Forney v. Township of Cary, North Carolina
U.S. District Court, Eastern District of North Carolina, Western Division · E.D.N.C. · North Carolina bar guidance
Conduct
Counsel reused a miscited state case and a truncated Fourth Circuit quote in a second suit, months after the same court warned him about the same citations.
Consequence
Here the magistrate judge ordered counsel to pay the Town's fees caused by the brief, including its reply and the hearing, and sent the order and transcript to the State Bar.
Lesson
In this case a prior warning in the client's earlier suit turned a repeat citation error into a bad-faith finding under the court's inherent authority.
Verified September 29, 2026
- Citation
- Forney v. Township of Cary, No. 5:25-CV-00738-M, Order & Memorandum & Recommendation (E.D.N.C. Aug. 3, 2026) (Numbers, M.J.), ECF No. 19
- Decided
- August 3, 2026
Summary
Plaintiff's counsel Lucas Colantonio filed a response to the Town of Cary's motion to dismiss an employment discrimination suit that relied on "In re S.L.L." for a service-of-process proposition, cited at 177 N.C. App. 430, 628 S.E.2d 618 (2006), and quoted only the first half of a paragraph from the Fourth Circuit's Armco decision. The same citations and the same partial quotation had appeared in his brief in Forney's first suit against the Town (No. 5:25-CV-00319), where, as this order recounts, In re S.L.L. did not appear at the cited location, no cited case dealt with service of process, and the court on October 8, 2025 warned that "[t]here should not be a next time. If there is, the court will impose monetary and other sanctions." The response here was also nearly a month late, with no extension motion; counsel cited opposing counsel's consent, which opposing counsel confirmed at the hearing. At the April 16, 2026 show-cause hearing, the order recounts that Colantonio first attributed the errors to his wife's pregnancy complications, then said he had meant to cite a different case, that he did not know how In re S.L.L. entered the draft or that his staff put it there, and variously that he did not read, skimmed, or read the earlier order with his client.
- AI tool:
- Unidentified (the order sanctions fabricated legal authority but does not attribute it to AI or name a tool)
- Sanction amount:
- Attorney's fees the Town of Cary incurred as a result of counsel's brief (amount to be set on a later fee submission); referral to the North Carolina State Bar with the hearing transcript
What sanction did the court impose?
In a combined Order and Memorandum and Recommendation, Magistrate Judge Robert T. Numbers, II found by clear and convincing evidence that Colantonio "knowingly submitted a pleading containing fabricated authority and citations on multiple occasions and even after being warned," that the conduct was an abuse of the judicial process, and that his repeated conduct established bad faith. Under the court's inherent authority he ordered Colantonio to pay the attorney's fees the Town incurred as a result of his brief, including drafting its reply and attending the show-cause hearing, with the Town to file a fee submission within 10 days and Colantonio to respond within 10 days after that. The Clerk was directed to send the order and the hearing transcript to the North Carolina State Bar "for whatever action it deems appropriate, including consideration of whether disciplinary or disability-related measures are warranted." On the merits, the recommendation was that the complaint be dismissed as untimely under the 90-day right-to-sue deadline. The docket shows Chief Judge Richard E. Myers II adopted the recommendation and granted dismissal on August 18, 2026 (ECF No. 23), and a notice of appeal was filed September 17, 2026.
Why does Forney v. Township of Cary, North Carolina matter for law firms using AI?
The order sanctions a second offense. In Forney’s first suit against the Town, the court rejected counsel’s service-of-process argument after the Town showed that In re S.L.L. was not at the cited reporter page and that none of the cited cases addressed service, and it warned counsel that a repeat would bring “monetary and other sanctions.” Counsel refiled, missed the response deadline by nearly a month, and filed a response containing the same citation and the same partial quotation of Armco, Inc. v. Penrod-Stauffer Building Systems. Magistrate Judge Numbers called counsel “a repeat offender” who “received leniency in Forney I and nevertheless engaged in exactly the same conduct in this case.”
The court proceeded under its inherent authority, applying a clear-and-convincing standard and finding bad faith from the repetition after warning. It weighed the costs that fabricated authority imposes on the court and on the opposing party, and the need for both specific and general deterrence, and chose a fee-shifting sanction measured by the Town’s work in responding to the brief. The court also noted counsel’s admissions that he did not investigate the source of the earlier errors and “did not fully review” the prior order.
The order does not mention artificial intelligence. It speaks of fabricated and erroneous authority, and its account of the hearing records counsel’s shifting explanations, including that his staff may have placed the case in the draft. The referral asks the North Carolina State Bar to consider whether disciplinary or disability-related measures are warranted, and the court at the hearing encouraged counsel to use the support resources available through the bar.
Implications for your firm
Operational steps a firm reading this case may wish to consider documenting. Strategic and rule-application calls belong to your firm's attorneys.
- Review how warnings in a client's earlier or related case are captured. Here the court treated counsel's admission that he did not investigate the source of the Forney I errors and did not fully review that order as showing a cavalier attitude toward its admonitions.
- Verify citations carried over from a prior brief. The sanctioned response reused the same citations and partial quotation the court had already flagged in the client's first suit.
- Document who drafted and who checked each authority. Counsel's shifting account at the hearing (did not know how the case entered the draft, or staff placed it there) figured in the court's description of the record.
- Consider that a referral can reach beyond discipline. The court asked the State Bar to consider whether disciplinary or disability-related measures are warranted.
Sources
Primary sources
- AI attribution: the order never mentions artificial intelligence; it describes the authority as fabricated and erroneous. The tracker's AI coding is a Charlotin inference (the Westlaw copy carries an editor's note about AI-generated citations, which is Westlaw's, not the court's).
- The amount of the fee award is not set in this order; later fee filings (ECF Nos. 20 to 22) were not read.