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noting that the Supreme Court "has discouraged the awarding of attorney fees and costs where the defendant is the prevailing party"
Summary of this case from Anania v. United StatesOpinion
17 Civ. 2695 (GHW) (GWG)
02-12-2019
SHAWN NARDONI, Plaintiff, v. THE CITY OF NEW YORK and DETECTIVE DAVID TERRELL, Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge
Plaintiff Shawn Nardoni, through his mother, brought an action for false arrest, malicious prosecution, and municipal liability under 42 U.S.C. § 1983. After more than a year of discovery and motion practice, the district court granted summary judgment in favor of the defendants. The defendants now move for sanctions and attorney's fees and costs under Rule 11 of the Federal Rules of Civil Procedures, 42 U.S.C. § 1988(b), 28 U.S.C. § 1927, and the court's inherent power. For the reasons that follow, the defendants' motions should be denied.
See Notice of Motion for Sanctions and Fees Pursuant to F.R.C.P 11 and 42 U.S.C. § 1988(b), filed Oct. 10, 2018 (Docket # 103) ("Notice of Motion"); Declaration of Joseph Gutmann in Support of Defendants' Motion for Sanctions and Fees Pursuant to F.R.C.P 11 and 42 U.S.C. § 1988(b), filed Oct. 10, 2018 (Docket # 104) ("Gutmann Decl."); Defendants' Memorandum of Law in Support of their Motion for Sanctions and Fees Pursuant to F.R.C.P 11 and 42 U.S.C. § 1988(b), filed Oct. 10, 2018 (Docket # 105) ("Def. Mem."); Memorandum of Law in Opposition to Defendant's [sic] Motion for Sanctions Cost and Attorneys Fees, filed Nov. 10, 2018 (Docket # 114) ("Pl. Opp."); Declaration of Chukwuemeka Nwokoro, filed Nov. 10, 2018 (Docket # 115) ("Nwokoro Decl."); Letter from Joseph Gutmann, filed Nov. 19, 2018 (Docket # 116) ("Gutmann Letter"); Defendants' Reply Memorandum of Law in Further Support of Their Motion for Sanctions and Fees Pursuant to F.R.C.P 11 and 42 U.S.C. § 1988(b), filed Nov. 23, 2018 (Docket # 118) ("Def. Reply"); Letter from Chukwuemeka Nwokoro, filed Nov. 27, 2018 (Docket # 119) ("Nwokoro Letter").
I. BACKGROUND
A. Relevant Factual History
The facts relevant to Nardoni's claims were summarized by the district court in its opinion granting the defendants summary judgment as follows:
The documents cited refer to the parties' submission in connection with the motion for summary judgment. Nardoni v. City of New York, 331 F. Supp. 3d 116, 119 n.1 (S.D.N.Y. 2018).
On or about September 1, 2015, Plaintiff was shot in the leg. Pl.'s Rule 56.1 Counterstatement (ECF No. 90) ("Pl.'s 56.1") ¶ 1. He was admitted to a hospital for treatment. Id.; Second Am. Compl. (ECF No. 54) ("SAC") ¶ 8. Plaintiff spent approximately three days in the hospital before being released. Declaration of Joseph Gutmann (ECF No. 86), Ex. B ("Pl.'s Dep.") at 64:17-23. Shortly after being released from the hospital, on either September 4 or 5, 2015, Plaintiff was sitting outside of his apartment building in the Bronx with a friend when he was arrested by two or three members of the [New York Police Department, or] NYPD. Pl.'s Dep. at 66:13-15, 77:12-20; SAC ¶¶ 9-10. A "brown-skinned" female NYPD officer "grabbed [his] hands and put [him] in handcuffs" and then drove Plaintiff to the 42nd Precinct. Pl.'s Dep. at 77:9-11, 79:8-9, 82:23-83:9.
