Roberts v. Zemen
Roberts v. Zemen
Opinion of the Court
ORDER
Before the Court is “Defendant’s Amended Petition For Sanctions Pursuant To Federal Rule 11.” The motion is granted.
The underlying action is one for alienation of affections, the elements of which are (1) love and affection of the spouse for the plaintiff; (2) actual damages; and (3) overt acts, conduct or enticement on the part of the defendant causing those affections to depart.
In “Plaintiffs Response To Defendant’s Amended Petition For Sanctions,” plaintiffs counsel acknowledges that in a Rule 11 sanctions controversy “the conduct of the signer must be judged by inquiring as to what was reasonable to believe at the time
On August 6, 1998, at the parties’ first court appearance, the District Judge himself focused upon the jurisdictional amount issue, stating that “if the potential damages ... d[id] not come up to $75,000, then [he] d[id] not have jurisdiction.”
Perforce, serious inquiry should have been made after plaintiffs receipt of the defendant’s November 6,1998 letter:
Dear [Plaintiffs Counsel]:
Please be advised that Ms. Deborah Ze-men retained our office to defend her against the Complaint for Alienation of Affections that your client filed in Federal Court. In June of 1998, Ms. Zemen paid our office a retainer of $4,000.00. At this time, there is virtually no amount remaining in the retainer. As Judge Marovich emphasized yesterday, litigation is extremely expensive in Federal Court and our client will likely incur a substantial amount of additional attorney’s fees if the Federal case lingers on.
At this juncture, we are certain that your client cannot possibly maintain her burden of proving actual damages in excess of $75,000.00. Consequently, we áre certain that the Federal Court has no jurisdiction over the case.
Pursuant to Federal Rule 11, you had the burden to properly investigate whether your client could satisfy the required amount in controversy to establish diversity jurisdiction. This investigation should have occurred prior to the complaint being filed. Had you properly investigated the amount of actual damages, we are confident that you would not have filed your client’s action in Federal Court.
This letter is being sent as a professional courtesy to encourage you to voluntarily dismiss your client’s Complaint for Alienation of Affections case, under number 98 C 2329 by November 15, 1998. In the event that you do not dismiss the case, we will file a Motion for Summary Judgment.
Very truly yours,
[Defense Counsel]8
If an earnest search for jurisdictional supporting documentation had not been made prior to the above-quoted letter, it should have been made shortly thereafter. Particularly, since the thrust of the defendant’s discovery demands were directed towards determining whether or not the plaintiff could establish the jurisdictional amount. Virtually at every court appearance the jurisdictional issue was raised.
Not only was the issue present from the very beginning of the lawsuit, but on numerous occasions the assigned Magistrate Judge told plaintiffs counsel how to respond to the discovery sought on the issue so that the issue could be unequivocally dealt with.
Reasonable inquiry into whether or not the requisite jurisdictional amount could be established should have and would have begun with an earnest effort to determine when the plaintiffs damages began. And, this fact should have and would have been learned via a properly conducted interview with the client. A properly conducted interview would also have revealed how much money per month the plaintiffs husband generally contributed to the needs of the family and the household.
According to the defendant — and we agree — a properly conducted interview with the plaintiff would have disclosed that prior to July 11, 1996, the plaintiff incurred no actual damages of any kind whatsoever, and would further have disclosed the husband’s customary monthly monetary contribution to the needs of the family and to the plaintiffs comfort and style of living prior to that date.
Such an interview would have further revealed that in November of 1997, due to the husband’s drastic reduction in monetary support of the family, the plaintiff sought and obtained judicial intervention. In the same month, the Circuit Court of Cook County ordered the husband to pay $2000 per month to the plaintiff as temporary unallocated maintenance and family support.
In any event, as defendant correctly argues, had plaintiffs counsel made reasonable inquiry into the factual basis for the jurisdictional allegations, he would have learned of the following, to-wit:
(1) the status quo of the funds available to the plaintiff and her children prior to July 11,1996,
(2) the amount of the funds customarily paid by the husband to maintain and support the plaintiff and her four children,
(3) the date when the husband ceased making maintenance and support payments,
(4) the date when the husband became judicially obligated to pay temporary unallocated family support payments of $2000 per month.15
Plaintiffs counsel failed to obtain the minimum information necessary to determine whether or not the controversy at issue exceeded $75,000. Without the minimum information necessary to calculate the amount in controversy, he should not have filed the complaint herein. Plaintiffs counsel failed to properly investigate his case. The very na
Plaintiff’s counsel’s proffered defense is wholly without merit. In “Plaintiffs Responses To Defendant’s Amended Petition For Sanctions”, counsel states that the reason that he voluntarily dismissed the case was due to the defendant’s deposition testimony,
that she had thrown [the husband] out of her home for approximately a year---At that point, counsel believed that it was irresponsible to continue litigating the case because at that point in time, it would have been difficult to prove a proximate cause between the actions of the defendant and the lack of funds to the family for that period.17
The above argument is vague in that plaintiffs counsel never explains how the facts learned in the defendant’s deposition have anything to do with whether or not he had the requisite jurisdictional amount in damages when he pleaded and filed his case. Diversity jurisdiction is not lost simply because a party is subsequently “adjudged to be entitled to recover less than the sum or value of $75,000, [which is] computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled.”
