Jones v. Thomas Jefferson Univ. Hosps., Inc., CIVIL ACTION NO. 13-4316
| Decision Date | 19 March 2015 |
| Docket Number | CIVIL ACTION NO. 13-4316 |
| Court | U.S. District Court — Eastern District of Pennsylvania |
| Parties | KHALIA JONES v. THOMAS JEFFERSON UNIVERSITY HOSPITALS, INC. |
The Honorable J. William Ditter has referred a sanctions motion to the undersigned in this employment discrimination/retaliation case. Doc. 91.1 In the motion (Doc. 37), Defendant2 seeks to recover fees and costs associated with responding to Plaintiff's motion to quash the deposition of Plaintiff's partner Desmond Jackson (Doc. 34). I ordered Defendant to provide a list of costs and fees associated with the motion to quash and scheduled a hearing for March 9, 2015, at which I invited Plaintiff's counsel to discuss the sanctions motion and offer any mitigating evidence. Doc. 96. That hearing took place as scheduled, and I now grant Defendant's motion in part.
Some background and a timeline are necessary to give context to the motion, all events occurring in 2014. During the first day of Plaintiff's deposition on February 20, she testified that she lived with her two children and their father, Mr. Jackson. See Doc. 35-1 at 3.3 When specifically asked "Are you married to Mr. Jackson?", she responded, "No, I am not." Id. Defendants thereafter sought to depose Mr. Jackson, and inquired of Plaintiff's counsel if he would accept service of the deposition subpoena, which counsel declined. See Doc. 34-2 at 1-2 (email exchange). On February 28, before the deposition subpoena was issued, Plaintiff's counsel filed a motion to quash the subpoena to be directed to Mr. Jackson or for a protective order asserting, for the first time, a spousal privilege. See Doc. 34 at 1. 4 In an attached declaration, Plaintiff's counsel declared that Mr. Jackson "is [Plaintiff's] spouse." See Doc. 34-5 at 1 ¶ 11. When defense counsel sought clarification of Plaintiff's marital status in a March 3 email, Plaintiff's counsel responded by email "I will have to ask her." Doc. 36-1 at 2. The next day, Plaintiff's counsel forwarded Plaintiff's email response in which she stated Id. These materials were included in Defendant's response and supplemental response to the motion to quash. Docs. 35 & 36. On March 7, Judge Ludwig denied the motion to quash. Doc. 39.
Because the basis for the motion to quash was an assertion of the spousal privilege, and Plaintiff had twice stated in her counsel's presence (at her deposition and by email) that she was not married, Defendant filed a motion for sanctions on March 6. Doc. 37. In his March 9 response to the motion for sanctions, Plaintiff's counsel, for the first time, asserted that Plaintiff and Mr. Jackson were common law spouses. Doc. 38 at 2.5 However, he failed to mention any factual or legal basis for a common law marriage under Pennsylvania law, whether by an exchange of "verba in praesenti" or cohabitation and reputation.6 In a supplemental filing, counsel included a March 8 declaration fromPlaintiff in which she stated that her relationship with Mr. Jackson is "marital in nature," and that a year prior to the birth of her son in January 2005, she and Mr. Jackson agreed to consider each other and behave in public as husband and wife. Doc. 48-3 at 1.
Defendant brought its sanctions motion pursuant to 28 U.S.C. § 1927, which states:
Any attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.
28 U.S.C. § 1927. The Third Circuit has held that "a finding of willful bad faith on the part of the offending lawyer is a prerequisite" to the imposition of sanctions under section 1927. In re Prudential Ins. Co. Am.Sales Practice Litig. Agent Actions, 278 F.2d 175, 181 (quoting Hackman v. Valley Fair, 932 F.2d 239, 242 (3d Cir. 1991)). "[S]anctions may not be imposed under § 1927 absent a finding that counsel's conduct resulted from bad faith, rather than a misunderstanding, bad judgment, or well-intentioned zeal." Grider v. Keystone Health Plan Cent., Int., 580 F.3d 119, 142 (3d Cir. 2009) ).
