UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MARINA MGMT SVC INC

v.

VESSEL MY GIRLS


99-7017a

D.C. Cir. 2000


*	*	*


Rogers, Circuit Judge: In this appeal and cross appeal  from the grant
of summary judgment to Marina Management  Services, Inc., and the
dismissal of John N. Singleton's coun- terclaims, we confront a
long-pending dispute arising from  efforts to collect money due by
Singleton for the lease of a  boat slip in the James Creek Marina in
the Southwest  quadrant of the District of Columbia. Regrettably,
various  settlement efforts did not succeed, and our review results in
a  remand of the case to the district court. The district court 
previously addressed Singleton's contention that the original 
plaintiff, James Creek Marina, was not the real party in  interest
under Fed. R. Civ. P. 17(a). James Creek Marina v.  Vessel My Girls,
964 F. Supp. 20, 21 (D.D.C. 1997). Notwith- standing the filing of an
amended complaint with a new  plaintiff, Rule 17(a) concerns remain
because the record does  not indicate that the new plaintiff--"Marina
Management  Services, Inc., as agent for MIF Realty, LP"--is the real 
party in interest or authorized to sue on behalf of the real  party in
interest; hence the district court erred in dismissing  Singleton's
motion to dismiss the amended complaint under  Rule 17(a). In
addition, the district court's finding of a bad  faith
misrepresentation by Marina Management is unsupport- ed by evidence
sufficient for imposition of a sanction of a  $20,000.00 reduction in
the attorneys' fee award. According- ly, although the district court
did not err in finding that  Singleton's contract extended beyond June
1996, or abuse its  discretion in dismissing Singleton's


I.


John N. Singleton entered into an Annual Boat Storage  License
Agreement ("License Agreement") to lease a slip for 


his boat at the James Creek Marina. The License Agree- ment, which was
signed by Singleton and the manager of the  James Creek Marina, was
for the period April 1, 1994 to  March 31, 1995, and was extended by
the parties. Under the  License Agreement, Singleton, the Licensee,
agreed to make  monthly payments of $181.50 for the boat slip, and by
the  terms of s 19, upon 15 days' delinquency of a monthly 
installment, he would become, at the Licensor's option, "sub- ject to
a day-to-day license at the Transient (Daily) Rate  posted in the
Marina's offices, with such changes to take  effect automatically and
without further notice to Licensee."  The transient rate charges were
substantially higher than the  monthly payment.1 It is undisputed that
Singleton became  delinquent in paying his slip fees as early as


On March 3, 1997, the James Creek Marina filed a verified  complaint
under 46 U.S.C. s 31342(a)3 for a lien against  Singleton's boat and a
money judgment of $26,015.67, plus  future daily lease charges, marina
fees, legal fees, and costs.  Exhibit C to the complaint reflected as
of February 28, 1997,  


__________

n 1 The transient rate is $0.75 per foot per day; because Single- ton's
boat is 34 feet long, his transient rate was $25.50 per day.


2 Marina Management received payments from Singleton of  $181.50 on
April 16, 1994, and $800.00 on August 22, 1995. Howev- er, Marina
Management asserts that when the latter payment was  made, Singleton
was already in arrears of $3,989.17, and because his  one-year
prepayment was put on an invalid MasterCard account, he  was
"effectively in default from the first day of the [License] 
Agreement," thus making transient rates applicable as of April 1, 


3 Section 31342(a) provides, in relevant part:


(a) ... a person providing necessaries to a vessel on the order  of the
owner or a person authorized by the owner--


(1) has a maritime lien on the vessel;


(2) may bring a civil action in rem to enforce the lien; and


(3) is not required to allege or prove in the action that credit  was
given to the vessel.  46 U.S.C. s 31342(a) (1999).


both past due monthly slip fees and transient rate charges.  By ex
parte order, the district court directed the arrest of  Singleton's
boat. After a hearing, the court set the bond at  $20,542.67 (plus 12%
for interest and court costs), "based only  upon the unpaid monthly
fees and subsequent unpaid tran- sient fees." When the district court
became aware that  Exhibit C did not reflect the invoices that the
marina had  actually sent to Singleton before the lawsuit was filed,
the  court reduced the bond to $6,728.17 (plus 12% for interest and 
court costs) and reduced the attorneys' fee award under the  License
Agreement by $20,000.00 as a sanction against Mari- na Management for
having mislead the court. In the mean- time, Singleton filed five
counterclaims, which the district  court dismissed as harassing and
designed to delay resolution  of the litigation.


