The opinion of the court was delivered by: Kimba M. Wood, District Judge.
In this case, presuming the allegations in the complaint to
be true, plaintiff filed his complaint with both the EEOC
and the SDHR. Complaint ¶ 7 ("ROBERT NAGLE timely
filed on September 2, 1989 a Charge of Discrimination with the
New York Department of Human Relations [sic] and with
the Equal Employment Opportunity Commission"). The SDHR never
dismissed plaintiff's complaint on the ground of
"administrative convenience." Therefore, his pendent state law
claim is barred by the election of remedies provision.*fn2
Defendants move for sanctions pursuant to both Rule 11 and
28 U.S.C. § 1927 ("§ 1927"). Rule 11 requires that
requires every pleading be signed by a party or his or her
attorney. That signature
In determining whether Rule 11 sanctions should be imposed
against an attorney, the court applies a "test of objective
reasonableness" rather than a test of subjective bad faith.
See Cross & Cross Properties, Ltd. v. Everett Allied
, 504 (2d Cir. 1989); Greenberg v.
Hilton International Co.,
(2d Cir. 1989).
Similarly, if a represented party signs a pleading, motion, or
other paper, whether the party's signature is required or is
provided voluntarily, the court applies a test of objective
reasonableness under the circumstances and may award sanctions
against the party if the party did not conduct a reasonable
inquiry. Business Guides v. Chromatic Communications,
___ U.S. ___, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991).
In applying a test of objective reasonableness with respect
to an attorney's actions, the Second Circuit has held that
sanctions are warranted where:
Princess Fabrics, Inc. v. CHF, Inc.,
(2d Cir. 1990) (citation omitted); Mareno v. Rowe,
, 1047 (2d Cir. 1990), cert. denied, ___ U.S.
Thus, "sanctions shall be imposed when it appears that a
competent attorney could not form the requisite reasonable
belief as to the validity of what is asserted in the papers. .
. ." Oliveri v. Thompson, 803 F.2d 1265, 1275 (2d Cir.
1986), cert. denied, 480 U.S. 918, 107 S.Ct. 1373, 94
L.Ed.2d 689 (1987) (citations omitted). See also O'Malley
v. New York City Transit Authority, 896 F.2d 704, 706 (2d
Finally, in determining the appropriateness of imposing Rule
11 sanctions, the Second Circuit in Cross held that
the objective merits of each individual claim must be examined
and that sanctions may not be avoided because the pleading
as a whole has merit.Cross, supra, 886 F.2d
Section 1927 provides:
Any attorney or other person admitted to conduct
cases in any court of the United States or any
Territory thereof who so multiplies the
proceedings in any case unreasonably and
vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and
attorneys' fees reasonably incurred because of
However, "an award made under § 1927 must be supported by
a finding of bad faith similar to that necessary to invoke the
court's inherent power." Oliveri, 803 F.2d at 1273
Defendants argue that plaintiff's counsel, Mr. William R.
Amlong, did not conduct a reasonable inquiry into the law
regarding New York's election of remedies provision in bringing
and maintaining plaintiff's Human Rights claim. Defense counsel
also contends that maintaining this claim in the fact of
adverse precedent was done in bad faith. To support this
allegation, defendants point to Mr. Amlong's letter to defense
counsel, dated January 24, 1991, in which he states,
"[a]lthough I previously objected to your request for Mr.
Nagle's medical records, that request and objection appears to
merge [sic] on being moot in light of the likely
dismissal of the state law count involving emotional
distress" (emphasis added).
First, the court declines to find bad faith here. Although
plaintiff's counsel expressed doubt on January 14, 1991 about
the viability of Count 2, after further research or reflection
plaintiff's counsel may have changed his mind between the time
of the letter and the date he filed his opposition to
defendants' motion to dismiss, February 28, 1991. Therefore,
this evidence alone is not sufficient to warrant an inference
of bad faith under § 1927.
Second, although the court grants defendants' motion to
dismiss plaintiff's Human Rights claim, the law in this Circuit
is quite uncertain in areas closely related enough to the
question at hand to confuse counsel; the district courts are
split over whether to exercise pendent jurisdiction over a
Human Rights claim due to: (1) the election of remedies
provision when a party files his or her claim first with the
EEOC, which subsequently refers the claim to the SDHR,*fn3
and (2) the potential for jury confusion.*fn4 Given the
pervasive uncertainty of the law in the area of federal
jurisdiction over this type of state law claim, it was not
unreasonable for plaintiff's counsel to persist, albeit
mistakenly, in his claim. Therefore, the court declines to
award Rule 11 sanctions.
For the reasons stated above, the court grants defendants'
motion to dismiss and denies defendants' motion for sanctions.
The parties should adhere to the schedule ordered by the court
on June 20, 1991 and be ready for trial on or after August 12,