Opinion
Case No. 04 C 8358.
February 12, 2007
REPORT AND RECOMMENDATION
On December 30, 2004, the plaintiffs, James Shales, John Pavlak and Tamara Smith, sued General Chauffeurs, Saledrivers and Helpers Local Union No. 330 (hereinafter "the Local" or "Local 330"), as well as several officers of Local 330 and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO ("the Teamsters"), allegedly seeking to rid the Local of its connection to organized crime. Plaintiff Shales is a member of Local 330; he ran for president in 1997 and 2003 and lost both times; in 2003, he was defeated by defendant Romanazzi. Plaintiff Pavlak was a business representative of Local 330 from 1995 until May 2, 2000, when he was fired. Plaintiff Smith was employed by the Local as a clerical worker from July 1996 through August 2, 2004, when she too was let go.
The individual defendants named in the complaint are: Dominic Romanazzi, Local 330's president; Sam Campus, Jim Hickey, Jim Olszewski, Tim Barkei, Roy McCaslin, and Seretha Hollingsworth, all members of Local 330's Executive Board; James P. Hoffa, general president of the Teamsters; and William Moore, Hoffa's personal representative to Local 330.
In their initial Complaint, the plaintiffs alleged in count 1 that the defendants fired Ms. Smith in retaliation for exercising her protected free speech rights guaranteed by the LMRDA and as part of an ongoing pattern of intimidation designed to suppress dissent within the union; the claim arose out of Ms. Smith's decision to back Mr. Romanazzi's opponent in the 2003 union election. Relatedly, count 2 alleged that the defendants violated Ms. Smith's due process rights, and counts 3, 4 and 5 alleged, respectively, that the members of Local 330's Executive Board, Messrs. Moore and Hoffa violated the rights afforded Ms. Smith by section 301 of the LMRA. Count 6 of the initial complaint alleged that Mr. Romanazzi had embezzled union funds, and count 7 alleged that Mr. Romanazzi's misconduct and the defendants' complicity in allowing and aiding that misconduct violated RICO. Count 8 of the initial complaint alleged that the Elgin Police Department violated plaintiff Shales' civil rights.
The Plaintiffs filed an Amended Complaint on May 26, 2005 and a Second Amended Complaint on August 3, 2005. The Second Amended Complaint contained 12 counts. Counts 1 through 4 all arose out of the alleged forced resignation of Ms. Smith for her failure to support Mr. Romanazzi's candidacy in the 2003 election; count 1 alleged that Local 330's Executive Board approved Mr. Romanazzi's actions, in violation of Section 101(a)(1) and (a)(2) of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"); count 2 alleged intentional infliction of emotional distress against Mr. Romanazzi and Local 330; count 3 alleged retaliatory discharge; and count 4 alleged conspiracy to interfere with employment opportunity. Counts 5 and 6 related to Mr. Pavlak and alleged threats of physical violence made by Mr. Romanazzi; count 5 alleged intentional infliction of emotional distress against Mr. Romanazzi, and count 6 alleged retaliatory discharge against Romanazzi, Local 330 and its Executive Board. Counts 7, 8, and 9 related to Mr. Shales; they alleged, respectively, civil rights violations, battery, and intentional infliction of emotional distress against the City of Elgin and several of its police officers. Count 10 alleged violations of the LMRA by defendants Moore and Hoffa; count 11 alleged civil conspiracy against Messrs. Romanazzi, Moore, Hoffa and Local 330's Executive Board; and count 12 alleged violations of RICO.
On a motion filed by defendants Romanazzi, Campus, Hickey, Olszewski, Barkei, McCaslin and Hollingsworth, on August 17, 2005, Judge Lindberg dismissed count 3 and count 6 as to all of the defendants but Local 330. Thereafter, on March 24, 2006, Judge Lindberg entered summary judgment in favor of the defendants as to counts 1 through 5, and 10 through 12. The Court denied summary judgment as to count 6, Mr, Pavlak's retaliatory discharge claim, because it found that there was a material dispute as to why Mr. Pavlak was fired.