We address in Part II, the real party in interest claim and  the
contract issues, in Part III, the sanction for misleading  the court,
and in Part IV, the dismissal of Singleton's counter- claims.


II.


Following the district court's ruling that the James Creek  Marina was
not the real party in interest under Fed. R. Civ.  P. 17(a),4 see
James Creek Marina, 964 F. Supp. at 22, an 




__________

n 4 Rule 17(a) provides that:


Every action shall be prosecuted in the name of the real  party in
interest. An executor, administrator, guardian, bailee,  trustee of an
express trust, a party with whom or in whose  name a contract has been
made for the benefit of another, or a  party authorized by statute may
sue in that person's own name  without joining the party for whose
benefit the action is  brought; and when a statute of the United
States so provides,  an action for the use or benefit of another shall
be brought in  the name of the United States. No action shall be
dismissed  on the ground that it is not prosecuted in the name of the
real  party in interest until a reasonable time has been allowed after
 objection for ratification of commencement of the action by, or 


amended verified complaint was filed in which the plaintiff  was
identified as "Marina Management Services, Inc., as  agent for MIF
Realty, L.P., d/b/a James Creek Marina."  Singleton renewed his motion
to dismiss the complaint on  several grounds. The district court
denied the motion by  summary order. On cross appeal, Singleton
contends that  the district court erred in denying his motion and in
granting  summary judgment to Marina Management on the debt be- cause
an agent cannot sue for a disclosed principal, and there  is no
evidence that MIF Realty, LP had acquired the contract  rights between
Singleton and the James Creek Marina for  any preexisting debt, or
that there was an outstanding con- tract after June 1996.


A.


Rule 17(a) protects a defendant against a subsequent claim  for the
same debt underlying a previously entered judgment.  See, e.g., United
Fed'n of Postal Clerks, AFL-CIO v. Watson,  409 F.2d 462, 470-71 (D.C.
Cir. 1969). That understanding  was reflected in the district court's
opinion addressing Single- ton's motion to dismiss the original
complaint under Rule  17(a). See James Creek Marina, 964 F. Supp. at
22. Al- though there is a lack of consensus in the case law regarding 
whether an "agent" authorized to sue based solely on a power  of
attorney is a real party in interest under Rule 17(a),5 the 




__________

n joinder or substitution of, the real party in interest; and such 
ratification, joinder, or substitution shall have the same effect  as
if the action had been commenced in the name of the real  party in
interest.


Fed. R. Civ. P. 17(a).


5 Compare Advanced Magnetics, Inc. v. Bayfront Partners,  Inc., 106
F.3d 11, 17-18 (2d Cir. 1997); Airlines Reporting Corp. v.  S and N
Travel, Inc., 857 F. Supp. 1043, 1046-47 (E.D.N.Y. 1994)  (Weinstein,
J.) (citing Titus v. Wallick, 306 U.S. 282 (1939)); Corpo- ration of
the President of the Church of Jesus Christ of Latter Day  Saints v.
Envtl. Protection Comm'n of Hillsborough County, 837  F. Supp. 413,
415 (M.D. Fla. 1993); Mitsui & Co. (USA), Inc. v.  Puerto Rico Water
Resources Auth., 528 F. Supp. 768, 776 (D.P.R. 1981).


operative question is whether the plaintiff "possesses the  right to be
enforced." Best v. Kelly, 39 F.3d 328, 329 (D.C.  Cir. 1994) (quoting
Charles A. Wright, Law of Federal Courts  490 (1954)); see also Joyner
v. F & B Enterprises, Inc., 448  F.2d 1185, 1186 (D.C. Cir. 1971); 6A
Wright, Miller, and  Kane, Fed. Prac. and Proc. Civ.2d ss 1545,
1553.


