CURRY v. UNITED PARCEL SERVICE, INC et al

Filing 36

MEMORANDUM AND ORDER THAT UPS AND LOCAL 623 SHALL FILE ON OR BEFORE 9/14/17 FEE PETITIONS DETAILING THEIR COSTS, EXPENSES AND ATTORNEYS' FEES INCURRED BECAUSE OF CURRY'S FILING OF THE AMENDED COMPLAINT; ETC.. SIGNED BY HONORABLE GERALD J. PAPPERT ON 8/30/17. 8/31/17 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROBERT CURRY,
Plaintiff,

CIVIL ACTION
NO. 17-2331

v.
UNITED PARCEL SERVICE, INC., et al.,
Defendants.
PAPPERT, J.

August 30, 2017
MEMORANDUM

Robert Curry sued United Parcel Service, Inc. and Teamsters Local 623 after his
termination in May of 2015. The case is resolved on the merits: the Court, by separate
Memorandum and Order, denied Curry’s motion to remand and granted the
Defendants’ motions to dismiss with prejudice. See (ECF Nos. 34 & 35).
Before the Court are Defendants’ motions for sanctions pursuant to 28 U.S.C.
§ 1927. (ECF Nos. 20 & 21.) On August 7, 2017, the Court ordered Curry’s Attorney,
Matthew Weisberg, to show cause why it should not award the Defendants’ their costs,
expenses, and attorneys’ fees incurred as a result of Weisberg’s filing of the Amended
Complaint. (ECF No. 16). After holding the show cause hearing on August 16, the
Court finds Weisberg acted in bad faith and with the purpose to multiply the
proceedings through conduct that was unreasonable and vexatious when he filed the
Amended Complaint.

1

I.
A.
Robert Curry worked for UPS since 1996 and was a member of Teamsters Local
623 union. In 2014, Curry was working as truck driver when UPS terminated him for
equipment tampering and failing to clock out during a break at a rest stop. Curry
denied the allegations and contested his termination through the union grievance
process. A panel upheld Curry’s termination and a committee affirmed the decision of
the panel on May 19, 2015.1
B.
The procedural history of this litigation is even more confusing and annoying to
recount than it is to read. Curry initially sued UPS, the International Brotherhood of
Teamsters and Local 623 in federal court on August 15, 2016. See Curry v. United
Parcel Service, Inc. et al., No. 16-4482 (Curry I), Compl., ECF No. 1. He asserted claims
for wrongful termination, First Amendment retaliation, breach of contract and breach
of the duty of fair representation. Id. Curry attached his termination letter, union
grievance forms and related letters to the Complaint. Id. Defendants filed motions to
dismiss on September 15 and 19 arguing, among other things, that Curry, as a union
employee, could not assert a claim for wrongful termination2 and that to the extent he

The facts of this case are outlined in detail in the Court’s Memorandum denying Curry’s
motion to remand. (ECF No. 34.)
1

Union employees cannot assert claims for wrongful discharge in Pennsylvania. See Phillips
v. Babcock & Wilcox, 503 A.2d 36, 36 (Pa. Super. Ct. 1986); see also Cifemi v. Day & Zimmerman,
Inc., 529 F. App’x 199, 203 (3d Cir. 2013); Coppola v. Jneso-Pocono Med. Ctr., 400 F. App’x 683, 684
(3d Cir. 2010).
2

2

alleged a Section 301 claim under the Labor Management Relations Act (“LMRA”), it
was barred by that statute’s six month limitations period.3 Curry I, ECF Nos. 5, 7 & 14.
On September 29, 2016—days before Curry’s deadline to respond to the motions
to dismiss—Curry moved for a fourteen-day extension to respond. Curry I, ECF No. 17.
On October 27, 28 and 31, before the Court ruled on Curry’s motion, Defendants moved
to have their motions granted as uncontested because Curry had still not responded to
them. Curry I, ECF Nos. 18, 19, & 20.
On November 1, 2016, Curry explained that he had not timely responded to the
motions because his request for additional time was pending. Curry I, ECF No. 21. He
clarified that he had not merely requested a fourteen-day extension to respond to
Defendants’ motions but instead had requested a fourteen-day extension that would not
begin to run until the Court granted his request for an extension of time.4 Because the
Court had not ruled on his request, he believed that his responses were not due.
Relying on Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1991), Curry also asserted
that a district court could not summarily grant dispositive motions as uncontested.
Curry I, ECF No. 21, at 3. Curry’s filing did not, however, respond to the motions on
the merits.
Six days later, on November 7, 2016, Curry filed a “Praecipe to Attach Exhibits”
to his November 1 filing. Curry I, ECF No. 22. Exhibit A to Curry’s Praecipe was a
Claims brought under the LMRA are barred by its six-month statute of limitations. See 29
U.S.C. § 160(b); DelCostello v. International Broth. of Teamsters, 462 U.S. 151, 155 (1983); Vadino v.
A. Valey Eng’rs, 903 F.2d 253, 260 (3d Cir. 1990).
3

