Ahmed v. Reiss SS Co., Civ. A. No. C 80-506.

• Citation: 580 F. Supp. 737
• Decision Date: 23 February 1984
• Docket Number: Civ. A. No. C 80-506.
• Parties: Ali S. AHMED, Plaintiff, v. REISS STEAMSHIP CO., Defendant.
• Court: U.S. District Court — Northern District of Ohio

580 F. Supp. 737

Ali S. AHMED, Plaintiff, v. REISS STEAMSHIP CO., Defendant.

Civ. A. No. C 80-506.

United States District Court, N.D. Ohio, E.D.

February 23, 1984.

Leonard C. Jaques, Detroit, Mich., for plaintiff.

Robert Dunn, Detroit, Mich., for defendant.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

Attorney Leonard Jaques' failure to appear for trial before this Court on October 26, 1983, and the misrepresentations surrounding his failure to appear, compel the imposition of sanctions in this case.

On October 26, 1983, attorney Leonard Jaques failed to appear before this Court for trial as scheduled. An associate of his represented that Jaques was in Baltimore, Maryland appearing before the Honorable Joseph C. Howard. When this Court attempted to contact Jaques by phone, Judge Howard advised this Court that Jaques was not appearing in Judge Howard's courtroom, but had been released the previous day to allow him to appear in Cleveland. In essence, Jaques told two different federal district court judges that he was appearing before the other, when in fact Jaques was appearing before neither. After notice and a hearing, this Court finds that Leonard Jaques has failed to show cause why sanctions should not be imposed for violations of 18 U.S.C. § 401(1) and § 401(3).

FACTS

Jaques represented the plaintiff, Ali S. Ahmed, in a civil admiralty proceeding before this Court. At Jaques' request, advance scheduling arrangements were made to insure Jaques and his client a firm trial date. Guaranteeing a firm date in civil trials is a substantial departure from this Court's customary practice. The press of criminal trials which must be expedited due to the Speedy Trial Act compels this Court to typically schedule civil cases only as back-up trials to criminal cases. Such was this Court's calendar in the fall of 1983.

As a courtesy to Jaques and his client, this Court departed from its standard scheduling procedure and on April 13, 1983 advised Jaques of a trial date of October 4, 1983; on August 1, 1983, this Court set a firm trial date of October 24, 1983. This accommodation was made because Jaques informed this Court that his client would be travelling from Yemen to attend the trial. Jaques further advised that a number of witnesses were seamen on various vessels who would have to be brought in from their ships in order to testify. The Court was persuaded that Jaques' case presented unusual circumstances which warranted exceptional scheduling arrangements and the October 24, 1983 trial date was guaranteed.¹ On the designated date, and at repeatedly rescheduled times thereafter, the Court and twenty-two veniremen stood ready and waiting to proceed while Jaques and his associates delayed the Court and its trial calendar.

On Wednesday, October 19, Jaques' office informed this Court that a trial in which Jaques was appearing before the Honorable Joseph C. Howard in Baltimore² would exceed its projected five day duration and would not be completed until Monday, October 24, 1983. Consequently, at Jaques' request, this Court continued Ahmed's trial until Wednesday, October 26, 1983, and scheduled the pretrial for October 25, 1983 at 4:00 p.m.

On Monday, October 24, 1983, Judge Howard's law clerk called this Court to advise that their trial would not be completed that day, but would be submitted to the jury on Tuesday, October 25. This Court then left word with Judge Howard's chambers and with Jaques' Detroit office that Jaques would be expected for a pretrial conference followed immediately by trial, beginning Wednesday, October 26 at 9:30 a.m. No response to the contrary was received until Tuesday evening at 6:00 p.m.³ when Jaques' associate, Gary Baun, called and said that Jaques could not be in Cleveland for trial on Wednesday because his presence was necessary when the jury instructions were delivered in Judge Howard's courtroom on Wednesday morning. This Court's suggestion that Jaques' associate stay for the jury instructions and Jaques appear in Cleveland on Wednesday was rejected.

At the Court's request, Baun arranged to send Robert Swickle on Jaques' behalf with Ali Ahmed to Cleveland to meet with the Court and defense counsel⁴ for a pretrial conference and settlement negotiations. Baun explicitly represented that Swickle would have full authority to settle the case. Settlement discussions stalemated Wednesday afternoon when Swickle told the Court that no further progress could be made until Ahmed spoke to Jaques. It became clear that, despite Baun's representation that Swickle had authority to settle, he really had no power to allow the case to be settled unless Ahmed spoke with Jaques.

