Opinion
Civil Action No. 98-1857 (GK)
September 5, 2002
Brigitte L. Adams, Washington, D.C., Attorney for Plaintiff.
David Hyden, Robert DeBerardinis, Washington, D.C., Robert Patrick Scanlon, Anderson Quinn, Rockville, MD, Attorney for Defendants Aramark Correctional Services, Inc., Proctor, and Raglan.
MEMORANDUM OPINION GRANTING ARAMARK'S MOTION FOR SANCTIONS
Plaintiff in this case alleged that Aramark Correctional Services, Inc., the District of Columbia, and certain individuals, violated the Civil Rights Act, 42 U.S.C. § 1983, and District of Columbia law in connection with the food service at District of Columbia's Lorton Reformatory, specifically in the provision of religious vegetarian diets. Following a trial in December 2001, the jury returned a verdict for Defendants on all counts. Plaintiffs several post-trial motions have been denied. Two of those motions sought sanctions against Defendant Aramark Correctional Services, Inc. ("Aramark") and its counsel, Robert Scanlon, based on a claim that Aramark's answer to a particular interrogatory "was completely false." Plaintiff's Motion for Sanctions under Rule 11, p. 3 [Dkt. #269]; Motion for Sanctions under Rule 26 against Defendant Aramark, p. [Dkt. #255]. A third motion sought relief under Fed.R.Civ.P. 60(b) on the theory that Aramark had perpetrated a fraud on the Court by maintaining in the interrogatory answer "that its vegetarian diet contained no meat or poultry" and by failing to amend the challenged interrogatory answer. Memorandum in Support of Plaintiff's Motion under Rule 60, p. 4 [Dkt. #257]. Plaintiff claimed that there had been "fraud, misrepresentation or other misconduct" by Aramark, justifying relief under Rule 60(b)(3). Those motions were denied because the facts are that Aramark did not conceal any evidence.
After briefing on Plaintiffs post-trial motions was completed, Aramark moved for sanctions against Plaintiffs counsel pursuant to Rule Ii, which requires attorneys to certify that they have conducted "an inquiry reasonable under the circumstances" and have determined that any paper filed with the court is well grounded in fact, legally tenable, and "not being presented for any improper purpose." Fed.R.Civ.P. 11(b). Aramark contends that Plaintiffs post-trial motions alleging fraud and misconduct are patently not founded in fact and were not warranted by existing law. Because the filing of the motion was delayed for 21 days pursuant to Rule 11, Plaintiff's counsel was given an opportunity to withdraw or amend her motions. See Docket Numbers 289, 290, 291. She declined to do so. On review of the entire record, Aramark's motion for sanctions will be granted.
Aramark contends that six of the post-trial pleadings filed by Plaintiffs counsel are based on the plainly false argument that Aramark and its counsel knowingly withheld information from Plaintiff. The argument relates to the answer to Plaintiffs Interrogatory 3, provided by Aramark in October 1999, which stated that the lacto-ovo-vegetarian diet provided prisoners at Lorton's Maximum Security Facility did not contain any animal products. Plaintiff contended in the post-trial motions that he did not learn that this answer was incorrect until the last day of trial, through the testimony of Aramark's dietician Dorothy Zimmer. Based on what he claimed was the false and misleading answer to the interrogatory, Plaintiff sought a new trial and sanctions against Aramark and its counsel.
The six pleadings are Plaintiffs Motion for Sanctions under Rule 26 against Defendant Aramark [Dkt. #255], Plaintiffs Motion under Rule 60 for Relief from Judgment [Dkt. #257], Plaintiffs Motion under Rule 50 for Judgment as a Matter of Law or in the Alternative for a New Trial Pursuant to Rule 59 [Dkt. #254], Plaintiffs Motion for Sanctions under Rule 11 Against Aramark's Legal Counsel [Dkt. #269], Plaintiffs Reply to Opposition of Aramark to Plaintiffs Motions for Sanctions under Rule 26 and Relief from Judgment under Rule 60 [Dkt. #271] , and Plaintiffs Reply to Opposition to Plaintiffs Motion for Sanctions under Rule 11 Against Aramark' s Legal Counsel [Dkt. #281].
