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Grove Fresh Distributors, Inc. v. John Labatt

August 05, 2002


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 90 C 5009--James B. Zagel, Judge.

Before Bauer, Coffey and Ripple, Circuit Judges.

The opinion of the court was delivered by: Bauer, Circuit Judge

ARGUED MAY 21, 2002

The district court issued a civil contempt order against attorney John P. Messina after he disclosed confidential information in publicly filed documents in violation of a protective order. After an unsuccessful direct appeal and a second contempt order, Messina filed two subsequent motions in the district court for reconsideration of the first contempt order: one motion claimed that the record in his direct appeal was incomplete, and the other sought Judge Zagel's recusal based on an "unremitting bias." The district court denied both motions. Messina appeals the district court's decisions on numerous grounds. For the following reasons, we affirm the decisions of the district court. Moreover, because we find Messina's appeal frivolous, we impose Rule 38 sanctions and order him to pay costs, plus $1,500 to appellee American Citrus.


Attorney John Messina represented Grove Fresh Distributors Inc. ("Grove Fresh") in two separate but related suits filed against competing orange juice manufacturers for violations of various federal laws. Appellees were among the five defendants named in the two suits. The 1989 complaint alleged unfair competition and was insulated by a protective order. The 1990 suit alleged a conspiracy to sell adulterated orange juice and to violate RICO by selling mislabeled products and this was under a seal and protective order. Over the course of the early stages of the litigation, Messina repeatedly disregarded the protective orders and disclosed protected information in public filings with the court.

The district court eventually entered summary judgment on the 1989 unfair competition complaint, while the 1990 case proceeded with settlement negotiations. On April 25, 1993, the parties orally agreed to terms of a settlement but the defendants would not definitively agree to settle until Messina agreed to the confidentiality provisions in a consulting agreement. Thereafter, the court dismissed the 1990 case, but substantial problems arose regarding the settlement agreement and with the dismissal.

On August 24, 1993, the defendants filed a motion to enforce the settlement agreement or for relief from judgment pursuant to Rule 60(b) as a result of Messina's conduct after the dismissal. When the parties were to appear before Judge Zagel, Messina was not present. Judge Zagel ordered him to appear at the next court proceeding, but again, Messina was not present. The district court then issued a rule to show cause.

On January 21, 1993 Grove Fresh discharged Messina as its attorney in this litigation, but failed to withdraw the record of appearance for Messina until April 12, 1995. In October of 1993, Messina filed a 42 page motion in this Court seeking a hearing on allegations of misconduct. The motion revealed information subject to the seal and protective orders, including the confidential amount paid in settlement, names of the individuals involved who invoked the Fifth Amendment, and other confidential information acquired through discovery. Messina also represented that he was still counsel for Grove Fresh, despite the fact that Grove Fresh had discharged him nine months earlier.

On November 9, 1993, we dismissed Messina's pleadings and ordered that he show cause as to why he should not be sanctioned for filing a frivolous motion. We also referred his conduct to the Illinois Attorney Registration and Disciplinary Commission.

In response to Messina's conduct during the course of the litigation, the appellees petitioned the district court, requesting a finding of contempt and imposition of sanctions. Alleging that Messina had violated the protective order and seal, appellees charged that: (1) Messina was in contempt of court for repeatedly violating the seal and protective order for the 1990 case by his disclosures of confidential discovery material in a brief filed with the Court of Appeals, in a letter to counsel for an intervening party and in a conversation with a New York Times reporter; (2) Messina was in contempt of court for failing to appear before Judge Zagel when ordered to do so; and (3) Messina was subject to Rule 11 sanctions for making false or misleading representations to the Court of Appeals regarding his status as a Grove Fresh attorney. Judge Zagel held an evidentiary hearing on the matter on February 3, 1995, to provide Messina an opportunity to respond to the charges.

After the hearing, Messina again filed a series of pleadings in this Court and again included the amount paid in settlement. On June 9, 1995, we dismissed Messina's appeal as moot and stated, "if Messina continues to file frivolous papers, this court will impose sanctions."

On June 9, 1995, the district court issued an opinion finding that Messina intentionally, willfully and repeatedly violated the confidential seal and protective order based on the disclosures in the 42 page motion filed in this Court, in his conversations with the New York Times reporter and in his letter to the intervening party. Grove Fresh Distributors, Inc. v. John Labatt, Ltd., 888 F.Supp. 1427 (N.D. Ill. 1995). The court characterized Messina's actions as "audacious, even by his [Messina's] own standards of audacity." The court also found that Messina intentionally and willfully disobeyed an order to appear before the district court on October 21, 1993, and that he violated Rule 11 in the motion he filed in this Court by misrepresenting himself as counsel for Grove Fresh. As a deterrent to future improper disclosures, the court ordered Messina to post a $50,000 bond and warned that failure to comply with the order would result in forfeiture of the bond and possible additional sanctions.

The contempt order also specifically prohibited Messina from disclosing any protected information in the case without first consulting the court and establishing an independent public source for the information. Finally, Messina was ordered to pay attorneys' fees and expenses incurred by the defendants in prosecuting the contempt petitions, and a $1,000 fine for his Rule 11 violations. A judgment was entered against Messina in the amount of $149,554.45, plus statutory interest. Messina appealed the district court's ...

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