USCA1 Opinion

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

______________________
Michaelson & Michaelson
________________________

whom Julius C. Michaelson and

_____________________

were on brief

for appellants

Ralph R.

aRusso and Thomas A. DiLuglio.

G. Robert Blakey,
________________

with whom Ina P. Schiff

_____________

appellee Michelle Legault.

____________________

January 28, 1997

____________________

was on brief for

____________________

Of the District of Massachusetts, sitting by designation.

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PONSOR,
PONSOR,

propriety

of

sanctions

upon

District Judge.
District Judge.
______________

the

district

the

This

court's

appeal challenges

imposition

defendant-appellant

of

Ralph aRusso

the

monetary

and

his

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

and 26, committed during

discrimination case.

pretrial proceedings in this employment

Finding no error, we affirm.

I.
I.

In

May

of

1993

BACKGROUND
BACKGROUND
__________

plaintiff-appellee

Michelle Legault

brought

mayor

suit against

at

the

Zambarano,

time, Ralph

on her

firefighter.

gender when

irreparable

harm.

Title

its

its

fire chief,

Alan

defendants discriminated against

she applied for

a position

as a

prevail and that inaction would

the defendants

F. Supp. 1479 (D.N.H.

settled when

the

Subsequently,

U.S.C.

the

town

to hire

1994).

district judge

Legault judgment

VII, 42

cause her

Based on this, the court issued a preliminary

requiring

aRusso, 842
______

awarding

and

Rhode Island,

On February 10, 1994 the district court found that

Legault was likely to

injunction

of Johnston,

aRusso,

contending that the

her based

case

the town

against

her.

Legault v.
_______

On April

5, 1995 the

signed

the town

1983

and

two Rhode

paid

Legault's

a consent

order

for violations

Island

reasonable

of

statutes.

costs

and

attorney's fees.

In April 1994, following the preliminary injunction but

before the

consent order, Legault

against aRusso,

Zambarano

filed a motion

and their

for sanctions

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

ordered

monetary

penalty in

that each of the

third of this sum.

to recover

the

amount of

three parties be

$16,450.

He

responsible for one-

The court gave the town of Johnston the right

from the three

any part of

the fee already

paid to

Legault but caused by their wrongdoing.

DiLuglio and aRusso now claim

misconduct

and

matter of law and

the award

of the

that both the finding of

fees

an abuse of discretion.

the town of Johnston has

constituted error

as a

Neither Zambarano nor

appealed either the sanctions

decision

or the judgment of discrimination.

II.
II.

A challenge

DISCUSSION
DISCUSSION
__________

to a trial judge's

in these circumstances carries an

twenty

years

importance of

sanctions,

sanction,

ago

the

Supreme

supporting a

even

where

especially heavy burden.

Court

trial

the

outright dismissal,

exercise of discretion

sharply

court's decisions

judge imposed

for

National Hockey League v.

______________________

Club, Inc.,
___________

U.S.

639,

decisions have been entirely

directive.

642-43

the

misconduct

phase of a case.

427

underlined

(1976).

Over

the

concerning

most

stringent

in the

pretrial

Metropolitan Hockey
___________________

This

circuit's

consistent with the Supreme Court's

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

___ ____ _______
_________________________

-4-

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

ordered that the

on the ground that

the district court

$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

appellants'

claim,

fees

to

Legault

misconduct.

and not

covered

The town of

Legault,

is the

work

necessitated

Johnston, they

proper

party to

by

appear to

oppose

this

appeal, and it has chosen not to do so.

This

appeal

is

a meaningless

is not the identity

the district

court abused

against the appellants.

this appeal

because

quibble.

of the proper

The

on this

appellee, but whether

its discretion in

Legault,

issue

awarding sanctions

in fact, has

an interest

the appellants seek, among other

in

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.

_____________

is certainly

not a case, if

any such cases there

appellants' argument implies) a

This

be, where (as

trial court's valid order should

be vacated without consideration of its merits simply because the

party opposing the appeal lacks technical

contest.

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eligibility to offer a

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.
A.

