Month: December 2016

Magistrate Shows Mercy and Gives Truculent Pro Se Litigant One More Chance To Comply with Discovery

No lawyer would receive this much slack from a federal judge. The case was filed by a jewelry company claiming that a designer violated its copyrights and trademarks. The defendant, who was pro se, was not a model of cooperation in the discovery process. This passage gives the reader some flavor of the problems courts have in dealing with angry pro se litigants:

On October 21, 2016, Ronaldo filed its Motion for Discovery Sanctions for Failure to Comply with Court Order [83], pointing out that Prinzo failed to produce his pre-discovery disclosures or respond to Ronaldo’s discovery requests as ordered by the Court. Ronaldo argues that the Court should impose discovery sanctions against Prinzo pursuant to Fed. R. Civ. P. 37(b).

Prinzo has frustrated the progression of this case in other ways as well. During the second case management conference held on March 30, 2016, the Court set a settlement conference for June 9, 2016. See Case Management Order [40]. On June 7, 2016, the deputy clerk called Prinzo to remind him of the conference and to request that he submit a settlement memorandum. Though the settlement conference was set at a time and place selected to minimize any inconvenience to Prinzo[3] and he had been reminded of the conference, he nevertheless failed to appear. Thereafter, the Court entered an Order [51] directing Prinzo to appear in Court on August 2, 2016, and show cause why he should not be sanctioned for failing to appear at the settlement conference.

A few weeks after the cancelled settlement conference, Ronaldo noticed Prinzo’s deposition. The deposition notice requested that Prinzo provide certain records, but Prinzo appeared at the deposition without the records. Additionally, about two hours into the deposition, he abruptly left the deposition before its conclusion. Ronaldo promptly reset the remainder of the deposition for the next day, but Prinzo did not appear.

That same day, Prinzo’s girlfriend, Janice Bintrim, appeared for her deposition. She, too, was to bring certain records with her. However, she did not do so, claiming that Prinzo instructed her not to bring them. Thereafter, Ronaldo filed a Motion for Sanctions [67], seeking sanctions as a result of Prinzo leaving the deposition, failing to appear the next day to continue the deposition, and instructing Bintrin to ignore the document request served with the deposition subpoena. The Court set a hearing on the Motion [67] for August 2, 2016, the same day as the show cause hearing. See Order [69].

The court gave Prinzo ten days to comply with discovery and pay an outstanding sanction award. In my opinion, the Magistrate showed a great deal of patience with the pro se litigant.

Source: RONALDO DESIGNER JEWELRY, INC. v. PRINZO, Dist. Court, SD Mississippi 2016 – Google Scholar

Seventh Circuit Affirms Censure For Frivolous Claim Against State Prosecutor

The Seventh Circuit has affirmed the district court’s decision to censure a lawyer who brought a claim that was barred by existing law.

Plaintiff alleged that a state prosecutor violated his civil rights by deciding to charge him with obstructing a police investigation. The prosecutor moved to dismiss on the ground that his decision to charge a defendant was entitled to absolute immunity.Imbler v. Pachtman, 424 U.S. 409, 427 (1976) The lawyer sought leave to amend the complaint. The district court, on its own motion, ordered the lawyer to show cause why he should not be sanctioned:

The district court denied leave to amend, reasoning that the proposed claims against the second prosecutor would be frivolous because the prosecutor would have absolute immunity in her individual capacity, and the Eleventh Amendment would bar any claims against her in her official capacity. The court also ordered Foreman to show cause why the claims against prosecutor Leisten should not be dismissed for the same reasons. Additionally, because in a previous case Foreman’s lawyer, Lawrence Redmond, had raised similar claims against prosecutors that were dismissed because of absolute immunity, the court ordered Redmond to show cause why he should not be sanctioned under Federal Rule of Civil Procedure 11(c).

The district court granted Leisten’s motion for judgment on the pleadings, noting that Foreman had not offered a basis for challenging the existing law of prosecutorial immunity. In addition, the court reasoned that a claim against Leisten in his official capacity would not fall under the exception to the Eleventh Amendment for injunctive relief because Foreman’s complaint did not sufficiently allege an ongoing constitutional violation, as opposed to a claim for damages to remedy a past injury.

After the claims against prosecutor Leisten were dismissed, a magistrate judge issued a report recommending that attorney Redmond be publicly censured under Rule 11(c) for advancing frivolous claims without offering any argument or authority that would support a change in existing law. The magistrate judge concluded that a censure would be an appropriate punishment and deterrent, especially in light of Redmond’s previous censure by the Supreme Court of Illinois in a post-conviction capital appeal.

The Seventh Circuit affirmed the decision to censure the attorney because he failed to raise a non-frivolous argument to change the law.

Comment: the lawyer was sanctioned because he filed a claim against a prosecutor that was barred by existing precedent and he offered no reason to show why his case was different or existing law should be changed. If you wish to change existing law, you need to be upfront with the court and explain why the existing law is unjust or incorrect or does not apply to your case.

