Commercial Litigation and Arbitration

Sanctions for Filing Claims Despite Prior Warnings and Court Orders — Recidivism — Client Who Could Not be Sanctioned for Frivolous Legal Claims Sanctioned for Improper Purpose — Prior Sanctions Award as a Benchmark

From Janky v. Batistatos, 2009 U.S. Dist. LEXIS 66680 (N.D. Ind. July 31, 2009):

[Ignoring Prior Warnings and Court Orders.]

[Plaintiff] Janky and her counsel apparently became convinced that Defendant's arguments were bogus. But they were informed, many times, that this wasn't the case. In the face of those multiple orders, not to mention sanctions and explicit warnings against future fee and sanctions requests, Respondents launched yet another complaint built entirely on the claim that Defendant's arguments in Janky I were baseless and frivolous. For Respondents to say, after all previous rulings to the contrary, that the defenses were without basis is, itself, a groundless statement. "[A] paper filed in the best of faith, by a lawyer convinced of the justice of his client's cause, is sanctionable if counsel neglected to make 'reasonable inquiry' beforehand." Mars Steel Corp. v. Cont'l Bank N.A., 880 F.2d 918, 932 (7th Cir. 1989). Respondents not only failed to make a reasonable inquiry into the relevant areas of law, but apparently failed to even read (or certainly take heed of) the orders issued in Janky I. ***


In considering Rule 11 sanctions, it's proper to review Respondents' history of litigation abuse and sanctions. See Johnson v. C.I.R., 289 F.3d 452, 457 (7th Cir. 2002)("The Tax Court was not required to ignore Izen's bad conduct in other cases; indeed it would have been remiss not to consider it."). See also, Cheek v. Doe, 828 F.2d 395, 398 (7th Cir. 1987); Chapman v. Charles Schwab and Co., 2002 WL 818300 (N.D.Ill. 2002); Antonelli v. Askew, 1996 WL 131177 (N.D.Ill. 1996); Portnoy v. Wherehouse Entertainment, 120 F.R.D. 73, 74-75 (N.D.Ill. 1988). Although Thibeault v. Square D Co., 960 F.2d 239, 246 n. 6 (1st Cir. 1992), cited by Respondents, notes that a lawyer's behavior in previous cases is just "one of many factors to be considered" when determining sanctions, the First Circuit also said in that opinion that it would be "blinking reality in not taking counsel's proven propensities into account." The Thibeault opinion, despite being raised by Respondents, is actually strong support for the inclusion of their litigation history in my Rule 11 analysis. ****

Respondents say that this history of sanctions "does not establish a pattern of litigation misconduct." ... But a pattern of misconduct is precisely what I see. Attorney sanctions are a rare enough event that the presence of even one would be a source of concern. But [counsel] have been sanctioned on multiple occasions over the past five years, to the point where it almost looks as though they are now flaunting their inappropriate conduct. Moreover, they were taken to task for the same sorts of offenses carried out in the present lawsuit — the constant re-arguing of already terminated claims for the purpose of harassment. Despite the sanctions ordered in Janky I, and the warning of further discipline should the behavior continue, Respondents — evidently undeterred — proceeded to file the meritless complaint in this case. The dense record of disciplinary steps taken against Respondents makes their conduct in this case, if it were possible, even more unreasonable for the simple fact that they should have known better by now. ***

[Prior Sanctions Award that Failed to Deter Misconduct as a Benchmark for Later Award.] Sanctions should be set at the amount believed to serve the deterrent purpose of Rule 11 — to prevent repetition of the improper conduct. Divane v. Krull Elec. Co., 319 F.3d 307, 314 (7th Cir. 2003); Fed.R.Civ.P. 11(c)(4). Since the sanctions were initiated by court order, and not by motion, Rule 11(c)(4) does not permit me to order the payment of attorney's fees. Divane, 319 F.3d at 1030. In Janky I, Judge Rodovich ordered sanctions pursuant to Rule 11 and on his own initiative. See Aug. 2, 2007 Docket Entry.... He imposed penalties in the amount of $3,500.00 against Attorney Reed and $1,500.00 against Attorney Hammonds payable to the Court.... his establishes a good starting point. As mentioned, Reed and Hammonds have been sanctioned not just in Janky I, but in previous cases outside this jurisdiction too. Given this history, a higher amount than what Judge Rodovich ordered is suitable for their most recent infractions, because previous sanctions have obviously not done the trick in deterring them from raising frivolous and redundant claims. Reed is therefore sanctioned in the amount of $10,000 and Hammonds in the amount of $5,000, payable to the U.S. District Court Clerk.