As the caption of the amended complaint and the record  appears to
show, the stakeholder vis-a-vis Singleton's boat  slip debt is MIF
Realty, LP.6 Marina Management purports  only to be acting as an agent
for MIF Realty, LP, which as  principal allegedly "possesses the right
to be enforced."  Best, 39 F.3d at 329. Assuming MIF Realty, LP is the
 stakeholder for Singleton's debt, there is nothing in the  record to
show that Marina Management is authorized to  prosecute the instant
lawsuit. Under the terms of a 1997  operating agreement, MIF Realty,
LP authorized Marina  Management to enforce license obligations of
James Creek  Marina tenants and "at the direction of Owner take such 
actions as may be necessary to effectuate Owner's rights  under any
such license agreement." The operating agree- ment further provides
that "[o]perator acknowledges that,  except as otherwise expressly
provided for herein, the initi- ation and prosecution of lawsuits
shall require the prior 




__________

n 6 Exhibit D to Marina Management's opposition to the motion  to
dismiss states the following: in 1988, the National Park Service, 
which owns the James Creek Marina, and Marine Management,  Inc.,
entered into a concession agreement that was later assigned to 
Washington, D.C. Associates ("WDCA"). Following a number of 
assignments of interest in the concession agreement, and due to the 
later bankruptcy of WDCA, MIF Realty, LP acquired the conces- sion
rights to the James Creek Marina in September 1996. See  infra n.7.
MIF Realty, LP engaged Westrec Marina Management  to operate the
marina. In February 1997, MIF Realty, LP termi- nated Westrec and
hired Marina Management Services, Inc. to  operate the marina.


written consent of Owner...." Id. p 2.5. The record pro- vides no
evidence of written consent by MIF Realty, LP for  Marina Management
to sue Singleton for his boat slip debts.  Neither is there an
affidavit from MIF Realty, LP indicating  consent or ratification of
this lawsuit. See, e.g., Associated  Ins. Mgmt. Corp. v. Arkansas Gen.
Agency, Inc., 149 F.3d  794, 797 (8th Cir. 1998) (citing Fed. R. Civ.
P. 17(a)). Nor is  there a statement in the judgment of the district
court that  would protect Singleton against a subsequent claim by MIF 
Realty, LP for the debt that Marina Management seeks to  recover. Cf.
Watson, 409 F.2d at 470-71.


Accordingly, we reverse the denial of Singleton's motion to  dismiss
the amended complaint for noncompliance with Rule  17(a), and remand
the case to allow Marina Management to  supplement the record or file
a second amended complaint.


B.


Singleton also contends that the district court erred in  granting
summary judgment to Marina Management on the  debt because there is no
evidence that MIF Realty, LP had  acquired the contract rights for any
preexisting indebtedness  for the boat slip and no evidence of an
outstanding contract  between Singleton and the real party in interest
after the  License Agreement expired in June 1996. Marina Manage-
ment, in turn, contends that the district court erred in  denying its
claim for transient rate charges. Our review of  the grant of summary
judgment is de novo, viewing the  record in the light most favorable
to the nonmoving party to  determine whether there is a genuine issue
of material fact as  would make summary judgment inappropriate. See
Aka v.  Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) 


As to the past due slip fees, Singleton maintains that there  is no
evidence that either Marina Management or MIF  Realty, LP was the
party to whom he is indebted for the slip  fees, or that MIF Realty,
LP had acquired the past debts of  the James Creek Marina. In his
motion to dismiss the  amended complaint, Singleton argued that there
was no evi- dence that MIF Realty purchased debts owed Washington, 
D.C. Associates or that Washington D.C. Associates assigned 


MIF Realty, LP the rights in its contracts with Singleton. In  opposing
the motion, Marina Management submitted Exhibit  D purporting to list
the owners and managers of James  Creek Marina since September 1988.7
Further, Marina Man- agement recited its efforts to provide
Singleton's attorney  with direct access to documents and persons who
could  review the chain of ownership. Singleton, in his response, 
demanded proof that MIF Realty, LP "has the legal right to  any past
obligations and current obligations" of Singleton.


The district court made no express finding that MIF  Realty, LP had
acquired the marina's outstanding debts and  there are no documents in
the record to substantiate the  assertions in Exhibit D. While mere
allegations may be  sufficient to defeat a motion to dismiss, see
Hanson v. Hoff- mann, 628 F.2d 42, 43 (D.C. Cir. 1980); see also
Maljack  Prods., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995), summary 
judgment was inappropriate in the absence of proof that MIF  Realty,
LP has the right to recover debts incurred by Single- ton prior to
September 1996 when MIF Realty, LP obtained  the concession contract.
See Crawford v. Signet Bank, 179  F.3d 926, 928 (D.C. Cir. 1999).


