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Slater v. Skyhawk Transportation

August 10, 1999

BRANTLEY SLATER, PLAINTIFF,
v.
SKYHAWK TRANSPORTATION, INC., MARK YOUNG, S.D. WARREN PAPER COMPANY, XYZ CORPORATION, ABC PARTNERSHIP, MARY DOE, AND JOHN DOE, DEFENDANTS, AND SKYHAWK TRANSPORTATION, INC., AND MARK YOUNG, THIRD PARTY PLAINTIFFS,
v.
S.D. WARREN PAPER COMPANY AND RECO CONSTRUCTORS, INC., THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Orlofsky, District Judge:

FOR PUBLICATION

HON. STEPHEN M. ORLOFSKY

OPINION

This Court must consider whether Plaintiff's counsel, Gerald M. Eisenstat, Esq. ("Mr. Eisenstat"), violated his obligation under Rule 11 of the Federal Rules of Civil Procedure, *fn1 to conduct a reasonable inquiry into applicable law before filing a motion in this case. More specifically, while reviewing the cross-motion of Plaintiff, Brantley Slater ("Slater"), to amend nunc pro tunc, which attempted to add a claim against Third-Party Defendant, S.D. Warren Paper Co. ("S.D. Warren"), this Court observed:

At the outset, I must note that I am deeply troubled by the contention, made by Mr. Eisenstat, counsel for Slater, that a deposition conducted on August 19, 1998, informed a pleading that he signed and filed on August 14, 1998. See, e.g., Plaintiff's Brief in Opposition to Motion to Dismiss at 4 (noting that the deposition of Charles Skalsky, on August 19, 1998, "was the first time that evidence, implicating [S.D.] Warren on a negligence theory, was revealed to plaintiff"). Such a statement suggests to the Court that Mr. Eisenstat has signed a brief that contains false or misleading statements.

Slater's brief in opposition to S.D. Warren's motion to dismiss does not argue for an extension or modification of existing law. See Fed. R. Civ. P. 11(a)(2). Instead, Slater ignores the explicit requirements of Rule 15(c) so that he can make the untenable argument that Slater's Amended Complaint relates back to the date of the filing of the original complaint, despite the fact that S.D. Warren never received notice within the applicable time period and Slater did not amend to correct a mistake. See generally Fed. R. Civ. P. 15(c) . . . Further, Slater does not cite to a single case in support of his position. It appears that Slater's counsel not only failed to perform a "reasonable inquiry" into the applicable law, but failed to perform any inquiry at all.

Furthermore, Ms. Gallagher's letter of August 20, 1998, provided Mr. Eisenstat with an additional opportunity to research the applicable law and withdraw the claim against S.D. Warren as time- barred. Mr. Eisenstat, however, appears to have failed to avail himself of this opportunity. . . . Thus, I find that there is compelling evidence that Mr. Eisenstat failed to conduct a reasonable inquiry in violation of Rule 11(a)(2). See [Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986)] ("If reasonable preparatory steps would have avoided [the] consequences, sanctions are appropriate."). Slater v. Skyhawk Transp., Inc., Civil Action No. 97-1853, 1999 WL 261728, at *15 (D.N.J. May 4, 1999) (citations and footnote omitted).

As a result, this Court issued an Order to Show Cause "why sanctions should not be imposed against [Mr. Eisenstat] pursuant to Rule 11 of the Federal Rules of Civil Procedure, for failing to conduct a `reasonable inquiry' to determine whether Slater's claim against S.D. Warren was `warranted by existing law.'" Order, filed May 4, 1999, at 2-3. In response to the Order to Show Cause, Mr. Eisenstat filed a brief on May 25, 1999, as required by the Order to Show Cause. See Eisenstat's Response. Mr. Eisenstat subsequently retained William B. McGuire, Esq. ("Mr. McGuire"), of Tompkins, McGuire, Wachenfeld & Barry, to represent him individually. With leave of Court, Mr. McGuire filed a letter brief, dated July 1, 1999, in which he contends that the arguments presented in Slater's reply brief reveal that Mr. Eisenstat did perform a reasonable inquiry into the law before filing the motion to amend, as required by Rule 11. *fn2

For the reasons set forth below, I find that Mr. Eisenstat has failed to demonstrate that he conducted a reasonable inquiry into the law before filing the motion to amend. Mr. Eisenstat's response to the Order to Show Cause, however, reveals that he will take his obligations under Rule 11 more seriously in the future. Accordingly, I find that an admonition and the publication of this opinion are sufficient to sanction Mr. Eisenstat for the Rule 11 violation committed in the circumstances of this case.

I. FACTUAL AND PROCEDURAL BACKGROUND *fn3

Slater alleges that on May 8, 1995, he suffered severe physical injuries when a truck, owned by Defendant, Skyhawk Transportation, Inc. ("Skyhawk"), and driven by Defendant, Mark Young ("Young"), pinned him against a large, metal tool shed. See Slater v. Skyhawk Transp., Inc. ("Slater I"), Civil Action No. 97-1853, 1999 WL 261728, at *3 (D.N.J. May 14, 1999). On April 2, 1997, almost two years later, Slater filed his complaint in this Court, asserting claims against Skyhawk, Young, and several fictitious defendants. Approximately six months later, on September 26, 1997, Skyhawk and Young filed a third-party complaint against S.D. Warren, alleging that:

[D]ue to its negligence, carelessness and/or recklessness, third party defendant, S.D. Warren Paper Co., is solely liable to the plaintiff, joint and severally liable to the plaintiff and/or over to defendants/third party plaintiffs for any causes of action alleged in the plaintiff's Complaint and for the whole of any amount which may be awarded in favor of the plaintiff and against defendants/third party plaintiffs. Third Party Complaint of Defendants, Skyhawk Transportation, Inc. and Mark Young, Against S.D. Warren Paper Co. ("Third-Party Complaint"), filed Sept. 26, 1997, at 3.

In particular, Skyhawk and Young claimed that S.D. Warren had caused Slater's injuries by:

(a) permitting congested conditions to exist on the premises with respect to truck and pedestrian traffic;

(b) failing to properly mark the premises to permit the uninterrupted and safe flow of truck and pedestrian traffic;

(c) failing to properly staff the premises so as to ensure the safe flow of truck and pedestrian traffic;

(d) permitting a dangerous condition to exist in the area of the plaintiff's accident;

(e) otherwise acting negligently or carelessly under the circumstances. Third-Party Complaint ¶ 5.

After an unsuccessful attempt to arbitrate the case, S.D. Warren filed an answer to the Third-Party Complaint on January 13, 1998.

Over eight months later, on August 14, 1998, Slater filed his Amended Complaint, adding claims against S.D. Warren. In response, S.D. Warren filed a motion to dismiss, arguing that Slater's claims against S.D. Warren were time-barred. In an effort to avoid the impact of the statute of limitations in this case, Slater filed a cross-motion to amend nunc pro tunc, advancing the following two grounds to permit amendment out of time: (1) Rule 15(c) *fn4 of the Federal Rules of Civil Procedure; and (2) the discovery rule. See Brief in Opposition to S.D. Warren Company's Motion to Dismiss Plaintiff's Complaints and For Sanctions and in Support of Plaintiff's Cross Motion for Leave to Amend Complaint Nunc Pro Tunc, filed Oct. 21, 1998, at 3-9.

More specifically, Slater argued that: (1) "the Amended Complaint relate[d] back to the date of the filing of the original complaint, pursuant to Rule 15(c) of the Federal Rules of Civil Procedure;" id. at 5-9; and (2) the depositions of Kimm Miller, on June 30, 1998, and of Charles Skalsky, on August 19, 1998, for "the first time [provided] evidence, implicating [S.D.] Warren on a negligence theory." Id. at 4; see also Slater I, 1999 WL 261728, at *8.

After reviewing the briefs submitted by the parties and the applicable law, I concluded that both the Rule 15(c) and the discovery rule arguments were without merit. As a result, I considered S.D. Warren's request for the imposition of sanctions in response to Slater's cross-motion. See Slater I, 1999 WL 261728, at *14-*17. In so doing, I noted that "Rule 11 of the Federal Rules of Civil Procedure `requires an attorney who signs a complaint to certify both that it is not interposed for improper purposes, such as delay or harassment, and that there is a reasonable basis in law and fact for the claim.'" Id. at *15 (footnote omitted) (quoting Napier v. Thirty or More Unidentified Federal Agents, 855 F.2d 1080, 1090 (3d Cir. 1988) (footnote omitted)). Thus, I determined that, "[a]t a minimum, Rule 11 requires `unambiguously that any signer must conduct a reasonable inquiry or face sanctions.'" Id. (quoting Business Guides, Inc. v. Chromatic ...


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