MARC P. OSSINSKY ATTORNEY AT LAW WRITING SAMPLE 2

DEFENDANTS’ MOTION FOR
ATTORNEY’S FEES

The Defendants, HOWARD PANDO, D.M.D., P.A., JOHN C. YOCUM, JR., D.D.S., P.A., a Partnership of PA’s d/b/a ORANGE DENTAL ASSOCIATES, and ORANGE DENTAL ASSOCIATES, INC. by and through their undersigned attorneys moves this Court to sanction Wayne Bilsky and his law firm, Wooten, Honeywell & Kest, P.A., and award prevailing party attorneys fees against Plaintiff MELISSA BROOKS, and as grounds therefore would show:

FACTS IN SUPPORT OF THIS MOTION

On or about March 2, 1998 Plaintiff agreed to dismiss Orange Dental Associates, Inc. (hereinafter "ODA") as a party defendant in the face of potential Rule 11 sanctions. As set forth below, ODA should never have been a party to the suit, since Plaintiff’s counsel knew full well pre-suit and through post suit discovery that this Defendant was not Plaintiff’s employer. Further, as will be shown below, Plaintiff’s counsel claimed a "disparate impact" theory of discrimination without any statistical analysis or factual foundation. This claim was also withdrawn with the filing of Plaintiff’s Fourth Amended Complaint on March 5, 1998.

As will be demonstrated below, Plaintiff’s counsel, Mr. Bilsky and his firm of Wooten, Honeywell & Kest have violated 28 U.S.C. §1927 in their conduct of this case by multiplying the proceedings "unreasonably and vexatiously", therefore subjecting them to liability for the Defendant’s attorney’s fees incurred as a result. Further, the Plaintiff having dismissed or upon her dismissal of ODA should be charged ODA’s attorney’s fees, as ODA is the prevailing party under 42 U.S.C. §12205, since her claim against ODA was clearly unreasonable, frivolous or without foundation.

ODA NOT A PROPER PARTY

On multiple occasions, ODA through counsel requested that the Plaintiff drop ODA as a party defendant and warned Plaintiff and her counsel of the potential for sanctions, due to the fact that ODA has no employees, was not Plaintiff’s employer (as she had alleged), and is not involved in the employment issues which relate to Plaintiff’s claims against Defendant PANDO, P.A. & YOCUM, P.A. Copies of these requests are attached hereto as Exhibits "B" through "H". Counsel for ODA informed Plaintiff’s counsel of the proper identity of the employer before the Defendants were served with process in the original action, yet the Plaintiff ignored such information and without any foundation in law or fact included ODA as a party defendant in this case.

As gleaned from the attachments, the clear facts supporting this motion are:

1.      September 1996: Presuit Inquiry: Plaintiff’s counsel requested copy of the EEOC Charge file of the Plaintiff’
EEOC charge against Pando, P.A. & Yocum, P.A. in September 1996, presuit. The information from the EEOC investigation clearly delineates Plaintiff’s employer as Pando, P.A. & Yocum, P.A. (See attached Composite Exhibit "A")

2.      October 21, 1996: Plaintiff’s draft complaint: Mr. Bilsky’s letter directed to "Orange Dental Associates" and "John C. Yocum, DDS" demanding compensation and attaching his draft complaint on behalf of Ms. Brooks with the defendant shown as "ORANGE DENTAL ASSOCIATES, a Florida

3.    November 4, 1996: Letter to Plaintiff’s counsel responding to Plaintiff’s draft complaint and identifying for Plaintiff’s counsel the correct employer name. (See attached Exhibit "C").

4.    December 23, 1996: Upon receipt of initial service of process: Letter to Plaintiff’s counsel reminding him again that ODA was not Plaintiff’s employer and to dismiss this party. (See attached Exhibit "D").

5.    June 5, 1997: After removal to Federal Court: Letter to Plaintiff’s counsel warning again of potential for Rule 11 sanctions. (See attached Exhibit "E").

6.    June 30, 1997: Letter to Plaintiff’s counsel again reaffirming that ODA has no ownership or management of the offices. (See attached Exhibit "F").