We find plaintiffs counsel’s purported ground for the voluntary dismissal of the
“Plaintiff’s Response To Defendant’s Amended Petition For Sanctions” further acknowledges that “[o]ne way of calculating the measure of harm that a sanctionable pleading or suit has caused the opponent is by the amount paid in attorney’s fees”.
Our review of the defendant’s amended fee petition shows that the work performed and the hourly rate charged are reasonable. Had plaintiffs counsel abided by his Rule 11 obligations, none of the defendant’s federal court expenses would have been incurred. Accordingly, the fee petition is approved and granted in every respect.
The same facts supporting a Rule 11 award of attorneys’ fees, as well as the record in its entirety, also supports an award of fees under 28 U.S.C. § 1927.
Therefore, it is adjudged, decreed, and ordered as follows:
1. “Defendant’s Amended Petition For Sanctions Pursuant To Federal Rule 11” is approved and granted in every respect.
2. Attorneys fees and costs are awarded as a Rule 11 sanction for plaintiffs counsel’s failure to conduct a reasonable inquiry to determine whether or not the plaintiff satisfied the requisite jurisdiction amount necessary to maintain a diversity action.
3. Rule 11 sanctions are assessed because notwithstanding the Magistrate Judge’s constant and continuous admonitions to plaintiffs counsel to calculate the damages to determine if the jurisdictional requirements were met, plaintiffs counsel obstinately refused to do so.
4. Rule 11 sanctions are awarded because plaintiffs counsel continuously represented to the Magistrate Judge that he had in fact calculated the damages necessary to satisfy the jurisdictional amount, when in fact he had not done so.
5. Rule 11 sanctions are awarded against the plaintiffs counsel only, and not against the plaintiff herself. The attorney herein was negligent and derelict in his duty and Rule 11 obligations, and may not pass his responsibilities off on to his client.
6. Attorneys’ fees in the amount of $8,609.30 are hereby assessed against the plaintiffs counsel in favor of the defendant.
7. The same facts supporting a Rule 11 award of attorneys’ fees, as well as the record in its entirety, also supports an award of fees under 28 U.S.C. § 1927. Accordingly, attorneys’ fees and costs are also awarded under this statute as well.
8. The fees are to be paid by certified check within 60 days of the date of this Order.
9. The fees are assessed against counsel. He may not pass the fee award on to the plaintiff, or otherwise bill her for the amount. The negligence was solely that of counsel, and he may not pass it on to the plaintiff.
10. Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the parties must file their objections to the Order .with The Honorable George M. Marovich within 10 days after being served with a copy of the Order. Failure to file objections within the specified time period waives the right to appeal the Magistrate Judge’s Order.
So Ordered.
. See generally, Coulter v. Renshaw, 94 Ill.App.3d 93, 418 N.E.2d 489, 49 Ill.Dec. 635 (2d Dist. 1981).
. See generally, Kniznik v. Quick, 130 Ill.App.2d 273, 264 N.E.2d 707 (1st Dist. 1970).
. Coulter v. Renshaw, 94 Ill.App.3d 93, 96, 418 N.E.2d 489, 491, 49 Ill.Dec. 635, 637 (2d Dist. 1981).
. "Complaint In Alienation Of Affections”, ¶¶ 2 and 7, respectfully (filed April 15, 1998) (Docket Entry No. 1).
. Alvarado Morales v. Digital Equipment Corp., 669 F.Supp. 1173, 1187 (D.Puerto Rico 1987), affirmed, 843 F.2d 613 (1st Cir. 1988).
. See generally, Official Tape-Recording of the August 6, 1998 Proceedings before the District Judge.
. Id.
. Exhibit A, “Defendant’s Amended Petition For Sanctions Pursuant To Federal Rule 11."
. See generally, The Official Court Tape-Recordings of the October 27, 1998; November 3, 1998; and December 2, 1999 Proceedings before the Magistrate Judge.
. Id.
. See generally, November 3, 1998 Official Court Tapes.
. “Defendant's Reply To Plaintiffs Response To Amended Petition For Sanctions Pursuant To Federal Rule 11," at 2.
. Id.
. "Defendant's Reply To Plaintiffs Response To Amended Petition For Sanctions Pursuant To Federal Rule 11," at 2 and 3.
. Id., at 3.
. Alvarado Morales v. Digital Equipment Corp., 669 F.Supp. 1173, at 1183, affirmed, 843 F.2d, at 618.
. "Plaintiff’s Response To Defendant’s Amended Petition For Sanctions”, at 2.
. 28 U.S.C.A. § 1332(b).
. Wenning v. Jim Walter Homes, Inc., 606 F.2d 784 (7th Cir. 1979); and Sears, Roebuck & Co. v. American Mut. Liability Ins. Co., 372 F.2d 435 (7th Cir. 1967).
. Generally speaking, the only defenses to an action for alienation of affections are the plaintiff's consent, the defendant's lack of knowledge of the existence of the marriage, and the statute of limitations. Bearbower v. Merry, 266 N.W.2d 128, 130 (1978), citing, Frank v. Berry, 128 Iowa 223, 103 N.W. 358 (1905).
. Nelson v. Jacobsen, 669 P.2d 1207, 1218 (Utah 1983).
. Id.
. “Plaintiffs Response To Defendant's Amended Petition For Sanctions,” at 5.
. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538 (7th Cir. 1986). See also, Provident Bank v.
Reference
- Full Case Name
- Cynthia ROBERTS v. Deborah ZEMEN
- Cited By
- 2 cases
- Status
- Published