Turton et al v. Virginia Department of Education et al
Filing
73
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 0/15/2015. (tjoh, )
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FOR THE EASTERN DISTRICT OF VIRGINIA
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Richmond Division
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"""i."T;'::/r COURT
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NOIRE TURTON,
et al.,
Plaintiffs,
Civil Action No.
3:14cv446
VIRGINIA DEPARTMENT
OF EDUCATION,
et al.,
Defendants.
MEMORANDUM OPINION
This
matter
is
before
the
Court
on
DEFENDANT
PATRICK
ANDRIANO'S MOTION FOR SANCTIONS TO RULE 11 (Docket No. 65) .
T.
For the
reasons set forth herein, the motion will be granted.
FACTUAL AND
PROCEDURAL BACKGROUND
Counsel for the 28 plaintiffs in this case filed the Amended
Complaint on July 11, 2014. Am. Compl (Docket No. 9). The Complaint
generally alleges various incidents of discrimination against black
and special education students in a number of local school divisions
and
includes
both
federal
and
state
law
claims.
The
Virginia
Department of Education, Chesterfield, Essex, Henrico, and Nottoway
County Public Schools,
specific principals and teachers,
and two
attorneys, including Patrick T. Andriano ("Andriano") , the proponent
of the current Motion for Rule 11 Sanctions, are among those named
as defendants
in the suit.
R
[ !
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IN THE UNITED STATES DISTRICT COURT
v.
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Andriano is an attorney with Reed Smith, LLP "who represented
the Henrico and Chesterfield County School Boards regarding issues
with Individualized Education Plans ("IEP") developed for five of
the Plaintiffs who are or were students in certain public schools
in either Henrico County or Chesterfield County." D's Mem. in Supp.
at 2.1 The Amended Complaint asserted claims against Andriano
"individually and in his official capacity2 as counsel for school
districts
in Central Virginia,
including Henrico County Public
Schools, Chesterfield County Public Schools,
Essex County Public
Schools and Nottaway County Public Schools." Am. Compl. at 2.
The Amended Complaint alleges that Andriano was "present in many
IEP meetings
advised
in Henrico and Chesterfield Counties wherein
school
education
officials
laws...."
Am.
to
violate
Compl.
SI
77.
federal
It
is
and
then
state
[he]
special
alleged
that
Andriano's actions and omissions "resulted in conspiracy to violate
federal and state education laws, and amounted to Negligence, Gross
Negligence, Reckless Disregard, and/or Breach of Duty Arising from
Special Relationship.
P's Mem.
Opposing D's Mot.
for Sanctions at
1 Though the Amended Complaint and Plaintiffs' Reply indicated that
Andriano represented schools and school employees in Henrico County,
Chesterfield County, Essex County, Nottoway County, and other
surrounding counties,
the record shows that he did "not represent
the school boards for either Nottoway County or Essex County." Reply
Mem. in Further Support of D's Mot. for Sanctions at 12; see Am.
Compl.; P's Mem. Opposing D's Mot. for Sanctions at 1. The plaintiffs
do not dispute that part of the record.
2 Andriano was retained by the school boards that he did represent
as outside counsel.
Thus, he had no "official capacity."
2
2. Specifically, the acts and omissions attributed to Andriano and
alleged in the Amended Complaint include:
1.
Denying parents access to their child's school records;
2.
Advising school officials to conduct IEP meetings when
parents were not present and did not waive their right to
present in violation of federal law;
3.
Advising school officials that it was appropriate to bring
criminal charges against parents who were vocal about the
violations of federal and state education laws related to
their children and who disagreed with placement decisions
made by the school IEP team;
4.
Engaging in conduct in IEP meetings that essentially
amounted to the bullying and harassment of parents who
tried to participate in the meeting;
5.
Advising
school
officials
to
disregard
the
recommendations of a treating physician with regard to the
needs of the SPED student;
6.
and
Conspiring with officials to deny students their right to
a FAPE (free appropriate public education) in the least
restrictive environment
See P's Mem. in Opposition to Sanctions at 1-2 (citing Am. Compl.
Counts 7-9,
11).
Many of the Defendants, including Adriano, filed Motions to
Dismiss based on various legal theories.
