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Biernacki v. UPMC

January 14, 2009

JEAN BIERNACKI, PLAINTIFF,
v.
UPMC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Joy Flowers Conti

MEMORANDUM ORDER

In this memorandum order, the court considers the motion to enforce sanctions filed by defendants UPMC, University of Pittsburgh Physicians, Linda Kulcun, Betsy Chrzastek, and Sheila Heckla (collectively "defendants") against Lois E. Glanby ("Glanby"), who was counsel for plaintiff Jean Biernacki ("plaintiff"). (Docket No. 40). After considering the motion, plaintiff's response in opposition to defendants' motion to enforce sanctions (Docket No. 45), and defendants' reply to plaintiff's response (Docket No. 46), the court will grant defendants' motion, but, due to the financial condition of Glanby, will only award defendants $400.00 in attorneys' fees as sanctions.

Procedural History

Plaintiff filed the instant action on May 2, 2006. Plaintiff's complaint alleged claims for age and gender discrimination. Glanby did not engage in discussions with opposing counsel regarding Rule 26 disclosures, and counsel for defendants independently submitted the Rule 26(f) report. After Glanby failed to appear for the initial case management conference, this court entered an order directing Glanby to show cause why the case should not be dismissed as a result of her failure to appear for the case management conference. Glanby did not appear at the show cause hearing but sent a new associate. Following the hearing, the court directed the parties to proceed with discovery. Discovery was set to close on December 31, 2006.

Glanby did not conduct any discovery. At a conference set after the close of discovery, Glanby's associate informed the court that plaintiff had conducted no discovery and needed additional time to complete discovery. The court extended the time for discovery until February 14, 2007. Pursuant to the court's case management order, defendants moved for summary judgment on March 19, 2007. Plaintiff's response was due by April 19, 2007. Plaintiff failed to respond.

The parties engaged in discussions that ultimately resulted in Glanby agreeing to file a stipulation of dismissal. Despite her agreement to do so, and after repeated requests from defense counsel, Glanby failed to file the stipulation of dismissal. On May 8, 2007, defendants filed a motion for sanctions asserting compelling arguments and requesting that this court impose sanctions on Glanby for filing a frivolous complaint. Plaintiff did not respond. On May 29, 2007, this court entered an order to show cause relating to plaintiff's failure to respond to defendants' motion for summary judgment. Plaintiff did not respond. On July 11, 2007, this court entered an order directing plaintiff to respond to defendants' motion for sanctions. Plaintiff responded on July 19, 2007, by filing both a stipulation for dismissal and a response to defendants' motion for sanctions. That same day, defendants filed a motion to strike the stipulation for dismissal and requested that this court impose sanctions on plaintiff. A hearing on those motions was held October 24, 2007. The court for the reasons set forth on the record denied the motion to strike, and granted the motion for sanctions.

On October 31, 2007, defendants, in accordance with the court's grant of the motion to award sanctions, filed a motion to assess fees, requesting an award in the amount of $7,046. On November 21, 2007, plaintiff appealed the court's order issued on October 24, 2007 to the Court of Appeals for the Third Circuit. Defendants' motion to assess fees was denied without prejudice on May 8, 2008, by reason of plaintiff's appeal. On June 30, 2008, the Court of Appeals for the Third Circuit dismissed plaintiff's appeal for lack of jurisdiction.

This court entered an order on July 29, 2008, granting the motion for sanctions with the amount to be determined, for the reasons set forth on the record at the October 24, 2007 hearing. The following day on July 30, 2008, defendants filed the motion to enforce sanctions now pending before the court. On September 16, 2008, Glanby responded to the motion.

Standard of Review

Defendants moved for sanctions pursuant to Federal Rule of Civil Procedure 11 ("Rule 11"). Rule 11 provides in pertinent part:

(b) Representations to Court. By presenting to the court a pleading, written motion, or other paper -- whether by signing, filing, submitting, or later advocating it -- an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for ...


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