The parties did not seek, and the district court did not consider, summary judgment as to counts 7, 8 and 9; discovery on those counts was stayed pending the outcome of related criminal charges, and no issues concerning those counts are presently before this Court.
On July 26, 2006, the defendants filed a joint motion for sanctions; Judge Lindberg referred the motion to this Court, and the matter is now fully briefed. In their motion, the defendants argue that the plaintiffs' claims were without any good faith basis in fact, and that the plaintiffs pursued their claims solely to achieve the "political assassination" of Dominic Romanazzi and the current Local 330 Executive Board. Mr. Shales, Mr. Pavlak and J. Gordon Banks, their attorney, filed a response to the motion for sanctions, arguing that their claims were based in law and in fact and that their pursuit of such claims was not vexatious. Michael Leonard filed a separate response; in it, he opposes the motion and notes in particular that his involvement in this case was extremely limited; he entered an appearance on February 10, 2006 and withdrew on June 15, 2006 and he joined the case for the sole purpose of assisting Mr. Banks in the trial of the action and in responding to the defendants' summary judgment arguments.
Discussion
The defendants seek sanctions under both Rule 11 and under 28 U.S.C. § 1927. Rule 11 seeks to strike a balance between deterring frivolous litigation on the one hand, and preserving a litigant's access to the courts and encouraging zealous advocacy on the other. See Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). The Court has the authority to impose sanctions if a lawsuit is "not well grounded in fact and is not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." National Wrecking Co. v. Int'l Brotherhood of Teamsters, Local 731, 990 F.2d 957, 963 (7th Cir. 1993). Rule 11 prohibits the filing of pleadings presented for "any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." Fed.R.Civ.P. 11(b)(1). In addition, Rule 11 requires that an attorney signing a court document certify that he has "read the document, has conducted a reasonable inquiry into the facts and the law and is satisfied that the document is well grounded in both, and is acting without any improper motive." Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 542 (1991). In determining whether Rule 11 sanctions are warranted, the Court evaluates the parties' conduct for "reasonableness under the circumstances." Denari v. Genesis Insurance Co., No. 01 C 2015, 2004 WL 1375735, at *4 (N.D. Ill. June 17, 2004) (citing Indianapolis Colts v. Mayor and City Council, 775 F.2d 177, 181 (7th Cir. 1985)).
While Rule 11 focuses on the papers filed with the Court, 28 U.S.C. § 1927 focuses on the conduct of the attorney. The statute provides that "[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927. Sanctions may be awarded under 28 U.S.C. § 1927 only where an individual "has demonstrated `subjective or objective bad faith.'" Moriarty ex rel. Local Union No. 727 v. Svec, 429 F.3d 710, 722 (7th Cir. 2005) (citing Pac. Dunlop Holdings, Inc. v. Barosh, 22 F.3d 113, 120 (7th Cir. 1994); Kotsilieris v. Chalmers, 966 F.2d 1181, 1184 (7th Cir. 1992)). A showing of subjective bad faith, the harder to prove, is required only if the conduct under consideration had an objectively colorable basis." Dal Pazzo v. Basic Machinery Co., 463 F.3d 609, 614 (7th Cir. 2006) (citing In re TCI Ltd., 769 F.2d 441, 445 (7th Cir. 1985)). Otherwise, only objective bad faith need be shown. Under the latter standard, reckless indifference to the law is sufficient, and malice and ill will are not required; "[i]f a lawyer pursues a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound, the conduct is objectively unreasonable and vexatious." Dal Pazzo, 463 F.3d at 614 (citing Riddle Assocs. P.C. v. Kelly, 414 F.3d 832, 835 (7th Cir. 2005); Kapco Mfg. Co. v. C O Enters., Inc., 886 F.2d 1485, 1491 (7th Cir. 1989); In re TCI, 769 F.2d at 445). Additionally, § 1927 imposes a "continuing duty upon attorneys to dismiss claims that are no longer viable." The Jolly Group, Ltd. v. Medline Industries, Inc., 435 F.3d 717, 720 (7th Cir. 2006) (citing Dahnke v. Teamsters Local 695, 906 F.2d 1192, 1201 n. 6 (7th Cir. 1990)).
