United States District Court, D. New Jersey
July 21, 2004.
LINO L. ALPHONSO, Plaintiff,
PITNEY BOWES, INC. and NORM SOMMER, Defendants.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
This matter comes before the Court on Defendants' motion for
sanctions, attorneys' fees and costs against Plaintiff's counsel,
pursuant to 28 U.S.C. § 1927. The principal issue to be decided
is whether Defendants have demonstrated that Plaintiff's counsel
vexatiously multiplied the proceedings by persisting in
prosecuting claims for monetary damages that were not factually
supportable. For the reasons discussed herein, Defendants' motion
will be granted in part.
I. INTRODUCTION AND FACTUAL BACKGROUND
The facts of this case are well-known to the parties. The facts
pertinent to the motion now before the Court are given here.
Plaintiff Lino Alphonso was a sales representative who worked
in Pitney Bowes' office in Delran, New Jersey, from January 1997
until June 9, 1999, when he was terminated. He alleged that his
termination constituted unlawful retaliation under the New Jersey
Law Against Discrimination ("NJLAD" or "LAD"), N.J.S.A. 10:5-1,
et seq. He further alleged he had engaged in protected
activity by repeating to management some unkind remarks he
allegedly had heard co-workers say about an African-American
manager who had recently been promoted. After Defendant Norm
Sommer terminated him for making inappropriate remarks and
unfounded accusations, Plaintiff was unemployed for two months
and started a new job (actually, a series of new jobs through
2002) at higher pay.
Plaintiff's complaint was filed in the Superior Court of New
Jersey, Burlington County, on June 8, 2001, and it was properly
removed to this court by Defendants based on diversity of
citizenship, 28 U.S.C. § 1332, on July 16, 2001, where it was
assigned to the Honorable Stanley S. Brotman. The case was
reassigned to the undersigned on October 2, 2003, and the jury
trial commenced on December 8, 2003.
On December 22, 2003, after nine days of trial and a short
deliberation, the jury returned a defense verdict in favor of
Pitney Bowes and against Lino Alphonso. The jury unanimously
found that Mr. Alphonso had not engaged in "protected conduct"
and, therefore, had no basis for his retaliation claim against
Pitney Bowes. While Pitney Bowes, as the prevailing party, could
pursue a petition for fees, it has chosen to forego that option
and instead moves, under 28 U.S.C. § 1927, against Plaintiff's
counsel based upon certain conduct in which they engaged during
the prosecution and trial of this case that Defendants allege was
so unreasonable and vexatious as to constitute bad faith and
The applicable statute, 28 U.S.C. § 1927, provides, "[a]n
attorney . . . who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses and attorneys' fees
reasonably incurred because of such conduct." The statute is
designed to hold counsel accountable where they intentionally and
unnecessarily delay and multiply the proceedings. See Beatrice
Foods Co. v. New England Printing & Lithographing Co.,
899 F.2d 1171 (1st Cir. 1990).
Defendants argue that this is exactly what happened in this
case. First, Defendants assert that Plaintiff's counsel refused
to drop Plaintiff's claim for post-1999 economic damages when the
claim was clearly frivolous. Next, Defendants argue that
Plaintiff's counsel refused to drop Plaintiff's claim for
post-1999 emotional distress damages until after they had
elicited from Plaintiff the testimony at trial about continual
distress that they wanted the jury to hear and then limited the
claim to 1999 to prevent Defendants from countering that
testimony with evidence that seriously undermined the credibility
of Plaintiff's testimony. Finally, Defendants contend that
Plaintiff's counsel made incessant and unprincipled arguments to
preclude the taking, and Defendants' use, of the de bene
esse deposition of Edward Logan. Each of these actions,
Defendants state, caused Pitney Bowes to incur unnecessary
expense, and are sanctionable under Section 1927.
As early as September 13, 2001, Pitney Bowes, through its
counsel, warned Mr. Sandler that it would hold him accountable if
his objectionable conduct continued. By that date, Mr. Sandler
had unreasonably prolonged discussions over the preparation of a
Joint Discovery Plan, tried to block Pitney Bowes' routine
service of subpoenas on Plaintiff's post-Pitney Bowes employers
and refused to provide Pitney Bowes the authorizations to obtain
medical records that then Magistrate Judge Kugler told him he
must provide. Pitney Bowes' counsel wrote Mr. Sandler and warned:
I do not want this litigation to be fraught with
continual and unnecessary battles over matters
concerning which there should be no legitimate
disagreement. The result will only be inflated
litigation costs for which we think your client will
ultimately bear the financial burden. But, in the
short term, if we have to unnecessarily involve the
Court in resolving commonplace issues, we will need
to seriously entertain the prospect of sanctions. I
state this not as a threat, but as a fact, and with
the hope that the sounding of this cautionary note
will facilitate the reasonable conduct of this case
as we proceed.
(Def. Ex. A, 9/13/01 Levering to Sandler Letter at p. 2).
Plaintiff's counsel oppose this motion, arguing generally that
the positions they advocated were not taken in bad faith and
that, if the claims were as lacking in substance as Defendants
now claim, defense counsel expended too much time and money in
efforts to defend them, as discussed further below.*fn2
A. Attorney Conduct Concerning Plaintiff's Claim for Lost
Defendants assert that Plaintiff's counsel refused to genuinely
assess Plaintiff's claim for lost earnings by either learning or
appropriately acknowledging that Plaintiff's earnings from other
employers exceeded what he would have earned from Pitney Bowes.
Plaintiff was required to provide a damages calculation with his
initial disclosures. See Fed.R.Civ.P. 26(a)(1)(C). Mr.
Sandler did not, and Pitney Bowes pressed for this information.
(Def. Ex. B, 8/20/01 Woolf to Sandler Letter). At the initial
scheduling conference on August 22, 2001, then Magistrate Judge
Kugler asked Mr. Sandler to substantiate his settlement demand of
$200,000 plus attorneys' fees. Mr. Sandler could not.
On September 27, 2001, Pitney Bowes' counsel provided to Mr.
Sandler the documents it obtained from SCI, Plaintiff's first
post-Pitney Bowes employer. The documents showed that Plaintiff
was unemployed for only two months, that he had earned more money
at SCI than he earned at Pitney Bowes, and that Plaintiff had
abandoned his job at SCI, his first after Pitney Bowes, thereby
disqualifying himself from future loss. See Weiss v. Parker
Hannifan Corp., 747 F. Supp. 1118, 1132 (D.N.J. 1990). Pitney
Bowes' counsel asked Mr. Sandler to limit Plaintiff's claim for
lost earnings. (Def. Ex. C, 9/27/01 Levering to Sandler Letter).
