United States District Court, N.D. California, San Jose Division
December 28, 2005.
TOM BYRNES, Plaintiff,
LOCKHEED-MARTIN, INC., DEIRDRE WONG, LARRY MAYER, JIM SCHNEPP, ET AL., Defendants.
The opinion of the court was delivered by: RONALD WHYTE, District Judge
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND
GRANTING DEFENDANTS' MOTION FOR SANCTIONS
Tom Byrnes ("Byrnes") has sued Lockheed-Martin, Inc.
("Lockheed") for (1) employment discrimination, (2) wrongful
termination of employment in violation of public policy, (3)
breach of contract, (4) fraud and deceit, (5) defamation, and (6)
intentional infliction of emotional distress. Byrnes has also
sued Deirdre Wong ("Wong"), Larry Mayer ("Mayer"), and Jim
Schnepp ("Schnepp"), Lockheed employees (collectively with
Lockheed, "defendants"), for defamation and intentional
infliction of emotional distress. Defendants move for summary
judgment on all causes of action. In addition, Wong, Mayer and
Schnepp move for sanctions under Federal Rule of Civil Procedure
11 ("Rule 11"). Byrnes opposes defendants' motions. The court has
read the moving and responding papers and considered the
arguments of counsel. For the reasons set forth below, the court grants
both the motions for summary judgment and the motion for
Lockheed hired Byrnes in 1988 as a Systems Planning Engineer.
Schnepp Decl. Supp. Mot. Summ. J ("Schnepp Decl.") Ex. B. Since
2000, Schnepp supervised Byrnes. Id. at ¶ 2. Byrnes led a
project known as IDMT. Id. In order to staff the IDMT project,
Byrnes worked with personnel from another department. Wong was
one such individual. Id. She worked for Mayer's department.
Defendants assert that Byrnes sexually harassed Wong. Around
December 2002, he gave her a card and an orchid. Byrnes had
written in the card "I consider our friendship as beautiful (and
fragile) as this orchid. I hope that both will continue to grow
and flower in the future." Sprinkle Decl. Supp. Mot. Summ. J
("Sprinkle Decl.") Ex. A. In Byrnes' deposition, he testified
that he would complement Wong on her body because "she goes to
the gym all the time, and you know, if she doesn't want people to
comment on her body style, you know, then why does she go to the
gym and work out all the time?" Byrnes Depo. at 153:9-12. For
Christmas that year, he gave her a diamond and ruby ring. Id.
at 145:2-17. On February 26, 2002 he fixed a computer problem for
her. He emailed her and asked "for the simplest of rewards will
you allow me to follow you up the stairs again? Please?" Sprinkle
Decl. Ex. 9.
Lockheed claims that it became aware of the situation between
Byrnes and Wong in February 2003, when Byrnes sent a memo to
Schnepp asking for him to remove Wong from the IDMT project.
Byrnes Depo. at 388:11-14. According to Schnepp, he became
curious because Byrnes had always spoken highly of Wong. Schnepp
Decl. ¶ 3. Schnepp contends that he spoke to Wong, who informed
him about Byrnes' advances. Id. Schnepp claims that he told
Byrnes not to contact Wong. Id. at ¶ 4. Nevertheless, in
September 2003, Byrnes confronted Wong. He told her that he "was
tired of being complained about . . . and it's doing her no good
to continue complaining." Byrnes Depo. at 347:5-350:3. According
to Lockheed, Wong reported this conversation to Mayer because
Schnepp was out of the office. Mayer reprimanded Byrnes, telling
him that he was not to go near Wong "in any way, shape, or form."
