Opinion
Civil Action No. 3:02-CV-1823-M.
December 14, 2004
MEMORANDUM OPINION AND ORDER
Pursuant to the Court's August 18, 2004 Memorandum Opinion and Order ("Opinion"), Donald H. Flanary, lead counsel for the Plaintiff, was ordered to show cause why Federal Rule of Civil Procedure 11(b)(3) was not violated by his conduct in this case. After considering Mr. Flanary's Response, the Court finds that a sanction in the form of the reprimand contained herein is appropriate for Mr. Flanary's violation of Rule 11(b)(3).
Mr. Flanary, as lead counsel for the Plaintiff, is responsible for making a serious misrepresentation of the factual record in a brief filed with this Court. In Plaintiff's Brief in Support of Plaintiff's Response in Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Brief"), Plaintiff claims that one of the Defendants, in speaking to the Plaintiff, who is African American, said "Boy, I would not let you treat my dog." (Pl. Resp. Br. at 43). Plaintiff's Brief cites the Plaintiff's affidavit as evidentiary support for this quotation. Id. However, Plaintiff's affidavit, which was submitted to the Court as part of Plaintiff's Appendix to Plaintiff's Brief, does not include the word "boy," and there is no other evidence in the record that such a statement was made. (Pl. App. Resp. Br. at 702). Mr. Flanary avers that this mis-citation was an inadvertent error made by a second-year associate in his firm. However, Mr. Flanary had the duty to ensure that the facts cited in Plaintiff's Brief, were correct, and that he did not base his legal arguments on false contentions of fact. This erroneous quotation was not a minor error. The addition of the word "boy" materially changed the accurate quotation in a significant way. On its own Motion, the Court finds that Plaintiff's counsel violated Federal Rule of Civil Procedure 11(b)(3) by failing to engage in an inquiry reasonable under the circumstances prior to making the contention that the record contained the statement cited.
Rule 11 is "designed to `reduce the reluctance of courts to impose sanctions, by emphasizing the responsibilities of attorneys, and reinforcing those obligations through the imposition of sanctions.'" Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018, 1023 (5th Cir. 1994) (citing Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 870 (5th Cir. 1988) (en banc)). Mr. Flanary's conduct implicated Federal Rule of Civil Procedure 11(b)(3). This rule requires attorneys to certify that to the best of their knowledge "the allegations and other factual contentions [in the document filed with the Court] have evidentiary support. . . ." Fed.R.Civ.P. 11(b)(3). Attorneys have a duty to conduct a "reasonable inquiry into the facts and law of a case at the time [at] which [he or she] affixes [his or her] signature on any papers to the court." Mercury Air Group, Inc. v. Mansour, 237 F.3d 542, 548 (5th Cir. 2001).
In determining whether Mr. Flanary conducted a reasonable inquiry as required by Rule 11(b)(3), the Court examined "the time available for investigation; the extent to which an attorney relied on his client for factual support; the feasibility of a pre-filing investigation; whether the attorney accepted the case from another member of the bar; the complexity of the factual and legal issues; and the extent to which the development of the factual circumstances of the claim requires discovery." Thornton v. GMC, 136 F.3d 450, 454 (5th Cir. 1998). The Court is persuaded that none of those factors excuse Mr. Flanary from his duty to ensure the accuracy of the critical quotation in question.
This erroneous quotation could have been discovered through simple proofreading. Mr. Flanary had adequate time to draft Plaintiff's Brief and to verify its accuracy. The factual record which Mr. Flanary used as evidentiary support for this citation was the affidavit of his client. This affidavit was notarized on the very day that Plaintiff's Brief was filed, and was apparently notarized in Mr. Flanary's own office. There was no need for Mr. Flanary to "recall" the evidence supporting this quotation because the evidence was generated the day of the rush to complete Plaintiff's Brief. All Mr. Flanary had to do was review the eleven-page affidavit, prepared that very day, to ascertain whether that the quotation was incorrect.
Ms. Kathy Jones-Anderson notarized the affidavits of Plaintiff G. Mark Jenkins, M.D., Dianna Barnhouse, Rona Harrison, Javier Valadez, and Linda Harvey, a contractor who performed paralegal duties for Mr. Flanary's law firm. The affidavits of Dr. Jenkins and Ms. Harvey were notarized on November 4, 2003, the very day Plaintiff's Brief was filed. The Court presumes that Ms. Jones-Anderson was employed at Mr. Flanary's law firm.
Further, the error was pointed out in the Defendants' Reply Brief, filed on November 19, 2003, yet Mr. Flanary did not withdraw the erroneous quotation until after he was questioned about it by the Court during the January 13, 2004 hearing on Defendants' Motion for Summary Judgment. In other words, for roughly two months, Mr. Flanary allowed this false quotation to remain in the public record although as a result of reading Defendants' Reply Brief (which the Court assumes he did) Mr. Flanary either knew, or should have known, the quotation to be inaccurate. Mr. Flanary had reasonable means and more than ample time to discover and correct this significant error. It is wholly unreasonable that Mr. Flanary failed (a) to check the accuracy of a quotation so important in light of his client's case and (b) to correct it immediately when the error was pointed out to him.
Defendant's Reply Brief states that Plaintiff felt the need to "`sex up' [a Defendant's] alleged `dog' statement by — utterly falsely — putting it between quotation marks prefaced by the racially charged exclamation, `Boy. . . .'" Reply Br. Supp. Def. Mot. Summ. J. at 22 (citing Pl. Resp. Br. at 43).
"District courts have an independent duty to maintain the integrity of the judicial process and may impose Rule 11 sanctions where necessary. . . ." Whitehead v. Food Max of Miss., Inc., 332 F.3d 796, 808 (5th Cir. 2003). The erroneous inclusion of the word "boy" in the statement attributed to one of the Defendants, if relied upon by the Court, could have altered the outcome of this discrimination case. See generally, Callicutt v. Pepsi Bottling Group, No. 00-95, 2002 U.S. Dist. LEXIS 8894, *26 (D. Minn. May 13, 2002) ("Without question, the racial epithets of `nigger,' `blacks,' or `boy,' qualify as discriminatory comments based on race."). The Court holds Mr. Flanary, who is lead counsel, personally responsible for his unprofessional conduct in not verifying the accuracy of the alleged quotation and in not promptly withdrawing it when the error was pointed out in Defendants' Reply Brief.
"Rule 11 limits sanctions `to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.'" Whitehead, 332 F.3d at 808 (citing Fed.R.Civ.P. 11(c)(2)) (upholding a district court decision to sanction an attorney in a published opinion and requiring him to pay reasonable attorney fees incurred as a direct result of his offense). The Court reprimands Mr. Flanary for his conduct, which is the sanction the Court deems necessary to deter similar conduct by Mr. Flanary and others similarly situated. Mr. Flanary's request to keep the Show Cause Order and the Court's Opinion on this matter under seal is DENIED.
SO ORDERED.