Petition for Writ of Certiorari — Carlson v. ICI Americas Inc.
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No.
renner ements
IN THE
Supreme Court of the United States
October Term, 1995
DENNIS E. CARLSON,
Petitioner,
HONEYWELL, and ICI AMERICAS, INC.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
DENNIS E. CARLSON
Pro Se
208 S. LaSalie St.
Suite 1705
Chicago, Illinois 60604
(312) 263-4700
DLE, POON ET POR
B&B PRINTING, INC, 1523 W. ROSEMONT AVE. SUITE 2-E, CHICAGO, ILLINOIS 60660
QUESTIONS PRESENTED
1. Whether the Appellate Court must review voidness
of a Judgment where all defendants were dismissed and the
appeal from the dismissal order was dismissed, requiring
reversal.
2. Whether the judgment of March 3, 1993 for
$147,000 in attorney fees is jurisdictionally void, requiring
reversal.
3. Whether Fed.R.Civ.P. § 72(b) bars review on
appeal of a miagistrate’s recommendation on Rule 11
sanctions, when a motion for rehearing was filed and
reiterated within 10 days after a _ second, final,
recommendation, for a monetary award, requiring reversal.
4. Whether a recommendation of a magistrate on
Rule 11 sanctions, which was not complete, in that the
sanction is not a part of the recommendation, an interlocutory
recommendation which can only be appealed when a later
recommendation is handed down with a monetary award
which completes the sanction, require reversal.
5. Whether a verified denial, not based upon personal
knowledge, vitiates a- parties contradictory pre-filing
admissions, requiring reversal.
li
6. Whether, arguendo, a statement allegedly made
by counsel that he was not, at one time, able to prove a
defendant liable, constitutes a clear admission that no facts
existed that could support a verdict against that defendant,
. requiring reversal.
7. Whether movant failed to properly serve a notice
with a transcript excerpt, due to concealment of the nature of
the motion, requiring reversal.
8. Whether deposition excerpts filed by Honeywell
raise an inference of defect and causation, requiring reversal.
ili
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR WME scscscacscovsens i
TABLE OF AUTHORITIES. ....00cccccccccscosscccccscocosrceeresesees Vv
ORTMTIONS BELOW.......ccccscosssscvccsccscrseccssccssesccosoverevseses l
IIT ITETIL . .... .. ssssnsnnnunsogncoienenanprossoveevesosooesenes 2
CONSTITUTIONAL PROVISIONS .........:::::cccseeseeeeeteees 3
STATEMENT OF CASE...........cccccccssssssscccsssssrereresscsccece 3
REASONS FOR GRANTING THE WRIT............0::00++ Y
POINT ONE:
IMPORTANCE OF RESOLVING
SANCTION MOTIONS ON
eo aalsiananamabeie 16
~ POINT TWO:
TRIAL COURT WAS WITHOUT
JURISDICTION TO SANCTION.... 23
POINT THREE:
FED.R.CIV.P. #72(B) DID
I ac aeaipiennilinnn 21
POINT FOUR:
POINT FIVE:
POINT FIVE:
CONCLUSION..
APPENDIX A:
APPENDIX B:
APPENDIX C:
iV
PETITIONER'S FEE
SANCTION MOTIONS ..........00:c000 27
THERE IS INSUFFICIENT
PROOF TO SUPPORT
TRY IR TA RIP os cncenppsnssnnessnsscencens 28
RESPONDENTS FAILED TO
SUPPORT THEIR BURDEN
ON PRE-FILING
INVESTIGATION..............006 peteibeeed 29
sitntesandsinvcaeenidasbiadapidmamsdaaamenld nanan 30
The opinion of the Court
of Appeals and Order on
Rehearing en DatiC.......scccceeerees la
The opinions of Magistrate
Judge Elaine Bucklo of
PE Dy, Bi stnsiicntntaccsnecesaies lla
The orders of the District Court
of July 13, 1989 and July 27,
Vv
APPENDIX D: The opinion and orders of the
District Court of December 12,
APPENDIX E: The reports and recommendations
of March 28, 1991 and July 10,
APPENDIX F: The order of April 9, 1991.......... 36a
APPENDIX G: District Court’s opinion of
CE FT TI ies caccaeceskecttecessses 39a
APPENDIX H: The order of the District Court
OE TIE Fo Fi bricessinsiccccincess 40a
APPENDIX I: The order of the District Court
OE DE i Deka kosctacinatesicncs 4la
APPENDIX J: The District Court order of March
25, 1994 and transcript of March
DG Ba ilitiibintsccssscacctincpernaaeassna 42a
APPENDIX K: The District Court's orders of
May 9, 1994 and June 20,
EER! SSR SOE EER pete Bele 47a
TABLE OF AUTHORITIES
CASES Page
Brainerd v. Bea
Ce Fk ee ee Ge, Pid ie hadi 19
vi
Brown v. Fed. St. Med. Bds. of U.S.
SOP Te, BE BAGG, CH ee ee cctinthctecssesissocscsarinerniortens 28
Cameau v. Rupp
CEs, BR, Ded, WS, Bees Me Decidvnsvcssaccvestiniidentobaoneds 22
Catlin v. Unites States
SAO US. 229, Be BiBen GUE DGD secsccccsksnoresedctcccsnese 20
Cipollone v. Ligget Group, Inc.
112 S.Ct. 2608 120 L. Ed.2d 407 (1992) .....000... 17,18
Clark Equipment v. Lift Parts Mfg. Co. Inc.
(7th Cir, 1992), 972 F. 2d 817.........cscssssossesescesovseoes 17,18
Employers Ins. of Wausau v. Crown
Cork & Seal Co., Inc.
(3rd Cir. 1990), 905 F.2d 42..............sscccssreees pakaieed 17,18
Eisen v. Carlisle & Jacquelin
417 U.S. 156, 40 L.Ed.2d 732 (1974)... eee 16
First National Bank of Salem, Ohio v. Hirsch
(Gita Che. BGIG), SOS FBG, Bees csitirscscnscetissccbesiotibienioeds 19
Griggs v. Provident Consumer Discount Co.
459 U.S. SG, TS LBA Zio CEO reaps cccesescecesonssce 19
Insurance Benefits Admin'rs, Inc. v. Margin
(ey We Bie ® 9: | eee 28
Lenard v. Argento
(Pe Cor. 1563S), GOP FA Bi acivncscctncsiniidcecttinceaiien 19,22
vil
Lindsey v. Perini
(6th Cir. 1969), 409 F.2d 1341 .....ceceesseeeeeereneenees 19
Maxus Energy Corp. & Subsids, v. U.S.
CISD), BL P.Bd 8 1GS....cccerscccsssersosovecscscrsovssssesssrenvovees 17
Needham v. White Laboratories, Inc.
(7th Cir. 1981), 639 F.2d 394, 397.........ccceeees 19
Parr v. Unites States
351 U.S. 513, 100 L.Ed. 1377 (1956) ..............0.. 20
Spring Garden Associates v. Resolution Trust Corp.
(Jad Cir. 1994), 26 F.26 412.......0cccrccccccccsssersoosees 17
Stern v. United States Gypsum, Inc.
ew Bir. Bc By, Ee ARUnnnmrnne 23
Stearnes v. Bauer's Opera House, Inc.
(7th Cir. 11/1993), 3 F.3d 1142.).............cccccssrovees 17
Tucson Medical Center v. Sullivan
RR TEE BEE TT Bidishcsachssanipiinnccoginendapronsncesegues 18
United States v. Munsinger Wear,
340 U.S. 36, 71 S.Ct. 104, 106, 95 L.Ed. 36......18
Textile Banking Co., Inc.
(7th Cir. 1981), 657- F.2d 844 we ceeecseeeseeees 20
Viii
STATUTES Page
Be AF les BR Faces insovsainissstaanintpasaeamiplintiiens 13,14
IN THE
Supreme Court of the United States
October Term, 1995
DENNIS E. CARLSON,
Petitioner,
2
HONEYWELL, and ICI AMERICAS, INC.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
1. The opinion of the Court of Appeals was published at
64 F. 3d 327(7th Cir 1995) and . It is reproduced and
attached as Appendix A.
2. The opinions of Magistrate Judge Elaine Bucklo are
published at 120 F.R.D. 681 (N.D. Ill. 1988) and 123 F.R.D
583 (N.D. Ill. 1988) and are reproduced and attached as
Appendix B.
3. The orders of the District Court of July 13, 1989 and
July 27, 1989, are reproduced and attached as Appendix C.
4. The opinion and orders of the District Court of
December 12, 1990, are reproduced and attached as
Appendix D.
5. The reports and recommendations of March 28, 1991
and July 10, 1992 are reproduced and attached as Appendix
E.
6. The order of April 9, 1991 is reproduced and attached
as Appendix F.
7. The District Courts opinion of October 17, 1991 is
reproduced and attached as Appendix G.
8. The order of the District Court of October 7, 1992 is
reproduced and attached as Appendix H.
9. The order of the District Court of March 3, 1993 is
reproduced and attached as Appendix I.
10. The District Court order of March 25, 1994 and
transcript of March 15, 1994 is reproduced and attached as
Appendix J.
11. The District Court’s orders of May 9, 1994 and June
20, 1994 are reproduced and attached as Appendix K.
JURISDICTION
The judgment of the Court of Appeals was originally
entered on August 28, 1995.
A Timely Petition for Reconsideration and for
Hearing en banc was made. That motion was denied and the
judgment of the Court of Appeals entered on September 28,
1995. This Court has jurisdiction to issue a writ of certiorari
pursuant to 28 U.S.C. § 1254
CONSTITUTIONAL PROVISIONS
"No person shall be ... deprived of life, liberty, or
property without due process of law ...” (U.S. Const., Article
V)
STATEMENT OF THE CASE
Petitioner was sole counsel for Kristina Lorentzen and her
husband Alan who sued several defendants for Kristina’s
toxic condition alleged to have been caused by ingestion by
contact or inhalation of poisons routinely applied in the
elementary school where she taught and her condition
became apparent and for additional ingestion at a school to
which she was transferred within her employer's school
district.
Kristina alleged that the first school was constructed in a
manner that sealed the inside of it from the general external
atmosphere; that pesticidal poisons, including but not limited
to ICI Americas’ rat poison known as ICI's Talon G, were
released or over time degraded and emitted poison into the
school’s internal closed atmosphere.
She further alleged that the master control for the
atmospheric internal environment in the school had been
manufactured and installed according to requirements of
defendant Honeywell; the Honeywell control never properly
operated to cause ducts, fans and vents of the heating,
ventilation and air conditioning system and other system
components to sufficiently and properly move, clean or vent
the internal atmosphere of the school in which she was
required to work; and that the routinely applied poisons
released or emitted increased and remained within the school
causing toxic contamination of the atmosphere and chemical
death of cells in various systems of her body to a sufficient
extent to cause her pain, suffering and disability.
The contract applicator, Anderson Pest Control, Inc.,
disclosed in response to a pre-filing inquiry that Talon G was
one of several identified poisons available to technicians for
use at school district premises of Kristina Lorentzen’s
employer including the elementary school alleged to be
contaminated in which suffering and disability first became
apparent to her, but plaintiff's employer which had obtained
this information later refused to disclose any information
after the disclosure of pesticides made available by Anderson
for applications at schools by its technicians.
In response to defendant ICI America’s Request for
Admissions of codefendant Anderson Pest Control, Anderson
denied that Talon G, which had been represented to have
been available for routine use in plaintiffs employer's
schools, had been used in those schools and supported with
the explanation that although available at the plaintiff's
employers suburban schools for use rat poisons were not
used because of an unwritten Andersen policy for school
pesticidal use.
Honeywell answered the plaintiffs’ complaint in law and
discovery by admitting that it believed that it supplied
heating, ventilating and air conditioning [HVAC] component
controls but could not find its documents for its contribution
to the construction of the school where plaintiff's suffering
became apparent to her. Extensive discovery was pursued by
defendants beyond the geographical jurisdiction of the
assigned magistrate judge and district court judge prior to,
during and after the denials of Anderson and Honeywell's
claims of lack of documentation for its contribution to school
construction.
Honeywell filed a lengthy transcript from one of seven
sessions of plaintiffs deposition taken in two states
concerning her health before, at the time of and after she
worked in school premises complained of without serving a
copy of it on petitioner and without serving a notice that
identified the excerpt as having been submitted to Magistrate
Judge Elaine Bucklo.
No affidavits other than that of Anderson’s president were
filed, and no other deposition testimony was submitted or
filed in support of or in opposition to motions of ICI which
had requested findings of violation of Rule 11 but not any
particular fee, cost or other sanction for the claimed
violations. Magistrate Judge Bucklo’s first Report and
Recommendation findings of Rule 11 violation recites a
reliance on Kristina’s testimony that she had no knowledge
of a particular HVAC component that contributed to cause
her poisoned condition.