In their motion, the defendants argue that sanctions are warranted because the plaintiffs: (1) made false or bad faith allegations; (2) attempted to tamper with witnesses involved in the case; (3) attempted to further Paul Glover's efforts to practice law without a license; (4) doggedly pursued frivolous claims and needlessly multiplied the proceedings; and (5) presented claims and arguments that were not supported by the law.
Plaintiffs Shales and Pavlak and their attorney, J. Gordon Banks filed a joint response to the sanctions motion. They argue, first, that the motion should be denied because the defendants failed to comply with Rule 11's "safe harbor" provision, and, second, that the motion should be denied on its merits as well. Attorney Michael Leonard filed a separate response, arguing that sanctions should not be imposed against him because he had absolutely no involvement in the case until the summary judgment stage in 2006 and, even then, his involvement was limited; he also argues that he was not involved in any of the allegedly sanctionable conduct spelled out in the defendants' motion.
1. Rule 11's Safe Harbor Provision
As an initial matter, the Court addresses the plaintiffs' argument that the defendants' motion is improper because the defendants failed to comply with Rule 11's Safe Harbor provision. The provision requires that, "when a motion for sanctions is made under Rule 11, `it shall be served . . . but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper . . . is not withdrawn or appropriately corrected." DirecTV, Inc. v. Reyes, NO. 03 C 8056, 2006 WL 1302351 (N.D. Ill. May 4, 2006); Fed.R.Civ.P. 11(c)(1)(A). On December 2, 2005, John Toomey of Arnold Kadjan, counsel for Local 330, wrote to J. Gordon Banks to give him notice of what Mr. Toomey perceived to be potential Rule 11 violations; in particular, Mr. Toomey noted that discovery had revealed that the plaintiffs' allegations of organized crime ties had no support in the record, and he urged Mr. Banks to withdraw those allegations. On December 15, 2005, Gary Witlen, an attorney for the Teamsters, wrote to Mr. Banks to give him notice of potential Rule 11 violations; just as Mr. Toomey had in his earlier letter, Mr. Witlen detailed specific allegations that had been disproved or repudiated through discovery, and he urged Mr. Banks to delete those allegations from the plaintiffs' complaint. Mr. Banks did nothing in response.
On February 27, 2006, Mr. Toomey wrote to Mr. Banks and Mr. Leonard concerning preparation of the Pre-trial Order; in that letter, he reiterated his hope that plaintiffs would stop pursuing claims and allegations that discovery had proved to be baseless. On May 3, 2006, Patrick Provenzale, another attorney for the Local, wrote to Mr. Banks expressly advising him, under Rule 11's safe harbor provision, that the Local would file a motion for sanctions unless Mr. Banks and his clients took steps to correct their sanctionable conduct; specifically, Mr. Provenzale demanded that the plaintiffs pay $309,310.84 — the amount of attorneys' fees and costs the defendants claimed to have incurred because of the plaintiffs' pursuit of frivolous claims. Mr. Banks did not respond. The defendants initially intended to present their motion for sanctions on May 24, 2006. In the end, the Court continued the matter until July 26, 2006, and so, on June 12, 2006, defendants served another demand for correction of the injuries and losses sustained as a result of the sanctionable conduct. Mr. Banks did not respond. The defendants then presented their sanctions motion on July 26, 2006.
In light of the above, it is hard to imagine how the plaintiffs can argue with a straight face that the defendants have somehow failed to comply with Rule 11's safe harbor provisions. Indeed, one might assume that the advancement of such an argument is precisely why the plaintiffs and their attorneys find themselves staring down a sanctions motion today.
