TAYLOR v. AMCOR FLEXIBLES

Filing 155

OPINION. Signed by Judge Noel L. Hillman on 9/18/2013. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ALONZO J. TAYLOR,

Civil No. 07-3477 (NLH/KMW)

Plaintiff,
OPINION
v.

AMCOR FLEXIBLES,
Defendant.

APPEARANCES:
Anthony J. DiMarino, III, Esquire
A.J. DiMarino, III, PC
57 Euclid Street
Suite A
Woodbury, New Jersey 08096
H. Francis deLone, Jr., Esquire
P.O. Box 1451
Pottstown, Pennsylvania 19464
Attorneys for Plaintiff Alonzo J. Taylor
Christopher H. Lowe, Esquire
Anjanette Cabrera, Esquire
Seyfarth Shaw LLP
620 Eighth Avenue
32nd Floor
New York, New York 10018
Attorneys for Defendant Amcor Flexibles
HILLMAN, District Judge
This matter comes before the Court by way of Defendant
Amcor Flexibles’ motion [Doc. No. 141] seeking monetary and

nonmonetary 1 sanctions against Plaintiff’s counsel in this
litigation.

The Court has considered the submissions relevant

to this motion, and decides the matter pursuant to Federal Rule
of Civil Procedure 78.
For the reasons set forth below, Defendant’s motion for
sanctions will be denied.

I.

JURISDICTION
Plaintiff originally brought his claims pursuant to both

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e-2, as well as the New Jersey Law Against
Discrimination (“NJLAD”), N.J.S.A. 10:5-12(a), and under New
Jersey common law.

The Court exercised original jurisdiction

over Plaintiff’s federal claim under 28 U.S.C. § 1331, and
supplemental jurisdiction over Plaintiff’s state law claims
under 28 U.S.C. § 1367(a).

II.

BACKGROUND & PRETRIAL HEARINGS
The factual background, procedural history, and Plaintiff’s

1

Although Defendant’s motion purports to seek nonmonetary
sanctions, Defendant has not identified for the Court the nature
of any specific nonmonetary sanctions sought here. Accordingly,
Defendant’s request for nonmonetary sanctions will be denied.
2

original claims in this case were set forth at length in the
Court’s prior Opinions and Orders of November 4, 2009, June 25,
2010, June 29, 2011, and February 6, 2012, and only the facts
relevant to the current motion will be repeated here.

After

discovery and dispositive motion practice in this case
concluded, the parties prepared for trial on Plaintiff’s sole
remaining claim for retaliation under Title VII and the NJLAD
based on an alleged June 5, 2006 telephone call placed to
Plaintiff’s home.
Plaintiff’s retaliation claim essentially alleged that
subsequent to filing a charge of racial discrimination against
his employer, Defendant Amcor Flexibles, with the Equal
Employment Opportunity Commission and the New Jersey Division of
Civil Rights, Plaintiff received a retaliatory telephone call at
his home at 5:13 a.m. on June 5, 2006.

Plaintiff asserted that

an unidentified caller said “[n]iggers aren’t qualified to work
in this business.

Why you niggers complaining[?]

shouldn’t be in this business[.]”
June 29, 2011.)

Niggers

(See Op. [Doc. No. 92] 2,

Plaintiff’s wife, Gail Taylor, testified at her

deposition that when the call was made she was the one who
answered the phone, heard the contents of the call, and relayed
the contents to her husband, Plaintiff Alonzo Taylor.

3

(Id.)

In preparation for a trial date in early 2012, the
Honorable Karen M. Williams, United States Magistrate Judge,
conducted the final pretrial conference in this matter on
November 4, 2011 and entered a Joint Pretrial Order (“JPO”)
[Doc. No. 104] on that date.

The JPO indicates that it

“govern[s] the conduct of the trial in this case” and that
amendments to the Order would “be allowed only in exceptional
circumstances to prevent manifest injustice.”
104] 1, Nov. 4, 2011.)

(JPO [Doc. No.

The JPO further “urged” counsel “to move

to amend in a timely fashion any portion of the [JPO] that must
be changed or modified between the filing of the order and the
trial date.”

(Id.)

After entry of the JPO, the parties continued preparing for
trial in this matter.

Jury selection was originally scheduled

to begin on February 1, 2012, and the trial was set to commence
on February 2, 2012.

At the pretrial charge conference held on

January 31, 2012, Plaintiff 2 submitted to the Court and Defendant
his final witness list which asserted that the “only witness
[would] be the plaintiff himself.”