Mr. Sandler refused and chose instead to press ahead with
Plaintiff's unrestricted claim for continued lost
On April 26, 2002, Pitney Bowes' counsel confirmed in writing
that it would seek sanctions under Section 1927 against Mr.
Sandler at the conclusion of this case:
I've told you before, and I will say it again with
even more conviction: when this case ends, we will
seek sanctions against you to the fullest extent
available. Your conduct in this case has been
obstreperous, and now duplicitous. There will be a
* * *
Rarely in my 25 years of practice have I written so
stern a letter. But your conduct today, and
throughout the case, clearly warrants it. I strongly
suggest you invest the time to look into
28 U.S.C. § 1927 and other statutes and rules authorizing
(Def. Ex. D, 4/26/02 Levering to Sandler Letter).*fn4
Sandler persisted and retained an expert in an attempt to support
Plaintiff's economic damage claim. The expert, Dennis Meyerson,
an accountant who had failed his CPA exam (Def. Ex. E, Transcript
of April 30, 2002 Deposition of Dennis Meyerson at 71) produced a
report augmenting Plaintiff's damages, claiming that Plaintiff
would have been promoted had he remained at Pitney Bowes. The
post-termination wage loss was calculated at $535,079 based on
the assumption that Plaintiff (who earned $36,584 in his last
full year of employment in 1998)*fn5
would have become a
manager in 2005 at an expected salary of $86,550.
Pitney Bowes deposed Mr. Meyerson, who knew nothing about
Pitney Bowes' criteria for promotion (id. at 87-88), was not
aware of any promotion opportunities for which he assumed
Plaintiff qualified (id. at 87) and had no information about
how or what Pitney Bowes pays its managers (id. at 149). He
admitted that he just assumed that Plaintiff would have been
promoted in 2005 because Plaintiff told him so. (Id. at 86-88).
He also stated that the post-promotion salary he projected of
$86,550 was purely hypothetical and not based on Pitney Bowes
actual compensation system. (Id. at 148-49). Mr. Meyerson
subsequently agreed that, absent a promotion, Plaintiff suffered
no lost earnings through at least 2004 five years after
Plaintiff's termination. (Id. at 146-47).
On May 3, 2002, Defendants' counsel summarized Mr. Meyerson's
deposition testimony in a letter to Mr. Sandler. Ms. Levering
wrote, inter alia, "It now appears clear that, even under the
best of circumstances, Mr. Alphonso only can lay claim to, at
best, a $9,388 loss." (Def. Ex. F, 5/3/02 Levering to Sandler
Letter). Despite the fact that Mr. Meyerson's deposition
testimony undermined the conclusions in his report, Mr. Sandler
did not withdraw Mr. Meyerson as a witness or limit Plaintiff's
economic damages claim. Indeed, Mr. Sandler ignored Pitney Bowes'
counsel's efforts to avoid unnecessary costs and instead pressed
As a result, costs escalated. Faced with Plaintiff's counsel's
insistence on calling Mr. Meyerson as an expert, Pitney Bowes
engaged a forensic economist, Jerome Staller, Ph.D., and incurred
the expense of providing a report that stated that Plaintiff had
no viable claim to any economic loss after 1999. Long after
Defendants produced this export report, Plaintiff's counsel
attempted to add another expert to further buttress their claim.
On March 10, 2003, the day before the Final Pretrial
Conference, and over a year after the close of discovery, Mr.
Sandler added Andrew Verzilli, Ph.D., to Plaintiff's witness list
on the working draft of the Final Pretrial Oder to testify in
"rebuttal" to Dr. Staller. This caused Pitney Bowes to incur
additional expense. Dr. Verzilli was never timely identified as
an expert; Rule 26 disclosures were never made; and no rebuttal
report was ever prepared, timely or otherwise. Yet, oddly enough
(given the clear mandates of Rule 16(a) and 26(a)(2) regarding
timely disclosure of expert's identities and reports), Mr.
Sandler insisted that Dr. Verzilli could testify at trial. Pitney
Bowes was forced to file a motion in limine to preclude his
testimony, which Magistrate Judge Donio granted. (Def. Ex. G,
11/14/03 Order at p. 2).
Plaintiff's counsel pursued Plaintiff's claim for economic
damages, unrestricted in scope, into trial. Only after Pitney
Bowes incurred the expense of preparing to defend against
Plaintiff's lost earning claim did Plaintiff's counsel drop the
claim for any lost earnings after 1999 and tell Defendants'
counsel, on the last day of Plaintiff's presentation of his case
in chief, that they were not calling Mr. Meyerson to testify.
B. Conduct Concerning Plaintiff's Emotional Distress Damages
Defendants contend that Plaintiff's counsel pursued a
hopelessly compromised claim for unrestricted emotional distress
damages. First, Defendants accuse Plaintiff's counsel, Mr.
Sandler, with knowingly concealing the truth about Plaintiff's
consultation with mental health professionals. Defendants sought
executed medical authorizations so that counsel could obtain
Plaintiff's medical records and investigate for themselves
Plaintiff's claim of emotional distress. Although Mr. Sandler
insisted that he obtain the records and provide Defendants'
counsel copies, Defendants' counsel did not want Mr. Sandler to
filter what Defendants could see. Defendants were forced to raise
the issue with then-Magistrate Judge Kugler, who instructed Mr.
Sandler to provide Defendants with authorizations. Mr. Sandler,
however, sent the authorizations to the medical providers and
directed them to furnish him, not Defendants, with those records.
Only after Defendants involved Judge Kugler again did Mr. Sandler
provide the necessary authorizations.
In response to Pitney Bowes' interrogatories, Mr. Sandler wrote
that Plaintiff had seen at least two physicians, as well as his
sister-in-law, for psychological treatment after his termination.
(See Def. Ex. H at p. 8, #11). Plaintiff's counsel also
represented that Plaintiff had newfound problems with
sleeplessness and headaches caused by his termination. (Def. Ex.
I, Plaintiff's Statement of Material Facts in Opposition to
Defendants' Motion for Summary Judgment at pp. 9-10, ¶ 22). The
medical records, however, reveal that Plaintiff had headaches
dating back to 1993, and that he had never sought any medical
attention for sleeplessness.
On January 14, 2002, Defendants conducted the deposition of
Plaintiff's wife, Angelina Guieb-Alphonso. Defendants contend
that Mr. Sandler said that, despite what the medical records
established, Plaintiff's wife would substantiate Plaintiff's
claim that he had serious headaches and sleeplessness caused by
his termination. Ms. Guieb-Alphonso's testimony was just the
opposite. She confirmed that Plaintiff had headaches and
sleeplessness before he separated from Pitney Bowes and that his
headaches were not "as bad" after his termination, and that his
sleep pattern was no different. Her deposition transcript
Q: And after he left the employ of Pitney Bowes in
June 1999, did [Plaintiff's] headaches continue?
