BLACK et al v. ALLEGHENY COUNTY et al

Filing 175

MEMORANDUM ORDER granting 161 Plaintiffs' Motion for Sanctions pursuant to 28 U.S.C. Sec. 1927. Plaintiffs shall submit to this Court a reasonable calculation of their excess costs, expenses, and attorneys' fees incurred as a result of Mr. Winikoff's intentional misconduct for which he will be personally liable on or before 5/13/2014. Signed by Magistrate Judge Cynthia Reed Eddy on 05/06/2014. (bap)

PIN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DEBRA BLACK; EARL BLACK,
ADMINISTRATORS OF THE ESTATE
OF DEREK BLACK,

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Plaintiffs,

v.

ALLEGHENY COUNTY; ALLEGHENY
COUNTY CORRECTIONAL HEALTH
SERVICES; MIGUEL SOLOMON;
WILLIAM S. STICKMAN, III; DANA
PHILLIPS; MICHAEL PATTERSON, M.D.;
KIM WILSON, M.D.; CHRIS MARSH,
R.N.; VALERIE SLEPSKY; MEDICAL
STAFFJOHN AND JANE DOES 1-15;
CORRECTIONAL STAFF JOHN AND
JANE DOES 1-15
Defendants.

Civil Action No. 13-0179
Judge David Stewart Cercone
Magistrate Judge Cynthia Reed Eddy

MEMORANDUM ORDER

Before the Court is Plaintiffs’ Motion for Sanctions against attorney Stanley Winikoff,
counsel for the Medical Defendants, pursuant to 28 U.S.C. § 1927. (ECF No. 161). For the
reasons set forth below, Plaintiffs’ Motion for Sanctions will be granted.
At the close of discovery, this Court gave Plaintiffs permission to file a Second Amended
Complaint, which they did on March 19, 2014. (ECF No. 140). Therefore, in accordance with
Federal Rule of Civil Procedure 15(a)(1)(3), Defendants had until April 2, 2014 to respond.
However, Mr. Winikoff filed no response within that timeframe. Thus, on April 17, 2014,

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fifteen days after the Medical Defendants’ response was due, Plaintiffs filed with the Clerk of
Court a Request for Entry of Default pursuant to Rule 55(a). (ECF No. 153). Approximately
two hours later, Mr. Winikoff filed a Motion to Dismiss for Failure to State a Claim and Motion
to Strike the Second Amended Complaint, (ECF No. 154), and a brief in support thereof. (ECF
No. 155). Almost two hours after Mr. Winikoff filed said documents, he filed a separate Motion
to Strike Plaintiff’s Request for Entry of Default. (ECF No. 156).
On April 22, 2014, this Court entered a Memorandum Order striking the above
documents filed by Mr. Winikoff, finding that they violated the Federal Rules of Civil
Procedure, Local Rules of Court, and the undersigned’s Chambers Rules. (ECF No. 160). The
Court also noted that Mr. Winikoff’s filing of the Motion to Dismiss and Motion to Strike
appeared to be filed in bad faith when considering that “at this stage of the litigation, it is
nonsensical for Mr. Winikoff to actually think that these documents had any merit.” Id. at 2, n.
3. Also on April 22, 2014, Plaintiffs filed the pending Motion for Sanctions. (ECF No. 161).
The following day, the Court entered a text-only Order Response/Briefing Schedule directing
Mr. Winikoff to respond by April 30, 2014.
On April 23, 2014, the Clerk of Court entered Default against all of the Medical
Defendants, except Miguel Salomon,1 who had not yet been served. (ECF No. 163). On April
25, 2014, this Court held a telephone conference in which all parties participated. (ECF No.
170). During the telephone conference, the Court ruled that the entry of default against the
Medical Defendants would be set aside due to the prejudice that would be experienced by Mr.
Winikoff’s clients, given that they had already participated in this suit for over one year and that
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As early as April 17, 2014, when Mr. Winikoff filed the Motion to Dismiss and Strike on behalf of the
Medical Defendants, he noted that Dr. Salomon’s name is incorrectly captioned as “Solomon.” (ECF No.
154). Mr. Winikoff has filed several documents noting this error, including his notice of appearance on
behalf of Dr. Salomon (ECF No. 172), however, has not taken any steps to file a motion to amend/correct
the caption.

