When do sanctions transcend beyond warranted to the rarefied ranks of "richly deserved"? Seventh Circuit Court of Appeals Chief Judge Frank Easterbrook offered a little insight on that topic this week based on an attorney's botched attempt to remove an action for sanctions in a lawsuit to a federal court.
Attorney David Novoselsky, purporting to represent plaintiff MB Financial as guardian of minor Cristina Zvunca's financial interests, sued six defendants in a state court. His suit alleged, among other things, that several of the defendants had abused Zvunca.
The claim had many problems, including that fact that Tiberiu Klein, Zvunca's general guardian, had discharged Novoselsky as Zvunca's lawyer. When the defendants pointed out the suit's shortcomings, Novoselsky dismissed the complaint. The defendants then sought an award of sanctions against Novoselsky under an Illinois Supreme Court rule.
Before the state court ruled on this motion, Klein filed a motion to intervene for the purpose of requesting sanctions on Zvunca's behalf. Before the state court could rule on Klein's motion, Novoselsky filed a notice of removal to federal court.
Federal law provides that an attorney who 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 his conduct. It also authorizes an award of attorneys' fees based on unreasonable removal.
Here, a district court ordered Novoselsky to pay more than $12,000 to two of the defendants. Novoselsky appealed. The Seventh Circuit Court of Appeals affirmed the order, noting that "Novoselsky's removal was worse than unreasonable; it was preposterous." Here are a few reasons why Judge Easterbrook, writing for the three-judge panel, found it preposterous:
- Only a party can initiate federal removal. A request for sanctions does not make a person a party.
- Among parties, only a defendant can remove the suit. Novoselsky was not a defendant; he was counsel on the plaintiff's side.
- Removal requires the consent of all defendants. Even if Novoselsky was characterized as a defendant, none of the other six defendants agreed to removal.
- A notice of removal must be filed within 30 days of a suit's commencement. Novoselsky's notice was filed long after that.
While Novoselsky's shenanigans occurred before enactment of the Federal Courts Jurisdiction and Venue Clarification Act, lawyers practicing under the current law can still learn from his mistakes. Follow the federal removal rules closely, or pay the price.
- MB Financial Bank v. David A. Novoselsky (Seventh Circuit Court of Appeals)
- Vexatious Litigation Smacks of Grievously Unethical Conduct (FindLaw's California Case Law Blog)
- Seventh Circuit to FACT Act Plaintiff: What's Your Damage? (FindLaw's Seventh Circuit Blog)