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Court orders lawyer to prove suit not frivolous

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The 7th Circuit Court of Appeals today affirmed the orders of the District Court to grant summary judgment to defendants and also ordered the plaintiff's attorney to show cause why he shouldn't be sanctioned for filing a "frivolous" appeal.

In the conclusion of the opinion for Charles Price v. Wyeth Holdings Corporation, No 06-2072, on appeal from the U.S. District Court in the Northern District of Indiana, Hammond Division, Judge Diane Sykes ordered Price's attorney, Delmar P. Kuchaes of Crown Point, to show cause why he should not be sanctioned for his filing of the appeal. The Circuit Court also directed its clerk to send a copy of the opinion to the Indiana Supreme Court Disciplinary Commission for any action it deems appropriate.

Price later moved to reinstate the lawsuit in 1998 - which the state court granted - against Wyeth Holdings Corp., which was known as American Cynanmid Co. and Lederle Laboratories in his original state-court lawsuit. Price's attorney did not give the defendants any notice of the revived lawsuit until he sought to collect a $5 million judgment from the defendants. When the defendants learned of the suit, they removed the case to federal court and had the default judgment vacated based on the lack of notice. The District Court granted summary judgment for the defendants, dismissing Price's claim on statute of limitations grounds.

The original state lawsuit was filed in 1993 against American Cyanamid Co. and Lederle Laboratories after Cathy Price contracted polio from a child who had recently been vaccinated, according to court documents. Cathy Price's claim was based on product liability and Charles Prices' claim was for loss of consortium. The summons were sent certified mail to defendants, and the manager of American Cyanamid's legal department faxed a letter to Kuchaes, informing him that the National Childhood Vaccine Injury Act requires vaccination claims to be brought first in the U.S. Court of Federal Claims. After receiving the letter, the plaintiffs voluntarily dismissed the lawsuit, and Kuchaes sent a letter to the defendants with a copy of the dismissal order and notice the suit had been discontinued or non-suited.

Cathy Price obtained a judgment from the U.S. Court of Federal Claims, but Charles Price's claim was not compensable under the Vaccine Act, so he dismissed his claim. In 1998, the Prices moved to reinstate their state-court action against the defendants but did not provide any notice of that motion to the defendants. In 2000, Charles Price filed motions for default judgment against the defendants, stating the process had been started in 1993 and the defendants failed to appear or respond, without mentioning to the court the voluntary dismissal of the original suit and that the defendants were not served again. The court scheduled an evidentiary hearing on damages and mailed a notice of damages to Lederle Laboratories at the address on the original summons. The notice was returned because it was an incorrect address. Price's attorney, Kuchaes, made no attempt to notify the defendants, and the hearing went forward; the court awarded Charles Price $5 million.

It wasn't until 2004, when Kuchaes initiated garnish proceedings against the defendants did the defendants know the suit was reintroduced in state court. On June 22, 2004, the defendants jointly filed a notice of removal to federal court, and the case was removed. The District Court vacated the default judgment due to plaintiff's failure to comply with the notice requirements under Indiana law and granted summary judgment to the defendants. Price appealed the denial of his remand motion, the order vacating the default judgments, and the grant of summary judgment for the defendants.

Price argued the defendants couldn't file for removal because they had passed the 30-day requirement to file for removal after receiving initial pleadings. He explained the 30-day period expired 30 days after the defendants received the original complaint in 1993 and claimed that under Indiana law, a lawsuit is not actually terminated when it is voluntarily dismissed, but rather remains pending indefinitely until such a time as the plaintiff may seek reinstatement. According to court documents, Price also goes on to state under Indiana law, a "cause" refers to a lawsuit and a "cause of action" refers to an individual theory of liability within a "cause" and maintains he dismissed only his "cause of action."

"What utter nonsense," Judge Sykes wrote. "... Price cannot identify a single case supporting the notion that a voluntary dismissal terminates the 'cause of action' but not the 'cause.' This is undoubtedly because the idea is so ridiculous."

The Indiana Rules of Trial Procedure require a party to serve notice of all pleadings and motions on any party who is not in default, a duty Price's counsel "apparently deliberately ignored." The record demonstrates the defendants didn't receive notice of the new state-court suit until June 14, 2004, and they sought a removal eight days later, which is well within the 30-day period.

Price also argued a one-year removal limit on diversity cases also prevents the case from being removed, but the Circuit judges found his argument illogical because Price argued the removal clock continues to run after a lawsuit has been voluntarily dismissed.

"That an attorney could in good faith expect to prevail on such baseless arguments is difficult to fathom," Judge Sykes wrote.

Price challenged the District Court's granting of summary judgment in favor of the defendants. As noted earlier, the Indiana Rules of Trial Procedure require all parties not in default, which the defendants in this case were not in default, be served with any motions or pleadings filed with the court. The Indiana Supreme Court has held that an attorney has a duty under the Indiana Rules of Professional Conduct to provide any counsel with a motion for default before allowing the entry of default judgment and failure to comply requires relief from the judgment.

"Because the default judgments failed to comply with these requirements of Indiana law, they were void; the district court was therefore required to vacate the judgments, making this appeal of its order doing so frivolous," wrote judge Sykes.

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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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