Singleton's contention that a second material issue of dis- puted fact
involves whether the License Agreement was  extended beyond June 1996
fails, however. In the district 




__________

n 7 Exhibit D states the following: Home Savings Association of  Kansas
City, F.A. ("HSA"), which formerly held an interest in  WDCA's
concession contract with the National Park Service as  security for a
note it held on WDCA, was taken into receivership by  the Resolution
Trust Corporation ("RTC"). On April 16, 1993, all of  HSA's "rights in
the James Creek Marina interest" in the conces- sion contract were
assigned by the RTC to MIF Realty, LP. When  WDCA filed for bankruptcy
in June 1996, MIF Realty filed a Proof  of Claim, and "[p]ursuant to a
Joint Plan of Reorganization pro- posed by [WDCA] and MIF Realty, LP,
MIF Realty [was] given  ownership ... of inter alia, the James Creek
Marina interest" in  the concession contract on September 2, 1996.


court, Singleton's attorney advised the court that the parties  had
extended their agreement in June 1996. In granting  summary judgment
of $7,663.21 for Marina Management, the  district court apparently
relied on Singleton's attorney's oral  representation regarding the
continuing viability of the Li- censing Agreement after June 1996,
using Singleton's state- ment of February 26, 1997, listing the amount
of his debt.  Singleton's attorney informed this court at oral
argument that  he was mistaken in representing to the district court
that the  parties' agreement had been extended in June 1996. His 
change of position comes too late: having conceded the fact of 
extension in the district court, he cannot alter the record now.  See,
e.g., United States ex rel. Yesudian v. Howard Universi- ty, 153 F.3d
731, 748 (D.C. Cir. 1998) (citing Keller v. United  States, 58 F.3d
1194, 1198 n.8 (7th Cir. 1995)); United States  v. Ins. Co. of North
America, 83 F.3d 1507, 1510 n.6 (D.C.  Cir. 1996); McNamara v. Miller,
269 F.2d 511, 515 (D.C. Cir.  1959).


Nevertheless, because the record does not reflect a basis on  which to
conclude that MIF Realty, LP is entitled to recover  past-due amounts
from Singleton for use of the James Marina  Creek boat slip, we are
constrained to reverse the grant of  summary judgment. In addition, in
response to Marina  Management's contention that it was entitled to
recover  transient rate charges, the district court shall consider on 
remand whether the plain language of the License Agreement  entitles
recovery for the transient rate charges reflected in  Exhibit C.
Although the district court ruled that Marina  Management had failed
to exercise its option under s 19 of  the License Agreement because it
had not previously billed  Singleton at the transient rate, our
disposition of the sanction  based on Exhibit C to the complaint in
Part III warrants that  the district court consider anew the claim for
transient rate  charges based on the plain language of s 19 and the
unrefut- ed evidence that Singleton received oral notice.


III.


At the heart of Marina Management's appeal is its conten- tion that the
district court clearly erred in viewing Exhibit C  to the
complaint--the February 28, 1997, invoice--as a mis- representation,
and thus abused its discretion by imposing a  sanction of $20,000.8
Although our review under an abuse of  discretion standard is highly
deferential, see In re Holloway,  995 F.2d 1080, 1086 (D.C. Cir.
1993); Founding Church of  Scientology of Washington, D.C., Inc. v.
Webster, 802 F.2d  1448, 1457 (D.C. Cir. 1986), if the district
court's action is  based on a clearly erroneous finding of fact, that
action is an  abuse of discretion. See Cooter & Gell v. Hartmarx
Corp.,  496 U.S. 384, 405 (1990); F.J. Vollmer Co., Inc. v. Magaw, 
102 F.3d 591, 596 (D.C. Cir. 1996).


The verified complaint stated that under 46 U.S.C.  s 31342(a) and the
License Agreement, there was a valid  maritime lien against
Singleton's boat and an in personam  contractual claim against
Singleton for the unpaid costs of  "necessaries," totaling $26,015.67,
as of February 28, 1997,  plus $25.50 per day for each day thereafter,
plus fees, attor- neys fees, and costs. Attached to the complaint was
Exhibit  C, a copy of a February 28, 1997, invoice from the marina for
 $22,065.67 that was sent to Singleton. The invoice reflected 
eighteen monthly lump-sum charges for slip fees at the daily 
transient rate from October 1995 through March 1997. The  district
court issued an ex parte order for the arrest of  Singleton's boat on
March 5, 1997, and, thereafter, pursuant  to Admiralty Rule E(5)(a),