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

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

detour

Process.
Process.
________

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

i.e.,
____

discriminatory treatment

intentional discrimination

--

were included

in

--

Legault's

complaint as originally filed, the early stages of the litigation

focused

on

impact.
______

plaintiff's

alternative

She contended that

claim

of

discriminatory

the three-part testing

process for

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

fair

rationale,

discovery,

and

of

in

excluding

opposition

women

to the

from

hiring.

motion

for

During

preliminary

injunction, defendants contended that the testing process,

included rigorous

physical trials, was fair

which

and reasonable and,

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

determining who would

pursued

this issue

hearing, generating

get on

with

the fire department.

energy at

the preliminary

Both

sides

injunction

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

Johnston fire department.

Hiring decisions were,

job on the

in fact, based

on undisclosed, subjective criteria

defendants.

The

town's

within the discretion of the

impressive

objective, multi-stage testing was

edifice

of

purportedly

ultimately acknowledged to be

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

Nevertheless,

before

in

answers

to

interrogatories

served

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

attorney, stated that performance

on the tests determined hiring

rank.

that

Judge

constituted

Barbadoro

found

a flat violation

of Fed

these

R. Civ.

false

responses

P. 26(g)(2).

It

cannot remotely be said that he abused his discretion in reaching

this conclusion.

Rule

bear

26(g)(2) requires

the signature of the

that every

discovery response

attorney, certifying "to

the best of

the signer's

reasonable

knowledge, information

inquiry" that

these rules . . . ;

and belief, formed

the response

is "(A)

after a

consistent with

(B) not interposed for any improper purpose,

such as to harass or cause unnecessary delay . . . ; and

(C) not

unreasonable . . . ."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
their later
reference,

concern that application of the

form might be unfair to the defendants.

because we

perceive no

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unfairness, and

rules in

For ease of

because the

Defendants' responses, the court could well have found,

failed

all

three

of these

tests.

Either

as

result

of

deliberate intent, or gross negligence in failing to inquire into

the real

facts, the

the rules, were

discovery responses were

interposed to

inconsistent with

harass and cause

delay and

were

unreasonable.

Our conclusion that the

discretion

litigant

on

and

these facts
_____

his

court, or even

is not

attorney

sanctions every time their

trial judge did not

intended

expose

abuse his

to suggest

themselves

to

that a

discovery

position ultimately fails to convince

where it enjoys

only very weak

support.

The

trial court found something here of an entirely

The

initial position

of

the town

and

different order.

its officials

was,

in

essence, a hoax perpetuated through their discovery responses and

eventually conceded.

and expense.

This

misconduct caused

substantial delay

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

certification

is made

rule, the court, upon

initiative,
made

in

justification
violation of

shall impose upon the person who

the party

behalf the disclosure, request,

is made,

sanction, which
the

the

motion or upon its own

the certification,

objection

amount

or both,

may include an
of

the

incurred because of the

on whose

response, or
an appropriate
order to pay

reasonable

expenses

violation, including

a reasonable attorney's fee.

____________________

outcome

of this

appeal would

not change,

we have

applied the

rules in their current form.

-8-

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

court

found

painstaking

to

was carefully

be

trimmed to eliminate

excessive

approach to

time.

the issue is

more

what the

moderate

hard to imagine.

and

At the

risk of repetition, no abuse of discretion occurred.

B.
B.

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

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

On

August

Process.
Process.
________

13, 1993,

three

days

before the

initial

hearing on Legault's motion for preliminary injunction before the

Magistrate

counsel,

Judge, Attorney

which

he copied

DiLuglio sent

to the

court.

a letter

This

to opposing

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.

pertinent

respects for

"[e]very pleading,

the court.

purposes

of this

in all

decision, applies

written motion and other

Without contesting the falsity of

made in the August

an abuse

11, which parallels Rule 26(g)

to

paper" presented to

the representation

13, 1993 letter, DiLuglio argues that

it was

of discretion for the trial judge to view the letter as

an "other paper" for purposes of Rule 11.

Courts

letter

generally

have been properly

as

an

"other

-9-

reluctant to characterize a

paper"

in

weighing

Rule

11

sanctions.

