Opinion
Master File 00 Civ. 2843 (LAK).
February 22, 2005
PRETRIAL ORDER NO. 353 ( Brown — Sanctions)
The complaint in this case alleged that plaintiff Beth Hyde is the personal representative and executor [ sic] of the estate of Sue Tedesco. In the course of defendants' motion for summary judgment, plaintiffs admitted that, in fact, no personal representative had been appointed. On January 27, 2005, a will of Sue Tedesco, dated March 19, 1994, was admitted to probate, and letters testamentary were issued by the Indiana court to Charles Tedesco. The Court thereupon issued an order to show cause why plaintiffs' attorneys should not be sanctioned, pursuant to Fed.R.Civ.P. 11(1)(B), on the ground that the complaint's allegation that Beth Hyde was personal representative and executor [ sic] of the estate of Sue Tedesco lacked evidentiary support, see id. 11(b)(3).
Insofar as the order to show cause was directed to Edward H. Gersowitz, Esq., it is discharged without the imposition of sanctions. Mr. Gersowitz, who served only as local counsel, acted appropriately in all respects. He was justified in relying upon referring counsel.
Insofar as the order is directed to Zoe Littlepage, Esq., the matter is more complex.
The papers submitted by Ms. Littlepage and her associate indicate that her firm was contacted by the Tedesco family on or about January 21, 2000. At some point between then and Ms. Tedesco's death, the family informed the firm that it intended "to appoint Beth Hyde as personal representative. Brockman Aff. ¶ 5. In May, the the firm was informed by the family that Ms. Tedesco had passed away on March 27, 2000, and the firm requested that it be sent "confirming documentation regarding the estate issues." Id.
Later in 2000, Ms. Littlepage and her associate decided that the case should be filed in early December 2000. Id. ¶ 6. Work on the complaint began in late October or early November, and the pleading was forwarded in late November to local counsel in New York for filing. Id. ¶ 9. Local counsel then asked the Littlepage firm specifically whether Beth Hyde was the executor and personal representative of the estate. Id. ¶ 10. The Littlepage firm claims to have contacted the family and been so assured. Id. The complaint then was filed on or about December 4, 2000. Id. ¶ 11.
About a week later, the Littlepage firm received what its papers describe as "the Will of Sue Ann Tedesco." Id. ¶ 12. The copy of the will submitted with Ms. Littlepage's response to the Court's order to show cause (Ex. D) purports to name Beth L. Hyde and Mary Sue Brown as executors. But it is not the same will offered for and admitted to probate this year in Indiana. Indeed, this one is dated December 1, 1999 whereas the Indiana papers clearly state that the will admitted to probate was dated March 19, 1994. Moreover, the will admitted to probate in Indiana names Charles Tedesco as executor.
Beginning in July 2001, defense counsel began pressing plaintiffs for copies of the letters of administration for the Sue Tedesco estate. Brockman Aff. ¶ 16. On at least one subsequent occasion, a member of the family again assured the Littlepage firm that Beth Hyde was the executrix. Thus, at least through 2003, it appears that the Littlepage firm thought, based on the representations of the family, that Ms. Hyde in fact was the personal representative of the estate. While the family's failure to produce documentation in response to requests should have caused eyebrows to raise, the Court is not disposed to impose sanctions on that basis alone. But the story does not end there.
In early 2004, the Littlepage firm became aware that Ms. Hyde never had been appointed personal representative. It pressed the family to have that accomplished, engaging in "extensive communication with the family about this issue." Id. ¶ 17. Ms. Littlepage was kept informed, and "any pertinent issues were always brought to [her] attention for guidance and decision-making." Littlepage Aff. ¶ 7. But nothing was done until after defendants moved for summary judgment in December 2004. Brockman Aff. ¶ 18.
In these circumstances, Ms. Littlepage may be faulted in three respects.
First, she and her firm failed to respond appropriately when the family at least twice failed to document the alleged appointment of Ms. Hyde as personal representative, despite the firm's requests. These failures both predated and post-dated defendants' requests for documentation.
Second, from early 2004 until after defendants' moved for summary judgment, Ms. Littlepage allowed the complaint alleging that Ms. Hyde was the personal representative of the estate to stand despite the fact that she and her firm knew that Ms. Hyde never had been so appointed. This forced a partly unnecessary motion for summary judgment.
Third, Ms. Littlepage then proceeded to move to substitute Mr. Tedesco, in his capacity as executor, notwithstanding the failure of a personal representative to sue within two years of the date of death was fatal to the motion, as the most cursory research would have revealed. See PTO 351.
As the nature of the possibly sanctionable conduct revealed by the papers in response to the order to show cause has changed from that of which Ms. Littlepage originally was given notice, the original order to show cause (PTO 351) is discharged as to her as well. However, she now is ordered to show cause, on or before March 7, 2005, why she should not be sanctioned on the grounds set forth in the three preceding paragraphs pursuant to Fed.R.Civ.P. 11(b)(1) through (3). In addition, Ms. Littlepage is directed to bring this order to the attention of the Indiana probate judge who issued the letters testamentary to Charles Tedesco, this order, PTO 351, and her response to PTO 351, including the copy of the will dated December 1, 1999, which appears to be different from the will admitted to probate in Indiana.
SO ORDERED.