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they should not have to suffer such severe consequences because of their attorney’s refusal to
abide by the rules of procedure and this Court’s orders. Instead, the Court made very clear that
the appropriate relief for Plaintiffs was in their Motion for Sanctions against Mr. Winikoff. The
Court did not relieve Mr. Winikoff of his obligation to respond to the Motion for Sanctions.
Following the conference, Plaintiffs’ counsel filed a Notice of Withdraw of Plaintiffs’ Request
for Entry of Default, (ECF No. 168), which was approved by this Court that same day.
Consistent with his behavior throughout this lawsuit, Mr. Winikoff has failed to timely respond
to Plaintiffs’ Motion for Sanctions.
Plaintiffs request that Mr. Winikoff be sanctioned pursuant to 28 U.S.C. § 1927, which
provides:
Any attorney or other person admitted to conduct cases in any
court of the United States or any Territory thereof 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.
“The statute thus limits attorney sanctions imposed thereunder to those situations where an
attorney has: (1) multiplied proceedings; (2) unreasonably and vexatiously; (3) thereby
increasing the cost of the proceedings; (4) with bad faith or with intentional misconduct.”
LaSalle Nat. Bank v. First Connecticut Holding Grp., LLC., 287 F.3d 279, 288 (3d Cir. 2002)
(citing In re Prudential Ins., 278 F.3d at 188). “The sanctions are intended to deter an attorney
from intentionally and unnecessarily delaying judicial proceedings, and they are limited to the
costs that result from such delay. Id. ‘“[C]ourts should exercise [this sanctioning power] only in
instances of a serious and studied disregard for the orderly process of justice.”’ Id. (quoting
Ford v. Temple Hosp., 790 F.2d 342, 347 (3d Cir. 1986).

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Appling this framework, Mr. Winikoff has unquestionably “multiplied proceedings.” A
review of the docket demonstrates Mr. Winikoff’s repeated failure to follow basic court orders
and the Federal Rules of Civil Procedure. This is exemplified by Mr. Winikoff’s failure to
respond to the present motion before the Court in which he is subject to personal liability. This
Court noted in its Memorandum Order from April 22, 2014 that
This action was initiated on February 1, 2013. (ECF No. 1). Since
then, there have been several discovery problems, causing the
Court to amend numerous case management orders. Additionally,
due to the conduct of the defense attorneys, the Court has had to
spend countless hours on conference calls with counsel and sorting
through motions to compel, motions for sanctions, and show cause
hearings. While the conduct of counsel for the County Defendants
has improved, the same cannot be said about the counsel for the
Medical Defendants, Stanley Winikoff. Notwithstanding a myriad
of orders to the contrary, Mr. Winikoff continues to disregard this
Court’s orders, the applicable law, federal and local rules of
procedure, and professional courtesy to opposing counsel.
(ECF No. 160 at 1). By not following the appropriate procedure when filing the Motions to
Dismiss and Strike (ECF No. 154) as well as the Motion to Strike the Request for Entry of
Default (ECF No. 156), Mr. Winikoff has caused Plaintiffs’ counsel as well as this Court to
spend the time to address said filings and hold a telephone conference, thereby multiplying the
proceedings. Had Mr. Winikoff followed the Federal Rules of Procedure in responding to the
Second Amended Complaint or followed the appropriate procedure in seeking to have the
Request for Entry of Default set aside, these multiplied proceedings could have been avoided.
However, Mr. Winikoff chose to disregard all applicable rules, and file said documents just
hours after the Request for Entry of Default was entered, notwithstanding the fact that his
response was fifteen days late. Considering that Mr. Winikoff had no basis upon which to file
said documents, the proceedings have been multiplied “unreasonably and vexatiously.”

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Additionally, Mr. Winikoff’s conduct has certainly “increased the costs of the
proceedings.” Mr. Winikoff has caused Plaintiffs to experience unnecessary costs, expenses, and
fees in attempting to serve Dr. Salomon. Mr. Winikoff stated to the Court that he represented
Dr. Salomon. (ECF Nos. 158, 170). However, Plaintiffs produced an e-mail from Mr. Winikoff
in which he denied being able to accept service for Dr. Salomon, causing Plaintiffs to incur
expenses in attempting to serve him. (ECF No. 161-2). Although Mr. Winikoff would not
accept service on behalf of Dr. Salomon, on April 17, 2014, he filed the Motions to Dismiss and
Strike on Dr. Salomon’s behalf. (ECF No. 154, 156). For that reason, the Court found at the
April 25, 2014 telephone conference that Dr. Salomon had constructive notice of the Second
Amended Complaint as of April 17, 2014.

Plaintiffs also incurred costs, expenses, and

attorneys’ fees in filing the present motion for sanctions, preparing for and participating in the
April 25, 2014 telephone conference, and filing the Notice of Withdraw of the Request for Entry
of Default, all of which could have been avoided if Mr. Winikoff had followed the appropriate
procedures and court orders.
Finally, the Court finds that Mr. Winikoff has acted in bad faith and his misconduct has
been intentional. On April 24, 2014, the day before the telephone conference, Mr. Winikoff filed
a document with the Court in which he asserted that he “did not become aware of the entry of
default until he checked his email after he had already filed the Motion to Dismiss.” (ECF No.
167 at 7, n.5). At the telephone conference, Mr. Winikoff again asserted that position. The
Court finds Mr. Winikoff’s explanation to be neither believable nor credible.
Mr. Winikoff’s contention would constitute an extraordinary coincidence given that he
was fifteen days late when the document was filed and it was filed two hours after Plaintiffs’
filed their Request for Entry of a Default. Moreover, Mr. Winikoff filed the Motion to Strike

