1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ERNEST KEISTER, : No. 4:13-cv-00118

:

Plaintiff, :

: (Judge Brann)

v. :

:

PPL CORPORATION AND :

INTERNATIONAL BROTHERHOOD :

OF ELECTRICAL WORKERS, :

LOCAL 1600, :

:

Defendants. :

MEMORANDUM

December 29, 2015

The Rule 11 Sanctions Motion and the Rule 54 Motion for Fees disposed of 

herein both spring from the filing of a baseless employment discrimination suit. 

Donald P. Russo, Esquire, the lawyer who brought the underlying claims, is no 

stranger to Rule 11 discipline. Other federal judges have described his work as 

“dubious” and “troubling.” In fact, just one week before filing his opposition briefs 

to Defendants’ Summary Judgment Motions here, Mr. Russo was sanctioned in the 

form of public reprimand by the Honorable Robert D. Mariani of this Court for 

similar conduct in a similar case. Mr. Russo was also recently sanctioned on public 

reprimand by the Supreme Court of Pennsylvania’s Disciplinary Board. 

Because Mr. Russo has now engaged in a subsequent Rule 11 violation in 

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 1 of 55
2

connection with this vexatious litigation, both PPL’s Motion for Rule 11 Sanctions 

and the Union’s Rule 54 Motion for Fees will be granted in full. Moreover, 

because no prior disciplinary measures have succeeded in deterring Mr. Russo 

from bringing frivolous employment discrimination suits in federal court while 

simultaneously attempting to disguise those suits’ underlying weaknesses in order 

to prolong otherwise needless litigation, this Court also concludes that an award of 

reasonable attorney’s fees is the least severe sanction needed to deter Mr. Russo’s 

improper conduct.

I. BACKGROUND

Plaintiff Ernest Keister, through his counsel Mr. Russo, brought this 

spurious employment discrimination lawsuit against PPL Corporation and the 

International Brotherhood of Electrical Workers, Local 1600 Union on January 17, 

2013.1The lawsuit was filed one year and seven months after Plaintiff initiated his 

EEOC charge, ten months after Plaintiff’s last meaningful communication with the 

Union and four months after the EEOC dismissed Plaintiff’s charge and issued his 

right-to-sue letter.2 Not only did the lawsuit suffer from blatant timeliness defects, 

but it also failed to demonstrate that either Defendant harbored any discriminatory 

 

1

 According to PPL, Plaintiff erroneously listed his official employer as PPL Corporation or PPL 

Services Corporation. PPL states that “[a]t all relevant times, Plaintiff’s actual employer was 

PPL Susquehanna, LLC (since renamed ‘Susquehanna Nuclear, LLC’).” ECF No. 40 at 1 n.1.

2

 See ECF No. 54 at 5, 38–40.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 2 of 55
3

animus toward Plaintiff whatsoever.3

In a nutshell, Plaintiff’s lawsuit, the entirety of which was disposed of by 

this Court’s October 6, 2015 Memorandum granting in full both Defendants’

Motions for Summary Judgment, alleged two claims of age discrimination against 

PPL—one under the Age Discrimination in Employment Act of 1967, 29 U.S.C. 

§§ 621 et seq. (“ADEA”) and a second under the Pennsylvania Human Relations 

Act, 43 P.S. §§ 951 et seq. (“PHRA”)—as well as a third claim involving a 

supposed hybrid violation of § 301 of the Labor Management Relations Act of 

1947, 29 U.S.C. § 185(a) (“LMRA”) brought against both PPL and the Union.

4 As 

the evidence unwound itself during discovery and depositions, it became clear that 

Plaintiff lacked any evidence of the wrongs he pleaded. Quite frankly, as detailed 

more fully herein, certain of Plaintiff’s key factual allegations, which helped his 

Second Amended Complaint survive so long, turned out to be unrepresentative of 

the truth and often were wholly at odds with Plaintiff’s own deposition testimony. 

Plaintiff lost, it turned out, primarily because he failed to exhaust his remedies by 

never initiating a grievance, because his action was untimely, and because 

Defendants had never, in fact, discriminated against him.

As this might suggest, apart from its status as a run-of-the-mill employment 

dispute lacking little evidence of discrimination, Plaintiff’s action suffered from a 

 

3

 See id. at 42.

4

 See ECF No. 54.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 3 of 55
4

far more disconcerting flaw: it was needlessly kept alive at several junctures that 

should have resulted in its outright termination—a sort of litigious necromancy 

conjured up by Mr. Russo’s specious filings to coerce the Defendants into settling 

a meritless claim. Absent Mr. Russo’s attempts to manufacture facts, warp the law, 

and utterly cloud the action’s underlying allegations, this case would have 

disappeared long ago, saving Defendants, the Court, and the public significant time 

and money.

Like so many times in the past, Mr. Russo unfortunately chose not to take 

the straightforward path. In fact, Mr. Russo is quite familiar with Rule 11 

Sanctions and related ethical scrutiny. The Honorable Lawrence F. Stengel of the 

United States District Court for the Eastern District of Pennsylvania has previously 

termed Mr. Russo’s employment discrimination work “dubious,” “ill-conceived,” 

“poorly presented,” “silly,” and “riddled with credibility shortcomings.”5In 

addition, as noted above, just one week before he filed his briefs in opposition to 

Defendants’ Summary Judgment Motions in this case, Mr. Russo was publicly 

sanctioned under Rule 11 by the Honorable Robert D. Mariani of this Court for 

maintaining a similar employment discrimination claim that Judge Mariani deemed

 

5

 Knoll v. City of Allentown, No. CIV.A. 08-04692, 2011 WL 4528336, at *1 (E.D. Pa. Sept. 30, 

2011).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 4 of 55
5

“patently unmeritorious” and “frivolous.”6Judge Mariani would go on to criticize

Mr. Russo’s “litigation history” as “troubling.”7 Mr. Russo also recently received a 

second public reprimand, this time from the Supreme Court of Pennsylvania’s 

Disciplinary Board.8Suffice it to say, Mr. Russo is simply not getting the message.

The Court trusts that Mr. Russo’s consistently questionable practices will 

cease today. PPL has filed a Motion for Rule 11 Sanctions, and the Union has filed 

a Rule 54 Motion for Fees and Costs. Based on this Court’s consideration of the 

present matter, its review of past actions involving Mr. Russo, and a hearing held 

before the Court to address the pending motions, it is evident that the instant 

lawsuit was meritless and that Mr. Russo has yet to be adequately deterred from 

filing “dubious” employment suits in federal court. Accordingly, Defendants’

Motions are both granted in full, and the parties are hereby directed to submit a 

comprehensive accounting of their expenses and fees, supported by adequate 

affidavits, in accordance with this Memorandum and the Court’s attached Order.9

The Court deems an award of reasonable attorney’s fees to be the least severe 

sanction necessary to deter Mr. Russo’s tendency to file frivolous actions.

 

6

 Moore v. Air Methods, Inc., No. 3:14-CV-0684, 2015 WL 4590988, at *6 (M.D. Pa. July 29, 

2015).

7

 Id. at *10.

8

 111 DB 2015.

9

 Such filings should detail the exact expenses and fees incurred, with sufficient detail that the 

Court is capable of determining whether such expenses, costs, or fees are duplicitous, excessive, 

or otherwise unnecessary. The Court will then allow a brief period for Mr. Russo to formally 

contest any of Defendants’ accountings before giving Defendants a brief opportunity to reply.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 5 of 55
6

II. LAW

Federal Rule of Civil Procedure 11 provides in pertinent part that:

(b) Representations to the Court. By presenting to the court a 

pleading, written motion, or other paper—whether by signing, 

filing, submitting, or later advocating it—an attorney or 

unrepresented party certifies that to the best of the person’s 

knowledge, information, and belief, formed after an inquiry 

reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as 

to harass, cause unnecessary delay, or needlessly increase 

the cost of litigation;

(2) the claims, defenses, and other legal contentions are 

warranted by existing law or by a nonfrivolous argument for 

extending, modifying, or reversing existing law or for 

establishing new law;

(3) the factual contentions have evidentiary support or, if 

specifically so identified, will likely have evidentiary 

support after a reasonable opportunity for further 

investigation or discovery; and

(4) the denials of factual contentions are warranted on the 

evidence or, if specifically so identified, are reasonably 

based on belief or a lack of information.

(c) Sanctions.

(1) In General. If, after notice and a reasonable opportunity to 

respond, the court determines that Rule 11(b) has been 

violated, the court may impose an appropriate sanction on 

any attorney, law firm, or party that violated the rule or is 

responsible for the violation. Absent exceptional 

circumstances, a law firm must be held jointly responsible 

for a violation committed by its partner, associate, or 

employee.

The Supreme Court of the United States and the United States Court of 

Appeals for the Third Circuit have developed a consistent jurisprudence as it 

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 6 of 55
7

pertains to Rule 11 Sanctions.10 “It is now clear that the central purpose of Rule 11 

is to deter baseless filings in district court and thus, consistent with the Rules 

Enabling Act’s grant of authority, streamline the administration and procedure of 

the federal courts.”11 “Rule 11 imposes a duty on attorneys to certify that they have 

conducted a reasonable inquiry and have determined that any papers filed with the 

court are well grounded in fact, legally tenable, and not interposed for any 

improper purpose.”12 “[T]he rule emphasizes the duty of candor by subjecting 

litigants to potential sanctions for insisting upon a position after it is no longer 

tenable.”13 “The word ‘sanctions’ in the caption . . . stresses a deterrent orientation 

in dealing with improper pleadings, motions or other papers.”14 “[T]he intended 

goal of Rule 11 is accountability.”

15

“The standard for testing conduct under Rule 11 is reasonableness under the 

circumstances.”16 “The rule imposes on counsel a duty to look before leaping and 

may be seen as a litigation version of the familiar railroad crossing admonition to 

‘stop, look, and listen.’”

17 “It may be rephrased, ‘Stop, Think, Investigate and 

 

10 The law pertaining to Rule 54 Motions for Fees and Costs is set out more fully later in the 

Memorandum in Part III.G.

11

 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990).

12

 Id. (internal quotations omitted).

13

 Ellis v. Beemiller, Inc., 287 F.R.D. 326, 347 (W.D. Pa. 2012) (internal citations and quotations 

omitted).

14

 Doering v. Union Cty. Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir. 1988).

15

 Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir. 1988) (Weis, J.).

16

 Teamsters Local Union No. 430 v. Cement Exp., Inc., 841 F.2d 66, 68 (3d Cir. 1988).