Hoping to resolve the stalemate, this Court called Judge Howard in an attempt to reach Jaques. He was not appearing before Judge Howard, nor had he made an appearance at all that day. Judge Howard said he had excused Jaques at 4:00 p.m. the previous evening so Jaques could appear before this Court on Wednesday morning. Jaques' associates were present while Judge Howard delivered the jury instructions Wednesday morning, but Jaques never made an appearance. Judge Howard believed Jaques was in Cleveland and this Court believed Jaques was in Baltimore. Apparently, he was neither. Settlement discussion could not proceed and negotiations were stymied because of Jaques' unavailability. The Court instructed Swickle to locate Jaques and advise the Court by 4:45 p.m. whether it would be necessary to recall the jury for Thursday.

On Thursday, Jaques again failed to appear before the Court in Cleveland, instead calling from Detroit at 4:15 p.m. to advise that his client, Ahmed, rejected defendant's offer of $100,000.00. Jaques was instructed to appear for trial at 9:00 a.m. Friday, October 28, 1983.

Following his tardy arrival on Friday, Jaques informed the Court that he was scheduled to appear before the Fifth Circuit Court of Appeals for oral argument on Monday, October 31, 1983. At his request, the Court agreed that, at the end of the day, it would not reconvene the trial until Tuesday afternoon. The jury was empaneled and, during the recess prior to opening statements, Jaques presented Reiss Steamship with an offer to settle the case for a cash award of $125,000.00. The parties knew, from events of the previous two days, that the five hour time difference between Cleveland and defendant's London office prevented Reiss Steamship's attorney from immediately determining if the counteroffer was acceptable. Consequently, the trial was adjourned for the weekend. The parties advised the Court by phone on Monday, October 31, 1983, that they had settled their dispute for $125,000.00. Leonard Jaques avoided any further appearance before this Court.

Having advised Swickle, on the record, on October 26 that he and Jaques and Baun would be called upon at the conclusion of the case to explain their absence on Wednesday and the discrepancy between their version of their courtroom responsibilities and Judge Howard's version, this Court issued notice on November 2, 1983 to Leonard Jaques, Gary Baun and Robert Swickle ordering them to appear for a hearing on December 23, 1983. A transcript reciting the essential facts which would be the focus of inquiry at the hearing was docketed November 15, 1983 and issued to Jaques.

At the hearing on December 23, 1983, Jaques suggested that this Court had not specifically advised him of the reason for the hearing and the focus of its inquiry. This Court finds that Jaques was advised. In a hearing in chambers on October 26, 1983, the day Jaques failed to appear, Jaques' associate, Robert Swickle, represented to the Court that Jaques was in trial in Baltimore. (Transcript of October 26, 1983, ("T.I.") p. 2). This Court then advised Swickle that the trial judge in Baltimore had personally informed this Court to the contrary; and this Court intended to pursue the question of Jaques' nonappearance at the conclusion of the case.

During the lunch break Judge Howard, who is presiding at the trial in Baltimore, advised me that he had made special arrangements yesterday afternoon for Mr. Jaques to leave Baltimore shortly after 4:00 o'clock because Mr. Jaques had represented to Judge Howard that he had to be in Cleveland this morning, and Mr. Jaques has not in fact been at the trial in Baltimore during any part of today's proceedings.

It is 3:30 in the afternoon and Mr. Jaques himself has put in no appearance with this Court nor has he advised this Court as to any reason why he is not here.

I want to point out to you, Mr. Swickle, that this Court takes this matter very seriously. There is a question of 22 jurors who have been here at $30 a day. We are wasting taxpayers' money, we are wasting the time of the jury, the time of this Court and I think Mr. Dunn's time and money.

I am making no judgments about what the facts as I understand them lead me to at this point. I am making no finding. I am suggesting that Mr. Jaques better have a very solid excuse as to why he is representing to two Federal Judges in two cities that he is with one or the other of them when, in fact, he is at neither place, and I do intend to pursue this after we have concluded this case. I would appreciate it if you would advise your partner of that fact.

T.I. pp. 5-6. Moreover, this Court's notice of November 2, 1983 specifically stated that the hearing would inquire into "apparent mis-behaviour related to a failure to appear before this Court as scheduled on Wednesday, October 26, 1983."

At the hearing on December 23, 1983, Jaques declined to dispute the charge that he was not in trial in Baltimore on October 26, 1983 as he led this Court to believe; and that he was not in trial in Cleveland as he led Judge Howard to believe:

MR. JAQUES: I am not answering. I am not saying anything was represented to Judge Howard. You are not cognizant and that is not before this particular body here. I make no representation. I don't believe you

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