What Not to Do as an Attorney: “Appalling, Unlawyerly Behavior”

United States v. Brace, 2021 U.S. App. LEXIS 17482 (3d Cir. June 11, 2021). Every so often, attorney conduct is so egregiously bad that it results in a published opinion, and a lesson to other attorneys. This opinion by Judge Bibas is one of those.

This was a suit against defendants for allegedly violating the Clean Water Act by, among other things, digging up dirt, rocks, and other material and dumping it back into defendants’ wetlands property without a permit. In defending the case, defense counsel did just about every wrong thing that one can do. The result was that the District Court struck defendants’ opposition to summary judgment and granted summary judgment to the United States. After defendants appealed, with other counsel, the Third Circuit affirmed.

Judge Bibas catalogued defense counsel “appalling, unlawyerly behavior.” At first, that included “[p]erfunctory pleading” of affirmative defenses, and “[d]iscovery recalcitrance,” in the form of evasive and slow responses to the Government’s efforts to agree on a protocol for electronically stored information, and trying to “smuggle in superfluous information and inappropriate discovery requests, leading the Government to obtain a discovery order.

There followed a “[p]attern of extending and missing deadlines.” Defense counsel moved for more time for discovery, which in itself is not uncommon and certainly not problematic. The extended date (a few additional weeks) passed, but counsel waited three weeks to seek another extension, this time for four months in which to prepare an expert report. The District Court granted two months and warned that if the report were not furnished timely, the court would bar its use at trial. Without explanation, counsel filed the report ten days late. The District Court did not, however, bar that report.

After getting more time to file dispositive motions or motions to exclude expert testimony, defense counsel filed two motions in limine one day after that extended deadline. Again, “[h]e did not acknowledge or explain his lateness,” except to say that they were late because ” local counsel refused to submit motions that exceeded the Court’s page limitation.” He also claimed that he was a sole practitioner, though he was not. The Government moved to strike the motions, but the District Court decided not to do so. That court did, however, strike defendants’ motions to exclude experts, which came in about two months after the extended deadline.

The Government move for partial judgment on the pleadings. Defense counsel opposed that by relying on evidence not in the record and fact allegations not contained in his amended Answer. The District Court granted the motion and struck the defenses as inadequately pled.

Finally, the Government moved for summary judgment. Here is how Judge Bibas described what followed:

“Brace responded a day late. His opposition ran more than 9000 pages long, lacked an appendix, and included thousands of duplicative pages. The Government moved to strike his brief plus thirty-three of his exhibits. In Brace’s brief, his counsel referred to many materials that the court had already stricken. And he had not produced those exhibits in discovery. One of the exhibits was a 248-page expert report, dated four months after the close of discovery, that the court had explicitly excluded.

“The District Court struck all thirty-three challenged exhibits because he had not produced them in discovery. It also struck the opposition. Yet again, it chose leniency, letting Brace refile. But it warned him not to file or rely on new materials, or else they would be ‘summarily stricken.’

“Brace’s renewed filing was timely but massive. Though he cut the appendix in half, it was still thousands of pages long. His responsive statement of facts was ‘122 pages and in a font with frustratingly inconsistent spacing.’ His brief was eight pages over the forty-page limit. Though Brace’s counsel admitted that in a footnote, he asserted that the Government ‘has not demonstrated how it has been incurably prejudiced’ by his overlength brief” (citations to the District Court’s opinion omitted).

The District Court struck the opposition, granted summary judgment on liability, and entered an injunction that ordered defendants to submit a proposed deed restriction and restoration plan. Defendants appealed as to all the case events recounted above, though there was not yet a final judgment. Judge Bibas determined that the Third Circuit had jurisdiction over the appeal to the extent it addressed the injunction, the summary judgment and the striking of defendants’ opposition to summary judgment, and the partial judgment on the pleadings only. There was jurisdiction over the injunction ruling based on 28 U.S.C. 1291, and there was pendent jurisdiction over other issues that were “inextricably intertwined” with the injunction, since they were the predicate for that injunction.

The standard of review as to the summary judgment was abuse of discretion, because although defendants challenged the injunction, they did so not on its merits, but as to the procedure in getting there: the striking of their summary judgment opposition. Judge Bibas found the District Court’s decision to be “eminently reasonable” under the six factors of Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984). Those factors are:

“1. How much the party is personally responsible for the challenged actions; 2. How much those actions prejudiced the opposing party; 3.The history of dilatoriness; 4. Whether the party or its lawyer acted willfully or in bad faith; 5. How effective alternative sanctions less than dismissal would be; and 6. Whether the party has a meritorious claim or defense.”

Even though the panel found fault with the District Court’s view of one of those factors, the result below was still appropriate, since not all needed to be found to award sanctions. “Overall, striking Brace’s brief was severe but reasonable. The District Court saw the action live and was admirably patient. Especially given the astounding misbehavior here, we trust its judgment that the punishment fit the wrongs.”

Finally, Judge Bibas held that defendants had forfeited the argument about the partial judgment on the pleadings. The judgment was thus affirmed in all respects.