Wednesday, October 26, 2005

D. Puerto Rico Uses Inherent Power to Impose Sanctions on Attorneys Who Nonsuited and Refiled to Get a More Favorable Judge

A judge in the District of Puerto Rico has imposed sanctions on plaintiffs' counsel for improper judge-shopping. After plaintiffs' counsel lost in their effort to obtain a preliminary injunction from one judge, they voluntarily dismissed their case under Rule 41(a) and refiled the same suit with a different judge to seek the same relief. Defendants moved to transfer the case back to the original judge, which was done; the original judge then imposed $1,000 sanctions against each of plaintiffs' attorneys for improper judge-shopping:

[T]the Court understands that Rule 41(a) serves as a lawful vehicle for voluntarily dismissing suits and refiling the same at a later occasion. The Court is not blind to that. However, Rule 41 cannot serve the purposes for which the attorneys in this case used it. Simply put, to ignore the probability that the attorneys' actions in voluntarily withdrawing the case and instantly refiling were directed at obtaining a different judge, "after the judge decide[d] a major point against [ ] [them,] would be to blink reality." In re Cargill, Inc., 66 F.3d at 1262. As adamantly stated by the First Circuit in In re Cargill: [C]ourts cannot afford to spawn a public perception that lawyers and litigants will benefit by undertaking such machinations. .... We simply cannot afford to nourish the impression that the courts, as an institution, will bend over backward, overlook the obvious, and countenance sharp tactics merely because they are directed at a judge. Id. at 1263-64 (citing In re United Shoe Mach. Corp., 276 F.2d 77, 79 (1st Cir.1960)("We cannot permit a litigant to test the mind of the trial judge like a boy testing the temperature of the water in the pool with his toe, and if found to his liking, decides to take a plunge."); Reilly v. United States, 863 F.2d 149, 160 (1st Cir.1988)(expressing that "when a trial judge announces a proposed course of action which litigants believe to be erroneous, the parties detrimentally affected must act expeditiously to call the error to the judge's attention or to cure the defect, not lurk in the bushes waiting to ask for another trial when their litigatory milk curdles")).

By sanctioning the appearing attorneys, the Court is not carving out any exceptions to Rule 41(a). At no time was the attorneys' ability to voluntarily withdraw the first action affected. It is the attorneys' attempt to utilize the undersigned and the otherwise unremarkable procedures to side step an adverse ruling and the time consuming appellate process that calls for the imposition of sanctions.


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