While this is what Curry requested in the proposed order, it is not what he requested in the
body of the motion. Curry simply requested the following: “Plaintiff respectfully requests an
additional fourteen (14) days enlargement of time to respond/amend over to Defendants’ complex
motions so that this Honorable Court may come to a just, fair and accurate determination on the
merits.” Curry I, ECF No. 17, at 2.
4

3

document labeled “First Amended Complaint.” This purported Amended Complaint
dropped the wrongful termination and First Amendment retaliation claims and alleged
only a breach of the Collective Bargaining Agreement and breach of the duty of fair
representation. Like the original Complaint, the remaining exhibits attached to the
Praecipe included Curry’s termination letter, union grievance forms and related letters.
Curry never sought leave to file an Amended Complaint in accordance with Federal
Rule of Civil Procedure 15.
Later that day, Curry filed a “Praecipe to Substitute Exhibits,” which purported
to substitute exhibits he attached to the earlier Praecipe. Curry I, ECF No. 23. To this
Praecipe he attached another purported Amended Complaint. It included the same
“count” as the first Praecipe, but this version of the Amended Complaint was a few
paragraphs longer. The remaining exhibits attached to this later Praecipe also
included Curry’s termination letter and union grievance forms and related letters.
Again, Curry did not seek leave to file an Amended Complaint under Federal Rule of
Civil Procedure 15.
On November 21, 2016—two months after Defendants filed their original
motions to dismiss—Curry submitted a letter to the Court asking that the Court docket
his proposed Amended Complaint and deny the Defendants’ pending motions as moot.
Curry I, ECF No. 24. UPS filed a letter in opposition the next day, explaining that
Curry’s request was a procedurally improper attempt to file a late response to the
Defendants’ motions. Curry I, ECF No. 25. On November 23, the International
Brotherhood of Teamsters also explained by separate letter that Curry was simply

4

attempting to file an Amended Complaint without seeking leave to amend and without
responding to Defendants’ pending motions to dismiss. Curry I, ECF No. 26.
On November 28, Curry filed a motion for leave to file an Amended Complaint.
Curry I, ECF No. 27. This Amended Complaint included just one count for breach of
the Collective Bargaining Agreement and breach of the duty of fair representation.5 Id.
The Court granted Curry’s motion. While noting that Curry’s original attempt at
amendment violated Rule 15, the Court reasoned that “the amended complaint narrows
the suit to one count.” Curry I, ECF No. 30. The Clerk docketed Curry’s Amended
Complaint. Curry I, ECF No. 31.
The next day (and before the Court’s Order granting leave to amend was
docketed), Curry filed a “Praecipe to Substitute Exhibit to Plaintiff’s Motion for Leave
to Amend Complaint.” Curry I, ECF No. 29. Attached to this Praecipe was yet another
version of Curry’s Amended Complaint. It again included just one count, but this
purported Amended Complaint was a few paragraphs longer than the Amended
Complaint docketed by the Clerk. Compare Curry I, Am. Compl., ECF No. 31 with
Curry I, Praecipe, Ex. A, ECF No. 29.
Defendants UPS and Local 623 filed motions to dismiss the Amended Complaint
on December 9 and 13, respectively. Curry I, ECF Nos. 32 & 33. Defendants again
argued that Curry’s claim for breach of the Collective Bargaining Agreement was timebarred by the LMRA’s six-month statute of limitations. On December 27, counsel for

While Curry does not explicitly invoke the LMRA in his claim for breach of the Collective
Bargaining Agreement, it is clear that he asserts a § 301 claim under the LMRA (and not a state law
claim) because his Complaint asserted jurisdiction under 28 U.S.C. § 1331, for claims arising under
federal law, not for diversity under § 1332 (the parties are not diverse).
5

