Julia Egan v. David Pineda

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2011
JULIA EGAN,
Plaintiff,
v.
DAVID PINEDA,
Defendant-Appellee.
APPEAL OF LEWIS G. SPICER,
Attorney-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 9034 — Gary S. Feinerman, Judge.
____________________
SUBMITTED NOVEMBER 13, 2015 — DECIDED DECEMBER 23, 2015
____________________
Before POSNER, RIPPLE, and SYKES, Circuit Judges.
POSNER, Circuit Judge. The district judge imposed a $5,000
sanction on lawyer Lewis Spicer for misconduct in repre-
senting plaintiff Egan in this case, which alleged sex discrim-
2 No. 15-2011
ination and the creation of a hostile work environment. The
judge imposed the sanction pursuant to the inherent authori-
ty of federal judges to sanction attorneys for actions taken
“in bad faith.” Chambers v. NASCO Inc., 501 U.S. 32, 45–46
(1991); Johnson v. Cherry, 422 F.3d 540, 548–49 (7th Cir. 2005).
Bad faith can be “recklessly making a frivolous claim,” Mach
v. Will County Sheriff, 580 F.3d 495, 501 (7th Cir. 2009), which
is an accurate description of the conduct for which Spicer
was sanctioned. And the claim he advanced on behalf of his
client, the plaintiff, was not only frivolous but also damag-
ing to the defendant.
The 75th paragraph of a complaint of more than 100 par-
agraphs, drafted by Spicer, alleges that Egan “was repeated-
ly caused to be subjected to unwelcome verbal and physical
actions of a sexual nature and was further victimized by acts
of sexual assault by the defendants’ male employees in her
work environment throughout her employment tenure with
defendants.” The defendants included her employer, Hun-
tington Copper, LLC, and one of its former owners, David
Pineda. The paragraph we quoted could thus be understood
to be accusing Pineda of having subjected the plaintiff to
unwelcome “physical actions of a sexual nature” and of hav-
ing been responsible for sexual assaults on her by male em-
ployees of Huntington. Yet at her deposition Egan emphati-
cally denied having been sexually assaulted (or otherwise
subjected to unwanted physical contact) by Huntington per-
sonnel during her employment by the firm. When asked
why she had alleged such conduct in her complaint she said
she hadn’t written or even seen the quoted passage or signed
the complaint. Spicer concedes that the allegations in the
paragraph were false. Pineda filed a motion for sanctions
No. 15-2011 3
against Spicer for filing a false, and very damaging, com-
plaint against him.
After dismissing the complaint against Pineda for lack of
personal jurisdiction (a dismissal not contested by either
Egan or Spicer on appeal), the judge held a hearing at which
he asked Spicer to explain how the phony allegation of sexu-
al assault had gotten into the complaint. Spicer said “it was
an error,” but when asked by the judge “how did that error
occur?” he answered only that “it was not supposed to be in
there … . It was an oversight on our part … .” The judge was
not satisfied. At the next status hearing he asked Spicer
“What happened that allowed that allegation, which every-
body now agrees was false, how did that allegation make its
way into a complaint that you signed and filed?” Again
Spicer was unresponsive—and worse. He said “I don’t know
what to tell you, other than it was an error and an oversight
on my part. … [I]t was a simple error in proofreading on my
part.” How could it have been a “simple” error, let alone a
proofreading error? Proofreading means carefully reading a
text to find and correct typographical, grammatical, stylistic,
and spelling errors. Maybe Spicer meant that someone else
had written paragraph 75 and that he (Spicer) in proofread-
ing it had failed to catch the errors. But the errors were not
typographical, grammatical, etc.; the paragraph was clearly
written; a perfect proofread would not have discovered that
the paragraph was asserting a falsehood. Spicer’s brief in
this court offers no alternative to “oversight” and “proof-
reading error” as excuses for paragraph 75. Those excuses
are pathetic and leave us in the dark about how or why he
falsified the complaint.
4 No. 15-2011
Moreover, the record contradicts his claim that “when
the errant allegation was brought to the attention of Mr.
Spicer, he promptly sought to have it withdrawn and stipu-
lated that Paragraph 75 contained incorrect and untrue alle-
gations.” The error was discovered during Egan’s deposi-
tion. That took place in January 2014. Not until July 2014, six
months later, did Spicer file a stipulation stating that “Para-
graph 75 of the Complaint contains an incorrect and untrue
allegation regarding sexual assault.”
The district judge’s imposition of the $5,000 sanction on
attorney Spicer was amply justified.
AFFIRMED