Oxfurth v. Siemens A.G.

142 F.R.D. 424, 1991 U.S. Dist. LEXIS 20895, 1991 WL 338562
CourtDistrict Court, D. New Jersey
DecidedSeptember 6, 1991
DocketCiv. A. No. 89-4553(AET)
StatusPublished
Cited by3 cases

This text of 142 F.R.D. 424 (Oxfurth v. Siemens A.G.) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oxfurth v. Siemens A.G., 142 F.R.D. 424, 1991 U.S. Dist. LEXIS 20895, 1991 WL 338562 (D.N.J. 1991).

Opinion

MEMORANDUM AND ORDER

WOLFSON, United States Magistrate Judge.

On March 8, 1991, this Court issued a Memorandum and Order directing Jack Frost, Esq., (hereinafter “Frost”) attorney for plaintiffs, to appear on March 18, 1991 to show cause why sanctions should not be imposed against him pursuant to Fed. R.Civ.P. 11. Frost failed to appear on March 18, 1991. Frost finally appeared on March 22, 1991 and this Court held a hearing on Frost’s failure to appear on March 18 and the original Rule 11 motion. Presently before the Court is the Rule 11 motion against Frost and defense counsel’s motion for fees and costs in having to appear on March 18, 1991.

BACKGROUND

On December 6, 1990, plaintiffs filed a notice of motion for an order permitting the plaintiffs to amend the complaint to add a count against defendant, Saul Leder-handler, for perjury and/or false swearing and to compel responses to an array of additional discovery requests. After a number of adjournments, plaintiffs’ motion was placed on the February 4, 1991 motion calendar. Along with the notice of motion, plaintiffs submitted a statement that no brief was necessary and instead filed only a supporting affidavit. On January 22, 1991, defendants filed a brief in opposition to plaintiffs’ motions. Seven days after the motion date, on February 11, 1991, Frost submitted a brief in support of his motions.

In addition to the relief previously requested in his motion, Frost also sought attorney’s fees for having to respond to defendants’ brief in opposition. On March 8, 1991, this Court denied plaintiffs’ motion to amend, stating that under New Jersey law there is no private cause of action for perjury and/or false swearing. Plaintiffs’ motion for attorney’s fees and costs was also denied and instead defendants’ motion for Rule 11 sanctions was scheduled to be heard on March 18, 1991. Frost was ordered to appear at that date and time.

What transpired on the days preceding the Monday hearing date can only be characterized as Mr. Frost’s cavalier response to a judicial order. On March 13th, this Court received phone calls from Frost’s law firm stating that Frost would not be able to appear for the Rule 11 hearing. Frost never personally called these chambers to enunciate why he would be unable to attend.1 In addition, Frost’s office failed to give any reasons why Frost would be un[426]*426able to attend except that he would be taking depositions in Florida at the time oral argument was to be heard. There was no indication whether these were court ordered depositions, or when the depositions had been scheduled, or why they should take precedence over a previously ordered court hearing date. Therefore, the request for an adjournment was denied. Next, Frost’s partner, Mr. Girdler, called chambers on March 14, 1991 and offered to appear on Frost’s behalf. Because the hearing was a Rule 11 motion against Frost, personally, Mr. Girdler’s appearance would be of no assistance. After finding out that this Court was not going to change the March 18, 1991 hearing date, Frost contacted Judge Thompson to see if she would relieve him of his responsibility of showing up on March 18th. Judge Thompson stated that she had nothing to do with scheduling the Rule 11 hearing and consequently would not take a position on Frost’s request.2 This Court and defense counsel were then never given a direct confirmation on whether Frost was going to appear on March 18, 1991. While it was confirmed that Frost did travel to Florida, during the week of March 13th, as of 10:00 A.M. Monday, March 18, 1991, this Court still assumed Frost would appear.

On March 18, 1991, defense counsel Robert Bernstein appeared for the hearing, however, Frost did not attend. The hearing was rescheduled to March 22, 1991 at which time the Court addressed Frost’s failure to appear, Bernstein’s motion for fees and costs in having to appear on March 18th, and the Rule 11 motion.

RULE 11

Rule 11 provides in relevant part that: [t]he signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation____ If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

Fed.R. Civ.P. 11.

Rule 11 sanctions may be imposed only when it can be shown that an attorney has signed and filed papers without conducting “a reasonable investigation of the facts and a normally competent level of legal research to support the presentation.” Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3rd Cir.1988), quoting, Lieb v. Topstone Industries, Inc., 788 F.2d 151, 157 (3rd Cir.1986).

The purpose of Rule 11 is deterrence. Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3rd Cir.1988). Rule 11 is targeted at sanctioning abuse, and “should not be applied to adventuresome, though responsible lawyering which advocates creative legal theories.” Pensiero, 847 F.2d at 94. Rule 11 is not to “be interpreted to inhibit imaginative legal or factual approaches to applicable law or to unduly harness good faith calls for reconsideration of settled doctrine.” Gaiardo v. Ethyl Corp., 835 F.2d 479, 484 (3rd Cir.1987).

Additionally, Rule 11 should not serve as a general fee shifting statute. Doering, 857 F.2d at 194. The intended goal and purpose of Rule 11 is accountability. Pensiero, 847 F.2d at 94. “The rule imposes on counsel a duty to look before [427]*427leaping and may be seen as a litigation version of the familiar railroad crossing admonition to ‘stop, look, and listen.’ ” Lieb, 788 F.2d at 157. Rule 11 does not permit the use of the “pure heart and empty head” defense, Gaiardo, 835 F.2d at 482, quoting, Schwarzer, Sanctions Under Rule 11—A Closer Look, 104 F.R.D. 181, 187 (1985).

In determining compliance with the rule, the court must apply an objective standard of reasonableness under the circumstances. Lieb, 788 F.2d at 157. Courts should apply Rule 11 sanctions only in “exceptional circumstances,” Gaiardo, 835 F.2d at 483 and are “ ‘appropriate when it is the minimum that will serve to adequately deter the undesirable behavior.’ ” Doering, 857 F.2d at 194 (citations omitted) (emphasis in original).

Frost’s conduct during the pendency of this motion as well as his prior dilatory conduct in this litigation

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Bluebook (online)
142 F.R.D. 424, 1991 U.S. Dist. LEXIS 20895, 1991 WL 338562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oxfurth-v-siemens-ag-njd-1991.