CAVEAT CAUSIDICUS: LAWYER BEWARE

Rule 11 is Alive and Well in the D.D.C.

by Ronald A. Goodbread, Legal Editor

In a long, over-pled case consisting of a concatenation of work-related complaints by numerous D.C. employees that ended up before Judge Colleen Kollar-Kotelly, Counsel for the Plaintiffs recently received a stern admonition from this genteel, but no-nonsense jurist. The U.S. District Court here does not list the lawyers involved in cases in which it posts its memorandum opinions, and although the Daily Washington Law Reporter has identified the lawyer in question, it demurs publication thereof because it is the “lesson of the day,” rather than the identity of the unfortunate lawyer, that is newsworthy. The Reporter believes in informing the practicing litigation bar about such matters so that similar “pitfalls” may be avoided in the future.

Judge Kollar-Kotelly is a veteran of 13 years on the D.C. Superior Court and was appointed by President Clinton to the U.S. District Court in 1997. Among her many other noteworthy cases, she inherited the massive Microsoft anti-trust litigation and was appointed in by the late Chief Justice Rehnquist in 2002, to be Presiding Judge of the super-secret Foreign Intelligence Surveillance Court. There, she adopted a strict stance in as to the use of information gathered from warrantless searches and recently reversed the Bush Administration’s position on archival secrecy, ruling that President Bush’s Executive Order delaying release of the papers of former Presidents was “arbitrary, capricious, an abuse of discretion, and not in accordance with law.” It was to this type of Judge that the complaint in McManus v. District of Columbia, C.A. No. 07-252 (Dec. 21, 2007) was assigned.

The single case consisted of the claims of 15 male and female employees alleging such variegated complaints as work-related neck, back, wrist, and ankle injuries, air pollution in the workplace (including at least four Plaintiffs who failed to specify any injury at all), wage and hour violations, refusal to pay medical insurance claims, allegedly unjustified traffic citations, wrongful termination, conspiracy between various labor unions and the District Government to violate collective bargaining laws, together with what the Court termed numerous other “boilerplate allegations.” The Court found several counts on the complaint to be “more properly described as prayers for relief than causes of action,” including allegations of Section 1983 civil rights violations without identifying relevant underlying constitutional rights abrogated, misplaced reliance upon the due process clause of the Fourteenth, rather than the Fifth, Amendment in the District of Columbia, a request for a declaratory judgment that the Defendants “are engaging in criminal and civil wrongdoing,” and injunctive relief pertinent thereto. This scattershot fusillade of charges, which would likely have taken at least a brigade of lawyers to prosecute, was filed against 12 Defendants, including the District of Columbia, the American Federation of State, County and Municipal Employees, the Washington Teachers Union, Teamsters Union, the Fraternal Order of Police, the D.C. Department of Corrections, several individuals, and at least three healthcare facilities. Three of the named Defendants were never served at all. The docket sheets in the case consist of 14 pages and 90 entries.

Ruling on various Motions to Dismiss pursuant to Rule 12(b)(1), (5) & (6), Judge Kollar-Kotelly was 51 pages into her memorandum opinion when she concluded “that each of the Plaintiffs’ claims lacks merit and … Plaintiffs’ Amended Complaint must therefore be dismissed in its entirety.” It was all downhill from there for the Plaintiffs and their lawyer. The Judge then set forth the essence of Rule 11(c), which is to ensure that lawyers would not make any filings with the Court “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation,” that any such submissions “are warranted by existing law or by a non-frivolous argument for extending modifying, or reversing existing law or for establishing new law,” and that “the factual contentions [therein] have evidentiary support.” Finally, the Court noted that the case law”is replete with precedents granting to a trial judge “the widest possible latitude under the law” in the discretionary imposition of sanctions under the rule.

Then the deluge. The Judge found that “Plaintiffs’ filings in this action are universally deficient,” that even its Amended Complaint “is entirely devoid of merit,” that Plaintiffs’ opposition to the various Defendants’ motions not only “fail[ed] to address the majority of arguments” contained therein, but also that they “provide a dearth of legal support for Plaintiffs’ positions.” In a stinging conclusion, the Judge adjured Plaintiffs’ Counsel that “[t]he Court certainly does not condone the type of slipshod filing presented in this case.”

The most egregious fault attributed to Plaintiff’s lawyer in this matter was the Court’s finding that, even though he had received notice from the putative agent for receiving service of process for one of the named Defendant entities that this agent did not represent that Defendant, he nevertheless “knowingly filed” what the Court termed “an inaccurate or false Return of Service indicating that … [this] defendant had been personally served with process in this action,” in facial violation of Rule 11(b)(3). The Court thereupon imposed a serious compensatory sanction on Plaintiffs’ Counsel.

The news was not all bad, however. Despite the urgings of several Defendants that Plaintiffs’ Counsel be sanctioned for numerous other alleged violations of Rule 11, Judge Kollar-Kotelly exercised her discretion in declining to do so, concluding that, however unlikely it might appear to the complainants, giving him “the greatest benefit of the doubt, it is possible that he believed he could invoke this Court’s jurisdiction over all of Plaintiffs’ claims by virtue of Plaintiffs’ constitutional claim,” even though, the Court held, “[t]he problem, of course, is that Plaintiffs’ constitutional claim (and the other federal law claims) is entirely devoid of merit and therefore cannot withstand a motion to dismiss pursuant to Rule 12(b)(6).”

In the end, the Court ordered that Plaintiffs’ Counsel pay all “reasonable attorneys’ fees and expenses” associated with the Defendant on whose behalf the service of process issue had been adjudicated as violative of Rule 11.”Thus the lesson is learned anew: If there is any forum in the world where it is inadvisable to play fast and loose with the law, it’s a U.S. District Court. As early as 1959, it was Sonny Curtis (who took over for recently-demised Buddy Holly) and the Crickets who taught us what happened when they “fought the law” — and, well, you know who won.

Printed in the February 12, 2008 edition of the DWLR