In the case at bar, the record contains abundant evidence that defendants acted with probable cause in filing charges of official misconduct against plaintiffs. Defendants cite individual reasons for first becoming involved with the reassessment controversy in the Town of Richford. See supra at 4-8. Each of the defendants also believed that the three-year, three-phase reassessment plan initiated by plaintiffs was inequitable. They attended town meetings, consulted an attorney, and reviewed the Town of Richford public records, discovering that the records reflected highly inequitable tax assessments in favor of plaintiffs, their relatives, and their friends. Defendants' contact with David Gaskell, Executive Director of the New York State Division of Equalization and Assessment, verified defendants' suspicions that the assessment practices were not only inequitable but also illegal. Specifically, defendants assert that in response to their inquiry, Mr. Gaskell informed defendants that the 40% disparity between the assessed and actual values of some Richford properties was far greater than the "accepted standard" of 10%. Defendants' Memorandum of Law, Doc. 12, at 14. Further, defendants state that Mr. Gaskell informed them that the three-year, three-phase reassessment plan was illegal, "piecemeal reevaluation." Way Affidavit, attached to Doc. 11, P 8. To this factual background defendants applied New York's official misconduct statute, Penal Law § 195, the existence of which was brought to their attention by Mr. Gaskell. See Zahl Affidavit, attached to Doc. 11, P 6. Defendants inferred that plaintiffs had abused their respective offices within the tenor of § 195 because properties belonging to plaintiffs, their relatives, and their friends were under-assessed and would continue to be under-assessed under the three-year, three-phase reassessment, resulting in artificially low property tax liabilities for those individuals and consequently imposing artificially high tax burdens on those Town of Richford property owners less well-connected. See id.; see also Serata Affidavit, attached to Doc. 11, P 6. Defendants' efforts to resolve these inequities through the District Attorney's Office were thwarted by inaction, so defendants went to Judge Barrett's court to file a criminal complaint with documentation to support their charges. Zahl Affidavit, attached to Doc. 11, PP 5-7; Way Affidavit, attached to Doc. 11, PP 11-12; Serata Affidavit, attached to Doc. 11, PP 5-7.
Under such circumstances, even if plaintiffs' contention that they in fact were not guilty of any wrongdoing is true, the court finds that defendants acted reasonably in investigating the reassessment controversy, in seeking advice from various authorities, and in inferring that plaintiffs had abused their respective offices in violation of § 195. Defendants did not act precipitously in filing the criminal complaint with Judge Barrett. Rather, through their investigation defendants sought and obtained knowledge of the facts, actual or apparent, sufficient to justify any reasonable person in the belief that plaintiffs had violated and were continuing to violate § 195. On this basis, the court concludes that defendants had probable cause for filing the criminal complaint against plaintiffs. Plaintiffs' claim for malicious prosecution thus fails the third prong of the prima facie test, and again, defendants' motion for summary judgment must be granted as a matter of law.
Similarly, plaintiffs' claim fails the fourth and final prong of the prima facie test, that the prosecution was instituted with actual malice. Lack of probable cause and presence of malice go hand-in-hand in the context of a malicious prosecution claim. To illustrate, one New York court has held that malice, in its legal sense, "means a wrongful act, done intentionally without just cause or excuse." Jestic v. Long Island Savings Bank, 81 A.D.2d 255, 257, 440 N.Y.S.2d 278, 280 (N.Y.A.D. 2d Dep't 1981). Malice may be inferred from a finding that defendants lacked probable cause to initiate the underlying criminal proceedings. Id. (citing Loeb v. Teitelbaum, 77 A.D.2d 92, 104, 432 N.Y.S.2d 487, 495 (N.Y.A.D. 2d Dep't 1980). However, where probable cause is found to exist, clearly no inference of malice follows.
This court's finding that defendants had probable cause to institute the criminal complaint against plaintiffs refutes any contention that defendants acted maliciously in this case. Regardless of whether defendants were correct in their theory that plaintiffs violated N.Y. Penal Law § 195, the presence of probable cause negates the portion of the definition of malice which requires that the underlying prosecution be initiated "intentionally without just cause or excuse." Jestic, 81 A.D.2d at 257, 440 N.Y.S.2d at 280; see also Vidal v. Bloomingdale Bros., 85 A.D.2d 508, 509, 444 N.Y.S.2d 105, 106 (N.Y.A.D. 1st Dep't 1981) ("honest and reasonable belief" precludes a finding of malice). Moreover, plaintiffs have not come forth with a shred of evidence to support their contention that defendants brought the criminal charges "with an intent to injury [sic], humiliate and embarrass the plaintiffs and knowing full well that the plaintiffs did not commit any criminal activity of any kind."
