United States District Court, Northern District of Illinois, E.D
May 31, 1985
CLIFFORD STEWART, JR., PLAINTIFF,
CITY OF CHICAGO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Leighton, District Judge.
This cause is before the court on plaintiff's motion to
reconsider the court's order dismissing defendants, City of
Chicago (the "City") and Fred Rice ("Rice"), from this action.
The City and Rice move the court for attorneys' fees and costs
incurred in achieving dismissal of the claims against them.
This court, on February 1, 1985, dismissed the second
amended complaint as to the City and Rice on its own motion,
stating, "it is plain from the face of the second amended
complaint that plaintiff states conclusory allegations only
against these defendants, and can prove no set of facts which
would entitle him to relief against them." Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).
Another review of the complaint convinces the court of the
correctness of its ruling. It is true, as plaintiff states,
that well plead facts are taken as true for purposes of a
motion to dismiss, but conclusory allegations are inadequate.
Coates v. Illinois State Board of Education, 559 F.2d 445, 447
(7th Cir. 1977). The allegations here are conclusory only.
Plaintiff alleges that the policies of the City and Rice
proximately caused the unlawful police conduct complained of,
but pleads no
facts to support his charges, apart from those surrounding his
own physical injury. The Seventh Circuit has recently held
that such allegations will not support a civil rights claim
against a municipality. See Strauss v. City of Chicago and John
Doe, 760 F.2d 765, 768 (7th Cir. 1985), where the court stated:
Plaintiff here has set out no grounds upon which
his claim rests, an omission that is fatal. To
allow otherwise would be tantamount to allowing
suit to be filed on a respondeat superior basis.
Plaintiffs could file claims whenever a police
officer abused them, add Monell [v. Department of
Social Services of the City of New York,
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)]
boilerplate allegations, and proceed to discovery
in the hope of turning up some evidence to support
the "claims" made. Id. (Emphasis in original.)
Having carefully reviewed the complaint, the court concludes
that plaintiff's allegations against these defendants are
inadequate to state a claim, and must be dismissed.
Accordingly, plaintiff's motion for reconsideration is
granted, and upon reconsideration the court adheres to its
Also before the court is the motion of the City and Rice for
an order granting attorneys' fees and costs against plaintiff
and/or his attorney, pursuant to Fed.R.Civ.P. 11, or,
alternatively, against plaintiff's attorney, pursuant to
28 U.S.C. § 1927, for having to file motions to dismiss with
supporting memoranda on two occasions, in response to
plaintiff's multi-count and deficient complaints.
Rule 11 provides that the signature of an attorney to a
pleading is a certification that he has made reasonable
inquiry which to base a belief that the allegations of it are
well grounded in fact and law, and that it is not interposed
for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of
litigation. The Rule provides for an appropriate sanction upon
violation, which may include a reasonable attorney's fee. In
a similar case, where defendants had to repeatedly answer
baseless charges, a court has awarded fees and costs under the
Rule. Van Berkel v. Fox Farm and Road Machinery, 581 F. Supp. 1248
(D.Minn. 1984). The case at hand presents a different
situation, however, because the pleading in question, the
second amended complaint, is not signed by plaintiff's
attorney. It would seem inappropriate, therefore, to impose
fees and costs under Rule 11.
Another ground on which fees and costs may be awarded is
28 U.S.C. § 1927, which provides in part that:
[a]ny attorney . . . who so multiplies the
proceedings in any case unreasonably and
vexatiously may be required by the court to
satisfy personally the excess costs, expenses,
and attorneys' fees reasonably incurred because
of such conduct.
Section 1927 has been construed as requiring a finding of bad
faith before sanctions can be imposed for its violation.
McCandless v. Great Atlantic and Pacific Tea Co., Inc.,
697 F.2d 198
, 201 (7th Cir. 1983). "Bad faith may be found, not
only in the actions that led to the lawsuit, but also in the
conduct of the litigation." Roadway Express, Inc. v. Piper,
447 U.S. 752
, 766, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980)
(quoting Hall v. Cole, 412 U.S. 1
, 15, 93 S.Ct. 1943, 1951, 36
L.Ed.2d 702 (1973)).
Under the facts of this case, where plaintiff's attorney
persisted in pressing the same deficient allegations regarding
the City and Rice up to and including the second amended
complaint, the court concludes that she has unreasonably and
vexatiously multiplied these proceedings, within the meaning
of 28 U.S.C. § 1927, and that defendants are entitled to an
award of attorneys' fees, costs and expenses occasioned by such
conduct. The award is assessed against Susan E. Loggans
personally, as attorney of record for plaintiff.
As alluded to above, plaintiff's attorney has failed to sign
the operative pleading, the second amended complaint. (The
first amended complaint is also unsigned.) This is a glaring
and serious omission.
Under Rule 11, the failure of an attorney to sign a complaint
warrants the striking of it. U.S. ex rel. Sacks v. Philadelphia
Health Management Corp., 519 F. Supp. 818, 826 (E.D.Pa. 1981).
The court, therefore, on its own motion, orders the second
amended complaint stricken.
In reviewing this file, the court notes a recurring and
disturbing error and takes this opportunity to point it out to
the firm of Susan E. Loggans and Associates. It is that papers
and pleadings, when signed at all, are signed "Susan E.
Loggans and Associates." This firm "signature" is a clear
violation of Rule 11, which requires that:
Every pleading, motion, and other paper of a
party represented by an attorney shall be
signed by at least one attorney of record in his
individual name, whose address shall be stated.
In summary, plaintiff's motion to reconsider is denied;
defendants' motion for fees and costs is granted, and they are
to submit a schedule of fees and costs for the court's
approval. Additionally, the second amended complaint is
ordered stricken on the court's own motion.
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