Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2009

Braddock Cemetery v. Consol Energy Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3881




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Recommended Citation
"Braddock Cemetery v. Consol Energy Inc" (2009). 2009 Decisions. Paper 1216.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1216


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                                                   NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        _____________

                      Nos. 08-3881/08-3938
                        _____________

        KARL E. GARY; OSCAR R. IAMS; SHIRLEY J. IAMS;
        CHARLES W. PHILLIPS; DAVID HIGGENBOTHAM;
          JUDITH HIGGENBOTHAM; MARY ANN NEELY;
             CHARLES AMBROSE WHITLATCH, JR.;
        DEBRA ANN WHITLATCH; DONALD WHITLATCH;
      FRANCIS E. WHITLATCH; HENRY ABNER WHITLATCH;
          NORMA JEAN WHITLATCH; ROBERT PHILLIPS;
        WILLIAM H. WHITLATCH; KATHY L. WHITLATCH;
           ALFRED R. CHAMBERS, as power of attorney for
          GARY J. PIERSON; ALFRED R. CHAMBERS, JR.;
           ALFRED R. CHAMBERS as power of attorney for
            WINIFRED J. PIERSON; PAUL R. PHILLIPS;
      BARBARA SWARTZMILLER; CHARLES E. WHITLATCH;
        PATRICIA WHITLATCH; NETTIE PHILIPS MORRIS;
         EDNA PHILIPS SCHRADER; VIRGINIA KENNEDY;
     HELEN KELLY; MARY THORNE and KENNETH L. PHILLIPS

                                    v.

   THE BRADDOCK CEMETERY AND CONSOL ENERGY, the successor
    and/or assign of RHEINBRUAN U.S. CORPORATION; and CNX COAL,
the successor and/or assign of CONSOL PENNSYLVANIA COAL COMPANY

                CONSOL ENERGY and CNX COAL,

                                 Appellants in 08-3881

             THE BRADDOCK CEMETERY COMPANY,

                                 Appellant in 08-3938

                          __________
               Consolidated Appeals from the United States District Court
                        for the Western District of Pennsylvania
                                  (No. 05-cv-01438)
                              Honorable David S. Cercone
                                     ___________

                         Submitted Under Third Circuit L.A.R. 34.1(a)
                                        June 2, 2009
                                       ___________

                Before: McKee, Hardiman, and Greenberg, Circuit Judges,

                                    (Filed: June 08, 2009)

                                        ___________

                                         OPINION
                                        ___________


McKee, Circuit Judge:

       We are called upon to decide whether the District Court abused its discretion

when it granted a motion for Rule 11 sanctions against attorneys C. William Kenny and

Lousi M. Tarasi, Jr., but failed to order monetary relief in the form of attorneys’ fees to

the aggrieved parties as part of that sanction. Given our limited standard of review, we

cannot conclude that the failure to impose a monetary sanction is reversible error. We

will therefore affirm.

       Because we write primarily for the parties, we need not engage in an extensive

discussion of the facts or reiterate the tortured and convoluted procedural history of this




                                             -2-
matter.1 We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291. Our review

of the District Court’s ruling on the motions for sanctions under Rule 11 is subject to an

abuse of discretion standard. Simmerman v. Corino, 

, 61 (3d Cir. 1994). A

District Court has abused its discretion if its determinations are “contrary to reason or

without a reasonable basis in law and fact.” 

       Appellants Consol Energy, Consol Pennsylvania Coal Company and the Braddock

Cemetery moved for Rule 11 sanctions against Plaintiffs’ attorneys, arguing the filing of

this federal action was baseless and/or vexatious.2 After remand from this court, the

motion for Rule 11 sanctions against Plaintiffs’ attorneys was referred to a United States


       1
        This case has come before a panel of this court in the past. The decision there
contains a more complete statement of this dispute. See Gary v. Braddock Cemetery, 

(3d Cir. 2008).
       2
           Rule 11 provides in relevant part:

       By presenting to the court a pleading, written motion, or other
       paper--whether by signing, filing, submitting, or later advocating it--an
       attorney or unrepresented party certifies that to the best of the person's
       knowledge, information, and belief, formed after an inquiry reasonable
       under the circumstances:

       (1) it is not being presented for any improper purpose, such as to harass,
       cause unnecessary delay, or needlessly increase the cost of litigation;

       (2) the claims, defenses, and other legal contentions are warranted by
       existing law or by a nonfrivolous argument for extending, modifying, or
       reversing existing law or for establishing new law . . . .