The Memorandum Opinion and Order denying Plaintiffs post-trial motion for sanctions and relief from judgment [Dkt. #298] describes in detail the facts relating to Aramark's pre-trial disclosure of the content of its vegetarian diet and explains why there was no fraud committed by either Aramark or its counsel. In short, the answer to Interrogatory 3 was supplemented within a month in a letter from Aramark's counsel to Plaintiffs counsel. The letter explained that the Aramark people had equated "animal products" with pork when responding to the interrogatory. The letter specifically informed Plaintiff that the Jell-O served at Lorton did contain gelatin which was in part a beef by-product. Plaintiff and his counsel were well aware of this letter before trial. His counsel relied on the letter in the opposition and amended opposition to a motion for summary judgment (filed in July and November 2000) to show Aramark's acknowledgment that the gelatin served on the religious diet contained beef. Before trial Plaintiff and counsel also had copies of diet sheets which showed that the vegetarian diet contained chicken gravy once or twice during each diet cycle from May 1997 — August 1999. Not only did Plaintiff testify at trial that he knew the gelatin contained beef and that chicken gravy contained chicken fat, but in her opening statement Plaintiffs counsel stated that Plaintiff received chicken or beef gravy on the vegetarian tray, as well as gelatin containing a beef [or pork] by product. Plaintiffs post-trial motions and other pleadings simply were not grounded in fact when alleging that Aramark and counsel fraudulently concealed until the end of trial the facts regarding beef gelatin and chicken gravy. Even after Aramark pointed out the factual errors in its oppositions to Plaintiffs motions, Plaintiffs counsel persisted in an argument that was untenable, arguing that the November 1999 letter did not comply with the discovery rules rather than conceding that she had been aware of the beef gelatin long before the last day of the trial and withdrawing or revising her motions.
Transcript of December 11, 2001, at 59, 83-84, 110, 112. Motion for Sanctions, Exhibit 3.
Transcript of December 10, 2001, at 42-43. Motion for Sanctions, Exhibit 2.
Moreover, Plaintiffs counsel clearly misstated the testimony of Dorothy Zimmer when she wrote that Zimmer testified that "the other side dishes on ARAMARK' s so called vegetarian diet . . . contained meat and poultry products, including its rice, potato, bean and vegetable dishes." Reply to Aramark's Opposition to the Rule 26 and Rule 60 Motions, p. 2 (emphasis in original). As the transcript makes clear, Zimmer was testifying about industry standards for religious diets, not about the ingredients in the side dishes served to persons on the religious diet at Lorton. Zimmer specifically testified that the only dishes on the religious diet at Lorton between August 1977 and October 10, 2001, that contained meat products were gelatin from the end of 1997 until 1999, and "possibly" the chicken gravy from 1996 until December 1 999. Aramark correctly terms "inexcusable" Plaintiffs revision of the transcript to support her statement that Zimmer "described as `common' ARAMARK's practice of serving latent meat dishes on its vegetarian diet."
Transcript of December 17, 2001, at 43-45, 51-54, 60-61; see Tr. 63-65. Motion for Sanctions, Exhibit 4.
Plaintiffs question to Zimmer was about her testimony on direct examination "about standards for religious diets." Zimmer agreed that it was common practice to have side dishes with meat in them as long as the entre was meatless. In her Reply to the Opposition to Plaintiff's Rule 11 motion, Plaintiff revised the question to suggest that Zimmer was testifying not about standards generally but about Aramark's vegetarian diet specifically. See Memorandum of Points and Authorities in Support of Aramark's Motion for Sanctions Against Plaintiff's Counsel Pursuant to Federal Rules of Civil Procedure 11, p. 8.
The charges Plaintiffs counsel has made against Defendant's lawyer are extraordinarily serious and impugn his professional and personal integrity. Plaintiffs counsel clearly does not appreciate the seriousness of the charges she has lodged against Aramark's lawyer. Indeed, she trivializes them, describing the motion for sanctions as "hollow retaliation, a repeat of arguments and a waste of everybody's time." Opposition, p. 1. Counsel repeats the claim that Aramark' s answer to Interrogatory 3 was false, totally ignoring the fact that the answer was properly supplemented with correct information within a month. Opposition, at 3. Counsel repeats the false statement that Aramark "did not admit [that the diet contained meat/poultry] until the last day of trial through the testimony of Ms. Zimmer," although the Scanlon letter and the diet sheets produced before trial show that beef gelatin and chicken gravy were included in the diet. Finally, counsel repeats that she was surprised when Zimmer testified "that Aramark regularly placed meat items in the side dishes of its vegetarian diet," a claim based on counsel's continued failure to read the trial testimony correctly.
Opposition, at 3.
