Grove Fresh v. Messina, John P. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-2799 & 01-3024
GROVE FRESH DISTRIBUTORS, INC.,
Plaintiff,
v.
JOHN LABATT, LTD. and
AMERICAN CITRUS PRODUCTS CORP.,
Defendants-Appellees.
APPEAL OF: JOHN P. MESSINA
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 90 C 5009—James B. Zagel, Judge.
____________
ARGUED MAY 21, 2002—DECIDED AUGUST 5, 2002
____________
Before BAUER, COFFEY and RIPPLE, Circuit Judges.
BAUER, Circuit Judge. The district court issued a civil
contempt order against attorney John P. Messina after
he disclosed confidential information in publicly filed doc-
uments in violation of a protective order. After an un-
successful direct appeal and a second contempt order,
Messina filed two subsequent motions in the district
court for reconsideration of the first contempt order: one
motion claimed that the record in his direct appeal was
incomplete, and the other sought Judge Zagel’s recusal
2 Nos. 01-2799 & 01-3024
based on an “unremitting bias.” The district court denied
both motions. Messina appeals the district court’s deci-
sions on numerous grounds. For the following reasons, we
affirm the decisions of the district court. Moreover, be-
cause we find Messina’s appeal frivolous, we impose Rule
38 sanctions and order him to pay costs, plus $1,500 to ap-
pellee American Citrus.
BACKGROUND
Attorney John Messina represented Grove Fresh Dis-
tributors Inc. (“Grove Fresh”) in two separate but related
suits filed against competing orange juice manufactur-
ers for violations of various federal laws. Appellees were
among the five defendants named in the two suits. The
1989 complaint alleged unfair competition and was insu-
lated by a protective order. The 1990 suit alleged a conspir-
acy to sell adulterated orange juice and to violate RICO
by selling mislabeled products and this was under a seal
and protective order. Over the course of the early stages of
the litigation, Messina repeatedly disregarded the protec-
tive orders and disclosed protected information in public
filings with the court.
The district court eventually entered summary judg-
ment on the 1989 unfair competition complaint, while the
1990 case proceeded with settlement negotiations. On April
25, 1993, the parties orally agreed to terms of a settle-
ment but the defendants would not definitively agree to
settle until Messina agreed to the confidentiality provi-
sions in a consulting agreement. Thereafter, the court dis-
missed the 1990 case, but substantial problems arose
regarding the settlement agreement and with the dismissal.
On August 24, 1993, the defendants filed a motion to en-
force the settlement agreement or for relief from judgment
pursuant to Rule 60(b) as a result of Messina’s conduct af-
ter the dismissal. When the parties were to appear before
Nos. 01-2799 & 01-3024 3
Judge Zagel, Messina was not present. Judge Zagel ordered
him to appear at the next court proceeding, but again,
Messina was not present. The district court then issued a
rule to show cause.
On January 21, 1993 Grove Fresh discharged Messina
as its attorney in this litigation, but failed to withdraw
the record of appearance for Messina until April 12, 1995.
In October of 1993, Messina filed a 42 page motion in
this Court seeking a hearing on allegations of misconduct.
The motion revealed information subject to the seal and
protective orders, including the confidential amount paid
in settlement, names of the individuals involved who
invoked the Fifth Amendment, and other confidential in-
formation acquired through discovery. Messina also rep-
resented that he was still counsel for Grove Fresh, de-
spite the fact that Grove Fresh had discharged him nine
months earlier.
On November 9, 1993, we dismissed Messina’s plead-
ings and ordered that he show cause as to why he should
not be sanctioned for filing a frivolous motion. We also
referred his conduct to the Illinois Attorney Registration
and Disciplinary Commission.
In response to Messina’s conduct during the course of
the litigation, the appellees petitioned the district court,
requesting a finding of contempt and imposition of sanc-
tions. Alleging that Messina had violated the protective
order and seal, appellees charged that: (1) Messina was in
contempt of court for repeatedly violating the seal and
protective order for the 1990 case by his disclosures of
confidential discovery material in a brief filed with the
Court of Appeals, in a letter to counsel for an intervening
party and in a conversation with a New York Times re-
porter; (2) Messina was in contempt of court for failing
to appear before Judge Zagel when ordered to do so; and
(3) Messina was subject to Rule 11 sanctions for making
4 Nos. 01-2799 & 01-3024
false or misleading representations to the Court of Ap-
peals regarding his status as a Grove Fresh attorney. Judge
Zagel held an evidentiary hearing on the matter on Febru-
ary 3, 1995, to provide Messina an opportunity to respond
to the charges.
