Legault v. Zambarano

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1566

MICHELLE LEGAULT,

Plaintiff - Appellee,

v.

ALAN ZAMBARANO, AND TOWN OF JOHNSTON,

Defendants - Appellees.

RALPH R. ARUSSO,

Defendant - Appellant.

No. 96-1567

MICHELLE LEGAULT,

Plaintiff - Appellee,

v.

RALPH R. ARUSSO, ALAN ZABARANO, AND TOWN OF JOHNSTON,

Defendants - Appellees.

THOMAS A. DILUGLIO,

Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Cyr and Boudin, Circuit Judges,

and Ponsor,* District Judge.

Jeffrey S. Michaelson, with whom Julius C. Michaelson and

Michaelson & Michaelson were on brief for appellants Ralph R.

aRusso and Thomas A. DiLuglio.
G. Robert Blakey, with whom Ina P. Schiff was on brief for

appellee Michelle Legault.

January 28, 1997

* Of the District of Massachusetts, sitting by designation.

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PONSOR, District Judge. This appeal challenges the
PONSOR, District Judge.

propriety of the district court's imposition of monetary

sanctions upon the defendant-appellant Ralph aRusso and his

attorney Thomas DiLuglio for violations of Fed. R. Civ. P. 11, 16

and 26, committed during pretrial proceedings in this employment

discrimination case. Finding no error, we affirm.

I. BACKGROUND
I. BACKGROUND

In May of 1993 plaintiff-appellee Michelle Legault

brought suit against the town of Johnston, Rhode Island, its

mayor at the time, Ralph aRusso, and its fire chief, Alan

Zambarano, contending that the defendants discriminated against

her based on her gender when she applied for a position as a

firefighter. On February 10, 1994 the district court found that

Legault was likely to prevail and that inaction would cause her

irreparable harm. Based on this, the court issued a preliminary

injunction requiring the defendants to hire her. Legault v.

aRusso, 842 F. Supp. 1479 (D.N.H. 1994). On April 5, 1995 the

case settled when the district judge signed a consent order

awarding Legault judgment against the town for violations of

Title VII, 42 U.S.C. 1983 and two Rhode Island statutes.

Subsequently, the town paid Legault's reasonable costs and

attorney's fees.

In April 1994, following the preliminary injunction but

before the consent order, Legault filed a motion for sanctions

against aRusso, Zambarano and their attorney Thomas DiLuglio.

The district court heard evidence on the motion over two days and

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on December 30, 1994 allowed the motion, in part, ordering that

the three each be held responsible for one-third of the fees

necessitated by their misconduct during discovery.

On March 29, 1996, following the settlement, the

district judge denied a motion to reconsider his sanctions ruling

and set the monetary penalty in the amount of $16,450. He

ordered that each of the three parties be responsible for one-

third of this sum. The court gave the town of Johnston the right

to recover from the three any part of the fee already paid to

Legault but caused by their wrongdoing.

DiLuglio and aRusso now claim that both the finding of

misconduct and the award of the fees constituted error as a

matter of law and an abuse of discretion. Neither Zambarano nor

the town of Johnston has appealed either the sanctions decision

or the judgment of discrimination.

II. DISCUSSION
II. DISCUSSION

A challenge to a trial judge's exercise of discretion

in these circumstances carries an especially heavy burden. Over

twenty years ago the Supreme Court sharply underlined the

importance of supporting a trial court's decisions concerning

sanctions, even where the judge imposed the most stringent

sanction, outright dismissal, for misconduct in the pretrial

phase of a case. National Hockey League v. Metropolitan Hockey

Club, Inc., 427 U.S. 639, 642-43 (1976). This circuit's

decisions have been entirely consistent with the Supreme Court's

directive. See, e.g., Spiller v. U.S.V. Laboratories, Inc., 842

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F.2d 535, 537 (1st Cir. 1988); Damiani v. Rhode Island Hosp., 704

F.2d 12, 17 (1st Cir. 1983). In this legal medium the

appellants' thin claims of abuse dissolve almost upon scrutiny.