5

UPS, Local 623 and Curry filed a joint stipulation extending to January 10, 2017
Curry’s time to file a response to the motions. Curry I, ECF No. 34.
On January 10, Curry sought an additional seven days to respond to the
motions.6 Curry I, ECF No. 36. Before the Court could rule on Curry’s motion for an
extension of time, Curry responded to Defendants’ motions to dismiss. Curry I, ECF
No. 37. In his response, Curry acknowledged the six-month statute of limitations bar,
but he asked the Court to “extend, modify or reverse existing law.” Curry I, ECF No.
37, at 7. Specifically, Curry suggested the Court should follow the dissenting opinions
in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983). Curry
explained that the dissenting opinions analogized to state law wrongful discharge
claims, which provided for a two-year statute of limitations. Curry I, ECF No. 37, at 7.
Curry then confusingly requested the following:
To the extent this Honorable Court holds Plaintiff’s claim in wrongful
termination subject to the six-month statute of limitations, Plaintiff
agrees this Court bound by United States Supreme Court precedents—
Plaintiff’s Complaint should then be dismissed (but for Plaintiff’s
objection for the purpose of preservation). To the extent this Court holds
Plaintiff’s putative cause in wrongful termination subject to the two-year
Pennsylvania statute of limitations, Plaintiff respectfully requests leave
to amend merely to substitute Count I’s heading as merely comprising a
theory of liability under a claim for wrongful termination.
Id. at 7–8.
Curry then relied on Shick v. Shirey, 716 A.2d 1231, 1232 (Pa. 1998), a Supreme
Court of Pennsylvania case which recognized a common law cause of action for wrongful
discharge for at-will employees, to support his argument that his claim really was one

Curry again styled his proposed order as requesting seven days from “entry of” the Court’s
order granting his Motion. But the body of his motion requesting an extension of time simply
requests seven additional days to respond to Defendants’ motions.
6

6

for state law wrongful termination and not a breach of a collective bargaining
agreement under the LMRA. Curry then asserted—in his response opposing
Defendants’ motions to dismiss—that the Court should dismiss the case for want of
jurisdiction. Curry explained that since his claim really should be thought of as a statelaw wrongful discharge claim with a two-year statute of limitations, and since there
was not complete diversity, the Court should dismiss the Amended Complaint without
prejudice.
To recap: in his response opposing Defendants’ motions to dismiss, Curry
seemingly conceded that his only claim for breach of the Collective Bargaining
Agreement was barred by the LMRA’s six-month statute of limitations, but then argued
that the Court should either (a) think of his claim as a state-law claim for wrongful
discharge or (b) let him amend his Complaint to assert a state-law claim for wrongful
discharge. And because he now was asserting a state law claim, his Amended
Complaint should be dismissed because the Court lacked diversity jurisdiction. That
scenario would never present itself on even the most sadistic law school exam.
Defendants UPS and Local 623 filed reply briefs on January 17 and 18. 7 Curry I,
ECF Nos. 39 & 40. Defendants’ motions to dismiss were finally ripe, over five months

Defendants explained that Curry had originally asserted a state-law claim for wrongful
termination, but withdrew this count in his Amended Complaint—it thus made no sense to allow
amendment for Curry to re-assert this claim.
In any event, Defendants explained that Curry—as a union employee—could not assert a
claim for wrongful discharge under Pennsylvania law. See Phillips v. Babcock & Wilcox, 503 A.2d
36, 36 (Pa. Super. Ct. 1986); see also Cifemi v. Day & Zimmerman, Inc., 529 F. App’x 199, 203 (3d
Cir. 2013); Coppola v. Jneso-Pocono Med. Ctr., 400 F. App’x 683, 684 (3d Cir. 2010). Defendants also
explained that the Court retained jurisdiction because the LMRA completely preempts state law
causes of action for violation of a collective bargaining agreement. See Beidleman v. Stroh Brewery
Co., 182 F. 3d 225, 232 (3d Cir. 1999) (citing Avco Corp. v. Int’l Assoc. of Machinists & Aerospace
Workers, 390 U.S. 557, 559 (1968); Teamsters v. Lucas Flour Co., 369 U.S. 95, 103 (1962) (emphasis
added)). Thus, “[w]hen resolution of a state-law claim is substantially dependent upon analysis of
the terms of a collective bargaining agreement, that claim must be either treated as a § 301 claim or
7