After the hearing, Messina again filed a series of plead-
ings in this Court and again included the amount paid
in settlement. On June 9, 1995, we dismissed Messina’s
appeal as moot and stated, “if Messina continues to file
frivolous papers, this court will impose sanctions.”
On June 9, 1995, the district court issued an opinion
finding that Messina intentionally, willfully and repeated-
ly violated the confidential seal and protective order
based on the disclosures in the 42 page motion filed in this
Court, in his conversations with the New York Times
reporter and in his letter to the intervening party. Grove
Fresh Distributors, Inc. v. John Labatt, Ltd., 888 F.Supp.
1427 (N.D. Ill. 1995). The court characterized Messina’s
actions as “audacious, even by his [Messina’s] own stan-
dards of audacity.” The court also found that Messina in-
tentionally and willfully disobeyed an order to appear
before the district court on October 21, 1993, and that he
violated Rule 11 in the motion he filed in this Court by
misrepresenting himself as counsel for Grove Fresh. As
a deterrent to future improper disclosures, the court
ordered Messina to post a $50,000 bond and warned
that failure to comply with the order would result in
forfeiture of the bond and possible additional sanctions.
The contempt order also specifically prohibited Messina
from disclosing any protected information in the case
without first consulting the court and establishing an
independent public source for the information. Finally,
Messina was ordered to pay attorneys’ fees and expenses
incurred by the defendants in prosecuting the contempt
petitions, and a $1,000 fine for his Rule 11 violations. A
Nos. 01-2799 & 01-3024 5
judgment was entered against Messina in the amount
of $149,554.45, plus statutory interest. Messina appealed
the district court’s order; we unanimously affirmed the
contempt judgment in an unpublished opinion dated Feb-
ruary 6, 1998. 134 F.3d 374 (7th Cir. 1998).
Even after this order was entered, Messina continued
to disregard court orders and to include documents des-
ignated as confidential in public filings. In September
of 1999, Messina filed for Chapter 11 reorganization in
the name of his law firm. The appellees (judgment hold-
ers) filed an adversary action for a declaration that the
contempt judgment was not dischargeable because it
was based on willful and malicious conduct. In response,
Messina filed an affidavit with the United States Bank-
ruptcy Court that included information under protec-
tive order. Messina filed the affidavit publicly and did
not seek the district court’s prior authorization for this
disclosure.
On May 16, 2000, the defendants filed a petition in the
district court, seeking a determination that Messina
again be held in contempt for his disclosures in the bank-
ruptcy proceeding. The district court granted this petition,
and a second contempt decision was rendered on June 8,
2000.
In June of 2000, Messina filed a motion to vacate the
original contempt judgment, alleging that the manner
in which the record for the first appeal was kept and
assembled was improper. Messina claimed that the attor-
neys who represented him failed to raise this issue in
his direct appeal because they feared judicial retribu-
tion from the district court in other litigation. In addi-
tion, Messina moved to recuse Judge Zagel, asserting
an “unremitting bias” and conduct that Messina contends
could result in Judge Zagel’s impeachment. The district
court denied both motions and subsequent motions to
reconsider. Messina then filed this appeal.
6 Nos. 01-2799 & 01-3024
ANALYSIS
A. Motion For Recusal and Vacatur of Contempt Order
Messina first argues that the district court erred in fail-
ing to grant his motion for recusal pursuant to 28 U.S.C.
§ 455(b)(1). We review de novo. Taylor v. O’Grady, 888 F.2d
1189, 1201 (7th Cir. 1989).
A federal judge must recuse himself from a proceeding
“where he has a personal bias or prejudice concerning a
party.” 28 U.S.C. § 455(b)(1). Any bias must be proven
by compelling evidence, and the issue is whether “a rea-
sonable person would be convinced the judge was biased.”
Lac du Flambeau Indians v. Stop Treaty Abuse-Wis., Inc.,
991 F.2d 1249, 1255 (7th Cir. 1993) (citations omitted).
The bias or prejudice “must be grounded in some person-
al animus or malice that the judge harbors . . . of a kind
that a fair-minded person could not entirely set aside
when judging certain persons or causes.” United States v.