Id. at 350:15-17. On September 8, 2003 Byrnes wrote a memo to Schnepp. Sprinkle
Decl. Ex. 19. Byrnes informed Schnepp that he believed that Mayer
was trying to take over the IDMT project. Id. He wrote: "A
caution: the next time Mayer engages me in any way, whether under
color of your authority or not, I will consider it an act of
aggression and respond accordingly." Id. Byrnes asked Schnepp
either to transfer the IDMT project to Mayer or instruct him not
to interfere with Byrnes' work. Id. Schnepp then met with
Byrnes. During the meeting, Byrnes became angry, and told Schnepp
that "this is why people go postal." Byrnes Depo. at
112:22-113:20. According to Lockheed, a few weeks before the
meeting, a Lockheed employee at a plant in Meridian Mississippi
had killed several co-workers. In light of that event, Schnepp
reported Byrnes' statement to company security and upper
management. Schnepp Decl. ¶ 5.
On September 16, 2003 Byrnes went on medical leave. According
to Lockheed, it has a company policy not to discipline employees
who are on medical leave. Schnepp Decl. ¶ 6. On February 18, 2004
Lockheed received a letter from Byrnes' doctor stating that
Byrnes would be able to return to work on March 1, 2004 with one
limitation: "that Mr. Byrnes cannot have any business or
professional interactions with Mr. Larry Mayer." Sprinkle Decl.
Ex. 31. Lockheed claims that, after receiving the letter, it both
resumed its investigation into Byrnes' alleged misconduct and
began to search for a position that met Byrnes' demand. Schnepp
Decl. ¶ 7. Lockheed contends that its investigation revealed that
Byrnes had engaged in conduct that warranted that his employment
be terminated. Id. Lockheed fired Byrnes effective May 7, 2004.
A. Summary Judgment Standard
Summary judgment is proper when there is no genuine issues as
to any material fact and the movant is entitled judgment as a
matter of law. See Fed.R.Civ. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). This court must regard as true the
non-moving party's evidence, if supported by affidavits or other
evidentiary material. Id. at 324. Where the moving party does
not bear the burden of proof on the issue at trial, it may
discharge its burden of showing that no genuine issue of material
fact remains by demonstrating that "there is an absence of
evidence to support the nonmoving party's case." Id. at 325. If
the moving party shows an absence of evidence to support the
non-moving party's case, the burden shifts to the opposing party to produce "specific evidence, through
affidavits or admissible discovery material, to show that the
dispute exists." Bhan v. NME Hospitals, Inc., 929 F.2d 1404,
1409 (9th Cir. 1991).
Unfortunately, Byrnes appears to have misunderstood the summary
judgment standard. Byrnes' entire evidentiary submission in
opposition to defendants' motions consists of his declaration:
I have in my possession numerous facts contained in
documents and from other sources which show that a
campaign of slander and libel was perpetrated against
me. For example, I understand from documents and
personal observations that defendant Wong, defendant
Schnepp, and defendant Mayer had more than one
discussion regarding purported charges of sexual
harassment against me, how such charges should be
handled or managed, and what effect such charges
* * *
Documentation produced by the defense confirmed my
beliefs that defendant Mayer had produced
confidential reports and emails which contained
speculation that I might be a sexual harasser or an
unstable or dangerous person.
* * *
Much of the written documentation already provided by
the defense has validated the allegations regarding
the true intentions and methods used by defendants.
Byrnes Decl. Supp. Opp. Mot. Summ. J. ("Byrnes Decl.") ¶¶ 3, 9,
14. As defendants correctly note, Byrnes' contention that he
"ha[s] in [his] possession numerous facts contained in documents"
that support his legal claims is insufficient. "A trial court can
only consider admissible evidence in ruling on a motion for
summary judgment." Orr v. Bank of America, 285 F.3d 764, 773
(9th Cir. 2002). Byrnes' attempt to prove what these "documents"
say through nothing more than his own testimony suffers from
numerous evidentiary flaws.*fn1
Although Byrnes' attorney
makes numerous factual allegations in his opposition motions, he
does not cite any declaration or deposition testimony to
substantiate his claims. "[A] party cannot manufacture a genuine
issue of material fact merely by making assertions in its legal
memoranda." Varig Airlines v. Walter Kiddle & Co., Inc.,
690 F.2d 1235, 1238 (9th Cir. 1982). Accordingly, Byrnes has no
admissible evidence to support his claims. As explained below, he
cannot meet his summary judgment burden. B. Discrimination Claims
Byrnes first asserts that Lockheed fired him because of his age
and disability.*fn2 According to Byrnes, Lockheed's conduct
violated the California Fair Employment and Housing Act ("FEHA"),
Cal. Gov't Code §§ 12940 et seq. The FEHA forbids employers
from discriminating against employees because of their race or
firing them for engaging in protected behavior:
It shall be an unlawful employment practice . . .