As a threshold matter, appellants contend that appellee

lacks "standing to participate" in this appeal. This argument is

offered on the ground that the district court ordered that the

$16,450 sanction be paid as a reimbursement to the town of

Johnston, and not to Legault, to the extent that the town's prior

payment of fees to Legault covered work necessitated by

appellants' misconduct. The town of Johnston, they appear to

claim, and not Legault, is the proper party to oppose this

appeal, and it has chosen not to do so.

This is a meaningless quibble. The issue on this

appeal is not the identity of the proper appellee, but whether

the district court abused its discretion in awarding sanctions

against the appellants. Legault, in fact, has an interest in

this appeal because the appellants seek, among other things, a

ruling from this court that the district judge erred in declining

to impose sanctions on Legault herself.

Moreover, even if she lacked a personal stake in the

outcome, this court would hear Legault as an amicus curiae. This

is certainly not a case, if any such cases there be, where (as

appellants' argument implies) a trial court's valid order should

be vacated without consideration of its merits simply because the

party opposing the appeal lacks technical eligibility to offer a

contest.

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Moving beyond this preliminary argument, then, we must

address the four instances of misconduct that the district judge,

after considering several possible grounds, found justified an

award of sanctions.

A. Violation of Fed. R. Civ. P. 26(g) Re: Hiring
A. Violation of Fed. R. Civ. P. 26(g) Re: Hiring

Process.
Process.

A detour into the merits of the underlying

discrimination case is necessary in order to understand the basis

for the trial court's action.

Although allegations of intentional discrimination --

i.e., discriminatory treatment -- were included in Legault's

complaint as originally filed, the early stages of the litigation

focused on plaintiff's alternative claim of discriminatory

impact. She contended that the three-part testing process for

new firefighters in Johnston had the effect, not justified by any

fair rationale, of excluding women from hiring. During

discovery, and in opposition to the motion for preliminary

injunction, defendants contended that the testing process, which

included rigorous physical trials, was fair and reasonable and,

further, that they actually followed it as an objective basis for

determining who would get on the fire department. Both sides

pursued this issue with energy at the preliminary injunction

hearing, generating testimony of an expert and thirteen pages in

the federal supplement devoted almost solely to disparate impact

analysis. Legault v. aRusso, 842 F. Supp. 1479 (D.N.H. 1994).

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This whole exercise, as the district court later found

and as the defendants now do not contest, was a complete waste of

time. Performance on these supposedly objective tests bore little

or no relation to an applicant's chances of getting a job on the

Johnston fire department. Hiring decisions were, in fact, based

on undisclosed, subjective criteria within the discretion of the

defendants. The town's impressive edifice of purportedly

objective, multi-stage testing was ultimately acknowledged to be

a mirage -- in the words of the district judge, "a sham."

Nevertheless, in answers to interrogatories served

before the ruse was exposed, aRusso, assisted by DiLuglio as his

attorney, stated that performance on the tests determined hiring

rank. Judge Barbadoro found that these false responses

constituted a flat violation of Fed R. Civ. P. 26(g)(2). It

cannot remotely be said that he abused his discretion in reaching

this conclusion.

Rule 26(g)(2) requires that every discovery response

bear the signature of the attorney, certifying "to the best of

the signer's knowledge, information and belief, formed after a

reasonable inquiry" that the response is "(A) consistent with

these rules . . . ; (B) not interposed for any improper purpose,

such as to harass or cause unnecessary delay . . . ; and (C) not

unreasonable . . . ."1

1 Judge Barbadoro applied the civil rules as they existed prior
to the 1993 amendments since the misconduct occurred before their
effective date, out of concern that application of the rules in
their later form might be unfair to the defendants. For ease of
reference, because we perceive no unfairness, and because the

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Defendants' responses, the court could well have found,

failed all three of these tests. Either as a result of

deliberate intent, or gross negligence in failing to inquire into

the real facts, the discovery responses were inconsistent with

the rules, were interposed to harass and cause delay and were

unreasonable.