See Motion to Dismiss
Pursuant to Rule 12(b)(1) (Docket No. 29); Motion to Dismiss Pursuant
to Rule 12(b)(6)
(Docket No. 31) (both filed by Andriano). Motions
to
filed
Dismiss
were
pursuant
to
Rule
8(a),
Rule
10(b),
Rule
12(b)(1), and Rule 12(b) (6) . (See Docket Nos. 12, 14, 16, 20-22, 24,
27,
29,
31,
35,
37,
38,
44)
After considering these motions, this Court entered an Order
dismissing
the
Amended Complaint
as to
all
defendants
without
prejudice on September 23, 2014. Order (Docket No. 46) . In so doing,
the Court found that the Complaint violated Fed. R. Civ. P. 8(a) (2)
and Fed R. Civ.
12(b)(1)
P. 10(b). The motions to dismiss pursuant to Rules
and/or 12(b)(6)
were denied as moot.
Andriano filed his Motion for Rule 11 Sanctions on September
9,
2014,
before the Order dismissing the Amended Complaint was
entered, and the Order provides that: "the Court retains jurisdiction
to
decide
Defendant
Patrick
T.
Andriano's
Motion
for
pursuant to Rule 11."
LEGAL STANDARD UNDER RULE 11
Fed. R. Civ.
P. 11 provides in relevant part:
By presenting to the court...a pleading... the
attorney or unrepresented party is certifying
that to the best of that person's knowledge,
information, and belief formed after an inquiry
reasonable under 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;
and
Sanctions
3.
the
factual
contentions
have
evidentiary support or, if specifically
so
identified,
will
likely
have
evidentiary support after a reasonable
opportunity for further investigation
or discovery.
Fed. R. Civ.
P. 11 (emphasis added).
Violation of any one of these prescriptions is sufficient to
trigger the mandatory imposition of a sanction.
Andriano argues
that Plaintiffs and their attorneys have violated all three. See Fed.
R. Civ. P. 11 ("If a pleading, motion, or other paper is signed in
violation of this rule,
the court,
upon motion or upon its own
initiative, shall impose upon the person who signed it, a represented
party, or both, an appropriate sanction.")
In
situations
like
these
(emphasis added).
where multiple
types
of
Rule
11
violations are alleged, the Fourth Circuit instructs that district
courts consider whether the claims advanced in the pleading are
supported by the facts and the law (or a reasonable argument for
extending,
modifying,
or reversing
the law)
before making
a
determination of improper purpose. In re Kunstler, 914 F.2d 505, 518
(4th Cir.
1990).
That approach is logical because "whether the
pleading has a foundation in fact or is well grounded in law will
often influence the determination of
the
signer's purpose.
Id.
Additionally, the inquiry under Rule 11(b)(1), which focuses on the
signer's central purpose
for filing the pleading,
is somewhat
different than the inquiry under Rule 11(b)(2) and (b)(3), both of
which focus on the reasonableness of the signer's inquiry into the
factual and legal bases for the claim(s).
When sanctions are sought pursuant to Rule 11(b) (2) and (b) (3),
the standard is one of "objective reasonableness" and the court must
focus on "whether a reasonable attorney in like circumstances could
believe his actions to be factually and legally justified." Cabell
v. Petty, 810 F.2d 463, 466 (4th Cir. 1987). When engaging in this
analysis, the court is tasked with assessing "what was reasonable
to believe at the time the pleading. ..was filed." Id. at 467 (citing
Fed. R. Civ. P. 11 advisory committee's notes). As the rule itself
indicates,
the
relevant
circumstances
must
be
considered,
and
factors such as time pressures and attorney experience may influence
the court's
reasonableness determination.
See
Fed.
R.
Civ.
Pro.
advisory committee's notes; see also, Kunstler, 914 F.2d at 505. If,
pursuant to this analysis, the court determines that the signer
"failed to conduct a reasonable inquiry into the applicable law"
and/or facts prior to filing the pleading or motion at issue, Rule
11 sanctions are mandated. See Brubaker v. City of Richmond, 943 F.2d
1363,
1373
(4th Cir.
1991).
When a sanction is sought under Rule 11(b) (1), the assessment
is made using an "objective standard of reasonableness" in that it
is not appropriate to consider the "consequences of the signer's act,
subjectively viewed by the signer's opponent." Kunstler, 914 F. 2d
at 518
(citing Zaldivar v. City of Los Angeles,
780 F.2d 823,
832
(9th Cir.