Once at the 42nd Precinct, Plaintiff was placed in a cell. Pl.'s Dep. at 83:10-11. At some point after that, Detective Terrell took Plaintiff from his cell to another room where Detective Terrell questioned Plaintiff. Pl.'s 56.1 ¶ 4; Pl.'s Dep. at 83:10-13, 84:8-16. According to Plaintiff's deposition testimony, Detective Terrell kept Plaintiff in this room for three or four hours and "badgered" Plaintiff in an attempt to solicit from him the name of the individual who shot him. Pl.'s 56.1 ¶ 5; Pl.'s Dep. at 85:1-8. Despite Plaintiff's response that he did not know his shooter's identity, Detective Terrell "tried to force [Plaintiff] to say it was some kid," Pl.'s Dep. at 84:20-21, and "kept on repeating the same stuff trying to force [Plaintiff] to say something that [Plaintiff] did not know," id. at 85:1-3. During the interrogation, Detective Terrell also threatened to kick Plaintiff's head through the wall and punch Plaintiff in the face. Pl.'s 56.1 ¶ 6; Pl.'s Dep. at 84:21-22.
Following the interrogation, Detective Terrell returned Plaintiff to his cell. Pl.'s 56.1 ¶ 7. Plaintiff was not taken to court or to central booking in connection with his arrest. Pl.'s Dep. at 101:15-18, 125:7-126:8.
On January 6, 2016, Plaintiff was interrogated by Detective Corinne MacLennan at the 42nd Precinct in another attempt to discover the name of the individual who
shot him. Pl.'s 56.1 ¶ 20; Declaration of Chukwuemeka Nwokoro (ECF No. 88) ("Nwokoro Decl."), Ex. A at 47. During that interrogation, Plaintiff stated that "he ha[d] no idea who shot him." Nwokoro Decl., Ex. A at 47.Nardoni v. City of New York, 331 F. Supp. 3d 116, 119-20 (S.D.N.Y. 2018) (first alteration added; footnotes omitted).
It is undisputed that Detective Terrell did not arrest Plaintiff on either September 4 or 5, 2015. Pl.'s 56.1 ¶ 9. It is also undisputed that Detective Terrell did not order, instruct, plan, or facilitate an arrest of Plaintiff on either September 4 or 5, 2015. Id. ¶ 10.
B. Procedural History
Plaintiff, by his mother and guardian, filed the original complaint in this case on April 14, 2017. See Complaint (Docket # 1) ("Compl."). The complaint asserted claims of false arrest and malicious prosecution under Section 1983 against Detective David Terrell and a Jane Doe officer, Compl. ¶¶ 7, 28-51, as well as a claim that the City was responsible for the alleged violations under Monell v. Department of Social Services, 436 U.S. 658 (1978), see Compl. ¶¶ 8, 52-68. On December 21, 2017, the defendants moved to dismiss the complaint for failure to state a claim, see Docket ## 31-32, but withdrew the motion after plaintiff filed an amended complaint in response, see Docket ## 37, 38, in which plaintiff named Detective Corinne MacLennan, previously named as the "Jane Doe" officer, as a defendant. On February 9, 2018, two days after defendants conducted their deposition of the plaintiff, plaintiff filed a second amended complaint naming the City of New York, Detective Terrell and Detective MacLennan as defendants. See Second Amended Complaint, filed Feb. 9, 2018 (Docket # 54) ("Second Am. Compl."); Gutmann Decl. In that complaint, plaintiff alleged, inter alia, that the two detective defendants improperly arrested him "in order to coerce plaintiff into providing false testimony . . . ." Second Am. Compl. ¶ 22.
On May 17, 2018, the defendants sent a letter to plaintiff demanding that plaintiff withdraw "the claims" in the Second Amended Complaint, and enclosing a notice of motion pursuant to Fed. R. Civ. P. 11(c). See Letter from Joseph Gutmann, dated May 17, 2018 (annexed as Exhibit D to Gutmann Decl.) ("May 17 Letter"); see also Letter from Joseph Gutmann, dated Jan. 8, 2019 (Docket # 122) ("Jan. 8 Letter") (annexing the notice of motion). In the May 17 Letter, defendants contended that plaintiff was not arrested on September 4, 2015, given that there was no arrest record for that date. Id. at *2. They also contended that Detective MacLennan could not be the officer who initiated the arrest because while plaintiff "testified under oath at his deposition that he was arrested by a brown-skinned female officer[,] Detective MacLennan is Caucasian." Id. Finally, they contended that any "claim" against Detective Terrell that plaintiff's arrest was undertaken at Detective Terrell's behest was without evidentiary support or, as the letter put it, "fabricated by" plaintiff's counsel. Id. at *2. The letter concluded by demanding that plaintiff withdraw "the claims" in the Second Amended Complaint. Id. at *3. The letter noted that the lack of any claims against individual defendants would mean that any Monell claim would have to be dismissed as well. Id. The letter did not, however, make any argument that the Monell claim would have to be dismissed even if any claim against an individual officer could proceed.