Petitioner and plaintiffs were not given notice of what was
before the magistrate for her consideration for a report and
recommendation. Petitioner therefore did not factually
oppose what appeared to be factually unsupported motions
for findings of lack of basis in fact for the allegations in the
complaint. Pre-filing information obtained by investigations
of persons available to a restricted degree to plaintiff Kristina
Lorentzen and unavailable to petitioner after inquiry by
Kristina was rejected or ignored.
Petitioner contends that Rule 72(b) of the Fed.R.Civ.P.
does not require the filing of an objection to a
recommendation for entry of a non dispositive order and that,
therefore, the merits of the basis for claims against
Honeywell and ICI had to be considered and the motion for
reconsideration should have been granted. Further, the
District Court had no jurisdiction 10, 30 or 90 days after the
dismissal of the entire lawsuit on December 13, 1990.
It lacked jurisdiction, therefore to adopt any report and
recommendation and had no jurisdiction on March 3, 1993
nor thereafter.
The Appellate Court, therefore, did not have jurisdiction to
do anything other than to declare the judgment of March 3,
1993 void for lack of jurisdiction in the U.S. District Court
on that date.
Further, had the magistrate, trial judge and appellate court
considered the merits of the claims made against ICI and
Americas, they would have been denied for lack of
evidentiary facts to support the claims made.
REASONS FOR GRANTING THE WRIT
In the record below, Honeywell Exhibit In Support Of
Motion For Sanctions And Memorandum of Law in Support
contains no notice of filing or certification of service on
plaintiffs’ counsel in the record although the docket sheet
shows a notice of filing at about that time.
Kristina K. Lorentzen’s deposition transcripts exceed 2,000
pages in length. A minute portion of this entire deposition
was relied on by the magistrate for attorney violative conduct
to the exclusion of the rest.
Plaintiff Kristina testified that doctors Crayton and
Randolph had determined that she was reactive to several
petrochemical compounds including natural gas, and that the
wholly enclosed Neubert school internal environment where
she taught school was likely to contribute to cause symptoms
that she had been experiencing. Many symptoms she had
begun experiencing at that school were associated with her
presence at that school and then at Dundee Highland school
in Unit School District 300 in Dlinois in 1986 and 1987.
She related her symptoms and condition of illness together
with the complaints of her fellow teachers with stale air,
overly hot temperatures, entrance and exit doors to the
Neubert school building which were kept propped to get
fresh air and open because of the stale air in the school,
reports by school administrative persons and janitors about
malfunctions of the HVAC system, that a heat sensor had
been installed backwards, that filters were required to be
changed, that the system did not work properly, and that
Tessendorf had been repeatedly on the premises to repair the
system, without apparent success..
Teachers had no controls for their individual rooms; there
was no aif movement; and a person in the heating business
advised her that the industry sometimes recirculated warm air
rather than bring in new cold air in the winter because it is
cheaper to heat the building that way. The west end of the
school did not ventilate, heat or cool properly; and the
system had never worked since installed. She had been told
by one of the school employees that Honeywell was a
construction contractor and had installed the HVAC system.
Further there was a design flaw in the ventilating system and
a school maintenance person or janitor Jensen told her that
a heat sensor did not allow for change of air.
She also testified that she had been informed when
inquiring that Honeywell was a construction contractor and
that she had been given no information to the contrary.
Jensen told her that a heat sensor had not been properly
placed for six years.
The magistrate’s first Report and Recommendation in
which she recommended that a finding of a violation of Rule
11 be entered and related that dismissal occurred shortly after
plaintiff was deposed and that ICI was named because
records showed that Honeywell was not involved. The
records submitted show that it was a $50,000.00 plus
contractor for the HVAC system's controls.
The first report states that appellant listed every chemical
ihat could have caused symptoms and waited to find out from
discovery what one’s were used. Plaintiff had inquired of the
school which had inquired of Anderson. The disclosure was
for chemicals available for use, and then the school refused
further information. Anderson's Steve Kuhse states in part in
his March 23, 1986 letter to plaintiff's employer that enclosed
were “sample labels of Pesticides available to the Anderson
technician.”
Those pleadings include both petitions for sanctions and
various pleadings responsive thereto by appellant. More
specifically the petitions of defendants for sanctions are as
follows:
ate at te
Appellant's filed pleadings described for mootness: -
March 22, 1991, MOTION by plaintiff for a more definite
statement, [Entry date March 26, 1991], March 22, 1991,
MOTION by plaintiff for evidentiary hearing. [Entry date
March 26, 1991], March 22, 1991, MOTION by plaintiff to
dismiss sanction request, [Entry date March 26, 1991].
Two of the four pleadings of plaintiffs filed by appellant
pertain to a petition for a fee sanction denied by Judge
Lindberg from which no appeal was taken.
Honeywell's stipulation and its dismissal were by
negotiated settlement. Plaintiffs agreed to drop all claims.
Honeywell dropped reservations of rights. Two stipulations
were submitted by its attorneys. The first reserved to
Honeywell is the right to proceed for sanctions or other relief
under either state or federal law. The second, without
reservation, was fully executed and filed by Honeywell.
Appellant argued below that the rights of the parties
existing at the time of the agreed settlement merged in the
settlement and dismissal by stipulation entered without
objection by any party pursuant to Fed.R.Civ.P. 41(a)(2).
Likewise is the dismissal of ICI. That stipulation is
appended. It contains an exchange of consideration.
[Executed July 14, 1989.] Argued was that no reservation of
rights is stated in this settlement stipulation.
Plaintiffs filed two successive lawsuits against the same
defendants. In each attached to filed complaints and/or
incorporated therein are documents from Kristina Lorentzen’s
employer which included Anderson Pest Control disclosures
10
of other defendants’ pesticide products available for its use at
the employer schools which ha“ been obtained prior to filing
the first lawsuit. In Magistrate Bucklo’s Report and
Recommendation the documentation is described.
HONEYWELL, INC.
Honeywell's motion to strike and dismiss Counts III and
IV of the complaint in 88 C 7142 {2nd suit} pursuant to ~
Fed.R.Civ.P. 10(b) {Because duplicative.} and in the
alternative pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Count
IV {For failure to state a cause of action for product
liability} was docketed on September 29, 1988. Honeywell
also filed an answer and affirmative defenses to Counts I
and II at the same time. Admitted is the following
allegation:
"The defendant, Honeywell Incorporated,
designed [and] provided components [for] and
the defendant, Tessendorf Mechanical,
installed said components and provided and
designed the remaining components of and
maintained the heating and ventilating system
at said Neubert school at the time mentioned
here ar.d or when it was constructed prior to
August 26, 1985.”
The plaintiffs’ amended complaint in the second lawsuit
was filed on February 16, 1989. Honeywell filed its answer
to the amended complaint on March 17, 1989, and admitted
as to paragraphs three of count one of that complaint that “it
had designed and provided some components for the heating
and ventilating system at Neubert School.” Paragraph three
of count one states as follows:
“The defendant, Honeywell Incorporated,
designed and provided components and the
defendant Tessendorf Mechanical installed
said components and provided and designed
the remaining components of and maintained
the heating and ventilating system at said
Neubert School at the times mentioned herein
or when it was constructed prior to August 26,
1985, but said system did not work and did
not vent the internal environment in said
school as intended, designed and required for
the safe occupancy of said school under
circumstances of use which were reasonably
foreseeable.”
Affirmatively alleged by Honeywell is the following:
“HONEYWELL complied with and was
justified in relying upon the plans and
specifications provided and approved by the
State of Illinois concerning heating, ventilating
and air conditioning systems. The state
specifications relied on by HONEYWELL
were not so apparently defective that
HONEYWELL had notice that the work was
dangerous and likely to cause injury.
Therefore, because HONEYWELL fully
complied with said plans and specifications,
HONEYWELL should not be found liable to
these plaintiffs.”
Honeywell's answer and affirmative defense to this
complaint was executed under oath by attorney Geoffrey A.
12
Bryce of Rooks, Pitts and Poust on March 17, 1989. The
answer specifically alleges that the corporate defendant lacks
knowledge sufficient to admit or deny allegations and that
such statements are true and correct. The last affirmative
defense alleges that Honeywell did provide work..
Honeywell was served on February 7, 1989, its answer
interrogatory three are as follows:
QUESTION: Did defendant or any other
person or entity to defendant's knowledge
enter into any written or oral agreements with
respect to the occurrence...
ANSWER: “Defendant Honeywell objects to
Interrogatory NO. 3 on the ground that as
applied to defendant Honeywell “occurrence”
is vague and ambiguous. Defendant
Honeywell cannot locate all of its files
concerning the school located west of Route
31 on Hunting Drive, Algonquin, [linois. It
is believed that the records were destroyed
pursuant to a company wide records retention
policy. According to the normal procedure
for Honeywell, it is believed that Honeywell
may have contracted with Illinois Heating &
Ventilating Co., Inc. to furnish certain
components and incidental installation per the
plans and specifications prepared by K.C. &
M. Engineers & Associates, Inc. and
Scheidematel & Trietler, Ltd. Architects.
Otherwise answering, none known at this
time.
nea amnceate
13
On July 13, 1989, the court ordered that “Plaintiffs’ oral
motion to dismiss Honeywell is granted.”
On September 8, 1989, Honeywell’s Motion for Sanctions
Pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927 was filed,
consisting of two pages, four numbered paragraphs and a
wherefore clause (Page 2) requesting that there be (i) a
: finding of violation of Rule 11 and Section 1927; (ii)
) “reasonable attorneys’ fees and costs in connection with its
defense in Lorentzen I and in this case, including fees and
costs incurred in preparing this motion and memorandum”;
(iii) leave to file an itemized petition for fees and costs
within 28 days, and (iv) “other relief as this Court finds just
and reasonable relief”.
ICI AMERICAS, INC.
A Stipulation to Dismiss was, executed by appellant
on July 14, 1989 and returned to ICI Americas. It was
docketed by the clerk of the district court on July 28, 89 with
| ICI’s Motion to Enter Stipulation to Dismiss, also docketed
on the 27th.
} Pursuant to certification of service executed by Alan R.
: Dolinko of Sidley and Austin, counsel for ICI, the Motion to
Enter Stipulation was served on all counsel of record on July
19, 1989.
On July 27, 1989, the court recited that pursuant to (a)
motion of ICI Americas, Inc. and (b) Motion to Enter
Stipulation to Dismiss, it is ordered that “Pursuant to
stipulation, defendant ICI Americas Inc. is dismissed, with
prejudice, pursuant to Rule 41(a)(2). The related Motion to
14
Enter Stipulation to Dismiss (291), also filed July 27, 1989,
of ICI, moves pursuant to Fed.R.Civ.P. 41(a)(2) for an order
of court dismissing it from the lawsuit with prejudice in
accordance with the parties’ stipulation to dismiss which is
attached hereto.
On August 10, 1989, ICI Americas, Inc. filed its Motion
for Rule 54(b) Finding, mailed August 3, 1989 and a minute
order for judgment was entered that day reciting that a
dismissal had been entered on July 27, 1989, with prejudice
and by agreement pursuant to Rule 41(a)(1) [Actually per
Rule 41(a)(2) according to prior order & stipulation.] and that
"{the prior] order being a final judgment of dismissal in favor
of the defendant, defendant's motion for entry of judgment
pursuant to Rule 54(b) is granted.”.
On August 10, 1989, the clerk entered another order which
stated as follows:
IT IS ORDERED AND ADJUDGED that
plaintiff having dismissed defendant ICI
Americas, Inc. on July 27, 1989, with
prejudice and by agreement, pursuant to Rule
41(a)(1) and that order being a final judgment
of dismissal in favor of the defendant, final
judgment pursuant to Rule 54(b) is hereby
entered. Enter judgment.
ICI Americas filed on November 2, 1989 its 3.5 page
Motion for Sanctions pursuant to Fed.R.Civ.P. 11 and 28
U.S.C. § 1927 against attorney Carlson only and 15 page
Memorandum reciting unverified purported fact in support.
15
Vol. 9 of 38 contains pages 1596 through 1895 from a two
thousand page deposition of the plaintiff taken in three
sessions and two states that contains a face sheet with the
caption of the case entitled, HONEYWELL EXHIBIT IN
SUPPORT OF MOTION FOR SANCTIONS AND
MEMORANDUM OF LAW IN SUPPORT filed September
7, 1889 and docketed September 8, 1989. It is unclear
whether it was made available to, reviewed by or relied on
by the magistrate or not.
Plaintiffs filed four transcripts and two affidavits in
opposition to defendants’ motions for sanctions. Appellant's
petition for Rule 11 sanctions filed on April 14, 1994 for
misrepresentations by defendants included exhibits A through
O consisting in part of the docketing statement designating
the mooted sanction motions or petitions and also documents
detailing Honeywell's involvement in the HVAC system in
exhibits L through O summarized as follows:
L - O: Honeywell contractor waivers to Illinois Heating
and Ventilating Co. for plaintiff's school building from 1978
through 1981, letters Honeywell to School District 300 for
unpaid balances such as $16,943.00 on a contract price of
$50,000.00 to $56,000.00 for the subject school and
Honeywell schematics for HVAC controllers, sensors,
monitors and fittings with related information. See Petition
for Rule 11 sanctions for Misrepresentation of Fact on and
before March 15, 1994 at page 11 and in foot note one on p.