17

 Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986) (Weis, J.).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 7 of 55
8

Research’ before filing papers either to initiate a suit or to conduct the litigation.”18

“These obligations conform to those practices which responsible lawyers have 

always employed in vigorously representing their clients while recognizing the 

court’s duty to serve the public efficiently.”19

“To comply with these requirements, counsel must conduct ‘a reasonable 

investigation of the facts and a normally competent level of legal research to 

support the presentation.’”

20 “This standard is more stringent than the original good 

faith formula and thus it is expected that a greater range of circumstances will 

trigger its violation.”21 “In applying this standard, the court is expected to avoid 

using the wisdom of hindsight and should test the signer’s conduct by inquiring 

what was reasonable to believe at the time the pleading, motion, or other paper was 

submitted.”22 Rule 11 Sanctions are appropriate, for instance, “when the claimant 

exhibits a deliberate indifference to obvious facts.”23

“Rule 11 sanctions should not be viewed as a general fee shifting device. By 

and large federal courts are bound by the ‘American Rule,’ requiring parties to 

 

18

 Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987) (Weis, J.).

19

 Id.

20

 Mary Ann Pensiero, Inc., 847 F.2d at 94 (quoting Lieb, 788 F.2d at 157).

21

 Lieb, 788 F.2d at 157.

22

 CTC Imports & Exports v. Nigerian Petroleum Corp., 951 F.2d 573, 578 (3d Cir. 1991) 

(Nygaard, J.).

23 Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 8 of 55
9

shoulder their own legal expenses.”24 “Litigants misuse the Rule when sanctions 

are sought against a party or counsel whose only sin was being on the unsuccessful 

side of a ruling or judgment. Restated, Rule 11 sanctions awarding counsel fees do 

not automatically or usually follow an adverse judgment or ruling. Substantially 

more is required.”25 “Rule 11 is instead reserved for only exceptional 

circumstances.”26 “Similarly, just as mere failure to prevail does not trigger a 

sanction award, neither does advocating new or novel legal theories.”27 Courts 

should not apply Rule 11 “to inhibit imaginative legal or factual approaches to 

applicable law or to unduly harness good faith calls for reconsideration of settled 

doctrine.”28 “The Rule seeks to strike a balance between the need to curtail abuse 

of the legal system and the need to encourage creativity and vitality in the law.”29

Above all else, “[g]reater attention by the district courts to pleading and 

motion abuses and the imposition of sanctions when appropriate, should 

discourage dilatory or abusive tactics and help to streamline the litigation process 

by lessening frivolous claims or defenses.”

30 The Third Circuit and the Advisory 

Committee Notes to Rule 11have set forth certain factors useful in determining 

 

24

 Gaiardo, 835 F.2d at 483 (citing Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240 

(1975)).

25

 Gaiardo, 835 F.2d at 483. 

26

 Morristown Daily Record, Inc. v. Graphic Commc’ns Union, Local 8N, 832 F.2d 31, 32 (3d Cir. 

1987) (Weis, J.).

27

 Gaiardo, 835 F.2d at 483.

28

 Id.

29

 Id. at 483–84.

30

 Fed. R. Civ. P. 11 Advisory Committee Notes to 1983 Amendment.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 9 of 55
10

whether an attorney’s conduct has violated Rule 11. Those factors include:

[H]ow much time for investigation was available to the signer; 

whether he had to rely on a client for information as to the facts 

underlying the pleading, motion, or other paper; whether the pleading, 

motion, or other paper was based on a plausible view of the law; [ ] 

whether he depended on forwarding counsel or another member of the 

bar; [and] whether [one] is in a position to know or acquire the 

relevant factual details.31

Once a violation of Rule 11 has been established, a district court “has 

discretion to tailor sanctions to the particular facts of the case.”32 “The court has 

available a variety of possible sanctions to impose for violations, such as striking 

the offending paper; issuing an admonition, reprimand, or censure; requiring 

participation in seminars or other educational programs; ordering a fine payable to 

the court; referring the matter to disciplinary authorities . . . , etc.”33 “The basic 

principle governing the choice of sanctions is that the least severe sanctions 

adequate to serve the purpose should be imposed.”34 Thus, the appropriate sanction 

must still achieve Rule 11’s central purpose: “deterrence of frivolous lawsuits.”35

 

31

 Fed. R. Civ. P. 11 Advisory Committee Notes to 1983 Amendment; CTC Imports & Exports, 

951 F.2d at 578.

32

 Doering, 857 F.2d at 194.

33

 Fed. R. Civ. P. 11 Advisory Committee Notes to 1993 Amendment (“Since the purpose of Rule 

11 sanctions is to deter rather than to compensate, the rule provides that, if a monetary sanction 

is imposed, it should ordinarily be paid into court as a penalty. However, under unusual 

circumstances, particularly for (b)(1) violations, deterrence may be ineffective unless the 

sanction not only requires the person violating the rule to make a monetary payment, but also 

directs that some or all of this payment be made to those injured by the violation. Accordingly, 

the rule authorizes the court, if requested in a motion and if so warranted, to award attorney’s 

fees to another party.”).

34

 Doering, 857 F.2d at 194.

35

 See id. at 193.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 10 of 55
11

To that end, federal courts in the Third Circuit’s venire and the Advisory 

Committee Notes to Rule 11 have also set forth certain factors useful in 

determining the appropriate sanction for a violation of Rule 11. They include:

Whether the improper conduct was willful, or negligent; whether it 

was part of a pattern of activity, or an isolated event; whether it 

infected the entire pleading, or only one particular count or defense; 

whether the person has engaged in similar conduct in other litigation; 

whether it was intended to injure; what effect it had on the litigation 

process in time or expense; whether the responsible person is trained 

in the law; what amount, given the financial resources of the 

responsible person, is needed to deter that person from repetition in 

the same case; what amount is needed to deter similar activity by 

other litigants: all of these may in a particular case be proper 

considerations.36

III. ANALYSIS

A. Neither Of Defendants’ Motions Are Untimely.

Mr. Russo’s lead counterargument as it relates to both PPL’s Rule 11 

Motion for Sanctions and the Union’s Rule 54 Motion for Fees is that they are 

untimely filed. That contention is incorrect as it relates to both Motions. First, with 

regard to PPL’s Motion, Mr. Russo contends that “[i]n light of the Pensiero Rule, 

. . . the timing of Defendant PPL’s Motion for Rule 11 Sanctions is dubious.”37 To 

the contrary, in Mary Ann Pensiero, Inc. v. Lingle, the Third Circuit “adopt[ed] as 

a supervisory rule for the courts in the Third Circuit a requirement that all motions 

 

36

 Fed. R. Civ. P. 11 Advisory Committee Notes to 1993 Amendment. See also In re Cendant Corp. 

Derivative Action Litig., 96 F. Supp. 2d 403, 407-08 (D.N.J. 2000). Because it will impose 

monetary sanctions, the Court must also consider the Doering factors as set forth at 857 F.2d 

195–97. Those factors are considered subsequently in this Memorandum.

37

 ECF No. 41 at 3.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 11 of 55
12

requesting Rule 11 sanctions be filed in the district court before the entry of a final 

judgment.”38 PPL satisfied the Pensiero rule here, submitting its Motion for Rule 

11 Sanctions in contemporaneous fashion with its Motion for Summary Judgment 

and in any event, well before entry of final judgment. In fact, so as to preserve 

judicial economy in accordance with the Third Circuit’s decision in Pensiero, the 

Court has decided to withhold entry of final judgment until all pending motions in 

this case have been resolved. Moreover, as PPL’s counsel explained in their papers 

and during the Rule 11 hearing before this Court, filing of its client’s Rule 11 

Sanctions Motion as swift as practicable, given the evident need to obtain certain 

discovery before the inadequacy of Plaintiff’s claims were fully realized.39

Second, as far as the Union’s Rule 54 Motion for Fees goes, Mr. Russo 

argues that “Defendant IBEW’s Motion for Attorney’s Fees and Taxable Costs 

pursuant to F.R.C.P. No. 54(d)(2) was filed by Defendant IBEW prior to the entry 

of a final judgment by the court” and is therefore premature.40 For several reasons, 

the Court considers that argument entirely unavailing. First, the only reason why 

this Court has withheld entry of a final judgment is to promote judicial economy 

and to save each of the parties from incurring additional unnecessary expenses. 

Rather than return for subsequent hearings, issue separate memorandum opinions, 

 

38

 847 F.2d 90, 100.

39

 The Court notes that Mr. Russo advanced this same unsuccessful argument in his previous Rule 

11 case, Moore v. Air Methods, Inc., No. 3:14-CV-0684, 2015 WL 4590988 (M.D. Pa. July 29, 

2015).

40

 ECF No. 60 at 1.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 12 of 55
13

and enable several distinct appeals of various final judgments, the Court (and 

Defendants too, for that matter) believed it most efficient to consolidate resolution 

of the Defendants’ Motions for Summary Judgment with that of the Motion for 

Rule 11 Sanctions and the Rule 54 Motion for Fees.

Such active management is mandated by Federal Rule of Civil Procedure 1, 

which now provides that federal procedure “should be construed, administered, 

and employed by the court and the parties to secure the just, speedy, and 

inexpensive determination of every action and proceeding.”41 It also saves the 

appellate court from excess work and undue frustration. As the Third Circuit 

explained in Pensiero:

Rather than misusing scarce resources, timely filing and disposition of 

Rule 11 motions should conserve judicial energies. In the district 

court, resolution of the issue before the inevitable delay of the 

appellate process will be more efficient because of current familiarity 

with the matter. Similarly, concurrent consideration of challenges to 

the merits and the imposition of sanctions avoids the invariable 

demand on two separate appellate panels to acquaint themselves with 

the underlying facts and the parties’ respective legal positions.42

The Court finds it unremarkable that such logic would also apply to 

 

41 The Advisory Committee Notes to the 2015 Amendment to Rule 1 explain that “Rule 1 is 

amended to emphasize that just as the court should construe and administer these rules to secure 

the just, speedy, and inexpensive determination of every action, so the parties share the 

responsibility to employ the rules in the same way. Most lawyers and parties cooperate to 

achieve these ends. But discussions of ways to improve the administration of civil justice 

regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that 

increase cost and result in delay. Effective advocacy is consistent with—and indeed depends 

upon—cooperative and proportional use of procedure.”

42

 847 F.2d at 99.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 13 of 55
14

disposition of a Rule 54 Motion for Fees—particularly given the “hybrid” nature of 

the underlying LMRA § 301 claim here. There was such significant factual overlap 

between the claims and defenses alleged against and put forth by both Defendants 

here on the hybrid LMRA claim that disposition of these two pending motions in 

distinct fashion would simply not be warranted as a matter of common sense and 

judicial economy.