2. The Substance of the Sanctions' Motion
Initially, although several of the claims survived a motion to dismiss and at least one claim survived a motion for summary judgment, there appears to be in this case a lot of mud slinging and very little in the way of evidence to back it up. The district court's decision on summary judgment makes clear that the plaintiffs simply did not have evidence to support their claims. With regard to count 1, the court noted that the plaintiffs had identified "no evidence showing that Smith's membership rights were affected by defendants' conduct" and "no evidence that would support a finding that Smith's forced resignation was a part of a pattern of intimidation intended to suppress dissent within the union." Minute Order, p. 3-4. With regard to count 2, after noting that Ms. Smith's only apparent distress involved two asthma attacks, the court noted that Ms. Smith had offered "no evidence that would support an inference that Mr. Romanazzi caused those attacks." Id., p. 5. Similarly, for count 3, the retaliatory discharge count, the court noted that Ms. Smith resigned, and that she had offered no evidence that Mr. Romanazzi or any other Local 330 representative indicated to her that she was being involuntarily discharged. Id. For count 5, the intentional infliction of emotional distress claim for Mr. Pavlak, the court again noted that the plaintiffs offered "no evidence that he experienced emotional distress." Id.
The court granted summary judgment on count 10 because the relevant statute did not allow the relief plaintiffs sought. Id., p. 6. And, finally, the court granted summary judgment on counts 4, 11 and 12 because the plaintiffs "have come nowhere near meeting their burden of identifying facts to support their civil conspiracy and RICO claims, or showing that there is a genuine issue for trial as to these claims." The court noted that summary judgment was the "`put up or shut up' moment in a lawsuit when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Id., p. 9 (quoting Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 901 (7th Cir. 2003)).
The fact that the plaintiffs failed to offer any evidence to support their claims was telling. To be sure, the entry of summary judgment in the defendants' favor does not, by itself, make sanctions appropriate. Summary judgment is granted in many cases where the question of sanctions never even comes up. But this is not a case where the evidence on the defendants' side simply outweighed the evidence on the plaintiffs' side; based on the admittedly somewhat limited record before the Court, it appears that, in the end, there was no evidence on the plaintiffs' side. And the district court's rulings reflect that fact.
a. False/Bad Faith Allegations
That is not to say, however, that there was no evidence of misconduct here. In fact, there is evidence in the record that Dominic Romanazzi threatened and harassed the plaintiffs. The defendants attack the plaintiffs' allegation that Dominic Romanazzi threatened Mr. Pavlak by sending him a note that said "you're dead" along with a bullet. Mr. Pavlak testified at his deposition that he emphatically did not espouse that allegation; he testified that he never accused Mr. Romanazzi of sending the threatening message and did not, to that day, accuse him of such. See Pavlak Deposition, pp. 146-149. Defendants seize upon this testimony as proof that these allegations lacked any factual basis, making their inclusion in the complaint sanctionable. This is somewhat misleading, however. Read in its full context, Mr. Pavlak's deposition testimony actually supports the allegations. Mr. Pavlak testified that, in August of 2001, he received in his post office box an envelope containing a piece of Local 330 letterhead, a copy of a pamphlet he had been distributing to the members of Local 330 with the message "you're dead" scrawled across the front of it, and a bullet. Pavlak Deposition, p. 144. He further testified that, although he could not be sure exactly who sent the package, he assumed it was someone from the Local and it may very well have been Dominic Romanazzi. Id., p. 152-153. Indeed, he testified that when the police asked him if he knew who had sent the package, he named Mr. Romanazzi. Id., p. 150, Certainly a reasonable attorney could determine that this evidence would be sufficient in the eyes of a jury to hold Mr. Romanazzi accountable for the threat.