11. This pursuant to subpoena referred to by Magistrate’
Bucklo’s R. & R. as having disclosed lack of Honeywell
involvement. Not made available to her, i.e., no transcripts
or documents having been served on appellant nor described
by notice of defendants as having been filed in support of
petitions for sanctions against appellant.
16
On October 17, 1991, the presiding District Court Judge
adopted Magistrate Bucklo’s report and recommendation of
March 28, 1991, which recommended that defendants’
motions for sanctions against attorney Carlson be granted, but
which failed to specify the sanction, and thus was not a final
recommendation.
On November 22, 1991 ICI filed its Notice of Filing and
two page Petition for Costs and Fees which adopts the
affidavit of attorney Beyer which in turn attaches a statement
of fees comprised of a series of abbreviated two to six word
references to work done from February 5, 1988 through
February 21, 1991 and cost entries for messenger services,
Fed- Exp. duplicating, bindery work not described and
reporter costs.
IMPORTANCE OF RESOLVING SANCTION
MOTIONS ON MERIT OR LACK THEREOF
It is of paramount concern that constitutionally conferred
limited jurisdiction in federal courts is not e> ceeded.
It is of great importance that the doors of the courthouse
are not closed to litigants by sanctioning attorneys for
attempting to prosecute suits for substantial injury that are
difficult, complex and which ultimately exhaust the economic
resources of clients and counsel for prosecution of otherwise
viable claims.
It is improper for the court to speculate on the reason for
dismissal, when there is no factual basis in the record.
17
A primary public policy of state and federal government
is the protection of life and property. Access to the courts
should not be barred for pesticide contamination in
elementary schools that cause delayed disability and loss of
a normal life for generations of susceptible individuals
routinely poisoned.
The heavy burden on courts and all litigants arising from
unseeable chemical cellular destruction of organs and systems
of the body from post 1940 use of fabricated hydrocarbon
poison compounds, must not be laid at the feet of the bearer
of such litigation because the litigants and their counsel
staggered from exhaustion under burden of discovery
required of them by multinational corporations.
No agency or fund exists to toxic personal injury claims.
The traditional attorney's contingent fee is ordinarily an
inadequate fund to finance toxic tort personal injury claims
as demonstrated by the record below.
Il.
THE TRIAL COURT WAS WITHOUT
JURISDICTION TO ENTER A JUDGMENT
The appellate opinion herein conflicts with jurisdictional
requirements articulated in Spring Garden Associates v.
Resolution Trust Corp., (3rd Cir. 1994), 26 F.2d 412, 415:
Employers Ins. of Wausau v. Crown Cork & Seal Co., Inc.,
(3rd Cir. 1990), 905 F.2d 42, 45; Stearnes v. Bauer's Opera
House, Inc., (7th Cir. 1171993), 3 F.3d 1142 {at bottom of p.
40 of appellant’s original brief}; Maxus Energy Corp. &
Subsids. v. U.S., (1994), 31 F.3d 1135; Clark Equipment v.
Lift Parts Mfg. Co. Inc., (7th Cir. 1992), 972 F. 2d 817:
Cipollone v. Ligget Group, Inc., ____ U.S. ___, 112 S.Ct.
18
2608, 2620, 120 L. Ed.2d 407 (1992). There is a denial of
due process guaranteed to all, including attorneys, by the
14th Amendment to the U.S. Constitution.
Every federal appellate court has a special required
- obligation to satisfy itself not only of its own jurisdiction, but
also that of lower courts in the cause under review. Spring
Garden Associates v. Resolution Trust Corp., (3rd Cir. 1994),
26 F.2d 412, 415; Employers Ins. of Wausau v. Crown Cork
& Seal Co., Inc., (3rd Cir. 1990), 905 F.2d 42, 45; Stearnes
v. Bauer's Opera House, Inc., (7th Cir. 11/1993), 3 F.3d 1142
{at bottom of p. 40 of appellant’s original brief}; Maxus
Energy Corp. & Subsids. v. U.S., (1994), 31 F.3d 1135. This
duty is violated.
Jurisdictional mootness arose when the stipulations to
dismiss were filed in 1989, Clark Equipment v. Lift Parts
Mfg. Co. Inc., (7th Cir. 1992), 972 F. 2d 817. Also see
Cipollone v. Ligget Group, Inc., ___ U.S. ____, 112 S.Ct.
2608, 2620, 120 L. Ed.2d 407 (1992), cited and relied on by
the court in Clark (See brief at point five) Federal courts
lack jurisdiction to consider the merits of claims that are
deemed moot because judicial power extends only to cases
or controversies. Tucson Medical Center v. Sullivan, (C.A.),
947 F.2d 971, 977; United States v. Munsingwear, 340 U.S.
36, 30, 71 S.Ct. 104, 106, 95 L.Ed. 36.
Jurisdiction expired shortly after if not before the
underlying lawsuit was dismissed in its entirety for failure of
ICI and Honeywell to file a complete or supplemental Rule
11 petition by requesting a specific fee sanction before or
after Judge Lindberg warned that Rule 11 sanctions sought
needed to be jurisdictionally perfected.
19
Loss of jurisdiction was spread of record pursuant to the
October 7, 1992, explicit and specific designation and
declaration of mootness of the fee petitions of defendants.
No appeal from that jurisdictional declaration has ever been
taken by defendants no doubt because this court held in
Brainerd v. Beal, 498 F. 2d 901 (7th Cir., 1975), that a
notice of appeal was jurisdictionally void because filed one
day late. In accord is Needham v. White Laboratories, Inc.,
(7th Cir. 1981), 639 F.2d 394, 397. Ignoring the October 7,
1992 declaration of lack of jurisdiction over fee petitions
does not, according to any logic or authority, revest
jurisdiction for entry of a judgment in March of 1993.
This court held that a motion for reconsideration of a fee
award operates as a Rule 59(e) motion to postpone running
of the time to appeal. Lenard v. Argento, (7th Cir. 1983),
699 F.2d 874, cert. denied, 464 U.S. 315. Not only was
there no notice of appeal filed from the October 7, 1992
order, but there also was no motion to reconsider the October
7, 1992 declared mootness. Nor was there a motion to open
the December 13, 1990 dismissal of the entire lawsuit.
Neither the court of appeals nor a cooperative opponent
can revive an appeal when notice of appeals was not timely
filed. Griggs v. Provident Consumer Discount Co., 459 U.S.
56, 74 L.Ed.2d 225 (1982); Lindsey v. Perini, (6th Cir.
1969), 409 F.2d 1341; First National Bank of Salem, Ohio v.
Hirsch, (6th Cir. 1976), 535 F.2d 343, 345, n. 1. In the
instant cause the defendants did not even take an appeal nor
move for retention of jurisdiction over the motions which
failed to contain a request for a fee sanction and which,
therefore, were not even sufficient Rule 11 fee sanction
requests.
20
The October 7, 1992 mootness order passed on the only
claims not yet explicitly ruled on as of that date, and no
appeal has ever been taken from that order to date.
Therefore, the fee award is void as the confirmation of that
judgment by the court of appeals is also void.
As a matter of practicality the October 7, 1992-order was
final. Eisen v. Carlisle & Jacquelin, (1974) 417 U.S. 156, 40
L.Ed.2d 732 . The mootness declaration of October 7 left
the court with nothing more to do except to enforce its
* judgment of mootness. Catlin v. Unites States, (1945) 324
U.S. 229, 89 L.Ed. 911, 916; Parr v. Unites States, (1956)
351 U.S. 513, 100 L.Ed. 1377. The district court and this
court have failed to enforce the October 7, 1992 judgment.
In Textile Banking Co., Inc., (7th Cir. 1981), 657 F.2d 844,
the court held that it did not have jurisdiction to review a
default judgment order entered in supplementary proceedings
to satisfy a judgment where late notice of appeal was not
timely filed, notwithstanding interim efforts to persuade the
district court to vacate a judgment. In the instant cause the
defendants wrote an interim letter to the court to cause it to
award a $147,000.00 judgment about five months after entry
of the October 7, 1992 jurisdictional mootness order. A
letter ignoring that judgment order cannot confer jurisdiction
nor jurisdiction be restored by ignoring below and on appeal
the October 7, 1992 ruling.
The reviewing Court ignored that the motions were not,
jurisdictionally timely filed; that the supplemental fee specific
fees claimed were not filed until many months after the
underlying lawsuit was dismissed in 1991 as to all defendants
remaining after the July 1989 stipulated dismissals; that
approximately one half year elapsed before judgments were
entered in March of 1994, and jurisdictionally barred
petitions were declared on October 7, 1992, by Judge
Lindberg, to be “moot” for which a docketing statement cites
by docket numbers for both 92 fee petitions and every related
responsive pleading.
Il.
Fed.R.Civ.P. #72(b) DID NOT APPLY TO THE FIRST
REPORT AND RECOMMENDATION FOR A NON
DISPOSITIVE FINDING
Point one: Rule 41(a)(2) did not preserve jurisdiction for
the filing of a Rule 11 motion or petition, and neither
subsection (a) nor (b) applied to the first recommendation
and report of the magistrate.
Fed.R.Civ.P. 72(b) does not require an appeal from a
report and recommendation which is interlocutory. Since the
first report and recommendation was not final, multiple
appeals would result. On appeal the court erroneously found
that an objection was jurisdictionally necessary to appeal the
magistrate’s first report and recommendation for a finding of
a violation of Rule 11.
The court erred in holding that there was no objection to
a report and recommendation for sanctions because a timely
objection was filed upon a final report The Court of Appeals
ignored the fact that appellant's pleading filed within 10 days
of the first report states that “if the motion (to reconsider) is
denied, plaintiffs object to the declared violation of Rule 11
violation.
22
Cameau v. Rupp, (D. Kan. 1992), 142 F.R.D. 683, which
holds that a motion to vacate, such as petitioner filed,
obviates the need to object within 10 days to a magistrate’s
ruling. In Lenard v. Argentino (7th Cir.), 600 F.2d 874, 898.
a motion to reconsider made within a ten day time limit
. extended the time within which to file a notice of appeal.
The lack of an appropriate title for a pleading which timely
attacks a magistrate’s report and recommendation is not fatal
to jurisdiction. Courts are charged with considering substance
over form. It is clear that an objection was timely filed.
Had the motion been entitled objection and motion for
reconsideration for stated reasons, the court would have
taken an opposite position, as there is nothing in the law that
says that a pleading.cannot serve more than one function or
purpose.
In sum, the opinion of August 28, 1995 affirms a judgment
for $147,000.00 without a word about whether or not the
jurisdictional issue raised by appellant below and on appeal
had merit. That issue must be addressed whether properly
and sufficiently raised or not by appellant. Stern v. United
States Gypsum, Inc., 547 F.2d 1329, 1333 (7th Cir.), cert.
denied, 434 U.S. 975.
Similarly, the trial court gave no explanation for its bald
conclusion that it had jurisdiction to enter judgment in March
of 1993 on petitions it had declared moot in 1992.
Point Two: Defendants were not compelled by plaintiffs
or petitioner to submit to “needless discovery” where they in
fact set the discovery priorities and schedules they desired
with the magistrate’s approval.
23
The court of appeals opinion is factually in error in stating
that Honeywell and ICI were compelled to participate in
discovery for two years before respectively dismissed.
Sanction was entered in the trial court for the declared
failure of petitioner to perform a reasonable pre-filing
investigation. Sanctions were affirmed for what this court
characterized as needlessly requiring defendants to submit to
discovery.
The needless discovery conclusion is drawn from an
uncritical reading of paragraph seven of ICI’s three page
incomplete October 16, 1989 motion for sanctions which
falsely states it “spent two years defending against this
factually baseless lawsuit.”
No defendant appeared in the first of two lawsuits filed
except to contest service by mail pursuant to Fed.R.Civ.P. 4/.
The second suit was filed on August 17, 1988. ICI filed
an answer to the complaint on September 7, 1988.
Honeywell filed on the same date. ICI denied knowledge
sufficient to form a belief as to the truth of the allegations
made against it and concluded therein that it was without
fault or liability Likewise Honeywell denied sufficient
knowledge but admitted that it had designed and provided
_ components for the hearing and ventilating system at
Neubert, a fact that its attorney argued in hearings on post
judgment motions and on appeal was not true.
The Anderson affidavit, referenced in the District Court
opinion at page three, is apparently that of corporate officer
Thomas O'Hara. It was executed on March 13, 1989, about ©
six months after defendant ICI appeared.
The corporate officers affidavit contains 8 brief
paragraphs. At paragraph 8 O’Hara concludes based on his
“knowledge” of “record keeping practices” and a review of
“those records” that Anderson Pest Control did not use,
apply or place Talon-G into Neubert Elementary School
between August 85 and May 87.
