United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
September 19, 2019, the Court directed plaintiff's
counsel Peter C. Rombold to show cause on or before October
3, 2019 why he should not be sanctioned and referred to the
Kansas Disciplinary Administrator for professional
discipline. Memorandum And Order And Order To Show
Cause (Doc. #6) at 6. As of the date of this order,
plaintiff's counsel has not responded to the Court's
show cause order. For reasons stated below, the Court orders
that Rombold pay to the Clerk of the Court as sanctions in
this case the sum of $500.00. The Court also refers this
matter to the Kansas Disciplinary Administrator for such
further proceedings as may be appropriate.
March 18, 2019, plaintiff filed a complaint against defendant
alleging unlawful employment practices in violation of 42
U.S.C. § 2000e-3 and the Kansas Act Against
Discrimination, K.S.A. § 44-1001 et seq.
Complaint (Doc. #1). As of June 17, 2019, the deadline
for service under Rule 4(m), Fed. R. Civ. P., plaintiff had
not served the summons and complaint on defendant.
24, 2019, the chambers of U.S. Magistrate Judge Gwynne E.
Birzer contacted Rombold by email regarding the status of
this action. Judge Birzer's chambers informed him that if
chambers did not receive any formal filings or informal
status reports which indicated the status of service, Judge
Birzer would proceed with a show cause order. Rombold did not
10, 2019, Judge Birzer found that the deadline for service
had expired and that plaintiff had yet to secure service on
defendant. Notice And Order To Show Cause (Doc. #4).
Accordingly, Judge Birzer ordered plaintiff to show good
cause in writing why the Court should not dismiss this action
with prejudice for lack of prosecution under Rule 41(b),
24, 2019, Rombold filed a response to Judge Birzer's show
cause order. Response To Order To Show Cause (Doc.
#5). He asserted that “plaintiff had neglected and
failed to comply with a material obligation owed to
[counsel]” but that he and plaintiff “have
conferred and counsel has agreed to modify his fee contract
and proceed with prosecution of this case.”
Id. Rombold filed the summons with the response to
the show cause order.
September 19, 2019, the Court found that dismissal with
prejudice was not appropriate at that time and exercised its
discretion to extend the time for plaintiff to secure service
of process on defendant to October 1, 2019. Memorandum
And Order And Order To Show Cause (Doc. #6) at 4, 6. In
addition, the Court ordered Rombold to show cause why the
Court should not impose sanctions and refer him to the Kansas
Disciplinary Administrator for professional discipline.
Id. at 6. The Court found that Rombold's stated
reason for failing to secure service on defendant was that
his client had failed to pay a bill. The Court stated that
this appeared to be a violation of this Court's rules and
a dereliction of Rombold's professional obligations.
Id. The Court explained that while breach of a fee
arrangement may constitute sufficient grounds for counsel to
file a motion to withdraw from a case, counsel must continue
to vigorously represent his client unless and until the Court
permits him to withdraw. See D. Kan. R. 83.5.5(a)(1)
(lawyer seeking to withdraw must file motion to withdraw);
see also Kan. R. Prof. Conduct 1.3 (lawyer shall act
with reasonable diligence and promptness in representing
client); Comment 3 to Kan. R. Prof. Conduct 1.3 (lawyer
should carry to conclusion all matters undertaken for
the date of this order, Rombold has not responded to the
Court's order to show cause and the docket does not
reflect that plaintiff has effectuated service on defendant.
Authority To Impose Sanctions
Court has adopted the Kansas Rules of Professional Conduct,
as promulgated by the Kansas Supreme Court, as the applicable
standards of professional conduct. See D. Kan. Rule
83.6.1. Under D. Kan. Rule 11.1(c), the Court has discretion
whether to impose sanctions for violation of a local rule.
Federal courts also possess inherent authority to sanction
both attorneys and litigants for conduct that amounts to
abuse of the judicial process. See Roadway Express, Inc.
v. Piper, 447 U.S. 752, 766 (1980); Morris v.
Adam-Millis Corp., 758 F.2d 1352, 1357 n.7 (10th Cir.
1985). This inherent authority “extends to a full range
of litigation abuses, ” Chambers, 501 U.S. at
46, including attorneys who violate the Rules of Professional
Conduct. See Hammond v. City of Junction City, Kan.,
126 Fed.Appx. 886, 889 (10th Cir. 2005) (magistrate judge did
not exceed jurisdiction when he imposed sanctions for
violation of Kansas Rule of Professional Conduct); Myers
v. Colgate-Palmolive Co., 173 F.R.D. 296, 300 (D. Kan.
1997) (sanctions for violation of Model Rules of Professional
Conduct may include report to state disciplinary authority,
monetary sanctions or other appropriate sanctions); see
also Chambers, 501 U.S. at 43 (federal court has power
to control admission to its bar and to discipline attorneys);
In re Snyder, 472 U.S. 634, 645 n.6 (1985) (state
code of professional responsibility did not by its own terms
apply to attorney sanctions in federal courts, but in
exercising inherent power under standards imposed by federal
law, federal court may charge attorneys with knowledge of and
conformity to state codes); Roadway, 447 U.S. at 766
(power of court over members of its bar is at least as great
as its authority over litigants); Fink v. Gomez, 239
F.3d 989, 991-992 (9th Cir. 2001) (sanctions may be imposed
under court's inherent authority for “bad
faith” actions which include broad range of
“willful improper conduct”); Carlucci v.
Piper Aircraft Corp., 775 F.2d 1440, 1447 (11th Cir.
1985) (even absent explicit legislative enactment, court has
power to impose reasonable and appropriate sanctions upon
errant lawyers practicing before it). This Court's
“inherent power” to sanction errant lawyers
“can be invoked even if procedural rules exist which
sanction the same conduct.” Chambers, 501 U.S.
deadline for effectuating service of process on defendant was
June 17, 2019. Rombold's stated reason for failing to
comply with Rule 4(m), Fed. R. Civ. P., was that his client
had failed to comply with a material obligation she owed him.
His conduct in this regard was a violation of his
professional obligation under Rule 1.3 of the Kansas Rules of
Professional Conduct. See Kan. R. Prof. Conduct Rule
1.3 (lawyer shall act with reasonable diligence and
promptness in representing client); Comment 1 to Rule 1.3
(lawyer should pursue matter on behalf of client despite
personal inconvenience to ...