Opinion
No. 00 C 7520
August 14, 2001
REPORT AND RECOMMENDATION
Before the Court is Defendant Rosenthal Collins Group's ("Rosenthal") Motion for Sanctions, pursuant to 28 U.S.C. § 1927 (West 2001) and Rule 11 of the Federal Rules of Civil Procedure. For the reasons set forth below, this Court recommends that Defendant's Motion for Sanctions be granted.
BACKGROUND
In November 1994, several German citizens filed a putative class action complaint against Rosenthal, alleging various securities fraud violations. See Aspacher, et al. v. Kretz, No. 94 C 6741, 1998 WL 901683, at *1 (N.D. Ill. Dec. 19, 1998) (" Aspacher I"). On December 5, 1995, by way of the class' attorney, Plaintiff Christopher Aspacher became a named plaintiff in the class action's second amended complaint. (Notice of Removal ¶ 7.) On August 20, 1996, Judge Gettleman granted Rosenthal's combined motion to dismiss and for summary judgment, thereby terminating the case. Aspacher, 1998 WL 901683, at *1. However, on June 3, 1997, Judge Gettleman revived Plaintiff's cause of action by granting Plaintiff's motion for reconsideration and vacating the previous ruling in favor of Rosenthal. Id. Discovery ensued, but Judge Gettleman apparently destroyed the class by dismissing the majority of plaintiffs for failing to comply with Rosenthal's discovery requests. See Id. In response to these dismissals, Plaintiff's counsel attempted to revert the case back to a class action in hopes of reinstating as class members those plaintiffs who had been dismissed. Id.. at *2. Notably, Plaintiff's counsel argued that the Illinois Savings statute, 735 ILCS 5/13-217 (West 2001), provided the dismissed plaintiffs up to one year to re-file their lawsuit; thus, he argued, the Court should allow these plaintiffs to be included in an amended complaint. Id. Judge Gettleman explicitly rejected this argument, stating that "[d]ismissals with prejudice are adjudications on the merits," including those "labeled as a dismissal for want of prosecution." Id. (citations omitted)
On March 21, 2000, Judge Gettleman granted Rosenthal's motion for summary judgment against 255 of the 262 named plaintiffs. See Aspacher, et al. v. Kretz, No. 94 C 6741, 2000 WL 298906, at *8 (N.D. Ill. March 21, 2000); ( See Minute Order April 6, 2001.) Judge Gettleman also dismissed all of the remaining seven plaintiffs' claims, except those for common law and statutory fraud, and expressed doubt as to how these plaintiffs could establish liability against Defendant in light of the record before the court. Aspacher, 2000 WL 298906, at *5 n. 4. Further, Judge Gettleman directed Plaintiff's counsel to provide the names of the remaining plaintiffs who had not been dismissed for discovery abuses, and ordered him to appear for a status report on May 4, 2000. Id. at *9. The record is unclear as to whether Plaintiff's counsel provided the court with these plaintiffs' names, but does indicate that he missed the status hearing, allegedly because he "inscribed the wrong date into his diary." (Response to Motion for Sanctions ["Pl.'s Resp."] ¶ 4.) Consequently, Judge Gettleman dismissed Plaintiff's only remaining claims, common law and statutory fraud, for want of prosecution on May 4, 2000. ( See Minute Order April 6, 2001.) Plaintiff's counsel took no affirmative steps to contest this ruling, despite having several procedural safeguards available. See Fed.R.Civ.P. 59(e) (motion to alter or amend judgment); Fed.R.Civ.P. 60(b) (relief from a final judgment available when "excusable neglect" present); Daniels v. Brennan, 887 F.2d 783, 783 (7th Cir. 1989) (appeal from Judge Conlon's order that case be dismissed for want of prosecution).