1986)
(emphasis added).
However,
it
is appropriate to
consider "the signer's subjective beliefs to determine the signer's
purpose in filing the suit, if such beliefs are revealed through an
admission that the signer knew the motion or pleading was baseless
but filed it nonetheless." Id. at 519
The
text
of
Rule
11
teaches
(emphasis added).
that
"to
harass
or
to
cause
unnecessary delay or needless increase in the costs of litigation"
are all examples of improper purposes. Fed. R. Civ. Pro. 11. However,
those examples are not exclusive.
Id.
at 518.
The governing
principle is that a complaint must be filed with the sincere and
central purpose of vindicating rights in court.
is improper under Rule 11.
Id.
If not, its purpose
When a complaint is filed for the
proper purpose of vindicating rights and one or more other purposes
of which the Court "does not approve," sanctions are only appropriate
if "the added purpose is [] undertaken in bad faith or is [] so
excessive as to eliminate a proper purpose." Id. at 518.
DISCUSSION
Andriano argues that the claims against him:
basis;
(1) lack legal
(2) lack factual basis; and (3) were filed for an improper
purpose. He also notes that Plaintiffs and their counsel were put
on notice after the Amended Complaint was filed that their claims
against
him
lacked
factual
and
legal
support,
nevertheless continued to pursue those claims.
but
that
they
Andriano now seeks
Rule 11 Sanctions, asking this Court to "enter an order imposing the
maximum sanctions permitted by law against plaintiffs and their
counsel." D's Reply Mem. in Supp. of Mot. for Sanctions at 3.
A.
Alleged Lack of Legal Basis
Andriano argues that the claims against him lacked legal basis
because:
(1) the Court lacks subject matter jurisdiction over the
claims against him; and (2) the claims are "fatally flawed as a matter
of law." D's Mem. in Supp. of Sanctions at 1.
First, Andriano argues, as he did in his Motion to Dismiss
Pursuant
to
Rule
12(b)(1),
that
this
Court
"lacks
diversity
jurisdiction and lacks federal question jurisdiction to adjudicate
purely state law claims brought by Virginia residents against a
Virginia resident." D's Reply Mem. in Supp. of Sanctions at 6.
Plaintiffs concede that their claims against Mr. Andriano "are in
the form of state law claims," but argue that the claims against Mr.
Andriano "are so intertwined with the conduct involved in the federal
law claims outlined in the Amended Complaint,
that they must be
reviewed in conjunction with the federal matters." P's Mem. Opposing
D's Mot.
for Sanctions at 6.
Adriano's jurisdictional argument
fails because the Amended Complaint was based on federal question
jurisdiction as to defendants other than Adriano and because 28
U.S.C.
§
Adriano.
1367(a)
And,
provides
for
pendant
party
jurisdiction over
supplemental jurisdiction over claims against a
non-diverse party exists if the supplemental claim at issue arises
8
from the same case or controversy i.e.,
"if the state and federal
claims derive from a common nucleus of operative fact" and are such
that "the plaintiff would ordinary be expected to try all of them
in one judicial proceeding." See Novak v. Harper, 2014 U.S. Dist.
LEXIS 131009, 5 (E.D. Va. Sept. 17, 2014) (citing United Mine Workers
v. Gibbs,
383 U.S.
715,
725 (1966).
Plaintiffs' counsel frames her argument on the subject matter
jurisdiction issue by asserting that there was a "direct correlation"
between the asserted federal claims against other defendants and that
the claims against Adriano were "intertwined" with those other
claims.
It thus
appears
that a reasonable
attorney
in like
circumstances could have similarly believed that there was subject
matter jurisdiction over the claims brought against Andriano.
Second, Andriano argues that the Court lacks subject matter
jurisdiction because Plaintiffs failed to exhaust all administrative
remedies before filing suit.
Plaintiffs provide an explanation for
why they did not exhaust all administrative remedies, citing the
number of students whose rights were repeatedly and egregiously
violated.
P's
Mem.
Opposing
D's
Mot.
for
Sanctions
at
5.
Specifically, Plaintiffs contend that it would have been "futile"
to seek a remedy in an administrative proceeding and argues for "an
extension of federal law in the Fourth Circuit...to include a much
needed exception to the requirement to exhaust all administrative
remedies."
