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Mb Financial, N.A., As Guardian of the Estate of Christina Zvunca, A Minor v. Jeanine L. Stevens

July 5, 2011


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Before the Court are Motions for Sanctions from Cristina Zvunca ("Zvunca") and Jeanine Stevens ("Stevens"). For the reasons stated herein, the Motions are granted in part and denied in part.


Completely untangling the convoluted attorney-created procedural labyrinth from which these motions emerge is unnecessary to rule on the pending sanctions motions. However, some background on the route by which this morass developed is proper. Attorney David Novoselsky ("Novoselsky") filed a lawsuit in the Circuit Court of Cook County (The Estate of Cristina Zvunca v. Stevens, No. 09 L 6397), which contained numerous allegations, including that attorney Stevens abused Zvunca, who is a minor. Novoselsky dismissed this Illinois case with prejudice on July 13, 2010.

On August 11, 2010, two of the defendants in the Illinois case, Stevens and John Cushing, filed a timely motion for sanctions pursuant to Illinois Supreme Court Rule 137. Cook County Circuit Judge Daniel Pierce denied Novoselsky's motion to strike this sanctions motion on January 18, 2011. On February 3, 2011, Zvunca, through her appointed plenary guardian, Tiberiu Klein, and attorney John Xydakis ("Xydakis"), filed a motion to intervene in the sanctions motion. On February 4, 2011, Novoselsky filed the Notice of Removal from Cook County Circuit Court, which occurred prior to Judge Pierce's ruling on Zvunca's motion to intervene.

Thereafter, the floodgates burst, bringing a deluge of motions in federal court. Novoselsky filed: (1) Motion for Leave to File; (2) Motion to Disqualify; (3) Motion to Supplement Motion to Disqualify; (4) Counterclaim; (5) Motion to Dismiss; (6) 28 U.S.C. § 1927 Sanctions Motion against Stevens and Cushing; and (7) Third-Party Complaint brought on his own behalf against MB Financial Bank, Stevens, and Zvunca. (Also, this case was originally assigned to Judge Grady, but reassigned to this Court on February 22, by way of Novoselsky's Motion to Reassign, as the Executive Committee found it related to Case No. 08 C 4507 previously before this Court.) In addition to Novoselsky filing an appearance on behalf of himself, Brian Schroeder and Mark Johnson have filed appearances on behalf of Novoselsky.

On March 2, the Court granted Zvunca's Motion to Remand, which Stevens had joined, as the Court lacked subject matter jurisdiction because no action existed in state court that Novoselsky could remove to federal court. The Court later denied Novoselsky's Motion to Reconsider, and gave Stevens and Zvunca until March 31, 2011, to file their sanctions Motions.


A. 28 U.S.C. § 1927 Sanctions

Zvunca moves for sanctions against Novoselsky pursuant to 28 U.S.C. § 1927. Under § 1927, an 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." 28 U.S.C. § 1927. The Seventh Circuit has set forth reasons to impose such sanctions:

[A] court has discretion to impose § 1927 sanctions when an attorney has acted in an objectively unreasonable manner by engaging in serious and studied disregard for the orderly process of justice; pursued a claim that is without plausible legal or factual basis and lacking in justification; or pursue[d] a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound.

The Jolly Grp., Ltd. v. Medline Indus., 435 F.3d 717, 720 (7th Cir. 2006)(quotations and internal citations omitted). The party moving for sanctions must show subjective bad faith "only if the conduct under consideration had an objectively colorable basis." Dal Pozzo v. Basic Mach. Co., Inc., 463 F.3d 609, 614 (7th Cir. 2006). Objective bad faith requires only reckless indifference to the law, not malice or ill will. See id.

Zvunca argues that such sanctions are warranted because Novoselsky pursued claims that had no legal or factual basis when he removed the Rule 137 proceeding from state court. In part, Illinois Supreme Court Rule 137 reads: "All proceedings under this rule shall be brought within the civil action in which the pleading, motion or other paper referred to has been filed, and no violation or alleged violation of this rule shall give rise to a separate civil suit, but shall be considered a claim within the same civil action." ILL. SUP. CT. R. 137 (emphasis added); see also Tech. Innovation Ctr., Inc. v. Advanced Multiuser Techs. Corp., 732 N.E.2d 1129, 1133 (Ill. App. 2000)("A Rule 137 petition is part of the underlying action and not a separate action.").

A plain reading of rule shows that Novoselsky's removal was meritless. This does not require a complex legal analysis. The crux of Novoselsky's argument for removal was that once Zvunca attempted to intervene in the state case, diversity existed. This is a curious argument for Novoselsky to make to support removal, as he states that he is a citizen of Wisconsin, and as such, there was no need for Zvunca to intervene for diversity to exist. Further, Novoselsky admits that the state court had not yet granted ...

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