A: They continued it's not as bad as previous
Q: So they continued but they weren't as bad as they
had been when he was actually working at Pitney
Bowes; is that right?
A: Right. Right.
* * *
Q: . . . Now, after his termination of employment
from Pitney Bowes, was there any change in his
getting up in the middle of the night and his sleep
(See Def. Ex. J, Guieb-Alphonso Tr. at 36, 60). Defendants
further argue that Mr. Sandler attempted to change Ms.
Guieb-Alphonso's testimony through an errata sheet he wrote. The
testimony "it's not as bad as previous", changed to "it's worse
than previous" and "right, right" changed to "no." (Def. Ex. K,
Guieb-Alphonso Errata Sheet). Although listed among Plaintiff's
witnesses, Ms. Guieb-Alphonso was not called to testify at her
Plaintiff's counsel sought to buttress this claim by engaging
an expert and forcing Defendant to do the same. Plaintiff's
expert was Andrew F. Jensen, Ph.D. Plaintiff's counsel failed to
provide Dr. Jensen any medical records; failed to tell Dr. Jensen
of Plaintiff's wife's testimony; failed to provide Dr. Jensen
with the medical records showing that Plaintiff did not complain
of any stress or anxiety post-termination; failed to provide him
Plaintiff's self-assessment in September 2001, just three months
after Plaintiff's counsel filed the Complaint claiming continual
emotional distress, that he had no psychological or sleep
problems; and failed to provide Dr. Jensen with Plaintiff's
post-Pitney Bowes employment records that showed that Plaintiff
had other stressors that could have caused Plaintiff's supposed
Plaintiff's problems at his post-Pitney Bowes employers were
serious: Plaintiff was counseled, among other things, for lying
to his supervisor about whether he actually had made appointments
with clients, for leaving "nasty" voicemail messages for his
supervisor, for telling a customer to "pretend" she was someone
else so that she could sign a contract, and for lying to
customers. (See Def. Ex. EE, RCN and SCI warnings).
To respond, Pitney Bowes engaged Robert M. Toborowsky, M.D., as
its forensic psychiatrist. Dr. Toborowsky reviewed all of
Plaintiff's medical and employment records and the deposition
transcripts. On April 2, 2002, Dr. Toborowsky examined Plaintiff,
with Mr. Sandler present. Plaintiff stated plainly that he was
not suffering any present distress and that he was "hail and
hardy just like everybody else." (See Def. Ex. L, Toborowsky
Report at 3, 4, 6).
When Defendants sought to limit Plaintiff's use of Dr. Jensen
and his report at trial, Plaintiff's counsel fought to present
the testimony and to preclude Defendants from presenting evidence
of other stressors in Plaintiff's life after his termination from
Pitney Bowes that could explain the emotional distress Plaintiff
claimed he was suffering up through the present. Defendants were
allowed to use evidence of Plaintiff's potential stress from his
subsequent employers. At trial, Plaintiff testified about
continuing distress from the day he was terminated up through the
present and broke down in tears during his testimony.
Subsequently, and prior to a cross-examination that in all
likelihood would have been factually devastating to any post-1999
claim, Plaintiff's counsel limited the emotional distress claim
to 1999. Defendants contend that as soon as the cross-examination
began concerning the problems Plaintiffs had at subsequent
employers and the probable stress Plaintiff felt as a result,
Plaintiff's counsel withdrew the claim for any distress damages
after 1999. At the time of cross-examination, Mr. Yaskin simply
stated, "I would like to cut short this course of action and make
a formal withdrawal of Plaintiff's emotional distress damages
claim." (See Def. Ex. X, 12/15/03 Trial Tr. at 345).
Defendants contend that by dropping the claim for post-1999
emotional distress damages so late in the proceedings,
Plaintiff's counsel forced Pitney Bowes to incur the unnecessary
expense of deposing Plaintiff's expert, arguing over the scope of
his intended testimony, engaging an expert of its own, preparing
for the cross-examination of Plaintiff with regard to this claim,
and preparing for the presentation of Pitney Bowes' forensic
psychiatrist at trial. Defendants do not quarrel with the
dropping of the claim, but with the two-year delay in doing so
after it became apparent that Mr. Alphonso had no provable claim
for emotional distress. Defendants argue that all of these were
unnecessary expenses, vexatiously caused, for which Plaintiff's
counsel should bear the costs.
C. Conduct Concerning The Trial Deposition of Edward Logan
Defendants assert that Plaintiff's counsel's conduct in
contesting the taking of Edward Logan's de bene esse
deposition and its use at trial warrants sanctions. Mr. Sandler
knew since at least March 11, 2003 that Defendants intended to
schedule a trial deposition for medical reasons and identified
Mr. Logan in particular by April 24, 2003, when it asked
Plaintiff counsel about mutually convenient dates for the
deposition. (See Def. Ex. O, 7/30/03 Sandler letter to U.S.M.J.
Donio). Mr. Sandler, however, waited until July 30, 2003, eight
days before the long-scheduled deposition, to raise the issue
with the Court. Magistrate Judge Donio ordered the deposition to
proceed and brokered with the parties the terms of a declaration
that would satisfy Mr. Sandler's concerns about Mr. Logan's
Defendants provided the agreed-upon declaration. (See Def.
Ex. Z, 8/4/03 Woolf to Sandler letter). Plaintiff's counsel
claimed it was not good enough and Judge Donio ordered that the
deposition proceed. Plaintiff's counsel questioned Mr. Logan over
68 pages of transcript. Pitney Bowes offered Mr. Sandler the
chance to conduct discovery of Mr. Logan's physician(s). (See
Def. Ex. Y, 8/6/03 Woolf to Sandler letter). Mr. Sandler declined
the offer, while insisting that Mr. Logan was not "unavailable."
Defendants contend that this conduct, and other acts like it,
resulted in the waste of dozens of hours of attorney time and
cost Pitney Bowes thousands of dollars in fees and costs.
A. Legal Standard for the Imposition of Sanctions
Title 28 of the United States Code, Section 1927 permits a
court to impose sanctions upon counsel for engaging in conduct
that "multiplies the proceedings in any case unreasonably and
vexatiously" and require that counsel personally satisfy "the
excess costs, expenses, and attorneys' fees reasonably incurred
because of such conduct." See 28 U.S.C. § 1927. Willful bad
faith is required. Williams v. Giant Eagle Markets,
883 F.2d 1184, 1190-91 (3d Cir. 1989); Ford v. Temple Hosp.,
790 F.2d 342, 347 (3d Cir. 1986). The "intentional advancement of a
baseless contention that is made for an ulterior purposes,
e.g., harassment or delay," is indicative of bad faith. Ford,
790 F.2d at 347. "[B]ad faith may [also] be inferred `when the
attorney's actions are so completely without merit as to require
the conclusion that they must have been undertaken for some
improper purpose. . . .'" D'Auria v. Minniti (In re Minniti),
242 B.R. 843, 850 (Bankr. E.D. Pa. 2000) (quoting Estate of
Perlbinder v. Dubrowsky (In re Dubrowsky), 206 B.R. 30, 36
(Bankr. E.D.N.Y. 1997); see also Veneziano v. Long Island Pipe
Fabrication & Supply Corp., 238 F. Supp.2d 683, 692 (D.N.J.