Moreover, as has become par for the course in this litigation, Mr. Russo has 

cited an unsupportive statutory provision for his argument. He contends that 

because Rule 54(d)(2)(B)(i) states that a motion for attorney’s fees “be filed no 

later than 14 days after the entry of judgment,” the Union’s is untimely as 

premature. That is simply a misreading of that provision. The Union has satisfied 

that requirement without question, as no final judgment has yet been entered after 

which fourteen days could have theoretically passed. 

To remedy Mr. Russo’s oversight, the Union chose to explain in its papers

what the most persuasive argument for Mr. Russo should have been, before 

demonstrating why that argument would nevertheless have been unavailing.

43 That 

missing argument should have been that Rule 54(d)(2)(B)(ii) requires specification 

of “the judgment . . entitling the movant to the award.”44 However, as explained, 

 

43 The Court notes its appreciation of the thoroughness, organization, and forthrightness exhibited 

by the Union’s and PPL’s briefs and oral presentations.

44

 ECF No. 61 at 7.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 14 of 55
15

considerations of judicial economy and the particularized posture of this case both 

support disposition of the Rule 54 Motion for Fees at this time, concurrently with 

PPL’s Motion for Rule 11 Sanctions. Furthermore, the Court finds that it would 

otherwise strain the purpose of Rule 54 to refuse to resolve the Union’s Motion for 

Fees now, as final judgment would have already been entered but for the need to 

withhold it pending disposition of all related Rule 11 claims pursuant to 

Pensiero.

45 There is no reason why the Court should not take up both the Rule 11 

Motion and the Motion for Fees rather simultaneously rather than dismissing one 

without prejudice only to be filed soon thereafter to satisfy a mere formality.

46

B. Rule 11 Sanctions Are Warranted Because The Factual 

Contentions In Plaintiff’s Second Amended Complaint Lacked

Evidentiary Support And Were Not Likely To Have Evidentiary 

Support After A Reasonable Opportunity For Further 

Investigation Or Discovery.

Plaintiff filed his initial Complaint as well as two subsequent Amended 

 

45

 See Shaw v. Cumberland Truck Equip. Co., No. CIV.A. 09-359, 2012 WL 1130605, at *2 (M.D. 

Pa. Mar. 30, 2012) (holding that a motion for attorney’s fees was “not premature and [was] 

timely filed” despite opposing argument that “determination should be stayed pending a final 

judgment on the merits”); Weyant v. Okst, 198 F.3d 311, 315 (2d Cir. 1999) (“Because the 14-

day period established by Rule 54(d)(2)(B) for the filing of a motion for attorneys’ fees was 

introduced in large part to avoid piecemeal appeals of merits and fee questions, that 14-day 

period begins to run with the entry of a final judgment. And because the finality of a judgment is 

negated by the timely filing of a motion under Rule 50(b), 52(b), or 59, we conclude that a Rule 

54(d)(2)(B) motion is timely if filed no later than 14 days after the resolution of such a Rule 

50(b), 52(b), or 59 motion.”).

46

 See Cassell v. Colvin, No. CIV. 14-2128, 2015 WL 3657865, at *1 (W.D. Ark. June 12, 2015) 

(“While Plaintiff’s motion was technically premature at the time of its filing, as of April 28, 

2015, the motion is became timely. As such, we do not find it would be in the best interest of 

justice to dismiss the Plaintiff’s motion right now, only to have him re-file this identical motion 

tomorrow.”).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 15 of 55
16

Complaints in this case. He was afforded ample time to get the facts straight. On 

January 17, 2013, Plaintiff filed his initial Complaint setting forth two claims of 

discrimination on the basis of age—one under the ADEA and a second under the 

PHRA—as well as a third claim alleging a violation of § 301 of the LMRA.

47

Plaintiff asserted all three claims against both Defendants.

On March 14, 2013, PPL moved to dismiss the Complaint.48 Plaintiff 

responded by filing an Amended Complaint on April 15, 2013.49 Plaintiff’s 

Amended Complaint contained the same three claims, each alleged against both 

defendants, but included additional averments. On May 1, 2013, PPL moved to 

dismiss the Amended Complaint.50 The Union moved to dismiss the Amended 

Complaint on June 11, 2013.51

On June 24, 2013, Plaintiff moved for leave to file a Second Amended 

Complaint. ECF No. 21, which this Court granted on June 13, 2014.52 The Second 

Amended Complaint included the same three causes of action, but named PPL as 

the only defendant on the ADEA and PHRA claims.53 Plaintiff maintained that 

both Defendants violated § 301 of the LMRA.54 The Second Amended Complaint 

 

47

 ECF No. 1.

48

 ECF No. 8.

49

 ECF No. 14.

50

 ECF No. 16.

51

 ECF No. 20.

52

 ECF No. 25.

53

 ECF No. 27.

54

 Id.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 16 of 55
17

also supplemented various averments in support of Plaintiff’s theories.55

In its Memorandum granting Plaintiff leave to file his Second Amended 

Complaint, this Court made explicit that the factual allegations that saved 

Plaintiff’s ADEA claim were those that accused PPL of affording Plaintiff “less 

favorable treatment in comparison with younger similarly situated coworkers.”56

The Court thus rooted its analysis in certain damning allegations in Plaintiff’s 

Second Amended Complaint, such as that set out in Paragraph 31, where Plaintiff 

averred that “Defendant PPL has hired younger employees into similar positions 

that were doing the same amount of work,” as well as that set out in Paragraphs 28 

through 30, where Plaintiff stated that he “was denied a remedy to his pay 

disparity and his requests for a new job classification were ignored” because 

“Defendant had an illegal discriminatory motive for not rectifying these issues.”57

Without such factual allegations, this Court made clear that Plaintiff’s age 

discrimination claim would otherwise be implausible and should instead be 

dismissed under Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.

58 “This 

allegation,” the Court observed, “makes Keister’s charge of age discrimination 

plausible.”59

Unfortunately, as the evidence would later illuminate, this Court was led 

 

55

 Id.

56

 ECF No. 25 at 8.

57

 ECF No. 27 at 5.

58

 550 U.S. 544 (2007); 556 U.S. 662 (2009).

59

 ECF No. 25 at 8.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 17 of 55
18

down the garden path by Mr. Russo when it accepted his client’s allegations in 

good faith. They turned out to be patently untrue, but Mr. Russo chose to plead 

them anyway in an attempt to prop up his client’s deflated claim. For instance, 

Plaintiff would later reveal the following in his deposition:

Q. And if you turn to—if you look at number eight, you’re 

requested to provide someone—describe who was in the same 

or similar situation as you and how they were treated. You 

didn’t provide anybody that is similarly situated to you that was 

treated differently, correct?

A. Correct.

Q. Can you identify anybody who is similarly situated to you that 

is sufficiently younger that was treated differently than you?

A. No. And the reason being—that requires an explanation. 

Because I’m the only one at Susquehanna that ever did my job.

Q. You can’t identify anybody who is similarly situated as you that 

that requested a job reevalution and that is sufficiently younger 

and provided with a job reevaluation, can you?

A. No.

Q. You can’t provide me with a name of anybody who was 

significantly younger than you that requested that PPL create a 

management job and they did so for them and they didn’t do so 

for you, can you?

A. No.60

Moreover, as this Court pointed out in its Summary Judgment 

Memorandum, Plaintiff , in direct contradiction to those previously emphasized

 

60

 ECF No. 39 Ex. 1 at 30.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 18 of 55
19

statements in the Second Amended Complaint, later revealed that he “has younger 

electricians and foreman under his direct supervision that he has taken to training 

and given specific knowledge of the system.”61 That fact, the Court noted, seemed

to suggest that, in practice, Plaintiff was treated better than his younger coworkers, a sort of de facto senior lead—a role that emerges organically in many 

contexts.

The Court, disposing of Plaintiff’s ADEA claim in its Summary Judgment 

Memorandum, explained as follows:

As the Court reads Plaintiff’s Brief in Opposition to PPL’s 

Motion for Summary Judgment, it seems to be the case that Plaintiff’s 

core age discrimination theory is that his job classification and 

attendant salary did not reflect the type of tasks for which he was

responsible at work. . . . Plaintiff alleges that despite his exemplary 

work ethic, “he was refused the chance to gain a management position 

that would reflect the duties and responsibilities he was already 

performing and reward him appropriately for the work he provided.”

The circumstances Plaintiff has described do not constitute age 

discrimination—in fact, they seem to have nothing to do with 

comparative ages among workers at PPL whatsoever. Instead, what 

Plaintiff has attempted to cast as age discrimination is nothing more 

than a permissible business judgment on PPL’s part. Further, Plaintiff 

has provided no facts indicating that this business judgment was in 

any fashion linked to Plaintiff’s age. In reality, Plaintiff’s “age 

discrimination” claim would have been more appropriately addressed 

through the Collective Bargaining Agreement’s prescribed procedures 

and later through the Union’s grievance system. The Court wonders if 

perhaps Plaintiff felt compelled to plead an age discrimination claim 

based upon his failure to adequately pursue relief through those more 

 

61

 ECF No. 50 at 44.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 19 of 55
20

appropriate channels.62

What’s more, Plaintiff admitted that the alleged mistreatment he had been 

suffering at PPL’s had begun before he even turned forty and was in place at least 

as early as Plaintiff’s thirty-ninth birthday. For example, on or about June 13, 

1986, Plaintiff requested a job reevaluation due to his extensive experience with

computers and related infrastructure—the same sort of request at issue on summary 

judgment.

63

Plaintiff was thirty-nine (39) years-old at the time he made that request.64

PPL took no action on Plaintiff’s request at that time because Plaintiff never filed a 

formal complaint, charge, or grievance with the Union contesting this 

determination.65 Unfortunately, as might seem obvious, ADEA plaintiffs are 

statutorily limited to those individuals who are “at least 40 years of age.”66 That’s 

precisely because alleged mistreatment of individuals who are younger than 40 is 

presumed not to have been committed on the basis of age. Regardless, Mr. Russo 

plowed ahead with an age discrimination claim, on the basis of alleged 

mistreatment that had begun well before his client was even covered by the ADEA 

and based on a record that bore scant evidence of discriminatory animus.

The same wide gulf between the facts and Plaintiff’s pleadings existed in 

 

62

 ECF No. 54 at 42–43 (internal citations omitted).

63

 ECF 40, Ex. 3 at 4; ECF 50 at 30.

64

 ECF 40, Ex. 3 at 4; ECF 50 at 30.

65

 ECF 40, Ex. 3 at 4; ECF 50 at 30.

