Posted 8:17 AM by Creditwrench

Lawyer Sent Back to School as Sanction for Frivolous Lawsuit

Charles Toutant
New Jersey Law Journal
08-26-2003


A lawyer's attempt to save a time-barred malpractice suit by wrapping it up as a federal RICO and civil rights case has drawn an unorthodox sanction: Rather than dock the lawyer for fees, the judge ordered him to take courses in federal practice and procedure, professionalism and legal ethics.

U.S. District Court Judge Stephen Orlofsky noted in his Aug. 15 ruling that he imposed sanctions only after giving the lawyer written notice of a potential violation of Federal Rule of Civil Procedure 11 (b)(2), which requires lawyers to ascertain that their claims are "well-grounded in fact and law."

Frank Branella, a Marlton solo practitioner, had botched a state-court medical malpractice suit on behalf of Enez Balthazar of Ocean City, whose ureter was severed during a hysterectomy. Atlantic County Superior Court Judge Carol Higbee dismissed the suit in May 2001 for failure to submit a timely affidavit of merit. The Appellate Division affirmed last March and the Supreme Court denied certification in June.

In 2002, Branella filed the federal suit, Balthazar v. Atlantic City Medical Center, 02-1136, charging the hospital and three doctors with covering up their negligence, falsifying records and conspiring to deny the plaintiff's rights in violation of federal and state RICO laws.

Orlofsky spotted the ploy. "Balthazar is dissatisfied with the dismissal of her state court claims. As a result of this dissatisfaction, she has simply recast her state law claims as violations of federal civil RICO and Sec. 1985," he wrote.

Orlofsky dismissed the federal suit on March 30 for failure to state a claim but granted Branella leave to amend his complaint. The second attempt was no better, as Branella's amended complaint contained "essentially the same federal claims" as the original and its "rambling narrative ... is organized and drafted so poorly that it is often difficult to comprehend," Orlofsky wrote.

Under the Federal Rules of Civil Procedure, the appropriate Rule 11 sanction is one that "is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Punishment can consist of nonmonetary measures, such as an order to attend educational programs, as well as fines or orders to pay all or part of opposing counsel's fees," Orlofsky wrote.

After taking the courses from an accredited law school or other reputable provider of continuing legal education within the next 12 months, Branella must file an affidavit with the court attesting that he completed them satisfactorily.

"As a result of attending these continuing legal education courses, hopefully Mr. Branella will become familiar with the legal principles that have apparently escaped him during the course of this litigation," Orlofsky wrote.

Branella declines to comment on the case other than to say he will appeal the dismissal of the District Court case and the imposition of sanctions.

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