Similarly, with regard to the allegation that Mr. Romanazzi threatened Mr. Pavlak by placing one of his business cards on Mr. Pavlak's windshield, Mr. Pavlak testified that he never accused Mr. Romanazzi of putting the card there, and the defendants offer this as proof that sanctions are appropriate. But, again, Mr. Pavlak also testified that he knew the card was placed there by someone from the Local and that he did perceive the act to be a threat. Pavlak Deposition, pp. 153-163, 165-66. He testified that he knew the threat was made by someone from the Local, but he could not say for sure whether it was Mr. Romanazzi or someone else. Id., p. 165-66.
Taking Mr. Pavlak's testimony in its entirety, and in combination with the other evidence available at the time the Court cannot say that it was objectively unreasonable for Mr. Banks to pursue the claims he filed on behalf of Mr. Pavlak. Accordingly, at least with regard to Mr. Pavlak's claims and the allegations relating to him, the defendants' motion for sanctions should be denied.
The defendants also attack the plaintiffs' general allegations relating to organized crime involvement and influence. The defendants maintain that the plaintiffs carelessly tossed around allegations that Mr. Romanazzi and others at Local 330 had ties to organized crime, and that they did so solely to smear Mr. Romanazzi's name and to bring the Local into disrepute. After reviewing the record, the Court is persuaded that the allegations of organized crime ties are — and have always been — based on speculation and second-hand information bordering on gossip. Mr. Shales testified at his deposition that Julia Chandler told him that she saw Mr. Romanazzi at some clubs that are supposedly reputed to be organized crime clubs. See Shales Dep., pp. 146-149, 158-160. Yet, he testified that, when asked by the Independent Review Board about whether he had any information that Mr. Romanazzi had ties to organized crime, he said no; he had no information to provide. Id., p. 161. He testified unequivocally that he had no documents and did not know that Mr. Romanazzi associated with organized crime. Id., p. 168. Mr. Shales also testified that he learned about Mr. Romanazzi's alleged mob ties from Agent Houston; but Agent Houston testified unequivocally that he did not believe Mr. Romanazzi had mob ties; he testified that he told Mr. Shales' attorneys that Mr. Romanazzi did not fit the profile of an organized crime associate and was, in his view, not connected to or involved with organized crime. Houston Dep., pp. 273-74.
Ernest Luera, a former FBI agent who had worked extensively with a special unit assigned to investigate organized crime involvement with the Laborers International and who also worked with Project Rise, the Teamsters internal reform effort to weed out and eliminate the influence of organized crime in its Locals, testified at his deposition that he received allegations about Mr. Romanazzi's potential involvement with organized crime and that he investigated those allegations. See Luera Deposition, p. 24-25. According to Agent Luera's deposition testimony, only some of which is before the Court, he did, in the course of his investigations on behalf of RISE, hear that Mr. Romanazzi had ties to organized crime; he also testified that his investigative reports indicated that Mr. Romanazzi had contact with Joey "the Clown" Lombardo. Id., p. 180-81. Agent Luera testified that, in connection with his work with RISE, he learned that "[f]ield representatives have also received confidential information that an individual recently hired as a steward by Mr. Romanazzi may have ties to organized crime." Luera Dep., p. 75. Agent Luera testified that some of the information about Mr. Romanazzi came from Joe Degand, a former Local 330 President and an ally of Mr. Shales, who clearly had an axe to grind. Id., p. 42-43. And, on the limited record before it, the Court is unable to determine whether the evidence of organized crime ties that Agent Luera referred to came from sources other than Mr. Shales (whose information was, at best, second hand) and Mr. Degand (who admittedly had an axe to grind).
Nevertheless, the Court is persuaded that, despite the seemingly unreliable nature of the evidence, sanctions are not warranted. First, the speculation and gossip that supports the allegations of organized crime ties was documented in the RISE report, a document prepared with the help of former FBI agents who had substantial expertise in dealing with organized crime and its influence on unions. This certainly tends to lend an air of authenticity and legitimacy to the allegations. Second, although the evidence in this case was never substantiated, the notion that Teamsters officials may have had ties to organized crime is not particularly earth-shattering. There is a long history here and so the Court cannot fault plaintiffs' counsel for drawing certain inferences and conclusions from the evidence, such as it was. It is not surprising that the plaintiffs, in the end, were unable to come up with concrete evidence of organized crime ties; certainly, to the extent the defendants had such ties, they would take great pains to hide them.