7.    November 11, 1997: Upon filing of Plaintiff’s Third Amended Complaint (Revised): Plaintiff’s counsel is warned again of potential Rule 11 exposure. (See attached Exhibit "G").

8.    December 15, 1997: Final warning of preparation of a Motion for Rule 11 Sanctions. (See attached Exhibit "H").

19.    February 16, 1998: Defendants’ counsel’s letter to Mr. Bilsky regarding Defendants’ demand for withdrawal of Plaintiff’s claim for disparate impact. (See Exhibit "I").

10.    March 2, 1998: Mr. Bilsky’s letter stating Plaintiff will dismiss ODA as a party. (See attached Exhibit "J").

To date, Plaintiff still has failed to dismiss ODA in accordance with Rule 41, after Defendant’s counsel’s repeated requests. (See attached Exhibit "K"). However, Plaintiff’s pending complaint has dropped ODA as a party Defendant.

ODA was not the Plaintiff’s employer. Attached to ODA’s prior Answers to the Plaintiff’s Complaints are copies of paychecks, attached thereto as Composite Exhibit "B", which conclusively demonstrate that the employer of Melissa Brooks was PANDO, P.A. & YOCUM, P.A. Attached as Exhibit "C" to the Defendants’ prior Answers was a copy of the fictitious name filing from the Secretary of State showing the fictitious name filing of Drs. Yocum and Pando, d/b/a ORANGE DENTAL ASSOCIATES.

The Plaintiff herself testified at deposition she doesn't have any knowledge of ODA being her employer or being involved in this matter. (Brooks depo. pp. 244-245). Plaintiff further testified she never had a discussion with an officer, agent or employee of ORANGE DENTAL ASSOCIATES, INC. (p. 247). The name on the Plaintiff's paycheck was that of Pando, P.A. and Yocum, P.A. d/b/a Orange Dental Associates. (pp. 262-263). Plaintiff has no knowledge of any relationship of ODA to this case. (Id.) Plaintiff never received a paycheck from ODA. (p. 263). Plaintiff identified several exhibits as those used by her during the subject employment. None of these exhibits she reviewed identify ODA as part of the business operations of which she was a part. (pp. 305, 311, 312).

NO BASIS FOR A DISPARATE IMPACT CLAIM

The Plaintiff repeatedly asserted a claim for discrimination based on "Disparate Impact." (Complaint ¶19(C)). This claim was first made in the Plaintiff’s Second Amended Complaint filed May 23, 1997 in this Court. The Plaintiff continued this claim in the Second Amended Complaint (Revised) filed June 9, 1997 (to which Defendants filed a Motion to Dismiss and/or Motion to Strike and/or Motion for More Definite Statement) and in the Third Amended Complaint (Revised) filed October 14, 1997. However, this was done without any statistical analysis to support such a claim. In Plaintiff’s answer to Defendants’ Third Set of Interrogatories dated February 2, 1998, as filed with the Court, she admits to having no statistical analysis in support of such a claim:

7. Please specify the name, address, and phone number of the person who performed any statistical analysis to support your claim of disparate impact as phrased in your Third Amended Complaint (Revised).

ANSWER: None at this time.

(a) Please specify the factual findings of such analysis and the assumptions made and further identify all documents and other data relied upon in conducting said analysis.

ANSWER: None at this time.

(Defendants’ Third Interrogatories to Plaintiff, #7).

        The Plaintiff was apprised of the lack of basis when the Defendants filed their Answer and Affirmative Defenses to the Third Amended Complaint (Revised) filed on October 31, 1997. (Defendants’ Affirmative Defenses, ¶30). Then, on February 16, 1998, the Defendants, by letter, demanded the Plaintiff withdraw this claim as part of the demand for Rule 11 Sanctions. (See attached Exhibit "I".)

        The Defendants had to file a Motion to Dismiss, Motion for Judgment on the Pleadings, and two motions for summary judgment which identified these fundamental defects.