2

(Pl.’s Witness List [Doc.

Plaintiff was not present at the January 31, 2012 charge
conference. His attorney, H. Francis deLone, Jr., Esq. appeared
at the charge conference on Plaintiff’s behalf.
4

No. 132] 1.)

Upon receipt of Plaintiff’s witness list at the

January 31, 2012 charge conference, Defendant raised the issue
that Plaintiff had not listed his wife, Gail Taylor, as a
witness for trial.

Defendant asserted that Ms. Taylor’s

testimony regarding the alleged phone call and the content of
the call was necessary to prove Plaintiff’s remaining
retaliation claim.

Defendant further argued that any testimony

by Plaintiff regarding the content of the call based on what he
was told by his wife raised hearsay admissibility issues.
Defendant pointed to the Court’s June 25, 2010 Order which
previously determined that “the unavailability of Plaintiff’s
wife to testify adds a layer of hearsay to any testimony
regarding the contents of the allegedly retaliatory phone call
she received[.]”

(Order [Doc. No. 67] 2, June 25, 2010.)

The

Court recognized in the June 25, 2010 Order that “further
argument [was] necessary to determine the scope of Plaintiff’s
potential testimony regarding the phone call ... and whether
such testimony would fall under any hearsay exceptions or [if it
was] otherwise admissible before the Court [could] make a final
determination” with respect to the viability of Plaintiff’s
retaliation claim.

(Id. at 3.)

When the issue of Ms. Taylor’s potential unavailability as

5

a witness first arose in late spring/early summer of 2010, the
Court conducted a hearing on July 21, 2010 and ultimately ruled
that Defendant could take Ms. Taylor’s deposition.
No. 92] 4, June 29, 2011.)

(Op. [Doc.

At the July 21, 2010 hearing, the

Court also granted Defendant leave, upon completion of Ms.
Taylor’s deposition, to make any appropriate motion relating to
the admissibility of her testimony at trial with respect to
procedural and evidentiary issues, including a renewed
dispositive motion on the remaining retaliation claim.
5.)

(Id. at

Following Ms. Taylor’s deposition, Defendant filed a motion

[Doc. No. 76] to strike her testimony, for sanctions, and for
summary judgment on the remaining retaliation claim.

The Court

denied that motion by Opinion and Order dated June 29, 2011.
(Op. [Doc. No. 92] 1, June 29, 2011; Order [Doc. No. 93] 1, June
29, 2011.)
In denying Defendant’s request to strike Ms. Taylor’s
deposition testimony, the Court explicitly highlighted the legal
significance of Ms. Taylor’s testimony in this case.

The Court

noted that her “deposition testimony [was] important to what
remain[ed] of Plaintiff’s case” and concluded that “[w]ithout
[such] testimony, summary judgment must be entered in favor of
Defendant because Plaintiff could not establish ... the content

6

of the [alleged retaliatory] phone call.”
10, June 29, 2011.)

(Op. [Doc. No. 92]

The Court further acknowledged that it was

“very mindful that the sanction of striking [Ms.] Taylor’s
testimony essentially equate[d] to a sanction of dismissal of
Plaintiff’s claim.”

(Id. at 10-11.)

Therefore, recognizing the validity of the issues Defendant
raised at the January 31, 2012 charge conference based on prior
Court rulings, the Court inquired of Plaintiff’s counsel whether
or not Ms. Taylor would be called as a witness at trial.

At

that time, Plaintiff’s pro hac vice counsel, H. Francis deLone,
Jr. Esq., asserted that he was unaware that Ms. Taylor’s
testimony would be necessary at trial.

Mr. deLone further

informed the Court that he intended to have Plaintiff testify at
trial regarding what Ms. Taylor told Plaintiff about the content
of the alleged telephone call.
The Court then reiterated to Mr. deLone its June 29, 2011
finding that “[w]ithout [his wife’s] testimony, summary judgment
must be entered in favor of Defendant because Plaintiff could
not establish ... the content of the [alleged retaliatory] phone
call.”

(Op. [Doc. No. 92] 10, June 29, 2011.)

Recognizing that

such testimony from Plaintiff, rather than his wife, raised
hearsay issues that could potentially render such testimony

7

inadmissible and thereby prevent Plaintiff from producing
evidence necessary to his retaliation claim, the Court recessed
briefly to allow Mr. deLone an opportunity to contact Plaintiff
and Ms. Taylor to determine if she would testify at trial.
When the Court reconvened, Mr. deLone informed the Court
that he was unable to reach Ms. Taylor and thus could not make a
determination as to whether she would be able and willing to
testify at trial.

