By Debra Cassens Weiss
U.S. District Judge Thomas M. Durkin of the Northern District of Illinois sanctioned lawyer Calvita Frederick in a June 22 decision that also required her to pay legal costs incurred by her litigation opponents in responding to the declaratory judgment action.
Among those sued in the declaratory judgment lawsuit was U.S. District Judge Gary Feinerman of the Northern District of Illinois, who had previously referred Frederick to the executive committee after declaring that she had “turned in the poorest performance by an attorney that the undersigned has seen during his 12-plus years on the bench.”
Feinerman was overseeing a discrimination suit filed by Frederick on behalf of Michael Outley against the city of Chicago. Frederick filed the declaratory judgment suit after Feinerman asked her to show cause why she shouldn’t be sanctioned.
The new suit sought declaratory judgments that Feinerman’s evidentiary rulings in the Outley case were incorrect, that he wrongly denied her mistrial motion, and that he wrongly refused to exclude particular testimony. Individual Chicago defendants were also the subject of mistrial motions for bringing up the disputed evidence in opening statements.
Durkin said Frederick’s declaratory judgment suit had no legal basis. She was aware of this fact or should have been aware of it “upon minimal legal research,” Durkin said.
“How an attorney, especially one with years of experience litigating in federal court, would think that the proper way to challenge the evidentiary rulings of a district court judge is to sue that judge, rather than filing an appeal, is incomprehensible,” he wrote.
Feinerman had tossed Outley’s suit as a sanction for Frederick’s behavior.
Feinerman said Frederick sought to file 20 evidentiary motions after the deadline has passed, made “a series of intemperate remarks” during a pretrial conference, and apparently failed to read a court order—leading her to wrongly think that all her opponents’ motions in limine had been granted.
Among the “intemperate” comments was a statement about lawyers getting “ripped a new butthole” when they seek extra time.
Feinerman has since left the bench and joined Latham & Watkins.
After Frederick sued Feinerman and the Chicago defendants, the Chicago defendants sought sanctions. Frederick responded that “counsel now understands the way to appeal or to challenge the decision of the court is via appeal.”
Durkin said “the inescapable conclusion” was that Frederick’s claims were “frivolous at every turn.”
“Most fundamentally,” Durkin wrote, “each request for relief would have required this court to take an appellate role over the rulings of another presiding district judge in a pending case. A federal district judge has no such concurrent authority to review another district judge’s rulings.”
Durkin also said the declaratory judgment suit was filed in bad faith, citing Feinerman’s warning that the planned suit was meritless and an improper use of the declaratory judgment statute. Feinerman also advised Frederick that if she thought that he made mistakes, “There’s a well-worn avenue to get an audience to hear those arguments. It’s called an appeal.”
Yet Frederick proceeded with her new suit.
“Even pro se litigants have been sanctioned for similar conduct,” Durkin said.
Durkin cited another factor supporting a sanction: Frederick “has an extensive history of similar litigation misconduct, for which she has been warned and sanctioned ad nause[a]m.”
Frederick told the ABA Journal in a phone message that she has no comment.
Hat tip to Law360, which covered Durkin’s opinion.
Full Article & Source:
Lawyer referred for possible discipline after suing judge who also referred her for discipline
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