7

after the case began. But just six days later, on January 24, 2017, Curry filed a notice
of voluntary dismissal. Curry I, ECF No. 42. Curry’s Complaint was dismissed without
prejudice and the case was terminated.
C.
Three weeks later, on February 13, 2017, Curry sued UPS and Local 623 again,
this time in the Philadelphia County Court of Common pleas via a Writ of Summons.
See (Curry v. United Parcel Service, Inc. et al., No. 17-2331 (Curry II), Notice of
Removal, ECF No. 1). Curry filed his state court Complaint on May 1, 2017. (Id.) This
Complaint asserted one count for wrongful discharge under Pennsylvania law.
Defendants removed the case to federal court on the basis of complete preemption on
May 23, 2017.
On June 12 and 13, UPS and Local 623 filed motions to dismiss. (Curry II, ECF
Nos. 8 & 9.) They stated yet again that Curry’s state-law wrongful discharge claim was
preempted by the LMRA and was accordingly time-barred by the LMRA’s six-month
statute of limitations. Alternatively, Defendants argued that union employees like
Curry could not assert a claim for wrongful discharge in Pennsylvania.
Curry filed a motion to remand the case to state court on June 26, 2017. (Curry
II, ECF No. 10.) Curry relied again on Shick v. Shirey, 716 A.2d 1231, 1232 (Pa. 1998),
contending that his claim was properly grounded in a state law wrongful discharge
claim. But this assertion was beside the point: Regardless of whether Pennsylvania
law allowed for unionized employees to state a claim for wrongful discharge (it doesn’t),
Defendants’ position was that Curry’s claim was barred because it substantially
dismissed as preempted by federal-labor contract law.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,
220 (1985).

8

depended on the interpretation of a collective bargaining agreement and was therefore
preempted by the LMRA. Curry’s invocation of Shick was not responsive to
Defendants’ argument.
Four days later (and nearing the deadline to respond to Defendants’ motions to
dismiss), Curry filed a motion to stay the case pending the Court’s adjudication of his
motion to remand or in the alternative, for a fourteen-day extension of time to respond
to Defendants’ motions to dismiss. (Curry II, ECF No. 11.) The Court denied Curry’s
motion to Stay on June 30. (Curry II, ECF No. 13.)
On July 3, 2017, Curry filed yet another motion for extension of time to respond
to UPS’s and Local 623’s motions to dismiss. (Curry II, ECF No. 14.) Rather than wait
for the Court’s ruling on his motion for extension of time, Curry filed a document styled
as a “notice,” that in reality was an Amended Complaint on the same day. (Curry II,
ECF No. 15.) Three days later, on July 6, 2017, Curry refiled this document, this time
correctly styling it on the docket as an Amended Complaint. (Curry II, ECF No. 16.)8
That same day, Defendants filed responses to Curry’s motion to remand. (Curry II,
ECF Nos. 17 & 18.) Defendants asked the Court to deny Curry’s motion to remand,
explaining yet again that Curry’s state law wrongful discharge claim was completely
preempted by the LMRA and, in any event, a unionized employee could not assert a
state law claim for wrongful discharge. On July 11, Curry filed a reply brief in support
of his motion to remand.9

This filing is the subject of the Court’s show cause Order and this Memorandum discussing
potential sanctions for Weisberg under 28 U.S.C. § 1927 and is discussed in detail infra at Section
III.B.
8

Curry’s reply brief acknowledged that the “weight of authority” supported the Defendants’
arguments for denying remand. But Curry did not withdraw his remand motion. Instead, he argued
9