Because Mr. deLone was unable to determine

during the short recess whether Ms. Taylor could or would
testify at trial, the Court, in order to minimize any
inconvenience to potential jurors and to provide Plaintiff with
an additional opportunity to secure Ms. Taylor’s testimony at
trial, adjourned for the day and adjourned jury selection an
additional day to February 2, 2012.

The Court further directed

that the charge conference would reconvene on February 1, 2012
at 3:00 p.m., at which time Mr. deLone would be required to
inform the Court as to whether Ms. Taylor would testify at
trial.

The Court expressly noted that it would entertain a

renewed motion for summary judgment by Defendant if Mr. deLone
notified the Court on February 1, 2012 that Ms. Taylor would not
testify.
When the Court reconvened on February 1, 2012 at 3:00 p.m.,

8

Mr. deLone represented to the Court that Ms. Taylor was not
going to be available to testify at trial.

Mr. deLone then

announced his intention to seek to admit Ms. Taylor’s deposition
testimony since she would not be available at trial.

Upon

further inquiry by the Court regarding the reasons for Ms.
Taylor’s inability to testify at trial, Mr. deLone represented
that she was not available due to the fact that Plaintiff and
Ms. Taylor were in the process of getting divorced.

At that

time, Defendant’s counsel questioned whether Ms. Taylor was
“unavailable” as that term is used in the Federal Rules of
Evidence and Civil Procedure, 3 or whether she was simply

3

Federal Rule of Evidence 804 (a) sets forth the criteria
for being unavailable and provides in relevant part that “[a]
declarant is considered to be unavailable as a witness if the
declarant: (1) is exempted from testifying about the subject
matter of the declarant’s statement because the court rules that
a privilege applies; (2) refuses to testify about the subject
matter despite a court order to do so; (3) testifies to not
remembering the subject matter; (4) cannot be present or testify
at the trial or hearing because of death or a then-existing
infirmity, physical illness, or mental illness; or (5) is absent
from the trial or hearing and the statement’s proponent has not
been able, by process or other reasonable means, to procure” the
declarant’s attendance or testimony. FED. R. EVID. 804(a).
Federal Rule of Civil Procedure 32(a)(4) which governs the
use of depositions in court proceedings where a witness is
unavailable provides in pertinent part, “[a] party may use for
any purpose the deposition of a witness, ... if the court finds:
(A) that the witness is dead; (B) that the witness is more than
100 miles from the place of hearing or trial …; (C) that the
witness cannot attend or testify because of age, illness,
infirmity, or imprisonment; (D) that the party offering the
9

unwilling to testify.

Defendant’s counsel also inquired whether

Mr. deLone planned to subpoena Ms. Taylor to testify at trial.
Defendant’s counsel then indicated that if Ms. Taylor was simply
unwilling to testify and that if Plaintiff did not intend to
subpoena her, then Defendant was renewing its motion for summary
judgment on the retaliation claim.
Following the renewed motion, Mr. deLone again represented
to the Court that Ms. Taylor was not available as a witness,
that he felt he did not have sufficient time to subpoena her,
and that he would not otherwise try to compel her appearance as
a witness at trial.

The Court thereafter granted Defendant’s

renewed motion for summary judgment on the retaliation claim.
(See Op. and Order [Doc. Nos. 134, 135], Feb. 6, 2012.)

The

Court’s ruling on the retaliation claim, along with its prior
rulings were affirmed by the Third Circuit Court of Appeals in
an Opinion filed on December 20, 2012.

Defendant now moves for

sanctions pursuant to 28 U.S.C. § 1927 and the Court’s inherent
powers. 4

deposition could not procure the witness’s attendance by
subpoena; or (E) on motion and notice, that exceptional
circumstances make it desirable – in the interest of justice and
with due regard to the importance of live testimony – to permit
the deposition to be used.” FED. R. CIV. P. 32(a)(4).
4

To the extent Defendant’s motion can be construed as
10

III. DISCUSSION
Pursuant to 28 U.S.C. § 1927, “[a]ny attorney ... who so
multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally
the excess costs, expenses, and attorneys’ fees reasonably
incurred because of such conduct.”

28 U.S.C. § 1927.

“It ...