128

See,
___

F.R.D. 613,

DiLuglio

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

______
____________________________________

616 (S.D.N.Y.

deliberately

Magistrate Judge

three

copied

1989).

his

days before

In this

letter

to

case, however,

the

presiding

the preliminary

injunction

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

its contents.

memorandum

Moreover,

He repeated

opposing

the

the substance of

motion

for

the letter

preliminary

in his

injunction.

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

over

substance and

sent

this

reward the

letter, the

influence the

insure its

substantially.

rankest game-playing.

trial judge

court, at a

impact.

of Rule 11 would be to

As it

time and

found,

in a

happened, it did

with the

exalt form

DiLuglio

intent to

manner calculated

to

influence the court

Given this, the imposition of sanctions based

in

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

C.
C.

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

Identification of Documents.
Identification of Documents.
____________________________

The

improperly

response to

trial

failed to

judge

found

produce

that

the

four categories

plaintiff's legitimate discovery

defendants

of documents

had

in

requests: a report

-10-

by an independent testing

on

each

service listing each applicant's score

the written examination; a

applicant who

took the

list of code

written exam;

numbers assigned to

a list

showing the

actual hiring

course,

rank

of

each applicant

and pleadings in

other civil

who

took

the

rights cases

training

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

each of the four

categories of documents was in

court found

possession and that a reasonable search would have

The

spell

that

the defendants'

located them.

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

out

reasonable

the

obvious:

certifying

lawyer

must

make

"a

effort to assure that the client has provided all the

information and documents available to him that are responsive to

the discovery demand."

such

Here, the trial court's finding

effort was made is well supported.

that no

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

April 15, 1994.

filing

of

all pretrial

Defendants,

Their pretrial submission

it is

material

conceded,

arrived over three

-11-

on

did not

or before

comply.

weeks late, on

or

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

a pretrial order the

disregard of

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

of

or in

addition to

offending party to "pay

37(b)(2)(B), (C), (D)."

this sanction,

the

court may

In lieu

order the

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

compliance

expense,

no

explicit

with the

that

court's pretrial

imposition of a

upon their

finding

the

defendants'

order caused

monetary penalty based

acknowledged neglect

of the court's

non-

Legault any

(even in part)

order regarding

filing of pretrial papers constituted an abuse of discretion.

We cannot agree.

to file

The extent to which a party's failure

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

-12-

case.

terms.

This court

has made this

point before

in the

clearest

Rules are rules

play

by them.

-- and

In

the final

judicial

process

judge's

credibility.

credibility,
firm

in

depends

demanding

adherence to

If

she

parties
flout

should
it

To

or

sets a

crowded

must

analysis, the

heavily

a district judge
managing

he or

the parties

on

ensure

the
such

must often be
dockets

and

announced deadlines.
reasonable due

not be

allowed

painlessly

to

date,

casually to
escape

the

foreseeable consequences of noncompliance.

M ndez v. Banco Popular de Puerto Rico, 900 F.2d

______
_____________________________

4, 7 (1st Cir.

1990).

Here

fairly

the judge's prudent

jumps out of

the record.

assessment of

We cannot say

the situation

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,

not abuse

Legault

its discretion in

herself.

overbroad,

the

While

core

the district

court certainly

declining to impose

her

of her

sanction

grievance

motion

was

did

sanctions upon

may

found

have been

to be

well

supported.

III.
III.

In

court

in

summary, this was

considering and

parties were given

ample

CONCLUSION
CONCLUSION
__________

a textbook

imposing

clear notice

opportunity to be heard.

job by

sanctions.

of the

the district

The

offending

claimed misconduct

and

The judge sorted the unsupported

-13-

or trivial

imposed a

were

violations from the substantial wrongdoing.

sanction crafted

sufficiently egregious

supported by the record.

to penalize only

to

improprieties that

penalty and

Both the amount and the

sanctions were exactly specified.

Affirmed.
________

warrant a

He then

clearly

targets of the

There was no error.2

____________________

Plaintiff-appellee, though

opinion
Her

as a testament to

brief,

relying

irrelevancy,
combination of
the

is

prevailing, should not

the cogency of

substantially on

almost

useless.

the essential

It

her written advocacy.

overcharged
has

weakness of

view this

been

rhetoric and
rescued by

appellants' position,

performance of the court below and a dexterous oral argument

presented by substitute counsel.

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