66

 29 U.S.C. § 631(a).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 20 of 55
21

relation to his § 301 LMRA claim. As the Court explained in its Summary 

Judgment Memorandum, a § 301 hybrid LMRA is appropriate when the Plaintiff 

alleges that an employer has breached its Collective Bargaining Agreement (CBA),

and the union has simultaneously breached its duty of fair representation.67 As an 

initial matter, Plaintiff simply offered no evidence that PPL breached the CBA

here. Based on a fair reading of the pertinent portion of Plaintiff’s Second 

Amended Complaint, the Court found it unclear how Plaintiff could even allege in 

good faith that PPL’s conduct ever amounted to anything even remotely similar to 

a breach of the CBA. The Complaint merely alleged that “Defendant PPL was 

notified on numerous occasions of the Plaintiff’s pay disparity,” and “failed to 

properly re-evaluate the Plaintiff’s increased job duties and necessity for job 

description re-evaluation.”68 In reality, those allegations also diverged significantly 

from the actual facts of the case.

As it turned out, Plaintiff, as a Union member, was party to a CBA with 

PPL.69 That CBA set forth a specific process to request a job reevaluation and 

detailed the recourse available to employees who are dissatisfied with the results of 

such a request.70 In this regard, if a job reevaluation request is not approved, a 

bargaining unit employee, such as Plaintiff, may appeal the decision. If the Union 

 

67

 Id. at 12–13 (citing DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 165 (1983); Podobnik 

v. U.S. Postal Serv., 409 F.3d 584, 593 (3d Cir. 2005)).

68

 ECF No. 27 at 8.

69

 ECF 40, Ex. 3 at 5; ECF 50 at 30.

70

 ECF 40, Ex. 3 at 5; ECF 50 at 30.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 21 of 55
22

and PPL still disagree, any bargaining unit employee could proceed by initiating 

the grievance process. It is undisputed in this case that Plaintiff never filed a 

grievance—a mandatory exhaustion requirement in the Third Circuit before a 

claimant may bring a federal lawsuit alleging a violation of § 301 of the LMRA.

71

Specifically, Article VI, Section 1 of the CBA provides in pertinent part that:

The Company will prepare new or eliminate old job titles and 

descriptions or otherwise revise or modify them when necessary to 

meet changed conditions. Requests for new jobs and requests for reevaluation for existing jobs will be handled in accordance with 

Exhibit N.72

Under the heading “Existing Jobs,” Exhibit N provides in pertinent part that:

1. A request to re-evaluate an existing job description may be 

initiated by an incumbent employee or appropriate supervisor.

. . .

5. If the request is not approved by the Company, Bargaining Unit 

employees may appeal the decision to the IBEW Local 1600 

office.

6. Disagreements between the Company and Local 1600 regarding 

whether to submit an existing position for re-evaluation shall be 

resolved through the grievance procedure.73

The Court’s decision to grant summary judgment in favor of PPL on the 

§ 301 hybrid LMRA claim was based on a straightforward proposition: PPL could 

 

71 Podobnik v. U.S. Postal Service, 409 F.3d 584, 594 (2005) (citing Vaca v. Sipes, 386 U.S. 171, 

(1967)) (“The Supreme Court instructs that, where a collective bargaining agreement establishes 

a grievance procedure, an employee must at least attempt to exhaust such a process.”).

72

 ECF No. 40 Ex.4 at 66.

73

 ECF No. 40, Ex. 4 at 67–68.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 22 of 55
23

not have breached the CBA because Plaintiff had simply never filed a grievance as 

it related to the instant dispute. There was never any union appeal, no formal 

grievance, and consequently no opportunity for PPL to breach any provisions of 

the CBA. Plaintiff provided no evidence to the contrary and failed to indicate how 

exactly PPL went about breaching the CBA under his theory. As the Court 

commented in its Summary Judgment Memorandum:

Plaintiff has not offered sufficient evidence to create a genuine 

dispute of material fact as to whether PPL breached the CBA. In fact, 

based on the evidence in the record, the Court cannot fathom how any 

action by PPL might have even come close to a breach of the CBA. 

Plaintiff offers no facts indicating that PPL was in any way obligated 

to entertain his reclassification request other than the proper 

procedures governing such reconsiderations that were set forth in 

CBA itself—procedures, like the rest of those involved in this case, 

that Plaintiff chose never to commence. Because there are no genuine 

disputes of material fact that the Union did not breach its duty of fair 

representation or that PPL did not violate the CBA, summary 

judgment should be granted in favor of the Defendants on Plaintiff’s 

§ 301 claim on the basis of this second and distinct ground as well.74

As the United States Court of Appeals for the Fourth Circuit has concisely 

summarized, “To be reasonable, the prefiling factual investigation must uncover 

some information to support the allegations in the complaint. . . . That is, where 

there is no factual basis for a plaintiff’s allegations, the complaint violates Rule 

11’s factual inquiry requirement.”75 Further, as several courts in the Third Circuit’s 

venire have elaborated, “Rule 11 requires that an attorney who files a complaint 

 

74

 ECF No. 54 at 35.

75

 Brubaker v. City of Richmond, 943 F.2d 1363, 1373 (4th Cir. 1991).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 23 of 55
24

certify that there is a reasonable basis in fact and law for the claims.”76

As has become evident, the allegations in Plaintiff’s Second Amended 

Complaint were unsupported at the time that Mr. Russo wrote them, and were 

unlikely to ever gain factual support during the course of discovery, because they 

simply were inaccurate. More troubling, this reliance on supported factual 

allegations was not accidental. Considering the pertinent factors set out by the 

Third Circuit, this was not a case where counsel lacked time to make a proper 

inquiry, where a client perjured testimony, or where counsel had to rely on some 

other unproven source of information. The weak basis for Plaintiff’s lawsuit was 

clear from the start, and very little could have altered its failing trajectory. The 

claims simply had no basis in fact, yet Plaintiff nevertheless chose to advance 

them.

C. Rule 11 Sanctions Are Warranted Because The Claims In 

Plaintiff’s Second Amended Complaint Were Not Warranted By 

Existing Law Or By A Nonfrivolous Argument For Extending, 

Modifying, Or Reversing Existing Law Or For Establishing New 

Law.

Mr. Russo’s papers filed in response to Defendants’ Summary Judgment, 

Rule 11, and Fees Motions amounted to nothing more than a collage of sundry 

employment discrimination principles, whose application to the case at hand was 

unclear and tenuous at best. As Judge Mariani observed in his Rule 11 

 

76

 Soo San Choi v. D’Appolonia, 252 F.R.D. 266, 271 (W.D. Pa. 2008). See also Leuallen v. 

Borough of Paulsboro, 180 F. Supp. 2d 615, 618 (D.N.J. 2002).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 24 of 55
25

Memorandum earlier this year that sanctioned Mr. Russo, “Plaintiff devotes much 

of his Brief to identifying the standard for determining whether sanctions should be 

granted under Rule 11, but offers little to show why sanctions should not be 

granted in this case.”77 The Court could make the same observation about Mr. 

Russo’s papers and oral argument in this matter. Mr. Russo, during his oral 

presentation before the Court, was particularly unapologetic and unwilling to 

accept any responsibility for the trouble he and his client had brought upon the 

Defendants.

Even more troubling than the non-responsive nature of Mr. Russo’s 

submissions is the fact that they appear intentionally vague and calculated to raise 

disputes of law or fact where none existed. In addition to Mr. Russo’s questionable 

factual claims outlined earlier, his papers cite to cases and propositions whose 

applicability to the case at hand is highly questionable and often inaccurate. 

Moreover, just like his questionable factual assertions, Mr. Russo’s 

indiscriminately quotes to random doctrine in a “see what sticks” approach to 

briefing, which often resulted in nothing more than utter confusion for the Court 

and the Defendants. Consequently, both were left to expend unnecessary time and 

effort dissecting Mr. Russo’s strategically placed, yet baseless arguments. 

Unfortunately, as the Court and the Defendants unraveled this case, it became 

 

77

 Moore v. Air Methods, Inc., No. 3:14-CV-0684, 2015 WL 4590988, at *2 (M.D. Pa. July 29, 

2015).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 25 of 55
26

patently clear that Plaintiff’s case was nothing more than an illusion, one supported 

by baseless factual contentions and inapplicable legal conclusions proffered by Mr. 

Russo. Regrettably, it took significant time to come to that realization because Mr. 

Russo impeded its discovery at every juncture.

Take two prime examples outlined in this Court’s Summary Judgment 

Memorandum. The first is that Plaintiff’s age discrimination claim had no 

colorable legal basis. Plaintiff contended that he was discriminated against on the 

basis of his age because he was not promoted and his job was not reevaluated or 

reclassified.78 At the same time, Plaintiff’s papers failed either to explain how 

PPL’s alleged refusal to adjust his job description was “because of” age 

discrimination or alternatively, to cite to any legal authority suggesting that 

discriminatory animus could be inferred absent any indication that PPL favored 

younger workers or reevaluated younger workers in a disproportionate manner. 

Neither was Mr. Russo able to identify any such legal authorities at the Rule 11 

oral argument.

Plaintiff’s Rule 11 response brief would later bluntly claim that “[t]his is a 

reduction in force case.”79 Accordingly to Plaintiff, that is because PPL’s failure to 

reevaluate was an attempt to force Mr. Keister to retire. Again, the Court is left 

bereft of any legal authority or factual backing for that proposition. It is also a 

 

78

 See ECF No. 27 at 5–6.

79

 ECF No. 41 at 12.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 26 of 55
27

rather inventive twist, appearing for the first time in the Rule 11 briefs rather than 

in the Second Amended Complaint. To account for the utter absence of 

discriminatory motive, Mr. Russo in his Rule 11 brief cites to Pivirotto v. 

Innovative Sys., Inc., seeking support for the proposition that “the Third Circuit 

eliminated the replacement requirement in the context of a categorical 

classification claim (race, sex, disability, national origin).”80 However, Mr. Russo 

again leaves the Court to wonder: what exactly are the consequences of that 

proposition? Does it even apply to this case? 

In fact, Pivirotto was a Title VII sex-discrimination disparate treatment 

case—not an ADEA case brought under similarly questionable circumstances as 

here.

81 Nevertheless, a careful reading of Pivirotto reveals that its core holding is 

not evisceration of the discrimination requirement in age discrimination cases, but 

rather the following proposition: “the fact that one person in the protected class has 

lost out to another person in the protected class is thus irrelevant [to the prima facie 

case], so long as [s]he has lost out because of [her gender].”82 The Pivirotto Court 

explained that although replacement by a man was not a pre-requisite for a woman 

to bring a Title VII sex-discrimination claim, the plaintiff still must adduce 

“evidence adequate to create an inference that an employment decision was based 

 

80

 Id. at 13 (citing 191 F.3d 344 (3d Cir. 1999).