DISCUSSION
ODA AN IMPROPER PARTY

        The Plaintiff conceded in her deposition that her paychecks did not come from ODA and that she has no idea why ODA is in this case. In response to interrogatories on ODA’s involvement, the Plaintiff stated:

The sign and logo on the office where I worked said Orange Dental Associates and looked the same as the sign and logos of the other Orange Dental Associates’ offices. Some of the employees worked at different Orange Dental Associates offices at the same time. Also, the dentists who were officers of Orange Dental Associates, Inc. and who were shareholders of ODA, Inc., worked at multiple Orange Dental Associates offices. Also, each dentist who owned shares of ODA, Inc. or was an officer of ODA, Inc. worked at an Orange Dental Associates office or offices, and signed a non-compete clause whereby, each dentist could not practice dentistry within a specified distance within a Orange Dental Associates office. In addition, each shareholder & officer of ODA, Inc. was working in an Orange Dental Associates office. Discovery to this issue is ongoing.

(Interrogatory #8, Defendants’ 2nd Set of Interrogatories to Plaintiff, Answers dated November 24, 1997). These "facts" fall far short of any evidence or inquiry by the Plaintiff or her counsel such as to continue naming ODA as an "employer" through five complaints.

The lack of evidence supporting ODA’s inclusion as a "employer" in this Title VII case brought by the Plaintiff is readily apparent from the deposition responses and the interrogatory answers. This interrogatory answer (especially in light of the Plaintiff’s deposition testimony) demonstrates an inept attempt on behalf of the Plaintiff and her counsel to somehow make ODA and Pando, P.A. & Yocum, P.A. Plaintiff’s employer as a "single entity".

It should be recalled that nowhere in the Complaints was such an allegation against ODA made. The Plaintiff merely alleged that both ODA and PANDO, P.A. and YOCUM, P.A. were her "employers". (Prior Complaints, ¶¶3-6) In any event, the Defendants will demonstrate ODA had no liability as being part of a "single entity" under the undisputed facts known to Plaintiff presuit and after discovery was taken.

The case of Switalski v. Local Union #3, 881 F.Supp. 205 (W.D. PA 1995) sets forth a detailed analysis of the "single entity" or "agency theory" analysis in determining whether to include separate entities as a defendant employer for application of Title VII requirements.

The Switalski court, in citing to prior authority, distilled four factors for determining whether two distinct entities constitute a single employment unit:

1.     Interrelation of operations;
2.     Common management;
3.     Centralized control of labor relations;
4.     Common ownership or financial controls.

Switalski at 208.

The affidavit of Stephen Ebner, president of ORANGE DENTAL ASSOCIATES, INC., filed with the Defendants’ Motion for Summary Judgment dated February 16, 1998, adequately addresses the fact that none of the four factors is present in the relationship between ODA and PANDO, PA. and YOCUM, P.A. Further, the Plaintiff’s own testimony on the inclusion of ODA in these proceedings, and Plaintiff’s own presuit inquiry to the EEOC demonstrates a total failure of the Plaintiff to conduct reasonable inquiry prior to including ODA as a party defendant herein. Dr. Ebner’s affidavit clearly sets forth:

1.     That each ORANGE DENTAL ASSOCIATES office is owned by other entities and operates autonomously;

2.     ODA licenses the use of a service mark and conducts group advertising for the benefit of these independent offices;

3.     ODA has no employees;

4.     ODA has no involvement in labor relations on any level; and

5.     ODA has separate books and records and financial operations from each independently owned and run office.

When the Plaintiff claims issues of common management because of "non-compete" agreements as set forth in the interrogatory response, such restrictions are not sufficient labor relations involvement on the part of ODA in the operations of PANDO, P.A. and YOCUM, P.A. to come within the legal definition of "common management". The "fact" of ODA stockholders’ common ownership or working in multiple offices is likewise insufficient. The Plaintiff had no reasonable basis for the inclusion of ODA in this lawsuit, and violated 28 U.S.C. §1927 in continuing to include ODA as a party defendant in light of these facts, known to Plaintiff since the beginning. Plaintiff and her counsel’s stubborn refusal to release ODA as a defendant over a year and a half of litigation (and after repeated warnings) was unreasonable, and in bad faith, therefore causing these proceedings to multiply.