Page numbers identified by "*___" refer to the pagination provided by the Court's ECF system.
On May 31, 2018, plaintiff stipulated to a dismissal with prejudice of the action against Detective MacLennan, and the malicious prosecution claim as to all defendants. See Stipulation and Order of Withdrawal and Voluntary Dismissal of Certain Causes of Action, filed May 31, 2018 (Docket # 83). Plaintiff still maintained his claim against Detective Terrell and the City of New York based on the alleged false arrest.
On June 6, 2018, defendants moved for summary judgment on the false arrest and municipal liability claim. See Docket ## 84-90, 93-94. On August 7, 2018, the district court granted defendants' motion for summary judgment. See Nardoni, 331 F. Supp. 3d at 129.
C. The Instant Motion
On October 10, 2018, defendants filed the instant motion seeking (1) sanctions against plaintiff's counsel, pursuant to Rule 11(c) of the Federal Rules of Civil Procedure; and (2) attorneys' fees and costs pursuant to 42 U.S.C. § 1988(b). Notice of Motion; Def. Mem. at 1. They did so on the ground that plaintiff improperly pursued a claim against Detective Terrell for false arrest, despite "being provided with a plethora of evidence over the course of discovery, including [plaintiff]'s own sworn testimony," that plaintiff was never arrested or detained by any member of the NYPD. Def. Mem. at 1.
On November 19, 2018, defendants wrote a letter to the court asking that additional sanctions be imposed against plaintiff's counsel "pursuant to 28 U.S.C. § 1927 and/or the Court's inherent authority." Gutmann Letter. This request was based on plaintiff's filing of an exhibit in connection with the instant motion that contained confidential information (an index of Detective Terrell's Civilian Complaint Review Board ("CCRB") history) in "violation of . . . the Court's January 24, 2018 Order in this matter that the document in question remain sealed until further order from the Court." Id.; see Nwokoro Decl. (listing as "Exhibit 2 . . . a copy of Detective Terrell's CCRB history"); January 24, 2018 Order (Docket # 48). In response, on November 20, 2018, the court ordered that the exhibit be sealed and that plaintiff respond to defendants' argument that additional sanctions were warranted for posting Exhibit 2 on ECF. See Order, filed Nov. 20, 2018. Plaintiff filed a letter in response on November 27, 2018, in which plaintiff's counsel stated that the filing of the exhibit "was not a conscious malicious act but pure inadvertence." Nwokoro Letter.
II. DISCUSSION
We next address defendants' claims for sanctions and attorney's fees under Fed. R. Civ. P. 11, 42 U.S.C. § 1988(b), 28 U.S.C. § 1927, and the Court's inherent authority.
A. Attorney's Fees Pursuant to Fed. R. Civ. P. 11
Federal Rule of Civil Procedure 11 states in relevant part:
By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:Fed. R. Civ. P. 11(b). Violation of this rule may result in sanctions. See Fed. R. Civ. P. 11(c); accord Lawrence v. Richman Grp. of CT LLC, 620 F.3d 153, 156 (2d Cir. 2010) (per curiam) (citing Fed. R. Civ. P. 11(c)(1)) ("A court may sanction an attorney, law firm, or party that violates Rule 11(b), but only after providing notice and a reasonable opportunity to respond.").
