Vandeventer v. Wabash Nat. Corp., 4:93cv0046 AS.

Citation893 F. Supp. 827
Decision Date30 June 1995
Docket NumberNo. 4:93cv0046 AS.,4:93cv0046 AS.
PartiesLisa C. VANDEVENTER, Douglas L. Feltner, Rita Phelps, Brandi Jo Russell, and Sherry Wampler, Plaintiffs, v. WABASH NATIONAL CORPORATION, Defendant.
CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana

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Marshall R. Crawford, A. Robert Thayer, Chavez Crawford and Thayer, Lafayette, IN, for plaintiffs Lisa C. Vandeventer, Douglas L. Feltner, Rita Phelps, Brandi Jo Russell, Sherry Wampler.

Keith R. Fafarman, Jay T. Seeger, Robert L. Bauman, Ellen R. Klausen, Gambs, Mucker, Bauman, and Seeger, Lafayette, IN, for defendant Wabash Nat. Corp.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

There is much empirical evidence to support the conclusion that in this district much of the judicial heavy lifting is done exceptionally well by the four United States magistrate judges. Certainly, such is the case reflected in the 70-page Report and Recommendation presented to this court by Magistrate Judge Cosbey on June 6, 1995. It comes as no great surprise to this court which has now been charged with the judicial management of this case for nearly two years. To be precise, since July 6, 1993. In more than two decades of handling the wide variety of district court litigation, it is hard for this judge to remember a case in which more wasted judicial time and effort has been expended.

In typical fashion representing an enormous expenditure of judicial time and resources,1 Magistrate Judge Cosbey masterfully detailed this case as one of the sorriest examples of the way that this species of federal court litigation should be handled. Not surprisingly, a new barrage of paper has been filed by the defendant's attorneys objecting to the magistrate's Report and Recommendation. Attorneys Bauman and Klausen have filed a twenty-six (26) page Objection. They dwell at length on why Judge Cosbey should have assessed sanctions against Crawford and Thayer under § 1927 for various wrongs which the magistrate found not worthy of sanctions.

Frankly, those arguments are (like much of this saga) much ado about nothing. Judge Cosbey did find that attorneys Crawford and Thayer should be sanctioned under § 1927. Even if this court agreed that there were a couple of additional grounds for which sanctions should be imposed, the amount or significance of the sanction would not change. Attorneys Bauman and Klausen do not even request that the sanction be increased. This court is not going to split any more hairs in this case. The magistrate judge's determinations were amply supported by fact and law, and will be adopted by this court.

Attorneys Bauman and Klausen also object to the recommendation that they be sanctioned. They seem to believe that they are being sanctioned for "vigorously defending this case" and failing to settle, which they acknowledge would have resulted in a lower immediate cost to Wabash and the court. That is not at all correct. This court does not desire or encourage that defendants settle baseless cases because it is cheaper short term. Far from it! Such is a myopic policy which has precipitated a deluge of civil filings in the past thirty years, and costs society and business a great deal more in the long run. There are some baseless suits filed by unscrupulous lawyers which are little better than blackmail, and permitting that stratagem to pay off in the short term has created at least ten-fold higher costs in the long run. Such unscrupulous efforts should be resisted, but through reasonable means.

The problem of baseless suits is being dealt with by the federal courts through strict application of the law and summary judgment standards. See Russell v. AcmeEvans Co., 51 F.3d 64 (7th Cir.1995). Current Seventh Circuit law makes it almost impossible to get a baseless suit (and, unfortunately, many legitimate suits) to trial.2 Summary judgment procedures, when used appropriately, provide an efficient and relatively inexpensive method of dealing with the problem of groundless suits. The expense is born most heavily by the plaintiff (see Russell), providing a prophylactic and punishing result for baseless suits.

Furthermore, there is a difference between a vigorous, effective defense and the kind of gross overlitigation and unreasonable and vexatious multiplication of proceedings which occurred here. Vigorous defense of their client is not the basis for the magistrate judge's recommendation of sanctions against Bauman and Klausen. The magistrate judge, himself a former state court trial judge, was precisely on target when he found that this entire case has been litigated like a "back-alley knife fight" (R & R at 860), and the defense often used a "grapeshot and canister defense, when one or two well-aimed rifle shots would have done nicely" (R & R at 858). This case turned into a very ugly war between the lawyers, which was a disservice to their clients, the court, and the legal system. Judge Cosbey detailed ample reasons in support of his recommendation for sanctions against Bauman and Klausen, and this court will adopt that recommendation.