9

D.
On July 17 and 19 respectively, Defendants filed motions to dismiss Curry’s
Amended Complaint and motions for sanctions pursuant to Rule 11, Local Rule 83.6.1
and 28 U.S.C. § 1927. (Curry II, ECF Nos. 20, 21 & 22.) On July 25, Curry filed a
“motion to bifurcate, stay and enlarge, or in the alternative, to omnibus respond with
enlargement.” (Curry II, ECF No. 23.) Curry asked the Court to “bifurcate” UPS’s
combined motion to dismiss and motion for sanctions and asked for a stay all of
Defendants’ sanctions requests pending adjudication of Curry’s motion to remand. (Id.
at 1.) Curry then separately requested a fourteen-day extension to respond to
Defendants’ motions to dismiss. (Id.) Alternatively, Curry requested a fourteen-day
extension to respond to Defendants’ pending motions due to the “complexity” of these
motions. (Id. at 2.) Two days later, however, Curry filed a response in opposition to
Defendants’ motions for sanctions and motions to dismiss. (Curry II, ECF No. 25.)
The Court denied as moot Defendants’ initial motions to dismiss, (Curry II, ECF
Nos. 8 & 9), and Curry’s earlier motion for an extension of time, (Curry II, ECF No. 14),
on August 2, 2017. (Curry II, ECF No. 27.) In the same Order, the Court denied
Curry’s motion to bifurcate, (Curry II, ECF No. 23). (Id.) Defendants filed reply briefs
in support of their motions to dismiss on August 3. (Curry II, ECF No. 28 & 29.)

that the Supreme Court of Pennsylvania’s decision in Shick violated the Equal Protection Clause
because it treats at-will employees differently than unionized employees. He also contended that
this “argument for extending, modifying, reversing existing law” or for “establishing new law” was
reason alone to remand. These arguments of course did nothing to rebut Defendants’ positions that
the LMRA preempted Curry’s claims. As already explained, regardless of whether Pennsylvania law
allowed for unionized employees to state a claim for wrongful discharge, Defendants argued Curry’s
claim was barred because it substantially depended on the interpretation of a collective bargaining
agreement and was thus preempted by the LMRA.

10

On August 7, the Court denied in part Local 623’s motion for sanctions.10 (Curry
II, ECF No. 31.) It also ordered Curry’s Attorney, Matthew Weisberg, to show cause at
a hearing on August 16, 2017 why it should not award the Defendants’ costs, expenses,
and attorneys’ fees pursuant to 28 U.S.C. § 1927 for Weisberg’s filing of the Amended
Complaint, (Curry II, ECF No. 16). (Curry II, ECF No. 31.) The Order specifically
explained that “Plaintiff’s counsel shall be prepared to address his filing of an Amended
Complaint, (Curry II, ECF No. 16), which sought relief under the same cause of action
as the original Compliant, yet alleged that the Court lacked subject-matter jurisdiction,
and show cause why that filing was not made in bad faith with an intent to delay the
proceedings before this Court.” (Curry II, ECF No. 31.) The Order accordingly provided
Weisberg “particularized notice” and an “opportunity to be heard” as required by the
Due Process Clause of the Fifth Amendment. See In re Prudential Ins. Co. Am. Sales
Practice Litig. Agent Actions, 278 F.3d 175, 191 (3d Cir. 2002) (citation omitted). The
Court also set oral argument on Curry’s motion to remand and Defendants’ motions to
dismiss. (Id.)
On August 30, 2017, by separate Memorandum and Order, the Court denied
Curry’s motion to remand and granted Defendants’ motions to dismiss. (Curry II, ECF
Nos. 34 & 35.) The only issues that remain for disposition are the motions for sanctions
pursuant to 28 U.S.C. § 1927.
The Court’s Order explained that it was denying Local 623’s motion for sanctions under Rule
11 because “Federal Rule of Civil Procedure 11 includes a ‘safe-harbor’ provision, which requires a
party to serve a motion for sanctions on an opposing party 21-days before filing the motion with the
Court.” (Curry II, ECF No. 31.) Local 623’s safe harbor certificate made clear that it sought relief
for Plaintiff’s filing of the original complaint in state court. (Id.) The Court explained that it would
not sanction a party under Rule 11 for a state-court filing. (Id. (citing Dieffenbach v. Cigna Corp., No.
07-3685, 2007 WL 4275502, at *5 (E.D. Pa. Dec. 4, 2007).) As for Rule 11’s provision allowing
sanctions for “later advocating” filings in federal court, because Curry’s counsel had not “later
advocated” the state Court complaint in federal court at the time Defendant filed the safe harbor
certificate, Rule 11 remained inapplicable. (Id.)
10

