Attorney Is Sanctioned for 'Unbelievable' Violation of Filing Rules

Attorney Is Sanctioned for 'Unbelievable' Violation of Local Filing Rules
The New York Law Journal by John Caher  -  March 21, 2012

A Buffalo attorney with a long history of filing late or inadequate memoranda has been hit with a sanction of nearly $14,000 after suggesting to a federal judge that the attorney was impaired in his ability to file required documents because of the death of his father 11 years earlier.  Western District Judge Charles J. Siragusa of Rochester (See Profile) described attorney David J. Seeger's conduct in CA-POW! v. Town of Greece, 10-cv-6035, as "unbelievable" for a lawyer with 29 years of experience who had already been chastised at least four times for violating local rules.  "This was not a pro se proceeding in which the Court was required to allow leeway to non-lawyer parties," Judge Siragusa observed.  The underlying action was one in which an environmental group sued a Rochester suburb over waterway protection issues and storm water management. Mr. Seeger represents the plaintiff, Citizens Alert: Protect Our Waters!  Records show that in March 2010 Judge Siragusa directed the parties to file and serve papers by May 11, 2010. However, Mr. Seeger filed only a cover letter by the deadline and then attempted—76 minutes before oral arguments—to submit an amended complaint.  In a prior decision, Judge Siragusa struck the amended complaint and dismissed the original complaint. His March 9 order dealt only with the imposition of attorney fees.

"The Court found that Plaintiff's counsel's contention that he was unsure what to do, or that he was 'toying with the decision' to seek leave to amend, or that his father's death 11 years ago affected his ability to file a memorandum of law in this case did not contain the ring of truth," Judge Siragusa said.  The judge noted that Mr. Seeger has repeatedly been warned about filing late submissions, once submitted a 29-page brief "containing no case law or other pertinent legal authority" and on another occasion filed a memorandum of law that "contained no meaningful factual or legal argument."  The court ordered $13,383 in legal fees under 28 U.S.C. §1927 and Local Rule 11, covering the period from when Mr. Seeger attempted to file an amended complaint at the 11th hour and the time when he sought leave to amend the complaint a month later.  "Plaintiff's counsel's actions in this case…were in bad faith and unreasonably and vexatiously multiplied the proceedings," Judge Siragusa wrote.  The defendant Town of Greece had sought reimbursement for all of its legal expenses related to the litigation, a total of $79,295, under a provision in the Clean Water Act (33 U.S.C. 1365). But the court dismissed the action after finding that the plaintiffs lacked capacity to sue and never reached the Clean Water Act issue of whether the action "was frivolous, unreasonable or groundless, or that Plaintiff continued to litigate after it clearly became so."  Robert B. Koegel of Remington, Gifford, Williams & Colicchio in Rochester represents the Town of Greece.  Mr. Koegel said the lawsuit was brought not for any legitimate reason but to avenge a prior loss.  "We are pleased to see the court recognized that this was not right," said Mr. Koegel, a veteran environmental lawyer. "I am very sympathetic to the environment, but when [litigation] is done for ulterior purposes, as I think was the case here, sanctions are appropriate to deter this kind of conduct."  Mr. Seeger argued in court papers that "not a penny in attorney's fees should be awarded."  He admitted that he should have sought leave before submitting the amended complaint, but said he was unaware of a rule change requiring such an application. Mr. Seeger said that before a December 2009 revision to Rule 15 of the Federal Rules of Civil Procedure, an amended complaint could be filed "as of right" and did not require leave.  "Plaintiff's counsel conceded his error, acknowledging that the proposed amendment required leave of court, and on that same date Plaintiff moved for leave to amend," Mr. Seeger said in a memorandum of law opposing the imposition of sanctions.  John Caher can be contacted at jcaher@alm.com.