NO BASIS FOR DISPARATE IMPACT CLAIM

Plaintiff also alleged in paragraph 19(C) of her Second and Third Amended Complaints that she was the victim of discrimination as a result of "disparate impact"on the Plaintiff" at the hands of the Defendants.

There was no basis to support the application of the disparate impact theory in this case.

In order to establish a cause of action for discrimination based upon disparate impact, the Plaintiff must:

1. Identify a specific employment practice that is challenged;
2. Present statistical evidence sufficient to show that the practice in question has caused a disparate impact on a protected group so as to show a direct element of causation between the claimed discrimination and the impact upon the complaining employee. See Fla. State University v. Sondel, 685 So. 2d 923 (1^st DCA Fla. 1996).

The Plaintiff failed to specify or plead a particular employment policy which would be her first step in establishing such a claim. In fact, Plaintiff testified at deposition that she was discriminated against because "she was fired while on maternity leave." (pp. 281-283).

The Plaintiff did not allege or offer any evidence of statistical analysis to support her claim.

The law is well settled that "an adverse affect on a single employee...is not sufficient to establish disparate impact." Fla. State University at 932. Accord Martinez v. United States Sugar Corp., 880 F.Supp. 773 (M.D. Fla. 1995), "a statistical pool of one incident is not a statistical pool at all." Id. at 780. The Plaintiff and her counsel had no reasonable basis for advancing this claim under the law, in violation of 28 U.S.C. §1927 and therefore needlessly caused the Defendants to defend against this claim, further multiplying the proceedings.

28 U.S.C. §1927 APPLICATION

This case was originally filed in state court and removed to federal court as set forth above. However, all the complaints (except for the Fourth Amended Complaint filed March 5, 1998) continued to name ODA, after the Plaintiff was warned by the Defendants of this error. Most of the complaints were filed in federal court. 28 U.S.C. §1927 applies to any litigation conducted in federal court. See Lind-Waldock & Co. v. Caan, 121 F.R.D. 337 (N.D. Ill. 1988). In Lind sanctions were granted against the plaintiff’s counsel, even after removal of the case to federal court.

Cases comparing this statutory provision and Rule 11 hold the inquiry is essentially the same: whether or not the pleadings filed by Plaintiff’s counsel, after reasonable inquiry, were well-grounded in fact and law. Lee v. Criterion Ins. Co., 659 F.Supp. 813 (S.D. Ga. 1987); In Re: TCI, Ltd., 769 F. 2d 441, 447 (7^th Cir. 1985). Such a standard is an objective standard. Id. at 445 and Lind at 341.

Counsel have a continuing obligation to reevaluate their position as the case develops.

Id.

In citing to Robinson v. National Cash Register Co., 808 F. 2d 1119 (5^th Cir. 1987), the TCI court quoted:

Upon discovering that a good faith basis no longer exists, it is incumbent upon the appropriate counsel and party to take necessary steps to ensure that the proceedings do not continue without a reasonable basis in law and fact...

If a lawyer pursues a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound, the conduct is objectively unreasonable and vexatious....a lawyer engages in bad faith by acting recklessly or with indifference to the law....

TCI at 445. The TCI court held that under §1927, fees are properly awardable in the event of "bad faith or recklessness". Id. The TCI court noted when such an award is proper:

...dogged pursuit of a colorable claim becomes actionable bad faith once the attorney learns (or should have learned) that the claim is bound to fail....One cost of a lawsuit is research. An attorney must ascertain the facts and review the law to determine whether the facts fit within a recognized entitlement to relief.

Id. at 445, 446. Accord EEOC v. Reichold Chemicals, Inc., 988 F. 2d 1564 (11^th Cir. 1993).

In Schutts v. Bentley Nevada Corp., 966 F.Supp. 1549 (D.C. Nev. 1997) the court awarded fees under this statute where the defendant’s counsel had repeatedly warned the plaintiff that the plaintiff’s claim was without merit under the law. The Schutts court held "bad faith is present whenever an attorney knowingly or recklessly raises a frivolous argument..." Id. at 1559.