Less than five months after Aspacher's claims were dismissed from federal court for want of prosecution, on September 29, 2000, Plaintiff's counsel "re-filed" a class action suit (" Aspacher II")in the Circuit Court of Cook County, Illinois, alleging "identical" common law and statutory fraud claims as those litigated in Aspacher I and, again, naming Christopher Aspacher as a plaintiff. ( See Pl.'s Compl. ¶¶ 6, 7; Minute Order April 6, 2001.) The case was subsequently removed to federal court on November 30, 2000. (Notice of Removal ¶ 12.) On March 19, 2001, Defendant moved for judgment on the pleadings pursuant to Federal Rule 12(c), or in the alternative, for summary judgment pursuant to Federal Rule 56, claiming that the doctrine of res judicata barred Aspacher's cause of action. ( See Rosenthal Collins Group's Motion for Judgment on the Pleadings Pursuant to Rule 12(c) or in the Alternative for Summary Judgment Pursuant to Federal Rule 56 ("Def.'s 12(c) Motion"] ¶ 6.) Significantly, in response to Defendant's motion, Plaintiff again raised 735 ILCS 5/13-217, arguing that the Illinois Savings statute precluded the application of res judicata. (Pl.'s 12(c) Memo at 3-5.) On April 6, 2001, the District Court granted Defendant's motion for judgment on the pleadings after concluding that Plaintiff's claims were barred by res judicata. (Minute Order April 6, 2001.) The court did not specifically address the Illinois Savings statute, but Plaintiff correctly deduced that "735 ILCS 5/13-217 did not override the provision of Rule 41 that all dismissals are with prejudice unless otherwise provided." (Pl.'s Resp. ¶ 8.)
Plaintiff's counsel, himself, categorizes the state court class action as a re-filing of Aspacher I. ( See Plaintiff's Memorandum of Law in Opposition to Rosenthal Collins Group's Motion for Judgment on the Pleadings Pursuant to Rule 12(c) or in the Alternative for Summary Judgment Pursuant to Federal Rule 56 ["Pl.'s 12(c) Memo"] at 2.)
Fourteen days after the court granted Defendant's motion for judgment on the pleadings, on April 20, 2001, Plaintiff filed a "Motion for Clarification Under Rule 59(e) or Alternatively, for Reconsideration." (Motion For Sanctions ["Def.'s Sanctions Motion"] ¶ 9.) Plaintiff filed this motion because the District Court's Memorandum Opinion and Order dismissing the case did not directly discuss 735 ILCS 5/13-217. (Motion for Clarification Under Rule 59(e) or Alternatively, for Reconsideration ["Pl.'s Clarification Motion"] ¶ 3.) However, Plaintiff failed to proffer any new evidence or arguments explaining why the District Court's April 6 decision was erroneous. ( See Def.'s Sanctions Motion ¶ 9.) On April 23, 2001, Defendant sent a letter to Plaintiff's counsel requesting that he withdraw this latest motion, explaining that if he did not comply with this request, Rosenthal would move for sanctions pursuant to 28 U.S.C. § 1927 and Rule 11 because the motion was "meritless and frivolous." (Def.'s Motion ¶ 10, Def.'s Motion Ex. 1.) Despite this "warning shot" Plaintiff refused to withdraw his motion. The court granted Defendant's motion for clarification, but denied the motion for reconsideration. (Pl's Resp. ¶ 9.) In its clarification order, the district court relied upon Blaszczak v. City of Palos Hills, 463 N.E.2d 762, 764 (Ill.App.Ct. 1984), which explicitly stated that "the effect of a dismissal for lack of prosecution in a [f]ederal district court is governed by Federal law, not by state law, even though [f]ederal jurisdiction was based upon diversity." (citations omitted).
"To prevail on a motion for reconsideration under Rule 59, the movant must present either newly discovered evidence or establish a manifest error of law or fact." Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000), cert. denied, 121 S.Ct. 1097 (2001) (citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995). A party's disappointment with a ruling does not demonstrate a "manifest error;" rather, the party must show "the wholesale disregard, misapplication, or failure to recognize controlling precedent." Id.
DISCISSION
Defendant moves for sanctions under 28 U.S.C. § 1927 and Rule 11, seeking $42,163.76 in attorneys' fees and costs associated with the defense of this case after Plaintiff continued to litigate Aspacher II, despite it being removed to federal court. Accordingly, the Court must determine if Plaintiff's failure to voluntarily dismiss the case upon its removal to federal court on November 30, 2000, constitutes conduct sanctionable under either 28 U.S.C. § 1927 or Rule 11, or both.