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
The Second Circuit has stated that a pleading "violates Rule 11 . . . where, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law." Kropelnicki v. Siegel, 290 F.3d 118, 131 (2d Cir. 2002) (internal quotation marks and citations omitted); accord Ferguson v. Comm'r of Tax & Fin., 739 F. App'x 19, 21-22 (2d Cir. 2018). "With respect to legal contentions, '[t]he operative question is whether the argument is frivolous, i.e., the legal position has no chance of success, and there is no reasonable argument to extend, modify or reverse the law as it stands.'" Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 682 F.3d 170, 177 (2d Cir. 2012) (quoting Fishoff v. Coty Inc., 634 F.3d 647, 654 (2d Cir. 2011)) (additional quotation marks and citations omitted) (alteration in original); accord Ferguson, 739 F. App'x at 22; Healey v. Chelsea Res., Ltd., 947 F.2d 611, 626 (2d Cir. 1991); Rubenstein v. Live Nation Entm't, 272 F. Supp. 3d 544, 546 (S.D.N.Y. 2017).
"The standard for triggering the award of fees under Rule 11 is objective unreasonableness and is not based on the subjective beliefs of the person making the statement." Star Mark, 682 F.3d at 177 (internal quotation marks, alteration, and citation omitted); accord Adams v. New York State Educ. Dep't, 2010 WL 4970011, at *7 (S.D.N.Y. Dec. 8, 2010), aff'd 547 F. App'x 9 (2d Cir. 2013); see also In re Australia & New Zealand Banking Grp. Ltd. Sec. Litig., 712 F. Supp. 2d 255, 266 (S.D.N.Y. 2010) ("Rule 11 thus forbids counsel from asserting an 'empty-head-but-pure-heart defense' as justification for frivolous legal or factual claims.") (citation omitted).
While Rule 11 sanctions are evaluated under an objective reasonableness standard, "a litigant's obligations with respect to the contents of . . . papers are not measured solely as of the time they are filed with or submitted to the court, but include reaffirming to the court and advocating positions . . . after learning that they cease to have any merit." Galin v. Hamada, 2018 WL 4816772, at *3 (2d Cir. Oct. 4, 2018) (summary order) (second ellipsis added) (quoting Fed. R. Civ. P. 11 Advisory Committee's Note (1993)); accord Bunnell v. Haghighi, 183 F. Supp. 3d 364, 372-73 (E.D.N.Y. 2016).
Nevertheless, Section 11(c) "provides filers with a 'safe harbor' from sanctions, in that a [sanctions] motion not only must specify the conduct for which sanctions are sought but must not be presented to the court until the alleged violator is afforded twenty-one days to withdraw or correct the offending document." Lawrence, 620 F.3d at 156 (additional citation omitted); accord Fierro v. Gallucci, 423 F. App'x 17, 18-19 (2d Cir. 2011) (summary order). "This so called safe-harbor provision affords the offending party an opportunity to withdraw, or otherwise correct, the challenged paper, claim, defense, contention, or denial before the motion is filed." Adams, 2010 WL 4970011, at *7 (internal quotation marks and citations omitted). "The safe-harbor provision is a strict procedural requirement," Star Mark, 682 F.3d at 175, and therefore "[a]n informal warning in the form of a letter without service of a separate Rule 11 motion is not sufficient to trigger the 21-day safe harbor period, id. (citing L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 89-90 (2d Cir. 1998) (additional citations omitted); accord Castro v. Mitchell, 727 F. Supp. 2d 302, 307-08 (S.D.N.Y. 2010).
With respect to the range of options available in awarding sanctions, Rule 11 provides that
[a] sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.Fed. R. Civ. P. 11(c)(4). Finally, Fed. R. Civ. P. 11(c)(1) provides that if "the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation."
Defendants here took advantage of a Second Circuit holding in Star Mark allowing a Rule 11 movant to comply with Rule 11(c)(2)'s "safe harbor" provision by serving merely a letter accompanied by a notice of motion rather than serving the actual Rule 11 motion papers themselves. See May 17 Letter, at *1 (citing Star Mark, 682 F.3d at 176). Nonetheless, Lawrence teaches that the warning given to the non-movant must "specify the conduct for which sanctions are sought." Lawrence, 620 F.3d at 156 (emphasis added). Were the rule to be otherwise, the Rule 11 movant would have carte blanche to seek sanctions for any conduct, even conduct for which the non-movant had not been provided notice, thereby vitiating the purpose of the safe harbor provision.