Sanctions under Section 1927 do not depend upon a finding that
the lawsuit itself was filed in bad faith. Instead, sanctions
attach under Section 1927 when an attorney continues the suit, or
some aspect of it, after the attorney learns that it lacks merit.
See Murphy v. Housing Authority & Urban Redevelopment Agency,
158 F.Supp.2d 438, 450 (D.N.J. 2001) (continued pursuit of
claim where there was a "dearth of any evidence . . . supporting
[p]laintiff's claims" warrant sanctions under Section 1927);
Matthews v. Freedman, 128 F.R.D. 194, 207 (E.D. Pa. 1989)
(continuing after learning the claims were barred by the statute
of limitations), aff'd without op., 919 F.2d 135 (3d Cir.
1990); Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750 (7th
Cir. 1988); Ford, 790 F.2d at 350.
The determination as to whether there has been "bad faith" is
made by the court. Boykin v. Bloomsburg Univ., 905 F. Supp. 1335,
1347 (M.D. Pa. 1995). Even if the court finds such bad
faith, the court retains discretion as to the imposition of
attorneys' fees as a sanction. Ford v. Temple Hospital,
790 F.2d 342, 347 (3d Cir. 1986), cited in Jones v. Pittsburgh
National Corp., 899 F.2d 1350, 1358 (3d Cir. 1990). "[O]nce a
finding of bad faith has been made, the appropriateness of
sanctions is a matter entrusted to the discretion of the district
court." Quiroga v. Hasbro, Inc., 934 F.2d 497, 505 (3d Cir.
1991) (citing Hackman v. Valley Fair, 932 F.2d 239, 242 (3d
Cir. 1991)), cert. denied, 502 U.S. 940 (1991). A number of
courts have cautioned, however, that the power to impose
sanctions "should be exercised with restraint, lest the prospect
chill the ardor of proper and forceful advocacy on behalf of
[the] client." Williams v. Giant Eagle Markets, 883 F.2d 1184,
1194 (3d Cir. 1989) (quoting Colucci v. New York Times Co.,
533 F. Supp. 1011, 1014 (S.D.N.Y. 1982).
B. Plaintiff's Claim for Economic Damages
Defendants seek a monetary sanction under Section 1927 with
respect to part of defense counsel's efforts necessitated by
Plaintiff's assertion of elaborate economic losses exceeding
$500,000 following his termination from employment when in fact
his only possible losses arose from two months unemployment
(calculated as $9,388, see Def. Ex. F) and a 10 percent fee of
$1,200 for early withdrawal of his 401(k) plan, for a total
possible economic loss of $10,588. On this economic damages
issue, Defendants seek recovery of $8,895 for Mr. Woolf's
services (Woolf Aff. ¶ 11) and $301.50 for Ms. Levering's
services (Levering Aff. ¶ 8) and reimbursement for retaining Dr.
Jerome Staller as a rebuttal economic damages expert in the
amount of $6,942.00, for a total of $16,138.50
Defendants argue that Plaintiff's counsel refused to limit
Plaintiff's claim for economic damages consistent with the
undisputed facts; instead, Plaintiff's counsel asserted an
artificially inflated damages claim up through the close of its
case in chief, when that claim was finally abandoned.
Plaintiff's own expert, Dennis Meyerson, testified at his
deposition on April 30, 2002 that, following his initial two
month period of unemployment, Plaintiff actually made more money
than he would have earned had he remained at Pitney Bowes. After
the Meyerson deposition, Ms. Levering asked Mr. Sandler to limit
the damage claim. (See Def. Ex. F). Mr. Sandler refused,
however, and the claim continued until the middle of trial.
Plaintiff's counsel also pressed other claims for damages the
401(k) loss, additional driving expenses to his new,
higher-paying job, and the lost promotion which they argue
justify their decision not withdraw Plaintiff's claim for
post-1999 economic losses. Plaintiff's claim for 401(k) loss,
although raised at trial, may not have been legally viable
because it constituted a double counting of benefits and failed
to consider both the stock market's swoon in 1999, 2000 and 2001
and the myriad of mitigation opportunities available to Plaintiff
as his total familial income increased in subsequent years. At
best, the claim was one for the $1,200 tax penalty imposed on
Plaintiff for his early withdrawal of his 401(k) monies. This was
the only amount Plaintiff ultimately pursued to verdict
concerning the 401(k) claim. This amount, however, arose in 1999
and does not justify a post-1999 economic loss claim.
Furthermore, Plaintiff's claim for additional driving expenses
was also inflated. These modest amounts were more than offset by
the additional income Plaintiff received from his post-Pitney
Bowes employers. This Court explained that at trial and, at that
late point, Plaintiff's counsel dropped this claim.
Defendants further contend that Plaintiff's assertion that he
would have been promoted was manufactured; Mr. Sandler further
had Mr. Meyerson project damages based on an assumed promotion
that had no basis in fact. Mr. Meyerson testified that he had no
knowledge of the criteria Pitney Bowes employed to promote its
sales people or what opportunities for promotion were available;
that he had no reason to believe that Plaintiff would have been
promoted other than Plaintiff's bald statement that a promotion
would be forthcoming in 2005; and that he had no knowledge of
what a typical Pitney Bowes sales manager earns. He simply
posited a hypothetical post-promotion salary at $86,550,
admitting that "it could be lower or it could be higher." Such
baseless testimony hardly fulfills the expert's essential
function of offering opinions based upon reliable information
which will be of assistance to the jury.
Plaintiff's counsel refused to acknowledge that such efforts to
recover post-1999 economic damages were frivolous. See
Williams v. Rene, 72 F.3d 1096, 1101-03 (3d Cir. 1995)
(expert's economic damages testimony rejected where underlying
assumption "unsupported and speculative"); Benjamin v. Peter's
Farm Condominium Owners Assign., 820 F.2d 640, 642-43 (3d Cir.