* * *
(a) For an employer, because of the . . . physical
disability, mental disability, . . . [or] age . . .
of any person, . . . to refuse to select the person
for a training program leading to employment, or to
bar or to discharge the person from employment or
from a training program leading to employment, or to
discriminate against the person in compensation or in
terms, conditions, or privileges of employment.
Cal. Gov. Code § 12940(a). To succeed on his FEHA claims, Byrnes
must first establish a prima facie case of discrimination.
See, e.g., Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 355
(2000). If Byrnes meets this burden, he creates a presumption of
discrimination which Lockheed can rebut by "articulating some
legitimate, non-discriminatory reason" for its employment
decisions. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). If Lockheed does so, Byrnes must present
"specific, substantial evidence" that Lockheed's reasons are
pretextual. Guz, 24 Cal. 4th at 356.
1. Age Discrimination
Byrnes argues that Lockheed harassed and fired him because of
his age. However, in order to bring a civil action under FEHA,
Byrnes must exhaust his administrative remedies See Romano v.
Rockwell Int'l, Inc., 14 Cal. 4th 479, 492 (1996). Specifically,
he must file a written charge with the Department of Fair
Employment and Housing ("DFEH"). "The scope of the written
administrative charge defines the permissible scope of the
subsequent civil action." Rodriguez v. Airborne Express,
265 F.3d 890, 896 (9th Cir. 2001). Here, Byrnes' DFEH complaint did
not allege that Lockheed discriminated against him on the basis
of his age:
I believe that I was denied a reasonable
accommodation because of my disability
(diabetes/stress) and terminated because of my
disability and in retaliation for requesting a
reasonable accommodation. My belief is based on the
following: A. On September 16, 2003 I was placed on an extended
medical leave of absence for work-related psychiatric
B. On approximately February 25, 2004 I provided my
employer with a doctor's note indicating that I could
return to work on March 1, 2004 with a reasonable
accommodation (no business of professional
interactions with Larry Mayer).
C. My employer failed to enter into an interactive
process with me and although I am able to perform the
essential functions of my job with reasonable
accommodation I was terminated on May 7, 2004.
Schnepp Decl. Ex. D. Byrnes thus cannot raise this issue before
2. Firing Based on Disability
a. Prima Facie Case
In order to establish a prima facie case for discriminatory
firing in violation of the FEHA, Byrnes must prove that (1) he
was a member of a protected class, (2) he was performing
competently in the position he held, (3) he suffered an adverse
employment action, such as termination, and (4) some other
circumstance suggests discriminatory motive. See Guz v. Bechtel
National Inc., 24 Cal.4th 317, 355 (2000). This initial step in
the burden-shifting analysis "is designed to eliminate at the
outset the most patently meritless claims, as where the plaintiff
is not a member of the protected class or was clearly
unqualified, or where the job he sought was withdrawn and never
filled." Id. Byrnes is a member of a protected class and was
fired. Although Lockheed argues that Byrnes was not performing
his job satisfactorily in light of his conduct toward Wong and
statements about "go[ing] postal," this appears to be a factual
issue not amenable to summary judgment. Finally, Lockheed fired
Byrnes shortly after he took medical leave, raising the
theoretical possibility that his disability was a factor. Byrnes
thus states a prima facie case of disability discrimination.