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Plaintiffs’ Request for Entry of Default a little less than two hours after he filed the Motion to
Dismiss. However, Mr. Winikoff’s Motion to Strike the Request for Entry of Default makes no
mention that the Motion to Dismiss was filed before he was aware of Plaintiffs’ Request for
Entry of Default. The only logical interpretation of the events is that Plaintiffs filed the Request
for Entry of Default, Mr. Winikoff got an e-mail notification of the event and immediately put
together a Motion to Dismiss, and then immediately put together a Motion to Strike the
Plaintiffs’ Request for Entry of Default. Consequently, the Court finds that the filings from Mr.
Winikoff on April 17, 2014 were in bad faith.
Further, assuming that the Court found Mr. Winikoff’s contention that he filed the
Motion to Dismiss and Strike before he learned of Plaintiffs’ Request for Entry of Default to be
credible, sanctions would nevertheless be appropriate under 28 U.S.C. § 1927. Mr. Winikoff
openly admitted to intentionally disobeying the Federal Rules of Civil Procedure in filing the
Motion to Dismiss and Strike, stating that it was a conscious choice not to file a responsive
pleading to the Second Amended Complaint until after it was due. Mr. Winikoff stated that
in light of the pending service upon Salomon, the most economical
approach for filing a response to Plaintiff’s Second Amended
Complaint on behalf of all Medical Defendants, including
Salomon, would be to file the response after service on Salomon
was accomplished. In so doing, the need to plead and defend
Salomon separately from the other Medical Defendants would be
avoided, and result in less filings submitted to this Honorable
Court.
(ECF No. 167 at 5). Ironically, Mr. Winikoff’s unilateral decision not to respond to the Second
Amended Complaint has resulted in at least twenty-six docket entries, including text-only orders.

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Additionally, during the telephone conference, Mr. Winikoff separately provided the
excuse that he was too busy to respond to the Second Amended Complaint.2 The excuses
provided by Mr. Winikoff, when taken as true, are nevertheless inadequate. Mr. Winikoff is
aware that he could have filed a motion with this Court to extend time to file a responsive
pleading in light of his stated reasons. Instead, however, he chose to ignore all applicable
procedure by filing a Motion to Dismiss fifteen days late without seeking leave of court do so.
Mr. Winikoff further disregarded applicable procedure by separately filing a Motion to Strike
Plaintiffs’ Request for Entry of Default almost immediately thereafter in contravention to Rules
55(c) and 60(b). Mr. Winikoff’s conduct can only be considered by the Court to be deliberate,
willful, and intentional.
This finding is informed not only by Mr. Winikoff’s conduct in April 2014 regarding
Plaintiffs’ Request for Entry of Default and the motions that surrounded that request, but also by
his continuous flouting of the rules of procedure and court orders throughout these proceedings.
In a Memorandum Order from February 2014, Mr. Winikoff was instructed to “refrain from
filing such unsupported motions in the future.” (ECF No. 116 at 4). The Court warned Mr.
Winikoff that similar behavior going forward could result in “personal sanctions for such
behavior.” Id. Since that Memorandum Order, Mr. Winikoff’s has continued to violate court

The Court notes, however, that in his response brief to the Court’s Order to Show Cause regarding the
Clerk’s Entry of Default, Mr. Winikoff acknowledged that filing an Answer to the Second Amended
Complaint would take minimal effort. Mr. Winikoff stated, “[n]otably, with the exception of the
inclusion of Salomon as a named Defendant, the allegations in the Second Amended Complaint
essentially overlap those of the first two complaints. As Such, the allegations of the Second Amended
Complaint have already been repeatedly denied on the record, with numerous affirmative defenses
thereto.” (ECF No. 167 at 7). However, despite being too busy to file a document that was largely
already completed, Mr. Winikoff chose to file a frivolous Motion to Dismiss and Strike that violated the
Federal Rules of Civil Procedure, Local Rules of Court, and the undersigned’s Chambers’ Rules. See
Memorandum Order (ECF No. 160).
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orders and rules of procedure, and therefore, he shall be subject to personal sanctions for his
intentional misconduct.
In conclusion, all of the criteria for sanctions under 28 U.S.C. § 1927 have been satisfied.
Therefore, on or before May 13, 2014, Plaintiffs shall submit to this Court a reasonable
calculation of their excess costs, expenses, and attorneys’ fees incurred as a result of Mr.
Winikoff’s intentional misconduct for which he will be personally liable.
IT IS SO ORDERED.
May 6, 2014
By the Court:
/s Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
cc: all registered counsel via CM-ECF

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