Complaint, Doc. 1, P 33. Therefore, plaintiffs' claim fails the fourth prong of the prima facie test for malicious prosecution, and yet again, defendants are entitled to summary judgment as a matter of law.
C. Defendants' Request for Attorney's Fees
Defendants request that in addition to granting summary judgment in their favor, the court award them attorney's fees and costs pursuant to 42 U.S.C. § 1988 as the successful parties in a § 1983 action. Section 1988 provides in pertinent part: "in any action or proceeding to enforce a provision of . . . § 1983 . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." Although the context of § 1983, a civil rights statute, may seem to imply that only successful plaintiffs are entitled to recover costs under § 1988, the plain language of the statute confers this benefit on the "prevailing party" and courts have interpretated this language to mean that defendants may also be entitled to recover costs under § 1988 for successfully defending against civil rights claims. See, e.g., Martin v. Supreme Court of State of N.Y., 644 F. Supp. 1537, 1545 (N.D.N.Y. 1986) (Munson, C.J.) (defendant entitled to attorney's fees because plaintiff's § 1983 action was "unreasonable and vexatious"); Isaacs v. Temple University, 467 F. Supp. 67, 69 (E.D.Pa. 1975) ("there is no doubt that in appropriate cases a 'prevailing party' defendant is entitled to an award of attorney's fees").
In determining whether a given controversy fits within the category of "appropriate cases" for the award of attorney fees to a victorious defendant, courts have applied a stricter standard than that applied in awarding costs to victorious plaintiffs. Goldrich, Kest & Stern v. City of San Fernando, 617 F. Supp. 557, 561-62 (C.D.Cal. 1985); see also Santiago v. Victim Services Agency of Metropolitan Assistance Corp., 753 F.2d 219, 221 (2d Cir. 1985) (higher burden on defendant because "plaintiff in a civil rights action is 'the chosen instrument of Congress to vindicate' a policy of the highest national priority"). Generally, prevailing defendants in a § 1983 action can only recover attorney's fees if the suit was "frivolous, unreasonable, or groundless, or [if] the plaintiff continued to litigate after it clearly became so." Hughes v. Rowe, 449 U.S. 5, 15, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam) (quoting Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 422, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978)). In other words, "where no evidence supports the plaintiff's position or [where] the defects in the suit are of such magnitude that plaintiff's ultimate failure is clearly apparent from the beginning or at some significant point in the proceedings after which the plaintiff continues to litigate," an award of attorney's fees to the defendant is appropriate. Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir.), cert. denied, 473 U.S. 906 (1985); see also Blackwelder v. Safnauer, 689 F. Supp. 106, 148 (N.D.N.Y. 1988) (Munson, C.J.) (test is "'whether the claim itself is meritless,' and the court is to measure the merits of the plaintiff's claim against an objective standard"), aff'd on other grounds, 866 F.2d 548 (1989). "Bad faith on the part of the plaintiff is not a prerequisite" for the defendant to recover attorney fees under § 1988 although it does provide a stronger basis to support such a conclusion. Colombrito v. Kelly, 764 F.2d 122, 128-29 (2d Cir. 1985); see also Davidson v. Keenan, 740 F.2d 129, 133 (2d Cir. 1984) (discussing appropriateness of an award of fees for defendants even when plaintiffs act in good faith on bad advice from their attorney, as plaintiffs have ultimate authority on whether to proceed with the lawsuit).
Keeping in mind the deterrent effect that the prospect of being required to pay a defendant's attorney's fees holds in the event a plaintiff is not successful in an action, against the objectives of § 1983 as a means to encourage private enforcement of civil rights, this court must apply the principles set forth above in determining whether to exercise its discretion to award attorney's fees to defendants at bar. The court concludes, on the basis of the record before it, that plaintiffs' claims are meritless As discussed supra at 21-23, and 30-35, plaintiffs had no foundation upon which to build their conspiracy theory insofar as the state action requirement is concerned. Right from the start, plaintiffs came forward with nothing but conclusory and unsupportable allegations regarding the involvement of Judge Barrett, and in fact conceded by letter to the court dated July 3, 1991 that plaintiffs had no legitimate claim against Judge Barrett. Yet, plaintiffs' counsel stated in that letter that "in the event Judge Barrett refuses to discontinue, then it seems to me a jury will have to make that determination," thus indicating plaintiffs' intention to proceed with the litigation after it had become clear, even to them, that no § 1983 claim existed because there was no conspiratorial action taken under color of state law. See Doc. 18. Thus, under Hughes, Smith, Colombrito, Blackwelder, and other cases cited herein, this action fits within the category of cases for which an award of attorney's fees to defendants is appropriate. The court declines to permit its processes to be used to inflict economic injury on these defendants by forcing them to pay their own expenses in defending against plaintiffs' meritless claims. Therefore, pursuant to § 1988, the court grants the motion by defendants Zahl, Way, and Serata for an award of costs, including attorney fees, incurred in connection with their defense of this action.