b. Lockheed's Reasons for Firing Byrnes
Lockheed claims that it fired Byrnes because he (1) harassed
Wong, (2) retaliated against her, and (3) refused to obey
Schnepp's admonition not to contact Wong. These are legitimate,
non-discriminatory reason for terminating Byrnes' employment.
c. Evidence that Lockheed's Reasons are Pretextual
Byrnes appears to allege that he was fired in retaliation for
requesting an accommodation for his disability. He went on
medical leave on September 16, 2003. Sprinkle Decl. Ex. A. In
February 2004, his doctor informed Lockheed that Byrnes would return to work if
it "accommodated" him by ensuring that he would have no contact
with Mayer. Byrnes Depo. at 372:3-3; Sprinkle Decl. Ex. 31.
Lockheed refused to comply. Sprinkle Decl. Ex. 22.
There are two reasons why no reasonable jury could conclude
that Lockheed fired Byrnes on the basis of his disability. First,
absent unusual circumstances, courts routinely reject
"boss-ectomy" claims like Byrnes': where plaintiffs argue that
their employer is liable for failing to assign them to another
supervisor. See Weiler v. Household Finance Corp.,
101 F.3d 519, 525 (7th Cir. 1996) (employer not liable under ADA "if a
plaintiff merely cannot work under a certain supervisor");
Kennedy v. Dresser Rand Co., 193 F.3d 120, 122-23 (2d Cir.
1999) ("[t]here is a presumption, however, that a request to
change supervisors is unreasonable"). Byrnes presents no evidence
or argument that his request that Lockheed insulate him from
Mayer falls outside this general rule. Second, Byrnes produces no
evidence to counter defendants' claims that he sexually harassed
Wong and mentioned "go[ing] postal" shortly after a shooting in
another Lockheed plant. As Lockheed persuasively argues, the
former not only justified terminating Byrnes' employment, but
required it. See Swenson v. Potter, 271 F.3d 1184, 1192 (9th
Cir. 2001) ("[i]f the employer fails to take corrective action
after learning of an employee's sexually harassing conduct . . .
[it] can be deemed to have adopted the offending conduct and its
results, quite as if they had been authorized affirmatively as
the employer's policy"). The latter, even standing alone, is
sufficiently serious to belie Byrnes' claim that Lockheed fired
him for impermissible reasons. The court thus grants Lockheed's
motion for summary judgment on Byrnes' FEHA claims.
C. Wrongful Termination of Employment in Violation of Public
California Labor Code section 2922 states that an employer may
fire an "at-will" employee "with or without good cause." Despite
this rule, however, California courts have long recognized that
"there can be no right to terminate for an unlawful reason or a
purpose that contravenes fundamental public policy." Gantt v.
Sentry Insurance, 1 Cal.4th 1083, 1094 (1992), overruled on
other grounds by Green v. Ralee Engineering Co., 19 Cal.4th 66,
80 n. 6 (1998). Employers who discharge employees for reasons
that violate "fundamental polic[y]" that is "delineated in a
constitutional or statutory provision" therefore face tort
liability. See Sequoia Ins. Co. v. Sup. Court,
13 Cal. App. 4th 1472, 1480 (1993). Byrnes claims that Lockheed fired him in violation of
"California's public policy against discriminating against
workers over 40 years old with handicaps." Compl. ¶ 17. Byrnes
does not articulate what constitutional or statutory provision
"deliniate[s]" this right. The only such provision of which this
court is aware is the FEHA. The court has already concluded that
no reasonable jury could find that Lockheed fired Byrnes in
violation of the FEHA. Thus, Lockheed is entitled to summary
judgment on Byrnes' wrongful termination of employment in
violation of public policy claim.
