Wednesday, June 28, 2006

Sanctions May Be in Plaintiffs’ Future

I’ve fought about a lot of things in my ten years as a class action litigator, but this one has to take the cake. I mean, you simply are not going to believe this. In the Transaction Systems Architects action, the “defendants filed a motion to compel for the following specific deficiencies in the plaintiffs' responses to interrogatories:

1. The ‘verification’ offered by the plaintiffs is not made under oath because it is neither notarized nor declared under penalty of perjury.

2. The ‘verification’ offered by the plaintiffs impermissibly excludes those matter that Mr. Martini [who signed on behalf of the plaintiffs] ‘averred upon information and belief.’”

Well, I bet you know where this is going, but keep this in mind. You might think there’s not much for Nebraska Judges to do, but you’d be wrong. Dead wrong. In fact, the District only has three Magistrate Judges, and weighs in with the seventh heaviest per-judge criminal felony case load in the nation. Clue: might not want to bother these Magistrates, who spend the bulk of their time handling these felony cases, with shall we say, trivial civil matters.

So with that in mind, you can imagine the frustration level of Magistrate Judge Thomas D. Thalken (D. Neb.), while probably just finishing the unenviable task of dealing with twenty arraignment and sentencing hearings that morning, when he had to shift his attention to this hugely important issue. As he noted, “had the plaintiffs merely corrected the defect, the proceeding may have gone more smoothly without the necessity of additional motions and other documents filed by the parties.” But alas, they didn’t correct them, so Judge Thalken had to waste a perfectly good sheet of paper on these warriors.

He concluded that “the defendants need not show prejudice before compliance with the federal rules is required. In fact, even litigants proceeding without counsel must comply with these rules. Accordingly, the plaintiffs will not be exempt. The defendants' motion to compel verification that the responses were signed under oath is granted.”

Oh, and since “the plaintiffs gave no explanation for their failure to comply with the rules,” “the court shall, after the plaintiffs have a chance to respond, grant the defendants' reasonable expenses for filing the motion to compel on those issues, unless the plaintiffs show substantial and legal justification for the failure to comply with Rule 33 or just cause why sanctions should not be imposed.”

I couldn’t resist looking at Plaintiffs’ response to this, and sure enough, Plaintiffs admit (in a brief submitted on June 5, 2006 in response to the show cause order), that “the Court’s Order makes clear, in hindsight, that Plaintiffs would have been better served by not submitting this particular dispute to the Court for resolution.”

Yah’ think?

You can read Desert Orchid Partners v. Transaction Systems Architects, issued May 25, 2006, at 2006 U.S. Dist. LEXIS 34547.

Nugget: “The verification does not contain a notary mark or comply with 28 U.S.C. § 1746.”

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