Hardy v. Astrue

Filing 25

ORDER Counsel shall have 10 days from entry of this Order to pay a $500.00 sanction into the registry of the Court; upon receipt of the funds, the Court will allow Pltf 20 days from date of payment to file a new Summary J udgment motion; granting in part 23 Joint Motion and Stipulation; granting 24 Motion to Withdraw, and 19 Motion to Disqualify Counsel is terminated (see order for further details). Signed by Magistrate Judge Dennis Howell on 7/9/12. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv299
CARLA HUTCHINSON HARDY,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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ORDER

Pending before the Court is the Joint Stipulation filed by Plaintiff [# 23].
Previously, the Court struck Plaintiff’s Motion for Summary Judgement [# 16] and
Memorandum in Support of Motion for Summary Judgment [# 17] from the record
as the result of counsel’s flagrant and intentional disregard of an Order of this
Court. (Order, Apr. 20, 2012.) This was the second Motion for Summary
Judgment filed by counsel that the Court struck from the record in this case.
Counsel for Plaintiff now moves the Court to allow him an opportunity to file a
third Motion for Summary Judgment and contends that this time he will actually
comply with the Court’s prior Order and offer legal authority in support of his
assignments of error by the Administrative Law Judge.
In support of the motion, counsel attaches the affidavit of his client, who
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states that he has been informed of the proceedings in this case, including the
Court’s Orders striking the two prior briefs. Even in light of being informed of his
counsel’s prior failure to comply with Court Orders in this case, Plaintiff wishes to
retain Mr. Gudger as counsel. This Court, however, will not allow Mr. Gudger
another opportunity to file a Motion for Summary Judgement in this case absent
the imposition of some sanction. This Court has already provided counsel two
opportunities to file a motion for summary judgment. In fact, the second Motion
for Summary Judgement was filed in response to a Court Order specifically
directing Plaintiff to submit a new brief to this Court that was supported by legal
authority. Counsel, however, flagrantly and intentionally disregarded this Court’s
Order by submitting a second memorandum that was virtually identical to the prior
one. As the Court previously explained:
Plaintiff’s brief, however, is virtually identical to the prior brief that the
Court struck. The only recognizable changes are that Plaintiff: (1)
altered the first sentence to recognize that the motion was filed in
response to the Court’s March 22, 2012, Order; and (2) added the
“citation” “See, 20 C.F.R. § 404.1527(d), which describes the weight
that should be given to the opinions of treating physicians, such as Dr.
Englebrecht and Dr. Kahn.” (Pl.’s Mem. Supp. Mot. Summ. J. at p. 10.)
The entire legal analysis still fails to cite the Court to a single case from
any jurisdiction supporting Plaintiff’s legal argument.
(Order, Apr. 20, 2012.) The Court then found that the conduct of counsel
constituted an abuse of the judicial process and that sanctions were warranted.

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(Id.) To date, no sanction has been imposed on counsel for his abuse of the judicial
process.
It is well settled that a district court has the inherent power to sanction
conduct that constitutes an abuse of the judicial process. Hensley v. Alcon Labs.,
Inc., 277 F.3d 535, 542 (4th Cir. 2002); Silvestri v. Gen. Motors Corp., 271 F.3d
583, 590 (4th Cir. 2001); United States v. Shaffer Equip. Co., 11 F.3d 450, 461-62
(4th Cir. 1993). “The policy underlying this inherent power of the courts is the
need to preserve the integrity of the judicial process in order to retain confidence
that the process works to uncover the truth.” Silvestri, 271 F.3d at 590. The most
powerful sanction in the district court’s quiver is its inherent power to dismiss a
case with prejudice. Shaffer, 11 F.3d at 462; Hensley, 277 F.3d at 542. “Since
orders dismissing actions are the most severe, such orders must be entered with the
greatest caution.” Shaffer, 11 F.3d at 462.
Upon consideration of the record in this case, and for the reasons stated in
the Court’s prior Orders, the Court will allow counsel to file a third Motion for
Summary Judgment contingent upon counsel personally paying a sanction of
$500.00 into the registry of the Court as a sanction for his prior conduct. The
Court finds that requiring counsel to pay this fine is an appropriate sanction and
will not prejudice his client, who after being informed of counsel’s prior failure to

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comply with the Court’s Orders, desires to have counsel continue to represent him
in this matter. Moreover, $500.00 is an appropriate amount to sanction counsel for
his conduct but is not so great as to constitute a de facto dismissal of this case or
impose too large of a burden on counsel. In short, based on counsel’s conduct in
this case, the Court finds that $500.00 is a reasonable and appropriate sanction.
Absent the payment of this sanction, counsel will not be allowed to file a new
motion.
Counsel shall have ten (10) days from the entry of this Order to pay this
sanction into the registry of the Court. Upon receipt of the funds, the Court will
allow Plaintiff twenty (20) days from the date of payment to file a new Summary
Judgment motion. Such motion is limited to the issues raised in the prior motions,
and the Court will disregard any legal argument that is not supported by citations
to relevant legal authority and contains legal analysis as to how such authority
supports the result sought by Plaintiff. A simple recitation of the facts in the
record without any legal analysis or legal authority will not suffice. If counsel refiles a virtually identical brief for a second time, the Court will strike the briefs and
consider holding counsel in contempt of court. Finally, if counsel refuses to pay
this sanction, the Court will provide Plaintiff with ten (10) days to obtain new
counsel or the Court will again recommend dismissal of this action. Accordingly,

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the Court GRANTS in part the Joint Motion [# 23]. The Court also GRANTS
the Motion to Withdraw [# 24] and DIRECTS the Clerk to terminate the Motion to
Disqualify [# 19]. The Court DIRECTS counsel for Plaintiff to personally deliver
by hand a paper copy of this Order to his client within ten (10) days of the entry of
this Order and to certify to the Court that he has done so within three (3) days of
delivery of the Order to his client.

Signed: July 9, 2012

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