Our conclusion that the trial judge did not abuse his

discretion on these facts is not intended to suggest that a

litigant and his attorney expose themselves to discovery

sanctions every time their position ultimately fails to convince

a court, or even where it enjoys only very weak support. The

trial court found something here of an entirely different order.

The initial position of the town and its officials was, in

essence, a hoax perpetuated through their discovery responses and

eventually conceded. This misconduct caused substantial delay

and expense. Behavior of this sort may rightly be found to call

for action by the trial judge.

Fed. R. Civ. P. 26(g)(3) states as follows.

If without substantial justification a
certification is made in violation of the
rule, the court, upon motion or upon its own
initiative, shall impose upon the person who
made the certification, the party on whose
behalf the disclosure, request, response, or
objection is made, or both, an appropriate
sanction, which may include an order to pay
the amount of the reasonable expenses
incurred because of the violation, including
a reasonable attorney's fee.

outcome of this appeal would not change, we have applied the
rules in their current form.

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In this case the trial judge apportioned responsibility

for the sanction equally between the lawyer and the parties, and

limited the penalty to the fees reasonably expended by Legault in

pursuing her motion for sanctions. Moreover, the plaintiff's

requested sanction was carefully trimmed to eliminate what the

court found to be excessive time. A more moderate and

painstaking approach to the issue is hard to imagine. At the

risk of repetition, no abuse of discretion occurred.

B. Violation of Fed. R. Civ. P. 11 Re: Selection
B. Violation of Fed. R. Civ. P. 11 Re: Selection

Process.
Process.

On August 13, 1993, three days before the initial

hearing on Legault's motion for preliminary injunction before the

Magistrate Judge, Attorney DiLuglio sent a letter to opposing

counsel, which he copied to the court. This letter stated,

falsely, that "[s]tandings in the obstacle course and the written

exam determine overall standings in the application process."

Fed. R. Civ. P. 11, which parallels Rule 26(g) in all

pertinent respects for purposes of this decision, applies to

"[e]very pleading, written motion and other paper" presented to

the court. Without contesting the falsity of the representation

made in the August 13, 1993 letter, DiLuglio argues that it was

an abuse of discretion for the trial judge to view the letter as

an "other paper" for purposes of Rule 11.

Courts have been properly reluctant to characterize a

letter generally as an "other paper" in weighing Rule 11

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sanctions. See, Curley v. Brignoli, Curley & Roberts, Assoc.,

128 F.R.D. 613, 616 (S.D.N.Y. 1989). In this case, however,

DiLuglio deliberately copied his letter to the presiding

Magistrate Judge three days before the preliminary injunction

hearing with the purpose "to advise the court and all parties" of

its contents. He repeated the substance of the letter in his

memorandum opposing the motion for preliminary injunction.

Moreover, the letter's message -- that Legault would have a fair

chance at getting a job on the fire department if she did well on

the tests -- actually influenced Magistrate Judge Barry in making

his recommendation (later rejected by the district court) that

Legault receive only partial injunctive relief.

To hold under these circumstances that this particular

letter sails beyond the reach of Rule 11 would be to exalt form

over substance and reward the rankest game-playing. DiLuglio

sent this letter, the trial judge found, with the intent to

influence the court, at a time and in a manner calculated to

insure its impact. As it happened, it did influence the court

substantially. Given this, the imposition of sanctions based in

part upon the letter's false contents was no abuse of discretion.

C. Violation of Fed. R. Civ. P. 26(g) Re:
C. Violation of Fed. R. Civ. P. 26(g) Re:

Identification of Documents.
Identification of Documents.

The trial judge found that the defendants had

improperly failed to produce four categories of documents in

response to plaintiff's legitimate discovery requests: a report

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by an independent testing service listing each applicant's score

on the written examination; a list of code numbers assigned to

each applicant who took the written exam; a list showing the

actual hiring rank of each applicant who took the training

course, and pleadings in other civil rights cases against the

town of Johnston.