Rule 11(b) authorizes the imposition of sanctions against an attorney who signs and submits a pleading without a substantial belief in its accuracy. The filing of an unjustified motion for sanctions can itself lead to the imposition of sanctions. See Advisory Committee Notes to the 1999 amendments to Rule 11. As described by the Advisory Committee, Rule 11 is designed "to require litigants to `stop-and-think' before initially making legal or factual contentions." Advisory Committee Notes to 1999 amendments to Subdivisions (b) and (c). The Rule also "emphasizes the duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no longer tenable and by generally providing protection against sanctions if they withdraw or correct contentions after a potential violation is called to their attention." Id The Advisory Notes suggest some of the factors that a court may consider in determining whether to impose sanctions and what sanction would be appropriate:
[w]hether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended to injure; what effect it had on the litigation process time and expense; [and] whether the responsible person is trained in law. . . .Id. Sanctions should be imposed when the court concludes, after making "some assessment of the signer's credibility," that to the best of counsel's knowledge, information, and belief formed after reasonable inquiry, a pleading was neither well grounded in fact nor warranted by existing law. Rule 11(b). See Saltany v. Bush, 960 F.2d 1060 (D.C. Cir.), cert. denied sub nom. Clark v. Thatcher, 506 U.S. 956 (1992); Westmoreland v. CBS Inc., 770 F.2d 1168, 1174 (D.C. Cir. 1985).
See Cooter Gell v. Hartmax Corp., 496 U.S. 384, 402 (1990).
Both Saltany and Westmoreland were decided when Rule 11 required the imposition of sanctions. Rule 11 now provides that a court determining that Rule 11(b) has been violated "may . . . impose an appropriate sanction upon the attorneys . . . that have violated subdivision (b) . . ." (Emphasis added.) The standards for a violation remain the same.
By charging that Aramark and its defense counsel have perpetrated a fraud on the Court, counsel for Plaintiff has repeatedly made extremely serious allegations that are not grounded in fact, and about which she was repeatedly corrected by Defendant's counsel. Based on this record, the Court is compelled to conclude that counsel has deliberately and willfully refused to recognize that defense counsel's November 1999 letter supplemented the answer to Interrogatory 3. With that letter, defense counsel fulfilled his obligation to provide complete information in response to the interrogatories. As the Court pointed out in the opinion denying Plaintiffs motions for sanctions and relief from judgment, if Plaintiff wanted a sworn supplement that he could use as affirmative evidence, his recourse was to move to compel a further answer in accordance with the discovery rules. The information was provided by defense counsel and in fact was cited in Plaintiffs opposition to Aramark's motion for summary judgment. Counsel cannot keep her head in the sand and pretend the letter did not exist. Moreover, the information regarding chicken gravy was provided in the diet sheets. To repeat, Plaintiff and counsel were well aware of the beef by-products in the gelatin and the use of chicken gravy long before Dorothy Zimmer testified, as demonstrated by the fact that both were referred to in counsel's opening statement and in Plaintiffs testimony.
Plaintiff has lodged baseless charges attacking the integrity of opposing counsel. As Defendant points out, this is not the first time that Plaintiff has sought sanctions against this defense counsel. In rejecting Plaintiffs earlier claim that counsel had incorporated "blatantly and intentionally false facts" in his motion for summary judgment, the Court found that the motion "lack[ed] merit" and noted "the insubstantiality" of the sanctions request. While this Court knows full well that counsel are required to argue strenuously on behalf of their clients, appropriate representation does not include casually charging opposing counsel with fraud. For these reasons, the Court concludes that sanctions are fully warranted in this case because of counsel's conduct in repeatedly charging Aramark and its counsel with fraud and misrepresentation, charges that are plainly unfounded. The appropriate sanction is reimbursement for the attorney's fees and transcript costs incurred in responding to the unfounded allegations. Defense counsel represents that these costs are $6,270.00 in attorney's' fees and $1,358.00 for the cost of the transcript, a total of $7,628.00.
The Court finds it particularly distressing to enter sanctions in this case. Counsel represents an unpopular and litigious client against defense counsel who fought long and hard for their clients. Moreover, Plaintiffs counsel fought tenaciously and conscientiously to effectively represent her client's cause. All that being said, such zealous advocacy cannot, as here, cross over the line into hurling baseless charges attacking opposing counsel's honesty and integrity.
Accordingly, it is by the Court this day of, 6 day of September, 2002,
ORDERED that the motion of Defendant Aramark for Sanctions against Plaintiffs counsel pursuant to Fed.R.Civ.P. 11[Dkt. #291-1] is GRANTED. It is
FURTHER ORDERED that Brigette Adams shall pay the sum of Seven Thousand Six Hundred and Twenty-Eight Dollars ($7,628.00) to Defendant Aramark within 30 days of the date of entry of this Order.