Update #6 (September 7, 2011): Thwack! The ultimate sanction applied….
Update #5 (August 18, 2011): Plaintiff’s counsel takes up Mag. Judge Franklin L. Noel’s sanctions with U.S. District Court Judge Richard H. Kyle, Sr. (D. Minn.). From the plaintiff’s perspective the burden of making a strong claim of calculated intentional misconduct (in this case, racial discrimination) without taking discovery seems huge, onerous, and unfair. She has a point (though lawyers will argue its strength). On the other hand, most will agree that plaintiffs can’t just make stuff up or file complaints “on intuition and belief” and rely on the discovery process in civil litigation to investigate for the true substance of their complaints…
Note that plaintiff’s counsel correctly points out that 1993 Rule 11 Advisory Committee Commentary on Rule 11(b) suggests one is not required to withdraw a sanctionable court filing; it is sufficient to abandon of advocacy of claims that have no factual support. Does that change when one is confronted with an adversary’s Rule 11(c) Safe Harbor letter? (Rough translation of the Safe Harbor Provision: “Take that back or I will tell on you in 21 days.”)
Also, defense counsel unearthed the apparent plagiarism of plaintiff’s complaint and did not clue in plaintiff’s counsel for over three months. Does that matter?
Finally, plaintiff changed lawyers and now the substitute lawyer wants the sanctions, if upheld, to fall on the head of the original counsel. We’ll see how that plays out.
Update #4 (August 3, 2011): The other shoe drops.
Update # 3 (August 1, 2011): If you are plaintiff’s counsel, it cannot be feeling very happy after a hearing on a motion for sanctions when the Court apparently requested information about the movant’s attorneys’ fees in connection with plaintiff’s class allegations… (See here, here, here, here.)
If, on the other hand, you are the defense lawyers who have already zapped other plaintiffs’ counsel for playing fast and loose (see original post, below), it might be too early to put the bubbly in the fridge but they might start thinking about it?
Update #2 (July 13, 2011): Ameriprise files its reply brief in support of its motion for sanctions.
Update#1 (June 30, 2011): Plaintiff’s defense on the motion for sanctions described below in a nutshell: (1) she does not have the resources to combat a big corporation; (2) the big corporation really did discriminate even if the original complaint was a fundamentally flawed pleading; (3) defendants have, according to plaintiff, stone-walled discovery preventing plaintiff from building her case. (Brief in Opposition to Sanctions is here; Declaration in Opposition to Motion for Sanctions is here.)
Minnesota Litigator will refrain from pre-judging the issue before the Court except to say the obvious: the scenario highlights a tension within our justice system where economic disparity between and among litigants (and thus their resources for bringing and defending claims, of course) poses a thorny problem as to courts’ basic standards for the completeness and accuracy of court pleadings.
Original post (June 16, 2011): Defense counsel for Ameriprise in a putative employment discrimination class action appear to have discovered that the proposed class action complaint brought against Ameriprise was in the nature of a “cookie-cutter complaint” — that is, a form document more or less– recycled from a 10 year-old employment discrimination lawsuit brought against Coca Cola — not just the formatting or legal theories, Ameriprise says, but also the factual allegations.
If the allegations are borne out, the case for sanctions seems strong. These are the some of the same defense lawyers who obtained resounding sanctions again another plaintiffs’ employment discrimination firm back in 2004.
Ameriprise counsel’s motion for sanctions is pending. In the mean time, they asked the Court (I paraphrase), “Do we really have to incur the huge expense of mounting a summary judgment attack?” Sr. U.S. District Court Judge Richard H. Kyle (D. Minn.) answered, “Yes, you do.”