Defendant, correctly, does not seek sanctions against Plaintiff for "re-filing" Aspacher II in state court ( See Def.'s Sanctions Motion ¶¶ 17-21) because a district court cannot sanction attorneys for their conduct where jurisdiction is lacking. See Schoenberger v. Oselka, 909 F.2d 1086, 1087 (7th Cir. 1990). However, as explained infra, the Court seriously questions Plaintiff's decision to "re-file" this case in state court after it was dismissed under Rule 41(b) ( with prejudice) in federal court, considering the Illinois Appellate Court's holding that the predecessor to 735 ILCS 5/13-217 (section 24 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 24a) could "not be reasonably construed to apply to dismissals on the merits by federal courts of competent jurisdiction." Martin-Trigona v. Gouletas, 433 N.E.2d 1132, 1134 (Ill.App.Ct. 1982); accord, Blaszczak v. City of Palos Hills, 463 N.E.2d 762, 765 (Ill.App.Ct. 1984)
I. Sanctions Pursuant to 28 U.S.C. § 1927
Under 28 U.S.C. § 1927, a district court may order an attorney who "multiplies the proceedings in any case unreasonably and vexatiously" to reimburse, personally, the opposing party's "excess costs, expenses, and attorney's fees reasonably incurred because of such conduct." Liability under § 1927 is justified only in those limited situations when an attorney's conduct is marked by either subjective or objective bad faith. Pacific Dunlop Holdings v. Barosh, 22 F.3d 113, 120 (7th Cir. 1994). Hence, the Seventh Circuit has concluded that such sanctions are appropriate (1) in "instances of a serious and studied disregard for the orderly processes of justice," Ross v. City of Waukegan, 5 F.3d 1084, 1089 n. 6 (7th Cir. 1993), (2) when an attorney "pursues a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound," Kapco MEg. Co., Inc. v. C O Enters., Inc., 886 F.2d 1485, 1491 (7th Cir. 1989) (citation omitted), and/or (3) "where a `claim [is] without a plausible legal or factual basis and lacking in justification.,'" Burda v. M. Ecker Co., 2 F.3d 769, 777 (7th Cir. 1993) (citations omitted). With this guidance, "it is within the sound discretion of the district court whether to grant or to deny sanctions under § 1927." Ross, 5 F.3d at 1089 n. 6.
Defendant contends that sanctions are appropriate under both 28 U.S.C. § 1927 and Rule 11 because Plaintiff "re-filed a baseless claim already previously dismissed on the merits" in which "the defense of res judicata loomed large and should have been anticipated by [Plaintiff's attorney]." (Rosenthal Collins Group's Reply Memorandum of Law In Support of Its Motion For Sanctions ["Def.'s Sanctions Reply") at 5.) To support this contention, Defendant points out that the Illinois Savings statute — upon which Plaintiff bases his "re-filing" of Aspacher II — "appl[ies] solely to statute of limitations defenses." Id.; See Cook v. Starling, 104 F.R.D. 468, 469 (N.D. Ill. 1985) (Illinois courts apply 735 ILCS 5/13-217 "if the relevant limitations period has run"). Further, Defendant argues that this statute "does not save cases involuntarily dismissed in [f]ederal [c]ourt pursuant to Federal Rule of Civil Procedure 41(b)," and "has no application where res judicata bars the claim." Id. at 6; See Martin-Trigona, supra, 433 N.E.2d at 1134 (under the doctrine of res judicata, an adjudication on the merits pursuant to Rule 41(b) bars the Illinois Savings statute).
