FUSCO v. DAVID MEDEIROS

965 F. Supp. 230 (1996) | Cited 0 times | D. Rhode Island | August 6, 1996

Adopting Magistrate's Document of March 11, 1996, Reported at: 1996 U.S. Dist. LEXIS 21059.

Adopting Magistrate's Document of March 11, 1996, Reported at: 1996 U.S. Dist. LEXIS 21059.

1. Some courts have read "insofar as just and practicable" as an exhortation to apply the amended rules "to the maximum extent possible[.]" Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 546 (5th Cir. 1992) (applying a 1991 amendment to Fed. R. Civ. P. 15(c)); see also, Burt v. Ware, 14 F.3d 256, 258-259 (5th Cir. 1994) (applying Skoczylas to the 1993 amendments to the Federal Rules of Appellate Procedure). However, in Silva, the First Circuit read the promulgation order as containing a prohibition rather than a call to arms, 19 F.3d at 728; hence, the Court feels free to treat the issue as a simple matter of justice and practicality.

2. The City of Warwick defendants were not dismissed because they had not sought the discovery involved in Schiff's stonewalling tactics.

3. In Cruz v. Savage, 896 F.2d 626 (1st Cir. 1990), the First Circuit wrote that under the old Rule 11 "attorneys [were] also under a continuing obligation to ensure that the proceedings do not continue without a reasonable basis in law and fact." Id. at 630. However, that commandment was cast into considerable doubt by O'Ferral v. Trebol Motors Corp., 45 F.3d 561, 563 & n.1 (1st Cir. 1995), where the First Circuit noted that Fifth Circuit precedents relied on in Cruz had been overruled. The O'Ferral court, however, refused to revisit the issue, and did not explicitly disown Cruz's "continuing obligation" language. O'Ferral, 45 F.3d at 563. Out of an abundance of caution, this Court will. Schiff's Rule 11 violation occurred when she filed the complaint; her subsequent conduct left her afoul of 42 U.S.C. § 1927, but not Rule 11. However, the Court considers the discovery sanctions awarded in this matter to be highly relevant to the determination of the nature and purposes of the Rule 11 sanctions hereby to be imposed. See, e.g., Kramer v. Tribe, 156 F.R.D. 96, 104-108 (D.N.J. 1994), aff'd 52 F.3d 315 (3rd Cir. 1995) (listing 36 separate instances in which respondent Kramer was punished, sanctioned, or admonished by other courts).

4. Schiff's invention of the 200 victims of sexual discrimination underlay the class action element of the case.

5. The advisory committee notes to the 1993 amendments state: "Whether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended to injure; what effect it had on the litigation process in time or expense; whether the responsible person is trained in the law; what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; what amount is needed to deter similar activity by other litigants: all of these may in a particular case be proper considerations."

6. The case went to trial against the City of Warwick defendants and after Fusco testified on the first day, she and her new counsel gave up the chase and voluntarily dismissed that last phase of the case.

7. The movants requested that the Court add to that award for this objection to the Report and Recommendation phase of the case but offered no evidence of the time expended hereon. Therefore, the Court leaves the magistrate judge's figure intact.

8. Recently, the Rhode Island Supreme Court finally acted on Judge Ernest C. Torres' disciplinary complaint against Schiff arising out of her false representations under oath in an attempt to secure exorbitant attorneys' fees in Pontarelli v. Stone, 781 F. Supp. 114 (D.R.I. 1992) appeal dismissed as moot, 978 F.2d 773 (1st Cir. 1992) and suspended her from practice for 18 months commencing July 7, 1996. In the Matter of Ina P. Schiff, 677 A.2d 422 (R.I. 1996). That triggers an automatic suspension in this Court. Local Rule 4(e)(4) (1984).

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