Fusco v. Medeiros, Civil Action No. 91-0333-L.

• Decision Date: 06 August 1996
• Docket Number: Civil Action No. 91-0333-L.
• Citation: 965 F.Supp. 230
• Parties: Angela FUSCO, Plaintiff, v. David MEDEIROS, William Filene's Sons Company, May Department Stores Company, Marsha Fogarty, Joseph Koechel, and Beverly Shea, Defendants.
• Court: U.S. District Court — District of Rhode Island

965 F.Supp. 230

Angela FUSCO, Plaintiff, v. David MEDEIROS, William Filene's Sons Company, May Department Stores Company, Marsha Fogarty, Joseph Koechel, and Beverly Shea, Defendants.

Civil Action No. 91-0333-L.

United States District Court, D. Rhode Island.

August 6, 1996.

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Randy Olen, Providence, RI, for Angela Fusco.

Samuel D. Zurier, Michaelson & Michaelson, Providence, RI, for Filene Defendants.

Ina P. Schiff, Providence, RI, pro se.

MEMORANDUM AND ORDER

LAGUEUX, Chief Judge.

This matter is before the Court on the objection of respondent Attorney Ina P. Schiff ("Schiff") to the Report and Recommendation of Magistrate Judge Timothy M. Boudewyns dated March 11, 1996. In his Report, the magistrate judge recommends that the Court grant the motion of defendants David Medeiros, William Filene's Sons Company, May Department Stores Company, Marsha Fogarty, Joseph Koechel, and Beverly Shea (collectively, the "Filene's defendants") for sanctions and attorneys' fees pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927 as to Schiff, deny the motion as to plaintiff Angela Fusco ("Fusco"), and deny the Filene's defendants' request for reimbursement of attorneys' fees under 42 U.S.C. § 1988.

I. Discussion

The Court concludes, as did the magistrate judge, that Schiff's filing of Fusco's verified complaint was in violation of Fed.R.Civ.P. 11 and that her subsequent conduct violated 28 U.S.C. § 1927. The facts as set forth in the magistrate judge's exhaustive and thoughtful Report and Recommendation establish that each and every count of Fusco's complaint was frivolous in that each count was either without factual support or legal basis. Similarly, the magistrate judge's recitation of Schiff's actions after the filing of the Complaint recounts a tale of proceedings multiplied "unreasonably and vexatiously[.]" 28 U.S.C. § 1927.

Schiff's arguments in opposition to the Report and Recommendation are without merit; ad hominem attacks on the magistrate judge's impartiality and repetition of the fanciful legal theories that spawned this lawsuit do nothing to justify Schiff's actions. The facts as detailed in the Report are sufficient to refute her contentions, and the Court will add nothing more on that score.

The primary legal issue facing this Court is whether Schiff's conduct is to be judged by the standards of the Rule 11 in force prior to the December 1, 1993 amendments to the Federal Rules of Civil Procedure (the "old Rule 11") or whether the post-amendment rule (the "new Rule 11") must be applied. The Court recognizes that amendments to the Federal Rules enjoy the presumption of retroactivity, see Moreno Vda. Acosta v. Hospital Bella Vista, 164 F.R.D. 140, 142 (D.P.R.1995), and that the Supreme Court's order of April 22, 1993 stated:

[T]he foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 1993, and shall govern all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings in civil cases then pending.

113 S.Ct. CDLXXVII (emphasis added); see also 28 U.S.C. § 2074 (1994) (the Supreme Court may order new rules applied to pending proceedings, except where the application of such rule "would not be feasible or would work injustice[.]"). Nevertheless, in Silva v. Witschen, 19 F.3d 725 (1st Cir.1994), the First Circuit stated that the 1993 promulgation order precluded application to pending cases if "it would be unjust or impracticable to do so." Id. at 728 (emphasis in original).¹ The Silva Court held that, although the respondent's appeal was pending at the time of the December 1, 1993 amendments, application of the new Rule 11 would require a burdensome, impractical remand and continued unfairness to the movants-appellees. Id. at 729. Thus, the First Circuit declined to apply the new Rule 11 and the sanction order entered by this Court was reviewed "under the pre-amendment Rule 11 standards in force at the time the sanctioned conduct occurred." Id. In a similar vein, other courts have treated the date of the sanctionable conduct as presumptively determining which version of Rule 11 to apply. See Knipe v. Skinner, 19 F.3d 72, 78 (2nd Cir.1994), cert. denied, 513 U.S. 963, 115 S.Ct. 424, 130 L.Ed.2d 338 (1994) ("Any further retroactive application of the amended Rule 11 would charge [counsel] with knowledge of a rule not in effect at the time of filing and therefore would not advance Rule 11's central goal of deterring baseless filings."); MacDraw Inc. v. CIT Group Equipment Financing Inc., 73 F.3d 1253, 1257 (2nd Cir.1996) (district court "required" to apply pre-1993 Rule 11 to allegedly sanctionable conduct that occurred prior to effective date of amendments); Rodriguez v. Banco Cent., 155 F.R.D. 403, 405 n. 1 (D.P.R.1994) ("Because all potentially sanctionable conduct in this case took place before December 1993, and the motions for sanctions were filed before that date, we will apply the version of Rule 11 which exited prior to the 1993 amendment.").