1987) ("[The Third Circuit] has required more than speculative
opinion when determining damages for prospective earnings
loss. . . . Although mathematical exactness is not required,
testimony of post-injury earning capacity must be based upon the
proper factual foundation."); Gumbs v. Int'l Harvester, Inc.,
718 F.2d 88, 98 (3d Cir. 1983) (rejecting economic damages
expert's testimony where no evidence was presented to support
claim that the plaintiff would experience a dramatic income
increase). The result was to force Pitney Bowes to incur the
expense of defending against a frivolous promotion possibility
and of engaging an economist to testify to what should have been
stipulated long before the limited amount of Plaintiff's
claimed earning loss.
Case law is clear that where an attorney, for an improper
purpose, disregards applicable law and pushes a claim in the
absence of supporting facts, bad faith is evident and sanctions
are appropriate under 28 U.S.C. § 1927. See In re Prudential
Ins. Co. Am. Sales Practice Litig. Actions, 278 F.3d 175, 188
(3d Cir. 2002) ("[i]ndications of this bad faith are findings
that the claims advanced were meritless, that counsel knew or
should have known this, and that the motive . . . was for an
improper purpose") (internal quotations and citations omitted);
Murphy, 158 F. Supp.2d at 450 (counsel's "disregard for the
undisputed facts of this case and the applicable law" warrant
sanctions under Section 1927); Rodriguez v. Bank Cent.,
155 F.R.D. 403, 407 (D.P.R. 1994) ("there is a point beyond which
zeal becomes vexation, the `novel' approach to a legal issue
converts to frivolity and steadfast adherence to a position
transforms to obdurateness") (citations omitted).
While Mr. Sandler may not have initiated his client's
half-million dollar economic damages claim in bad faith,
relentlessly pursuing that claim after the evidence demonstrated,
at most, a comparatively trivial amount of loss shows bad faith
by Mr. Sandler. Here, Plaintiff's claim for economic damages
beyond 1999 had no chance of success. The hard "damages," as
Plaintiff's counsel was told by Defendants' counsel and Judges
alike, were no greater than approximately $10,600 on Plaintiff's
best day. Plaintiff's counsel chose to "turn a blind eye to the
facts and law and . . . unreasonably and vexatiously multiplied
the proceedings of the case." Murphy, 158 F. Supp.2d at 451.
Plaintiff's counsel tried to prevent Defendants from putting the
Alphonsos' joint income before the jury; they manufactured a
promotion claim when no such claim existed; and they added an
unauthorized expert the day before the Final Pretrial Conference,
who was ultimately barred by Magistrate Judge Donio.
Defendants further contend that the timing of Plaintiff's
counsel's mid-trial decision to drop Plaintiff's claim for
economic loss after 1999 suggests bad faith. Although Mr. Sandler
long knew of the facts relevant to the claim and had been told
that they did not support his demand, Plaintiff's counsel waited
until mid-trial to drop the claim. Even though Mr. Sandler now
says he had decided before trial that he did not plan on pursuing
this claim at trial (see Sandler Cert. at ¶ 31 (omitting
promotion claim from list of "elements of economic damages" Mr.
Sandler believed Plaintiff could pursue "following the issuance
of Mr. Meyerson's report and deposition")), he did not drop the
post-1999 wage loss claim until mid-trial. Such action
unreasonably forced Defendants to respond to the inflated damages
claim by retaining an expert and preparing for the experts' and
other witnesses' testimony. Plaintiff's counsel also refused to
tell Defendants' counsel that they were not calling Mr. Meyerson
as a witness until the last day of Plaintiff's case in chief,
causing Defendants unnecessarily to incur the expense of
preparing to cross-examine Mr. Meyerson and to present their
rebuttal expert and foundation witnesses to testify in the
Pitney Bowes seeks reimbursement only for costs and fees
incurred after March 1, 2002. It was then that Pitney Bowes
received Mr. Meyerson's report with Plaintiff's counsel's
unsupportable claim for post-1999 economic damages and after
which Pitney Bowes incurred most of the related attorneys' fees
and costs. These costs and fees equal $16,138.50. (See Levering
Aff. at ¶ 8 (as to counsel fees of $301.50); Woolf Aff. at ¶¶ 11,
13 (as to counsel and expert fees of $15,837.00). Defendants'
counsel repeatedly reached out to Mr. Sandler, urging him to
reconsider this claim and warning him of the possibility of
sanctions. Mr. Sandler, however, willfully turned a blind eye on
numerous occasions. The record reflects that all of the facts
that formed the basis for the decision to drop this claim at
trial were known to Plaintiff's counsel long before the trial
date neared. In light of this, this Court finds the imposition of
sanctions in the amount of $16,138.50 to be appropriate.
C. Plaintiff's Emotional Distress Damages Claim
Defendants seek reimbursement of $16,853.00 for counsel and
expert witness fees necessitated by Plaintiff's unsupported claim
of emotional distress.
Defendants argue that Plaintiff's counsel knew that Plaintiff's
claim for post-1999 emotional distress damages was unsupported by
the evidence. Plaintiff's counsel knew, or should have known,
upon receiving Plaintiff's medical records, that he had never
seen a psychiatrist or other mental health care provider for
claimed distress. (See generally Def. Ex. CC, Plaintiff's
Medical Records from Meetinghouse Family Physicians; Def. Ex. DD,
Plaintiff's Medical Records from Neurological Regional
Associates). Counsel also knew that Plaintiff had stated on
September 22, 2001, a few months after this lawsuit was filed,
that Plaintiff had told his own physician that he had no
psychological or sleep problems. (Def. Ex. CC, Meetinghouse
Records, at 2, line 26). Mr. Sandler also knew that Plaintiff had
not kept a pre-scheduled doctor's appointment during the week
following his termination from Pitney Bowes (Def. Ex. DD,
Neurological Regional Associates Records, at 6, 14) and that
Plaintiff had suffered from headaches and sought treatment for
"chronic anxiety" for years before his separation from Pitney
Bowes. (Def. Ex. CC, Meetinghouse Records at 27 (headaches and
chronic anxiety as of July 27, 1993) and 14, 15, 58, 60
(headaches in June 1997); Def. Ex. DD, Neurological Regional
Associates Records at 3, 7, 9 (headaches as of June 1997)).
Plaintiff's wife testified that Plaintiff, whom she labeled a
"discipline freak" even before he left Pitney Bowes, was
emotionally stable and did not need care from a mental health
professional after leaving Pitney Bowes. (See Def. Ex. J,
Guieb-Alphonso Tr. at 30-33, 36, 40, 55-57, 60, 63-64, 68-70). In
addition, she testified that Plaintiff's headaches were better
after Pitney Bowes, that his sleep pattern did not change, and
that, by the time Plaintiff began working for his first
post-Pitney Bowes employer, SCI, there was "nothing wrong with
his emotions." (Id. at 36, 39-40, 60).