11

III.
A.
Section 1927 provides that any “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. “To impose § 1927 sanctions, a court must ‘find an
attorney has (1) multiplied proceedings; (2) in an unreasonable and vexatious manner;
(3) thereby increasing the cost of the proceedings; and (4) doing so in bad faith or by
intentional misconduct.’” In re Prosser, 777 F.3d 154, 162 (3d Cir. 2015) (quoting In re
Prudential, 278 F.3d at 188).
“The language and purpose of the statute reflect that these sanctions are aimed
at deterring lawyers’ bad faith conduct that disrupts the administration of justice by
multiplying proceedings,” id. at 161, or conduct that “intentionally and unnecessarily
delay[s] judicial proceedings.” LaSalle Nat’l Bank v. First Conn. Holding Grp., 287
F.3d 279 (3d Cir. 2002).
“A court imposing § 1927 sanctions must find bad faith, but that finding need not
be made explicitly.” In re Prosser, 777 F.3d at 162. “Indications of bad faith are
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.” Id. (quoting In re Prudential, 278 F.3d at 188). The Third Circuit Court
of Appeals has also described conduct indicative of bad faith in the context of § 1927 as
that which gives “some indication of an intentional advancement of a baseless
contention that is made for an ulterior purpose, e.g., harassment or delay.” Ford v.

12

Temple Hosp., 790 F.2d 342, 347 (3d Cir. 1986) (citations omitted); see also LaSalle, 287
F.3d at 288 (“[S]anctions may not be imposed under § 1927 absent a finding that
counsel’s conduct resulted from bad faith, rather than misunderstanding, bad
judgment, or well-intentioned zeal.”); In re Prudential, 278 F.3d at 188 (“Indications of
this bad faith are 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.” (quotation and citation omitted)); Baker Ind., Inc. v.
Cerberus Ltd., 764 F.2d 204, 208 (3d Cir. 1985) (“[C]onduct must be of an egregious
nature, stamped by bad faith that is violative of recognized standards in the conduct of
litigation.” (citation and quotation omitted)).
Courts “should exercise this sanctioning power only in instances of a serious and
studied disregard for the orderly process of justice.” LaSalle, 287 F.3d at 288 (citation
and quotation omitted). The statute should also be “construed narrowly and with great
caution so as not to stifle the enthusiasm or chill the creativity that is the very lifeblood
of the law.” Id. at 289. (quotation and citation omitted).
B.
Weisberg filed the Amended Complaint in bad faith in order to multiply the
proceedings in an unreasonable and vexatious manner because: (1) the Amended
Complaint was never meant to stand on its merits and (2) the timing of the filing—
when viewed in context of the entire record—strongly suggests it was filed to delay the
proceedings and the ultimate dismissal of the case.

13

i.
The Amended Complaint sought relief under the same cause of action (state law
wrongful discharge) as the original complaint. Compare (Curry II, Compl., ¶¶ 59–68,
ECF No. 1-2) with (Curry II, Am. Compl. ¶¶ 69–78, ECF No. 16). The Amended
Complaint, however, was never meant to stand on its merits but was instead a
halfhearted attempt to force the Court to remand the case. The Amended Complaint’s
jurisdictional statement makes this point evident: “Respectfully, this Honorable Court
does not have jurisdiction over this matter as (a) diversity of citizenship does not exist;
and (b) this dispute does not raise a question of federal law.” (Curry II, Am. Compl. ¶ 4
(emphasis added).) But Weisberg had already filed a motion to remand. (Curry II, ECF
No. 10.) If he believed his remand arguments were meritorious, filing an Amended
Complaint would be unnecessary and serve only to needlessly multiple the proceedings.
The Amended Complaint also contained very few amendments—most of the
changes are cosmetic or irrelevant.11 No change responds to Defendants’ motion-todismiss arguments: The Amended Complaint does not attempt to cure deficiencies in
the original Complaint. If the Amended Complaint succeeded in doing anything, it was
For example, paragraph 19 of the Amended Complaint confusingly references new
defendants: “During this time, Hoffa also sent individuals, including Defendant, John Doe 1, Greg
Yerace, to various local chapters in order to strong-arm the members into voting ‘Yes.’” (Curry II,
Am. Compl. ¶ 19.) But “John Doe 1, Greg Yerace” was not listed among Defendants UPS and Local
623 at the beginning of the Amended Complaint and nothing in the record suggests Yerace was
served with the Amended Complaint—i.e., Yerace isn’t a defendant. This addition to the Amended
Complaint is therefore irrelevant.
This same deficiency occurs later in the Amended Complaint at paragraph 46: “Defendant,
John Doe 2, Teamsters Local 623 President, Bill Morris, who Plaintiff had previously ran against,
represented Plaintiff before the Hearing Panel—Plaintiff was not given a choice of who would
represent him.” (Curry II, Am. Compl. ¶ 46.) Bill Morris is not listed among the other Defendants
and there is no record that Morris was served with the Amended Complaint.
The Amended Complaint includes other irrelevant additions. Paragraphs 40 and 66 contain
new allegations that Curry’s statutory and constitutional rights were violated because of Defendants’
actions. But the Amended Complaint does not assert any claims under any statute or constitutional
provision. It contains only a single claim for wrongful discharge—the same claim brought in the
original Complaint.
11