Plaintiff primarily defends his decision to continue litigating this case after it had been removed from state court on the ground that he had a good-faith belief that the Illinois Savings statute, 735 ILCS 5/13-217, would be considered substantive law under the Erie doctrine, and thus, "would have allowed this case to go forward to consideration on the merits." (Pl.'s Resp. ¶ 19.) To support this assertion, Plaintiff relies upon three cases, each standing for the same basic premise: federal courts must apply the Illinois Savings statute when sitting in diversity. Specifically, Plaintiff cites (1) Cook, 104 F.R.D. at 469, in which the district court applied the Illinois Savings statue, reasoning that in "a diversity suit, the Erie doctrine commands that we apply the same statute of limitations that an Illinois state court would apply;" (2) Abdallah v. Slagg, 803 F. Supp. 220, 222 (N.D. Ill. 1992), where the district court concluded that a federal court sitting in diversity should apply the Illinois Savings statue because it is substantive in nature under the Erie doctrine; and (3) Locke v. Bonello, 965 F.2d 534, 537 (7th Cir. 1992), where the Seventh Circuit determined that the one year grace period provided by the Illinois Savings statute was tolled in federal court while the defendant's appeal was pending in state court.
These cases are inapposite to the case sub judice because they are distinguishable for two obvious reasons. First, each of these cases was voluntarily dismissed by the plaintiff, and not, as here, involuntarily dismissed by the court for want of prosecution. Voluntary dismissals are presumed to be without prejudice, as contrasted to involuntarily dismissals, which are presumed to be with prejudice. See Fed.R.Civ.P. 41 (a)(b). This distinction is of grave importance: a dismissal without prejudice "is a dismissal without barring the defendant from returning later, to the same court, with the same underlying claim," while dismissals with prejudice are "shorthand for `an adjudication upon the merits.'" Semtek Int'l Inc. v. Lockheed Martin Corp., 121 S.Ct. 1021, 1026-1027 (2001). Second, despite knowing that the doctrine of res judicata is at issue in the case sub judice, Plaintiff curiously relies upon cases involving solely statute of limitations issues. Because Plaintiff posits that these cases support his contention that 735 ILCS 5/13-217 provided a sound path for the litigation of this case, the Court questions whether Plaintiff truly comprehends the Illinois Savings statute. Accordingly, the Court takes this opportunity to briefly explain this statute in context of the present case.
As one of the cases cited by Plaintiff clearly states, the Illinois Savings statute "establishes a one-year grace period" up and above the statute of limitations "in which a plaintiff may [re]file if his first cause of action is dismissed." Locke, 965 F.2d at 535. This statute commonly applies to plaintiffs who originally file within the statute of limitations, voluntarily dismiss the case without prejudice after the statute of limitations has run, and then "re-file" within one year of the dismissal. See Gendek v. Jehangir, 518 N.E.2d 1051, 1052 (Ill. 1988). In other words, "[t]he statute only saves cases otherwise barred by the statute of limitations." (Minute Order May 22, 2001.) Importantly, when a suit is dismissed with prejudice, any issue concerning the statute of limitations "will be moot because a suit that has been dismissed with prejudice cannot be refiled; the refiling is blocked by the doctrine of res judicata." Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000). Thus, when the district court dismissed Aspacher I for want of prosecution, the dismissal under Rule 41(b) was with prejudice, and precluded the case from being "re-filed." See Id.; Costello v. United States, 365 U.S. 265, 286 (1961) ("failure of the plaintiff to prosecute" under Rule 41(b) operates as an adjudication on the merits). Consequently, it should have been readily apparent to Plaintiff that the Illinois Savings statute is inapplicable to the case sub judice because the doctrine of res judicata controls.
Unless the court states otherwise, a dismissal for want of prosecution under Rule 41(b) of the Federal Rules of Civil Procedure "operates as an adjudication on the merits." See also, Kimmel v. Texas Commerce Bank, 817 F.2d 39, 40-41 (7th Cir. 1987) ("[w]hen the district court dismissed the [plaintiff's) first complaint without stating whether the dismissal was on the merits, that dismissal became a final judgment on the merits under Rule 41(b)").
