U.S. Magistrate Judge Chris M. McAliley

 

A Miami Beach attorney facing $60,000 in sanctions has been given an opportunity to mount a defense before a federal district judge.

Employment attorney Jamie H. Zidell and his firm J.H. Zidell P.A. were recommended for $60,000 in sanctions in a July 20 report submitted by U.S. Magistrate Judge Chris M. McAliley for his conduct in Orlando Estrada v. FTS USA. Zidell argued the defendant violated federal overtime law and failed to fairly compensate his client, Orlando Estrada.

McAliley's report said Zidell and his firm ”did not make a reasonable pre-suit inquiry into the factual basis for that claim, and had they done so, they would have learned that this claim was frivolous.”

“The Complaint stated that Defendant 'never paid the extra half-time rate for any hours worked over 40 hours in a week,' “ McAliley wrote in her report. “This was quickly shown to be false.”

Read the report & recommendation on sanctions against Jamie Zidell: 

The report recounts FTS USA provided Zidell with time sheets and earnings statements less than six weeks after the lawsuit was filed in September 2014 showing Estrada had been paid by the company based on the overtime hours he submitted.

“The Court found that Plaintiffs allegation that he was 'never' paid any overtime wages for 'any hours worked over 40' was objectively frivolous,” McAliley wrote in her report.

She ultimately recommended Zidell and his firm be sanctioned under Federal Rule of Civil Procedure 11. The judge found Zidell and his firm broke the rule — which enables a district court to sanction attorneys or parties for submitting pleadings and motions that are deemed “frivolous” — for failing to properly vet his client's claims and “should be sanctioned for their failure to meet their obligations under Rule 11.”

Kevin Michael Moore, chief judge of the United States District Court for the Southern District of Florida. Photo: J. Albert Diaz

The July 20 report and recommendation arrived after FTS USA's counsel, Fox Rothschild attorney Dori K. Stibolt, filed several motions for sanctions against Zidell. Following its admittance, U.S. District Chief Judge K. Michael Moore entered an order Aug. 9 adopting McAliley's recommendation.

However, the order has been stayed for the time being in light of a clerical error.

In a Sept. 26 motion to vacate the order, Zidell argued he and fellow J.H. Zidell attorney Rivkah Jaff had been erroneously terminated from the case and were subsequently notified of neither the R&R nor the judge's order, and had been unable to object in response.

Read Zidell's motion to vacate an order adopting sanctions against him: 

According to Zidell, he and Jaff were removed in error by a clerk after former J.H. Zidell attorney K. David Kelly filed a notice of dissociation of counsel with the court July 12. In the motion, Zidell maintained he was unaware of the mistake until Sept. 26.

“Plaintiff's counsel respectfully request the Order Adopting the Report and Recommendation be vacated, Plaintiff's Firm and Counsel be given an opportunity to file objections to the Report and Recommendation, as there are good faith grounds to file same, and to stay this matter pending review to halt further accrual of attorneys' fees,” the motion said.

Moore entered an order Sept. 28 granting and denying Zidell's motion in part; although his prior order remains in effect, Zidell was given two weeks to file objections to McAliley's filing. Additionally, Moore stayed the accrual of attorney fees pending the filing of objections.

This is not the first time motions for sanction have been entered against Zidell by opposing counsel. In Phillips et al v. Igelko before U.S. Magistrate Judge Andrea Simonton, motions for sanction and disclosure against Zidell were denied. Likewise, an April 16 memorandum on the nature of sanctions by Stibolt mentions several other cases in which Zidell “has been sanctioned or has received recommendations for sanctions” including Silva v. Pro Transport and Olivas v. A Little Havana Check Cash.

Stibolt, who filed a motion for entry of final judgment Sept. 26, declined to comment. Under Moore's Sept. 28 order, “The Court reserves ruling on Defendant's Motion for Entry of Final Judgment.”

In his statement to the Daily Business Review, Zidell reiterated the contentions raised in his motion to vacate Moore's order adopting McAliley's recommendation.

“The order was entered without our knowledge as we were erroneously terminated on the docket before the subject R&R and order adopting it were entered. We have recently been given an opportunity by the district judge to respond to the R&R which will be reviewed de novo by the district judge after it is filed by the end of next week,” Zidell said. ”Until then, I don't think its prudent to share any comments or concerns at this time in light of the foregoing.”

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