Id.
at
5-6.
That
argument,
as
to
its
merits,
is
unsupported by any citation to decisional law.
Counsel' s cogitation
that an exception is needed to the rather well-settled exhaustion
doctrine cannot be the basis upon which to conclude that an exception
is warranted under legal principles.
that
there
was
a
reasonable
basis
Thus, the Court cannot find
for
the
failure
to
exhaust
administrative remedies.
Third,
Andriano
argues
that
Plaintiffs'
state
law
claims
against him lack legal basis and could not be based on a reasonable
inquiry into the applicable law.
However, the only state common law
claim that Andriano found worthy of a detailed review is the claim
based on "breach of duty arising from a special relationship." See
D's Mem. in Supp. of Sanctions at 6-8.
On that point, Andriano
asserts that "even a cursory review of the applicable Virginia law
would have revealed to Plaintiffs' counsel that no such [special]
relationship could ever exist. " Id. at 7.
numerous Virginia decisions
In support, Andriano cites
holding that,
"in providing
legal
representation, an attorney's sole duty is to his or her client, and
not to any third party." Id. at 7-8. Based on the fundamental nature
of this "bedrock rule," Andriano argues that "Plaintiffs' counsel
either knew the applicable law and chose to ignore it, or failed to
conduct even the most basic research to determine what the applicable
law is." Id^ at 8.
Andriano
also
correctly
asserts
that,
"at
no
point
have
plaintiffs identified what, if any, legal research they claim was
10
performed prior to filing the Complaint or Amended Complaint against
Mr. Andriano." D's Reply Mem. in Supp. of Sanctions at 8.
The law of Virginia is quite clear on this subject.
counsel
has
not
undertaken in
shown
an
that
effort to
any
prefiling
legal
find legal support
Plaintiff s
research
was
for the "special
relationship" assertions in the Amended Complaint.
And, given the
clear and settled nature of Virginia law on the subject,
difficult to conclude that any such research was undertaken.
it is
On this
record then, the Court finds that there was no prefiling inquiry into
the law that applies to the special relationship assertions in the
Amended Complaint.
B.
Factual Basis
Next, Andriano asserts that Plaintiffs' claims against him are
factually unsupported. In short, Andriano argues that the "Complaint
fails
to
set
forth
specific
factual
allegations
supporting
Plaintiffs' purported claims" and Plaintiffs' counsel failed to make
an effort to determine that their claims are factually supported.
D's Mem. in Supp. of Mot. for Sanctions at 3. Andriano argues that
it is not enough that Plaintiffs allege that Mr. Andriano was "present
at certain unspecified meetings and that he provided legal advice
to his clients." D's Reply Mem. in Supp. of Sanctions at 10.
In response, Plaintiffs' counsel asserts that counsel attended
fifty or more IEP meetings at which Andriano was present ten or more
times,
and counsel
has
recordings
11
of
these meetings
evidencing
Andriano's attempt to bully,
harass,
and intimidate parents and
improperly advise administrators and teachers to violate federal
law. P's Mem. Opposing D's Mot. for Sanctions at 6-7. In addition,
Plaintiffs' counsel asserts she has spent "in excess of 200 hours
attending IEP meetings, reviewing school records and IEP documents
and meetings with parents." Id.
That record shows a substantial basis for the allegations about
Adriano's presence at, and his observed conduct during, some of the
meetings alleged in the Amended Complaint.
However, the record now
shows that the allegation that Adriano was not counsel for the School
Board of Essex and Nottoway Counties.
Thus,
"[e]ven a cursory
investigation" would have revealed that Adriano did not represent
the school boards for either Nottoway County or Essex County and that
he
was
not
involved
in
the
development
of
IEPs
student-plaintiffs attending schools in those counties.
for
the
In sum,
there was not an adequate investigation into the factual basis for
allegations to the contrary.
C.
Improper Purpose
Finally, Andriano argues that Plaintiff's claims against him
are not asserted for any proper purpose. In support, Andriano cites
the
fact
that
plaintiffs
sought
monetary damages
in excess
of
$20,000,000.00 based on "putative claims that do not contain common
factual issues or common questions of law." D's Reply Mem. in Supp.
of Mot. for Sanctions at 13. Additionally, Andriano suggests that,
12
if Plaintiffs truly had a proper purpose in filing their Complaint,
they would not have failed to exhaust administrative remedies, would
not have waited until some of the student-plaintiffs failed to be
enrolled in the defendant school systems, and would not have sought
such an exorbitant sum of money.