This court considers the sanctions herein imposed to be nominal, and more educative than punitive. To that end, it is appropriate that all parties bear the same sanction. This court hereby ADOPTS the Report and Recommendation of Magistrate Judge Cosbey, and imposes a monetary sanction of $500.00 each on Crawford, Thayer, Bauman, and Klausen, to be paid into the office of the Clerk of this court within sixty (60) days of the date of this order.3 However, each attorney may petition the court to set aside the monetary sanction by agreeing to attend and successfully completing, within one year from the date of this order, a CLE seminar as follows: attorneys Crawford and Thayer shall each attend a CLE seminar of at least six (6) hours on the substantive provisions of sexual harassment,4 and attorneys Bauman and Klausen shall each attend a CLE seminar of at least six (6) hours on Rule 11 and/or federal practice. The court believes that this is a fair and equitable end to a case which has been a virtual catalog of what is wrong with litigation today.

With some reluctance but for very good and sound reasons, this court is going to submit this memorandum decision as well as the Report and Recommendation of Magistrate Judge Cosbey to the West Publishing Company for publication in either the Federal Supplement or the Federal Rules Decisions. The reasons for this publication are emphatic. One is to display to the relevant legal world the hard realities of dealing with this species of litigation and to demonstrate how cases such as this should not be handled. Another reason is to advise the relevant legal world that this court has the deepest respect for the basics of the adversarial system and, therefore, must and should protect the legitimate rights of advocacy in these kinds of cases. It may well be that this court was too indulgent too early and should have dropped the hammer on these lawyers sooner than it did. However, hope springs eternal and the court believing in the adversarial system hoped that sanity would prevail before more drastic action was necessary. Obviously, it did not.

The final reason for publication is to issue a specific warning to those who might want to engage in a repetition of this kind of adversarial misbehavior. This court would hope that the publication of this will be educational to all concerned. IT IS SO ORDERED.

REPORT AND RECOMMENDATION

COSBEY, United States Magistrate Judge.

I. INTRODUCTION

On January 5, 1995, and in accordance with 28 United States Code section 636(b)(1)(B) of the Federal Magistrate's Act ("the Act") and N.D.Ind.L.R. 72.1(d) the district court entered an order referring this case to the undersigned Magistrate Judge to submit a Report and Recommendation on the Defendant Wabash National Corporation's ("Wabash") Motion for Sanctions filed December 27, 1994.1 Wabash supported its motion with four extensive volumes of materials.2

The target of the Motion, attorneys Marshall Crawford and A. Robert Thayer, (hereinafter "the Attorneys") filed a response on January 4, 1995. It was at that point that the matter was referred to the undersigned Magistrate Judge.

On January 20, 1995, the Magistrate Judge conducted a prehearing telephone conference and ordered Wabash to file an intelligible reply brief (essentially, another opening brief) not exceeding twenty-five pages, on or before January 27, 1995. At the same conference, the Attorneys were ordered to file by February 6, 1995, a sur-response brief not exceeding twenty-five pages; Wabash was ordered to then file a sur-reply brief, not exceeding fifteen pages, by February 13, 1995.3

On January 27, 1995, Wabash filed its recast opening brief and the Attorneys filed a sur-response on February 6, 1995 (essentially a recast response brief).

Wabash then filed a fifteen page sur-reply on February 13, 1995, however, this page limit was only achieved by a thin ruse, devised by Wabash's counsel, all in an effort to circumvent the requirements of Local Rule 7.1(b) and the Magistrate Judge's January 20, 1995 order.4 That sur-reply was stricken and Wabash was granted until February 24, 1995, to submit a proper sur-reply. On February 24, 1995, Wabash submitted another sur-reply (essentially a reply brief).

On April 18, 1995, the Magistrate Judge set the matter for hearing for May 18, 1995, and set a deadline for the filing of witness lists in the event that evidence had to be submitted. Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 227-8 (7th Cir.1984) (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 2465, 65 L.Ed.2d 488 (1980)) (Sanctions should not be assessed "without fair notice and an opportunity for a hearing on the record.") Counsel for both the Attorneys and Wabash subsequently waived the presentation of any...

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