rights were not cognizable under section 301, those claims
were dismissed because they were simply unintelligible.
McCandless v. The Great Atlantic & Pacific Tea Company, Inc.,
No. 81 C 4574 slip op. at 4-5 (N.D.Ill. 11/18/81).
This matter is presently before the Court on A&P's motion
for costs and attorneys' fees incurred in defense of
McCandless' assertedly frivolous suit. McCandless, or more
particularly her attorney, Mr. Murray B. Woolley, Esquire, of
the law firm of Reilly, Sentman, Woolley & Leibowitz, has not
bothered to respond to A&P's motion*fn2 nor has he moved to
extend the time in which to do so. For the reasons set forth
below, A&P's motion will be granted.
Although the general rule is that a prevailing party may not
recover its attorneys' fees from the losing party, Alyeska Pipe
Line Service Company v. The Wilderness Society, 421 U.S. 240,
95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975), "it has long been
established that even under the American common-law rule
attorney's fees may be awarded against a party who has
proceeded in bad faith." Christianburg Garment Company v. Equal
Employment Opportunity Commission, 434 U.S. 412, 419, 98 S.Ct.
694, 699, 54 L.Ed.2d 648 (1978). Moreover, the Supreme Court
recently acknowledged the principle that it is within the
inherent power of a federal court to assess attorneys' fees
against an attorney who has acted unreasonably, vexatiously or
in bad faith in connection with a piece of litigation so as to
constitute an abuse of the judicial process. Roadway Express,
Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 2463-64, 65
L.Ed.2d 488 (1980). The power to award attorneys' fees against
opposing counsel should be used sparingly, the Court cautioned,
but in appropriate cases it may be a necessary sanction to
protect the integrity and orderly administration of the
judicial process. See also Textor v. Board of Regents of
Northern Illinois University, 87 F.R.D. 751, 754 (N.D.Ill.
The Court has concluded that the instant case falls within
the narrowly-defined circumstances discussed in Roadway
Express, supra, in which attorneys' fees and costs should be
assessed against counsel who has willfully abused the judicial
process. This lawsuit could have been avoided had McCandless'
counsel done the minimum amount of research required of a
responsible member of the bar. Basic research would have
revealed that exhaustion of adequate internal union remedies
provided under a collective bargaining agreement is a
prerequisite to suit under section 301 of the Labor-Management
Relations Act. Although exhaustion is not required when the
internal remedy cannot provide an employee with the relief
sought, no argument was made in the instant case that recourse
to the internal grievance procedure would have been futile or
unyielding. The cases cited by McCandless' counsel in support
of the proposition that exhaustion was not required on the
facts of this case were clearly inapposite. Indeed, counsel's
citation from one of the three cases urged in support of his
position, Lerwill v. Inflight Motion Pictures, Inc.,
582 F.2d 507, 511 (9th Cir. 1978), omitted a sentence which clearly
supported A&P's position and stated the governing law.
Furthermore, although counsel did file a response to A&P's
motion to dismiss, no authority was ever put forward in
support of McCandless' claims for injury to her reputation or
for violation of the National Labor Relations Act and Illinois
law. In fact, the response brief conceded that the complaint
was deficient in its claim for defamation, but neglected to
inform the Court or A&P of the legal basis for the continued
assertion of reputational injury. No facts were ever alleged
in support of the various and sundry claims of constitutional
wrongs or violations of public policy.
If McCandless' counsel had taken the time or effort to
respond to the motion for attorneys' fees and costs, perhaps
have provided some explanation for the deficiencies noted
above as well as those discussed in the Court's earlier
opinion in this matter. In the absence of a proper response,
however, the Court can only conclude that this lawsuit was not
brought or conducted in good faith. The Court cannot condone
such behavior and, upon the inherent authority recognized in
Roadway Express, we conclude that attorneys' fees and costs
should be assessed against McCandless' counsel.
Accordingly, A&P's motion is granted. It is so ordered. A&P
is directed to submit an itemized petition for fees and costs
by January 18, 1982. It is so ordered.