D. Breach of Contract
Byrnes' third cause of action alleges that Lockheed breached
"an oral, implied-in-fact contract" that he would be (1) "able to
continue his employment . . . so long as he carried out his
duties in a proper and competent manner," (2) not "harassed,
demoted, discharged, or otherwise disciplined," (3) given written
notice of complaints about his job performance, and (4)
compensated fairly. Compl. ¶ 22. However, Byrnes produces no
evidence or argument about what this contract was or how it
arose. Although Byrnes alleges that "portions of this contract
are embodied in defendants' written personnel policies and
disciplinary procedures," id. at ¶ 23, he neither attaches any
such policies or procedures to his opposition brief nor attempts
to summarize what they say. It is undisputed that Byrnes was an
"at-will" employee. His employment contract provides:
I understand my employment will be at the will of the
company, and I the right to terminate my employment
at any time, with or without cause and with or
without notice, with Lockheed retaining the same
Schnepp Decl. Ex. A. He also signed a Hire Notice, which states
that Lockheed has made no representations or assurances to him
with respect to duration of his employment. Schnepp Decl. Ex. B.
These facts, coupled with Byrnes' lack of evidence, entitles
Lockheed to summary judgment on his breach of contract cause of
E. Fraud and Deceit
Byrnes alleges that "before and after" Lockheed hired him, it
assured him "that he would be compensated for his work . . .
would not be discriminated against because he was over 40,
suffered from diabetes . . . and would not be . . . fired without
cause." Compl. ¶ 30. Byrnes also claims that Schnepp and Mayer
"made specific representations to plaintiff . . . [that] included
that [they] would support [him] and not undermine his authority . . . [and] would be honest with [him] . . .
[and] would not act in a discriminatory fashion against
[him]." Id. According to Byrnes, these promises were false and
therefore fraudulent. Id.
As noted, it is undisputed that Byrnes was an at-will employee.
To the extent that Byrnes claims that Lockheed made
misrepresentations to the contrary, it is well-established that
parol evidence cannot be "offered to show a promise which
contradicts an integrated written agreement." Alling v.
Universal Manufacturing Corp., 5 Cal. App. 4th 1412, 1436
(1992). Moreover, Byrnes fails to articulate what these
misrepresentations were, let alone produce any evidence to
support his claim that they occurred. The court grants Lockheed's
motion for summary judgment on this claim.
Byrnes alleges that defendants defamed him. According to
Byrnes, Wong called him "a sex harasser and a dangerous harasser
and [a] unstable person [and] accused him of harassment." Compl.
¶ 37. In addition, Byrnes contends that Mayer and Schnepp "echoed
these defamatory remarks." Id. Byrnes also asserts that Wong,
Schnepp, and Mayer "also called [him] dangerous and a menace and
a danger to other employees." Id.
The tort of defamation seeks redress for injury to reputation.
It requires the publication of a statement which is false, not
protected by any privilege, and which exposes a person to
contempt or ridicule. See Cal. Civ. Code §§ 45, 46; Shively v.
Bozanich, 31 Cal. 4th 1230 (2003). There are several problems
with Byrnes' defamation claims. For one, during Byrnes'
deposition, he denied having knowledge that Wong, Mayer, or
Schnepp ever made disparaging statements about him:
Q. Did you ever hear that Ms. Wong did you ever
hear Ms. Wong refer to you as a sex harasser?
Q. Did you ever hear from anybody else that she
referred to you as a sex harasser?
Q. Did you ever hear that she referred to you as a
Q. Do you have any evidence that she ever referred to
you as a dangerous harasser?
Q. Do you believe that she ever referred to you as a
* * *
A. I can't answer whether she was mad enough at some
point in time to call me any sort of names. I was
never aware of her saying anything about sexual
harassment and me in the same sentence. I mean, I
have no idea.
Q. And you have no idea that she ever referred to you
as a violent person?
A. No. Q. Do you have any reason to believe that Mr. Mayer
ever referred to you as a sex harasser?
Q. Do you have any reason to believe that Mr. Schnepp
referred to you as a sex harasser?
