Judge cites Instagram photos in sanctioning lawyer for family emergency excuse
A lawyer who said she had missed a filing deadline because of a family emergency in Mexico City was sanctioned $10,000 by a federal magistrate judge who said Instagram photos showed she was actually in New York City at the time.
Although Franco was in Mexico City in early November 2016, she was apparently in New York City when she missed a Nov. 23, 2016, deadline to file a motion for class certification in a wage-and-hour suit, Hammer said. The suit had alleged violations by four New Jersey cafes.
When Franco filed for an extension 16 days past the deadline, she said she had been forced to leave the country for the family emergency and submitted a flight itinerary showing she had flown from New York City to Mexico City on Thursday, Nov. 21, and had remained there until Dec. 8. Opposing counsel said Instagram photos from Franco’s public account indicated that she was in New York and then Miami during that period.
There was another problem with the itinerary. “November 21, 2016 was indisputably a Monday, not a Thursday,” Hammer said.
Franco later told the court that she had gone to Mexico City earlier in November and that her mother’s medical diagnosis sent her “into a tailspin” that caused her to miss the deadline and submit an erroneous itinerary.
Franco was local counsel in the suit and her co-counsel, John Troy, was admitted pro hac vice for the case. Troy told the court he had emailed the motion papers on the afternoon of the deadline and had expected Franco to file them. He said he was unaware of the family emergency. Troy said he didn’t follow up to make sure the papers were filed because he had worked with Franco in the past and she was always reliable.
Franco belatedly filed the certification motion, then sought to withdraw it, first with prejudice and then without prejudice. Troy alleged Franco had not consulted him about the withdrawal request.
Hammer concluded that Franco deliberately misled the court and her co-counsel, and her actions multiplied the proceedings in the matter. “Franco’s misrepresentations to the court clearly constitute bad faith and were unreasonable and vexatious, not simply a misunderstanding or well-intentioned zeal,” he wrote.
Both Franco and the opposing counsel sought to hold Troy jointly and severally responsible for any sanction. Hammer refused the request. “Even assuming, solely for the sake of argument, that Mr. Troy had a duty to supervise Ms. Franco and was somehow derelict in discharging that duty, such dereliction falls well short of the standard to impose sanctions,” Hammer wrote.
Opposing lawyers had sought a total of $44,283 in attorney fees and costs as a sanction, an amount that Hammer determined to be “unreasonably high.” Hammer said the $10,000 sanction to be paid by Franco should be divided among the three opposing counsel.
Franco did not immediately respond to an ABA Journal email seeking comment. She told the ABA Journal in an email after publication of the story that she does not intend to challenge Hammer’s decision. She said she was misquoted in an interview with another publication, but she did acknowledge exhibiting poor judgment and being sorry that the episode ever happened.
The case is Ha v. Baumgart Café of Livingston.
Summary of Franco’s comments to the New Jersey Law Journal removed on May 3 after Franco sent the ABA Journal an email saying she was misquoted and does not intend to challenge Hammer’s decision.