Moreover, although the defendants have argued that the plaintiffs pursued their claims for an improper purpose, there is really no evidence that that is necessarily the case. To be sure, there is a lot of animosity between the plaintiffs and the defendants; neither side has made any bones about that. And, similarly, it is easy to imagine that the plaintiffs were able to derive some pleasure from watching the defendants have to defend themselves against their allegations. But, given the Court's determination that the bulk of the plaintiffs' claims were not frivolous when filed, the Court is not inclined to find that the plaintiffs pursued this case solely for an improper purpose and not to remedy what they, for the most part, reasonably perceived to be legitimate claims.
b. Witness Tampering and the Unauthorized Practice of Law
The Court turns next to the defendants' contention that plaintiffs' counsel attempted to tamper with witnesses and condoned and encouraged the unauthorized practice of law. Specifically, the defendants accuse Mr. Banks of allowing Paul Glover, a disbarred attorney, to practice law and they accuse Mr. Banks and Mr. Glover of offering Agents Houston and Luera a portion of any recovery in this case in exchange for their help in developing the case. Mr. Banks has submitted an affidavit in which he represents to the Court that Mr. Glover was his administrative assistant and nothing more; he also represents that the offer of a percentage of the recovery simply never happened. To be sure, there is some evidence to rebut this representation — for example. Agent Richard Houston testified that, when he met with Mr. Banks and Mr. Glover on December 9, 2004, Mr. Glover represented that he was helping Mr. Banks prepare the case and Mr. Glover took the lead in running the meeting. See Houston Dep., p. 272-73. And Agent Houston also testified that, at the same meeting, Mr. Glover asked him to assist him and Mr. Banks in the lawsuit against the Local and, for his efforts, Mr. Glover offered to pay him 10% of any recovery. Id., p. 273.
Short of holding an evidentiary hearing on this issue — something the Court is loathe to do given the amount of time and money already invested in this case — the Court simply cannot resolve this "he said; he said" debate. The Court would like to think that, as an attorney, Mr. Banks would honor his duty to be truthful with the Court. But, as will become apparent in the remainder of this opinion, the Court is skeptical. Because the Court intends to recommend sanctions against Mr. Banks based upon other behavior, the Court will leave this issue to the ARDC, which has been fully apprised of the defendants' charges.
Similarly, the allegations of witness tampering involving Julia Chandler would seem to be more appropriately left to the ARDC or the U.S. Attorney's Office.
c. Presentation of Claims/Arguments not Supported by the Law
The defendants argue that sanctions are warranted because the plaintiffs presented claims and arguments that were not supported in the law. For the most part, the claims alleged in the Second Amended Complaint satisfy Rule 11 standards; indeed, they survived a motion to dismiss and the record contains no indication that the district judge ever thought the claims to be frivolous as pled. The Court is persuaded, however, that, at least with regard to a few of the claims, there simply was no support in the law.
First, counts 11 and 12 alleged, respectively, civil conspiracy and RICO violations against Mr. Romanazzi, the rest of the Local 330 Executive Board, Messrs. Hoffa and Moore. Count 11 alleged that the defendants entered into an agreement to allow Mr. Romanazzi to assert autocratic control over Local 330 such that he could suppress and intimidate dissenters and allow him and his organized crime cohorts to run the place as they saw fit; Count 12 alleged that Mr. Romanazzi and the other defendants conspired together to promote an illicit scheme to eliminate democracy from Local 330 and to turn the Local over to elements of organized crime.