[is] well settled in the Third Circuit that 28 U.S.C. § 1927
requires a finding of four elements for the imposition of
sanctions: [the offending attorney] ‘(1) multiplied proceedings;
(2) unreasonably and vexatiously; (3) thereby increasing the
cost of the proceedings; (4) with bad faith or with intentional
misconduct.”

In re Beers, 399 F. App’x 748, 749 (3d Cir. 2010)

(citing LaSalle Nat. Bank v. First Connecticut Holding Group,
LLC, 287 F.3d 279, 288 (3d Cir. 2002)).
As noted by the Third Circuit, “a finding of willful bad

seeking sanctions pursuant to Federal Rule of Civil Procedure
11, (see Def.’s Br. 13), such a request must be denied under the
Pensiero rule which “requires ‘that all motions requesting Rule
11 sanctions be filed in the district court before the entry of
a final judgment.’” Lewis v. Smith, 480 F. App’x 696, 699 (3d
Cir. 2012) (citing Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d
90, 99-100 (3d Cir. 1988)). Defendant’s formal motion for
sanctions was originally filed on March 8, 2012, approximately
one month after the Court entered a final judgment in favor of
Defendant on February 6, 2012. Accordingly, Defendant can no
longer seek Rule 11 sanctions. See Lewis, 480 F. App’x at 699;
Mary Ann Pensiero, Inc., 847 F.2d at 99-100.
11

faith on the part of the offending lawyer is a prerequisite for
imposing attorney’s fees under this provision.”

Hackman v.

Valley Fair, 932 F.2d 239, 242 (3d Cir. 1991) (citing Ford v.
Temple Hosp., 790 F.2d 342, 347 (3d Cir. 1986)).

In the Third

Circuit, “bad faith [serves as] ... a necessary predicate for a
violation of section 1927 in order to ‘avoid chilling an
attorney’s legitimate ethical obligation to represent his client
zealously.’”

Hackman, 932 F.2d at 243 (quoting Baker Indus.,

Inc. v. Cerberus Ltd., 764 F.2d 204, 208 (3d Cir. 1985)); see
also LaSalle, 287 F.3d at 289 (recognizing that “the bad faith
requirement is necessary for a finding of liability, otherwise
‘an attorney who might be guilty of no more than a mistake in
professional judgment in pursuing a client’s goals might be made
liable for excess attorneys’ fees[.]’”) (citation omitted).
The imposition of attorney’s fees and costs under Section
1927 is reserved for behavior that is of an “egregious nature,
stamped by bad faith that is violative of recognized standards
in the conduct of litigation.”

In re: Orthopedic Bone Screw

Prods. Liab. Litig., 193 F.3d 781, 795 (3d Cir. 1999) (citation
omitted).

“Consequently, sanctions may not be imposed under §

1927 absent a finding that counsel’s conduct resulted from bad
faith, rather than misunderstanding, bad judgment, or

12

well-intentioned zeal.”

LaSalle, 287 F.3d at 289.

Moreover,

“[b]ad faith should not be lightly inferred, and counsel should
be given significant leeway to pursue arguments on a client's
behalf.”

IV.

Lewis v. Smith, 480 F. App’x 696, 699 (3d Cir. 2012).

ANALYSIS
In seeking sanctions against Plaintiff’s pro hac vice

counsel H. Francis deLone, Jr., Esq., 5 Defendant argues that “Mr.
deLone [clearly] multiplied the proceedings by failing to
produce Ms. Taylor at trial, by failing to timely notify Amcor
or the Court that he would not produce her ... and by
proactively misleading the Court and Amcor by listing [Ms.
Taylor] as a trial witness in the Joint Pre-trial Order and
objecting to the use of her transcript because [Ms. Taylor] was
not ‘unavailable’ under the Federal Rules.”

(Def.’s Mem. of Law

in Further Supp. of its Oral Mot. for Sanction [Doc. No. 142]
(hereinafter, “Def.’s Mem.”), 7.)

Defendant argues that “Mr.

deLone knew, by virtue of the this Court’s” prior rulings “that
he had to produce Ms. Taylor at trial.”

5

(Id.)

Defendant also seeks sanctions against Plaintiff’s local
counsel, Anthony J. DiMarino, III, Esq. The Court addresses
this request infra.
13

Defendant further contends that Ms. Taylor’s “absence
should have been revealed in the Joint Pre-trial Order and an
appropriate motion in limine” and that “Mr. deLone’s conscious
disregard for the Court’s prior rulings not only prejudiced
Amcor, it also [caused] the Court to expend unnecessary
resources to prepare for a trial that could not proceed.”
at 7-8.)

