
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  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.                                         -2-                    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                                         -3-          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                       ___  ____  _______    _________________________                                         -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  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.                                           -5-                    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).                     _______    ______                                         -6-                    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                                         -7-                    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.                                         -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  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                                         -9-          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                                         -10-          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                                         -11-          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                                         -12-          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                                         -13-          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.                                         -14-