81

 Pivirotto, 191 F.3d at 355. 

82

 See id. at 355 (quoting O’Connor v. Consolidated Coin Caterers Corp.,517 U.S. 308 (1996)) 

(emphasis added).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 27 of 55
28

on an illegal discriminatory criterion.”83

It is clear then that although replacement is not a necessary requirement to 

bring a sex discrimination claim, some minimal evidence of discrimination must 

still be proffered. Mr. Russo quotes sound bites from Pivirotto instead in an 

attempt to support his legal contention that “a plaintiff is not even required to show 

other similarly situated employees outside the relevant class were treated more 

favorable.”84 Again, though that statement likely strains the far outer bound of 

what Pivirotto stands for, Mr. Russo has left the Court with nothing in this case, 

simply no evidence of age discrimination. The Pivirotto Court eliminated the 

narrow requirement that the plaintiff be replaced by a non-member of the protected 

class. It did not eliminate the need for the plaintiff prove discriminatory animus

based on age whatsoever, as Plaintiff here failed to do.85 Thus, there clearly must 

be some sufficient indication that Plaintiff was discriminated against because of his 

age. As the Court explained in its Summary Judgment Memorandum:

“To prevail on an intentional age discrimination claim under either the 

ADEA or the analogous provision of the PHRA, a plaintiff must show 

that his or her age actually motivated or had a determinative influence 

on the employer’s adverse employment decision.” Fasold v. Justice, 

409 F.3d 178, 183-84 (3d Cir. 2005) (internal citations and quotations 

omitted).

 

83

 Pivirotto, 191 F.3d at 356 (quoting O’Connor, 517 U.S. at 312).

84

 ECF No. 41 at 13.

85

 Pivirotto, 191 F.3d at 355 (“We can find no justification for limiting the proof necessary to 

create this inference to the potentially irrelevant and only marginally probative fact that she was 

(or was not) replaced by a man.”).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 28 of 55
29

. . .

The circumstances Plaintiff has described do not constitute age 

discrimination—in fact, they seem to have nothing to do with 

comparative ages among workers at PPL whatsoever.86

This is just one example of Mr. Russo’s many unclear contentions in this 

case, which have littered his papers and left the Court and Defendants wasting time 

chasing unavailing leads and tumbling down legal rabbit holes. Though not 

necessarily wholly spurious, these types of disconnected legal contentions simply 

have done more to bewilder the Court and lead it astray than to promote resolution.

Another glaring example of Mr. Russo’s reliance on questionable legal 

authority is his appeal to the so-called “continuing violation theory” to both 

support his claim and excuse this case’s severe timeliness defects. In essence, Mr. 

Russo erroneously cross-referenced law pertaining to the statute of limitations with 

those going both to exhaustion requirements and the merits of a discrimination 

claim. The “continuing violation theory” is a means by which claimants may 

“reach back” and recover for certain unlawful employment practices that occurred 

before the statutory period, so long as the appropriate indicia of a continuing 

violation are present.87 Thus, it is at heart a procedural rule that effectively enlarges 

the limitations and recovery periods. It is not, however, a distinct substantive 

claim. Consequently, it cannot be employed by counsel, as here, to satisfy the 

 

86

 ECF No. 54 at 40–42.

87

 See Metsopulos v. Runyon, 918 F.Supp. 851, 858 (D.N.J. 1996); National R.R. Passenger Corp. 

v. Morgan, 536 U.S. 101, 110–18.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 29 of 55
30

requirements of an age discrimination claim by stringing together and artificially 

augmenting a serious of discrete employment decisions that on their own would 

not constitute independent violations of the ADEA. Such conduct simply raises the 

negative inference that Mr. Russo and his client have attempted to circumvent 

timeliness defects by twisting established legal doctrine in an unwarranted ways.

As one federal court in the Third Circuit’s venire has explained, “[t]he 

‘continuing violation’ theory merely affects the time available to a complainant to 

file the charge with the agency or EEOC.”88 The “continuing violation” theory 

does not “excuse[ ] the exhaustion requirement.”89 Later on, the Third Circuit 

would clarify that to invoke the continuing violation theory, a plaintiff must “allege 

[a] specific act of discrimination that occurred within the statute of limitations 

period.”90 A plaintiff cannot “seek[ ] to invoke the continuing violation doctrine to 

resurrect his now moribund claims.”91 Thus, a plaintiff “cannot revive his timebarred allegations of discrimination or hostile work environment without alleging 

at least one specific, timely violation.”92 Mr. Russo’s filings have run afoul of this 

established body of law.

In fact, as the Supreme Court has already explained in a similar case, 

“[m]ere continuity of employment, without more, is insufficient to prolong the life 

 

88

 Metsopulos, 918 F.Supp. at 858.

89

 Id. at n.2.

90

 Snyder v. Baxter Healthcare, Inc., 393 F. App’x 905, 909 (3d Cir. 2010).

91

 Id.

92

 Id.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 30 of 55
31

of a cause of action of employment discrimination.”93 Quite the opposite, 

“[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal 

to hire are easy to identify.”94 Thus, “[e]ach incident of discrimination and each 

retaliatory adverse employment decision constitutes a separate actionable 

‘unlawful employment practice.’”

95 Again, Mr. Russo would have otherwise.

In a confounding fashion, Mr. Russo’s papers on this particular issue 

attempted to lead the Court to misapply this precedent. According to Mr. Russo, 

“[i]n the case at bar, there is no single ‘moment’ of discrimination to neatly pin 

down a timeline.”96 Recall that Mr. Russo made this claim after indicating that the 

case at bar essentially involved age-based failure to promote. The next sentence in 

Mr. Russo’s brief reads: “There is no longer a ‘permanency’ requirement to 

establish a continuing violation.”97 Again, although that statement is not untrue, 

these types of broad legal contentions by Mr. Russo that have no applicability to 

the present case left the Court and Defendants completely exasperated.

The relevance of such legal principles to this case was exceedingly 

questionable. The underlying wrong was a failure to reevaluate or reclassify 

Plaintiff’s position. At no time did Plaintiff allege that anyone at PPL called him 

names unbecoming of older employees, criticized him because of his age, or 

 

93

 Morgan, 536 U.S. at 112–13.

94

 Id. at 114.

95

 Id.

96

 ECF no. 50 at 13.

97

 Id.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 31 of 55
32

otherwise behaved with any hostility toward him due to the fact that Plaintiff was 

older than forty. Yet, Mr. Russo would attempt to excuse his client’s failure to 

exhaust the prescribed grievance procedures as well as his failure to sue in a timely 

manner after receiving his right-to-sue notice by instead appealing to the Third 

Circuit’s “continuing violation” doctrine.

Much like Mr. Russo’s other legal contentions, this one was simply wrong 

and inapplicable. There are two significant problems that prohibit the 

implementation of a “continuing violation” theory here. First, as discussed in the 

case law outlined above, application of a continuing violation is largely a 

procedural device meant to enlarge the statute of limitations. It does not ameliorate 

failures by a party like Plaintiff here to exhaust all necessary administrative 

remedies or to file a federal lawsuit in the appropriate window upon receiving a 

right-to-sue letter.

Second, and perhaps even more troubling, there was nothing in this case to 

suggest application of a “hostile workplace environment” construction—the type 

of claim for which the Supreme Court has so often reserved the continuing 

violation theory. As the Court wrote in Morgan, the statute of limitations begins 

running on “discrete” actions (such as those at issue here) at the time of their 

occurrence.

98 When dealing with discrete instances of discrimination, that 

 

98

 See Morgan, 536 U.S. at 110.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 32 of 55
33

approach is an obvious way for courts to answer an “eas[y] question.”99 To the 

contrary, “[h]ostile environment claims are different in kind from discrete acts.”100

“Their very nature involves repeated conduct,” which “occurs over a series of days 

of perhaps years.”101 Thus, application of the continuing violation theory, though 

appropriate in certain cases, was wholly misplaced here. 

Defendants perhaps summed up this glaring mistake most clearly, when they 

pointed out that Plaintiff’s version of the doctrine relies “upon some convoluted 

and conjured ‘hostile work environment’ allegations,” inapplicable because the 

Union’s decisions at issue here were “discrete” rather than “continuous” events.102

Mr. Russo has never offered an adequate explanation for his baffling pleadings and 

argumentation.

Such inapplicability was evident from the cases that Plaintiff purported to 

cite in support of its legal contentions. Upon closer reading, Plaintiff should have 

discovered that neither of the two cases it cited involved discrete acts of age 

discrimination. In fact, one of the two cited cases refused to apply the continuing 

violation theory to discrete tort claims.

103 As the district court in Rankin v. 

 

99

 See id.

100 Id. at 115.

101 Id.

102 See ECF No. 51 at 11 n.3; ECF No. 53 at 2.

103 See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013) (quoting Morgan, 536 

U.S. at 115–17) (“A hostile work environment claim ‘is composed of a series of separate acts 

that collectively constitute one unlawful employment practice’ and ‘cannot be said to occur on 

any particular day.’”).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 33 of 55
34

Smithburger, one of the cases upon which Mr. Russo purported to rely, observed:

Under the facts here, it is plain that the alleged wrongs committed by 

Defendants prior to September 21, 2010, namely seizures of property 

and entries into the home, were sufficiently “discrete.” They occurred 

over a short period of time and were easily identifiable by the victim, 

and indeed Plaintiff alleges that she watched them occur and tried to 

prevent them. Each act would have constituted an independent tort, 

complete when the property had been unlawfully seized or when the 

home had been unlawfully searched. They do not constitute the type 

of non-discrete acts, like a hostile work environment, for which a 

plaintiff may take advantage of the continuing violations doctrine. 

Therefore, the only underlying claims that survive are those 

surrounding the events on or after September 21, 2010, and all claims 

relying on events beforehand are dismissed with prejudice.104

Finally, the Court notes that Mr. Russo also failed to offer any explanation 

as to these legal or factual shortcomings during the parties’ Rule 11 hearing. 

Rather astonishingly, Mr. Russo attempted to liken this case to one of his previous 

matters in which the Honorable Gene Pratter of the United States District Court for 

the Eastern District of Pennsylvania purportedly complimented him on his “novel” 

theories. There is nothing “novel” about the ADEA and the type of claim alleged 

here, and the theories that Mr. Russo has conjured up in his papers in this case 

have not been motivated by novelty or creativity but by a desire to confuse the 

Court and the parties, to shroud the straightforward weaknesses of his client’s 

claim, and to manufacture disputes where none existed.

 

104 No. 2:12-CV-01373, 2013 WL 3550894, at *6 (W.D. Pa. July 11, 2013).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 34 of 55
35

D. Rule 11 Sanctions Are Warranted Because Plaintiff’s Denials Of 

Factual Contentions Were Unwarranted On The Evidence Were 

Not Reasonably Based On Belief Or A Lack Of Information.