The Schutts court discussed at length how plaintiff’s counsel "was or should have been" aware of the risk for sanctions by the letters he had received from defendant’s counsel. Id. at 1562. The court further discussed an attorney’s duty in such a case:

The responsibility for discovering relevant legal authority rested with plaintiff’s counsel himself. A lawyer admitted to practice before this court must apprise himself or herself of the relevant law...Mr. Colvin should know that it is not a litigant’s duty to educate his or her adversary in the relevant law.

Id. at 1563. The court found that counsel in that case had failed to ascertain the legal viability of plaintiff’s claim.

An award of fees under this section does not require that plaintiff’s claim be "frivolous or baseless". Kapco Manufacturing Co. v. C&O Enterprises, Inc., 886 F. 2d 1485 (7^th Cir. 1989). Kapco likewise held that the standard for attorney conduct under §1927 is the same as Rule 11, an objective standard. Id. at 1494. Kapco court held the offending counsel’s filings demonstrated an attitude of "file first, research later," which the court condemned. Id. at 1496.

From this record, it is clear that the Plaintiff and her counsel were on notice that the allegations as made in her original complaint and those that followed were different from the truth. Counsel interposed a claim for "Disparate Impact" without even performing the slightest presuit analysis to support such a claim. The Plaintiff had no reasonable basis in fact to include ODA as a "employer" in this lawsuit, and as claimed in the last five complaints filed here and in the state court. The Plaintiff can have no reasonable basis in fact to assert a claim for disparate impact without a statistical analysis. Upon this showing, the burden shifts to the Plaintiff and her counsel to demonstrate the reasonable inquiry and justification for these continued allegations in light of the information given to Plaintiff’s counsel presuit and the discovery post filing.

In Stewart v. City of Chicago, 622 F.Supp. 35 (N.D. Ill. 1985) sanctions under §1927 are properly imposed not only in actions precipitating the suit, but in how the litigation is conducted. Stewart imposed an award of fees and costs "...where plaintiff’s attorney persisted in pressing the same deficient allegations...including the second amended complaint, the court concludes that [plaintiff’s counsel] has unreasonably and vexatiously multiplied these proceedings,..."

Id. at 37. See also Bolivar v. Pocklington, 137 F.R.D. 202 (D.P.R. 1991).

As stated in Rhinehart v. Stauffer, (a Rule 11 case), 638 F. 2d 1169 (9^th Cir. 1979):

Before filing a civil action, the attorney has a duty to make an investigation to ascertain that it has at least some merit, and further to ascertain that the damages sought appear to bear a reasonable relation to the injuries actually sustained.

Id. at 1171.

The employment discrimination field is no stranger to the imposition of such sanctions where appropriate. The present case is most similar to that of the facts in Sussman v. Salem, Saxon & Nielsen, P.A., 818 F.Supp. 1510 (M.D. Fla. 1993) wherein the court granted Rule 11 sanctions against the plaintiff’s counsel, where the plaintiff’s counsel failed to conduct pre-filing inquiry and even continued to include certain named defendants in the lawsuit after discovery revealed that the plaintiff included parties named as her "employers" with whom she had no relationship. The court found:

Plaintiff concedes in her deposition that she was never an employee of either SS & N, Associates, Inc. or SS & N Financial Services, both former Defendants...However, the Complaint alleges that both business organizations were employers, and it is presumed that the allegation was intended to assert both organizations were employers of Plaintiff...This evidence demonstrates Plaintiff’s knowledge that information included in the Complaint was not founded in fact, and the information was either highly questionable or false....Plaintiff could not definitively say she was an employee of any organization for which Ms. Ellison was a principal or shareholder, nor that Ms. Ellison was a principal or shareholder of defendant Salem, Saxon & Neilsen, P.A....

Id. at 1517.

