Opinion
Master File 00 Civ. 2843 (LAK).
March 17, 2005
PRETRIAL ORDER NO. 356 ( Brown — Sanctions)
Pretrial Order No. 353 directed plaintiffs' counsel, Zoe Littlepage, Esq., to show cause why she should not be sanctioned pursuant to Fed.R.Civ.P. 11 for three reasons:
• First, she and her firm failed to respond appropriately when the family at least twice failed to document the 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 be 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 that 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.
Ms. Littlepage now has responded to the order to show cause.
With respect to the first two reasons, Ms. Littlepage correctly points out that Rule 11 applies only to the signing of the papers in question. Olivieri v. Thompson, 803 F.3d 1265, 1274-75 (2d Cir. 1986), cert. denied, 480 U.S. 918 (1987). Rule 11 sanctions for this behavior — the substance of which is not denied — therefore would be inappropriate. While sanctions might well be permissible in these circumstances under 28 U.S.C. § 1927, see id. at 1274, the Court declines to rely on that statute inasmuch as notice that it might do so was not given. Moreover, Section 1927 is designed primarily to afford a remedy to an opposing litigant, and the defendants have not sought relief thereunder. In all the circumstances, the Court has concluded that it will not impose sanctions with respect to the first two matters, although it wishes to make clear that it regards Ms. Littlepage's behavior as having been improper.
The third reason is another matter. In 2002, the Indiana Supreme Court squarely held "that only a personal representative appointed within two years of the decedent's death may file [an] action" under the Indiana Wrongful Death Statute. Goleski v. Fritz, 768 N.E.2d 889, 890 (2002). Notwithstanding that holding, Ms. Littlepage moved to substitute Mr. Tedesco, who first was appointed personal representative of the decedent long after the two year period had expired. Indeed, her motion did not disclose the existence of that decision in APPARENT violation of professional standards. See, e.g., Estate of Washington v. United States, 53 F.3d 1173, 1176 (10th Cir. 1995); N.Y. Code of Prof. Resp. DR 7-106(B)(1), NYCPR § 1200.37(B)(1); ABA Model Rule of Prof. Conduct R. 3.3(a)(2).
Ms. Littlepage argues that sanctions would be inappropriate because there was a "nonfrivolous argument for the extension, modification or reversal of existing law" on this point, see Fed.R.Civ.P. 11(b)(2), because the Goleski decision "did not expressly address the split of authority among the [Indiana] courts of appeals" on this point, Littlepage Mem. 6-7. This argument is baseless.
The problem with this argument is that whatever difference of opinion may have existed previously among lower courts in Indiana, the Indiana Supreme Court resolved the matter in Goleski. The fact that it did not refer to the previous differences of view is utterly immaterial. Furthermore, the notion that Ms. Littlepage moved to substitute Mr. Tedesco notwithstanding the ruling in Goleski because there was a nonfrivolous argument to change the law is belied by two salient facts. First, there is no doubt at all that this Court, as well as the Second Circuit and even the United States Supreme Court, is bound by the Goleski decision on a matter of Indiana law. Second, Ms. Littlepage did not make any argument for changing, modifying or extending the law on this point in litigating the motion to substitute Mr. Tedesko. Indeed, when the defense cited Goleski in opposition to the motion, she filed no response.
Ms. Littlepage is hereby sanctioned pursuant to Fed.R.Civ.P. 11(c)(1)(B) on the ground that her motion to substitute Mr. Tedesco violated Rule 11(b)(2) because the motion, contrary to the certification represented by her signature on it, was not warranted by existing law or by any nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law. The sanction imposed is a formal reprimand. Ms. Littlepage is directed to attach a copy of this ruling to any future application by her for permission to appear pro hac vice in this district.
SO ORDERED.