Source: Foreman v. Wadsworth, Court of Appeals, 7th Circuit 2016 – Google Scholar

Lawyers connected to Prenda Law, a ‘porno-trolling collective,’ indicted – The Washington Post

The indictment alleges: “Between 2011 and 2014, defendants Paul R. Hansmeier and John L. Steele orchestrated an elaborate scheme to fraudulently obtain millions of dollars in copyright lawsuit settlements by deceiving state and federal courts throughout the country.”

My comment: The Prenda lawyers downfall began when they were sanctioned by several federal judges three years ago. Those sanctions were affirmed on appeal and the successful parties obtained additional legal fee awards against the Prenda lawyers.

Source: Lawyers connected to Prenda Law, a ‘porno-trolling collective,’ indicted – The Washington Post

No Show At Rule 30(b)(6) Deposition Forms the Basis of Rule 37 Sanctions Award

Rule 30(b)(6) allows a party to take the deposition of an organization. The party sends a notice of deposition pursuant to Rule 30(b)(6) and lists the topics on which it wishes to depose the corporate representative. Here the responding party agreed to send a representative but was a “no show.” The District Court awarded sanctions under Rule 37(d).

Federal Rule of Civil Procedure 37(d)(“Rule 37(d)”) provides that a court has the power to order sanctions when “a party . . . or a person designated under Rule 30(b)(6) . . . fails, after being served with proper notice, to appear for that person’s deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i). Pursuant to this rule, a court may award a variety of sanctions but “must” require the noncompliant party, its attorney, or both “to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3). Furthermore, “[a] failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).” Fed. R. Civ. P. 37(d)(2). Thus, where a party objects to attending a properly noticed Rule 30(b)(6) deposition, it must seek judicial protection from participation in advance of the date set for the discovery. See Mitsui & Co., Inc., 93 F.R.D. at 67.Here, there is no doubt that PRHTA’s conduct falls within the purview of Rule 37(d). As early as April 5, 2016, PRHTA had notice of TransCore’s intent to conduct a Rule 30(b)(6) deposition. (Docket No. 90-1 at p. 11.) During a June 6, 2016 teleconference, it agreed that June 30, 2016 would be an acceptable date for that deposition. (Docket No. 90-4 at p. 3-4.) On June 15, 2016 it not only confirmed that date but also informed TransCore that it had identified potential witnesses for the deposition. Despite this early notice and confirmatory correspondence with TransCore, PRHTA simply and suddenly decided not to appear at the scheduled deposition. Although PRHTA emphasized that its non-appearance was grounded in certain objections to the discoverability of the noticed topics, it did not bother to seek a protective order on the basis of those objections until July 7, 2016 — a full week after the deposition date had passed. In light of that — unnecessary — delay in seeking judicial protection, PRHTA’s stated objections cannot, pursuant to Rule 37(d)(2), justify its actions here.Because PRHTA’s uncooperative conduct triggers the proscriptions of Rule 37, sanctions are appropriately imposed. Accordingly, the Court ORDERS PRHTA to pay all reasonable expenses, including attorneys fees, incurred by TransCore in connection with the failed June 30, 2016 deposition. PRHTA is warned that, should it repeat its recalcitrant behavior at a future Rule 30(b)(6) deposition, the sanctions imposed against it by the Court will be much more severe in nature.

Comment: This is the first time I have ever heard of a party simply “blowing off” a Rule 30(b)(6) deposition. The district court’s reaction to this was appropriate and what I would expect were I to have done something of the kind.

Edward X. Clinton, Jr.

Source: AUTORIDAD DE CARRETERAS Y TRANSPORTACION v. TransCORE ATLANTIC, INC., Dist. Court, D. Puerto Rico 2016 – Google Scholar

Lawyer Uses Rule 60 to Challenge Sanctions Award – And Loses

A lawyer who was sanctioned by a district court for filing a frivolous complaint brought a Rule 60(b) Motion to Alter or Amend Judgment to challenge the sanctions award. This is the first time I have seen such a use of Rule 60. The court denied the request to vacate the sanctions award, but did grant the lawyer additional time to pay the award. Sanctions were appropriate because the complaint that was filed was, in the view of the Court, barred by res judicata and not warranted by existing law. The Court found that the complaint was frivolous and that the lawyer should have known that it was frivolous.

Rule 60(b) provides:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

The court did grant the attorney several additional months in which to pay the award.

Source: Hansen v. US Bank National Association, Dist. Court, D. Idaho 2016 – Google Scholar

Just Because It Happened In Federal Court Does Not Mean There is Federal Jurisdiction

A criminal defendant pleaded guilty in federal court and, later, wished to sue his lawyer for legal malpractice. The case was dismissed for the lack of diversity jurisdiction (both are citizens of Illinois).

Source: Merriweather v. Whitley, Dist. Court, SD Illinois 2016 – Google Scholar