Steven Kuhse’s affidavit, Anderson's Manager, executed on
August 10, 1989, about one month after dismissal of ICI,
states that when he disclosed Talon-G in response to
- plaintiffs’ pre-filing inquiry for the identity of pesticides used,
he did not know what products were used but only intended
to disclose which ones were available for use by applicators
rather than which ones were used as requested by plaintiffs.
Defendant Honeywell and ICI were dismissed in mid July
of 1989. On July 13, 1989, Honeywell was dismissed on oral
motion pursuant to an agreement and an executed stipulation
from which a reservation of claims for sanctions had been
stricken by agreement. The stipulation was executed on July
14, 1989. The stipulation to dismiss ICI was executed on
July 14, 1989, and it was later filed by ICI on July 20, 1989,
at its leisure.
The District Court's opinion that petitioner put ICI through
needless discovery compliance is tantamount to holding as a
matter of law that a codefendant’s corporate officer's self
serving affidavit based on fragmented slips of paper by
various applicators not specifically identified and of unknown
nature and competency is peremptory on the issue of what
products applicators used in fact. Accordingly, this court's
ruling would require that plaintiffs and their attorney forego
cross examining the affiants regarding the reliability of their
reported conclusions, the bases for same and the various
25
applicators. This, petitioner contends, is not a result
reasonable requirement since it is tantamount to allowing
defendants to be summarily dismissed on the affidavit of a
codefendant that the dismissed defendant was not involved
but merely available for involvement. Criminal defendants
would welcome such a procedure to avoid conviction for
crimes perpetrated if a cooperative codefendant is available.
Honeywell in fact provided the master controls for the
HVAC system, a fact irrefutably proved by more than
$57,000.00 in contract documents for the Neubert Elementary
School which Honeywell spuriously and falsely claims is a
school that either does not exist or which it did not work on
contrary to its answer.
Petitioner asked for and was refused an evidentiary hearing
although the magistrate’s report is based on her presumption
that dismissal that followed production of school records is
evidence of the lack of Honeywell involvement although in
fact the cpposite is true. The dismissal was for lack of
financial means and resources to prove a strict liability defect
under Illinois law which, does not mean that the HVAC
Honeywell controls were not malfunctioning at all times
mentionec. as supported by the personal experiences of the
plaintiff and other teachers in the building during hot and
cold seasons.
The magistrate did not set a briefing schedule for
resolution of the Honeywell motion for a recommendation of
a declaration of a Rule 11 violation notwithstanding
assertions to the contrary by defendants. The docketing sheet
shows no briefing schedule or hearing date.
26
Adding to confusion, Honeywell submitted under a cover
pleading erroneously labeled a memorandum a copious
excerpt from the plaintiff's deposition in which this teacher
admitted lack of engineering or legal expertise. Since no
transcript excerpt was served on petitioner, no other excerpts
_ or affidavits in opposition were submitted.
For the lack of an English teacher's expert opinion, the
magistrate concluded that there was no Honeywell
involvement. This notwithstanding that plaintiff testified in
deposition to her personal knowledge that the HVAC system
in her experience did not cool, heat nor move fresh air.
Honeywell control components regulated the Neubert
Elementary School entire HVAC system and that Honeywell
stated it had not known the extent of its involvement when
filing answers to interrogatories although opining that it had
likely submitted components for the system. These matters
were all addressed in petitioner's briefs and ignored on
appeal.
Point Three: The statement that the magistrate supervised
and knew, therefore, the content of discovery is inherently
contradictory because supervision does not amount to review
of any transcript of any deposition from amongst more than
40 sessions that occurred.
According to the record she only read the transcript for the
deposition of one Anderson Pest Control applicator and there
concluded that defense counsel violated rules of discovery by
interfering with the interrogation of petitioner of the
deponent. This court's reliance on supervision of discovery
by a magistrate who attended no session of plaintiff's
deposition is mere sand upon which to base a judgment for
27
$147,000.00. No dispositive motion on the merits was
noticed for hearing nor ruled upon.
The appellate court opinion herein does not address any of
the points raised by petitioner's brief, does not explain why
it was not necessary for defendants’ to show as a basis for
sanction that plaintiffs could never have proved clainis made
against them, that mootness does not apply, that jurisdiction
was not lost by the filing of stipulations in 1989 nor the late
1991 dismissal of all defendants not already dismissed nor by
the October 7, 1992 order declaring all pending matters moot
where the only matters not specifically resolved were the two
1992 fee petitions.
IV.
PETITIONER'S FEE SANCTION MOTION
The court of appeals concluded that the claims for fee
sanction awards for false statements of fact were waived by
failure to move for hearing and that this failure was not
excused by the failure of the district court’s reporter to
transcribe the record for appeal for that portion of the record
wherein the misrepresentations were stated. Where the only
matters on appeal related to frivolous pleadings and
sanctions, this court insists that at petitioner's peril he was
required to raise for hearing a motion for sanctions without
the necessary underlying transcript for a judge who
repeatedly refused to hear matters unless related transcripts
of proceeding were provided.
Petitioner was also at peril if he moved for hearing on his
motion for sanctions without a transcript and was damned for
not having waited for it before asking for a ruling from Judge
28
Lindberg. The failure or refusal of the court's reporter to
provide a transcript in any period of time that could be
loosely characterized as less than unreasonably tardy was the
death knell for petitioner's cross motion for sanctions.
Appellant's motion for sanctions was stricken sua sponte
‘without a hearing at the very time that the record pertaining
to the hearing in which misrepresentation of fact and law
were made that are complained of in the sanction motion
inexplicably remained un-transcribed by the official court
reporter assigned to Judge Lindberg notwithstanding several
orders and motions on appeal pertaining to the failure to
transcribe those proceedings.
V.
THERE IS INSUFFICIENT PROOF TO
SUPPORT THE FEE AWARD
A Rule 11 motion which is itself frivolous or which
contains an excessive fee request not proportional to conduct
deemed violative is sanctionable. In any event, in assessing
sanctions on such a motion the court must indicate how and
what is proportional to the abuse committed. /nsurance
Benefits Admin'rs, Inc. v. Martin, (C.A. 7th, 1989), 871 F.2d
1354.
The failure to specify time and services in itself justifies
sanction denial. In Brown v. Fed. St. Med, Bds. of U.S., 839
F. 2D 1142, 1149 (7th Cir. 1992), the court of appeals
required specific reasons for substantial fees and the manner
of computation.
SS eEeEOEeEeEEE———&« St —————
29
This was not done by the trial court in the instant cause
nor required on appeal. Reasons were not articulated. Burda
v. M. Eker Co., (7th, 1992), 954 F.2d 434. Rule 11 does not
permit fee shifting for mere compensation. U.S. ex rel Leno
v. Summit Cons. Co., 892 F.2d 788.
VI.
RESPONDENTS FAILED TO SUPPORT THEIR
BURDEN ON PRE-FILING INVESTIGATION
The first Report and Recommendation from the magistrate
judge presumes that dismissal after receipt of subpoenaed
school construction documents is an admission that petitioner
(herein sometimes referred tu as appellant) knew then and
that he knew before that there never had been a basis for
plaintiff's claims. The more plausible inference is that he
expected that the documents did show that Honeywell
contributed $65,000.00 in controls for the wholly automated
contributing internal environment of the school.
On appeal the court refused to consider an offer of
pictures, on site reports and documentation from school
district records to show that there was more than enough
evidence to show that Honeywell designed and supplied the
HVAC system. What was cited from the common law
record and submitted from on site inspections demonstrates
that inferences based on a voluntary dismissal cannot stand
as a basis for sanction. ° ‘
There is no admissible evidence in the record that rat
poison brought to the plaintiff's school on routine pesticide
applications was never evér used. The inference is that if rat
30
poison is brought to a school where food is served that it is
likely or at least possible that it was used where admittedly
made available for such use according to pre-filing
admissions attached to each and every complaint filed by
plaintiffs and petitioner.
The 1000 pages of transcript submitted by Honeywell
show that plaintiff had knowledge of the Honeywell
controlled HVAC system failure which consequently retained
poison contamination in the school where her toxic systems
arose and persisted at all times when deposed in seven
sessions. That a trier of fact may ultimately believe a claimed
<unwritten policy of Anderson against the use of rat poison
Talon G does not mean that plaintiff and petitioner had no
reason to believe otherwise.
IN CONCLUSION, petitioner prays that this court reverse
the judgment for $147,000.00 and remand this cause for
hearing on petitioner's sanction motions.
Respectfully submitt
YL:
Dennis E. Carlson
Pro se
208 S. LaSalle St.
Suite 1705
Chicago, Illinois 60604
(312) 263-4700
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CHICAGO, ILLINOIS 60604
September 28, 19 95.
Honorable JESSE E. ESCHBACH, Circuit Judge
Honorable MICHAEL S. KANNE, Circuit Judge
Honorable LANA DIAMOND ROVNER, Circuit Judge
No. 94-1687 and 94-2593
KRISTINA K. LORENTZEN |] Appeal from the United
and ALAN LORENTZEN ] States District (Court
Plaintiffs ]for the Northern District
Jof Illinois, Eastern
v. ]Division
J
ICI AMERICAS INC. and ] No. 88 C 7142
HONEYWELL, INC. ]
Defendants-Appellees |
}George W. Lindberg
Appeal of DENNIS CARLSON})Judge
’ ORDER
On consideration of the petition for rehearing with
Suggestion for rehearing en banc filed by appellant, Dennis
E. Carlson on September 12, 1995, no judge in active service
2a
has requested a vote thereon, and all of the judges on the
original panel have voted to deny the petition. Accordingly,
IT IS HEREBY ORDERED that the petition for rehearing
with suggestion for rehearing en banc be, and the same is,
. hereby DENIED.
3a
3n the
United States Court of Appeals
For the Seventh Circuit
Nos. 94-1687 and 94-2593
KRISTINA K. LORENTZEN
and ALAN LORENTZEN,
Plaintiffs,
v.
ANDERSON PEST CONTROL, KLEAN MASTER,
KANKAKEE INDUSTRIAL SuPPLY COMPANY, et al.,
Defendants-Appellees.
APPEAL OF: DENNIS E. CARLSON
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 88 C 7142—George W. Lindberg, Judge.
ARGUED JUNE 6, 1995—DecipED AvuGusT 28, 1995
Before ESCHBACH, KANNE, and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. The district court sanctioned
Dennis Carlson, plaintiffs’ attorney in the underlying ac-
tion, for failing to conduct a proper pre-filing investiga-
tion and for continuing to pursue baseless litigation against
Honeywell, Inc. (“Honeywell”) and ICI Americas, Inc.
(“ICI”) after discovery revealed that they were not proper
parties to the action. The district court declined to sanc-
tion ICI and Honeywell for allegedly filing a baseless joint
da
Nos. 94-1687 & 94-2593
Rule 54(b) motion and for allegedly making misrepresenta-
tions to the court. We affirm the rulings of the district
court because Carlson waived his right to appeal the im-
position of sanctions when he failed to properly object to
. the magistrate-judge’s Report and Recommendation, and
because the district court did not abuse its discretion in
setting the amount of the sanction or in refusing to sanc-
tion ICI and Honeywell.
I. BACKGROUND
Carlson represented Kristina and Alan Lorentzen in a
lawsuit against, among others, Honeywell and ICI. The
Lorentzens alleged that Kristina had developed multiple
chemical sensitivities after being exposed to certain chem-
icals in two poorly ventilated schools where she taught
in suburban Chicago.? The Lorentzens named ICI as a
defendant because ICI manufactures a rodenticide called
Talon-G, which the Lorentzens alleged contributed to Kris-
tina’s injuries. Honeywell, the Lorentzens alleged, de-
signed and provided components for the ventilating sys-
tem of one of the schools. The Lorentzens also named as
a defendant Anderson Pest Control (“Anderson’’), which
allegedly applied the offending chemical substances in the
relevant schools.
Through requests to admit directed to Anderson, ICI
was quickly able to discern that Talon-G had never been
applied in any school where Kristina Lorentzen taught.
Carlson himself admitted that neither he nor his client
ever had specific knowledge as to what substances had
plied in the schools. Rather, he determined that
Talon was one of the substances that Anderson had
available for use in the school district. Faced with the
1 The —— was initially dismissed pursuant to Fed. R. Civ.
P. 44) for failure to serve process within 120 days. The complaint
was refiled approximately one year later, and subsequently amended.
This latest version io the aulject of this aupedl
2 Alan Lorentzen’s claim was for loss of consortium.
Sa
Nos. 94-1687 & 94-2593
sworn statements of Anderson that Talon-G had not been
applied, Carlson refused to immediately dismiss ICI from
the case, instead subjecting it to two years of needless
discovery before voluntarily dismissing the company from
the case.