Rule 11 Sanctions are also warranted in the instant matter because Mr. 

Russo failed to respond to certain of Defendants’ Statements of Undisputed 

Material Facts, a tactic that needlessly prolonged and complicated the Court’s 

disposition of Defendants’ Motions for Summary Judgment. Specifically, Mr. 

Russo refused to answer certain of Defendants’ factual averments, an exchange 

required by Middle District of Pennsylvania Local Rule 56.1. That rule provides as 

follows:

A motion for summary judgment filed pursuant to 

Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise 

statement of the material facts, in numbered paragraphs, as to which 

the moving party contends there is no genuine issue to be tried.

The papers opposing a motion for summary judgment shall 

include a separate, short and concise statement of the material facts, 

responding to the numbered paragraphs set forth in the statement 

required in the foregoing paragraph, as to which it is contended that 

there exists a genuine issue to be tried.

Statements of material facts in support of, or in opposition to, a 

motion shall include references to the parts of the record that support 

the statements.

All material facts set forth in the statement required to be 

served by the moving party will be deemed to be admitted unless 

controverted by the statement required to be served by the opposing 

party.

There were two significant shortcomings with Mr. Russo’s responses to 

Defendants’ two Statements of Undisputed Material Facts in this case. First, he 

outright failed to answer the Union’s Statement of Undisputed Material Facts. 

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 35 of 55
36

Although he claimed during the oral argument held before the Court that his 

responses to PPL’s Statement of Undisputed Material Facts covered largely the 

same substance as that which he would have addressed in a response to the Union, 

Mr. Russo’s explanation does not excuse his noncompliance and is only partially 

correct in the Court’s view regardless. If Mr. Russo was prepared to haul two 

distinct entities into federal court over Mr. Keister’s circumstances, he should have 

been prepared to adequately respond to both Defendants’ papers. He also could 

have spoken with counsel for Defendants to arrange an amicable agreement before 

choosing simply to disregard the Local Rules on his own.

Second, even when he did put a response in writing, Mr. Russo, on at least 

three separate occasions, refused to admit or deny certain statements of PPL’s on 

the basis of a non-existent evidentiary privilege. The averments to which Mr. 

Russo failed to respond were critical to the disposition of this case and 

unnecessarily complicated its resolution on summary judgment even further. As 

the Court outlined in its Summary Judgment Memorandum:

In this case, Plaintiff appears to base his LMRA claim on two 

purported omissions by Defendants: failure to convert his bargaining 

unit position to a managerial one (Plaintiff’s “reclassification” theory) 

and failure to properly reevaluate his position (Plaintiff’s 

“reevaluation” theory). See ECF No. 27 at 7–9. A threshold factual 

issue that has affected the Court’s disposition of this claim is the 

extent to which these two alleged omissions are truly distinct. . . . The 

consequences of this lack of clarity on Plaintiff’s part have become 

increasingly evident as this case has progressed, especially during 

Plaintiff’s own deposition and throughout the briefing. See, e.g., Local 

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 36 of 55
37

1600’s Br. in Supp. of Mot. for Summ. J. at 11–12, ECF No. 44 

(employing conditional statements to defendant against various 

hypothetical case theories).

This confusion was further complicated by Plaintiff’s opaque 

response to Defendant PPL’s Statement of Undisputed Facts #24, #47, 

and #71 that Federal Rule of Civil Procedure 56(c)(2)(B) bars him 

from fully responding and clarifying this and the related issue of 

Defendant’s alleged discriminatory motives. ECF No. 50 at 30, 32, 

and 34. In fact, the Court notes that Rule 56(c)(2)(B) does not exist, 

and even if it did, this Court would certainly not exclude a Plaintiff’s 

prime evidentiary justification for his claims as inadmissible 

“opinion.” Further, this Court cautions that refusing to supply such 

critical backing for one’s claim may warrant a negative inference that 

such evidence is nonexistent.105

The law on such Rule 11 violations is clear. “Any competent attorney would 

have made such an investigation, as required under Rule 11 to determine the 

accuracy of the statements of undisputed facts, the law, and grounds for 

objections.”106 Where an attorney fails to conduct the mandated Rule 11 inquiry 

into the validity of such contentions, especially where the resulting output is 

“inaccurate and misleading,” that violates the attorney’s “duty of truth and candor 

to the Court” and “amount[s] to obstruction of the just resolution of the case and 

harassment.”107 Unfortunately, Mr. Russo’s conduct ran counter to this clear 

doctrine.

 

105 ECF No. 54 at 14–15. See also O’Connell v. Associated Wholesalers, Inc., 558 F. App’x 286, 

291 (3d Cir. 2014) (“Here, the requirement to file a separate statement responsive to AWI’s 

statement of undisputed facts was consistent with Federal Rule of Civil Procedure 56(c), which 

provides, in relevant part: ‘A party asserting that a fact cannot be or is genuinely disputed must 

support the assertion by ... citing to particular parts of materials in the record ... or ... showing 

that the materials cited do not establish the absence or presence of a genuine dispute....’”).

106 Moser v. Bret Harte Union High Sch. Dist., 366 F. Supp. 2d 944, 979-80 (E.D. Cal. 2005).

107 Id.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 37 of 55
38

Mr. Russo, here, implanted uncertainty and ambiguity into the factual 

posture of this where no such vagueness was warranted and where such 

inconsistencies were often contradicted by Mr. Keister’s own deposition testimony.

As PPL concisely put it: “[Mr. Russo] has used the foregoing response in a bald 

attempt to avoid admitting facts which would render his case baseless and 

frivolous.”108 For instance, Plaintiff refused to respond to PPL’s contention that he 

suffered from the same form of discrimination before he attained age forty. PPL’s 

Undisputed Statement of Fact #47 alleged as follows:

47. Plaintiff testified that he believes that PPL’s failure to create a 

management-level position for him in 2000 was based upon his age 

and is the same exact complaint he has had since 1986. Exhibit A, pp. 

36-37, 84-85, 107-108 and 121-122.109

Plaintiff refused to answer that averment, noting: 

47. Denied as the balance of Defendant’s SUMF Paragraph 47 

violates the proscription set forth in F.R.C.P. No. 56 (c) (2) (B) by 

including statements of opinion not supported by the record and 

therefore not admissible at trial.110

To the contrary, Plaintiff’s deposition testimony indicated as follows:

Q. All right. And how old were you in – as of June 13th,

1986?

A. I was 39. Turned 40 in December.

Q. So as of June 13th, 1986, you were 39 years old?

 

108 ECF No. 51 at 2.

109 ECF No. 40 Ex. 3 at 7.

110 ECF No. 50 at 32.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 38 of 55
39

A. Yes.

Q. What happened with this job reevaluation?

A. Nothing.

Q. Do you believe that was based on your age?

A. Yes.

Q. So as of June 13th, 1986, you believe that PPL was

discriminating against you because of your age when

they failed to take action with this job evaluation?

A. Correct.111

Most troubling, Plaintiff used such denials to manufacture ambiguity that 

wholly slowed the summary judgment process. At times, both Defendants were 

forced to argue in the alternative and employ conditional statements, because the 

primary theory behind Plaintiff’s lawsuit was intentionally vague and incomplete. 

Not to mention, Plaintiff’s tactics also added significantly more work, where a 

more direct approach was possible and would have sufficed. For these reasons, Mr. 

Russo’s baseless responses (or lack thereof) to Defendants’ Statements of 

Undisputed Facts are a third and independent reason why the Court believes Rule 

11 Sanctions are warranted.

 

111 ECF No. 40 Ex. 4 at 36.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 39 of 55
40

E. Rule 11 Sanctions Are Warranted Because Plaintiff’s Second 

Amended Complaint Was Presented For Several Improper 

Purposes, With The Intent To Cause Unnecessary Delay, And To 

Needlessly Increase The Cost Of Litigation.

Upon review of the parties’ papers and the Rule 11 Sanctions hearing held 

before the Court, it has become patently clear that the purpose of this litigation was 

to extort a settlement from Defendants on meritless facts and to otherwise run up 

the cost of litigation for opposing counsel.

First, it has become apparent that a primary goal of Mr. Russo’s in bringing 

this litigation was to attain a settlement to which his client was not rightfully 

entitled. As Mr. Russo argued in his opposition brief to PPL’s Rule 11 Sanctions 

Motion, imposition of sanctions is unwarranted because “PPL has willfully failed 

to participate in mediation.”112 If only bringing extortionate litigation was that

easy. Accepting Mr. Russo’s argument would grant unscrupulous plaintiffs lawyers 

everywhere the go-ahead to file baseless claims and then compel mediation. To the 

contrary, mediation—at least productive mediation—anticipates the existence of a 

claim with at least some merit. The Court finds absolutely no fault in PPL’s 

decision to not mediate Mr. Keister’s claim. To do so would simply have been

irrational.

Unsurprisingly, like most of Mr. Russo’s contentions, he chose to tell the 

Court only half the story when he made his mediation argument. In fact, as counsel 

 

112 ECF No. 41 at 5.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 40 of 55
41

for PPL points out, its client never refused to participate in mediation. What 

actually transpired was that on September 10, 2014, counsel for PPL emailed the 

assigned mediator to express concerns related to the timing of an upcoming 

mediation session.113 PPL’s counsel wrote: “Based on our conference with Judge 

Brann, it is my understanding that a mediation would not occur until after 

Plaintiff’s deposition was taken. I am respectfully requesting that any mediation be 

scheduled for November to allow the parties time to take Plaintiff’s deposition.”114

That was the only approach that makes sense here. It is unclear whether Mr. Russo 

simply believed that his papers would not be checked for accuracy, but as should 

now be evident, this Court thoroughly reviews the record, the cited authorities, and 

the parties’ arguments in every dispute that comes before it.

This extortive purpose was evidenced by the many ambiguities that Mr. 

Russo manufactured in an attempt to pass his complaints through the motion to 

dismiss stage and to create genuine disputes of material fact on summary 

judgment. Although its impact on Defendants was made clear above, it is also 

worthwhile to consider the societal costs that such meritless litigation necessarily 

imposes, particularly in those cases involving utilities like PPL. In the long run, for 

example, it is not difficult to anticipate how the aggregate costs of litigation 

demanded from a company like PPL may eventually result in higher rates for 

 

113 ECF No. 43 at 4.

114 ECF No. 43 Ex. 1 at 2.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 41 of 55
42

electricity provision and other consumer services. In essence, one might even 

conceptualize a forced settlement by PPL of meritless litigation as a transfer 

payment from society to Mr. Russo and his client. In this instance, that is not a 

burden the public was rightly meant to shoulder.