Mr. Sandler was also present when Defendants' emotional
distress expert, Robert Toborowsky, M.D., evaluated Plaintiff on
April 2, 2002. During his evaluation, with Mr. Sandler present,
Mr. Alphonso told Dr. Toborowsky that he was not suffering any
present distress and that he was "hail and hardy just like
everybody else." (See Def. Ex. L, Toborowsky Report at 3, 4,
6). Mr. Sandler, however, states that he did not take this
statement to undermine Mr. Alphonso's emotional distress claim.
(Sandler Cert. at ¶ 23). It is not understandable to this Court
that Mr. Sandler could know that his client felt fit, sought no
professional help, and had no proof of any worsening of his
mental status due to his termination from employment at Pitney
Bowes, and could still pretend that he did.
Plaintiff's counsel is also accused of acting consistently in a
manner evidencing bad faith. Mr. Sandler refused to provide
customary medical record authorizations to Defendants' counsel,
necessitating Defendants' raising of the issue with former
Magistrate Judge Kugler twice. In addition, Mr. Sandler wrote, in
response to Pitney Bowes' Interrogatory No. 11, that Plaintiff
had received treatment for emotional distress from at least two
"and possibly other physicians," as well as his sister-in-law,
something he knew was false. (Def. Ex. H, Plaintiff's Answers to
Interrogatories). Furthermore, Mr. Sandler changed the testimony
of Ms. Guieb-Alphonso and did not provide the explanation that
Rule 32(e) of the Federal Rules of Civil Procedure requires.
Mr. Sandler, however, states that Ms. Guieb-Alphonso's
deposition answers appeared inconsistent and certifies that he
believed Ms. Guieb-Alphonso to have been legitimately confused as
to the deposition testimony which she gave via telephone, with
Ms. Levering in Philadelphia and Ms. Guieb-Alphonso in
California. (Sandler Cert. at ¶ 20). Notably, though, in
opposition to Defendant's motion for sanctions, Plaintiff's
counsel does not offer any affidavit of Ms. Guieb-Alphonso that
speaks to this point. Furthermore, Mr. Alphonso identified Dr.
Morena Cherkassky and Dr. Maria C. Mangione as medical providers
with whom he consulted for the "`loss of enjoyment of life,
emotional distress damages' or any other harm or damage alleged
in the Complaint" as requested by Interrogatory No. 11. Mr.
Alphonso certified to the accuracy of these interrogatories on
October 4, 2001. Interrogatory No. 11 specifically asked whether
Mr. Alphonso "sought treatment . . . with . . . any medical
provider." (Sandler Cert. ¶ 24).
Finally, Defendants argue bad faith on the part of Plaintiff's
counsel in their allowing Mr. Alphonso to testify as to current
distress and then to drop it abruptly at exactly the point where
Defendants were about to confront Plaintiff with his post-Pitney
Bowes stressors. The record reflects that Mr. Yaskin objected
immediately when Ms. Levering began her cross-examination
concerning confrontations and other stress at SCI, his first
post-Pitney Bowes employer. (Def. Ex. C, 12/15/03 Trial Tr. at
336-37). A sidebar ensued, during which this Court permitted
Defendants to inquire into such stressors. (Id. at 336-45). At
that point, Mr. Yaskin announced, "I would like to cut short this
course of action and make a formal withdrawal of the plaintiff's
emotional distress claim after the year 1999." (Id. at 345).
Defendants contend that Plaintiff's counsel willfully waited to
limit the claim until after the jury had heard from Plaintiff
about his continuing emotional distress and then, by dropping the
claim after 1999, silenced Defendant from contesting that
It cannot be fairly said that Mr. Alphonso's emotional distress
claim was initiated in bad faith. Unlike the more objectively
evaluated claim of economic damages (which had ceased to accrue
more than 18 months before the date this case was filed in June,
2001), emotional distress damages, while still subject to a legal
standard, are relatively subjective, requiring counsel to place
significant weight on the plaintiff's own expressed belief that
he suffered substantial emotional distress. However, the abject
lack of evidence, at some point long before trial, should have
given pause to Plaintiff's counsel (Mr. Sandler) and driven him
to reconsider keeping this claim alive for trial. Based on the
non-supportive medical records and deposition testimony before
Plaintiff's counsel prior to trial, Plaintiff's post-1999
emotional distress claim was so shallow as to be non-existent.
Defendants argue that Plaintiff's counsel's behavior resulted
in Pitney Bowes' incurring significant unnecessary fees and
expenses in responding to the claim. Pitney Bowes therefore seeks
sanctions in the amount of $16,853.00, the attorneys' fees and
expert costs that Pitney Bowes incurred after Mr. Sandler
provided Defendants' counsel with their expert's, Dr. Jensen's,
report. (See Levering Aff. at ¶ 10 (counsel fees of $7,289.00);
Woolf Aff. at ¶¶ 15, 17 (counsel and expert fees of $9,563.00).
The time expended and fees incurred with respect to this claim
bifurcate into two main categories: those associated with
Plaintiff's medical expert, Dr. Jensen, and those associated with
Defendant's expert, Dr. Toborowsky.
Based on the reasons set forth above, this Court finds that
Plaintiff's counsel did not have a good faith basis for seeking
post-1999 damages for emotional distress. The presentation of
Plaintiff's emotional distress testimony to the jury before
withdrawing it also evidences bad faith. The Court is hesitant,
however, to impose the full amount of reimbursement sought for
several reasons. First, by their nature, emotional distress
claims by a client can be difficult for counsel to evaluate, and
counsel should not be chilled from advocating for the recovery of
such damages in an NJLAD case claiming wrongful termination due
to retaliation; it is not unreasonable to assume that such
termination would cause distress and that such distress should be
asserted. Second, it would be apparent to anyone observing the
trial, including the undersigned, that Mr. Alphonso is a troubled
individual, prone to cry on the witness stand and to react
inappropriately to the normal stresses of litigation. On the
other hand, Mr. Alphonso's own words confirmed he had no provable
claim for emotional distress continuing after the two-month
unemployment period in 1999, receiving no professional or medical
treatment and no confirmatory testimony from family or friends,
save the one excerpt of his wife's deposition testimony that Mr.
Sandler had to change (as discussed above) to make it read that
she believed his headaches were worse, rather than better, after
he was fired by Pitney-Bowes. On balance, the Court will require
Plaintiff's counsel to make reimbursement for one-half of the
reasonable and necessary fees for defense counsel's services and
the expert's fee; one-half of $16,853.00 yields an award of
D. Plaintiff's Position on Edward Logan's Availability
Finally, Defendants argue that Plaintiff's position on Edward
Logan's availability was taken in bad faith. This Court does not
agree with this aspect of this motion.
Mr. Sandler knew by at least October 24, 2001, when his client
stated as much at his deposition, that Mr. Logan was on permanent
disability from Pitney Bowes and had serious medical issues.
