Fresh since he had been "relieved" of his assignment, but no client--present or former--should be treated the way Mr. Messina treated Grove Fresh. Had he been class counsel, I would have afforded him no fees, because he was seemingly incapable of placing his client's interests above his own.
The second recent incident which makes me question Mr. Messina's ability to restrain himself from future violations concerns his recent spate of filings--nine documents filed between 9 March and 27 April 1995--with the Seventh Circuit. Seemingly impervious to the fact that among the questions currently before this court (indeed the subject of part of this opinion) are Mr. Messina's previous disclosures in an appellate brief of the confidential settlement amount, Mr. Messina, in his latest publicly-filed Seventh Circuit briefs, once again blithely discloses the confidential settlement amount. See, e.g., John Messina's Motion to Consolidate Appeals and Briefing Schedules at 3 (filed 24 April 1995).
These latest happenings prompt more than a sense of deja vu. Such a shamelessly willful subversion of this court's authority and business, performed with such reckless abandon, engenders the two feelings which Aristotle believed created the catharsis which accompanied great tragedy: fear and pity. See Poetics at 230. Fear that Mr. Messina will continue to disregard this court's express orders, and pity that in doing so he teeters so precariously on the abyss.
To save the Grove Fresh defendants from a significant risk of repetition of future disclosures (which from the evidence is clear and convincing), and perhaps to save Mr. Messina from himself, I require Mr. Messina to post a $ 50,000 bond for the next five years. Perhaps the forfeiture of this amount for future violations will give Mr. Messina something his tragic cousin Hamlet had in abundance: pause.
C. Failure to Appear
The fourth contempt charge against Mr. Messina stems from his failure to show up in court, as ordered, on 21 October 1993. The circumstances behind the nonappearance are as follows:
On 20 August 1993, Everfresh filed a Motion to Enforce Settlement Or Relief From Judgment. When the motion was initially called, Mr. Messina did not appear. The Court ordered that either Mr. Messina or his legal representative appear in response to the motion when next heard, which was set to be 1 September 1993. As he acknowledged in both his deposition and hearing testimony, Mr. Messina was expressly advised of this order.
The matter was then put over at the request of Mr. Messina's lawyer. By letter dated October 5, 1993, Mr. Messina was informed that the Court would not be in session until 18 October 1993, but that the Everfresh motion would be called shortly thereafter. This was the same motion for which Mr. Messina had earlier failed to appear, and for which the court had ordered his appearance.
On 12 October 1994, Mr. Messina received formal notice that the Everfresh motion had been re-noticed to be heard on 21 October 1993. Mr. Messina admitted in court it was served on him and that he knew the re-noticed motion was the same as that for which he was ordered to appear on 1 September 1993.
On the evening of 20 October, Mr. Messina decided he would not appear as ordered. Shortly after 6 a.m. on the morning of 21 October Mr. Messina faxed a letter to counsel for defendants "as a courtesy to let you know that I do not plan to attend the hearing which you have noticed [today]." (A similar courtesy was not extended to the court, which was given no advance notice of his planned absence.) In response, Mr. Messina received a letter reminding him of his obligation to appear as ordered. Although again put on notice that his appearance was required, Mr. Messina failed to show up.
An order requiring a court appearance will flunk the "reasonable specificity" requirement for a contempt finding if the language of the order leaves any doubt or uncertainty that an appearance is required. See Matter of Betts, 927 F.2d 983, 987 (7th Cir. 1991). If a court order is ambiguous, it precludes the essential finding in a criminal contempt proceeding of willfulness. Id. In Betts, the criminal contempt conviction was reversed because the docket order did not state that an appearance was "de rigueur." Id. at 988.
Mr. Messina's excuses for his nonappearance are many and varied.
Given the evidence, few of them are plausible, many are disingenuous, and several are flatly contradicted by the chronology. None of them provides Mr. Messina with any real defense. After watching him testify, and after reviewing the record, I am convinced beyond any doubt that Mr. Messina had proper notice, fully understood his appearance was required, and knew the reasonable consequences of his actions.
I find not only that Mr. Messina's choice not to appear was willful, but that it was made in bad faith. The evidence convincingly suggests Mr. Messina's nonappearance was motivated by a desire to prevent an order of this court: specifically, that he avoided the hearing so this court could not stop him from filing in the Seventh Circuit a brief on which he had been working for several weeks. On the day he was scheduled to appear, Mr. Messina instead had his affidavit for the brief notarized. On the following day, he filed the brief itself. I do not find the timing of all these events coincidental.
I find yet again that Mr. Messina willfully violated reasonably specific orders beyond a reasonable doubt; that no valid defenses exist to his actions; and that both civil and criminal contempt sanctions are appropriate. The sanctions for this instance of contempt is identical to, but separate from, those mentioned at the end of parts B.1-B.3: compensation to the defendants and a fine payable to "the United States of America."
D. Misrepresenting Attorney Status and Standing to Seventh Circuit
The fifth charge against Mr. Messina, which stems from the motion Messina filed with the Seventh Circuit Court of Appeals on 22 October 1993, potentially carries sanctions not for contempt but for violations of Rule 11 of the Federal Rules of Civil Procedure.
Defendants charge that Mr. Messina made material misrepresentations to the Court, fudging his status as an attorney in the Grove Fresh litigation in order to claim standing to make a personal motion.
The relevant chronology is as follows:
On 21 January 1993, the president of Grove Fresh wrote a letter to Mr. Messina informing him that he was "hereby relieved of all responsibility in the handling of this matter [the Grove Fresh litigation]. [Two other attorneys] will act as our sole attorneys and trial lawyers."
Then, on 22 October 1993, nine months after being discharged by his client, Mr. Messina filed a motion with the Seventh Circuit asking for a hearing to respond to allegations about him in defendants' brief. Mr. Messina didn't file any type of motion to intervene in the case or move for leave to file a motion regarding allegations of misconduct, but instead proceeded to file his motion on the theory that he had standing. In paragraph 1 of his motion in the Court of Appeals, Mr. Messina stated:
Petitioner [Messina] is one of the attorney's of record for plaintiff, Grove Fresh Distributer's, Inc.
Moreover, in both the motion itself and in the accompanying affidavit, Mr. Messina refers to himself as "the Grove Fresh attorney" or "Grove Fresh's attorney," and to Grove Fresh as "his client." Nowhere in either document did he mention being relieved of all responsibility for the Grove Fresh litigation.
On 28 October 1993, in response to a motion by Mr. Messina that was before me, Grove Fresh sought to distance itself from its former counsel's actions:
Grove Fresh Distributer, Inc. (Grove Fresh) did not authorize the filing of [Mr. Messina's motion]. Nor was the motion made on behalf of Grove Fresh. Mr. Messina was discharged as Grove Fresh's attorney on January 21, 1993. Although Mr. Messina has apparently not withdrawn his appearances in these cases, Mr. Messina has not been authorized to act on behalf of Grove Fresh since his discharge.