Plaintiff does correctly observe that, under Illinois law, a dismissal for want of prosecution is a dismissal without prejudice. Twardowski v. Holiday Hospitality Franchising, Inc., 748 N.E.2d 222, 226 (Ill.App.Ct. 2001). However, it is clear that, even under Illinois law, Rule 41 (b) dismissals for want of prosecution trump 735 ILCS 5/13-217. Specifically, both the Blaszczak, supra, and the Martin-Trigona, supra, courts have explicitly concluded that the predecessor to 735 ILCS 5/13-217 prohibits a plaintiff from "re-filing" a claim "identical" to the federal action dismissed for want of prosecution in state court, because such claims are barred by the doctrine of res judicata. In Blaszczak, 463 N.E.2d at 763, the plaintiffs brought suit against the defendant, claiming that their constitutional and civil rights were violated when the defendant declared their home "unfit for occupancy." The state trial court dismissed the complaint, concluding that the plaintiffs' claims were barred by res judicata because they had previously brought an identical action in federal court, and it had been dismissed, with prejudice under Rule 41(b), for want of prosecution. Id.. The Appellate Court affirmed, stating that the "plaintiffs are barred from refiling any action identical to the action filed in [f]ederal court because under the operation of Rule 41(b) such claims are res judicata by virtue of their prior dismissal for want of prosecution." Id. at 765. Similarly, the Martin-Trigona, 433 N.E.2d at 1132, decision involved an action for breach of certain real estate contracts that was originally filed in federal court, but was later brought in state court after having been dismissed, also with prejudice, for want of prosecution under Rule 41(b). The Appellate Court upheld the state trial court's decision finding the plaintiff's claim barred by res judicata because "[a] judgment on the merits under Rule 41(b) by federal court with proper jurisdiction is not subject to collateral attack." Id. at 1134.
Plaintiff, wisely, does not argue that res judicata would not have barred Aspacher II had he filed the case directly in federal court, as compared to having it removed from state court. Such an argument also would have been frivolous, as the Seventh Circuit has made it clear that, when a prior action is "brought in federal court, federal rules of res judicata apply." Barnett v. Stern, 909 F.2d 973, 977 (7th Cir. 1990).
The fact that these cases discussed the predecessor to 735 ILCS 5/13-217, and not the current statute itself, is irrelevant, since the Illinois Supreme Court has interpreted them as being one and the same. See Gendek, 518 N.E.2d at 1053 ("[t]he purpose of section 13-217, and its predecessor, section 24 of the Limitations Act [citation omitted], is to facilitate the disposition of litigation upon the merits and to avoid its frustration upon grounds that are unrelated to the merits").
While the Court finds these cases dispositive on the issue of whether Plaintiff's reliance upon the Illinois Savings statute was reasonable, three recent cases, none of which were cited by the parties before the Court, lend further credence to the fact that Plaintiff should have voluntarily dismissed Aspacher II at an early stage of the litigation. In Wenig v. Lockheed, 726 N.E.2d 645, 647 (Ill.App.Ct. 2000), an administrative law judge dismissed the plaintiff's retaliatory discharge claim "with prejudice." The plaintiff subsequently filed the same cause of action in state court, causing defendant to argue that the dismissal "with prejudice" operated as a Rule 41(b) dismissal, and was barred by the doctrine of res judicata. Id. at 649. The Illinois Appellate court rejected this argument, stating that "federal administrative rules do not bind the state courts," unlike those decisions involving "the dismissal of a federal district court claim pursuant to Federal Rule of Civil Procedure 41(b)." Id.. (emphasis added). Further, in Sherrod v. C.P. Ramaswamy, 732 N.E.2d 87, 90 (Ill.App.Ct. 2000), the Illinois Appellate Court concluded that the federal court's decision to dismiss plaintiff's medical negligence action with prejudice under Rule 41(b) for "insufficiency of the physician's report" caused his subsequent suit in state court to be barred by res judicata. Finally, in Chicago Oil and Gas Program — 1981 v. Bishop, No. 86 C 4033, 1986 WL 14631, at *3 (N.D. Ill. Dec. 18, 1996), the district court noted that, although the Illinois Savings statute creates an irrebuttable presumption that dismissals for want of prosecution in the Illinois state courts are not adjudications on the merits, "it does not, however, modify the finality of federal adjudications," such as those under Rule 41(b).
