Search This Blog

Friday, January 8, 2016

Justice Prevails Against Attorney in Federal Court

By: Thomas Eden

U.S. District Judge Matthew Brann sanctioned plaintiff’s lawyer Donald Russo in his Dec. 29, 2015, 55 page memorandum opinion in which he legally spanked attorney Russo for continuing to pursue an age discrimination lawsuit which suffered from “blatant timeliness defects,” contained allegations that were “unrepresentative of the truth” and was “nothing more than an illusion.” The judge determined that Russo had kept the meritless case alive in “a sort of litigious necromancy conjured up by Russo’s specious filings” who applied a “'see what sticks' approach to briefing.”

The Federal Court Complaint filed in 2013 alleged that his client Ernest Keister had received less favorable treatment than similarly situated younger workers. However, when Keister’s deposition was taken he was not able to identify any such younger worker. The essential age bias theory in the suit was that Keister’s salary did not reflect the type of tasks he was assigned. The Judge found this was “nothing more than a permissible business judgment” by the defendant company.

Both defendants filed motions for summary judgment, which were granted dismissing Keister’s lawsuit. Next they filed motions under Rule 11 of the Federal Rules of Civil Procedure requesting sanctions and attorneys fees. Rule 11 imposes a duty on counsel in federal court to look before leaping into federal court litigation. Or as the judge put it "to stop, think, investigate and research before filing papers either to initiate a Complaint or to conduct the litigation.”  He held that Rule 11 sanctions are appropriate "when the claimant exhibits a deliberate indifference to obvious facts."

Upon investigation, the federal district judge determined that attorney Russo had been sanctioned by other federal court judges in the same district who had determined that his employment discrimination work was "dubious," "ill-conceived”, “poorly presented’’, “silly” and “ridiculed with credibility shortcomings.” Judge Brann has not yet determined the amount of attorney fees that must be paid.

Common Sense Counsel: any litigation is serious. As you can see from Judge Brann, he takes his obligations under Rule 11 to police attorneys most solemnly. Accordingly, it is most important that early on, you and your attorney assess and research the allegations made in the complaint to determine if they have a legitimate factual and legal basis. To comply with these requirements, counsel must conduct a reasonable investigation of the facts and normally competent level of legal research to support the presentation before the court.  Rule 11 is intended to deter baseless filings in Federal District Court and streamlined administration and procedure of the federal courts.

So if you think you are in a baseless lawsuit in federal court, a respectfully-worded  letter to the other side raising Rule 11, or the Alabama Litigation Accountability Act, may be helpful to show the opposing counsel and party the error of their ways.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at and follow on twitter tommyeden3