A federal magistrate judge has ordered a Swarthmore, Pa., lawyer to pay the costs associated with seeking sanctions against him.
The lawyer, Raul Jauregui—who is representing two Latina women alleging racial discrimination by black and white co-workers at a social services agency—said he plans to ask for review from U.S. District Chief Judge Petrese Tucker of the Eastern District of Pennsylvania, who is presiding over the case and sent it to the magistrate judge to sort out discovery issues.
In addition to the $2,500 in attorney fees, U.S. Magistrate Judge Linda Caracappa of the Eastern District of Pennsylvania also dismissed the case as part of the sanction.
“In the instant case at bar, we find that the actions here stem from plaintiffs’ actions as well as from plaintiffs’ attorneys,” Caracappa said.
“The prejudice to defendants here is great as the discovery violations address evidence that form the basis of the complaint,” the magistrate judge said. “Defendants have been forced to engage in repeated motion practice and court conferences to compel answers due to plaintiffs’ counsel’s unwillingness to meet deadlines or provide answers or objections as directed by the Federal Rules of Civil Procedure and this court’s orders.”
She also said that “there is a history of dilatoriness in light of the failure to respond at all to the first and second sets of document requests, refusal to provide medical authorizations or to attend depositions until the court became involved, and an overall failure to comply with deadlines.”
One of the plaintiffs, Yenny Lora, failed to comply with the court’s order to provide verification of her income and the other plaintiff, Mercedes Palma, failed to hand over information about prior lawsuits and prior claims of emotional distress.
The focus of Caracappa’s opinion, though, was an interview that Jauregui conducted with one of the defendants, Tamitra Foreman, shortly after the suit was filed in 2012.
Jauregui maintains that his interview with Foreman is covered by the attorney work-product privilege.
He had made that argument to Tucker when he filed a motion for a protective order, according to Caracappa’s opinion. Tucker had denied that motion.
Following that, Jauregui “served a declaration, not a sworn affidavit as directed by this court’s previous order, merely describing the circumstances of the interview, such as the weather, his actions walking up to the house on the day in question, and the location of their conversation, and did not provide a proffer of the complete contents of the interview as ordered by this court,” Caracappa said.
Later, the magistrate judge said, “It must be emphasized that Tamitra Foreman is not just any witness, but is a named defendant here. Counsel’s claim of privilege has been denied.”
Jauregui disagreed after reading the order last week. “I’m getting sanctioned for claiming attorney work-product privilege” for an interview that was conducted in preparation for litigation, he said.
He called the opinion a “sheer violation of attorney work-product privilege.”
Jauregui had filed a cross-motion for sanctions against the defendants, NHS Inc. and several of its employees, which the magistrate judge dismissed.
She quoted in her opinion from the plaintiffs’ cross-motion: “Defendants have filed a motion for sanctions that, incredibly, asks this honorable court to discriminate against both plaintiffs (who are Latinas) and their counsel (who is Latino) in the same racist manner that defendant NHS Inc. discriminated against plaintiffs in the first place because the motion for sanctions asks this honorable court to treat plaintiffs and their counsel’s claim of attorney work-product privilege as worthless, as if it were subject to a different and detrimental standard because of the claimants’ race.”
Caracappa responded in underlined text, saying, “The undersigned rejects on its face this bold and baseless allegation of discrimination in the form of motion practice as it is wholly without factual or legal support.”
In considering the dismissal of the case, the magistrate judge weighed the six factors laid out in the U.S. Court of Appeals for the Third Circuit’s 1984 decision in Poulis v. State Farm Fire & Casualty, called the Poulis factors.
In a short discussion, Caracappa found that the factors, on balance, weighed toward an appropriate sanction of dismissal of the case in its entirety.
And, in an even shorter discussion of the plaintiffs’ cross-motion for sanctions, Caracappa cited to her position on the defendants’ motion for sanctions and said that she “rejected plaintiffs’ baseless and sensational allegation of racist motivation in defendants’ motion to compel, and found that defendants’ motion for sanctions should be granted.”
Neither Patrick G. Murphy nor Edward J. Murphy Jr. of the Law Offices of Patrick G. Murphy in Blue Bell, Pa., who are representing the defendants, could be reached for comment.
(Copies of the 13-page opinion in Lora v. NHS, PICS No. 14-0814, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •