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observing that the "intended purpose of Rule 41(d) — namely, to deter forum shopping and vexatious litigation, — is particularly applicable here given that Plaintiff's admitted purpose in voluntarily dismissing the [prior] suit was to avoid this court's . . . [o]rders"
Summary of this case from Ramirez v. iBASIS, Inc.Opinion
99 Civ. 1108 (BSJ)
December 12, 2001
Opinion and Order
BACKGROUND
Plaintiff Blauinsel Stiftung ("Blauinsel"), a Liechtenstein Trust, filed this action against Defendants Global Minerals Metals Corporation, R. David Campbell, Bipin H. Shah and Carl D. Alm (collectively the "Global Defendants"), Sumitomo Corporation, Sumitomo Corporation of America and James Holme (collectively the "Sumitomo Defendants"), Yasuo Hamanaka, Blas Cuevas and John Does "1" through "15." In its Complaint, Blauinsel, the purported assignee of claims held by RST Resources, Inc. ("RST"), alleges that, in furtherance of a scheme to control the worldwide supply of copper, Defendants Campbell, Hamanaka and the Sumitomo Defendants bribed RST's employees and induced them to breach their fiduciary duties of loyalty to RST. The Complaint further alleges that all of the Defendants violated the Donnelly Act, the Sherman Act and RICO, as well as committed common law fraud.
Currently before this Court is the joint motion of the Sumitomo Defendants and the Global Defendants (together, "Defendants"), pursuant to 28 U.S.C. § 1927, Federal Rules of Civil Procedure 26, 37, and 41, and the inherent equitable powers of the court, for an order: (1) enjoining the prosecution in any other action by plaintiff or its privies of any of the claims arising out of the transactions that are the subject matter of this action; (2) awarding costs, expenses, attorneys' fees and sanctions jointly and severally against Plaintiff Blauinsel Stiftung, its attorneys Ahmed Massoud and Lisa Pashkoff, and its beneficiaries Harry Sardanis and Andrew Sardanis; and (3) granting defendants such other relief as the Court may deem just and proper.
For the reasons stated below, this court finds the conduct of Plaintiff and Plaintiff's counsel Ahmed Massoud sanctionable under Federal Rule of Civil Procedure 37, as well as pursuant to this court's inherent powers. Accordingly, this court holds Plaintiff and Massoud jointly and severally liable for sanctions in the amount of Defendants' costs and attorneys' fees in defending this action, minus costs related to securing and reviewing the records of RST. Furthermore, this court levies an additional monetary sanction against Massoud in the amount of $10,000. This court declines, however, to enjoin Plaintiff from further litigating the claims asserted against defendants.
FINDINGS OF FACT
Plaintiff filed this action on February 16, 1999, alleging, inter alia, (1) that several of the Defendants bribed RST employees and induced them to breach their fiduciary duties of loyalty, and (2) that all of the Defendants committed violations of RICO, the Sherman Act, and the Donnelly Act, as well as committed common law fraud. The Complaint identifies Plaintiff as "Blauinsel Stiftung, a Liechtenstein Trust, by Iur W. Keicher, Sibilla Cretti and Jurg Scheller, as trustees." Compl. ¶ 4.
The Blauinsel trust was established for the benefit of Andrew Sardanis and his family, including Harry Sardanis. See A. Sardanis 1999 Tr. at 35:18-36:11.
Rule 17 Discovery
In anticipation of a conference before the Court and in an effort to prepare a discovery plan, the parties met on April 22, 1999, pursuant to Fed.R.Civ.P. 16. See Haveles Aff. at ¶ 7. At that meeting, the Defendants questioned the validity of the assignment of the claims at issue from RST to Blauinsel, and expressed doubt as to Blauinsel's standing to bring this action. Consequently, the parties agreed to address the issue of whether Blauinsel was a real party in interest under Fed.R.Civ.P. 17 and to proceed with expedited discovery regarding that issue. See id. Defendants set forth their proposed discovery, which included the depositions of the trustees named in paragraph 4 of the Complaint and the members of the RST board at the time of the assignment. See id. Plaintiff, through Massoud, agreed to proceed with such discovery. See id.
The assignment allegedly was executed by Harry Sardanis, former chairman of RST, upon the approval of RST's Board of Directors on March 25, 1995. See Haveles Aff. at Ex. 13. The document purports to assign to Blauinsel all of RST's claims against Campbell and all others acting in concert with him. See id.
On April 30, the court held a preliminary conference at which Defendants advised the court of their doubts regarding the validity of the assignment and Blauinsel's standing to maintain this action. See Haveles Aff. at ¶ 8. Massoud reaffirmed his agreement to proceed with the Rule 17 discovery before any discovery on the merits; he had already formally assented to proceeding in this manner in a letter dated April 23, 1999. See id. at Ex. 14. At this conference, Defendants specifically advised the Court that they intended to take the depositions of the trustees of Blauinsel and of RST's former board members, including Andrew and Harry Sardanis.
The Deposition of the Trustees
Defendants' attempts to take the deposition of Blauinsel's trustees led to a series of bad faith actions taken by Massoud and his client. On May 6, 1999, the Global Defendants served a notice for the depositions of Plaintiff's trustees. See Haveles Aff. at Ex. 16. The revised notice set June 8 as the date of the depositions, and, in an effort to coordinate with other overseas depositions to be taken in this case and to accommodate the trustees, who resided in Switzerland and Liechtenstein, set London as the location for the depositions. See id. On May 14, Massoud asked if the trustees could be deposed in Switzerland. See id. at Ex. 18. On May 17, Massoud advised Defendants' counsel by fax that he would speak to the trustees' representative the next day regarding the trustees depositions and would "revert" to Plaintiffs' counsel. See id. at Ex. 20. On June 2, Massoud contacted defendants seeking an adjournment of both the discovery cut-off on the Rule 17 issues and the date of the trustees' depositions, stating that he had a trial on another matter. See id. at ¶ 9, Ex. 22; Boehning Aff. at ¶ 33. Among others, he spoke to Richard McGuirk of Cadwalader, Wickersham Taft, who asked Massoud whether the week of July 12 would be acceptable for the rescheduled depositions. Massoud said yes. See Haveles Aff. at ¶ 9.
In late June, while preparing the stipulation to adjourn the schedule set at the April 30 conference, H. Christopher Boehning, counsel for Sumitomo Defendants, had a number of conversations with Massoud to confirm that the trustees would appear for their depositions. See Boehning Aff. at ¶ 17. Massoud was unable to provide such confirmation. See id. Boehning then requested permission to contact directly Sibilla Cretti, one of the trustees, to resolve the scheduling of depositions, and Massoud consented. See id. at Ex. C. On June 21, Boehning called Cretti. During their phone conversation, Cretti insisted that she be served pursuant to the Hague Convention and informed Boehning that both she and the other Trustees were unwilling to go to London for their depositions. See id. ¶ 18. To Boehning's amazement, she also told him that he was the first person to contact her with respect to scheduling her deposition, and that she had never discussed her deposition with Massoud. Id.
Counsel for the Defendants wrote to Massoud on June 23 and 24 to express their concern that he had not spoken to or conferred with trustees regarding their depositions. See id. at Ex. D; Haveles Aff. at Ex. 23. In response, Massoud claimed that he had now spoken to Cretti, and that he had attempted to speak with Jurg Scheller (another of the trustees) unsuccessfully. See Haveles Aff. Ex. 24. Massoud did not deny that he had not made any efforts prior to this point to contact them. Moreover, it was in this letter that Massoud revealed for the first time that Cretti was no longer a trustee and therefore was "no longer under our control." Id.
Sibilla Cretti's status as a trustee is discussed in more detail below.
In his letter, Massoud stated that he planned to travel overseas between June 25 and July 11, and that Defendants should direct all correspondence in this matter to his associate, Ms. Pashkoff, in his absence. See id. Boehning continued his efforts to resolve the matter, including by faxing a letter to Massoud in Switzerland. See Boehning Aff. at Ex. G. Pashkoff told Boehning that Massoud had a meeting with the trustees on July 2, and that Massoud would inform her after that meeting whether the trustees would attend their depositions. See id. at Ex. F. Neither Pashkoff nor Massoud ever contacted Boehning with the results of that meeting. See id. at ¶ 23.
Boehning wrote to the court on July 6, 1999 to request a conference, which the court scheduled for July 9. See id. at ¶ 24. On July 8, Pashkoff wrote to the court requesting an adjournment of the conference until Massoud returned from Europe, professing ignorance as to the nature of this case. See id. at Ex. K. The court rejected Pashkoff's request. At the July 9 conference, the court issued an oral Order directing the trustees to appear in London for their depositions during the week of July 12, or else risk the full range of sanctions under Rule 37. See Haveles Aff. at ¶ 10. This oral Order was memorialized in a written Order docketed on July 12. See id. at Ex. 28.
Later on July 9, H. Peter Haveles, Jr., counsel for Global Defendants, wrote to Pashkoff to inform her of his plan to travel to London. In this letter, Haveles indicated that the Defendants were willing to depose the trustees at any time on July 13, 14 or 16, and he gave Pashkoff a number in London where he could be reached. See id. at Ex. 27. Pashkoff wrote that she had been unable to contact Massoud or the trustees to inform them of the court's Order and requested that the depositions be adjourned for one week. See Boehning Aff. at Ex. 1. Boehning denied her request and gave her his home telephone number so that she could call him before the flight to London if the trustees would not appear. See id. at Ex. J.
Defendants did not hear from either Massoud or Pashkoff over the weekend. See Haveles Aff. at ¶ 38; Boehning Aff. ¶ 27. Haveles departed for London on July 11, and Boehning left early in the morning on July 12. Id. Later in the morning of July 12, Massoud faxed a Notice of Voluntary Dismissal of the action without prejudice pursuant to Fed.R.Civ.P. 41(a)(i).
At Defendants' request, a conference was held on July 14. Despite this court's questioning, Massoud was unable to provide any coherent explanation for the trustees' alleged unavailability during the week of July 12. See id. at 18:12-21:24. Indeed, suggesting that Pashkoff had told him nothing, Massoud misrepresented to the Court that he did not know of the events of the prior week until he returned to his office on the morning of July 12. In addition, the record reflects that Massoud never had any discussion with Cretti about any deposition at any time before Boehning's conversation with her. See Def.'s Memo. at 9. Finally, although Massoud stated that he learned only on July 12 that the trustees were unavailable for deposition during the week of July 12, see July 14 Tr. at 17:12-15, as discussed above, Massoud had met with the trustees in Europe on July 2 for the express purpose of discussing their depositions.
The Resignation of Sibilla Cretti
It was not until the July 14 conference that Massoud informed the court that Cretti, who was specifically named as a trustee in Plaintiff's February 16, 1999 Complaint, had not in fact been a trustee since February 18, 1999. July 14, 1999 Tr. at 14:3-18. Not only was this announcement inexcusably belated, but also it was contrary to affirmative representations made by Massoud and his clients concerning the identity of the trustees: First, on April 27, approximately two months after Cretti's resignation, Massoud circulated a draft of an Amended Complaint in which she was still alleged to be a trustee. See Haveles Aff. at Ex. 11. Second, at his deposition on May 26, Andrew Sardanis asserted that Cretti was still a trustee and that he had consulted with her on March 1, 1999 about this case. See A. Sardanis 1999 Tr. at 27:17-25; 29:12-19.
In addition to these affirmative misrepresentations, Massoud had several communications with the Court and Defendants' counsel concerning the trustees in which he failed to disclose the resignation. At the April 30 conference, Defendants informed the court and Massoud that it was their intention to depose the trustees. On May 7, the Global Defendants served a notice of deposition for Cretti and the other trustees as party plaintiffs. On May 14, Massoud wrote to counsel for Defendants to request that the depositions of the trustees take place in Switzerland. On June 2, Massoud communicated with counsel for the Global Defendants to confirm scheduling the depositions of the trustees and the other London witnesses. See Haveles Aff. at ¶¶ 8-9, Exs. 16, 18.
Dismissal of this Action and the "New Complaint"
Aside from his misrepresentations and evasions concerning the trustee's depositions and Cretti's resignation, Massoud's own statements before this court reveal that he dismissed this action with the express purpose of avoiding the consequences of deliberate noncompliance with the Court's July 9 Order, and with the intention of re-filing the case at a later date. According to Massoud:
Based on the fact that contact could not be made and arrangements could not be made to have the trustees appear for the week of July 12 in London, I, upon return to my office on the morning of July 12, what I did is I contacted the trustees in Bern, Switzerland, as well as Vaduz, Liechtenstein, to try to see what we could do under those circumstances. Based on what has happened throughout these proceedings from Haveles' part, we knew that if we can't get them to London on the week of July 12, he was going to seek dismissal of the action and everything else. At that point, as is the right of the plaintiff, under Rule 41(a)(1)(i) we filed a voluntary dismissal and immediately faxed copies thereof to counsel for all defendants. . . . It was done specifically not to have the case dismissed, having had no cooperation from Mr. Haveles from the beginning.July 14 Tr. at 5:11-6:6.
Massoud did in fact re-file, and his false representations to this court extended to this newly filed Complaint (the "New Complaint"). At the July 14 conference before this court, Massoud stated that the New Complaint contained a RICO claim, and therefore would be filed in the District Court. See July 14 Tr. at 10:1-13. Massoud further claimed that the plaintiff in the case would be the same, except that Cretti would be deleted as a trustee. See id. at 13:25-14:8. Incredibly, during this conference Massoud claimed to be unaware as to whether the New Complaint had been filed, and whether it was marked as related. See id. at 14:20-16:16. When pressed as to why, Massoud claimed that the New Complaint had been "drafted and signed" by Pashkoff, despite her representations to the Court on July 8 and 9 that the action was handled "exclusively" by Massoud and that she had only "limited familiarity" with the issues. See id. at 10:5-10. He asserted that he had not consulted with Pashkoff as to whether the New Complaint had been filed. See id. at 14:22-25.
At the July 15 conference, Massoud reported that Pashkoff had not filed the New Complaint in the District Court as previously asserted, but rather she had filed the New Complaint in New York State Supreme Court.See Haveles Aff. at Ex. 30; July 15 Tr. at 2:19-22. Massoud explained that, contrary to his representations during the July 14 conference, the New Complaint did not in fact include a RICO claim, See id. at 3:2-4:1. When asked about the discrepancies with his statements made the day before, Massoud once again claimed that the decisions as to where the New Complaint would be filed and what claims it would include were made by Pashkoff. See id. at 4:24-5:19. He vigorously attempted to avoid this Court's questions on the topic:
Court: You have avoided answering my question about when you first learned that (Pashkoff] was going to file [the New Complaint] in state court. Let me ask you when it is that you discussed where to file this complaint with her.
Haveles: He still hasn't answered the question, your Honor. Court: No, you haven't. When is it you discussed with Ms. Pashkoff filing this lawsuit in state court? Massoud: Your Honor, again, I would defer that pending submission of briefs — Court: No, Mr. Massoud. That's a simple question and a simple answer. Massoud: Your Honor, in light of the statements by yourself yesterday and today, I will respectfully decline to answer questions on proof until we have submitted a letter memorandum on that issue. Court: Mr. Massoud, I am asking you a very simple question. We are talking about the events of the last few days. Now, I want to know now when it is that you first discussed filing this complaint in state court, when it is that you first discussed that with Ms. Pashkoff. Massoud: Filing in state court? This morning.Id. at 7:25-8:3, 8:24-9:17.
When Defendants obtained the New Complaint filed in New York State Supreme Court, they learned that, contrary to Massoud's assertion on July 14, the named plaintiff had in fact changed; it was no longer Blauinsel, but rather it was Andrew Sardanis, the beneficiary of the Blauinsel trust. See Haveles Aff. at Ex. 43. The court repeats its comments during the July 15 conference:
Mr. Massoud, I am astounded at the statements and representations that you have made. I was amazed last night at many of your representations. I am even more surprised this morning. I am very concerned about the integrity of how this case is being handled and I just simply don't know what else to say. I warned you last night with respect to your responses to these motions. I asked you for a report this morning. I find it completely incredible that — it is incredible to me that you could have stood there last night, told me what you told me and then reported to me this morning that Ms. Pashkoff went ahead and filed a complaint in New York State Supreme Court. It is mind-boggling.July 15 Tr. at 7:13-7:24.
DISCUSSION Sanctions
Defendants have moved the court to levy sanctions against Plaintiff and Massoud jointly and severally under Fed.R.Civ.P. 26 and 37 and 28 U.S.C. § 1927. As discussed in detail below, this court finds that, pursuant to both Rule 37 and this court's inherent powers, sanctions against both Plaintiff and Massoud are justified and appropriate.
The court declines to assess further sanctions against either Massoud or the Plaintiff pursuant to Fed.R.Civ.P. 26 or 28 U.S.C. § 1927. This court also declines to assess sanctions against Lisa Pashkoff, Harry Sardanis and Andrew Sardanis.
Rule 37 promotes "strict adherence to the 'responsibilities counsel owe to the Court and to their opponents.'" Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1067 (2d Cir. 1979) (quoting National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 640 (1976). As the Supreme Court has emphasized, Rule 37 sanctions "must be applied diligently both to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such deterrent."Roadway Express, Inc. v. Piper, 447 U.S. 752, 763-64 (1980); Update Art, Inc. v. Modiin Publishing, Ltd., 843 F.2d 67, 71 (2d Cir. 1988) (Rule 37 sanctions are intended "to serve a general deterrent effect on the case at hand and on other litigation").
Rule 37(d) mandates the imposition of sanctions on a party, or "the attorney advising that party," who "fails to appear" for a deposition "after being served with proper notice." It provides, in pertinent part:
If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule . . . . In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party-or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Applying Rule 37(d) to the facts at hand, this court finds the imposition of sanctions on both Plaintiff and Massoud to be appropriate. "Rule 37(d) makes it explicit that a party properly served has an absolute duty to respond, that is, to present himself for the taking of his deposition, . . . and that the court in which the action is pending may enforce this duty by imposing sanctions for its violation." Penthouse Int'l v. Playboy Enters., Inc., 663 F.2d 371, 390 (2d Cir. 1981). There is no question that the trustees, as persons named in the Complaint and as "officers, directors, or managing agents" of Blauinsel, were obligated to appear at their duly noticed depositions. See Fed.R.Civ.P. 32(a)(2), 37(d); Herbstein v. Dabbah Securities Corp., 169 F.R.D. 36, 40 (S.D.N.Y. 1996) ("A party who brings an action presumptively obligates herself to sit for a deposition."). Despite this fact, the trustees not only failed to appear at their scheduled depositions in London, but also neglected to inform defense counsel that they did not plan to attend these depositions, causing defense counsel to suffer the burden and expense of traveling to London for no purpose whatsoever.
Even more egregious was the conduct of Plaintiff's counsel, Massoud, who flagrantly flouted his discovery responsibilities on numerous occasions. Although a finding of bad faith is not a prerequisite to the imposition of sanctions under Rule 37(d), Massoud's bad faith was clearly exhibited by his: (1) repeatedly misrepresenting to defense counsel the availability of the trustees for depositions; (2) failing to communicate with the trustees to schedule their depositions; and (3) waiting until defense counsel were en route to London before indicating that the trustees would not appear for their depositions. As a result of this bad faith conduct, Defendants are entitled to sanctions under the plain language of Rule 37(d).
Massoud argues that because he filed the Rule 41 dismissal before the scheduled time for the depositions, there were no depositions to attend and Rule 37(d) was not violated. This formalistic argument is rejected. Although Massoud did file the dismissal, he did so only hours before the depositions were to take place and after defense counsel had traveled to London. Moreover, even if Massoud were correct that Rule 37 did not technically authorize the Court to impose sanctions, as discussed below, the same sanctions would be authorized by the inherent powers of this Court.
Sanctions against both Plaintiff and Massoud are also appropriate under Rule 37(b)(2). Rule 37(b)(2) provides, in pertinent part:
If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just. . . .
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37(b)(2). Because Plaintiff and Massoud violated the Court's oral Order of July 9 (memorialized in the Court's July 12 written Order) to produce the trustees for depositions in London during the week of July 12, sanctions are warranted. See Valentine v. Museum of Modern Art, 29 F.3d 47, 47 (2d Cir. 1994) (upholding dismissal of action for plaintiff's disobedience of court order to appear for deposition); Sieck v. Russo, 869 F.2d 131, 133 (2d Cir. 1989) (warning that "[a] party who flouts [discovery] orders does so at his peril." (citing Update Art, Inc., 843 F.2d at 73)). Indeed, sanctions are especially warranted in this case given the purposeful and prejudicial manner in which Plaintiff and Massoud violated the Court's Orders — as Massoud admitted, plaintiff filed its notice of voluntary dismissal for the sole purpose of evading this court's Orders. See July 14 Tr. at 4:9-7:7.
The same facts justify the imposition of sanctions pursuant to the court's inherent power to impose sanctions against parties and their counsel who abuse the litigation process. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991) (noting that "certain implied powers must necessarily result to our Courts of justice from the nature of their institution, powers which cannot be dispensed within a Court, because they are necessary to the exercise of all others.") (internal quotations and citation omitted). Sanctions may be imposed under a court's inherent power to sanction a party's misconduct during the course of litigation. Such misconduct may include the "willful disobedience of a court order," or where a party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Id. at 45-46.
Given this court's finding that sanctions are justified under Rule 37, as well as pursuant to this court's inherent powers, the court must determine the appropriate amount to be assessed against Plaintiff and Massoud. Rule 37 "empowers the District Courts with a broad discretion to impose sanctions of sufficient severity to deter misconduct during discovery," Fonar Corp. v. Magnetic Resonance Plus, Inc., 162 F.R.D. 276, 279 (S.D.N.Y. 1995), and "courts should not shrink from imposing harsh sanctions where . . . they are clearly warranted." Jones v. Niagra Frontier Transportation Authority, 836 F.2d 731, 735 (2d Cir. 1987) (quoting Cine Forty-Second Street, 602 F.2d at 1068).
To further its purposes, Rule 37 provides courts with the discretion to employ "a wide spectrum of sanctions," the "mildest" of which is "an order to reimburse the opposing party of expenses caused by the failure to cooperate." Cine Forty- Second Street, 602 F.2d at 1066. Under Rule 37, the Court may, in its discretion, assess such expenses (which may include attorneys' fees) against the party, the party's attorney, or both. See Rule 37(b)(2) (where a party fails to obey an order to provide discovery, "the court shall require the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney's fees, caused by the failure. . ."); Rule 37(d) (the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure. . .").
This court finds that the appropriate sanction in this case is to hold Plaintiff and Massoud jointly and severally liable for Defendants' total fees and costs in defending this action, minus those fees and costs related to securing and reviewing the records of RST. These sanctions are warranted because Plaintiff and Massoud, using a voluntary dismissal as a means of avoiding this court's Orders, refiled substantially the same litigation in state court with only a nominally new plaintiff. Defendants therefore are now required to defend substantially the same claims in a court governed by new rules. Moreover, the main issue litigated in this action was whether Blauinsel was the real party in interest to bring this action. Because Blauinsel is not a party to the new lawsuit, almost none of Defendants' efforts in the federal action will advance their defense in the state action, and Defendants have been damaged by Plaintiff's violation to the full extent of their defense of this suit. The one exception to this is costs related to securing and reviewing the records of RST, which discovery exceeded the scope of the Rule 17 discovery agreed upon by the parties and which is not rendered useless by the dismissal. See Massoud Aff. ¶¶ 36-47.
Notably, this court's holding that Plaintiff and Massoud must pay Defendants' costs and attorneys' fees is consistent with the policy underlying Rule 41(d) of the Federal Rules of Civil Procedure. Under Rule 41(d), where a plaintiff (or an assignee of plaintiff) voluntarily dismisses a lawsuit and then files a second suit against the same defendants predicated on the same facts, defendants may be entitled to recover their costs and attorneys' fees expended in defending the first suit and to stay the second suit until payment of those costs. Thus, under the facts of this case, had Plaintiff refiled its complaint in federal court rather than in state court, Defendants immediately would have been eligible for costs and fees. The intended purpose of Rule 41(d) — namely, to deter "forum shopping and vexatious litigation,"see, e.g., Simeone v. First Bank N.A., 971 F.2d 103, 108 (8th Cir. 1992) — is particularly applicable here given that Plaintiff's admitted purpose in voluntarily dismissing the suit was to avoid this court's July 9 and July 12 Orders.
Specifically, Rule 41(d) provides: "If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such an order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order." Attorneys' fees are considered "costs" recoverable under Rule 41(d).
Similarly, under New York State law, had Plaintiff initially filed its action in New York state court, it would have been required to pay defendants' costs and attorneys' fees as a condition of voluntary discontinuance, See N.Y. C.P.L.R. 3217(b).
In addition to the fees and costs assessed against Plaintiff and Massoud, Massoud's egregious and bad faith behavior warrants an additional award of monetary sanction in the amount of $10,000 to be levied against him alone. See, e.g., New Pacific Overseas Group (USA) Inc. v. Excal International Development Corp., 2000 WL 97358 (assessing against plaintiff sanctions consisting of fees and costs attributable to misconduct, plus an additional monetary sanction of $10,000). Not only did Massoud play a key role by orchestrating much of the misconduct described above, but also on numerous occasions he made false representations to this court and to Defendants.
Injunctive Relief
In addition to monetary sanctions, Defendants request that this court issue an injunction barring Plaintiff from further litigating the claims asserted against Defendants. Courts have recognized that a ruling barring further prosecution of a claim may be appropriate in certain circumstances. See, e.g., Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989) ("It strikes us as elementary that a federal district court possesses the inherent power to deny the court's processes to one who defiles the judicial system by committing a fraud on the court."). Although the record in this case clearly establishes that Plaintiff and Massoud have engaged in sanctionable conduct, this court declines to impose this extreme sanction.
Conclusion
For the reasons stated above, Defendants' motion for sanctions is GRANTED IN PART AND DENIED IN PART. This Court ORDERS that Plaintiff and Massoud shall be jointly and severally liable to the Defendants for their reasonable costs and attorneys' fees in defending this action, minus the costs and fees related to securing and reviewing the records of RST. This court further ORDERS that an additional monetary sanction of $10,000 shall be levied against Massoud. Defendants' request that Plaintiff be enjoined from further prosecuting claims arising out of the transactions that are the subject of this action is DENIED. Defendants are ORDERED to propose a schedule to this court by December 21, 2001, pursuant to which they will make submissions concerning the amount of their costs and fees.