The critical question here is whether, at the time he filed his motion to quash, Plaintiff's counsel had a good faith basis to assert that his client and Mr. Jackson were married. I conclude that, although his motion may have been motivated to protect his client from embarrassment and in an effort not to disturb her relationship with Mr. Jackson, there can be no doubt that it was without proper foundation. In the motion to quash, Plaintiff's counsel asserted that Mr. Jackson and Plaintiff were spouses, without providing any factual or legal foundation, despite the fact that just days before Plaintiff had testified without equivocation that she was not married.7 Once a question was raised as to the basis for the claimed marriage, he continued to rely on his own bald assertion despite contrary evidence. Even at the recent hearing, Plaintiff's counsel declined to acknowledge the possibility that his assertion of a spousal privilege might appear out of order or require explanation in light of his client's testimony.
Offered an opportunity to explain his reasons for asserting the privilege at the recent hearing, Plaintiff's counsel could not identify a date on which the couple exchanged verba in praesenti and did not rely on that as the basis for the marriage. Rather, he explained that he filed the motion based on his observations of Plaintiff andMr. Jackson and their interactions with one another and their children in their home when he visited with them to retrieve documents. However, the fact that Plaintiff and Mr. Jackson are in a long-term relationship, living together with their children, is insufficient to establish a marital relationship under Pennsylvania law. Counsel's explanation did not take into account that common law marriage requires a mutual and expressed understanding of the legal relationship.
The strongest evidence that Plaintiff and Mr. Jackson were common law spouses came in Plaintiff's March 8 declaration in which she stated that, prior to the birth of her son in January 2005, she and Mr. Jackson had "agreed to consider each other and to behave in public as husband and wife." Doc. 48-3 at 1. However, this information, even if it supported the existence of a common law marriage, was admittedly not known to counsel when he filed the motion to quash nine days earlier.8
Moreover, Plaintiff's other statements and actions belie her characterization. During her second day of deposition on March 21, with her counsel present, Plaintiffadmitted that she identified herself as single in her September 2005 custody complaint against Jackson, and when asked "So you were not married in 2005?", responded "We were not living together in 2005." Pl. Dep. 3/21/14 at 154. Thus, she did not consider herself to be married in 2005, and apparently believed that living together was the touchstone of being married under the common law. Her counsel intervened to inquire whether she understood the question, and she added "We were together in a committed relationship," and answered defense counsel's further question by saying "I considered us in a domestic partnership . . . but not legally." Id. at 155. This again does not clarify the existence of a common law marriage. She also testified that she did not identify herself as married on tax returns or medical assistance applications. Id. at 155-56.9
As noted, on the two occasions in this litigation when directly asked if she was married, Plaintiff answered that she was not. Even if there were a basis to claim a presumption that she and Mr. Jackson had a common law marriage based on their years of cohabitation and reputation, the presumption was strongly rebutted by Plaintiff's words and actions. Therefore, Plaintiff's counsel did not have a good faith basis to file the motion to quash, and a sanction under section 1927 is appropriate as found by Judge Ludwig.10
"The appropriateness of the sanction is a matter entrusted to the discretion of the district court." In re Prudential, 278 F.2d 175, 181.11
To properly exercise this discretion, the district court must balance the equities between the parties by looking to mitigating factors and the circumstances surrounding the case. The Court may award attorney fees whenever overriding circumstances indicate the need for such a recovery. On the other hand, the Court may choose not to award attorney fees or may reduce the attorney fees awarded if, in balancing the equities, the Court determines that the interest of justice would be better served by such action.
Loftus v. SE Pa. Transp. Auth., 8 F. Supp.2d 458, 463 (E.D. Pa. 1998) (quoting Ford v. Temple Hosp., 790 F.2d 342, 347 (3d Cir. 1986)).
Utilizing the lodestar calculation, defense counsel seeks $15,091.03 in fees and costs related to the litigation of the motion to quash, the sanctions motion, and the motion for reconsideration. See Doc. 100.12 Plaintiff's counsel challenges the amount on three bases: (1) the lodestar is an improper basis for sanctions, (2) defense counsel askedimproper questions during Plaintiffs' deposition prompting the motion to quash to protect Plaintiff, and (3) he is not in a position to pay $15,000.13 See Doc. 102.
Although Plaintiff's counsel contends that the lodestar is an inappropriate basis on which to measure sanctions, he is incorrect. The statute refers to the payment of excess costs, expenses, and attorneys' fees. 28 U.S.C. § 1927. The...
To continue reading
Request your trial