Opinion
No. 4:03-CV-1339-A.
July 22, 2004
ORDER
On July 21, 2004, came on for hearing the above-captioned action in accordance with the court's July 9, 2004, order. Plaintiff, Duane Draper, appeared by and through his counsel of record, Nichelle J. Williams ("Williams") and N. Sue Allen ("Allen"). Defendant, Karl Klement Enterprises, Inc., appeared by and through its attorneys of record, Richard H. Gateley and April F. Robbins. At the conclusion of the hearing, the court took under advisement the issue of sanctions, if any, to be imposed as a result of the conduct described in the court's July 9, 2004, order.
This order pertains only to the matter of sanctions. By separate order and final judgment, the court has disposed of other matters considered at the hearing.
Having considered the testimony at the hearing, the record, and applicable authorities, the court makes the following findings: The representations quoted in the court's July 9, 2004, order that were made in plaintiff's motion to enlarge time and memorandum in support thereof, other than the certificate of conference, are at the very least misleading in that they were made solely from the perspective of Williams, an attorney who had only recently entered the case. Williams, who prepared the papers in which the representations were made, apparently used the words "plaintiff" and "counsel of record" to refer only to herself and to her own personal knowledge. As Williams admitted at the hearing, the knowledge gained by prior counsel is imputed to plaintiff and to her. Thus, plaintiff had knowledge long before the deadline referred to in the motion that he had sued the wrong entity and needed to amend his pleadings. If the contention was that plaintiff's prior counsel had mishandled the case, Williams should simply have said so instead of making it appear that plaintiff had only recently learned that he had sued the wrong party. Both Williams and Allen, who signed the papers, should be more careful in making representations to the court and other parties so as to clearly communicate in the future.
The other representation quoted in the court's July 9, 2004, order was the certificate of conference made part of the motion to enlarge time, which states:
Nichelle J. Williams certifies that on the 6th day of July 2004, a conference was held with April F. Robbins, Attorney for Defendant Karl Klement Enterprises, Inc., regarding opposition to this motion. The motion is opposed.
The certificate of conference is false. Williams admits that no conference took place regarding the motion.
In determining the appropriate sanctions to be imposed as a result of the above-described conduct, the court has considered the factors set forth in Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866 (5th Cir. 1988). The court is satisfied that its admonishment of Allen during the hearing is sufficient punishment for her having participated in the filing of the motion to enlarge time and memorandum in support thereof. The court is disappointed that Allen did not make a more thorough investigation before signing the papers, but recognizes that she did undertake some investigation, though it was not as thorough as it should have been.
The court is more concerned about Williams's conduct and her seeming failure to recognize how the statements in the motion and memorandum would be interpreted by the court and other persons. Of greatest concern is Williams's inclusion of the false certificate of conference in the motion to enlarge time. The court finds that the least severe sanction adequate to serve the purpose of deterring such conduct in the future would be the imposition of a fine of $100.00. Therefore,
The court ORDERS that Williams pay to the clerk of the United States District Court for the Northern District of Texas, at the clerk's Fort Worth office, by 4:30 p.m. on July 30, 2004, a fine in the amount of $100.00.