* * *

When it comes to the parties’ motives, there is a final point of contention 

that has been on this Court’s mind since its sanctions hearing. During the course of 

the hearing, Mr. Russo suggested that Steven E. Hoffman, Esquire, counsel for 

PPL, chose to bring his client’s Rule 11 Sanctions Motion out of some misplaced 

personal vendetta against Mr. Russo. Rule 11 Sanctions were clearly warranted 

here, and based upon the time it has now taken this Court to sift through Mr. 

Russo’s misleading papers yet again, I am only more convinced of the 

appropriateness of those sanctions.

No aspect of this litigation has even slightly suggested to the Court that Mr. 

Hoffman for PPL or, for that matter, Quintes D. Taglioli, Esquire, for the Union 

ever harbored any improper motives for bringing their clients’ instant motions. 

Quite the opposite, in comparison to Mr. Russo’s research, submissions, and oral 

presentation before the Court, Mr. Hoffman and Mr. Taglioli clearly did their 

homework and were both entirely more prepared and accurate. In fact, Mr. 

Hoffman’s and Mr. Taglioli’s papers and oral advocacy were both exceptionally

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 42 of 55
43

strong. Their body of work in this matter has signified that they are both nothing 

less than upstanding officers of the Court. Accordingly, coming from an advocate 

who has amassed a rather problematic history, Mr. Russo’s ad hominem attacks on 

opposing counsels’ character carried no weight in my eyes.

F. Due To Mr. Russo’s Repeated Rule 11 Violations And His 

Otherwise Vexatious Litigation History, Reasonable Attorney’s 

Fees Are “The Minimum That Will Serve To Adequately Deter 

Undesirable Behavior.”115

Federal courts in the Third Circuit’s venire and the Advisory Committee 

Notes to Rule 11 have set forth certain factors useful in determining the 

appropriate sanction for a violation of Rule 11. They include:

Whether the improper conduct was willful, or negligent; whether it 

was part of a pattern of activity, or an isolated event; whether it 

infected the entire pleading, or only one particular count or defense; 

whether the person has engaged in similar conduct in other litigation; 

whether it was intended to injure; what effect it had on the litigation 

process in time or expense; whether the responsible person is trained 

in the law; what amount, given the financial resources of the 

responsible person, is needed to deter that person from repetition in 

the same case; what amount is needed to deter similar activity by 

other litigants: all of these may in a particular case be proper 

considerations.116

In the Court’s view, an award of reasonable attorney’s fees for the entirety 

of this litigation is the least severe means necessary here to forestall Mr. Russo’s 

 

115 Doering, 857 F.2d at 194.

116 Fed. R. Civ. P. 11 Advisory Committee Notes to 1993 Amendment. See also In re Cendant Corp. 

Derivative Action Litig., 96 F. Supp. 2d 403, 407-08 (D.N.J. 2000). Because it will impose 

monetary sanctions, the Court must also consider the Doering factors as set forth at 857 F.2d 

195–97.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 43 of 55
44

consistently vexatious litigation tactics. Considering all of the factors set forth by 

the Third Circuit, this Court offers the following observations. First, it is apparent 

that Mr. Russo’s conduct in this litigation was willful. The defects in his filings 

and the underlying weakness of his substantive claims were reminiscent of several 

of his previous actions. Moreover, the shortcomings evident in Plaintiff’s case 

were the result of purposeful choices, not negligence or recklessness. Second, as 

emphasized throughout, Mr. Russo’s conduct was reflective of his larger pattern of 

litigation and was not an isolated incident. Perhaps most importantly, the factual 

inconsistencies in the Second Amended Complaint and the denials of certain of 

Defendants’ undisputed material facts “infected the entire pleading” and 

necessarily tainted the entire litigation as a whole from beginning to end.

The Court finds it instructive to address the following potential 

counterargument: If the underlying case was so meritless, why did Defendants 

require such extensive time and effort to bring it to resolution? The answer is that 

Mr. Russo, at several junctures already enumerated, consistently disguised the fatal 

flaws of his client’s claims by furthering unsupported factual allegations and 

failing to adequately address Defendants’ factual contentions. This was a case built 

largely on Mr. Russo’s posturing, the consistent filing of pleadings, which 

amounted to nothing more than bluffs that Defendants here were not afraid to call.

That the underlying claims were meritless was known to at least one person: Mr. 

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 44 of 55
45

Russo. Yet, he chose to conceal his case’s weaknesses rather than litigate in good 

faith. Had Defendants not been forced to deal with Mr. Russo’s circuitous and less 

than straightforward pleadings, this litigation would have ended long ago. Because 

the frivolous nature of the underlying claims was concealed by Mr. Russo, 

Defendants are entitled to the reasonable attorney’s fees in the full amount of those 

fees incurred defending the entire case. That is because the entire case was enabled 

by Mr. Russo’s violations.

Continuing to apply the Third Circuit’s factors to this case, Mr. Russo has 

engaged in similar conduct in other litigation, namely as recent as this year. In fact, 

as outlined earlier, Mr. Russo filed his opposition briefs to Defendants’ Motions 

for Summary Judgment during the same week in which Judge Mariani sanctioned 

him for what essentially amounted to the same improper conduct in a related 

employment discrimination lawsuit. The intent and effect of Mr. Russo’s conduct 

was to waste the Defendants’ monetary resources as well as their time and had 

largely the same impact on this Court. Mr. Russo is trained in the law, and this was 

not a case of perjured testimony or unclear facts. A reasonable inquiry would have 

put Mr. Russo on notice that this claim should not have been brought. Because the 

Rule 11 violation here infected the litigation as a whole, reasonable attorney’s fees 

for the entire litigation is the appropriate sanction to adequately deter Mr. Russo 

specifically and other attorneys generally under similar circumstances.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 45 of 55
46

This decision is consistent with precedent involving repeat Rule 11 

offenders. “For filing a frivolous lawsuit, [a district court] would normally award 

attorney’s fees and costs incurred by defendants in defending the suit and in 

bringing the Rule 11 motion.”

117 Moreover, in her 2009 decision to sanction 

Harrisburg, Pennsylvania attorney Don A. Bailey for repeated Rule 11 violations, 

then Chief Judge Yvette Kane of this Court noted that several important but 

“troubling” factors that often warrant imposition of more severe sanctions, such as 

reasonable attorney’s fees, include: (i) “the many times that [the offending 

attorney] has already been sanctioned for similar conduct in this and other courts”; 

(ii) the extent to which resolution of the dispute “has also taken a lot of additional 

time and effort, both for [the parties] and the Court”; and (iii) the extent to which 

the filings or proceedings “have devolved into fractiousness.”118

As the United States Court of Appeals for the District of Columbia Circuit 

has insightfully commented in regard to Rule 11 cases that warrant monetary 

sanctions:

Rule 11 serves a dual purpose: punishment and deterrence. . . . When 

groundless pleadings are permitted, the integrity of the judicial 

process is impaired. Additionally, as borne out by this case, litigation 

abuse embroils the judiciary in needless satellite litigation. The 

monetary award here may be small, but even such a humble 

 

117 Matthews v. Freedman, 128 F.R.D. 194, 203 (E.D. Pa. 1989), aff’d, 919 F.2d 135 (3d Cir. 1990) 

(ordering monetary sanction, written reprimand, and referral to Pennsylvania Supreme Court 

Disciplinary Board for “publicly documented history of attorney[‘s] repeated misconduct”).

118 Lease v. Fishel, No. CIV.A 1:07-CV-0003, 2009 WL 922486, at *10 (M.D. Pa. Apr. 3, 2009).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 46 of 55
47

investment in guaranteeing the proper functioning of our judicial 

process will reap great dividends.119

This Court believes that the factors enumerated above all weigh in favor of 

an award of reasonable attorney’s fees and that imposition of such fees is the least 

means necessary to curb Mr. Russo’s history of vexatious employment 

discrimination lawsuits. Furthermore, the investment made by Defendants and this 

Court in prosecuting and disposing of the instant motions is, as the District of 

Columbia Circuit observed, a worthwhile investment in the efficient functioning of 

federal litigation in this District.

In Doering v. Union Cty. Bd. of Chosen Freeholders, the Third Circuit also 

set forth several additional factors for district courts to consider when deciding 

upon the appropriateness and amount of an award of reasonable attorney’s fees for 

a Rule 11 violation. Those factors include as follows:

[T]he sanctioned party’s ability to pay; [whether the attorney] has 

already been subject to adverse press scrutiny as a result of the 

sanction by the district court; [whether the attorney] has been subject 

to at least one other disciplinary action; [whether] any other evidence 

[ ] would tend to substantiate [the attorney’s claim that he has already 

been deterred sufficiently from filing frivolous actions; the attorney’s 

history of filing frivolous actions or alternatively, his or her good 

reputation; the defendant’s need for compensation; the degree of 

frivolousness; whether the frivolousness also indicated that a less 

sophisticated or expensive response [by the other party] was required; 

and the importance of not discouraging particular types of litigation 

which may provide the basis for legislative and executive ameliorative 

 

119 Westmoreland v. CBS, Inc., 770 F.2d 1168, 1180 (D.C. Cir. 1985).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 47 of 55
48

action when the courts lack power to act.120

An important Doering factor to consider here is Mr. Russo’s ability to pay 

an award of attorney’s fees. At the sanction hearing before the Court, Mr. Russo 

indicated that, as a sole practitioner, an award of fees would severely hamper his 

ability to practice. Even given that suggestion, the Court is of the opinion that Mr. 

Russo’s alleged financial circumstances simply do not outweigh the need for 

adequate deterrence in this case. If Mr. Russo was concerned with the propensity 

of a large fee award hindering his financial circumstances, then the prudent choice 

would have been to review his cases with greater care and to proceed only with 

those that had merit. The prudent choice was not to file an opposition brief in a 

very similar case to the one in which he was publicly reprimanded just one week 

earlier. Moreover, Judge Mariani in his decision to publicly reprimand Mr. Russo 

afforded him leniency because of his status as a sole practitioner. Thus, it is this 

Court’s view that Mr. Russo has already been granted as full consideration as 

possible under the “ability to pay” Doering factor. That factor, however, cannot be 

wielded by sole practitioners as immunity against Rule 11 sanctions ad infinitum.