Because the law is explicitly clear that the doctrine of res judicata barred Plaintiff's "re-filing" — whether filed in state or federal court — the Court is troubled by Plaintiff's continued insistence that the Illinois Savings statute provided a legitimate reason to "re-file" his case after it had been dismissed pursuant to Rule 41(b). Frankly, Plaintiff cannot reasonably argue that the law on this point supports his contention. Furthermore, the Court also finds it remarkable that Plaintiff purports to have had a "good faith" belief that the Illinois Savings statute allowed the "re-filing" of his case, considering that the Aspacher I court concluded that the dismissed class members could not be reinstated under 735 ILCS 5/13-217 because "[d]ismissals with prejudice are adjudications on the merits," including those "labeled as a dismissal for want of prosecution." 1998 WL 901683, at *2 (citations omitted). Accordingly, the Court questions Plaintiff's use of "good faith" when he was fully apprized of the fact that the Illinois Savings statute does not apply to claims dismissed for want of prosecution in federal court. Most troubling is that Plaintiff failed to take advantage of any of the procedural protections available to him once this case was dismissed for want of prosecution. Even if it is true that the court entered a dismissal for want of prosecution against Plaintiff "because [his attorney] inscribed the wrong date into his diary" (Pl.'s Reap. ¶ 8). Plaintiff had no less than three opportunities to challenge this ruling. In fact, at the time Plaintiff "re-filed" this case in state court — only five months after the district court dismissed the case for want of prosecution — he still had nearly seven months remaining to file a Rule 60(b) motion seeking relief from the court's judgment because of the potentially "excusable neglect" associated with recording the wrong date into his trial diary. See Fed.R.Civ.P. 60(b) ("[t]he motion shall be made in reasonable time . . . not more than one year after the judgment, order, or proceeding was entered or taken"). Finally, at the time of "refiling," he also still had the right to appeal the district court's ruling. Notwithstanding these available remedies, Plaintiff opted to abandon his action in federal court and start anew by filing an "identical" case, with the same named Plaintiff and same two counts of common law and statutory fraud, in state court. The Court admonishes such conduct, because "cranking up another suit," rather than filing a motion to reconsider or exercising his right to appeal, "is simply unacceptable and not permitted." Prachand v. Government of India Tourist Office, No. 92 C 4336, 1992 WL 245523, at *5 (N.D. Ill. Sept. 22, 1992).
As mentioned supra, Plaintiff could have filed a motion to alter or amend judgment (Fed.R.Civ.P. 59(e); a motion requesting relief from a final judgment due to excusable neglect (Fed.R.Civ.P. 60(b); or he could have appealed the district court's ruling ( See Daniels, supra, 887 F.2d at 783).
The Court expresses no view as to whether this motion would have been granted; however, it notes that judges "should `tak[e] account of all relevant circumstances surrounding the party's omission'" in determining whether to grant or deny a Rule 60(b) motion. Robb v. Norfolk Western Railway Co., 122 F.3d 354, 362 (7th Cir. 1997) (citation omitted).
Apparently, Plaintiff was familiar with this procedural safeguard, as he filed a "motion to reconsider" with the district court on April 26, 2001. This fact makes Plaintiff's behavior even more abhorrent.
Because Plaintiff's counsel failed to adequately research the law at issue in this case, he pursued "a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound," Kapco, 886 F.2d at 1491, and filed a claim "without a plausible legal or factual basis and lacking in justification," Burda, 2 F.3d at 777. Additionally, his decision to "re-file" in state court, rather than following the procedures available to him to challenge the federal court's dismissal for want of prosecution, arguably, constitutes a "serious and studied disregard for the orderly processes of justice," Ross, 5 F.3d at 1089 n. 6. In light of this conduct, the Court recommends that Defendant's Motion for Sanctions under 28 U.S.C. § 1927 against Plaintiff's counsel be granted.