(Id.

As a result of Mr. deLone’s conduct, Defendant

requests that the Court “levy monetary sanctions against Mr.
deLone ... in the amount equal to the costs Amcor incurred in
needless trial preparation” which is no less than $147,031.94.
(Id. at 2.)

Defendant also seeks an additional $750.00 for

travel expenses incurred by its company representative, Elissa
Reiner, who traveled from Chicago to New Jersey to appear for
the trial as originally scheduled before this Court.

(Id. at 2

n.3.)
Both Plaintiff’s pro hac vice counsel, Mr. deLone, and his
local counsel, Mr. DiMarino, oppose Defendant’s motion for
sanctions.

With respect to Plaintiff’s pro hac vice counsel,

Mr. deLone represents to the Court that originally he “was
planning to present [Ms.] Taylor as a trial witness and
identified her as such to the Court and opposing counsel” but
that his “plans changed ... when he learned that divorce

14

proceedings that were instituted during the pe[n]dency of this
action were becoming more and more bitter.”

(Pl.’s Mem. in

Opp’n to Def.’s Renewed Mot. for Sanctions [Doc. No. 151]
(hereinafter, “deLone’s Opp’n”), 3.)

Mr. deLone asserts that

upon learning of the bitter nature of the divorce proceedings
between Plaintiff and Ms. Taylor, he “concluded that the
presentation of [Ms.] Taylor as a witness would entail too great
a risk to [P]laintiff’s case.”

(Id.)

Accordingly, he advised the Court and opposing counsel that
Ms. Taylor would not testify at trial.

Thus, Mr. deLone argues

that his “decision not to present [Ms. Taylor] as a witness, ...
did not multiply or delay [the] proceedings in this case[,]” but
actually “shortened [the] judicial proceedings” because the
Court entered summary judgment in Defendant’s favor and the
parties did not proceed to trial.

(Id. at 2-3.)

Mr. deLone

contends that “had [he] wanted to delay proceedings, he could
have done so by failing to advise the Court of his decision not
to present plaintiff’s wife as a witness.”

(Id. at 4.)

Rather,

Mr. deLone asserts that because he had “a valid reason for
deciding that he would not call Mrs. Taylor as a witness,
counsel did not act vexatiously, unreasonably or in bad faith”
and thus no sanctions should be imposed.

15

(Id.)

Plaintiff’s local counsel, Mr. DiMarino, opposes the
imposition of sanctions against him.

Mr. DiMarino argues

generally that Defendant’s motion fails to present any evidence
or arguments to demonstrate that any of Mr. DiMarino’s actions
in his role as local counsel warrant sanctions and amount to
willful bad faith.

(Br. in Opp’n to Def.’s Mot. for Sanctions

Against Pl.’s Local Counsel [Doc. No. 152] 7.)
As set forth supra, a prerequisite to the imposition of
sanctions under Section 1927 is a finding of willful bad faith
on the part of the offending attorney.

See Hackman, 932 F.2d at

242; see also In re Prudential Ins. Co. Am. Sales Practice
Litig. Agent Actions, 278 F.3d 175, 188 (3d Cir. 2002).

In

ruling on Defendant’s motion, the Court must first address the
threshold inquiry of whether there is sufficient evidence to
support a finding that Mr. deLone acted with the requisite
willful bad faith to warrant the imposition of sanctions, or
whether Mr. deLone’s conduct was the result of a mistake in
professional judgment, a “misunderstanding, bad judgment, or
well-intentioned zeal.”

LaSalle, 287 F.3d at 289; see also

Baker Indus. Inc. v. Cerberus, Ltd., 764 F.2d 204, 208 (3d Cir.
1985) (interpreting Section 1927 “to require a showing of actual
bad faith” because “otherwise, an attorney who might be guilty

16

of no more than a mistake in professional judgment in pursuing a
client's goals might be made liable for excess attorneys' fees
under section 1927.”)
“[A] district court’s finding of bad faith or the absence
of bad faith in a particular case is a factual determination[.]”
Ford v. Temple Hosp., 790 F.2d 342, 347 (3d Cir. 1986).

In

making this determination, the Court recognizes that
“[i]ndications of this bad faith” include “findings that the
claims advanced were meritless, that counsel knew or should have
known this, and that the motive for filing the suit was for an
improper purpose such as harassment.”
F.3d at 188.