The circumstances with Honeywell were not much dif-
ferent. Carlson relied entirely on his client’s assertion that
Honeywell was responsible for ventilation problems at one
of the schools without conducting any independent investi-
gation. Instead, Carlson relied on discovery to ascertain
whether Honeywell properly belonged in the suit. When
pressed to produce information and documents tying Honey-
well to any alleged ventilation problems at the school,
Carlson finally admitted that he had only recently reviewed
construction records for the school and that he had no
evidence to keep Honeywell in the case. After Honeywell
had expended considerable resources defending itself against
the baseless charges, Carlson voluntarily dismissed the
company from the case.
Both ICI and Honeywell asked the court to sanction Carl-
son pursuant to Fed. R. Civ. P. 11 and 28 U.S.C. § 1927.
They maintained that Carlson had failed to conduct an
adequate pre-filing investigation and then had’ continued
to pursue the baseless litigation in the face of clear evi-
dence that neither Honeywell nor ICI had injured his
clients. After the motions were fully briefed, the district
court referred them to a magistrate-judge. On March
28, 1991, the magistrate-judge issued a detailed Report
and Recommendation, recommending that the motions for
sanctions pursuant to Rule 11 and 28 U.S.C. § 1927 be
granted. The magistrate-judge found that costs and attor-
ney’s fees would be an appropriate sanction against Carl-
son, and that he not be allowed to recoup the sanction
from his clients. The Report and Recommendation explained |
that written objections, if any, were to be filed with the
district court within ten days, pursuant to Fed. R. Civ.
P. 72(b), and that failure to object would constitute a
waiver of objection on appeal.
Nos. 94-1687 & 94-2593
Instead of filing objections with the district court,
Carlson filed a motion with the magistrate-judge to vacate
the Report and Recommendation. The ——
. denied’ the motion to vacate, and six weeks
filed a “Motion for a Ruling” in the district court, whch
was also denied. After adopting the Report and Recom-
mendation without objection, the district court ordered
ICI and Honeywell to file fee petitions. Carison was given
an opportunity to respond to these fee petitions, but
focused his argument on the order imposing sanctions
rather than on the amount of the fee requested. The magis-
trate-ju recommended that the petitions of ICI and
Honeywell be granted in their entirety, explaining that
in light of the amount of time necessary to defend agai
the less charges, the fees sought were reasonable. The
magistrate-judge also determined that nothing less than
a substantial monetary sanction would deter Carlson from
similar conduct in the future.
This time, Carlson filed an objection to the Report and
Recommendation with the district court. On March 3,
1993, the district court adopted the second Report and
Recommendation, ordering Carlson to pay $74,499.61 to
ICI and $71,420.70 to Honeywell. Carlson filed a motion
to vacate that order, but after briefing and argument, the
district court denied his motion. Shortly thereafter, seek-
ing to confirm the entry of final judgement, both ICI and
Honeywell ~— motions for final judgment pursuant to
Fed. R. Civ. P. 54(b). The district court denied these
motions, and Carlson then filed his own motion for Rule
11 sanctions, arguing that the Rule 54 motions of ICI and
Honeywell were baseless. After briefing and argument,
the district court denied Carlson’s motion for sanctions.
Undeterred, Carlson filed a second motion for sanctions,
this time contending that ICI and Honeywell had made
false statements during the oral argument on Carlson’s
earlier motion for sanctions. The district court denied this
motion pursuant to Local General Rule 12(1), which allows
the court to dismiss motions sua for failure to pros- —
ecute. In this appeal, Carlson enges the order impos-
7a
Nos. 94-1687 & 94-2593
ing sanctions against him, as well as the orders denying
sanctions against ICI and Honeywell.
II. DISCUSSION
Failure to file objections with the district court to a
magistrate’s report and recommendation waives the right
to appeal all issues addressed in the recommendation, both
factual and legal. Egert v. Connecticut General Life Ins.
Co., 900 F.2d 1032, 1089 (7th Cir. 1990). In Egert, the
same magistrate-judge had issued the same warning she
issued here: that written objections to any finding of fact,
conclusion of law or recommendation must be filed with
the district court within ten days or such objections will
be waived on appeal. We held that the failure of the
defendant to h that warning constituted a waiver of
the defendant’s right to have this court review the
magistrate’s findings, and we therefore declined to do so.
Id. Because Carlson failed to object before the district
court to the magistrate-judge’s recommendation that sanc-
tions be imposed, we will not review the district court’s
decision to adopt that recommendation and to sanction
Carlson. Furthermore, the district court imposed its sanc-
tion under both Rule 11 and 28 U.S.C. § 1927 and Carlson
failed to challenge the imposition of sanctions under sec-
tion 1927. Thus, the section 1927 award supplies an addi-
tional, independent bzsis for upholding the decision of the
district court. We affvm, therefore, the imposition of sanc-
tions against Carlson.
_ Carlson did timely object to the second Report and
Recommendation which addressed the amount of sanctions
to be imposed, and therefore preserved that issue for
review by this court. We review the district court’s order
setting sanctions for abuse of discretion. Cooter & Gell
v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447,
2461, 110 L.Ed.2d 359 (1990). “Generally, an abuse of dis-
cretion only occurs where no reasonable person could take
the view adopted by the trial court. If reasonable persons
could differ, no abuse of discretion can be found.” Durr
8a
Nos. 94-1687 & 94-2593
v. Intercounty Title C. of Illinois, 14 F.3d 1183, 1187 (7th
Cir. 1994) (quoting Harrington v. DeVito, 656 F.2d 264,
269 (7th Cir 1981)). Rule 11 a rmits an award of those
expenses directly caused by a less filing, including at-
torneys’ fees in defending against the filing. Jd.
The magistrate-judge’s Report and Recommendation, fully
adopted by the district court, reflects careful considera-
tion of the detailed billing records submitted by ICI and
Honeywell. Having supervised the discovery that accounted
-for the bulk of the fees in question, the magistrate-judge
was in the best position to know whether the fees sought
were reasonable. Based on her experience with the litiga-
tion, she held that the fees were reasonable and that only
a substantial monetary sanction would deter Carlson from
engaging in similar conduct in the future. This court’s re-
view of the record reveals that the holdings of the district
court are well founded in fact and law.
Against this background, Carlson offers nearly unintelligi-
ble statements regarding the legal standards for setting
fees. While some of these assertions may be correct state-
ments of the law in the abstract, Carlson does not apply
them to the facts before us. Carlson offers no specific ex-
amples of excessive fees or vague billing records. In fact,
he makes no cogent argument at all. The district court
did not abuse its discretion in setting the amount of the
sanction equal to the fees and costs reasonably incurred
by ICI and Honeywell in defending this baseless action.
We therefore affirm the amount of the sanctions imposed
upon Carlson.
Similarly, the district court did not abuse its discretion
in denying Carlson’s motions for sanctions against ICI and
Honeywell for filing the joint Rule 54(b) motion and for
allegedly making misrepresentations in open court. The
district court denied the motion seeking sanctions for the
alleged misrepresentation for failure to prosecute the mo-
tion. Local General Rule 12(1) provides that where a mov-
ing party delivers a motion for which no date of present-
ment is set and fails to serve notice of presentment within
9a
Nos. 94-1687 & 94-2593
ten days of delivering the copy of the motion to the court,
the court may on its own.initiative deny the motion. That
is exactly what happened here. Carlson argues that he
failed to notice up the motion because he did not have
a transcript of the hearing where the alleged misrepresen-
tations were made. But Carlson’s apparent inability to ob-
tain a transcript has no bearing on his ability to notice
up the motion. The court was well within its discretion
to dismiss the motion for failure to prosecute.
Moreover, the court was within its discretion when it
denied the motion for sanctions for filing the allegedly
baseless Rule 54(b) motions. In what had become a case
unto itself involving sanctions and attorney’s fees, the
joint Rule 54(b) motion was made for the proper purpose
of putting an end to the baseless litigation, and not to
harass, delay or cause unnecessary expense. Indeed, the
record reveals that ICI and Honeywell were more than
anxious to put an end to the litigation and at no time
sought to needlessly protract it. Therefore, the district
court did not abuse its discretion in refusing. to impose
sanctions on the basis of the joint Rule 54(b) motion. We
affirm the district court’s rulings denying sanctions against
ICI and Honeywell.
III. RULE 38 SANCTIONS
Unfortunately, our affirmance does not conclude this
sorry proceeding, and there is one more issue we must
address. Both ICI and Honeywell have moved on appeal
for sanctions against Carlson pursuant to Fed. R. App.
-P. 38. The imposition of sanctions pursuant to Rule 38
involves a two-step inquiry. First we must decide whether
the appeal is, in fact, frivolous. If so, we must determine
whether sanctions are appropriate in this case. Perry v.
Pogemiller, 16 F.3d 188, 189 (7th Cir. 1993). An appeal
is frivolous “ ‘when the result is obvious or when the ap-
pellant’s arguments are wholly without merit.’ ” Ashkin -
v. Time Warner Cable Corp., 52 F.3d 140, 146 (7th Cir.
1995) (quoting Flaherty v. Gas Research Inst., 31 F.3d
10a
Nos. 94-1687 & 94-2593
451, 459 (7th Cir. 1994)). We at times have also required
some evidence of bad faith before finding that sanctions
should be imposed. Flaherty v. Gas Research Inst., 31
F.3d 451, 459 (7th Cir. 1994).
Carlson’s appeal borders on the frivolous. He presents
no argument sufficient to overcome the difficult abuse of
discretion standard which applied in this case. Moreover,
the defendants faced a daunting and unenviable challenge
in responding to Carlson’s rambling fifty page brief in
which some cognizable argument may have lurked. Never-
theless, we think Carlson did not appeal in bad faith; his —
judgment was simply poor. We do not condone the slip-
shod manner in which he has litigated this case, including
this appeal. But given the severity of the sanctions im-
posed below, no useful “x” would be served in fur-
ther sanctioning Carlson. We therefore exercise our dis-
cretion not to impose further sanctions, and the motions
for sanctions pursuant to Rule 38 are denied.
AFFIRMED.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA AOTXXXC-92-001—Midwest Law Printing Co., Inc., Chicago—8-28-95
lla
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KRISTINA KRUSE LORENTZEN and
ALAN LORENTZEN,
Plaintiffs,
)
)
)
)
v. ) No. 87 C7275
HONEYWELL HEATING, a division of _)
MINNESOTA, MINING and _ )
MANUFACTURING, a Minnesota Corp., )
et al., )
)
Defendants.
REPORT AND RECOMMENDATION
of Magistrate Elaine E. Bucklo
Plaintiffs Kristina and Alan Lorentzen filed this diversity
motion on August 18, 1987. The “ction alleges that Kristina
suffered personal injuries while teaching at Neubert
Elementary School in Algonquin, Illinois due to chemicals
used by an exterminating company and improper installation
of a heating and ventilating system. The caption of the
- complaint names Tessendorf Constructors and Tessendorf
Service Corporation as two of the defendants. Notably, they
are not named in the body of the complaint although relief is
sought against them and it may be assumed from paragraph
5 of the complaint that they are charged with having some
part in the design, installation or maintenance of the school
ventilating system.
12a
The named Tessendorf corporations were apparently not
the Tessendorf corporation that did work at Neubert School.
Their lawyer, upon learning of the lawsuit after a newspaper
reporter contacted the defendants, called plaintiff's attorney
Dennis Carlson and informed him he had the wrong party.
Carlson offered to dismiss the case against the Tessendorf
corporation if their lawyer would send a letter stating what
he had said in writing. The Tessendorfs’ lawyer, Boyd Gates,
refused this offer. Instead he filed a motion for sanctions
under Rule 11 Fed.R.Civ.P., on August 24, 1987. The
- motion was supported by an affidavit.
At the initial hearing on the motion, plaintiffs voluntarily
dismissed the case against the named Tessendorf defendants.
Defendants refused to withdraw their motion for sanctions,
however. That motion was referred to me. I held a hearing
on the motion on December 9, 1987.
The two Tessendorf corporations sued by the plaintiffs are
owned at least in part by the same person, Ronald
Tessendorf. |The actual Tessendorf corporation that
performed work at Neubert School is owned by another
member of the Tessendorf family but the corporations are
unrelated. All of these various Tessendorf corporations are
located in the same general area.
Plaintiffs had made an attempt to learn the identity of
defendants. Kristina Lorentzen was told by the school janitor
that Tessendorf Constructors had worked on the ventilating
system at the school. She thereafter wrote a leter (sic) to
Tessendorf Constructors, on June 11, 1987, stating her belief
that the company had done work at Neubert School and
demanding copies of its maintenance and repair records for
the school. The company did not respond to plaintiff's letter
and did not inform her that it had not done work at the
school. Instead, believing she was a “crack-pot,” according
to Mr. Boyd, the company forwarded the letter to Tessendorf
Mechanical Industries, the actual corporation that worked at
the school.
Kristina also attempted prior to the institution of this suit
to obtain relevant records from Neubert School. She was
refused access to these records by letter dated July 10, 1987.
Defendants say plaintiffs or their attorney could have done
more. They point out that plaintiffs letter to Tessendorf
Constructors was not particularly, polite and assumed (rather
than asked) that the company had done work at the school.