The first three categories of documents, in particular,

would have gone far to uncover the speciousness of the

defendants' claim that applicants to the fire department received

their jobs based on objective criteria. The court found that

each of the four categories of documents was in the defendants'

possession and that a reasonable search would have located them.

The Advisory Committee's Notes to the 1983 amendments to Rule 26

spell out the obvious: a certifying lawyer must make "a

reasonable effort to assure that the client has provided all the

information and documents available to him that are responsive to

the discovery demand." Here, the trial court's finding that no

such effort was made is well supported. Imposition of sanctions

under Rule 26(g)(3) constituted no abuse of discretion.

D. Violation of Rule 16.
D. Violation of Rule 16.

On December 16, 1993 the district court issued an order

requiring the filing of all pretrial material on or before

April 15, 1994. Defendants, it is conceded, did not comply.

Their pretrial submission arrived over three weeks late, on or

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about May 9, 1994. The trial judge based his sanction decision,

in part, upon this tardiness.

Rule 16(f) gives a trial judge faced with disregard of

a pretrial order the power, upon motion or sua sponte, to "make

such orders with regard thereto as are just, and among others any

of the orders provided in Rule 37(b)(2)(B), (C), (D)." In lieu

of or in addition to this sanction, the court may order the

offending party to "pay the reasonable expenses incurred because

of noncompliance with this rule."

Appellants argue that, because the cited provisions of

Rule 37 describe non-monetary sanctions, and because the district

court made no explicit finding that the defendants' non-

compliance with the court's pretrial order caused Legault any

expense, imposition of a monetary penalty based (even in part)

upon their acknowledged neglect of the court's order regarding

filing of pretrial papers constituted an abuse of discretion.

We cannot agree. The extent to which a party's failure

to file pretrial papers in a timely manner puts an opponent into

an unfair position, by causing unnecessary preparation, confusion

or distraction, and the translation of this unfairness into a sum

of money, are tasks that must be left except in the most

extraordinary circumstances to the good sense of the judge on the

scene.

Beyond this the trial judge has an independent

responsibility to enforce the directives he has laid down for the

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case. This court has made this point before in the clearest

terms.

Rules are rules -- and the parties must
play by them. In the final analysis, the
judicial process depends heavily on the
judge's credibility. To ensure such
credibility, a district judge must often be
firm in managing crowded dockets and
demanding adherence to announced deadlines.
If he or she sets a reasonable due date,
parties should not be allowed casually to
flout it or painlessly to escape the
foreseeable consequences of noncompliance.

M ndez v. Banco Popular de Puerto Rico, 900 F.2d 4, 7 (1st Cir.

1990).

Here the judge's prudent assessment of the situation

fairly jumps out of the record. We cannot say that including

defendants' conceded disregard of his pretrial order into the mix

of factors that brought him to the figure of $16,450 constituted

an abuse of discretion.

Finally, given the ample justification for the award of

sanctions against appellants, the district court certainly did

not abuse its discretion in declining to impose sanctions upon

Legault herself. While her sanction motion may have been

overbroad, the core of her grievance was found to be well

supported.

III. CONCLUSION
III. CONCLUSION

In summary, this was a textbook job by the district

court in considering and imposing sanctions. The offending

parties were given clear notice of the claimed misconduct and

ample opportunity to be heard. The judge sorted the unsupported

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or trivial violations from the substantial wrongdoing. He then

imposed a sanction crafted to penalize only improprieties that

were sufficiently egregious to warrant a penalty and clearly

supported by the record. Both the amount and the targets of the

sanctions were exactly specified. There was no error.2

Affirmed.

2 Plaintiff-appellee, though prevailing, should not view this
opinion as a testament to the cogency of her written advocacy.
Her brief, relying substantially on overcharged rhetoric and
irrelevancy, is almost useless. It has been rescued by a
combination of the essential weakness of appellants' position,
the performance of the court below and a dexterous oral argument
presented by substitute counsel.

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