__________

n 8 In light of our disposition of the sanction, we need not address 
Singleton's contention that Marina Management's counsel, Lisa  Petti
Ellis, who also appeals the sanction, lacks standing to appeal 
because the sanction was imposed against the client and not its 
attorney. Cf. Ass'n of Am. Physicians and Surgeons v. Clinton,  187
F.3d 655, 660 n.4 (D.C. Cir. 1999).


security that Singleton would be required to post in order to  regain
possession of his boat was $20,542.67.9


Singleton moved for reconsideration of the bond amount,  arguing that,
contrary to the district court's finding, Singleton  had not been
billed in 1995 and thereafter for transient rate  charges, that
Exhibit C was prepared for purposes of the  litigation, and that his
"account history was altered to reflect  transient rates never charged
to the defendant." Because the  monthly invoices sent to Singleton did
not reflect transient  fees, Singleton's counsel maintained that
Marina Management  "clearly intended and did in fact mislead the
Court," and,  consequently, the bond calculated on the transient fees
was  not in an amount of Marina Management's claim " 'fairly  stated'
" under Rule E(5)(a). In response to the district  court's inquiry
whether the inclusion of the transient rate  charges shown in Exhibit
C represented double billing, Mari- na Management's attorney advised
that there was no double  billing because under the Licensing
Agreement, transient  charges, as reflected in Exhibit C, are over and
above the  monthly rate. When Singleton's attorney objected that impo-
sition of the transient rate charge was not in the contract and  was
not a "necessary" but "a big penalty," Marina Manage- ment's attorney
interjected that the transient rate was in the  License Agreement.


Agreeing with Singleton's assertions, the district court  reduced the
bond to $6,728.17, based largely on a February  26, 1997, statement
provided by Singleton showing the out- standing balance through March
1997 to be $5,936.17, and 




__________

n 9 The district court initially set the bond amount based on the 
monthly charge and transient rate charges over and above the  monthly
fees dating back to September 1995, and other miscellane- ous fees.
The monthly charge consisted of the $181.50 rate in the  Licensing
Agreement, which included a $16.50 credit contingent  upon Singleton's
prepaying the entire amount in advance; because  he did not prepay,
the monthly charge was $198.


$792.00 in monthly slip fees of $198.00 incurred thereafter.  After
issuing an order to show cause "as to why sanctions  should not be
levied against plaintiff and its counsel for  having misled the
Court," the district court reduced the  amount of attorney's fees to
be recovered by Marina Manage- ment by $20,000. The district court


The Court was misled by [Exhibit C] into believing that  transient fees
actually were levied and billed to [Single- ton] on the dates listed
in ... [E]xhibit [C]. In addition,  this was suggested, if not argued,
in papers filed with the  Court and during oral argument, and
therefore was  relied upon by the Court in calculating the amount of 
security.... [Marina Management] now admits that  transient fees were
never charged before the start of this  litigation.... The Court was
misled by the statement  [that Marina Management] provided with its
Verified  Complaint and the arguments presented to it.


On appeal, Marina Management contends that there is no  evidence of
intentional misrepresentation or violation of Fed.  R. Civ. P. 11,10
or any rule of professional conduct, inasmuch  as Exhibit C was a good
faith interpretation of the parties'  agreement. Maintaining that it
read the Licensing Agree-




__________

n 10 Rule 11(b) provides in pertinent part:


By presenting to the court ... a pleading ... or other paper,  an
attorney ... is certifying that to the best of the person's 
knowledge, information, and belief, formed after an inquiry 
reasonable under the circumstances,--


...


(2) the claims ... are warranted by existing law....;


(3) the allegations and other factual contentions have evidentia- ry
support....