In addition, Attorneys Reed and Hammonds are prohibited from filing a complaint in a civil case on behalf of Cheryl Janky in this district without simultaneously posting a bond of $5,000 to cover the high probability of additional sanctions. This includes papers filed expressly in Janky's name as well complaints filed at her request or for her benefit. This measure is authorized by the Court's Rule 11 powers and taken to protect opposing litigants and the judicial system. See Sassower v. American Bar Ass'n, 33 F.3d 733, 736 (7th Cir. 1994); Jean v. Dugan, 29 F.Supp.2d 939, 941 (N.D. Ind. 1998).

[Client Who Cannot be Sanctioned for Frivolous Legal Claims Can be Sanctioned for Improper Purpose.]

Janky herself is also blameworthy to some extent. Although Rules 11(b)(2) and 11(c)(5)(A) do not permit courts to impose monetary sanctions upon represented parties for the presentment of frivolous claims, they still may be penalized with monetary sanctions under Rule 11(b)(1) for presenting claims for an improper purpose. See Simon DeBartolo Group, L.P. v. Richard E. Jacobs Group, Inc., 186 F.3d 157, 176 (2d Cir. 1999); Donahue v. Matrix Fin Servs. Corp., 110 F.3d 68, n. 1 (9th Cir. 1997); The Cancer Found., Inc. v. Cerberus Capital Mgmt, L.P., 2008 WL 927989, at * 8 (N.D. Ill. April 4, 2008). Although Janky may not have had the legal sophistication to understand that the second federal lawsuit was really just a disguised reiteration of the first, as the client she was the one who authorized the filing of the complaint and at some point must have or should have asked why. Because the circumstances support the conclusion that the motivation behind the suit was to harass and increase costs for Defendants so as to bring about settlement of the already pending suits, she shares responsibility in bringing the claim for an improper purpose. She gains no sympathy for being a layperson unfamiliar with the intricacies of the legal system. One would hope that she had read the numerous orders and opinions issued in Janky I that warned the parties to cease their inappropriate filings. See accord, Jean, 29 F.Supp.2d at 940 (noting that client should have become actually or constructively aware of counsel's prior sanctionable conduct during dispute and inferring that subsequent suit was intended by both client and counsel to harass their opponents.) But even if Janky never set a glance to the written frustrations of Judges Cherry and Rodovich, or paid attention to the multiple occasions her own lawyers were sanctioned, she was at least made aware of the risks of bringing nuisance claims when she was personally sanctioned for maintaining an unsupportable jurisdictional argument.... To reemphasize the point that she somehow missed on the first go-around, Janky is now sanctioned with a monetary penalty of $ 1,000. ***

Enough is enough. It is apparent that neither side can take the hint, and I am half convinced that both parties are treating matters as a joke. But the best medicine will be to just end things. Respondents will be sanctioned for their bringing of the current lawsuit, pursuant to the Court's Rule 11 powers. It was the filing of the second federal suit that opened Pandora’s box and is the action most in need of court response in order to prevent future conduct. Although certainly the more innocent party, the Defendants' latest Rule 11 motion strikes me as an overreach.... Tacking on additional Rule 11 sanctions to those already ordered will produce only the most marginal of additional deterrent incentive, and for all I know, may just as likely prompt a new cavalcade of filings. I will therefore wade no deeper into this morass. The Respondents' subsequent motion to strike and both parties' motions for Rule 11 sanctions are all dismissed.

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