Balistrieri, 779 F.2d 1191, 1201 (7th Cir. 1985). “Judicial
rulings alone almost never constitute a valid basis” for
a recusal motion. Liteky v. United States, 510 U.S. 540, 555
(1994). Even “judicial remarks during the course of a tri-
al that are critical or disapproving of, or even hostile to
counsel, the parties or their cases, ordinarily do not sup-
port a bias or partiality challenge,” unless the remarks
“reveal an opinion that derives from an extrajudicial
source.” Id. The evidence must reflect a “deep-seated fa-
voritism or antagonism as would make fair judgment
impossible.” Id. Likewise, “a judge’s ordinary efforts at
courtroom administration—even a stern and short tem-
pered judge’s ordinary efforts at courtroom administra-
tion—remain immune.” Id. at 556.
We agree with the district court that Messina has failed
to establish any basis for recusal. Messina asserts that
Judge Zagel’s decisions against him repeatedly demon-
strate an “unremitting bias.” However, Messina makes
Nos. 01-2799 & 01-3024 7
no attempt to establish any bias stemming from a person-
al relationship or prior litigation. Instead, he dwells on
Judge Zagel’s rulings during the litigation, which absent
extraordinary circumstances, are not grounds for recusal.
Id. at 555. Although Judge Zagel criticized Messina’s
conduct several times throughout the litigation, these
incidents were in direct response to Messina’s repeated
disregard for the confidentiality orders. His efforts at
courtroom administration and enforcing compliance with
a court order do not amount to an inability to render fair
judgments.
Messina also argues, at length, that the district court
showed bias by permitting the appellees to advance con-
trary positions concerning his status as a Grove Fresh
attorney in the litigation. However, the record reflects
that Grove Fresh failed to withdraw Messina’s appear-
ance immediately upon discharging him. As a result, the
appellees were confused as to his status as counsel for
Grove Fresh. Their contradictory contentions on the mat-
ter only reflected the inconsistent positions advanced by
Grove Fresh and Messina, and certainly not any bias by
Judge Zagel.
Messina also asserts that the court improperly issued
the contempt judgment because of his misrepresenta-
tions as counsel for Grove Fresh. He challenges this rul-
ing, asserting that it is barred by the doctrine of collat-
eral estoppel because it contradicts an earlier ruling in
which the court sustained the invocation of the attorney-
client privilege by Grove Fresh regarding its communica-
tions with Messina. Again, Messina’s assertions are mis-
placed. First, the court’s determination that Messina
misrepresented himself as a Grove Fresh attorney was
not at issue in the court’s contempt ruling; rather, it was
one of three bases supporting Rule 11 sanctions. Further,
the doctrine of collateral estoppel is not involved; the
two rulings are entirely unrelated. Messina’s misrepre-
8 Nos. 01-2799 & 01-3024
sentations were the focus of the Rule 11 finding, whereas
the attorney-client ruling focused on whether certain
documents contained any privileged communications be-
tween Grove Fresh and Messina. Grove Fresh was and
is entitled to maintain the confidentiality of its commu-
nications with Messina, regardless of his discharge. Mes-
sina’s argument that collateral estoppel requires that the
contempt order be vacated is entirely without merit.
Messina’s other allegations regarding the manner in
which Judge Zagel conducted the litigation are equally
without merit. First, the evidence supporting Judge Zagel’s
rulings was overwhelming: Messina repeatedly violated
the confidential protective orders of the court, the evi-
dence supporting these determinations is specified in the
contempt decision, and the court found each violation to
be established beyond reasonable doubt. Second, judicial
rulings are grounds for appeal, not recusal. Liteky, 510 U.S.
at 555; Hook v. McDade, 89 F.3d 350, 355 (7th Cir. 1996).
Here, Messina is simply recycling issues he unsuccessfully
raised on direct appeal and now claims that Judge Zagel’s
actions were unfair. However, we previously upheld the
district court’s decisions as sound and reasonable on di-
rect appeal. Absent compelling evidence of a personal and
extrajudicial prejudice against Messina, Judge Zagel’s con-
duct did not warrant recusal.
Messina also claims that his appellate counsel had a du-
ty to report judicial misconduct based on Judge Zagel’s
failure to recuse himself. According to Messina, his coun-
sel did not argue his recusal claim on appeal because of
a fear of judicial retribution, which amounts to an un-
disclosed conflict of interest that requires us to vacate the
contempt order. As we held above, Messina failed to es-
tablish any basis for recusal in the first place. Any argu-
ment that his counsel breached a duty in not reporting
judicial misconduct based on any failure to recuse is ob-
viously without merit.