Rule 11(c) provides for the imposition of sanctions for violation of 
subsection (b).


ment to allow retroactive assessment of transient rate  charges, and
that, even if it erred in its reading, there was  abundant evidence of
its good faith, Marina Management  relies on three facts in
particular. First, Singleton was  notified by letter terminating his
license effective January 31,  1997, that under District of Columbia
law he was at a  minimum a hold-over tenant and the marina could
charge the  transient rate for continued use and occupancy of the boat
 slip. Second, the affidavit of the marina dock master, Steve 
Wiltamuth, stated that Singleton was given "constant verbal  and oral
notice that transient fees were going to be assessed  against him if
he failed to pay his marina bill." Third, there  was other evidence
that the marina had notified Singleton  prior to assessing transient
fees that it was going to do so,  and that it notified Singleton's
attorney of previous invoices  that did not include transient rate
charges. In other words,  Marina Management maintains, the language of
the Licensing  Agreement, specifically s 19, authorized retroactive
transient  charges; Marina Management had exercised its option to 
impose such charges, giving Singleton notice beyond that  required by
s 19 itself; and Singleton's attorney could not  reasonably argue that
Exhibit C represented anything other  than Marina Management's
computation of its full claim in  admiralty under the parties'


Rule E for admiralty and maritime claims contemplates ex  parte
proceedings for the arrest of property based on the  filing of a
complaint. See Supp. R. Adm. E(2).11 Rule E(5)(a) 




__________

n Fed. R. Civ. P. 11 (1999).


11 Rule E(2)(a) provides:


In actions in which this rule is applicable the complaint shall  state
the circumstances from which the claim arises with such  particularity
that the defendant or claimant will be able, with- out moving for a
more definite statement, to commence an  investigation of the facts
and to frame a responsive pleading.


provides that unless a bond amount is agreed to by the  parties, "the
court shall fix the principal sum of the bond or  stipulation at an
amount sufficient to cover the amount of the  plaintiff's claim fairly
stated with accrued interest and costs;  but the principal sum shall
in no event exceed (i) twice the  amount of the plaintiff's claim or
(ii) the value of the property  on due appraisement, whichever is
smaller."12 A person  claiming interest in arrested property is
entitled to "a prompt  hearing at which the plaintiff shall be
required to show why  the arrest ... should not be vacated or other
relief grant- ed...." Supp. R. Adm. E(4)(f).


The record indicates that the district court's conclusion that  it was
misled was distinct from its concern about whether 




__________

n 12 Rule E(5)(a) on specific bonds provides that arrested proper- ty
may be released upon


the giving of security, to be approved by the court ... or by 
stipulation of the parties, conditioned to answer the judgment  of the
court or of any appellate court.... In the event of the  inability or
refusal of the parties so to stipulate the court shall  fix the
principal sum of the bond ... at an amount sufficient to  cover the
amount of the plaintiff's claim fairly stated with  accrued interests
and costs; but the principal sum shall in no  event exceed (i) twice
the amount of the plaintiff's claim or (ii)  the value of the property
on due appraisement, whichever is  smaller.


Rule E(5)(b) on general bonds provides that the owner:


may file a general bond or stipulation, with sufficient surety, to  be
approved by the court, conditioned to answer the judgment  of such
court in all or any actions that may be brought....


The rule further provides that "the execution of all such  process
against such vessel shall be stayed so long as the  amount secured by
such bond ... is at least double the  aggregate amount claimed by
plaintiffs in all actions ... in  which such vessel has been ...


there was double charging. Rather, that conclusion reflected  the
district court's view that it was led to understand that  Exhibit C
was a summary of the invoices that had actually  been sent to
Singleton while he had used a boat slip at the  James Creek Marina, or
as Singleton's attorney asserted,  Exhibit C purported to be the
marina's "account history" with  Singleton. Upon determining that
Singleton had not been  billed for transient rate charges prior to
February 28, 1997  (the date of the Exhibit C invoice), the district
court conclud- ed that Exhibit C not only misstated the amount that
Single- ton owed but was, in effect, intentionally designed to mislead
 the court. Even assuming no error in the district court's  ruling
that Marina Management misinterpreted its rights  under the License
Agreement, it does not necessarily follow  that Marina Management
acted in bad faith with respect to  what Exhibit C represented. See
Lipsig v. Nat'l Student  Mktg. Corp., 663 F.2d 178, 181 (D.C. Cir.


Viewed in the context of an admiralty proceeding, it was  incumbent on
Marina Management under Rule E to state the  amount of its claim with
particularity, indicating the basis for  arriving at that amount,
inasmuch as Singleton and the  marina could not agree on the amount of
the bond to be  posted to secure release of his boat. See Supp. R.
Adm.  E(2)(a), supra n.11. Our own experience during oral argu- ment
suggests that neither counsel may have been particular- ly helpful in
assisting the district court in understanding  Exhibit C's limited
purpose in support of the claimed lien.  Be that as it may, we still
do not find evidence of bad faith,  much less an intentional
misrepresentation, see United States  v. Wallace, 964 F.2d 1214, 1218
(D.C. Cir. 1992) (citing  Roadway Express Inc. v. Piper, 447 U.S. 752,
767 (1980)),  about what Exhibit C purported to show.