Thus, in Star Mark itself, the Second Circuit allowed the letter to satisfy the rule because the letter motion "rested on substantially the grounds set forth in the earlier notice of motion." 682 F.3d at 176.
In this case, the notice of motion was devoid of any description of the offending conduct. See Notice of Motion for Sanctions Pursuant to [Fed. R. Civ. P. 11] (annexed as Exhibit A to Jan. 8 Letter). Defendants' "safe harbor" letter demanded that plaintiff dismiss only his "claims" against the defendants — not that he amend his complaint to omit allegations or that he correct any oral representations made in court. See May 17 Letter. Accordingly, we consider defendants' arguments for sanctions only insofar as they address plaintiff's pursuit of his claim for false arrest against Detective Terrell. In other words, we do not consider defendants' claims for sanctions based on particular allegations in the Second Amended Complaint or any oral representations made in court.
As noted previously, defendants made no argument in their "safe harbor" letter that there was a basis for dismissal of the Monell claim other than the lack of a claim against any individual defendants.
With these arguments stripped from their motion, defendants' application for Rule 11 sanctions rests on two contentions: (1) that plaintiff had no basis for contending that he had been falsely arrested in September 2015; and (2) that even if there was basis for such a claim, plaintiff had no basis for arguing that Detective Terrell was legally responsible for that arrest.
As to the first issue, defendants assert that "[p]laintiff was not arrested nor informally detained at all by any member of the New York City Police Department in September of 2015 nor was he ever arrested or formally detained in August, October, or November of 2015." Def. Mem. at 1. Defendants argue that because "there were no documents responsive to any of the releases plaintiff's counsel had provided" relating to arrest records, it was "therefore clear that his client had not been arrested on or about September 4, 2015 as alleged." Id. at 3; see also id. at 5 ("defendants produced to plaintiff's counsel a list of plaintiff's arrests by the New York City Police Department" and "[t]his list did not include any arrests in September 2015") (citing Docket # 72-2). The May 17 Letter similarly refers to the fact that there were no records of an arrest or any court proceeding in September 2015. May 17 Letter, at *2.
We reject defendants' argument because the plaintiff was unequivocal in his deposition testimony that he had been taken to the precinct house in September 2015 in handcuffs, and was kept there for at least three hours, when he had every reason believe he was not free to leave. Deposition of Shawn Nardoni, dated February 7, 2018 (annexed as Exhibit B to Gutmann Decl.) ("Nardoni Dep."), at 79-80, 82-83, 85. These actions meet the legal elements of a false arrest, which were described by the district judge in this case as follows:
A false arrest claim under Section 1983, premised on an individual's right under
the Fourth Amendment to be free from unreasonable seizures, "is substantially the same as a claim for false arrest under New York law." Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). Under New York law, a plaintiff seeking to establish a cause of action for false arrest must show that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged, such as by probable cause or a warrant. Willey v. Kirkpatrick, 801 F.3d 51, 70-71 (2d Cir. 2015) (citing Broughton v. State of New York, 37 N.Y.2d 451, 456[ ] (1975)).Nardoni, 331 F. Supp. 3d at 122 (additional citations omitted). Here, according to his deposition testimony, plaintiff was confined intentionally by some police officer, plaintiff was conscious of the confinement, and he did not consent to the confinement. See Nardoni Dep. at 79-86. As to the fourth element, defendants have not argued that, if plaintiff was arrested, it was on the basis of probable cause or a warrant, or that it was otherwise privileged. Thus, counsel had a reasonable basis on which to argue that plaintiff had been falsely arrested.