Looking to the dates of Schiff's sanctionable conduct, the Court finds that old Rule 11 is the rule properly applied to the Filene's defendants' motion for sanctions. But for a few weeks, Schiff's entire involvement in this matter occurred before the December 1, 1993 amendment of Rule 11. The offending complaint was filed on July 1, 1991. As of that day, Schiff was guilty of making representations to this Court that were baseless and formed without reasonable inquiry. Not long into these proceedings, Schiff was on notice that her actions had drawn the Court's ire: On July 17, 1992, Magistrate Judge Jacob Hagopian fined Fusco $625.00 for failing to comply with the Court's discovery orders. Subsequent sanctions were meted out on November 20, 1992, and on April 20, 1993. On August 10, 1993, Magistrate Judge Boudewyns recommended that Fusco's complaint be dismissed in toto as a penalty for her and Schiff's refusal to respond to discovery requests. This writer accepted the magistrate judge's report on December 15, 1993, as to the Filene's defendants² and dismissed the case against them as an explicit sanction for Schiff's continued, contumacious conduct.³ Fusco v. Medeiros, ___ F.Supp. ___ (D.R.I.1993). One month later, on January 14, 1994, when the new Rule 11 was still wrapped in swaddling clothes, Fusco requested Schiff's withdrawal as her attorney.

The magistrate judge, in his Report and Recommendation, accurately predicted that the Court would apply the old Rule 11. The Court therefore adopts Magistrate Judge Boudewyns' careful analysis under the rule, and will not replicate it here.

Sanctions under the old Rule 11 were mandatory, Lancellotti v. Fay, 909 F.2d 15, 19 (1st Cir.1990), and compensation of the prevailing party was a recognized purpose of the rule. Silva, 19 F.3d at 729 n. 5. Thus, the Report and Recommendation of March 11, 1996 is accepted and adopted, and Schiff is hereby sanctioned and ordered to pay the Filene's defendants the sum of $95,834.86, representing the costs and attorneys' fees incurred by them.

The Court wishes to note, however, that the choice of the old Rule 11 over the new Rule 11, to a great degree, is an academic one. The Court is convinced that even under the new Rule 11, Schiff would suffer the same sanction. The rule states:

(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, —

* * * * * *

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery[.]

Fed.R.Civ.P. 11(b) & (b)(3). In contrast to the old Rule 11, under which attorneys had to certify "after reasonable inquiry" that their representations were "well grounded in fact," Fed.R.Civ.P. 11 (1983), the new Rule 11 mandates only that an attorney certify that "to the best of the person's knowledge[,] formed after an inquiry reasonable under the circumstances," the allegations "have [or] are likely to have evidentiary support[.]" Fed. R.Civ.P. 11(b) & (b)(3). The investigatory burdens on an attorney prior to filing have thus been lightened. See Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1329-30 (2nd Cir.1995) (holding that "an attorney is entitled to rely on the objectively reasonable representations of the client"). Yet Schiff's actions would run afoul of even the new standard: The Report and Recommendation makes clear that Schiff did not conduct an "inquiry reasonable under the circumstances," that she provided some of the most outlandish facts to Fusco,⁴ and that very few of her allegations had any evidentiary support. Nor would they ever — despite Schiff's abusive and harassing discovery requests. Thus the facts set forth in the Report and Recommendation equally support a violation of the new Rule 11(b)(3).

The purpose of sanctions under the new Rule 11 "is to deter rather than compensate." Fed.R.Civ.P. 11 advisory committee notes. However, Rule 11(c)(2) provides that:

[If] imposed on motion and warranted for effective deterrence, [the sanction may consist of] an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

The advisory committee notes to the 1993 amendments state that an award of attorneys' fees may occur "under unusual circumstances[.]" There was nothing usual about this litigation at all: The charges leveled by Schiff were extravagant, paranoid, and totally devoid of merit. The Filene's defendants were forced to defend themselves against § 1983 clai...