Q. Do you have any reason to believe that Mr. Mayer
ever referred to you as being dangerously unhinged or
a dangerous person?
A. I don't know on a person personally, I don't
know. I know that Mr. Mayer is an accomplished liar
and would probably say that if he had a chance.
* * *
Q. So you don't have any fact upon which you could
base a conclusion that he ever referred to you as a
sex harasser; right?
Q. Or a violent person?
Q. Or an unhinged individual?
Q. Do you have any reason to believe that Mr. Schnepp
ever called you a sex harasser?
Q. Or a dangerous harasser?
* * *
Q. Okay. What I'm saying is, did do you have any
reason to believe that Mr. Schnepp said anything
about your violent disposition, if you will, or
threats that you may have made, other than going to
Ms. Dahm and saying that you had referred to gong
postal or words to that effect?
Byrnes Depo. at 278:18-282:16. Byrnes' utter lack of evidence
that any defamatory statement was "published" dooms his claim.
Moreover, it is black-letter law that statements that are
"substantially true or . . . statements of opinion" are not
actionable. Eisenberg v. Alameda Newspapers, Inc.,
74 Cal. App. 4th 1359, 1382 (1999). Byrnes does not dispute that he made
unwelcome advances toward Wong and commented about "go[ing]
postal." Thus, no reasonable jury could conclude that defendants'
alleged statements about Byrnes' conduct were sufficiently
divorced from the truth to constitute defamation. In any event,
these alleged statements that Byrnes was a "sex harasser," a
"dangerous harasser," an "unstable person," a "menace," and "a
danger to other employees" are couched in defendants' own
perceptions and therefore opinions rather than statements of
fact. Defendants are entitled to summary judgment on Byrnes'
defamation claims. G. Intentional Infliction of Emotional Distress
Byrnes asserts that "[t]he actions and defamation of defendants
. . . were outrageous and inflicted severe emotional distress"
upon him. Compl. ¶ 45. Because the Worker's Compensation System
provides the exclusive forum for employees to seek redress for
workplace remedies, a plaintiff cannot bring a common law
intentional infliction of emotional distress claim for "ordinary
employer conduct that intentionally, knowingly, or recklessly
harms [him]." Fermino v. Fedco, Inc., 7 Cal.4th 701, 714
(1994). That limitation however, "does not apply . . . when the
`injury is a result of conduct, whether in the form of discharge
or otherwise, not seen as reasonably coming within the
compensation bargain.'" Kovatch v. California Cas. Management
Co., 65 Cal. App. 4th 1256, 1277 (1998) (holding that the
Workers' Compensation Act does not preempt intentional infliction
of emotional distress claims predicated upon wrongful termination
in violation of public policy) (quoting Shoemaker v. Myers,
52 Cal.3d 1, 19-20 (1990)), overruled on other grounds by Aguilar
v. Atlantic Richfield Co., 25 Cal.4th 826 (2001). Nevertheless,
as noted above, because Byrnes has failed to introduce evidence
to support his multiple claims against defendants, no reasonable
jury could conclude that their conduct transcended the ordinary
range of tolerable workplace behavior.
H. Byrnes' Request for a Delayed Ruling
Byrnes asks the court for a continuance to seek more evidence.
Federal Rule of Civil Procedure 56(f) permits a court to delay
ruling on a summary judgment motion when the non-moving party
explains that it lacks key evidence:
Should it appear from the affidavits of a party
opposing the motion that the party cannot for reasons
stated present by affidavit facts essential to
justify the party's opposition, the court may refuse
the application for judgment or may order a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may
make such other order as is just.
Fed.R.Civ.P. 56(f). However, the non-moving party "bears the
burden of showing `what facts she hopes to discover to raise a
material issue of fact.'" Terrell v. Brewer, 935 F.2d 1015,
1018 (9th Cir. 1991) (quotation omitted). The non-moving party
must make "(a) timely application which (b) specifically
identifies (c) relevant information, (d) where there is some
basis for believing that the information sought actually exists."
