Commercial Litigation and Arbitration

Because of Reputational Impact, Sanction of Reprimand Is a Sufficient Deterrent without an Award of Attorneys’ Fees

From Gary v. Braddock Cemetery, 2009 U.S. App. LEXIS 12431 (3d Cir. June 8, 2009):

Appellants ... argue that the District Court abused its discretion by declining to impose monetary sanctions because the mere public filing of the R&R [Report and Recommendations] is not sufficient to "deter baseless filings." Although we may well have been inclined to impose monetary sanctions on this record if we had been standing in the shoes of the Magistrate Judge and the District Judge, we cannot say the choice of a public rebuke was unreasonable or contrary to the law.

Rule 11 directs the district court to limit sanctions to "what suffices to deter repetition of the conduct or comparable conduct by others similarly situated." Fed. R. Civ. P. 11(c)(4). Appellants imply that publicly filing an opinion which finds that Plaintiffs' attorneys violated Rule 11, without more, is nothing more than a slap on the wrist. However, as Justice Stevens once observed, "most lawyers are wise enough to know that their most precious asset is their professional reputation." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 413, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990) (Stevens, J., concurring in part and dissenting in part). Nearly four centuries ago, a similar observation was made by no less an observer of human nature than William Shakespeare. He famously wrote: "Good name . . . [i]s the immediate jewel of [our] souls: Who steals my purse steals . . . nothing; . . . But he that filches from me my good name / Robs me of that which not enriches him, / And makes me poor indeed." Othello act 3, sc. 3. The wisdom of that observation has survived the test of time, having endured since 1603.

Thus, a public reprimand of an attorney by a federal judge is not to be taken lightly. It is a public rebuke that can reverberate within the legal community and have a profound impact on one who is supposed to stand as an officer of the court and conduct himself/herself accordingly. We sincerely doubt that Plaintiffs' counsel, nor any other member of the legal community will take the sanction that was imposed here lightly.

[Footnote 3] Moreover, in this cybernetic age, the rebuke is accessible to anyone and everyone who has access to the omnipresent internet and the time and curiosity to enter a few simple keystrokes into a search engine.

While the Appellants are understandably frustrated by the time and expense incurred in defending against this meritless lawsuit, and disappointed that more was not done, it must be remembered that Rule 11 is not "a general fee shifting device." Gaiardo v. Ethyl Corp., 835 F.2d 479, 483 (3d Cir. 1987). Moreover, although this record reflects a continued course of vexatious conduct on the part of Plaintiffs' counsel, we nevertheless can not conclude that the conduct requires us to interfere with the decision of the District Judge or Magistrate Judge who are more "[f]amiliar with the issues and litigants" than we are. Cooter, 496 U.S. at 402. The judgment of the District Court is therefore affirmed.

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