In re Prudential, 278

As the Third Circuit has cautioned, “[b]ad faith

should not be lightly inferred, and counsel should be given
significant leeway to pursue arguments on a client's behalf.”
Lewis, 480 F. App’x at 699.
Here, Defendant has limited its motion for sanctions only
to Mr. deLone’s “willful acts of bad faith” which occurred
“since November 4, 2011 – the date the Pre-Trial Order was
entered and it was clear that trial preparation had commenced,
namely; his failure to produce Plaintiff’s wife, Gail Taylor, to
testify.”

(Def.’s Mem. 1.)

On the issue of bad faith,

Defendant argues that “[t]he fact that Mr. deLone insisted on

17

the eve of trial that he could proceed without [Ms. Taylor’s]
critical testimony, when he clearly knew otherwise from the
Court’s specific rulings [i.e., the June 25, 2010 and June 29,
2011 Opinions and Orders] and the significant proceedings on
that very issue — is egregious behavior, stamped by bad faith,
and violative of recognized standards of legal practice.”
(Def.’s Br. 7.)

Defendant also points to Mr. deLone’s

“conscious disregard for the Court’s prior rulings” as evidence
of Mr. deLone’s bad faith and argues that this prejudiced
Defendant and resulted in the unnecessary expenditure of Court
resources in preparing for trial.

(Id. at 8.)

Defendant further contends that “it defies credulity for
Mr. deLone to claim that he did not understand that [Ms. Taylor]
was a material witness upon whom Plaintiff’s [retaliation] claim
hinged.”

(Id. at 8.)

Defendant points to several portions of

the Court’s June 25, 2010 and June 29, 2011 Opinions to
demonstrate that the necessity of Ms. Taylor’s testimony should
have been clear to Mr. deLone.

(Id. at 8-9.)

Defendant also

highlights for the Court that when Amcor identified Ms. Taylor’s
deposition transcript as a trial exhibit in the event she was
unavailable to testify under Rule 32, Mr. deLone objected to the
use of her deposition transcript at trial.

18

(Id. at 9.)

Defendant argues that Mr. deLone’s “bad faith is further marked
by his admissions made openly” before the Court wherein he
stated, “‘I don’t know if she is or isn’t [available].

I wasn’t

initially planning to call her, so now I have to do that.’”
(Id.) (citing Hearing Tr. [Doc. No. 136] 58:4-6, Jan. 31, 2012.)
Defendant thus argues that taking all of these
circumstances together, “there can be no conclusion other than”
to find that “Mr. deLone acted in bad faith in an attempt to
mislead both the Court and Amcor into believing that [Ms.]
Taylor would in fact testify at trial.”

(Id. at 9.)

The Court

construes Defendant’s argument to be that because Mr. deLone’s
claim that he misunderstood the Court’s prior orders and the
necessity of Ms. Taylor’s testimony is not worthy of belief the
Court must interpret his conduct as evidence of his willful bad
faith.
In this case, the Court is called upon to determine whether
Mr. deLone’s conduct was the result of willful bad faith as
required under Section 1927, or whether his conduct was merely
the result of what might fairly be considered as a mistake in
professional judgment, a misunderstanding, bad judgment, or
well-intentioned zeal (which perhaps went awry).

Such a

determination must be made heeding the Third Circuit’s warning

19

that “[b]ad faith should not be lightly inferred, and counsel
should be given significant leeway to pursue arguments on a
client's behalf.”

Lewis, 480 F. App’x at 699.

Moreover, “[t]he

power to sanction under § 1927 necessarily ‘carries with it the
potential for abuse, and therefore the statute should be
construed narrowly and with great caution[.’]”

LaSalle, 287

F.3d at 289 (citation omitted).
The circumstances of this case present an extremely close
call for the Court.

There is very little doubt that Mr.

deLone’s conduct 6 resulted in a situation where Defendant went
through the extensive, costly, and arduous process of preparing
for trial in this matter over a period of several months, only
to end up renewing its previous motion for summary judgment on
the basis that Plaintiff could not prove his retaliation claim
without Ms. Taylor’s testimony – a motion that the Court granted
precisely on that basis.