Visa Int'l Serv. Ass'n v. Bankcard Holders of Am.,
784 F.2d 1472, 1475 (9th Cir. 1986). In addition, it must show that it has not failed to diligently
pursue discovery in the past. See Cal. Union Ins. Co. v. Am.
Diversified Sav. Bank, 914 F.2d 1271, 1278 (9th Cir. 1990).
Byrnes cannot meet this standard. For one, Byrnes fails
"specifically [to] identif[y]" what information he would seek to
uncover. In addition, although Byrnes filed his complaint in
September 2004, he did not notice Schnepp, Mayer, or Wong's
depositions until a full year later. According to defendants,
these depositions never took place because Schnepp, Mayer, and
Wong were not available for the initial noticed dates and then
Byrnes "subsequently cancelled each and every deposition that was
scheduled." Sprinkle Decl. Supp. Rep. Mot. Summ J. ¶ 3. The court
thus denies Byrnes' request for a delayed ruling.
I. Motion for Sanctions
Wong, Schnepp and Mayer move for sanctions against Byrnes and
his attorney under Rule 11. That Rule enables courts to impose
monetary penalties on parties and attorneys who make allegations
that lack evidentiary support. See Fed.R.Civ.P. 11(b)(1).
The purpose of Rule 11 is to deter dilatory or abusive pretrial
tactics and to streamline litigation by excluding baseless
filings. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384
(1990).*fn3 When it becomes apparent that a case lacks
evidentiary support, a client and his lawyer have a duty to
withdraw their complaint. For example, in Blossom v. Blackhawk
Datsun, Inc., 120 F.R.D. 91, 94 (S.D. Ind. 1988), a
factually-similar case, the defendant counterclaimed for
defamation but admitted in his deposition that he had no evidence
to support this claim. The court sanctioned the defendant and his
counsel for continuing to litigate:
Mr. Schneider testified under oath that he had no
knowledge of the facts underlying the defamation
claim, so defendants and counsel knew or should have
known that there was no factual basis for the
defamation claim, or at a minimum that the evidence
to support the claim was not forthcoming. At that
point, the maintenance of the claim was no longer
compatible with the dictates of Rule 11. Rule 11 not
only obligates an attorney to conduct a reasonable
pre-filing investigation, but also to review,
examine, and re-evaluate his position as the facts of
the case come to light. It is undisputed that Mr.
Schneider firmly believed in the defamation claim as
asserted. However, by the time the depositions were
taken . . . it is evident that the factual basis for
the defamation claim was lacking or at the very least
that the defendants could not produce the evidence.
Adequate investigation or research should have
disclosed the flaws in this claim even before the
depositions. By that time, the defendants and their
counsel had an obligation to dismiss the claim. Id. at 100 (internal citations omitted). Likewise,
in the instant case, Byrnes had no evidence to
support a defamation claim at the time he filed, and
this lack of factual support was brought out at
Byrnes' deposition. Nevertheless, the claim was not
withdrawn after the deposition and, in fact, Byrnes'
counsel specifically refused to dismiss the claim
after receiving defendants' warning letter regarding
sanctions. The institution of a defamation claim with
no facts to support it and the continued pursuit of
it following clear recognition of that is conduct
which violates Rule 11. The court sanctions Byrnes
and his attorney in the amount of $975, jointly and
severally, to be paid to Wong, Schnepp and Mayer
defendants' counsel to partially reimburse them for
fees incurred. The court finds that $975 is less than
what defendants have reasonably incurred in
responding to plaintiff's defamation claim but is
sufficient to deter similar future conduct.
For the foregoing reasons, the court (1) grants Lockheed's
motion for summary judgment, (2) grants Wong, Schnepp, and
Mayer's motion for summary judgment, and (3) grants Wong,
Schnepp, and Mayer's motion for sanctions in the amount of $975
to be split equally between Byrnes and his attorney.
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