II. Sanctions Pursuant to Rule 11 of the Federal Rules of Civil Procedure
The purpose of Rule 11 of the Federal Rules of Civil Procedure is to prevent litigants from harassing opposing parties by filing claims that unnecessarily delay the pursuit of justice, needlessly increase litigation costs, or have no basis in law or fact. Fed.R.Civ.P. 11(b) (1)(2)(3). Consequently, Rule 11 imposes an affirmative duty upon litigants to "file papers with the [c]ourt only when a party has reasonable basis in fact and law for the proposition it is advocating." Harris v. Franklin-Williamson Human Servs., Inc., 97 F. Supp.2d 892, 908-909 (S.D. Ill. 2000) (citing Indianapolis Colts v. Mayor City Council of Baltimore, 775 F.2d 177, 181. (7th Cir. 1985)). Unlike 28 U.S.C. § 1927, Rule 11 does not require the Court to find that the party or his attorney acted in objective or subjective bad faith; rather, the court only needs to "undertake an objective inquiry into whether the party or his counsel `should have known that his position is groundless." Burda, 2 F.3d at 774. Consequently, the Court may sanction a party and his attorney for filing frivolous claims, or filing for improper purposes. Fries v. Helsper, 146 F.3d 452, 458 (7th Cir. 1998) (citation omitted).
A frivolous "claim is one that is `baseless and made without a reasonable and competent inquiry.'" Fries v. Helsper, 146 F.3d 452, 458 (7th Cir. 1998) (citation omitted)
The Court encounters little difficulty in determining that plaintiff's common law and statutory fraud claims are "frivolous." Plaintiff undoubtedly failed his duty required by Rule 11 to "study the law before representing its contents to a federal court," Burda, 2 F.3d at 775 (citation omitted), because, as noted supra, even a cursory review of the law makes it clear that the doctrine of res judicata barred the "re-filing" of Aspacher II. Plaintiff's decision to "re-file" and re-litigate this case lacked a legal basis, and needlessly increased litigation costs. If Plaintiff wished to challenge the district court's dismissal of Aspacher I for want of prosecution, there were numerous remedies available to him besides "re-filing" in state court. Furthermore, the Court finds it particularly disturbing that Plaintiff continued to pursue this matter despite being (voluntarily) warned by Defendant that 735 ILCS 5/13-217, which served as Plaintiff's sole legal basis for "re-filing" this case, "applies only to statute of limitations issues." (Def.'s Sanctions Motion, Ex. 1.) In essence, even after his adversary conducted legal research and interpretation for him, Counsel still failed to recognize that his claim was frivolous. There is no excuse for such conduct; a plaintiff "who puts the burden of study and illumination on the defendant or the court must expect to pay attorneys' fees under the Rule." Thornton v. Wahl, 787 F.2d 1151, 1154 (7th Cir. 1986)
The Court notes that this case involved the arduous task of translating "all of the depositions and most of the relevant documents" from German to English. (Def.'s Reply Motion at 1.) Notably, in sanctioning a plaintiff for filing a frivolous claim, the Finance Investment Co. Ltd. (Bermuda) v. Geberit, 165 F.3d 526, 534 (7th Cir. 1998), court categorized the suit as "oppressive" because its "international dimensions" required documents "to be translated from German to English."
See, supra, note 7.
Both Plaintiff Aspacher and his attorney should be held jointly and severally liable for Defendant's attorneys' fees and costs associated with the litigation of this matter after its removal from state court, because the record indicates that Plaintiff Aspacher undoubtedly had an interest in the outcome of the litigation, and it is unclear as to who is ultimately responsible for the "re-filing" of this claim — Aspacher or his attorney. See Burda, 2 F.3d at 776-777.
CONCLUSION
The Court recommends that Defendant's Motion for Sanctions be granted. However, because Defendant did not sufficiently detail his attorneys' fees and costs, Defendant is directed to submit an itemized listing of attorney's fees and costs to the Court within 14 days of this decision. Plaintiff will then be given an opportunity to respond to such costs, and a supplementary report and recommendation will be made.
Counsel have ten days from the date of service to file objections to this Report and Recommendation with the Honorable Suzanne B. Conlon. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636 (b)(1). Failure to object constitutes a waiver of the right to appeal. Egert v. Connecticut Gen. Life Ins. Co., 900 F.2d 1032, 1039 (7th Cir. 1990).