The claims survived a motion to dismiss and the Court is persuaded that Rule 11 sanctions based upon the Second Amended Complaint are not appropriate. But, at least by the close of discovery, the plaintiffs should have known that these claims had no support in the record. Even if the plaintiffs thought they could convince a jury that Mr. Romanazzi had intimidated and suppressed dissent within the union and that he was involved with organized crime, there was simply no evidence in the record that the other defendants were in any way involved in his "scheme"; indeed, there was no evidence to suggest that they even knew about it.
Plaintiff Smith testified that Mr. Romanazzi harassed her and eventually forced her from her job; but she also testified that she never told any of the other defendants about the harassment. She testified that Mr. Moore and some of the other Executive Board members expressed to her their belief that she was likely to lose her job if Mr. Romanazzi won the election, but she also testified that that was because she backed Mr. Romanazzi's opponent in the election. She also testified that, after the election, Mr. Moore called her and offered to help her find another job within the union — an offer she declined. Similarly, Mr. Pavlak testified that Mr. Romanazzi (or someone else within the Local) threatened and intimidated him, but he also testified that, to his knowledge, none of the other defendants knew about those threats. So too with Mr. Shales' testimony. In short, even if the evidence had supported the allegations of misconduct on Mr. Romanazzi's part, it in no way supported the notion that liability should attach to the other defendants. The Court therefore finds that plaintiffs' counsel should be sanctioned for continuing to press these claims beyond the close of discovery.
Similarly, sanctions are warranted for plaintiffs' persistent pursuit of an intentional infliction of emotional distress claim on behalf of Ms. Smith. At least as of the time of Ms. Smith's deposition, plaintiffs' counsel should have known that her intentional infliction of emotional distress claim found no support in the law. Ms. Smith testified that in the months leading up to the December 2003 election, she heard repeatedly and from numerous people that if Mr. Romanazzi won the election, he was going to fire her. See Smith Dep., pp. 156-159; she testified that she never heard this from Mr. Romanazzi, however. Id., p. 156-57. She testified that, in fact, Mr. Romanazzi did not fire her after he won; on the contrary, she got a raise and he did not attempt to prevent that; nor did he do anything else to make her job harder or less pleasant (he didn't change her schedule, didn't move her office, didn't assign her more onerous tasks). Id., pp. 159-160, 173-75. She testified, however, that he did fire her on August 2, 2004 and that, when he did it, he did it in such a way that she felt threatened. Smith Dep., pp. 175-177. This is the basis of her intentional infliction of emotional distress claim.
Yet, it does not appear that there was ever any evidence that Ms. Smith suffered severe emotional distress, one of the elements of a claim for intentional infliction of emotional distress. When asked about her injuries and any medical treatment she has pursued as a result of her alleged harassment, Ms. Smith testified only that she sees a doctor about asthma and has done so for about 24 years. Smith Dep., p. 253. She testified that she suffered an asthma attack in early 2005, but she does not appear to be relating that to her alleged harassment by Mr. Romanazzi. See Smith Dep., p. 256. She also testified that, one day in May (presumably of 2004), her "stomach was just cramping up. It was from nerves and everything because I went out of the office crying." Dep., p. 258. She testified, however, that she took no medications and was back at work the next day. Id., p. 258.
Under no circumstances could this evidence support a claim for intentional infliction of emotional distress in Illinois; to succeed on such a claim, Illinois law requires that the emotional distress suffered is severe, that is, distress that no reasonable person could be expected to endure. See Thomas v. Fuerst, 345 Ill. App. 3d 929, 936, 803 N.E.2d 619, 625 (Ill.App.Ct. 2004), cited in Lifton v. Board of Education of the City of Chicago, 416 F.3d 571, 579 (7th Cir. 2005); see also Johnson v. K-Mart Corp., 311 Ill. App. 3d 573, 581, 723 N.E.2d 1192, 1198 (Ill.App.Ct. 2000). The record shows that Ms. Smith's distress simply did not come close to this level. And counsel should have known that the claim was untenable.