The harder question is whether there was an objectively reasonable basis to pursue the false arrest claim against Detective Terrell. Strangely, plaintiff's opposition papers on this motion address only the first issue — whether there was a basis for arguing there had been an arrest — but do not address whether plaintiff could properly argue that Detective Terrell was personally involved in the arrest. See Pl. Opp. Notwithstanding this failure, we note that plaintiff's brief in opposition to the summary judgment motion addressed this contention directly, arguing that:
Although plaintiff has not submitted any direct proof that Detective Terrell procured his illegal seizure, the fact [that] during this seizure Detective Terrell interrogated the plaintiff for more than three hours and attempted to coerce him into giving false testimony, supports a legitimate inference that this interrogation is the reason for the false arrest and that the interrogator, Detective Terrell, arranged the false arrest.Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, filed July 4, 2018 (Docket # 89), at 6; accord id. at 2 ("A permissible inference can also be made that since the only thing that happened during plaintiff's detention, was his interrogation by Detective Terrell, it is fair to conclude that Detective Terrell procured plaintiff's unlawful detention for that purpose.").
Having made the argument in opposition to the summary judgment motion that there was evidence allowing the inference that Detective Terrell "arranged" the arrest, plaintiff's Rule 56.1 counterstatement — filed on the same date — inexplicably "admitted" defendants' contention that "Detective Terrell did not order, instruct, plan or facilitate an arrest of the plaintiff on either September 4, 2015 or September 5, 2015." Plaintiff's Statement of Contested Facts Pursuant to Rule 56.1(b) of the Local Rules for the Southern and Eastern Districts of New York, filed July 4, 2018 (Docket # 90), ¶ 10 (citations omitted). Defendants understandably seize on this admission as proof that plaintiff had no reasonable basis for claiming that Detective Terrell was personally involved in the constitutional violation. See Def. Mem. at 12; Def. Reply at 5.
Nonetheless, given the fact that Rule 11 sanctions are evaluated on an objective basis, we do not believe that the admission in the Rule 56.1 counterstatement should be taken as dispositive of defendants' motion for sanctions in light of the arguments made by plaintiff's counsel in the summary judgment opposition brief itself. Instead, we ask simply whether the evidence in the record gave plaintiff's counsel an objectively reasonable basis to argue that a reasonable jury could infer that Detective Terrell procured the arrest.
After examining the evidence in this case, we believe that there was an objectively reasonable basis — even if it was unmeritorious — to make such an argument. The evidence favorable to plaintiff showed that the police were investigating a shooting in which plaintiff was the victim, and that plaintiff was not cooperating in responding to the officers' investigation; see NYPD Complaint Reports, dated 09/01/2015, 09/03/2015, 09/06/2015, 09/21/2015, 11/05/2015, and 01/06/2016 (annexed as Exhibit 4 to Nwokoro Decl.); that officers arrested plaintiff at a time when he was merely leaning against a car eating "chips," Nardoni Dep. at 69, 76; that plaintiff was handcuffed, transported to a precinct house, and put in a cell, id. at 79, 82-83; and that shortly thereafter he was taken from the cell by Detective Terrell to another room where he was aggressively questioned for three or four hours about the shooting incident, and subjected to a threat by Detective Terrell to push his face into a wall, id. at 84-85. Certainly, as plaintiff admitted, see id. at 85-86, he had no personal knowledge that Detective Terrell procured his arrest. But it is not a far stretch to argue that the circumstances of his arrest and questioning — most obviously, that he was arrested for no reason and then was immediately questioned extensively by Detective Terrell — could allow a jury to find that Detective Terrell had procured the arrest. Even if this argument failed to persuade the district court on the summary judgment motion, we cannot say that a reasonable attorney would conclude that the argument that a jury could draw this inference had "no chance of success." Star Mark, 682 F.3d at 177.
B. Awarding Attorney's Fees Pursuant to 42 U.S.C. § 1988
We next consider defendants' argument that they are entitled to attorney's fees and costs as prevailing parties pursuant to 42 U.S.C. § 1988. See Def. Mem. at 11-13.
"The general rule in our legal system is that each party must pay its own attorney's fees and expenses." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 (2010) (citing Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)). However, section 1988(b) states that in federal civil rights actions, "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee." Green v. Torres, 361 F.3d 96, 98 (2d Cir. 2004) (alteration in original). "While the United States Supreme Court has interpreted Section 1988(b) as a proper measure of relief for a prevailing party plaintiff, it has discouraged the awarding of attorney fees and costs where the defendant is the prevailing party." Pruitt v. Carney, 54 F. Supp. 2d 169, 171 (E.D.N.Y. 1999) (citing Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam) and Christiansburg Garment Co. v. Equal Emp't Opportunity Comm'n, 434 U.S. 412, 422 (1978)); accord LeBlanc-Sternberg v. Fletcher, 143 F.3d 765, 769-70 (2d Cir. 1998).
