party should be sanctioned, a court examines the wrongdoing in the context of the case, including the culpability of other parties." Purchasing Power, 851 F.3d at 1225.


         I. DEFENDANT'S ...

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