d. The Dogged Pursuit of Frivolous Claims and the Needless Multiplication of Proceedings
Counsel's handling of Ms. Smith's intentional infliction of emotional distress claim brings up another troubling point: counsel, in defendants' words, has doggedly pursued allegations and claims that he should have recognized were losers, whether from an evidentiary perspective or from a legal perspective, thereby unreasonably multiplying these proceedings. Although, as explained above, any reasonable attorney would have realized that the intentional infliction of emotional distress claims could not succeed, Mr. Banks has continued to justify the allegations giving rise to the claim. Even in his affidavit in response to the defendants' sanctions motion, Mr. Banks continues to argue that Ms. Smith suffered severe emotional distress. See Affidavit of J. Gordon Banks, 524 Response. Counsel's decision to pursue this claim in the wake of the deposition, and to defend it on summary judgment and in connection with the present motion, is sanctionable.
Arguably, consistent with his behavior throughout the course of this case, Mr. Banks' affidavit is long on summary conclusions and accusations and short on evidence to support those conclusions and accusations. Indeed, to the extent the Court was on the fence on awarding sanctions, Mr. Banks' affidavit sealed the deal. For example, in his response to paragraph 6, Mr. Banks states that "Smith was forced from her employment at Local 330 because she exercised her right to dissent and her right to freedom of speech by speaking with RISE investigators, Huston and Luera about Romanazzi's wrongdoing." And he cites "Smith Dep. P. 212, L. 5-9" to support that conclusion. The cited portion of the transcript reads:
Q All right. And within this letter you say, do you not, His constructive discharge of me was part of a pattern and practice of suppressing dissent within local union?
A Yes.
This testimony does not support Mr. Banks' response. Indeed, Ms. Smith went on to testify that she was unaware that Mr. Romanazzi had suppressed any dissent within the union, See Smith Dep., pp. 212-213; she testified that, other than his harassment of her — which she admitted she thought was due to her loyalty to Joe Degand, Mr. Romanazzi's opponent in the election for president — she did not know of any other misconduct by Mr. Romanazzi.
Similarly, in his response to paragraph 9, Mr. Banks states that "Local 330's Executive Board members . . . failed to act when the rights of union members, including Plaintiff Smith's, were consistently and constantly violated in a deliberate and intensified program of harassment, threats and intimidation. The Executive Board's failure to act defies logic and their inability and refusal to act is evidence of a conspiracy." Yet, Ms. Smith testified that she never told anyone that Mr. Romanazzi was harassing her. See Smith Dep., p. 189.
Similarly, in response to paragraph 11, Mr. Banks states that "Defendant Romanazzi received phone calls from organized crime figures at the Local 330 office. Defendant Romanazzi also secured jobs at the various signator employers of Local 330 for the family members of organized crime figures to the detriment of Local 330's members." He cites no evidence to support these statements. As on summary judgment, if Mr. Banks had the evidence to support these allegations, he should have offered it; he has not. The fact that Mr. Banks continues to press his baseless allegations to this day is sanctionable; the fact that he is essentially mischaracterizing evidence to support those baseless allegations makes his conduct even more reprehensible. Even at this late stage of the game, Mr. Banks is needlessly multiplying these proceedings, and sanctions are appropriate.
Conclusion
As explained above, the Court is of the opinion that plaintiffs' counsel should be sanctioned for filing and for continuing to pursue the intentional infliction of emotional distress claim on behalf of Ms. Smith; for pursuing the civil conspiracy and RICO claims beyond the close of discovery; and for filing an affidavit that contains conclusions and arguments that are unsupported in the record and even mischaracterizes the evidence that is in the record. The Court recommends that the district judge impose a sanction commensurate with the amount defendants expended in defending against these claims and in responding to the allegations the Court has deemed to be baseless.
The parties have ten days from the date of service to file objections to this Report and Recommendation with the Honorable George W. Lindberg. 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 General Life Ins. Co., 900 F.2d 1032, 1039 (7th Cir. 1990).