Defendant’s argument that Mr. deLone’s

6

Mr. deLone’s conduct includes: (1) failing to recognize the
necessity of Ms. Taylor’s testimony to prove Plaintiff’s
retaliation claim; (2) failing to insure her availability to
testify at trial; (3) failing to notify the Court and Defendant
at the earliest possible time after the November 4, 2011
pretrial order was entered and before the hearings in January of
2012 that there was an issue as to Ms. Taylor’s availability;
and (4) failing to secure her availability by subpoena, or to
otherwise make an appropriate motion to admit the necessary
evidence by an alternative means.
20

conduct caused the proceedings to be “multiplied” and thereby
contributed to the accumulation of what turned out to be
unnecessary attorneys' fees spent on trial preparation is
certainly not lost on the Court.

Defendant has clearly

satisfied its burden on that element of the sanctions analysis.
The Court nonetheless concludes that Defendant has failed
to meet its burden to establish that Mr. deLone’s conduct
constitutes the sort of willful bad faith, contemplated by the
Third Circuit in Hackman, Ford, and LaSalle, sufficient to
warrant the imposition of sanctions in excess of $147,000.
While the Court certainly does not condone Mr. deLone’s conduct
or point to it as a model of acceptable behavior for attorneys
litigating cases in this District, the Court finds that Mr.
deLone’s conduct falls just shy of demonstrating the type of
willful bad faith that justifies sanctions under 28 U.S.C. §
1927.
Construing the statute narrowly and bearing in mind that
bad faith should not be lightly inferred, it appears to the
Court that at the time the November 4, 2011 JPO was entered, Mr.
deLone genuinely intended to call Ms. Taylor as to testify
regarding the alleged retaliation against her then husband.
Accordingly, Mr. deLone identified Ms. Taylor as a witness in

21

the JPO and also objected to the use of her deposition testimony
as a defense exhibit at trial.

(See JPO [Doc. No. 104] 10);

(see also deLone’s Opp’n 3) (“On the basis of the information
regarding this telephone call that [Ms. Taylor] had provided,
plaintiff’s counsel was planning to present Mrs. Taylor as a
trial witness and identified her as such to the Court and
opposing counsel.”).
However, at some point after November 4, 2011 and before
January 31, 2012, Mr. deLone’s blueprint for trial was altered
when he learned of the growing antagonism and hostility between
Plaintiff and Ms. Taylor related to their pending divorce. 7

(See

Plaintiff’s case was originally filed in July of 2007.
Approximately four years later, on July 11, 2011, Ms. Taylor
instituted divorce proceedings against Plaintiff in the Superior
Court of New Jersey, Chancery Division-Family Part for
Burlington County. (See Ex. A. to Def.’s Reply Mem. [Doc. No.
153] 1.)
The Court recognizes that the JPO was entered only four
months later, in November of 2011. Given that the divorce
proceedings had only just begun in family court at the time the
JPO was entered, the Court finds it reasonable to conclude that:
(1) the divorce proceedings had not yet escalated to the point
where “bitterness” between Plaintiff and Ms. Taylor had
developed; or (2) even if such bitterness had developed, that
Plaintiff may not have informed Mr. deLone of that fact at the
time. Imputing to Mr. deLone knowledge of when the bitterness
in the divorce proceedings developed, without evidence of the
same, requires the Court to engage in unwarranted speculation
and to make a series of assumptions that lack concrete factual
support.
Furthermore, at the time this case was set to go to trial
in February of 2012, the divorce proceeding had only been
7

22

deLone’s Opp’n 3) (“Counsel’s plans changed” because “he learned
that divorce proceedings . . . were becoming more and more
bitter.”)

Mr. deLone represents that based on this information

he made a calculated, strategic decision not to call Ms. Taylor
as a witness because the hostility between Ms. Taylor and
Plaintiff would pose too great of a risk to the Plaintiff’s
case.

(Id.)

Apparently Mr. deLone made this decision under the

mistaken belief Ms. Taylor’s testimony was not necessary and
that Plaintiff could testify to the contents of the call based
on an exception to the hearsay rule that Mr. deLone believed the
Court had not yet ruled upon. 8

pending approximately seven to eight (7-8) months. As Defendant
accurately points out though, Mr. deLone does not provide the
date on which he first learned that Plaintiff’s divorce
proceedings were becoming increasingly bitter and thus he
decided not to call Ms. Taylor as a witness. This could have
occurred as early as November 5, 2011 or as late as January 31,
2012 when Mr. deLone submitted his witness list naming Plaintiff
as the only witness he would call. However, there is no
evidence before the Court from which to glean that fact, and the
Court is not inclined to speculate on that issue.
8

