Labor & Employment Law Daily First Circuit upholds $20K sanction against attorney for frivolous claim
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Friday, April 9, 2021

First Circuit upholds $20K sanction against attorney for frivolous claim

By Brandi O. Brown, J.D.

He ignored a “pointed warning” from a magistrate judge and pressed forward with a claim against an individual defendant that was “based on nothing more than a wing and a prayer,” the court explained.

In an appeal filed by a black firefighter whose attorney was sanctioned $20K for pleading frivolous claims against an individual town selectman in a lawsuit that generally alleged race discrimination, the First Circuit has upheld the award of sanctions. The appeals court agreed with the district court that no reasonable attorney, looking at the additional matters that were pleaded in a second amended complaint, would have believed he had any evidence with which to support the claims against the selectman. Thus, the appeals court affirmed the sanctions order (Alston v. Spiegel, April 6, 2021, Selya, B.).

Allegations regarding a town selectman. In 2015 the firefighter sued the town and several individuals affiliated with it, including an elected selectman, alleging violation of 42 U.S.C. sections 1981, 1983, and 1985. He alleged that the town maintained racist and unconstitutional policies and that it retaliated against him when he protested treatment he received after reporting a superior’s use of a racist slur. Specifically, with respect to the selectman, he alleged that the individual defendant had distributed copies of a letter to the editor that had been published about the firefighter. He also alleged that the selectman was given access to his personnel file as part of a “smear” campaign by the town and that the selectman, in turn, told one of the employee’s supporters that she would not support him if she knew the “real story” contained in the file. He also stated that other black firefighters did not support the employee and that he was speaking “on behalf of the Town.”

Allowed to replead. After the town and Board of Selectmen filed motions to dismiss the employee’s lawsuit, his attorney filed an amended complaint on his behalf. The selectman and several other defendants moved to dismiss the amended complaint and the magistrate judge recommended dismissing the claims against the selectman. The judge noted that the claims against the selectman “would not be solved by clearer pleading” because he had not violated the employee’s rights.

The magistrate judge also “sent up a red flag” to plaintiff’s counsel, cautioning him that “by signing the pleading” he was certifying his belief that the claims were warranted by existing law or a nonfrivolous legal argument. The magistrate judge did not address the selectman’s motion for sanctions. The district court overruled the employee’s objections and adopted most of the magistrate judge’s recommendations. Because the employee had been given leave to re-plead his claims against the other defendants, however, the district court thought it would be “fair” to allow him “a chance” to replead those claims.

Dismissed, sanctions recommended. The employee filed a second amended complaint with a few added “cursory” allegations regarding the selectman. On the selectman’s motion, the magistrate judge again recommended dismissal. The district court adopted the recommendation and dismissed with prejudice the claims against the selectman. The district court agreed with the magistrate judge’s next ruling that sanctions were called for and ordered the employee’s attorney to pay over $20K. In the meantime, the First Circuit affirmed dismissal of the claims against the selectman. After the sanctions ruling, plaintiff’s counsel appealed.

Ignored warning. Although the appeals court agreed with the “foundational premise” offered by plaintiff’s counsel that the mere fact of dismissal, without more, could not support sanctions, it explained that the important question in this case was “whether any reasonable attorney” looking at the additional information pleaded would have concluded there was sufficient evidence to support the claims against the selectman. Its answer was “no.”

The allegations outlined only two events: the selectman’s distribution of copies of the letter to the editor and his confrontation with one of the employee’s supporters. The magistrate judge, however, had already concluded those allegations did not state a claim under any legal theory and had warned that “failure to state a claim would not be solved by clearer pleading.” Apparently ignoring that warning, however, plaintiff’s counsel tried again without adding anything consequential to the amended complaint.

Plainly deficient pleading. Indeed, the second amended complaint (SAC) “blithely ignored clear, widely available pleading requirements for discrimination and retaliation claims.” With respect to Section 1981, for example, the complaint did not “so much as allude to” a contractual relationship or that the selectman’s conduct had impaired one. Moreover, in a case about race discrimination, the SAC never so much as hinted that the selectman’s actions were motivated by racial animus. The claims under Section 1983, the court added, were “no less sketchy.” Further, with regard to the claim under Section 1985, the fact that the district court found it viable with respect to ten other defendants did not justify it against this one. “In terms of Rule 11,” the court explained, “a pleader owes an independent responsibility to each defendant whom he chooses to sue.”

Not a good extension argument. Plaintiff’s counsel also argued that by granting the employee leave to amend the first amended complaint the district court had “effectively” sustained his objection to the magistrate’s recommendation. This was a “slipshod foundation” for a “pie in the sky” argument the appeals court explained, and leave to amend is not immunizing.

Likewise, the court rejected counsel’s argument that the claims were warranted by a nonfrivolous argument for extension of existing law. Counsel argued that he sought to extend the holding in Ray v. Ropes & Gray LLP, a decision in which “the district court held that an employer’s dissemination of ‘severely damaging information’ about the plaintiff-employee to a media website could support a retaliation claim.” However, the court found the analogy attempted—that the selectman had threatened to disseminate such information—fell “flat.” The selectman was not the plaintiff’s employer, the court explained, nor was he alleged to be acting on behalf of the employer. Moreover, the second amended complaint did not include allegations regarding what the information in the employee’s personnel file concerned nor that injurious information would be brought to light at the selectman’s direction. It never even alleged a threat.

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