Nos. 01-2799 & 01-3024 9
B. Maintenance of the Record
Messina next argues that there were irregularities in
the assembly of the record for his direct appeal. In fact,
he asserts that he was not provided a complete record for
his appeal and that the manner in which the pleadings
were handled could potentially subject Judge Zagel to
impeachment proceedings. However, an affidavit submitted
by his appellate counsel concerning preparation of the
record on appeal defeats Messina’s argument. In paragraph
23 of this affidavit, Messina’s appellate counsel states:
Through meetings with Ted Newman (the Clerk’s
officer ombudsman), Mr. Walker, and Wanda Barnes
(the court reporter assigned to Judge Zagel’s court-
room), I was able to ensure that the record was fully
reconstructed and that the record on appeal was com-
plete.
Messina does not point to any missing document or plead-
ing, or any argument that he was unable to pursue be-
cause of a deficiency in the record. He does not advance
any reason why the maintenance of the docket affected
the outcome of his direct appeal. We are satisfied that
when we considered Messina’s initial appeal and affirmed
the contempt judgment, we did so on a complete record.
C. Contempt Sanctions
Messina’s final argument is that the court erred in
imposing the second contempt order and the $7,500 sanc-
tion for filing papers in bankruptcy court that referred to
a witness involved in the Grove Fresh litigation who
invoked his Fifth Amendment privilege. We review the
district court’s imposition of civil contempt sanctions for
an abuse of discretion. Fries v. Helsper, 146 F.3d 452, 458
(7th Cir. 1998).
To hold Messina in civil contempt, the district court “must
be able to point to a decree from the court which sets
10 Nos. 01-2799 & 01-3024
forth in specific detail an unequivocal command which the
party in contempt violated.” Jones v. Lincoln Elec. Co.,
188 F.3d 709, 738 (7th Cir. 1999). Here, the court’s or-
ders precluded specific disclosures and Messina’s public
filings failed to comply. Messina counters that the court
itself disclosed the subject information in its contempt
order. As a result, he claims he cannot be sanctioned for
disclosing information already in the public domain. How-
ever, as the district court explained, “a simple compar-
ison of the documents shows that Messina’s affidavit
contains information that exceeds that scope of what
was included in the published opinion.” Accordingly, it
was well within the court’s discretion to issue the second
contempt order and impose the $7,500 sanction.
D. Rule 38 Sanctions
Finally, American Citrus moves, pursuant to Rule 38
of the Federal Rules of Appellate Procedure, for sanc-
tions against Messina. Rule 38 provides that an appel-
late court may award sanctions against an appellant who
brings a frivolous appeal. FED. R. APP. P. 38; Jansen v.
Aaron Process Equip. Co., 207 F.3d 1001, 1005 (7th Cir.
2000). An appeal is frivolous “when the result is obvious
or when the appellant’s argument is wholly without mer-
it.” Spiegel v. Cont’l Illinois Nat’l Bank, 790 F.2d 638,
650 (7th Cir. 1986). “Pursuing a frivolous appeal invites
sanctions, including just damages, which we may impose
in our considered discretion.” Berwick Grain Co. v. Illinois
Dept. of Agric., 217 F.3d 502, 505 (7th Cir. 2000) (internal
citations omitted).
We conclude that Rule 38 sanctions are appropriate
in this case. We agree with the appellees that this appeal
is simply Messina’s attempt to repackage his prior ap-
peals. Given that Messina’s claims have been unsuccess-
fully litigated numerous times in both this Court and in
Nos. 01-2799 & 01-3024 11
the district court, Messina could not have believed in
good faith that he might be successful this time around.
See, e.g., Berwick, 217 F.3d at 506 (imposing Rule 38
sanctions when appellant could not have reasonably be-
lieved that his appeal was filed in good faith based on
its complete lack of substantive merit). In his previous
appeal, we warned that any future abuse of the legal
system would result in sanctions. Messina failed to heed
this warning. Because we have previously affirmed Judge
Zagel’s rulings against Messina, his latest attempt to
manipulate the legal system can only be characterized as
frivolous. We order Messina to pay costs, plus $1,500 to
American Citrus for his abuse of the litigation process
and the frivolous nature of this appeal.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of
the district court, and we sanction John P. Messina to pay
costs, plus $1,500 to appellee American Citrus.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-5-02