Nevertheless, the company did not inform plaintiff of the
correct name of the corporation involved although it knew
she had incorrect information and surely knew that it would
be relatively easy to make a mistake of this nature with three
or four corporations with simila: names located in the same
area.
Under the circumstances, I do not think plaintiffs
violated Rule 11 with respect to Tesssendorf Constructors.
Rule 11 requires “some prefilinz inquiry into both the facts
and the law to satisfy the affirtnative duty imposed by the
tule. The standard is one of reasonableness under the
- circumstances.” Michigan, national Bank v. Krozer Company,
629 F.Supp. 1149 (E.D. Mich. 1985). It does not, however,
make either litigants or their attorney guarantors of the
correctness of their allegations: Here, some inquiry was
made, defendants are partly to blame for the mistake, and
plaintiffs were unsuccessful in their efforts to learn more. In.
addition, as soon as they learned their mistake, they corrected
Y
l4a
it. They offered to do so without defendants’ attorney ever
having to come to court if he would simply confirm what he
said over the telephone in writing.
These reasons do not provide a justification for naming
Tessendorf Service Corp. as a defendant. Plaintiffs say they
learned Ronald Tessendorf was a corporate official of both
Tessendorf corporations named in the complaint and sued
both to avoid statute of limitations problems if the wrong one
was sued. That is not enough reason for suit against
Tessendorf Service Corp. but since defendants have not
attempted to separate the two defendants, I see no reason to
do so. In addition, there is authority to support plaintiffs’
argument that Rule 11 was not intended to punish a mistake
that is quickly corrected. As in Baransky v. Serhant, 106
F.R.D. 247 (N.D. Ill. 1985), I agree that sanctions should
not be imposed where plaintiffs acted so quickly to correct
their error and defendant's attorney refused unreasonably to
provide plaintiffs’ attorney with a simple statement in writing
prior to filing their motion.
Defendant's real complaint, and the reason their attorney
did not comply with Mr. Carlson’s reasonable request to send
a letter, is that a local newspaper published a story about the
filing of the lawsuit and the story named the Tessendorf
corporations as defendants. If plaintiffs or Carlson talked to
the newspaper and said anything defamatory, they of course
can be sued for defamation. Defendants cannot recover
under Rule 11, however, for liable or slander in a newspaper
article and the fact that the newspaper reported the
15a
allegations of the complaint does not change this fact./
I recommend that the motion for sanctions be denied.
“s/Elaine E. Bucklo”
ELAINE E. BUCKLO
United States Magistrate
Dated: January 4, 1988
Written objections to any finding of fact, conclusion of law,
or the recommendation for disposition of this matter must be
filed with the Honorable Brian Barnette Duff within ten(10)
days after service of this Report and Recommendation. See
Fed.R.Civ.P. 72(b). Failure to object will constitute a waiver
of objections on appeal.
Copies have been mailed to:
DENNIS E. CARLSON BOYD L. GATES
330 West Washington Street 25 North Western Avenue
Suite 708 Carpentersville, IL 60110
Chicago, IL 60606
Attorreys for Plaintiffs Attorneys for Defendants
’ The newspaper may have made an assumption from the
complaint. As noted earlier, the complaint itself does not
actually say what the Tessendorf corporations allegedly did.
As such, it was poor pleading but less damaging to the
defendants.
16a
APPENDIX C
Minute order form (rev 3/88e)
UNITED STATED DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS,
EASTERN DIVISION
Assigned Judge Brian Barnette Duff “
Case Number 88 C 7142 Date July 13, 1989
Case Kristina Kruse Lorentzen v. Anderson Pest Control
Title
DOCKET ENTRY:
(1) Judgment is entered as follows :
(2) v {Other docket entry].
Plaintiffs’ motion to spread or record plaintiffs’ contentions in
opposition to Anderson's motion to strike, etc., is stricken,
without prejudice, for the reasons stated in open court.
Defendant Anderson Pest Control's oral motion to dismiss it
for want of prosecution is granted. Plaintiff's oral motion to
dismiss Honeywell, Incorporated is granted. Defendants
given to July 17, 1989 to file memorandum in support of the
joint motion to dismiss.
5 _ _ Answer brief to motion due 14 Aug 89
Reply to answer brief due 28 Aug 89
12 _v_ No notices required
RECEIVED FOR DOCKETING 89 JUL 14 AM 7:55
Document # 273
bi nereeeeneeenenenteeninenteeemmnenmeentmnememeisitiitliitel
17a
Minute order form (rev 3/88e)
UNITED STATED DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS,
EASTERN DIVISION
Assigned Judge Brian Barnette Duff
Case Number 88 C 7142 Date July 27, 1989
Case Kristina Kruse Lorentzen and Alan Lorentzen v.
Title Anderson Pest Control, et al.
MOTION:
a) ICI Americas Inc.
(b) Motion to Enter Stipulation to Dismiss
DOCKET ENTRY:
(1) Judg nent is entered as follows :
(2) _v [Other docket entry]
Pursuant to stipulation, defendant ICI Americas Inc., is
dismissed, with prejudice, pursuant to Rule 41(a)(2)
12 _v_ Docketing to mail notices
RECEIVED FOR DOCKETING 89 JUL 28 AM 8:05
18a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KRISTINA KRUSE LORENTZEN and) “
ALAN LORENTZEN, )
Plaintiffs, )
)
v. ) No. 89 C 7142
) JUDGE GEORGE
ANDERSON PEST CONTROL, et al., ) W. LINDBERG
)
Defendants. )
MEMORANDUM OPINION AND ORDER
Plaintiffs have recently filed two motions and five
objections to orders and reports and recommendations of the
magistrate in this case. In addition, there are several motions
for summary judgment and motions for sanctions pursuant to
Federal Rule of Civil Procedure 11 pending. The court will
now rule on the recent motions and objections and on the
motions for summary judgment.
The motions and objections pending may be broken down
into four categories for purposes of discussion. First, there
are those motions and objections relating to the magistrate’s
recommendation that the court dismiss this case with
prejudice. Those motions and objections are plaintiffs’ (1)
objections to the September 14, 1990, report and
recommendation of the magistrate that this case be dismissed;
(2) motions filed October 15, 1990, for leave to file a reply
19a
to defendant's response to plaintiff's objections to the report
and recommendation of the magistrate of September 14,
1990; (3) motion filed September 21, 1990, “to file a
response to defendant HYSAN’s Motion to Dismiss and to
file a response and/or objections to magistrate Bucklo’s
recommendation thereon;” and (4) objections to the
magistrate’s order of September 18, 1990. Second, there are
the motions for summary judgment. Third, there are those
objections pertaining to orders of the magistrate regarding
fees of various sorts. Those objections are plaintiffs (1)
objections to the September 14, 1990, order of the magistrate
reducing the fees to be paid to experts retained by
defendants; (2) objections to the magistrate’s order of
September 17, 1990, regarding witness fees; and (3)
objections to the magistrate’s decision of October 9, 1990,
regarding fees. Fourth, there are the motions for sanctions
pursuant to Rule 11. FRCP11. These categories will be
discussed in turn.
The first category of pending motions and objections
concern the magistrate’s recommendation that this case be
dismissed. The two motions will be considered first.
The first of these motions request that this court “grant
leave to file a sesponse to defendant HYSAN’s Motion to
Dismiss and to file a response and/or objections to Magistrate
Bucklo’s recommendation thereon for the reason that matters
were argued that were not contained in the motion ruled on,
the motion was not received until the Friday before the
Monday hearing held thereon, and the Magistrate’s opinion
contains erroneous and /or unfounded conclusions.” To the
extent that the motion requests leave to file a response to the
motion to dismiss, it was properly within the scope of the
referral of the motion to dismiss to the magistrate and
20a
belonged before her. Apparently this motion or a similar
motion was brought before the magistrate, and her report and
recommendation of September 18, 1990, contains her ruling
on it. Leave will not be granted to file a response to the
magistrate’s recommendation of dismissal. The proper
procedure is to make objections to the report and
recommendation of the magistrate. 28 U.S.C. § 636(b)(1)(B);
FRCP 72(b). Plaintiffs filed their Objections and Arguments
in Response to Magistrate’s Recommendation to Dismiss on
September 24, 1990,
[page 2]
[T]here is no basis for the claim beyond the magistrate’s
ordering of new affidavits, which need not have been done
due to a belief that she was being lied to in the first ones.
Also, plaintiffs offer no legally sufficient reason for striking
all defendants’ motions for false statements of fact made by
fewer than all of them. The magistrate was obviously
unpersuaded by this argument, as she did not strike the
motions of any defendants or mention in her order that she
believed they had lied.
Finally, a great deal of the argument made by plaintiffs is
directed, both specifically and generally, at claimed defects
in the affidavits submitted by defense counsel. As plaintiffs
have not supplied copies of those documents, it is impossible
for the court to ascertain the accuracy of plaintiff's claims.
Plaintiffs have therefore failed to establish that the
magistrate’s order of October 9, 1990, was clearly erroneous
or contrary to law. Their objections to that order will be
overruled.
21a
The fourth and final category of motion to be resolved by
this opinion are the pending motions for sanctions pursuant
to rule 11 of the Federal Rules of Civil Procedure. FRCP
11. This category brings to the attention of the court a
potentially broader problem. Because of the procedural
chaos of this case, it is difficult to ascertain exactly what
motions remain pending.
The court will therefore order all parties who have pending
motions, whether or not referred to the magistrate, to file
status reports on their pending motions. This will apply to
all pending motions, whether or not they are motions for
sanctions. The status reports will identify the nature of the
motion; when it was filed; what, if any, memoranda were
filed in support of or opposition to the motion; and when it
was fully briefed and ready for a decision. [f there are any
unresolved objections to magistrate’s
[page 31]
orders or reports and recommendations, they should be
treated like motions for the purposes of these status reports.
Any motion or objection which is not listed cn a status report
filed by the due date shall be deemed abandoned and will be
subject to being dismissed for want of prosecution. After the
due date for the receipt of the status reports the court will
determine which, if any, of the motions to refer to the
magistrate.
ORDERED: Plaintiff's motion filed September 21, 1990
is denied. Plaintiffs motion filed October 15, 1990, for leave
to file a reply to defendants’ response to the objections to the
magistrate’s recommendations to dismiss is denied.
22a
The magistrate’s recommendations of September 14, 1990,
regarding dismissal of this action are accepted in whole,
defendant Hysan‘s motion to dismiss joined in by the other
defendants is granted, and this case is dismissed with
prejudice.
The objections to the magistrate’s order of September 18,
1990 are overruled.
All pending motions for summary judgment are denied as
moot.
Plaintiff's objections to the September 14, 1990, order of
the magistrate reducing the fees to be paid to experts retained
by defendants are overruled.
Plaintiff's objections to the September 17, 1990, order of
the magistrate granting in part defendant’s motion to
reconsider her order of July 3, 1990, respecting expert fees
are overruled.
The motion for leave to file pleadings responsive to the
magistrate’s order of October 9, 1990, is denied. Plaintiff's
objections to the magistrate’s order of October 9, 1990,
determining the amount of the sanction to be imposed for
plaintiffs violation of the court's order of February 5, 1990,
are overruled.
All parties who have pending motions, whether or not
referred to the magistrate, shall file status reports on their
pending motions on or before January 15, 1991. The
[page 32]
23a
status reports shall identify the nature of the motion; when it
was filed; what, if any, memoranda were filed in support of
or opposition to the motion; and when it was fully briefed
and ready for a decision. If there are any unresolved
objections to magistrate’s orders or reports and
recommendations, they shall be treated like motions for
purposes of these status reports. Any motion or objection
which is not listed on a status report filed by the due date
shall be deemed abandoned and will be subject to being
dismissed for want of prosecution.
“s/George W. Lindberg”
George W. Lindberg
United States District Judge
Date Dec 13 (990
[page 33]
24a
Minute order form (rev.3/88e)
UNITED STATED DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS,
EASTERN DIVISION
Assigned Judge Judge Lindberg
- Case Number 88 C 7142 Date December 13, 1990
Case Kristina Kruse Lorentzen and Alan Lorentzen v.
Title Anderson Pest Control, et al.
MOTION:
(a) ICI Americas Inc.
(b) Motion to Enter Stipulation to Dismiss
DOCKET ENTRY:
(1) _x Judgment is entered as follows :
(2) [Other docket entry]
Enter Memorandum Opinion and Order: Defendant Hysan’s
motion to dismiss joined in by other defendants is granted,
and case is hereby dismissed with prejudice. See opinion for
further rulings on other pending matters. All parties who
have additional pending motions shall file a status report on
or before January 15, 1991 any motions or objections not
listed shall be deemed abandoned and subject to dismissal for
want of prosecution.