(See Def. Ex. AA, Alphonso Dep. Tr. at 219; Def. Ex. BB,
12/10/03 Trial Tr. at 208). For months, including at the March
11, 2003 Final Pretrial Conference with Magistrate Judge Rosen
and the April 28, 2003 Settlement Conference with Judge Brotman,
Mr. Sandler raised no objection to either the idea of a de
bene esse deposition in general or Mr. Logan's deposition in
particular. Nevertheless, on July 30, 2003, nine days before Mr.
Logan's scheduled trial deposition and months after he was put on
notice of Defendants' need for the deposition, Mr. Sandler first
raised the issue with the Court. Mr. Sandler wrote, "Plaintiff is
simply asking to see the basis for applying Fed.R.Civ.P.
32(a)(3)(C) vis-a-vis Mr. Logan, and it is respectfully submitted
that Defendants be required to furnish the same prior to any
deposition of Mr. Logan." (See Def. Ex. O, 7/30/03 Sandler to
U.S.M.J. Donio Letter at p. 3).
At the phone conference with Magistrate Judge Donio on July 31,
2003, Mr. Sandler agreed that he would be satisfied with a
declaration from one of Mr. Logan's physicians. Defendant
provided such a declaration from one of Mr. Logan's physicians
(Dr. Sando), to which Plaintiff's counsel objected again.
(Sandler Cert. at ¶ 48). Mr. Sandler wrote Defendants' counsel,
stating "we cannot agree to the trial deposition" unless
Defendants provided a litany of additional information. (See
Def. Ex. S, 8/4/03 Sandler to Woolf Letter).
On Magistrate Judge Donio's instruction, the deposition of Mr.
Logan proceeded on August 8, 2003, without resolution of Mr.
Sandler's objection to his meeting the standard of Fed.R. Civ.
P. 32(a)(3)(C). (Sandler Cert. at ¶ 49). Over the course of more
than 68 transcript pages, Mr. Logan gave testimony concerning his
medical condition, answering every question asked concerning his
condition, how it affected him, who was treating him, and how
long he had been treated. Mr. Sandler preserved his objection to
the sufficiency of the proofs proffered by Defendants and
questioned whether Defendants had met the "illness and infirmity"
threshold of Fed.R.Civ.P. 32(a)(3)(C). (Sandler Cert. at ¶
49). Though Defendants offered, Mr. Sandler refused to take them
up on their offer to reopen discovery and allow him to subpoena
Mr. Logan's physicians for deposition and/or Mr. Logan's medical
records. Mr. Sandler, nevertheless, continued to argue that Mr.
Logan was not unavailable.
Mr. Sandler never identified any prejudice that his client
would suffer as a result of Defendants' taking Mr. Logan's
testimony on videotape. Plaintiff insisted, time and time again,
that it was Defendants' burden to show unavailability.
Defendants' counsel contend that although they met their burden,
Plaintiff's counsel refused to admit it. In his August 29, 2003
submission to Judge Donio, for example, Mr. Sandler asserted that
Mr. Logan was not competent to testify about his own condition,
an argument without support in the law. (See Def. Ex. T,
8/29/03 Sandler to U.S.M.J. Donio Letter at p. 4). When
Defendants provided Mr. Sandler with controlling case law from
the Third Circuit to the contrary, he simply ignored it. See
e.g., Crossley v. Lieberman, 868 F.2d 566, 568 (3d Cir. 1989)
(Third Circuit rejects claim that there was insufficient evidence
to establish Rule 32 unavailability because "[t]he district court
found evidence of [the witness's] disability in her answers to
defendant's questions on pages 15-17 of her deposition");
Walling v. Holman, 858 F.2d 79, 82 (2d Cir. 1988) (district
court properly based determination that witness was unavailable
on witness's deposition testimony).
Defendants argue that Plaintiff's counsel's conduct is
sanctionable. See Alexander v. Primerica Holdings, Inc.,
819 F. Supp. 1296, 1311 (D.N.J. 1993) (ordering sanctions under
28 U.S.C. § 1927 because "[n]ot only was the law on this issue clear
and consistent, but Plaintiffs have not made a good faith
argument either that the law has or should be changed"); In re
TCI Ltd., 769 F.2d 441, 445 (7th Cir. 1985) ("a lawyer engages
in bad faith by acting recklessly or with indifference to the
law, as well as by acting in the teeth of what he knows to be the
law"); see also Kapok Mfg. Co. v. C&O Enterprises Inc.,
886 F.Supp. 1485, 1496 (7th Cir. 1989) (awarding sanctions in part because
attorney "demonstrated an attitude of `file, first, research
Defendants' counsel spent more than 26 hours researching,
briefing, speaking to Mr. Sandler and the Logans about, and
arguing orally to the Court, the issue of Mr. Logan's
unavailability. These efforts cost Pitney Bowes $7,274.00 in
attorneys' fees. (See Woolf Aff. at ¶ 8). Pitney Bowes, thus,
seeks sanctions in this amount.
Though frustrating undoubtedly to Pitney Bowes, this Court
cannot say that Plaintiff's counsel's position on Edward Logan's
availability was taken in wilful bad faith. At the time Mr.
Sandler first raised his Fed.R.Civ.P. 32(a)(3)(C) objection,
he had not yet seen the witness, heard what would become his de
bene esse deposition testimony or received any substantive
medical letter or certification. (See Sandler Cert. at ¶ 50).
Given Mr. Logan's status as the brother-in-law of Defendant
Norman Sommer, Mr. Sandler insisted upon full compliance with
Fed.R.Civ.P. 32(a)(3)(C). The record does not suggest that Mr.
Sandler's behavior rises to the level of conduct that "multiplies
the proceedings in any case unreasonably and vexatiously" as is
required under 28 U.S.C. § 1927. The medical condition of Mr.
Logan was a matter of reasonable factual dispute, and it was not
clear-cut that a trip to the courtroom to testify was impossible.
Also, by the time that this case was transferred to the
undersigned's docket for trial, the prior information about Mr.
Logan's health status had become somewhat stale (albeit with no
indication Logan's health had improved in the meantime). Overall,
the costs that Defendants incurred in providing additional
certifications from Dr. Sando resulted from a determination of
the Court and an adjournment of trial date, more so than any act
motivated by bad faith on the part of Mr. Sandler. Thus, this
Court refrains from exercising its discretion to award any amount
of sanctions on this issue.
E. Reasonableness of Amounts Sought and Allocation of
Sanctions Between Plaintiff's Attorneys
In the opinion of this Court, the fees and costs that serve as
the basis for the sanctions Defendants' counsel seek here for
time spent addressing the economic damage and emotional distress
claims at issue are neither exaggerated nor unnecessary. Although
Plaintiff's counsel challenges the hours as unreasonable, they do
not cite one time entry specifically as being inflated.
