PHILADELPHIA – A trio of judges from the U.S. Court of Appeals for the Third Circuit bench have upheld the granting of summary judgment to the U.S. government in its second litigation against a farmer who allegedly violated the Clean Water Act, finding that defense counsel’s repeated procedural violations called for such a sanction.
On June 11, Third Circuit judges Thomas M. Hardiman, Joseph A. Greenaway Jr. and Stephanos Bibas affirmed a granting of summary judgment in favor of the United States of America and against Robert Brace, Robert Brace Farms and Robert Brace & Sons, Inc.
“Robert Brace is a farmer. He owns hundreds of acres in Erie County, Pennsylvania. Decades ago, he bought a parcel of pasture that included thirty acres of wetlands, cleared it, and drained it to grow crops. The government ordered him to stop mowing the site, yet he kept doing it. So it sued him under the Clean Water Act and prevailed. Brace had dug up dirt, rocks, and the like in the wetlands and redeposited them without a permit. That, we held, violated the Act,” Bibas.
“In 2012, Brace expanded his farm, buying a neighboring parcel from the Marsh family. The Marsh Site adjoins Elk Creek, a tributary of Lake Erie, and includes about 14 acres of wetlands. About a month later, two government officials visited and advised him to get a wetlands delineation on the Marsh Site. He did not. Instead, Brace and his sons cleared and drained the wetlands. They used a bulldozer to clear vegetation, an excavator to dig out stumps, a four-track hoe to dig ditches and a tile plow to install a tile drain. They dumped the dirt, rocks, and the like back into the wetlands.”
As Brace did not have a permit for such activity, the government discovered it and sued him again under the Act, seeking civil penalties and an injunction. The instant suit is only regarding the Marsh Site.
The trial court found that Brace’s former counsel acted unprofessionally.
“What followed the initiation of this action is a procedural history replete with extended deadlines, missed deadlines, and completely ignored deadlines – all by defendants’ counsel. Brace’s lawyer’s misdeeds started small, but snowballed. We commend the District Court for staying patient in the face of appalling, unlawyerly behavior,” Bibas said.
Bibas explained the counsel in question did not properly plead their client’s case, failed to cooperate with opposing counsel during the discovery period and repeatedly missed filing submission deadlines, even when the trial court granted generous extensions, and did not offer an explanation for doing so.
“The government later moved for summary judgment. Brace responded a day late. His opposition ran more than 9000 pages long, lacked an appendix, and included thousands of duplicative pages. The government moved to strike his brief plus thirty-three of his exhibits,” Bibas stated.
“In Brace’s brief, his counsel referred to many materials that the court had already stricken. And he had not produced those exhibits in discovery. One of the exhibits was a 248-page expert report, dated four months after the close of discovery, that the court had explicitly excluded.”
Finally, the District Court had enough and struck Brace’s opposition brief to summary judgment, analyzing the filing under the Poulis factors, which a court must consider before dismissing a case as a sanction. They are as follows:
1) How much the party is personally responsible for the challenged actions; 2) How much those actions prejudiced the opposing party; 3) The history of dilatoriness; 4) Whether the party or its lawyer acted willfully or in bad faith; 5) How effective alternative sanctions less than dismissal would be; and 6) Whether the party has a meritorious claim or defense.
The Court granted summary judgment for the government on liability, holding that Brace had violated the Act, which led Brace to appeal on a variety of grounds. However, the Third Circuit did not find merit in the appeal.
“Overall, striking Brace’s brief was severe but reasonable. The District Court saw the action live and was admirably patient. Especially given the astounding misbehavior here, we trust its judgment that the punishment fit the wrongs,” Bibas said.
Bibas added the federal appellate bench did not find the trial court abused its discretion.
“District Courts have broad discretion to impose proportional sanctions. When they explain how they weigh the Poulis factors, we can confirm the reasonableness of those sanctions. Though striking Brace’s summary judgment brief was harsh, it was a reasonable response to his former counsel’s persistent, extreme misconduct. We will affirm,” Bibas said.
U.S. Court of Appeals for the Third Circuit case 20-1892
U.S. District Court for the Western District of Pennsylvania 1:17-cv-00006
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com