Exhibit C is clearly labeled and dated, and referenced in  the
complaint solely in connection with Marina Management's  statement of
its claim under 46 U.S.C. s 31342(a) and the 


Licensing Agreement. Exhibit A to the complaint referenced  Singleton's
ownership of the boat using the boat slip at the  James Creek Marina,
and Exhibit B to the complaint was the  Licensing Agreement dated
March 1, 1994. The four page  "Statement" in Exhibit C was addressed
to Singleton from  the marina and listed the charges, payments, and
balance due  as of each monthly payment date and the end of the month 
from March 1994 through February 1997.


Marina Management explained in its opposition to Single- ton's motion
to reconsider the bond amount that although, in  the interests of
trying to resolve this matter informally it had  not previously
charged Singleton the transient rate, it had not  waived its right to
the full amount negotiated in the Licensing  Agreement, which
provided, in s 19, that such rates may be  applied "at the Licensor's
option" and "without further notice  to Licensee." In Marina
Management's view, the transient  rates in the License Agreement
became part of the maritime  lien for "necessaries," citing Hudson
Harbor 79th Street Boat  Basin, Inc. v. Sea Casa, 469 F. Supp. 987,
1979 AMC 2401  (S.D.N.Y. 1979), inasmuch as s 20 of the License
Agreement  provided that the lien for necessaries shall include "all


Furthermore, Marina Management's conduct belies an in- tention to
mislead. First, the transcript13 reveals no affirma- tive misstatement
by Marina Management that Exhibit C was  Singleton's account history.
The district court was concerned 




__________

n 13 The only transcript in the record on appeal is for May 22,  1997,
where the district court first sought to determine whether the  case
could be settled. The court, having previously dismissed the  case on
April 30, 1997, and having learned that settlement efforts  were
unproductive, then responded to Singleton's request for re- lease of
his boat pursuant to Rule E(5)(a) & (b) and to Singleton's  motion to
dismiss for failure to comply with Rule 17(a).


about whether the Exhibit C invoice reflected double  charges--the
transient rate charge in addition to the monthly  fee--for the same
services. Marina Management's attorney  explained that "if the
transient rate is a dollar per foot per  day and the monthly fee is
$198, then obviously you subtract  that [$]198 from whatever the
dollar per foot per day is."  Thereafter, the district court
acknowledged that the amount  of the bond is tied to the amount of
Marina Management's  claim and determined "an appropriate bond ...
[based on]  what a 'necessary' is." The record on appeal reflects that
 Marina Management's attorney was not asked if, and did not  volunteer
that, Exhibit C was an account history.


Second, the record does not show that Marina Management  or its
attorney implied that Singleton had been billed for  transient rate
charges prior to February 1997. The undisput- ed facts that Marina
Management provided Singleton's attor- ney with copies of the invoices
sent to Singleton prior to  February 1997 and the commencement of the
instant litiga- tion, and that those invoices do not reflect transient
rate  charges, are inconsistent with an intent to create the impres-
sion that such charges had been part of the regular pre- litigation
billing history.


Third, to the extent that Exhibit C on its face could be  mistaken for
an account history, the mere appearance of  Exhibit C did not amount
to an affirmative misrepresentation  in view of Marina Management's
independent reason for  itemizing the amount it claimed was due and
owing under  Supp. R. Adm. E(2)(a), supra n.11. Cf. Wallace, 964 F.2d
at  1219-20 (quoting Restatement (Second) Torts s 500 cmt. g  (1964)).
While, as a matter of prudent legal practice, Marina  Management might
have better clarified precisely what Ex- hibit C represented, the
record does not support a finding of  a bad faith misrepresentation by
Marina Management or its  attorney that Singleton had been presented
with invoices for  transient rate charges prior to February 28,


Accordingly, in the absence of a factural basis for the  sanction we
remand the case so that the district court may  enter an order
vacating the sanction.14


IV.


