Commercial Litigation and Arbitration

Improper Ex Parte Correspondence with Court — Intended to Influence Proceedings — Is a Sanctionable “Other Paper” within Rule 11

From Pritchard v. Dow Agro Sciences, 2009 U.S. Dist. LEXIS 53905 (W.D. Pa. June 25, 2009):

The instant dispute arose from Plaintiff Robert Ted Pritchard's ("Mr. Pritchard") numerous ex parte communications with the Court and his dissemination of a letter containing allegedly defamatory communications regarding his former counsel and one of the defense counsel. ***

*** In light of the receipt of said ex parte communications from Mr. Pritchard, the missed deadline by which Plaintiffs had been granted leave to secure additional counsel and conduct expert discovery, and a pending mediation date, the Court scheduled a status conference on March 9, 2009.... Prior to the status conference, Plaintiffs' then counsel filed a Motion to Withdraw as Attorney.... After further discussion and with agreement by Mr. Pritchard, Mr. Sholtis agreed to continue representing Plaintiffs until substitute counsel entered an appearance or Plaintiffs entered appearances pro se. Mr. Pritchard was also instructed that he was not permitted to make any further communications to the Court or any of the defense counsel while he was still represented by counsel.


Mr. Pritchard has been ordered to show cause why his dissemination of the March 12, 2009 letter is not in violation of Federal Rule of Civil Procedure 11(b). Rule 11(b) states, in pertinent part:

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

(1) it is not presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.


Here, the Court entered an Order to Show Cause ("Show Cause Order") pursuant to Rule 11(c)(3) in which it ordered Plaintiff to show why his circulation of the email of March 12, 2009 should not warrant sanctions. Plaintiff maintains he should not be sanctioned under Rule 11 as the Rule is not directed to his communications with the Court and members of the Allegheny County and Fayette Bar Associations.... In response, Defendants argue that Mr. Pritchard's conduct is sanctionable under Rule 11 because Plaintiff violated the Court's Show Cause Order by filing various motions rather than producing the documents specified in the Order....

The purpose of Rule 11 is to deter the filing of frivolous lawsuits in the district courts. U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 392-93 (3d Cir. 2002)(citing Business Guides, Inc. v. Chromatic Commc’ns Enters., 498 U.S. 533, 552 (1991)). Generally, letters and correspondences are not considered "other papers" or "filings with the District Court." VDI Techs. v. Price, 781 F. Supp. 85, 95 (D.N.H. 1999); GREGORY P. JOSEPH, SANCTIONS: THE FEDERAL LAW OF LITIGATION ABUSE § 5(D)(2)(a) (4th ed. 2008) ("A paper — like a letter — that has not been, or is not required to be, presented to the court is not a ‘paper’ for which Rule 11 sanctions are available."). In the limited situation where letters substitute for more formal court papers, such correspondence is subject to the strictures of Rule 11. See Legault v. Zambarano, 105 F.3d 24, 27-28 (1st Cir. 1997).

In Legault, the plaintiff's counsel sent a letter to the magistrate judge three days before a preliminary injunction hearing "with the intent to influence the court, at a time and in a manner calculated to insure its impact." ... The United States Court of Appeals for the First Circuit held that this was sanctionable conduct under Rule 11 but noted that "[c]ourts have been properly reluctant to characterize a letter generally as an 'other paper' in weighing Rule 11 sanctions." ... In McDonald v. Khurshid, Civ. A. No. 04-5736RJB, 2006 WL 1328869 (W.D. Wash. May 15, 2006), the defendant sent numerous pleadings, motions, and letters full of inflammatory and harassing remarks completely irrelevant to the matter at hand and, for these reasons, the court imposed sanctions pursuant to Rule 11....

Here, Mr. Pritchard wrote letters to the Court, Mr. Padgett, and Ms. Brown discussing settlement and his intention to go to the news media about Dow, and made similar settlement demands at the March 9, 2009 status conference. Mr. Pritchard then wrote the March 12, 2009 letter to the United States Attorney's Office specifically addressing United States Attorney Mary Beth Buchanan and Assistant United States Attorney Robert Cessar. He copied the Court on this correspondence, then disseminated the letter in an email to a number of attorneys, and law clerks, as well as the Court.... Mr. Pritchard also sent documents, photographs, and other materials to attorneys involved in this case after being specifically instructed not to do so.... While these letters appear to be on the boundary of what is considered an "other paper," in this Court's estimation, it is reasonable to infer that Mr. Pritchard sent these missives with the intent of influencing the Court to look favorably on his position and force Defendants into settlement negotiations, especially in light of the March 9, 2009 conference wherein Mr. Pritchard demanded settlement monies, which demand was refused by Defendants. See Legault, 105 F.3d at 28 (holding that sending a letter with clear intent to influence a court is sanctionable under Rule 11). Accordingly, Mr. Pritchard is subject to sanctions under Rule 11 for his correspondence. ***


D. Sanctions under the Court's Inherent Authority

Defendant contends that the Court should also impose sanctions under its inherent authority.... The term "inherent power" has been employed in a variety of ways. See generally Eash, 757 F.2d at 562 (3d Cir. 1985); see also GREGORY P. JOSEPH, SANCTIONS: THE FEDERAL LAW OF LITIGATION ABUSE § 26(A)(1) (4th ed. 2008). "It has long been understood that 'certain implied powers must necessarily result to our Courts of justice from the nature of their institution', powers 'which cannot be dispensed within a Court, because they are necessary to the exercise of all others.'" Chambers v. NASCO, Inc., 501 U.S. 32, 42 (1991)(quoting United States v. Hudson, 11 U.S. 32 (1812)). Courts are vested with powers "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962). One of these powers is the power to punish for "contempts of authority." Ex parte Robinson, 86 U.S. 505 (1874). The contempt power falls into the general category of those powers "necessary to the exercise of all others." Roadway Express v. Piper, 447 U.S. 752, 764 (1980); see also Eash, 757 F.2d at 562.

The Court of Appeals for the Third Circuit recognizes the district courts' inherent authority to impose sanctions. See Institute for Motivational Living, 110 Fed.Appx. at 287; Eash, 757 F.2d at 562. In general, a court should exercise caution in resorting to inherent authority and look to the Federal Rules of Civil Procedure or a relevant statute prior to such exercise. Chambers, 501 U.S. at 50. However, if no rule or statute is available to sanction the present conduct, then a court may exercise its inherent authority. Id.; In re Prudential Ins. Co. Am. Sales Practice Litig. Actions, 278 F.3d 175, 189 (3d Cir. 2002).

Because Rule 11 applies to Mr. Pritchard's conduct, the Court will not impose sanctions under its inherent authority. Chambers, 501 U.S. at 50 (noting that courts should generally refrain from resorting to their inherent authority to impose sanctions when an appropriate rule applies).

Held, in light of plaintiff’s mental condition, indigence and cessation of misconduct, and retention of new counsel, previously-ordered written apology is the appropriate sanction.

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