Id.
Andriano alleges that Plaintiffs "primary motives were to gain
publicity,
and to embarrass teachers, principals,
county officials." Id.
Of course,
and state and
if that allegation is true,
sanctions would be mandated because the only proper central purpose
for filing a complaint is to vindicate rights in court, not to gain
publicity or embarrass officials into acting as Plaintiffs' counsel
think they should.
To support his contention,
Andriano cites
counsel's public statements which include, "We took a chance because
there was not a lot of case law on doing something like this, but
something had to be done to wake up the defendants and get the
information out there." Id.
(citing Ted Strong,
Judge Dismissed
Special Education Suit, Richmond Times-Dispatch, Sept. 24, 2014, at
Bl,
B7)) .
Andriano cites Kunstler as an example of a similar case where
the "primary motives in filing the complaint were to gain publicity,
to embarrass state and county officials..." Kunstler, 914 F.2d at
520.
However,
in
Kunstler,
the
"district
court
concluded
that
plaintiffs' counsel never intended to litigate [the] § 1983 action,"
and that determination clearly supported the award of sanctions based
13
on
improper purpose.
Id.
at
519.
Here,
it
is
not
clear that
Plaintiffs never intended to follow through with and litigate their
claims against Andriano, and the Court cannot conclude that counsel
used the threat of litigation as a mere bargaining chip.
As
discussed above,
Plaintiffs'
analysis.
purpose
in
the subjective views of Andriano about
filing
the
suit
are
irrelevant
to
the
Rather, the Court must determine Plaintiff's purpose
based on objective or otherwise reliable evidence.
direct evidence on which to make
such a finding.
There is no
However,
the
Court's findings on the existence of reasonable factual and legal
support for claims can affect the analysis under this prong of Rule
11.
In that regard,
where "counsel willfully files a baseless
complaint, a court may properly infer that it was filed...for some
purpose other than to vindicate rights through the judicial process."
Kunstler,
D.
914 F.2d at 519.
Are Sanctions Appropriate?
Given the findings that there was a lack of legal support for,
and a lack of legal inquiry into, the special relationship theory
that lies at the core of claims against Adriano, and considering the
public statements of Plaintiffs' counsel, the Court concludes that
sanctions are appropriate.
14
E.
Appropriate Sanction(s) and Possible Need for a Hearing
Sanctions under Rule 11 may be monetary or nonmonetary, and
only "the least severe sanction adequate to serve the purposes of
Rule 11 Should be imposed. Cabell, 810 F.2d at 466. The case law makes
clear that the primary purpose of Rule 11 is to deter improper
litigation rather than to compensate the opposing party for the costs
of defending the lawsuit. See Kunstler, 914 F.2d at 522; see also
Lewin v. Cooke, 95 F. Supp. 2d 513 (E.D. Va 2000)
monetary sanction,
however,
purpose of Rule 11,
should always
that is,
("The amount of
reflect the primary
deterrence of future litigation
abuse."). In fashioning a sanction, the court should consider: (1)
the reasonableness of the opposing party's attorney's fees; (2) the
minimum to deter; (3) ability to pay; and (4) factors related to the
severity of the Rule 11 violation. Id. at 523. The court may also
"consider factors such as the offending party's history, experience,
and ability, the severity of the violation, the degree to which malice
or bad faith contributed to the violation, the risk of chilling, the
type of litigation involved, and other factors as deemed appropriate
in individual circumstances." Id.
There
is
not
a
sufficient
at 524-525.
record
on
which
determination of what a reasonable sanction would be.
to
make
the
Counsel shall
confer and advise the Court, by January 31, 2015, how such a record
can be framed.
Alternatively, counsel could agree on a sanction and
propose it for consideration.
15
CONCLUSION
For the foregoing reasons, DEFENDANT PATRICK T.
MOTION FOR SANCTIONS TO RULE 11 (Docket No.
It
is
ANDRIANO'S
65) will be granted.
so ORDERED.
/s/
(l£/>
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date:
January (fft 2015
16
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