United States District Court, E.D. New YorkSep 10, 2003
CV 98-5756 (TCP)(WDW) (E.D.N.Y. Sep. 10, 2003)

CV 98-5756 (TCP)(WDW)

September 10, 2003


WILLIAM WALL, Magistrate Judge

Before the court is a letter dated August 25, 2003 from defendants (collectively "Titleserv") seeking clarification of that portion of the undersigned's Report and Recommendation of August 7, 2003 ("the R R") pertaining to their cross motion for sanctions. The court has also reviewed Plaintiff's opposition letter to the request dated September 2, 2003. The court will treat Titleserv's application as a motion for reconsideration and grants that motion. Upon further review and for the reasons set forth herein, it is again recommended that Titleserv's motion for sanctions be denied.

This Supplemental Report and Recommendation assumes familiarity with the facts of this case as discussed in the earlier R R. Titleserv suggests that the undersigned's recommendation to deny the imposition of sanctions was based solely upon review of plaintiff's action in filing the default judgment since the R R did not specifically address the additional instances of Plaintiff's allegedly sanctionable conduct raised by Titleserv in its motion. The court acknowledges the lack of detail in its finding, but notes that the brevity was in part attributable to Titleserv's counsel's representation at oral argument that "the sanctions only applies [sic] really in my view if the motion for summary judgment is denied." Oral Arg. Tr. p. 40. Counsel's rationale was that should Titleserv be successful on the summary judgment portion of its motion, Titleserv would be entitled to attorneys' fees under the Copyright Law. Since Judge Platt may decline to adopt the recommendation that summary judgment be granted in defendants' favor, however, a more detailed discussion of the recommendation denying the cross motion for sanctions is warranted.

As a threshold matter, the court notes that defendants seek an award of sanctions against plaintiff and his counsel pursuant to both the court's inherent power and 28 U.S.C. § 1927. While sanctions under § 1927 may be imposed upon attorneys only and not their clients, the court's inherent power to sanction extends to both parties and attorneys. See, e.g., Olivieri v. Thompson, 803 F.2d 1265 (2d Cir. 1986), cert. denied sub nom. Suffolk County v. Graseck, 480 U.S. 918 (1987). Accordingly, the within references to "plaintiff's" conduct shall include the conduct of his attorneys.

The Second Circuit has stated that the award of sanctions must be supported by a finding of bad faith. Oliveri, 803 F.2d at 1273. Actions are sanctionable under § 1927 when they are "so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose . . ." Id. Defendants cite five examples of plaintiff's allegedly sanctionable conduct: 1) the making of the Rule 37 default motion, 2) the making of a motion to compel defendant Conway's testimony about Conway's alleged drug use, 3) Plaintiff's attempts to hold defendants in contempt of court, 4) Plaintiff's attempt to unilaterally file a "joint" pretrial order, and 5) Plaintiff's dilatory tactics in attempting to preclude defendants' expert from reviewing Plaintiff's source codes.

The court has reviewed all the papers and examples set forth by defendants and finds that although Plaintiff's counsel has strayed close to the line while attempting to zealously represent his clients, the record does not support a finding of bad faith. While several of the motions made by plaintiff can be characterized as ill — advised, the court notes that they are, in part, the result of the inexplicable contentiousness that has marked this entire litigation. The history of this case is rife with examples of regrettable conduct on both parties' parts, and the attorneys' inability to communicate has repeatedly created discord and delay. The court finds that, in the context of this case, the Plaintiff's conduct is not sanctionable. Accordingly, it is respectfully recommended that Titleserv's cross motion for sanctions be DENIED.


A copy of the Supplemental Report and Recommendation is being sent by the Court to all parties. Any objections to this Supplemental Report and Recommendation must be filed with the Clerk of the Court with a courtesy copy to the undersigned within 10 days of service. Failure to file objections within this period waives the right to appeal the District Court's Order. See 28 U.S.C. § 6 36(b)(1); Fed.R.Civ.P. 72; Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).