3. § 1981 Claim
In contrast, Shafii's proposed § 1981 claim involves rights secured independently by a separate federal statute. While the Supreme Court has not passed on the issue, Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 456-57, 44 L. Ed. 2d 295, 95 S. Ct. 1716 n.3 (1975), at least one circuit has held that the RLA does not repeal or preempt claims under § 1981. McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252-54 (10th Cir. 1988); see also Coppinger v. Metro-North Commuter R.R., 861 F.2d 33, 37 (2d Cir. 1988). Consequently, following McAlester (which is approvingly cited by the Second Circuit in Coppinger), the Court assumes that jurisdiction over a § 1981 cause of action in connection with a RLA arbitration suit is available.
A § 1981 claim is governed by a three year statute of limitations. Tadros v. Coleman, 898 F.2d 10, 12 (2d Cir. 1990), cert. den. U.S. , 112 L. Ed. 2d 149, 111 S. Ct. 186 (1990). Since Shafii's employment terminated on January 30, 1989, the last possible day on which a § 1981 violation could occur is well beyond the three-year limitations period.
Consequently, Shafii's § 1981 claim is barred by the statute of limitations.
The only escape from this result is if the § 1981 claim relates back to Shafii's Verified Petition under Fed.R.Civ.P. 15(c). Relation back requires that the claim asserted in the amended pleading "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c). Shafii's Verified Petition seeks to vacate the arbitral decision and award due to alleged procedural errors. The Supreme Court has "characterized reviews of RLA arbitral awards as 'among the narrowest known to the law.'" CSX Transp., Inc. v. United Transp. Union, 950 F.2d 872, 877 (2d Cir. 1991), quoting Union Pac. R.R. v. Sheehan, 439 U.S. 89, 91, 58 L. Ed. 2d 354, 99 S. Ct. 399 91978). Shafii's § 1981 claim against British Airways has absolutely no connection with RLA arbitral review and does not relate back under Fed.R.Civ.P. 15(c).
4. Fed.R.Civ.P. 11 and/or 28 U.S.C. § 1927 Sanctions
British Airways moves for sanctions, fees and expenses in its Opposition papers pursuant to Rule 11 and § 1927. Rule 11 and § 1927 do not require that the counterclaim be made by separate formal motion; rather, due process is accorded when, as here, notice and an opportunity to be heard in reply has occurred. International Shipping v. Hydra Offshore, Inc., 875 F.2d 388, 392-93 (2d Cir. 1989) and Oliveri v. Thompson, 803 F.2d 1265, 1280 (2d Cir. 1989), cert. den. sub. nom., County of Suffolk v. Graseck, 480 U.S. 918, 94 L. Ed. 2d 689, 107 S. Ct. 1373 91987) (Rule 11 due process analysis); Forman v. Mount Sinai Medical Center, 128 F.R.D. 591, 604 n. 24 (S.D.N.Y. 1989) (§ 1927 due process analysis). Rule 11 violations are judged by an objective standard of reasonableness under all the circumstances existing at the filing of the motion. Business Guides v. Chromatic Communications Ent., U.S. , 112 L. Ed. 2d 1140, 111 S. Ct. 922, 933 (1991). Shafii's counsel was warned but he nevertheless filed a wasteful motion which is easily disposed by elementary applications of RLA jurisdiction and statute of limitation rules. While this practice should be strongly discouraged, Shafii's motion papers do not quite deserve condemnation under Rule 11. Similarly, § 1927 sanctions are not warranted because they require a "clear showing of bad faith" by an attorney which is not present here. Oliveri, 803 F.2d at 1273. However, 28 U.S.C. § 1920 gives the district court broad discretion to tax costs enumerated therein. 28 U.S.C. § 1920; U.S. v. Procario, 361 F.2d 683, 685 (2d Cir. 1966) (per curiam). Taxing the costs of this motion against Shafii is appropriate.
The court has carefully considered the merits of the Plaintiff's motion, and for the reasons stated above, it is hereby DENIED. The defendant's requests for sanctions are DENIED. The court hereby orders the clerk to tax costs of the motion against plaintiff pursuant to 28 U.S.C. § 1920.
Dated: Brooklyn, New York
August 26, 1992
John R. Bartels
UNITED STATES DISTRICT JUDGE