Nonetheless, this Court has an independent duty to satisfy
itself that the defense fees requested are reasonable i.e.,
that they are the product of reasonable hourly rates for services
that were not redundant or over-reactive to the vexatious
strategies of plaintiff's counsel. This analysis of defense
efforts, of course, must also appreciate the fact that defense
counsel were called upon to respond to vexatious litigation
tactics that multiplied the proceedings.
The hourly rates for Mr. Woolf were $245.00 in 2002 (7 years
after law school graduation) and $275.00 in early 2003, rising to
$295.00 after September 1, 2003, and he became a partner in the
firm in 2004. (Woolf Aff. ¶¶ 2, 11, 15). The hourly rates for Ms.
Levering, who is Chairperson of the firm's 240-lawyer Litigation
Department, were $335.00 in 2002 and $400.00 in 2003; Ms.
Levering has practiced exclusively in the area of labor and
employment law and has tried numerous employment discrimination
and retaliation cases in federal and state courts over her 27
years of practice. (Levering Aff. ¶¶ 2, 10). These hourly rates
are reasonable for attorneys of Ms. Levering's and Mr. Woolf's
respective levels of experience and skill, which were amply
demonstrated at trial. The Court has detected no duplication of
efforts, and indeed finds counsel have used caution in excluding
time spent in consultation with one another (Woolf Aff. at ¶¶ 12,
16) as well as time spent in attending the portions of trial in
which these claims were addressed and in preparing this motion
for sanctions. All claimed hours were reasonable and necessary.
The fees of Dr. Staller and Dr. Toborowsky also appear to have
been reasonable for their retention and services as expert
Furthermore, Plaintiff's counsel respond to Defendants' motion,
arguing that Pitney Bowes has committed "major error" in failing
to separately analyze the facts pertaining to each attorney's
initiation and/or maintenance of the challenged claims. (See
Pl. Brief in Opposition, pp. 17-18). Though Defendants state in
their reply that "Plaintiff's counsel, not Pitney Bowes, know
better who may be at more fault for the bad faith conduct with
respect to each of the three matters at issue," (see Def. Reply
Brief, p. 12 n. 7), Defendants set forth in their opening brief
that the motion was directed "principally to Kenneth Sandler, as
Plaintiff's primary counsel." (Def. Br. p. 1, n. 2). Moreover,
Mr. Yaskin did not offer his assistance, which was ultimately
accepted by Mr. Sandler, in trying Mr. Alphonso's case until the
week of December 1, 2003. (Yaskin Cert. at ¶¶ 7, 11). It thus
seems apparent to this Court that most, if not all, of the
responsibility for the sanctions awarded above are to be born by
Mr. Sandler. Indeed, it was Mr. Yaskin who entered the case on
the eve of trial, detected the impossibility of Plaintiff's
post-1999 economic and emotional damages, and abandoned them at
trial, thus mitigating the already considerable harm.
Accordingly, this sanction will be imposed on Mr. Sandler only,
and not on Mr. Yaskin.
F. Ability to Pay Sanction
Mr. Sandler's opposition papers deny any responsibility for
these sanctions, but he has not made any assertion of the
inability to pay an award, if entered. Mr. Sandler has had ample
notice of the scope of the § 1927 sanctions sought and he has had
an opportunity to make an appropriate showing regarding his
ability to pay, cf. Jones v. Pittsburgh National Corp.,
supra, 899 F.2d at 1359 (requiring court on remand to consider
issue of appellant's ability to pay). Similarly, in the context
of determining the amount of Rule 11 sanctions, a district
court's failure to consider ability to pay can be error, see
Doering v. Union County Bd. of Chosen Freeholders,
857 F.2d 191, 196 (3d Cir. 1988). Since Mr. Sandler had not claimed
inability to pay the sanction, this court is uninformed as to his
Nonetheless, in an abundance of caution, the Court will give
Mr. Sandler an additional opportunity to demonstrate financial
inability to pay all, or some part of, this award, provided that
Mr. Sandler submits a sufficiently detailed financial affidavit
and accompanying letter-brief within ten (10) days hereof.
Defendants' response shall be due within ten (10) days
thereafter. If timely submitted and served, such application
shall automatically stay the time to comply with the accompanying
Order until the Court also receives Defendants' response and
determines that matter with finality. If Mr. Sandler does not
timely submit such documentation, his opportunity to claim
financial inability is deemed waived.
For the reasons discussed above, Defendants' motion for
sanctions, attorneys' fees and costs, pursuant to
28 U.S.C. § 1927, will be granted in part and denied in part. Defendants'
motion will be granted with respect to certain efforts to defend
Mr. Alphonso's economic damage claim and emotional distress
claim, and denied with respect to Plaintiff's counsels' position
on the availability of Mr. Edward Logan and the taking of a de
bene esse deposition.
This Court awards Defendants sanctions in the total amount of
$24,565.00, representing $16,138.50 for the economic damage claim
and $8,426.50 for one-half of the fees incurred defending the
emotional distress claim. This sum shall be paid by Kenneth A.
Sandler, Esquire, within thirty (30) days hereof; no sanction is
imposed upon Mr. Yaskin. The accompanying Order is entered.
This matter having come before the Court upon the application
of Defendants for sanctions, attorneys' fees and costs under
28 U.S.C. § 1927; and the Court having reviewed the submissions of
the parties; and for the reasons stated in the Opinion of today's
date; and for good cause shown;
IT IS this 21st day of July, 2004 hereby
ORDERED that Defendants' motion for sanctions, attorneys' fees
and costs [Docket Item No. 64-1] be, and hereby is, GRANTED IN
PART AND DENIED IN PART; and
IT IS FURTHER ORDERED that Defendants' motion for sanctions,
attorneys' fees and costs with respect to Plaintiff's claims for
economic damages and emotional distress damages be, and hereby
is, GRANTED as against Kenneth A. Sandler, Esquire; and
IT IS FURTHER ORDERED that Defendants' motion for sanctions,
attorneys' fees and costs with respect to Plaintiff's position on
the availability of Edward Logan and his de bene esse
deposition be, and hereby is, DENIED; and
IT IS FURTHER ORDERED that Plaintiff's counsel, Kenneth A.
Sandler, Esquire, shall pay to Defendants' counsel $24,565.00
for such sanctions, attorneys' fees and costs within thirty (30)
days of the date of this Order; and
IT IS FURTHER ORDERED that any application by Mr. Sandler
claiming inability to pay all or part of this sanction amount
shall be filed and served within ten (10) days hereof, under seal
if requested, or the issue of his financial inability, if any, is
deemed waived; if such application is timely filed, this Order
shall be temporarily stayed pending consideration of Defendants'
response and the Court's determination of the issue.