14

in making it clearer that Curry’s claim was preempted by the LMRA. In its handful of
new factual allegations, the Amended Complaint further establishes that Curry’s
wrongful discharge claim will require an interpretation of a collective bargaining
agreement, making it preempted by the LMRA. See, e.g. (Curry II, Am. Compl. ¶¶ 51–
53 (alleging that the union grievance process pursuant to the Collective Bargaining
Agreement improperly handled Curry’s wrongful termination grievance).)
ii.
Not only is the Amended Complaint substantively dubious, its timing indicates it
was filed to delay the proceedings. Weisberg filed the Amended Complaint while his
motion to remand was pending and just as his time to respond to Defendants’ motions
to dismiss was about to expire. As recounted above, after Defendants’ filed their
motions to dismiss, Weisberg filed a motion to stay the case pending the Court’s
adjudication of his motion to remand or in the alternative, for a fourteen-day extension
of time to respond to Defendants’ motions to dismiss. (Curry II, ECF No. 11.) After the
Court denied the motion to stay, (Curry II, ECF No. 13), Weisberg filed a new motion,
this time seeking a fourteen-day extension of time to file a response to Defendant’s
motions to dismiss. (Curry II, ECF No. 14.) Apparently thinking this request for more
time would be denied, and unwilling to file a response to Defendants’ motions to
dismiss, Weisberg decided to file the Amended Complaint—and he did so on the same
day he asked the Court for an extension of time.12 And Weisberg essentially admitted
this at the show cause hearing:

As explained above, Weisberg first filed a document styled as a “notice,” that was, in reality,
an Amended Complaint. (Curry II, ECF No. 15.) Three days later, on July 6, 2017, Curry refiled
this document (with slight modifications), this time correctly styling it on the docket as an Amended
Complaint. (Curry II, ECF No. 16.)
12

15

Mr. Weisberg:

Your Honor, this has been nothing but my attempt to
further my client’s rights, which I believe in. It’s not
his fault, it’s mine. At all times I tried to slow, to get
to this point, which is the remand, and –

The Court:

And at all times you’ve tried to slow to get –

Mr. Weisberg:

I meant, stop any other proceedings to get to the
remand issue, which is the central issue.

(Curry II, Tr. of Hr’g, at 59:13–20 (emphasis added).) There is no other logical
interpretation of these events—Weisberg only sought to delay the proceedings by filing
the Amended Complaint.
C.
After a court makes a finding of bad faith, “the appropriateness of assessing
attorneys’ fees against counsel under section 1927 is a matter for the district court’s
discretion.” Ford, 790 F.2d at 347 (citing Baker, 764 F.2d at 210). “To properly exercise
this discretion, the district court must balance the equities between the parties and
may award attorney’s fees whenever overriding considerations indicate the need for
such a recovery.” Id. “Thus, a district court may, in its discretion, refuse to award
attorney’s fees even where it finds the existence of bad faith, if, in balancing the
equities, it nevertheless determines that an award in a particular case would not serve
the interests of justice.” Id.
Finally, if the Court grants sanctions under § 1927, it “must only impose costs
and expenses that result from the particular misconduct.” In re Prudential, 278 F.3d at
188 (3d Cir. 2002). “Moreover, these costs and expenses are limited to those that could
be taxed under 28 U.S.C. § 1920.” Id.; see also Goodyear Tire & Rubber Co. v. Haeger,

16

137 S. Ct. 1178, 1186 (2017) (describing the “causal link” required between “misconduct
and fees” under § 1927).
The Defendants shall file petitions, to which Weisberg may respond, detailing
their costs, expenses and attorneys’ fees incurred because of Curry’s filing of the
Amended Complaint, (Curry II, ECF No. 16). The Court will consider the petitions and
any response, balance the equities and enter the appropriate Order thereafter.

BY THE COURT:

/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

17