Dormeyer, Jennifer v. LaSalle Bank, N.A. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-1089 and 99-3252
Jennifer Dormeyer,
Plaintiff-Appellant,
v.
Comerica Bank-Illinois, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 4805--David H. Coar, Judge.
Submitted August 7, 2000--Decided August 30, 2000
Before Posner, Manion, and Kanne, Circuit Judges.
Per Curiam. In our opinion of July 24, 2000,
affirming the district court’s decision, we
ordered the plaintiff-appellant’s counsel, Ernest
T. Rossiello, to show cause why he should not be
sanctioned for having taken a frivolous appeal
(Fed. R. App. P. 38) from the district court’s
order cutting down the attorneys’ fees that he
had requested. Mr. Rossiello has submitted his
response and the disciplinary matter is now ripe
for determination.
In our opinion we had described Mr. Rossiello’s
brief as "a remarkable document. It is only five
pages long, of which the argument section
occupies not quite two pages entirely given over
to truisms and conclusions. The perfunctory
character of the appeal, which alone would
justify an affirmance, [citations omitted], is
remarkable rather than merely lamentable because
of the serious accusations made by the district
judge against the plaintiff’s attorney, Ernest T.
Rossiello, in support of the judge’s decision to
cut down the fees and costs sought by some 80
percent. Citing several previous judicial
opinions criticizing (in one case actually
sanctioning) Mr. Rossiello for his fee requests
or affirming stiff cuts in the requested fees,
[citations omitted], but missing still others
(again including one case in which he was
actually sanctioned), [citations omitted], the
judge accused Rossiello, just as the judge in
[citation omitted] had done, of engaging in the
dishonest practice of joining to small valid
claims, here the plaintiff’s FLSA claim, large
invalid and even frivolous claims, and seeking a
large award of attorneys’ fees for services
ostensibly devoted to the small claim but
actually devoted to the large." We pointed out
that "in his application for fees, Rossiello
allocated 124 hours, constituting half the total
time that he and his associates put in on the
plaintiff’s entire case, to the FLSA claim, even
though it was a tiny claim which required little
more than the record of the days and hours worked
by the plaintiff and which the defendant did not
resist. The defendants had made an offer of
judgment for the full amount sought before trial,
which the plaintiff accepted. And before the
offer was made the parties had engaged in only
the most limited discovery on the claim,
consisting of one request for documents, a single
interrogatory, and ten or so minutes of
deposition time. The judge was rightly aghast at
the allocation of half the total lawyer time to
the FLSA claim. A similar problem attended
Rossiello’s allocation of costs. In his appeal
brief, Rossiello (who signed the brief) does not
deny the judge’s accusations. Although he
complains without elaboration that the judge
should have allowed him a higher hourly fee, he
says nothing about the judge’s accusing him of
submitting what amounts to a fraudulent claim of
attorneys’ fees and of doing this, moreover, in
case after case."
We are dismayed, in light of the detailed
recitation of our concerns in the original
opinion, that Mr. Rossiello, in his response to
the order to show cause, does not forthrightly
confront the charge of fraudulent billing. Except
for a single footnote, his response is devoted to
repeating his complaint that he should have been
allowed a higher hourly fee and to trying to
explain away some of the criticisms made of his
billing practices by other judges in other cases.
The footnote does not attempt to justify the
absurd claim that he devoted 124 hours to the
overtime claim. It suggests confusedly that he
had to prepare to go to trial on that claim,
ignoring the statement in our opinion that the
defendant had made an offer of judgment for the
full amount before trial which the plaintiff had
accepted. The response is totally inadequate. Mr.
Rossiello stands convicted of having attempted to
defraud the district court and his opponent and
of having defended this attempt shamelessly in
this court. The appeal he took from the district
court’s order on fees and costs was not only
frivolous but outrageous. We assess damages of
$10,000 under Rule 38 of the Federal Rules of
Appellate Procedure, which are to be paid by
Rossiello personally (not his client) to the
defendants-appellees within 14 days of the date
of this order. Berwick Grain Co. v. Illinois
Dept. of Agriculture, 217 F.3d 502, 506 (7th Cir.
2000) (per curiam); Hill v. Norfolk & Western
Railway Co., 814 F.2d 1192, 1201-02 (7th Cir.
1987); Westinghouse Electric Corp. v. NLRB, 809
F.2d 419, 425 (7th Cir. 1987); Thornton v. Wahl,
787 F.2d 1151, 1154 (7th Cir. 1986); Natasha,
Inc. v. Evita Marine Charters, Inc., 763 F.2d
468, 472 (1st Cir. 1985).
So Ordered.