12 _x_ Docketing to mail notices
x mail AO 450 form
25a
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KRISTINA KRUSE LORENTZEN and )
ALAN LORENTZEN, )
Plaintiffs, )
)
No. 89 C 7142
)
)
ANDERSON PEST CONTROL, et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Kristina Kruse Lorentzen and Alan Lorentzen filed suit
against Anderson Pest Control, Whitmire Research
Laboratories, Inc., The Dow Chemical Co., Nor-Am
Chemical, Inc., ICI Americas, Master, Pennwalt Corporation,
Hysan Corporation, Bell Laboratories, Inc. and Tessendorf
Mechanical Industries, Inc. seeking damages for physical
injuries Mrs. Lorentzen allegedly suffered when she was
exposed to certain chemicals at two schools in the Chicago
~ Community School District 300 (“district 300”) where she
taught. Mrs. Lorentzen alleged that this exposure was caused
at least in part by an inadequate heating, ventilation and air
conditioning system ("H.V.A.C”) in the Neubert School.
The original complaint (naming all of the above
defendants) was filed on August 18, 1987 as Case No. 87 C ~
7275. An amended complaint was filed on August 24, 1987
26a
and a second amended complaint was filed on May 8, 1988,
which was dismissed by Judge Duff on June 17, 1988,
pursuant to Fed.R.Civ.P. 4(j). See Lorentzen v. Honeywell
Heating, Div. of Minnesota Mining & Mfg., 120 F.R.D. 681
(N.D. Ill. 1988). The entire proceeding relating to Case No.
87 C 775 will be referred to as Lorentzen I.
On August 27, 1988, plaintiffs refiled their claims (which
were identical to those in the second amended complaint) and
were assigned Case No. 88 C 7142 ("Lorentzen II").
- Plaintiffs amended that complaint on December 16, 1988.
After the amended complaint was filed, extensive discovery
commenced. As discovery continued, plaintiffs voluntarily
dismissed two defendants, Honeywell, Inc. (“Honeywell”) and
ICI Americas, Inc. ("ICI"), pursuant to Fed.R.Civ.P. 41(a).
Final judgments were entered in favor of ICI and Honeywell
on August 10, 1989 and August 3, 1989, respectively. After
dismissal, ICI and Honeywell moved for sanctions pursuant
to Fed.R.Civ.P. 11 and 28 U.S.C.§ 1927 against plaintiff's
attorney, Dennis E. Carlson.' Those motions were referred to
me and I recommend that they be granted.
' Honeywell also seeks sanctions against plaintiffs conclude,
however, that the violations in this case are characterized by
Judge Schwarzer, “Sanctions Under the New Federal Rule
ll-a Closer Look,” 104 F.R.D. 181, 203 “primarily
professional dereliction” since plaintiffs cannot be expected
to know the requirements of pleading or of Rule 11.
Accordingly, I recommend that sanctions be imposed solely
on their attorney, Dennis Carlson, and that he not be allowed
to seek reimbursement from his clients for these amounts.
27a
Rule 11
A party is subject to Rule 11 sanctions when its pleading,
motion or other paper is
not well grounded in fact [or] warranted by
existing law or a good faith argument for the
extension, modification or reversal of existing
law, [or] it is . .. interposed for any
improper purpose, such as to harass or to
cause unnecessary delay or needless increase
in the cost of litigation.
Fed.R.Civ.P. 11; In re Ronco, Inc.,838 F. 2d 212, 217 (7th
Cir. 1988) (brackets in original). The court must employ an
objectively reasonable view of the law and facts and if it is
not, “the lawyer or party proceeding recklessly must foot the
bill.” Id.
Both ICI and Honeywell contend that Mr. Carlson failed
to conduct a proper pre-filing investigation which would have
shown that plaintiffs were without a factual basis to name ICI
and Honeywell as defendants. Rule 11 imposes a duty upon
attorneys to conduct a reasonable independent investigation
before filing suit. Fred A Smith Lumber Co. v. Edidin 845
' F, 2d 750, 751 (7th Cir. 1988); Autotech Corp. v. NSD
Corp., 125 F.R.D. 464, 469 (N.D. Ill. 1989). See also Brandt
v. Schal Associates, Inc., 121 F.R.D. 358, 385 (N.D. Il.
1988) (“In the run-of-the-mill reasonable investigation case,
the attorne\’ says, ‘my client told me x.’ At that point the
issue becomes whether the attorney performed an adequate
pre-filing investigation to determine whether his or her >
client's story was supported.”)
28a
The purpose of this timing requirement is
obvious: counsel should not be permitted - -
without reasonable investigation - - to file
pleadings, motions, or other papers, and the,
only if challenged (and after imposing
substantial costs on the opposing party), be
allowed to scramble to find facts and taw
justifying his original filing.
Phoenix Airway Inn Associates v. Essex Financial Services,
' Inc., 741 F.Supp. 734, 735 (N.D. Ill. 1990). The Seventh
Circuit has established several factors which should be
considered when assessing the reasonableness of a pre-filing
inquiry. These include whether the attorney had sufficient
time to investigate the claims; the extent to which the
attorney had to rely on the client for the factual foundation
of the pleading; whether the case was accepted from another
attorney; the complexity of the facts; and whether discovery
would have been beneficial to the development of the
underlying facts. Brown v. Federation of State Medical
Boards of the United States, 830 F.2d 1492, 1435 (7th Cir.
1987). The probability that more investigation would turn up
important evidence is also a factor to consider. Lebovitz v.
Miller, supra, 856 F. 2d at 905.
Here, however, Mr. Carlson admits that he relied on the
Lorentzens’ representations as a factual basis of the
complaint, but Mr. Carlson had ample time to investigate
before the original filing of Lorentzen I]. Indeed, between
that time and the filing of Lorentzen I] he could have (and
should have) continued his investigation of the claims.
In support of its motion, Honeywell refers to the
deposition testimony of Kristina Lorentzen, taken shortly
29a
before her counsel's decision to move for dismissal, in which
she admitted that she had no information as to whether
Honeywell did anything in regard to the construction of the
Neubert School (Dep. June 2 1989, pp. 1795-96).’
In response to Honeywell's motion, Mr. Carlson states that
he believed prior to filing that some Honeywell product may
have been used in the H.V.A.C. system at Neubert School
based on the fact that a thermostat in the school bore the
Honeywell name.’ In addition, that Mrs. Lorentzen testified
that she attempted to gain as much information under the
Freedom of Information Act and form her employer as she
was able from potential defendants and District 300.
In any event, the record is devoid of any evidence that Mr.
Carlson attempted to substantiate any of the information
which Mrs. Lorentzen supplied to him prior to naming
Honeywell as a defendant. Yet, the amended complaint
? Mrs Lorentzen was also asked whether any Honeywell
component part contributed to her injuries, but her counsel
refused to allow her to answer, Dep., June 2, 1989 at 1795.
Despite repeated court orders, plaintiffs never answered
Honeywell's interrogatories seeking information about the
plaintiffs’ claim against Honeywell.
. > Mr. Carlson contends that the only reason he dismissed
Honeywell was becausé the discovery burden was too
onerous. I find this contention implausible. Mr. Carlson
filed his motion for voluntary dismissal shortly after he
received the Neubert School construction records pursuant to
his July 5, 1989 subpoena. Notably, he did not seek these
records until almost two years after he filed his original -
complaint naming Honeywell as a defendant.
30a
alleges that Honeywell designed, installed or maintained the
H.V.A.C. system and that it was insufficient in properly
ventilating chemicals from the school. Mr Carlson relied
upon discovery to ferret out whether Honeywell was
legitimately involved in this suit. Such conduct is improper.
See Phoenix Airway Inn vy. Essex Financial Services, Inc.,
741 F. Supp. at 736. While Mr. Carlson may have suspected
that Honeywell was somehow liable he should have either
waited to file the complaint so that could conduct some
investigation or filed it without naming Honeywell and,
* should his hunch have proved right, sought leave to amend
the complaint and add Honeywell as a defendant. Valve &
Primer Corp. v. Val-matic Vale & Mfg. Corp., No. 87 C
8726, 1990 U.S. Dist. LEXIS 11173 (ND. Ill. 1990).
The pre-filing investigation (or lack thereof) relating to ICI
tells a similar story. According to Mr. Carlson, ICI was
named as a defendant because one of its chemicals, Talon-G,*
vento use in District 300 buildings and which could have
_caused some of the symptoms Mrs. Lorentzen was
experiencing. Instead of attempting to discover which of
wamagy those chemicals were in fact used at the schools, Mr. Carlson
aang @ecided to name all of the manufacturers on the list whose
chemicals could create symptoms of a type Mrs. Lorentzen
experienced as defendants and see what transpired during
discovery.
* The Parties agree that Talon-G was the only product
manufactured by ICI at issue here.
I —
3la
Anderson stated in response to discovery requests, that it
did not use Talon-G at the Neubert School.’ Mr. Carlson
later admitted that he and his clients had no knowledge of
any person having seen the application of Talon-G or other
pesticides at the Neubert School.
As with Honeywell, Mr. Carlson could not, consistently
with the requirements of Rule 11, name ICI as a defendant
on the basis that it might have manufactured a chemical that
he thought might have caused Mrs. Lorentzen’‘s symptoms
and hope through discovery to find evidence to substantiate
the possibility.
I recommend that Honeywell's and ICI’s motion be granted
and that fees and costs be assessed against Mr. Carlson.
Section 1927
Section 1927 imposes personal liability upon an attorney
for unreasonably and vexatiously multiplying proceedings 28
U.S.C. § 1927; Ordower v. Feldman, 826 F. 2d 1569, 1574
(7th Cir. 1987);
If a lawyer pursues a path ‘hat a reasonably
careful attorney would have known, after
appropriate inquiry, to be unsound, the
* Instead of moving to dismiss his complaint against ICI
following this discovery, plaintiffs’ attorney opposed ICI's
motion for summary judgment, despite his lack of contrary
evidence. He finally voluntarily dismissed his claim against
ICI in August of 1989.
32a
conduct is objectively unreasonable and
vexatious. . . A lawyer's reckless indifference
to the law may impose substantial costs on the
adverse party. Section 1927 permits a court
to insist that the attorney bear the cost of his
own lack of care.
Id. citing In re TCI, Ltd., 769 F. 2d 441, 445 (7th Cir. 1985).
By failing to conduct any pre-filing investigation, Mr.
~Carlson acted unreasonably and vexatiously and violated
Section 1927. Mr. Carlson is therefore liable for ICI”s and
Honeywell's attorneys’ fees and costs incurred in Lorentzen
I and Lorentzen II.
Conclusion
Accordingly, I recommend that Honeywell's and ICI's
motions for sanctions against attorney Dennis Carlson
pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § be granted.
“s/Elaine E. Bucklo
Elaine E. Bucklo
United States Magistrate Judge
Dated: March 28, 1991
33a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KRISTINA KRUSE LORENTZEN and)
ALAN LORENTZEN, )
Plaintiffs, )
)
No. 89 C 7142
)
)
ANDERSON PEST CONTROL, et al., )
: )
)
Defendants.
REPORT AND RECOMMENDATION
In an order dated October 17, 1991, the district court
granted motions by ICI Americas, Inc. (“ICI”) and
Honeywell, Inc. (“Honeywell”) seeking sanctions against
attorney Dennis Carlson pursuant to Rule 11, Fed.R.Civ.P.
and 28 U.S.C. § 1927. ICI has filed a petition seeking
$65,278.75 in fees and $9,220.86 in costs for a total of
$74,499.61 in fees and costs. Honeywell's petition seeks
$63,197.50 in fees and $8,223.20 for a total of $71,420.70.
I presided over discovery in this case and am aware of the
amount of time required to be spent by attorneys in the case.
With respect to that time, the fees sought are reasonable.
Attorney Carlson makes only a perfunctory objection that
the amount of fees sought is unreasonable,’ and indeed notes
that his own (or his clients’) costs in the Litigation were ~
34a
between $50,000 and $60,000. He argues that fees should
not be imposed because the underlying conduct was not
sanctionable but that issue has been decided against him. He
also argues that the amount requested exceeds his income for
1990, that “at this time he has no funds to pay any sanction”
and that a sanction in the amount requested would impose a
hardship on him. ICI and Honeywell note, however, that Mr.
Carlson does not disclose his income for 1991 or 1989, or his
assets. The Seventh Circuit has stated, in another case in
which it upheld a sanction against similar arguments, that
- hardship “is the intent behind a sanction award imposed to
deter and punish. A sanction without teeth may lack
sufficient bite for these purposes.” Kapco Mfg. Co., Inc. v.
C & O Enterprises, Inc., 886 F. 2d 1485, 1496 (7th Cir.
1989).
Mr. Carlson’s conduct in the present case violated Rule 11
and Section 1927 to the damage of ICI and Honeywell, who
were required to engage counsel, and defend the baseless
claims brought against them. Based on my experience in
overseeing discovery in this litigation, I do not think anything
less than a substantial monetary sanction will deter Mr.
' His argument that the billing records are “cryptic,” if
meant to imply that they provide insufficient information, is
without foundation. I have reviewed the billing records and
they are sufficiently detailed. If counsel was unclear about
particular entities should have pointed those out, or asked for
further detail.
