From the Bench. When Judges Impose Sanctions

• Author: Hon. Virginia Kendall
• Pages: 5-10

From the Bench

Published in Litigation, Volume 46, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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HON. VIRGINIA KENDALL

The author is a U.S. District Judge for the Northern District of Illinois.

When I first started on the bench, my

deputy clerk walked into chambers with

a six-inch-thick emergency motion to dis-

miss. I looked at her skeptically and said,

“Seriously? How can you have an emer-

gency motion to dismiss?” Then I read it.

A man had received a money judg-

ment against another man for hundreds

of thousands of dollars, and in response

to every effort to collect the judgment,

the defendant filed a new lawsuit against

the victorious plaintiff. Attached to the

motion were six complaints, all of which

had been dismissed as vexatious filings.

They spanned the country from the East

Coast to the West and a few districts in

between. What was most remarkable was

an email exhibit wherein the losing defen-

dant threatened that he would continue to

file these lawsuits requiring the plaintiff

to pay for an attorney to fly in, file the mo-

tion to dismiss, and get the case dismissed.

The threat was that this would continue

until the plaintiff paid the same amount

of the money judgment as he had won in

court against the filer. Wow.

So when the parties appeared and I con-

fronted the filer with his own email and

he admitted he had sent it and that he had

filed the previous six suits, I dismissed the

case. I also sanctioned him—making him

pay for the plane ticket, the hotel, and the

attorney’s time in preparing the motion. As

I was ruling, the attorney who had flown in

to get the case dismissed looked up at me

as though I was an apparition. He had such

shock on his face that I asked him if he was

feeling OK. “Yes,” he blurted out. “It’s just

that no one has ever sanctioned him!” It

seemed like an obvious slam dunk to me.

Of course, he was correct in that all of the

previous six lawsuits were dismissed with-

out any penalty. “Well, it is just the right

thing to do,” I responded.

After the hearing, I joined a small group

of judges for lunch in the cafeteria. Having

been on the bench only a matter of weeks,

I casually asked them, “How many times

have you sanctioned someone?” I did not

reveal that I had done so twice in my first

few weeks on the bench. But that look of

shock on the lawyer’s face made me sec-

ond-guess what I had done. Had I made

a mistake? Was I a rogue judge?

One judge, who has been on the bench

for 30 years, said, “I think twice.” Another

said, “Never.” A third, “I probably have but

I can’t think of a time I did.” I raced back

to Westlaw to research sanctions. After a

few hours, hmm, I thought, you are fine.

So what gives?

Now 13 years later, I think that is what

most lawyers are asking. When do judg-

es impose sanctions? When can I ask for

sanctions? What is the line in the sand

that judges draw?

Truth is, just about every motion to

compel in my district ends with a prayer

for relief that includes sanctions. That is a

lot of motions for sanctions. So I gathered

a group of judges and asked them when

they give sanctions and why. Of course, I

am keeping them anonymous, but suffice

it to say there were six of them with time

on the bench from five years to 30 years.

The Consensus on Sanctions

First, you should know that the word

“sanctions” in itself had different mean-

ings for the judges. Most did not consider

any financial penalty imposed on a party

for violating a discovery rule or deadline

a “sanction.” One said simply, “The rule

provides for it, so I don’t really think of

that as a sanction.” Another said, “If I am

imposing a financial penalty that is, for ex-

ample, the cost of filing the motion, I don’t

consider that to be a sanction. I think of

‘sanctions’ as a term to be used when you

are ordering a penalty due to a lawyer’s

behavior.” This makes sense, of course,

because many sanctions are authorized

by the rules of civil procedure. See, e.g.,

F. R. C. P. 37(b) (discovery violations),

16(f ) (failure to obey a scheduling or other

pretrial order), 41(b) (dismissal for failure

to comply with rules or court order). So,

when discussing sanctions, most judges

think of those that are within the “inher-

ent authority of the court.”

Second, there appeared to be con-

sensus from all of the judges that I in-

terviewed that any “intentional” viola-

tion was worthy of sanctions. That being

said, not all were comfortable imposing

WHEN JUDGES IMPOSE

SANCTIONS