Appeal from a judgment of the United States District Court for the Southern District of New York (David N. Edelstein, Judge), denying plaintiff-appellant's motion under Fed. R. Civ. P. 60(b) for relief from judgment, and granting defendants-appellees' cross-motion for attorney's fees under Fed. R. Civ. P. 11. Affirmed in part, reversed in part and remanded with instructions.
Van Graafeiland and Altimari, Circuit Judges, and Mukasey, District Judge.*fn*
Plaintiff-appellant Mishael Maduakolam, pro se, appeals from a judgment of the United States District Court for the Southern District of New York (Edelstein, J.), denying his motion under Fed.R.Civ.P. 60(b) to vacate the prior dismissal of his case, and granting defendants-appellees' cross-motion for attorney's fees pursuant to Fed.R.Civ.P. 11. In his complaint filed on September 10, 1982, plaintiff, then represented by an attorney, sought money damages and declaratory and injunctive relief under 42 U.S.C. §§ 1981 and 1985 to redress alleged violations by Columbia University. Maduakolam, who is Black and of African nationality, alleged that certain professors in the Columbia University School of Engineering and Applied Science discriminated against him by reason of his race and ethnicity in administering his doctoral qualifying examinations. Four years after the dismissal of his action in the district court for want of prosecution, Maduakolam moved to "reopen [the] case." Defendant claimed that plaintiff was continuing to pursue the action "vexatiously and in bad faith," and cross-moved for attorney's fees under Rule 11. In its order dated June 2, 1988, the district court denied plaintiff's motion and granted defendants' cross-motion. For the reasons set forth below, we affirm the judgment of the district court denying plaintiff's motion under Rule 60(b), and we reverse the imposition of attorney's fees.
Plaintiff Mishael Maduakolam, a Nigerian national residing in the United States, attended Columbia University ("Columbia") as a doctoral candidate in the School of Engineering and Applied Science from the Fall of 1977 through September of 1979. In order to obtain a doctorate in Civil Engineering, Columbia students were required to sit for a qualifying examination. A candidate was required to receive a passing grade on four of six exam questions submitted and graded by various professors in the School of Engineering. Maduakolam took the qualifying examination in January 1979. He was graded a "Pass" on three questions. However, he received an "F " on the question graded by defendant Bieniek.
Maduakolam protested the failing score to Bieniek. Columbia gave him the option of retaking the qualifying exam. In September 1979, he retook the exam, again receiving three passing grades, and an "F" from Bieniek. This time, Maduakolam sought an independent review of his grade from defendant Shinozuka, Chairman of the Doctoral Qualifying Examination Committee. Shinozuka appointed defendants DiMaggio and Testa to conduct the review. The failing grade was subsequently upheld.
Maduakolam commenced the underlying action for monetary, declaratory and injunctive relief in September 1982, stating claims under 42 U.S.C. §§ 1981 and 1985, and a pendent state law contract claim. For his first cause of action, plaintiff alleged that Columbia breached an "implied contract" to provide education and services leading to a doctoral degree in engineering, by terminating him upon "arbitrary, malicious, unfair and inequitable terms." In support of his discrimination claims, he alleged that defendant Bieniek "consistently graded African students taking the qualifying exam for the first time with failing scores on every exam question he has graded [from] 1972 until 1982." He alleged that, in contrast, Bieniek "never failed a white doctoral candidate." Citing similar instances of allegedly improper conduct, Maduakolam claimed the graduate program was administered in a racially biased manner.
Following a pretrial conference at which a discovery schedule was prepared, Maduakolam left the United States for Nigeria. Attorney Lawrence S. Cumberbatch moved in the district court to be withdrawn as Maduakolam's counsel. Citing Maduakolam's failure to appear at two scheduled depositions, Columbia cross-moved for dismissal of the action. By order dated April 21, 1983, the district court dismissed the complaint for want of prosecution. The court denied Cumberbatch's motion to withdraw as counsel. Notwithstanding the denial of his motion, Cumberbatch considered that his status as plaintiff's attorney ceased as of the dismissal of the action. Upon his return from Nigeria in early 1985, Maduakolam was informed by Cumberbatch that the case had been dismissed. Thereafter, he proceeded pro se.
Sometime after his return to the United States, Maduakolam sought to take an external qualifying examination in order to be licensed as an engineer. In order to take the examination, he needed supporting signatures from his former Columbia professors, including Bieniek. His requests for these signatures were refused. Maduakolam requested mediation of the dispute from Columbia's Office of Equal Opportunity, and Morton Friedman, Chairman of Columbia's Department of Civil Engineering. Neither Friedman nor the Office of Equal Opportunity responded to these requests.
On November 18, 1986, Maduakolam filed suit in the Civil Court of New York, naming the "Accounts Department of Columbia University" as the defendant. He sought a tuition refund in the amount of $17,664.00, claiming that his graduate program had been "incongruously administered." Columbia advanced counterclaims, the nature of which are not relevant to this appeal. After Maduakolam failed to appear at a scheduled conference in Civil Court, a default judgment was entered against him on March 3, 1987. A motion to set aside the default judgment was denied when Maduakolam failed to appear on the return date.
On April 21, 1987, four years to the day from the order dismissing his federal action, Maduakolam submitted a motion in the district court to "reopen [his] case." Columbia cross-moved for sanctions and attorney's fees under Fed.R.Civ.P. 11. The court, sua sponte, treated Maduakolam's motion as one made pursuant to Fed.R.Civ.P. 60(b)(1). Noting that Maduakolam had delayed for four years in seeking relief from the 1983 order, and finding no reason to excuse the delay, the court denied the 60(b)(1) motion. The court also concluded that the motion was "frivolous and vexatious." In reaching this conclusion, the court took note of Maduakolam's Civil Court action and the accompanying default judgment. Accordingly, it awarded Columbia attorney's fees in the amount of $3,243.50.
On appeal, Maduakolam contends that his delay was excusable because of the "ethical problems" involved in pursuing litigation while trying to secure signatures in support of his licensing exam. He also contends that the award of attorney's fees against him was inequitable given the expenses ...