(See Hearing Tr. [Doc. No. 136] 60:4-15, Jan. 31, 2012)
(Mr. deLone: “I would ask for some brief period of time to be
able to do that, to find out what the story is with [Ms. Taylor]
being able to testify, which I don’t know at this point in time,
because I was presuming that she was not necessary. If I
misunderstood Your Honor’s presumptions, I’m sorry. I did not
realize that Your Honor considered her a necessary witness. ...
But, in any event, I would ask for a short period of time, so
that I can have a chance to see about her availability and, if
not about her availability, to at least present some arguments
23

The Court can certainly appreciate Mr. deLone’s
unwillingness to present testimony by a witness – Plaintiff’s
soon-to-be ex-wife – who was outwardly hostile toward his client
and whom Mr. deLone presumably feared would not be a cooperative
or helpful witness.

Mr. deLone’s desire to avoid such an

occurrence was clearly in his client’s best interest and
constitutes what this Court considers to be well-intentioned
zeal.

However, Mr. deLone’s attempt at zealous advocacy went

awry when he overlooked one key aspect in this case.

Ms. Taylor

was the only witness who actually heard the content of the
alleged retaliatory phone call.

Admissible evidence, in some

form, regarding the content of that call was required to prove
Plaintiff’s retaliation claim.
While Mr. deLone may have wanted to proceed without Ms.
Taylor’s testimony out of fear she would sabotage the case and
thus decided to have Plaintiff testify as to the contents of the
call, he failed to take into the necessary steps this change in
strategy required.

For example, at a minimum, Mr. deLone needed

to: (1) address the double hearsay issue raised by Plaintiff’s
proffered testimony; (2) seek an amendment to the JPO to include

why plaintiff should be allowed to testify.”)
24

Ms. Taylor’s deposition testimony as a trial exhibit, and
exclude her as a witness; (3) file any appropriate motions in
limine seeking to admit the necessary evidence regarding the
call; and (4) provide adequate notice to the Court and Defendant
that Ms. Taylor was no longer going to be a witness and that
Plaintiff would prove his claim by an alternative means.
Although Mr. deLone’s conduct certainly resulted in a
tremendous inconvenience and cost to Defendant, which could have
been easily avoided if Mr. deLone conducted a thorough review of
the Court’s prior Opinions and Orders, rather than simply
assuming Plaintiff could testify when he learned of the
hostility between Plaintiff and Ms. Taylor, convincing evidence
that Mr. deLone acted with willful bad faith in this case is
lacking.

Given that the statute is to be construed narrowly,

and that bad faith should not be lightly inferred, the Court
will not impose sanctions on Mr. deLone here. 9
While it can be fairly said that Mr. deLone failed to
properly litigate this case as the parties prepared for trial,
“bad faith may [only] ... be inferred ‘when the attorney's

9

Because the Court finds that the conduct of Plaintiff’s pro
hac vice counsel, Mr. deLone, does not warrant the imposition of
sanctions against him, the Court need not address the parties’
arguments regarding whether sanctions against local counsel are
proper in this instance.
25

actions are so completely without merit as to require the
conclusion that they must have been undertaken for some improper
purpose[.]’”

Alphonso v. Pitney Bowes, Inc., 356 F. Supp. 2d

442, 452 (D.N.J. 2005) (citation omitted).

Here, the Court is

unable to conclude that Mr. deLone’s actions were “so completely
without merit as to require the conclusion” that he acted in bad
faith.

Rather, this case presents an acute example of what this

Court considers to be a genuine mistake in professional judgment
in pursuing a client’s goals, see LaSalle, 287 F.3d at 289.

Mr.

deLone’s presumably late notification of the bitterness of
Plaintiff’s divorce proceeding, coupled with his purported
misunderstanding of the necessity of Ms. Taylor’s testimony
leads the Court to conclude that Mr. deLone did not act in bad
faith in this case and should not be sanctioned. 10

10

Although Defendant purportedly seeks sanctions pursuant to
the Court’s inherent powers, Defendant provides virtually no
analysis regarding the appropriateness of such sanctions here.
Accordingly, the Court also denies Defendant’s motion to impose
sanctions under the Court’s inherent powers.
26

V.

CONCLUSION
For the foregoing reasons, Defendant Amcor Flexibles,

Inc.’s motion for sanctions is denied.

An Order consistent with

this Opinion will be entered.

Dated: September 18, 2013
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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