Fed. R. Civ. P. 11(b).


                                                -3-
Magistrate Judge, who issued a Report and Recommendation (“R&R”). The Magistrate

Judge waded through the tortured history of this dispute and concluded that Rule 11 had

been violated. The R&R explained:

              It is well-established that Rule 11 Sanctions are warranted only in
       “exceptional circumstances in which the claim or motion is patently
       unmeritorious or frivolous.” Moreover, a review of Third Circuit case law
       reveals that a court should refuse to impose sanctions unless, as here, the
       moving party can show a complete lack of factual or legal support for a
       claim. Rule 11 Sanctions, parenthetically, are never appropriate when a
       party’s “only sin was being . . . unsuccessful.” That said, the Court,
       although it has strained to find otherwise, is unable to identify a theory or
       reasonable extension of existing law that would support this lawsuit
       against the Defendant[s].

(JA 25-26) (citations omitted) (emphasis added). Nevertheless, the Magistrate Judge

concluded that “monetary sanctions are inappropriate and the public filing of this

document is a sufficient sanction.” (JA 27). The District Court adopted the R&R as the

opinion of the District Court, and this appeal followed.

       Appellants now argue that the District Court abused its discretion by declining to

impose monetary sanctions because the mere public filing of the R&R is not sufficient to

“deter baseless filings.” Although we may well have been inclined to impose monetary

sanctions on this record if we had been standing in the shoes of the Magistrate Judge and

the District Judge, we cannot say the choice of a public rebuke was unreasonable or

contrary to the law.

       Rule 11 directs the district court to limit sanctions to “what suffices to deter

repetition of the conduct or comparable conduct by others similarly situated.” Fed. R.

                                             -4-
Civ. P. 11(c)(4). Appellants imply that publicly filing an opinion which finds that

Plaintiffs’ attorneys violated Rule 11, without more, is nothing more than a slap on the

wrist. However, as Justice Stevens once observed, “most lawyers are wise enough to

know that their most precious asset is their professional reputation.” Cooter & Gell v.

Hartmarx Corp., 

, 413 (1990) (Stevens, J., concurring in part and dissenting

in part). Nearly four centuries ago, a similar observation was made by no less an

observer of human nature than William Shakespeare. He famously wrote: “Good name .

. . [i]s the immediate jewel of [our] souls: Who steals my purse steals . . . nothing; . . .

But he that filches from me my good name / Robs me of that which not enriches him, /

And makes me poor indeed.” Othello act 3, sc. 3. The wisdom of that observation has

survived the test of time, having endured since 1603.

       Thus, a public reprimand of an attorney by a federal judge is not to be taken

lightly. It is a public rebuke that can reverberate within the legal community and have a

profound impact on one who is supposed to stand as an officer of the court and conduct

himself/herself accordingly.3 We sincerely doubt that Plaintiffs’ counsel, nor any other

member of the legal community will take the sanction that was imposed here lightly.4

       3
       Moreover, in this cybernetic age, the rebuke is accessible to anyone and
everyone who has access to the omnipresent internet and the time and curiosity to enter a
few simple keystrokes into a search engine.
       4
         Indeed, it is certainly conceivable that many attorneys would rather quietly pay a
monetary sum and have the matter closed, rather than having to contend with the
lingering effect of a judge’s public reprimand that has been made part of the public
record that is so accessible within legal and professional circles.

                                              -5-
       While the Appellants are understandably frustrated by the time and expense

incurred in defending against this meritless lawsuit, and disappointed that more was not

done, it must be remembered that Rule 11 is not “a general fee shifting device.” Gaiardo

v. Ethyl Corp., 

, 483 (3d Cir. 1987). Moreover, although this record reflects

a continued course of vexatious conduct on the part of Plaintiffs’ counsel, we

nevertheless can not conclude that the conduct requires us to interfere with the decision

of the District Judge or Magistrate Judge who are more “[f]amiliar with the issues and

litigants” than we are. 

. The judgment of the District Court is

therefore affirmed.




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