The court concluded:

...Plaintiff has offered no evidence to support the disputed allegations, or to demonstrate to this court that the disputed allegations are grounded in fact....(citations omitted.) This is sufficient basis for assessing Rule 11 sanctions, even absent any purpose to harass Defendants.

Id.

In Ford v. Temple Hospital, 790 F. 2d 342 (3^rd Cir. 1986) the court held that counsel’s continuing a claim after being repeatedly informed of a fatal defect of the claim (e.g. statute of limitations bar) constituted bad faith. Further, the lack of legal authority and logical argument was further evidence which substantiated the trial court’s award under §1927. Id. at 346.

Mr. Bilsky’s law firm, Wooten, Honeywell & Kest, P.A. is equally liable as the entity "conducting cases" in federal court. See Brignoli v. Balch Hardy & Scheinman, Inc., 735 F.Supp. 100 (S.D. N.Y. 1990).

ODA IS A PREVAILING PARTY UNDER 42 U.S.C. §2000e-5(k)
AND 42 U.S.C. §12205

As set forth above, Plaintiff’s claim against ODA was unreasonable, frivolous or without foundation. This lack of basis in law or fact caused both Defendants to spend dozens of hours defending against a spurious claim before the Plaintiff ultimately dropped ODA as a party in her Fourth Amended Complaint filed March 5, 1998.

The facts outlined above sufficiently demonstrate that ODA should recover its reasonable attorneys fees and costs under the aforementioned statutes. EEOC v. Reichhold, supra; compare Cone Corporation v. Hillsborough County, 157 F.R.D. 533 (M.D. Fla. 1994):

Plaintiffs failed to establish a prima facie case because they failed, at all times, to establish the requisite standing called for by readily available and understandable precedent. It was unreasonable, frivolous and groundless for plaintiffs to continue this litigation after their standing was challenged...

Id. at 541. Cone granted the defendant’s motion for attorneys fees.

Accord Interstate Underwriting Agencies v. Gunter, 624 F.Supp. 774 (S.D. Fla. 1985) where the court awarded attorneys fees in a civil rights case, holding:

At the very least, the record contains sufficient bases to support defendant’s claim that this suit was without foundation.

Id. at 775.

Subjective "bad faith" is not required for an award of fees. Welch v. Board of Directors of Wildwood Golf Club, 904 F.Supp. 438 (W.D. Pa. 1995). Survival of a civil rights claim of a defendant’s motion to dismiss does not preclude assessing fees or a finding that the plaintiff’s action is ultimately "frivolous". Id. at 441.

The Plaintiff cannot escape liability based on the advice or actions of her attorney. Puglisi v. Underhill Park Taxpayer Assoc., 964 F.Supp. 811, 816 (S.D.N.Y. 1997). Since it cannot be said that Plaintiff did not "know" the identity of her employer, she should also bear responsibility for the attorneys fees and costs incurred in this action by ODA, since at all times the attempted claim against ODA was "frivolous, unreasonable and without foundation."

CONCLUSION

The Defendants request this Court enter judgment against Wayne Bilsky, Esquire and Wooten, Honeywell & Kest for the attorneys’ fees and costs incurred in this Court in defending against these meritless claims due to the Plaintiff and her counsel’s intentional failure to comply with the requirements of 28 U.S.C. §1927 in this case.

ODA further requests this Court find that ODA is the prevailing party under the statutory claim asserted by the Plaintiff, and award ODA its reasonable attorneys fees and costs incurred as against the Plaintiff MELISSA BROOKS.

In the event the Court grants this Motion, counsel will file the appropriate fee and cost affidavits.

I HEREBY CERTIFY that a true and correct copy of the foregoing has been provided by hand delivery this day of May, 1999 to: Wayne W. Bilsky, Esq., P.O. Box 568188, Orlando, FL 32856-8188.

Respectfully submitted,

__________________________________
Marc P. Ossinsky, Esquire FBN: 438588
Marc P. Ossinsky, P.A.
210 N. Wymore Road
Winter Park, Florida 32789
Phone: 407/629-2484 Fax: 629-4429
Attorney for Defendants ODA and PANDO