On cross appeal, Singleton contends that the district court  erred in
sua sponte dismissing his counterclaims as mostly  frivolous and
designed primarily to harass and delay. Our  review is for abuse of
discretion, see Rafferty v. NYNEX  Corp., 60 F.3d 844, 851 (D.C. Cir.
1995) (citing Cooter & Gell  v. Hartmax Corp., 496 U.S. 384, 405
(1990)), and we find  none.


In his amended answer, Singleton counterclaimed for prop- erty damage
to the vessel and missing property (Counter- claim I), defamation
(Counterclaim II), intentional interfer- ence with prospective
contractual relations (Counterclaim  III), wrongful seizure of the
vessel (Counterclaim IV), and  abuse of process (Counterclaim V).
Singleton sought  $200,000.00 in damages, costs, and attorney's fees.
The dis- trict court observed in dismissing the counterclaims that:


[b]oth counsel have engaged in name-calling, personal  attacks and
petty arguments and have burdened the  Court with repetitions of
arguments already rejected.  Defense counsel has filed counterclaims
that appear friv- olous and designed primarily to harass and delay a
final  resolution of this case.


The district court noted that Singleton had withdrawn the  counterclaim
for wrongful seizure, and that the counterclaims 




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n 14 In view of our remand of the case for a determination of who  is
the proper plaintiff under Rule 17(a) and an order vacating the 
sanction, we do not address the merits of either Marina Manage- ment's
contention that the district court erred in denying recovery  of
certain fees or Singleton's contention that the amount of attor- neys'
fees awarded "was" excessive because a substantial amount  pertained
to work associated with the sanction issue. These are  matters to be
resolved on remand.


for defamation and abuse of process were "deficient because  of their
integral relationship to the legitimate pursuit by  plaintiff of this
lawsuit." Viewed in the context of the con- duct of both counsel, the
district court concluded that "all of  the counterclaims should be
seen as designed primarily to  harass," and that "all five
counterclaims therefore are proper- ly dismissed under Rule 11 of the
Federal Rules of Civil  Procedure."


"[T]he central purpose of Rule 11 is to deter baseless  filings in
district court and thus ... streamline the adminis- tration and
procedure of the federal courts." Cooter & Gell,  496 U.S. at 393
(quoting Advisory Committee Note on Rule  11, 28 U.S.C. App. p. 576).
Dismissal is a legitimate sanction  under Rule 11, see Carman v.
Treat, 7 F.3d 1379, 1382 (8th  Cir. 1993); Rhineheart v. Stauffer, 638
F.2d 1169, 1171 (9th  Cir. 1979), for serious misconduct when lesser
sanctions  would be ineffective or are unavailable. See Dodson v. Run-
yon, 86 F.3d 37, 39-40 (2d Cir. 1996); Henry v. Gill Indus.,  Inc.,
983 F.2d 943, 948 (9th Cir. 1993). The record supports  the district's
court's finding that the counterclaim for abuse of  process was
legally deficient because of its close connection  with a good faith
action for recovery of a debt. See Scott v.  District of Columbia, 101
F.3d 748, 755 (D.C. Cir. 1996);  Croixland Properties Ltd. Partnership
v. Corcoran, 174 F.3d  213, 215 (D.C. Cir. 1999). So too, the district
court could  reasonably conclude that Singleton's defamation claim,
which  included allegations not necessarily integrally linked to the 
legitimacy of the debt recovery action, nonetheless was "de- signed
primarily to harass" in view of "the petty ... conduct  of counsel for
both parties....," as were his counterclaims for  property damage and
for intentional interference with con- tractual relations. Marina
Management presented multiple  affidavits calling into serious doubt
Singleton's property dam- age claim. Without weighing the merits, this
peek at the  evidence, cf., e.g., Massachusetts School of Law at
Andover,  Inc. v. United States, 118 F.3d 776, 783 (D.C. Cir. 1997);
Air  Line Pilots Ass'n, Int'l v. Eastern Air Lines, Inc., 869 F.2d 
1518, 1521 (D.C. Cir. 1989), confirms that given the conten-


tious history of this unduly prolonged litigation, see  McLaughlin v.
Bradlee, 803 F.2d 1197, 1205-06 (D.C. Cir.  1986), the district court
did not abuse its discretion.


Accordingly, we reverse the grant of summary judgment,  remanding
Marina Management's case to the district court,  and affirm the
dismissal of the counterclaims.