Commercial Litigation and Arbitration

Failure to Participate in Drafting of Pretrial Order Sanctionable under Rule 16(f) — Lawyer Not Vicariously Liable under § 1927 for Failure to Monitor Co-Counsel

From FM Indus., Inc. v. Citicorp Credit Servs., 2010 U.S. App. LEXIS 15057 (7th Cir. July 22, 2010):

[Rule 16(f)]

Trial never occurred. Local rules require the parties to cooperate to produce a pretrial order. Northern District of Illinois Local Rule 16.1 Appendix ("Standing Order Establishing Pretrial Procedure") Instruction 6. The plaintiff's lawyer is supposed to produce a draft, which serves as the basis of discussion and modification. Wayne D. Rhine, the principal counsel for FM Industries, did not complete this task on time. When he finally produced a draft, it was egregiously non-compliant. (The problem here, and in much else that went wrong with the case, is that Rhine allowed [Plaintiff’s President and primary shareholder] Friedman, a non-lawyer, to draft many of the papers that were filed over Rhine's name. Rhine insists that he did not simply rent out his law license but instead reviewed and edited the documents before filing them. We accept that representation, but it also means that Rhine, who resumed legal practice in 2006 after 24 years as a judge of the Circuit Court of Cook County, Illinois, bears the responsibility for amateurish and absurd filings.) ***

Now represented by different counsel, FM Industries says that pretrial orders aren't all that important and that errors in their preparation shouldn't lead to dismissal. But Fed. R. Civ. P. 16(f)(1)(B) says that, when a party is unprepared to participate in the pretrial conference, a judge may use any of the sanctions mentioned in Fed. R. Civ. P. 37(b)(2)(A)(ii)-(vii). Subsection (v) in this list authorizes "dismissing the action or proceeding in whole or in part". That's what the judge did. (Contrast Smith v. Chicago School Reform Board of Trustees, 165 F.3d 1142 (7th Cir. 1999), which reversed a judge for using the sanction specified in Rule 37(b)(2)(A)(i), which is omitted from the authorization in Rule 16(f)(1)(B).)

It is not as if the judge acted precipitately. Rhine's failures were of both commission (bizarre drafts) and omission (producing nothing when a new draft was required, and not using defendants' drafts as the basis for his own proposals). The judge warned Rhine that failure to produce an appropriate draft and cooperate in negotiation would lead to dismissal. The warning did not work. And the real end did not come until, 11 weeks after the dismissal for want of prosecution, Rhine still had not produced a plausible draft pretrial order. A district judge need not wait forever. Eventually a plaintiff's failure to cooperate in the prosecution of its own suit leads to dismissal. The sanction must be proportional to the delict, *** but the problem with the pretrial order was just the straw that broke the camel's back. There were many more deficiencies, which surely influenced the dismissal order as well as the substantial awards of attorneys' fees. ***

[No Duty to Monitor Co-Counsel under § 1927]

Liability under § 1927 is direct, not vicarious. See Claiborne v. Wisdom, 414 F.3d 715, 722-24 (7th Cir. 2005) (liability is restricted to the misbehaving lawyer and may not be transferred to his partners or law firm). At oral argument defendants contended that McGrath could be held liable because he did not prevent Rhine from filing unreasonable and vexatious documents. Well, McGrath was not hired to do that, and no lawyer undertakes such a role for free. Section 1927 does not require every lawyer who files an appearance to review and vet every paper filed by every other lawyer. Neither the text of § 1927, nor any decision of which we are aware, imposes on any lawyer a duty to supervise or correct another lawyer's work. Nor did the district court give this as a reason for the award against McGrath. We appreciate that the judge was disgusted by the behavior of FM Industries and its counsel, but personal responsibility remains essential to an award of sanctions under § 1927.

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