Applying the remaining Doering factors, Mr. Russo has not been subject to 

any adverse scrutiny in the press as a result of this case at this time to the Court’s 

knowledge. He has, however, already been subject to a Rule 11 sanction in the 

 

120 857 F.2d 191, 195-97 (3d Cir. 1988). See also Zuk v. Eastern Pennsylvania Psychiatric Institute, 

103 F.3d 294 (3d Cir.1996) (Rosenn, J.).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 48 of 55
49

form of public reprimand in a related case—a sanction, which evidently had little 

effect to deter Mr. Russo from filing similarly baseless claims. Defendants in this 

case are also deserving of compensation because the entirety of the litigation 

resulted from Mr. Russo’s meritless filings. As detailed earlier, despite the 

frivolous nature of the underlying claim, significant time and effort was required 

by Defendants and this Court to dispose of the claim and to reveal its underlying 

weaknesses due to Mr. Russo’s deliberate efforts to conceal those flaws. Finally, 

the Court does not believe that sanctioning Mr. Russo for making frivolous filings 

will negatively impact meritorious employment discrimination cases. As in Lease 

v. Fishel, these “equitable factors . . . tilt decidedly against” Mr. Russo.”121

Consequently, upon taking into consideration all of the Third Circuit’s enumerated 

factors, this Court deems an award of reasonable attorney’s fees the appropriate 

Rule 11 sanction here.

G. The Union Is Also Entitled To Reasonable Attorney’s Fees 

Because Mr. Russo “Acted In Acted In Bad Faith, Vexatiously, 

Wantonly, Or For Oppressive Reasons” And Because Defendants 

Necessarily Shared The Burden Of Defending The LMRA § 301 

Hybrid Claim.

122

“[T]he so-called ‘American Rule’ prohibits fee shifting in most cases.”

123

The Supreme Court of the United States has, however, carved three primary 

 

121 Lease v. Fishel, 712 F. Supp. 2d 359, 385 (M.D. Pa. 2010), aff’d, No. 1:07-CV-0003, 2010 WL 

4318833 (M.D. Pa. Oct. 22, 2010).

122 Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258–59 (1975).

123 Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991) (quoting Alyeska, 421 U.S. at 259).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 49 of 55
50

exceptions to the American Rule. The applicable exception here is that “a court 

may assess attorney’s fees when a party has ‘acted in bad faith, vexatiously, 

wantonly, or for oppressive reasons.’”

124 The Supreme Court described the 

contours of this exception in Chambers, explaining:

In this regard, if a court finds that fraud has been practiced upon it, or 

that the very temple of justice has been defiled, it may assess 

attorney’s fees against the responsible party, as it may when a party 

shows bad faith by delaying or disrupting the litigation or by 

hampering enforcement of a court order. The imposition of sanctions 

in this instance transcends a court’s equitable power concerning 

relations between the parties and reaches a court’s inherent power to 

police itself, thus serving the dual purpose of vindicating judicial 

authority without resort to the more drastic sanctions available for 

contempt of court and making the prevailing party whole for expenses 

caused by his opponent’s obstinacy.125

The Third Circuit has applied this exception to hybrid claims brought 

pursuant to § 301 of the LMRA. Specifically, in the context of litigation brought to 

vacate arbitration awards under § 301, the Third Circuit has stated:

Under the American rule, each party normally must bear the burden of 

its own legal expenses, including attorneys’ fees. One of the narrow 

exceptions to this rule is a finding that the losing party litigated in bad 

faith, vexatiously, or for oppressive reasons.126

 

124 Chambers, 501 U.S. at 45 (quoting Alyeska, 421 U.S. at 259). See also F. D. Rich Co. v. U. S. 

for Use of Indus. Lumber Co., 417 U.S. 116, 129 & n.17 (1974) (collecting cases) (“The federal 

judiciary has recognized several exceptions to the general principle that each party should bear 

the costs of its own legal representation. We have long recognized that attorneys' fees may be 

awarded to a successful party when his opponent has acted in bad faith, vexatiously, wantonly, or 

for oppressive reasons.”).

125 Chambers, 501 U.S. at 46 (internal citations and quotations omitted).

126 Mead Corp., Mead Packaging Div. v. Int’l Printing & Graphic Commc’ns Union, Bristol Local 

497, AFL-CIO, 572 F. Supp. 786, 795 (E.D. Pa. 1983) (quoting Mobil Oil Corporation v. 

Independent Oil Workers Union, 679 F.2d 299, 305 (3d Cir.1982)). See also, Kane Gas Light 

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 50 of 55
51

Moreover, in Mobil Oil Corp. v. Independent Oil Workers Union, the Third Circuit 

went on to elaborate as to the type of conduct that constitutes litigation “in bad 

faith, vexatiously, or for oppressive reasons” in the LMRA § 301 context. 

According to the Third Circuit, conduct that warrants an award of fees in such an 

LMRA case includes: “[whether the party’s] position is so lacking in merit that 

costs and attorney’s fees should be (imposed) against it”; “[whether the party] 

demonstrate[ed] its good faith belief in the strength of the arguments it advanced”; 

“[whether the party] has a history of refusing to comply with arbitration awards [or 

court orders]”; and “[whether the party] presented a substantial legal issue.”127 An 

award’s validity is further supported if the movant is, as Federal Rule of Civil 

Procedure 54 anticipates, the “prevailing party.”128

There are several independent reasons why Plaintiff here ought to reimburse 

the Union Defendant for its fees and costs expended responding to the entirety of 

this litigation, including the instant Rule 54 Motion. First and most apparently, 

Plaintiff’s conduct here was necessarily vexatious and in bad faith, as detailed in 

full throughout this Memorandum. Among other things, the litigation brought 

 

and Heating Co. v. International Brotherhood of Firemen and Oilers, Local 112, 687 F.2d 673, 

682–683 (3d Cir.1982).

127 Mobil Oil Corp. v. Indep. Oil Workers Union, 679 F.2d 299, 305 (3d Cir. 1982).

128 See, e.g, Truesdell v. Philadelphia Hous. Auth., 290 F.3d 159, 163 (3d Cir. 2002) (“The 

Supreme Court has given a ‘generous formulation’ to the term ‘prevailing party.’”). See also

Tyler v. O’Neill, 112 Fed.Appx. 158, 161 (3d Cir.2004) (“Where a defendant successfully 

defends against a plaintiff’s substantial claims and judgment is entered accordingly, the 

defendant is generally considered the prevailing party.”).

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 51 of 55
52

Plaintiff was unequivocally lacking in merit in a way that effectively warrants 

imposition of fees incurred in the Union’s defense of the allegations. Such was the 

case because Plaintiff’s claim was both substantively frivolous as it related to his 

failure to show any breach of the Union’s duty of good faith representation and 

wholly contrary to Third Circuit case law as it related to mandated procedural 

exhaustion in LMRA § 301 actions.129 

Moreover, the factual baselessness and inapplicability of the legal arguments 

advanced by Plaintiff simply do not support a reasonably held, good faith belief in 

the legitimacy of Plaintiff’s arguments. Further, Mr. Russo’s history of filing 

questionable employment discrimination suits also bears upon the necessity of a 

fee award. In addition, the issues presented by Plaintiff both on the underlying 

claims as well as on the Rule 54 Motion were, at their core, insubstantial. Careful 

research and investigation would reasonably reveal their artificial nature. Last, the 

Union here was a “prevailing party” in every sense of the term—its counsel has 

guided it to a complete victory on summary judgment and on the instant Motion 

for Fees in what was otherwise an exceedingly vexatious litigation.

Further and very apparently after this Court’s lengthy review and disposition 

of PPL’s Rule 11 Motion, it simply would be inequitable to grant one Defendant 

 

129 Even given that certain indicia of “rays of hope” may have exist as it relates to a portion of 

Plaintiff’s claim, that finding was necessitated solely due to Plaintiff’s own refusal to clarify his 

case theory and was nevertheless inconsequential to the Court’s summary judgment decision.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 52 of 55
53

here relief but deny it from the other. To the contrary the very nature of Plaintiff’s 

decision to plead a hybrid LMRA § 301 claim put both Defendants in a very 

similar position, defending against very similar allegations. As such a hybrid labor 

law claim tends to do, the hybrid claim here created strange bedfellows, to say the 

least. Its more significant effect, however, was to position both Defendants in a 

nearly identical posture, ensuring that their interests in this litigation were largely 

inseparable and wholly at odds to those of Mr. Russo’s client. Because Rule 11 

Sanctions in the form of reasonable attorney’s fees have already been lodged 

against Plaintiff’s counsel, the unique posture of this case warrants reciprocal 

treatment when disposing of the Union’s Rule 54 Motion. Thus, because Plaintiff 

engaged in bad faith, vexatious conduct in this litigation and because the burden of 

that conduct was necessarily borne by both Defendants as a consequence of 

Plaintiff’s filing a hybrid LMRA § 301 claim, the Union’s Rule 54 Motion for Fees 

and Costs will also be granted in full.

IV. CONCLUSION

Perhaps Rule 11 inquiries such as this one were most aptly summarized by 

the Honorable William W. Schwarzer of the United States District Court for the 

Northern District of California, when he wrote:

Of all the duties of the judge, imposing sanctions on lawyers is 

perhaps the most unpleasant. A desire to avoid doing so is 

understandable. But if judges turn from Rule 11 and let it fall into 

disuse, the message to those inclined to abuse or misuse the litigation 

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 53 of 55
54

process will be clear. Misconduct, once tolerated, will breed more 

misconduct and those who might seek relief against abuse will instead 

resort to it in self-defense.130

Judge Schwarzer’s words ring especially true to this Court as it disposes of 

the present matter. It would have been a far easier decision for the Court to the 

close this case upon handing down its Summary Judgment Memorandum and 

move to one of the many other cases on its docket. At the same time, the conduct 

of Mr. Russo here and in recent related proceedings has risen to such a troubling 

level that this Court would be failing its duty to the public by not somehow 

addressing and attempting to adequately deter it.

From Mr. Russo’s perspective, however, his conduct should somehow 

continually be absolved because he is a sole practitioner, while PPL and the Union 

have virtually unlimited resources. Not so in this Court. When a federal judge takes 

his oath and assumes his office, he affirms to “do equal right to the poor and to the 

rich”—a recognition that in federal court, contrary to what some practitioners 

might believe, large defendants have rights too.131 Their resources should not make 

them a de facto target for baseless suits aiming to extort an unwarranted settlement 

and transfer wealth.

As the Court instructed Mr. Russo during oral argument, now is a good time 

for him to retire back to his office, review any pending federal lawsuits, and put 

 

130 Sanctions Under the New Federal Rule 11—A Closer Look, 104 F.R.D. 181, 205 (1985).

131 28 U.S.C. § 453.

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 54 of 55
55

some serious thought into whether this is the kind of lawyer he wants to be.

An appropriate Order follows.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

Case 4:13-cv-00118-MWB Document 62 Filed 12/29/15 Page 55 of 55