Vaqueria Tres Monjitas, Inc. v. Cubano

230 F.R.D. 278, 62 Fed. R. Serv. 3d 1414, 2005 U.S. Dist. LEXIS 23133, 2005 WL 2403291
CourtDistrict Court, D. Puerto Rico
DecidedSeptember 27, 2005
DocketCivil No. 04-1840(SEC)
StatusPublished
Cited by3 cases

This text of 230 F.R.D. 278 (Vaqueria Tres Monjitas, Inc. v. Cubano) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vaqueria Tres Monjitas, Inc. v. Cubano, 230 F.R.D. 278, 62 Fed. R. Serv. 3d 1414, 2005 U.S. Dist. LEXIS 23133, 2005 WL 2403291 (prd 2005).

Opinion

OPINION AND ORDER

CASELLAS, Senior District Judge.

Pending before the Court is Attorneys Rafael Escalera-Rodriguez’s, Thomas Trebil-coek-Horan’s, José R. Lázaro-Paoli’s, and Enrique Nassar-Rizek’s (herein “the attorneys”) motion for reconsideration of the Court’s Order of October 14, 2004 imposing [279]*279monetary sanctions on each and every one of them for engaging in judge-shopping (Docket # 18). After due consideration of the attorneys’ motion and the applicable law, we find that the same should be DENIED.

The attorneys advance three well-versed arguments in support of their request. Namely, (1) that they did not engage in sanetionable misconduct in violation of federal rule 41(a), the Court’s Local Rules, or any applicable precedent of this Court, the First Circuit, or the Supreme Court; (2) that the Court simultaneously announced and punitively applied a new rule concerning voluntary dismissals under Rule 41(a) in violation of established principles of fundamental fairness; and (3) 'that the process through which the sanctions were imposed did not comport with the requirements governing the imposition of punitive sanctions under the Court’s inherent powers as established by the First Circuit.

First and foremost, the First Circuit has repeatedly recognized the troubling practice of judge-shopping. Obert v. Republic Western Ins. Co., 398 F.3d 138 (1st Cir.2005); Ellis v. United States, 313 F.3d 636 (1st Cir.2003); United States v. Brooks, 145 F.3d 446 (1st Cir.1998); In re Martinez-Catala, 129 F.3d 213 (1st Cir.1997); In re Cargill, Inc., 66 F.3d 1256 (1st Cir.1995); Tamburro v. E. Providence, 1992 WL 380019, 1992 U.S. Appx. Lexis 32825 (1st Cir. Dec. 18, 1992).

Second, the Court understands that Rule 41(a) serves as a lawful vehicle for voluntarily dismissing suits and refiling the same at a later occasion. The Court is not blind to that. However, Rule 41 cannot serve the purposes for which the attorneys in this case used it. Simply put, to ignore the probability that the attorneys’ actions in voluntarily withdrawing the case and instantly refiling were directed at obtaining a different judge, “after the judge decide[d] a major point against [] [them,] would be to blink reality.” In re Cargill, Inc., 66 F.3d at 1262. As adamantly stated by the First Circuit in In re Cargill:

[C]ourts cannot afford to spawn a public perception that lawyers and litigants will benefit by undertaking such machinations.
... We simply cannot afford to nourish the impression that the courts, as an institution, will bend over backward, overlook the obvious, and countenance sharp tactics merely because they are directed at a judge.

Id. at 1263-64 (citing In re United Shoe Mach. Corp., 276 F.2d 77, 79 (1st Cir. 1960)(‘We cannot permit a litigant to test the mind of the trial judge like a boy testing the temperature of the water in the pool with his toe, and if found to his liking, decides to take a plunge.”); Reilly v. United States, 863 F.2d 149,160 (1st Cir.l988)(expressing that “when a trial judge announces a proposed course of action which litigants believe to be erroneous, the parties detrimentally affected must act expeditiously to call the error to the judge’s attention or to cure the defect, not lurk in the bushes waiting to ask for another trial when their litigatory milk curdles”)).

By sanctioning the appearing attorneys, the Court is not carving out any exceptions to Rule 41(a). At no time was the attorneys’ ability to voluntarily withdraw the first action affected. It is the attorneys’ attempt to utilize the undersigned and the otherwise unremarkable procedures to side step an adverse ruling and the time consuming appellate process that calls for the imposition of sanctions. Ellis, 313 F.3d at 647 (noting that “judges who too liberally second-guess their coequals effectively usurp the appellate function and embolden litigants to engage in judge-shopping and similar forms of arbitrage”); Specialized Plating, Inc. v. Fed. Envtl. Servs., Inc., 975 F.Supp. 397, 398 (D.Mass.1997)(“The judicial system of dispute resolution is not cost free and those who abuse it through misconduct impose direct costs on the law abiding taxpayers who support it.”).

The situation at hand is analogous to requests for recusal which, though expressly allowed, can likewise be abused raising the judge-shopping flag. See Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 334 (2d Cir.1987)(stating that “a movant may not hold back and wait, hedging its bets against the eventual outcome”); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir.1986)(“Counsel, knowing the facts [280]*280claimed to support a § 455(a) recusal for appearance of partiality may not lie in wait, raising the recusal issue only after learning of the court’s ruling on the merits.”). We find the recusal case law to be persuasive and relevant since the actions described in said cases and the underlying concerns are the same. Therefore, although no Supreme Court or First Circuit ease or applicable federal or local rule expressly states that attorneys may not use Rule 41(a) as a vehicle for judge-shopping, any active litigating attorney would know that judge-shopping is not acceptable and thus sanctionable.

The attorneys make much of a First Circuit trilogy in which, in essence, the First Circuit rejects district court imposed sanctions when said courts announced “new rules” and simultaneously imposed sanctions for violating the same. United States v. 789 Cases of Latex Surgeon Gloves, 13 F.3d 12 (1st Cir,1993)(requiring the attorney to pay the court reporter for a trial transcript that he did not order); Boettcher v. Hartford Ins. Grp., 927 F.2d 23 (1st Cir.1991)(requiring the parties who settled the case after the jury had been called to pay the costs of the jury); In re Richardson, 793 F.2d 37 (1st Cir.1986)(sanctioning attorneys for failure to appear at a hearing on a matter that was of no interest to their clients). However, said cases are clearly distinguishable from the instant case. The attorneys in the cited cases could not have reasonably expected to be called to answer for their actions or inactions. Namely, withdrawing after the court had ordered the court reporter to prepare transcripts on an expedited basis, settling at the verge of trial, and not attending a hearing despite the client’s lack of interest in the matter.

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230 F.R.D. 278, 62 Fed. R. Serv. 3d 1414, 2005 U.S. Dist. LEXIS 23133, 2005 WL 2403291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vaqueria-tres-monjitas-inc-v-cubano-prd-2005.