35a
Carlson from similar conduct in the future. Accordingly, |
recommend that ICI's petition for fees and costs in the
amount of $74, 499.61 and Honeywell's petition for fees and
costs in the amount of $71,420.70 be granted.
“s/Elaine E. Bucklo”
Elaine E. Bucklo
Unites States Magistrate Judge
Dated; July 10, 1992.
36a
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KRISTINA KRUSE LORENTZEN and) .
ALAN LORENTZEN, )
Plaintiffs, )
)
v. ) No. 89 C 7142
)
ANDERSON PEST CONTROL, et al., )
)
Defendants. )
ORDER
Plaintiffs’ motion to vacate or reconsider my report and
recommendation of March is denied. “Plaintiffs” (in fact
their attorney, Dennis Carlson, since I recommended
sanctions only against him) argue that they had no
opportunity to respond to the motions. That is patently
false. The motions were brought in 1989 by ICI America
and Honeywell. Plaintiffs in fact responded.' Furthermore,
the motions were referred to me on January 24, 1991. Ata
status on February 21, 1991, I told Mr. Carlson that I would
' Plaintiffs filed a 15-page response to the Honeywell motion
on October 11, 1989. On November 11, 1989, Judge Duff
ordered plaintiffs to respond to ICI’s motion by November
24, 1989. Plaintiffs’ response was filed on that date.
|
37a
not be able to rule on the motions for several weeks and
stated that if he wanted to and could show good cause why
he should be allowed to file any additional response to the
motions, I would consider any additional material.
Mr. Carlson never sought to file an additional response
prior to my decision on March 28, 1991. Mr. Carlson's
statements in his present motion that his previous responses
were simply “something” to “have on file if the court should
be inclined to consider the pending motions” and that he
believed he could at some future time file an additional
pleading thus fly in the face of the pleadings on this motion,
Judge Lindberg’s January 24, 1991 order, the status hearing
before me on February 21, 1991, and Rule 11, Fed.R.Civ.P.
Mr. Carlson’s additional arguments are also without merit.
As Mr. Carlson knows, the March 28, 1991 “order” was a
report and recommendation. As I told him in open court on
March 22, 1991, in response to his objection, in order to
alleviate any possible jurisdictional issue, I would issue all
opinions on sanctions in this case as reports and
recommendations. His renewed objection is therefore
frivolous. His last objection, that the has a right to an
evidentiary hearing, is foreclosed first, by the fact that in his
responses, he did not request an evidentiary hearing, and
second, by the fact that my recommendation of sanctions is
based on Mr. Carlson's failure to submit any evidence in
response to the motions for sanctions that would show that
he made an objectively reasonable investigation of the facts
before filing his complaints against Honeywell and ICI, and
admissions in the record by Mr. Carlson and plaintiff Kristina
Lorentzen, which I conclude demonstrates as a matter of law
that they lacked a sufficient basis for filing the complaint -
against either ICI or Honeywell. Since I did not make
38a
findings of any disputed facts, and based, as I must, my
decision that Mr. Carlson violated Rule 11 on an objective
standard, there was no need for an evidentiary hearing.
Furthermore, Mr. Carlson could not sit back and decline to
offer any evidence to show he made an objectively
reasonable investigation and then demand an evidentiary
hearing, presumably to attempt to show that he did make
such an investigation, after a recommendation of sanctions is
made.
ENTER ORDER
“s/Elaine E. Bucklo”
ELAINE E. BUCKLO
United States magistrate Judge
Dated: April 9, 1991
39a
APPENDIX G
Minute order form (rev.3/88e)
NORTHERN DISTRICT OF ILLINOIS,
EASTERN DIVISION
Assigned Judge JUDGE LINDBURG
Case Number 88 C 7142 Date October 17, 1991
Case Kristina Kruse Lorentzen and Alan Lorentzen v.
Title Anderson Pest Control, et al.
MOTION:
Defendant Honeywell, Inc. Motion for Sanctions Pursuant
to F.R.C.P. 11 and 23 U.S.C. Sec. 1987
DOCKET ENTRY:
(1) Judgment is entered as follows :
(2) _x [Other docket entry]
The Court hereby adopts the Magistrate's report and
recommendation. Petition for fees to be filed by November
22, 1991. Response due December 6, 1991. Reply due
. December 13, 1991.
12_x_ Docketing to mail notice
RECEIVED FOR DOCKETING 91 OCT 18 AM 8:28
40a
APPENDIX H
Minute Order Form (rev. 12/90)
UNITED STATED DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS,
Assigned Judge GEORGE W. LINDBURG
_ Case Number 88 C 7142 Date October 7, 1992
Case LORENTZEN ET. AL. V. ANDERSON PEST
Title CONTROL, ET AL.
MOTION:
DOCKET ENTRY:
(1) Judgment is entered as follows :
(2) _x [Other docket entry]
Order all pending motions moot
11_x_ No notices required
October 8, 1992
Document #1110
4la
APPENDIX I
Minute Order Form (rev. 12/90)
UNITED STATED DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS,
Assigned Judge George W. Lindberg
Case Number 88 C 7142 Date’ March 3, 1993
Case Lorentzen v. Anderson Pest Control, et al.
Title
MOTION:
Dennis E. Carlson's objections to Magistrate Judge’s report
and recommendation of July 10, 1992 with respect to the
petitions of defendants ICI Americas, inc. (ICI) and
Honeywell, Inc. (Honeywell) for awards of attorney's fees
and costs.
DOCKET ENTRY:
(1)___ = Judgment is entered as follows :
(2) _x__ [Other docket entry]
The court has reviewed de novo the portions of the
magistrate judge’s report and recommendation of July 10,
1992 to which plaintiff has objected. 28 USC §
636(b)(1)(B); FRCP 72(b). Plaintiffs objections are
overruled and the report and recommendation is accepted in
its entirety. ICI’s petition for fees and costs is granted and
ICI is awarded fees and costs in the amount of $74,499.61.
Honeywell's petition for fees and costs is granted and
Honeyweil is awarded fees and costs in the amount of
$71,420.70.
“s/George W. Lindberg”
RECEIVED FOR DOCKETING 93 MAR -3 5:39
_x_ Docketing to mail notices Document # 1111
42a
APPENDIX J
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KRISTINA KRUSE LORENTZEN and)
ALAN LORENTZEN, )
Plaintiffs, )
)
v. ) No. 89°C 7142
) March 15, 1994
ANDERSON PEST CONTROL, et al., ) 11:00 a.m.
)
Defendants. )
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE GEORGE W. LINDBERG
[pg 26)
THE COURT: Okay. The Cour has considered the
arguments of counsel, both orally today and in writing, and
pursuant to Federal Rules of Civil Procedure 52 and 59. The
Court is of the opinion that it had and has jurisdiction over
the question of whether to sanction Mr. Carlson. The
mooting order in October of 1992 was, as counsel has
recognized, a housekeeping order. This clerk's records were
at that time indicating in many cases, in fact scores of cases,
that
[page 27)
43a
certain motions were pending which were long since moot.
In order to make this court's records reflect that those
motions were no longer pending it was necessary to enter the
order mooting them. As the fact that the parties were not
notified of the action indicates that order was not intended to
have any effect on non-moot pending motions. Thus while
counsel for Mr. Carlson is correct that motions for sanctions
remain pending after the magistrate judge issued her report
and recommendation until this Court ruled on those motions,
he is not correct; that the mooting order decision despite its
overly broad term, in fact, obliterated those motions.
The Court also does not believe that the stipulations to
dismiss ousted this court of jurisdiction over the Rule 11
sanction matters brought against Mr. Carlson. First, Federal
Rule of Civil Procedure by its terms only permits the
dismissal of an entire action and not of an individual. That
would be of Rule 41(a)(2) - - 41(a). First, its terms only
permits dismissal of an entire action not of individual
defendants or claims.
To do so on stipulation would have required the signatures
of all parties. In this case, however, plaintiffs and these
defendants were allowed to terminate the claim against these
defendants utilizing procedure of rule 41(a).
[page 28)
The result they sought could have been achieved by an
amendment of the complaint eliminating these defendants
pursuant to Federal Rule of Civil Procedure 15(a), but that
was not done.
44a
This does not mean that these defendants were not
dismissed from the case, however, because the Rule 54(b)
findings were certainly sufficient to have that effect. It does
not mean that nothing of any finality occurred until - - I'm
sorry. It does mean that nothing of any finality occurred
until those Rule 54(b) findings were made. All of this may
not ultimately affect the outcome here. .
The stipulations did not contain any language precluding
motions of Rule 11 sanctions by the defendants. The law
~ permits the Court to consider Rule 11 sanction matters even
after final judgment in a case.
Therefore, the Court concludes that it has jurisdiction over
the Rule 11 proceedings against Mr. Carlson. Magistrate
Judge Bucklo, Judge Duff, and this judge all had the
opportunity t6 observe Mr. Carlson's handling of the case.
At one time or another all three of us experienced the
frustration of attemptirg to get him to comply with our
orders. The experience of this judge is sufficient to find that
Magistrate judge Bucklo was indeed correct, that no lesser
sanction than that imposed would serve the purpose of
(page 29)
deterring Mr. Carlson from sanctionable conduct similar to
that to which the instant sanctions were imposed.
The Court would finally note that Magistrate Judge Bucklo
had before her the submissions of defendants with regard to
the amount of sanctions to impose. Mr. Carlson at that time
had an opportunity to contest any of these defendants’ claims
for attorney fees and to place before the Court any additional
45a
material helpful to the Court in deciding on the amount of
sanctions.
on the issues of sanctions. Therefore, Dennis Carlson's
motion pursuant to Federal Rules of Civil Procedure 52 and
59 and his request that this matter be set for an evidentiary
hearing are denied.
These proceedings are concluded. Thank you , gentlemen.
CERTIFICATE
I certify the foregoing is a cornct transcript from the
record of the proceedings in the abov>-entitled case taken on
March 15, 1994.
—Si_ Therese A. Pintozzi_
Official Court Reporter Date
Minute Order Form (rev. 12/90)
UNITED STATED DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS,
Assigned Judge George W. Lindberg
Case Number 88 C 7142 Date March 25, 1994
Case Lorentzen v. Anderson Pest Control, et al.
Title
MOTION:
DOCKET ENTRY:
(1) Judgment is entered as follows :
(2) x Ss [Other docket entry]
Oral argument held on March 15, 1994 on Dennis Carlson's
motion for reconsideration of Rule 11 sanctions against
attorneys for Honeywell and ICI Americas pursuant to Rules
52(b) and 59. For reasons sated in open court Dennis
Carlson's motion for rsconsideration is denied.
11 x Docketing to mail notices
RECEIVED FOR DOCKETING 94 MAR 25 PM 4:52
11 mar 28 1994
Document #1150
lie
47a
APPENDIX K
Minute Order Form (rev. 12/90)
UNITED STATED DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS,
Assigned Judge George W. Lindberg
Case Number 88 C 7142 Date May 9, 1994
Case Kristina Kruse Lorentzen and Alan Lorentzen v.
Title Anderson Pest Control, et al.
MOTION:
Attomey Dennis E. Carlson's petition for Rule 11 sanctions
for misrepresentation of fact on and before March 15, 1994.
DOCKET ENTRY:
(1) Judgment is entered as follows -
(2)_x [Other docket entry]
Attorney Dennis E. Carlson's petition for Rule 11 sanctions
for misrepresentation of fact on and before March 15, 1994,
is denied for failure to prosecute. US Dist CT, ND Ill, GR
12(1)
11 x Docketing to mail notices
RECEIVED FOR DOCKETING 94 MAY -8
11 May 10 1994 Document #1158
Minute Order Form (rev. 12/90)
UNITED STATED DISTRICT COURT
_ NORTHERN DISTRICT OF ILLINOIS,
Assigned Judge George W. Lindberg
Case Number 88 C 7142 Date June 20 1994
Case Lorentzen v. Anderson Pest Control, et al.
Title
MOTION:
Attorney Dennis Carlson's motion to vacate and for ruling
on the allegations of his Rule 11 motion pursuant to rule 59.
DOCKET ENTRY:
(1)__ ~~ Sudgment is entered as follows :
(2)_x + [Other docket entry]
Attorney Dennis Carlson's motion to vacate and for ruling on
the allegations of his Rule 11 motion pursuant to Rule 59 is
denied. The court, sua sponte, strikes the response of
defendant ICI Americas, Inc [1157], to attorney Carlson's
petition for Rule 11 sanctions because the setting of a
briefing schedule is in the court's discretion, US Dist Ct, N
D fil, GR 12(O), and no briefing schedule was ever set by
the court on attorney Carlson's petition.
——“siGeorge W. Lindberg” _
11_x. Docketing to mail notices
RECEIVED FOR DOCKETING 94 JUN 20 PM 4:22
11 Jun 21 1994 Document #115 illegible
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.