In Christiansburg, the Supreme Court
articulated two strong equitable considerations for permitting routinely an award of fees to prevailing plaintiffs that are wholly absent when a defendant prevails. First, the plaintiff is the chosen instrument of Congress to vindicate a policy that Congress considered of the highest priority. Second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law.LeBlanc-Sternberg, 143 F.3d at 769-70 (internal quotation marks and citations omitted).
Accordingly, "fees are not to be awarded to a prevailing defendant unless the plaintiff's action was 'frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so.'" LeBlanc-Sternberg, 143 F.3d at 770 (quoting Christiansburg, 434 U.S. at 421-22); accord CRST Van Expedited, Inc. v. E.E.O.C., 136 S. Ct. 1642, 1646 (2016). A claim is frivolous when it lacks an arguable "legal or factual basis." Fox v. Vice, 563 U.S. 826, 833 (2011) (quoting Christiansburg, 434 U.S. at 420).
The determination as to whether a claim was frivolous, unreasonable, or groundless is not a purely factual inquiry. Questions as to what allegations were made and what evidence was presented are questions of fact; but the determination as to whether the claims were frivolous, unreasonable, or groundless requires an evaluation of the allegations and the proof in light of the controlling principles of substantive law.LeBlanc-Sternberg, 143 F.3d at 770.
We have already discussed why the plaintiff's claim in this case had an arguable basis in law. Moreover, plaintiff voluntarily dismissed certain other claims after their lack of merit was pointed out by defendants. Under these circumstances, an award to defendants under section 1988 is not appropriate.
C. Additional Sanctions Under 28 U.S.C. § 1927 and the Court's Inherent Power
Defendants also seek sanctions based on plaintiff's conduct in posting to ECF an exhibit consisting of Detective Terrell's CCRB history, which the court had previously ordered sealed. See Gutmann Letter; Docket # 47.
"The only difference between a sanctions award under § 1927 and a court's inherent power is that 'awards under § 1927 are made only against attorneys or other persons authorized to practice . . . while an award made under the court's inherent power may be made against an attorney, a party, or both.'" United States v. Prevezon Holdings, Ltd., 305 F. Supp. 3d 468, 478 (S.D.N.Y. 2018) (quoting Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986)). "As a consequence, requests for sanctions under Section 1927 and pursuant to the court's inherent authority may be decided in a single inquiry." Prevezon Holdings, 305 F. Supp. 3d at 479 (internal quotation marks and citation omitted). The Second Circuit has held that "[t]o impose sanctions under either authority, a court must find clear evidence that (1) the offending party's claims were entirely without color, and (2) the claims were brought in bad faith — that is, motivated by improper purposes such as harassment or delay." Eisemann v. Greene, 204 F.3d 393, 396 (2d Cir. 2000) (internal quotation marks and citation omitted).
Here, defendants have hardly made a showing by "clear evidence" that plaintiff's counsel acted in bad faith or with an improper purpose. In his November 27, 2018, letter, plaintiff explained that the posting on ECF of the exhibit containing Detective Terrell's CCRB history "was not a conscious malicious act but pure inadvertence." See Nwokoro Letter. Plaintiff obtained no advantage by filing this letter. We thus reject defendants' contention that there "can be no reasonable conclusion other than to find that plaintiff's counsel is acting in bad faith, vexatiously, wantonly, or for oppressive reasons." See Gutmann Letter. Accordingly, defendants' motion for sanctions under 28 U.S.C. § 1927 and the court's inherent power should be denied.
III. CONCLUSION
Defendants' motion for sanctions (Docket # 103) should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court, with copies sent to the Hon. Gregory H. Woods at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections or responses must be directed to Judge Woods. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Fed. R. Civ. P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). Dated: February 12, 2019
New York, New York
/s/_________
GABRIEL W. GORENSTEIN
United States Magistrate Judge