Mata v. Avianca, Inc.

Facts

Mata (P) commenced this action on or about February 2, 2022, when he filed a Verified Complaint asserting that he was injured when a metal serving cart struck his left knee during a flight from El Salvador to John F. Kennedy Airport. Avianca (D) removed the action to the federal court asserting federal question jurisdiction under the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Done at Montreal, Canada. Steven A. Schwartz had been the attorney listed on the state court complaint. But upon removal from state court to this Court, Peter LoDuca of the Levidow Firm filed a notice of appearance on behalf of P on March 31, 2022. Mr. Schwartz is not admitted to practice in this District. On January 13, 2023, D filed a motion to dismiss urging that P's claims are time-barred under the Montreal Convention. On January 18, 2023, a letter signed by Mr. Schwartz and filed by Mr. LoDuca requested a one-month extension to respond to the motion, from February 3, 2023, to March 3, 2023. The letter stated that 'the undersigned will be out of the office for a previously planned vacation' and cited a need for 'extra time to properly respond to the extensive motion papers filed by the defendant.' The Court granted the request. On March 1, 2023, Mr. LoDuca filed an 'Affirmation in Opposition' to the motion to dismiss (the 'Affirmation in Opposition'). The Affirmation in Opposition cited and quoted from purported judicial decisions that were said to be published in the Federal Reporter, the Federal Supplement, and Westlaw. Above Mr. LoDuca's signature line, the Affirmation in Opposition states, 'I declare under penalty of perjury that the foregoing is true and correct.' (Id.) Mr. LoDuca was not the author. It was researched and written by Mr. Schwartz. Mr. LoDuca reviewed the affirmation for style, stating, 'I was basically looking for a flow, make sure there was nothing untoward or no large grammatical errors.' Mr. LoDuca did not review any judicial authorities cited in his affirmation. There is no claim or evidence that he made any inquiry of Mr. Schwartz as to the nature and extent of his research or whether he had found contrary precedent. Mr. LoDuca simply relied on a belief that work produced by Mr. Schwartz, a colleague of more than twenty-five years, would be reliable. D filed a five-page reply memorandum on March 15, 2023, stating in part that D was unable to locate most of the case law cited by P. D impliedly asserted that certain cases cited in the Affirmation in Opposition were non-existent: 'Plaintiff does not dispute that this action is governed by the Montreal Convention, and Plaintiff has not cited any existing authority holding that the Bankruptcy Code tolls the two-year limitations period or that New York law supplies the relevant statute of limitations.' D detailed by name and citation seven purported 'decisions' that D's counsel could not locate, and set them apart with quotation marks to distinguish a nonexistent case from a real one, even if cited for a proposition for which it did not stand. P did not seek to withdraw the March 1 Affirmation or provide any explanation to the Court of how it could possibly be that a case purportedly in the Federal Reporter or Federal Supplement could not be found. The Court was unable to locate multiple authorities cited in the Affirmation in Opposition. It turns out that Schwartz had used ChatGPT, which fabricated the cited cases. Schwartz testified at the sanctions hearing that when he reviewed the reply memo, he was 'operating under the false perception that this website [i.e., ChatGPT] could not possibly be fabricating cases on its own.' 'My reaction was, ChatGPT is finding that case somewhere. Maybe it's unpublished. Maybe it was appealed. Maybe access is difficult to get. I just never thought it could be made up.' Schwartz did admit that he entered the citation to 'Varghese' but could not find it but still took no action not to submit the 'work product' and did not investigate further. LoDuca was directed to file an affidavit explaining the case cites. The Order stated: 'Failure to comply will result in dismissal of the action pursuant to Rule 41(b), Fed. R. Civ. P.' LoDuca requested an extension of time to respond to April 25, 2023. The letter stated: 'This extension is being requested as the undersigned is currently out of the office on vacation and will be returning on April 18, 2023.' LoDuca's statement was false and he knew it to be false at the time he made the statement. Under questioning by the Court at the sanctions hearing, LoDuca admitted that he was not out of the office on vacation. LoDuca executed and filed an affidavit on April 25, 2023, that annexed what were purported to be copies or excerpts of all but one of the decisions required by the Orders of April 11 and 12. LoDuca stated, '[t]hat I was unable to locate the case of Zicherman v. Korean Air Lines Co., Ltd., 516 F.3d 1237 (11th Cir. 2008) which was cited by the Court in Varghese.' Schwartz testified that he prepared LoDuca's affidavit, walked it into 'his office' twenty feet away, and '[h]e looked it over, and he signed it.' There is no evidence that LoDuca asked a single question. LoDuca had not been provided with a draft of the affidavit before he signed it. LoDuca knew that Schwartz did not practice in federal court and, in response to the Order to Show Cause, he has never contended that Schwartz had experience with the Montreal Convention or bankruptcy stays. Schwartz testified that he thought a citation in the form 'F.3d' meant 'federal district, third department.' None of the information annexed was real nor could the “entire cases” be found for any of the alleged decisions. The Clerk of the United States Court of Appeals for the Eleventh Circuit has confirmed that the decision is not an authentic ruling of the Court and that no party by the name of 'Vargese' or 'Varghese' has been party to a proceeding in the Court since the institution of its electronic case filing system in 2010. The submitted verbiage was clearly not that of any federal court. The 'Varghese' decision includes internal citations and quotes from decisions that are themselves non-existent. Other 'decisions' cited in 'Varghese' have correct names and citations but do not contain the language quoted or support the propositions for which they are offered. In his affidavit filed on May 25, Schwartz stated that he relied on ChatGPT 'to supplement the legal research performed.' But at the hearing, Schwartz acknowledged that ChatGPT was not used to 'supplement' his research. LoDuca was directed to show cause why he ought not be sanctioned pursuant to: (1) Rule 11(b)(2) & (c), Fed. R. Civ. P., (2) 28 U.S.C. § 1927, and (3) the inherent power of the Court, for (A) citing non-existent cases to the Court in his Affirmation in Opposition, and (B) submitting to the Court annexed to April 25 Affidavit copies of non-existent judicial opinions. On June 8, 2023, the Court held a sanctions hearing on the Order to Show Cause and the supplemental Order to Show Cause. After being placed under oath, Messrs. LoDuca and Schwartz responded to questions from the Court and delivered prepared statements in which they expressed their remorse. Mr. Corvino, a member of the Levidow Firm, also delivered a statement. At no time has any Party written to this Court seeking to withdraw the March 1 Affirmation in Opposition or advise the Court that it may no longer rely upon it.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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