D. Effect on Defendant Barrett
Defendant Barrett did not join in the summary judgment motion brought by defendants Zahl, Way, and Serata. In fact, aside from filing an answer to the complaint, Judge Barrett has not filed any papers or provided any documentation of any sort to this court. Nonetheless, as can easily be discerned from the discussion, supra at 21-23 & n.5, plaintiffs have no claim against Judge Barrett. The factual insufficiency of plaintiffs' claims against Judge Barrett, coupled with the Judge's absolute immunity from liability for actions taken in his official capacity and within his jurisdiction, leave the court with no alternative but to sua sponte grant summary judgment in favor of Judge Barrett and dismiss this action in its entirety as against him. However, due to his passive participation in the instant motions, Judge Barrett will not be permitted to recover any attorney's fees he may have incurred in connection with his defense in this action.
E. Rule 11 Sanctions
The final issue before the court is the appropriateness of sanctions against plaintiffs' counsel. This is a case that never should have been filed in federal court. The court is provided with a weapon against such actions which unnecessarily drain the resources of the judiciary and impair the efficacy of the administration of justice. Rule 11 of the Federal Rules of Civil Procedure provides, in pertinent part:
The signature of an attorney . . . constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it 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, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it . . . an appropriate sanction[.]
The Supreme Court commented on the propriety of imposing Rule 11 sanctions in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 L. Ed. 2d 359, 110 S. Ct. 2447 (1990). The Court stated that "the central purpose of Rule 11 is to deter baseless filings in District Court and thus, consistent with the Rule [sic] Enabling Act's grant of authority, streamline the administration and procedure of the federal courts." Id. at 393. The Court emphasized that an attorney who signs and submits papers to a court manifests his or her belief that the papers are "well-grounded in fact, legally tenable, and 'not interposed for any improper purpose,'" and further reinforced the language of the rule by stating that "an attorney who signs the paper without such a substantiated belief 'shall' be penalized by 'an appropriate sanction.'" Id. In a 1991 decision the Supreme Court reiterated that an attorney's signature denotes the signer's belief in the merits of the document, and indicates that the signer has considered his or her behavior "in terms of the duty [owed] to the court system to conserve its resources and avoid unnecessary proceedings." Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 111 S. Ct. 922, 929-30, 112 L. Ed. 2d 1140 (1991).
When analyzing a Rule 11 motion, the court must focus on the question of whether "the specific filing was, if not successful, at least well-founded." 111 S. Ct. at 934. If the court concludes that the filing was not well-founded in fact or law, then the plain language of Rule 11 requires that sanctions be imposed. Chemiakin v. Yefimov, 932 F.2d 124, 126 (2d Cir. 1991) (quoting the district court's conclusion that the "patently frivolous nature of the complaint and the extraordinarily shoddy legal analysis conducted by plaintiff's counsel as the grounding for the lawsuit require the imposition of sanctions under Rule 11"). Compare Eastway Construction Corp. v. City of New York, 762 F.2d 243, 253-54 (2d Cir. 1985) (sanctions warranted for complaint that was "destined to fail") with Motown Productions, Inc. v. Cacomm, Inc., 849 F.2d 781, 784-85 (2d Cir. 1988) (reversal of district court's imposition of Rule 11 sanctions after concluding that complaint was not frivolous). Actions by an attorney, regardless of whether performed in good faith, are no bar to sanctions when "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." Eastway Construction, 762 F.2d at 254.
Applying this objective standard to the case at bar, the court concludes that plaintiffs' counsel failed to fulfill his obligation to the judiciary in instituting this claim on behalf of the plaintiffs. In signing and filing the complaint and various other documents, plaintiffs' counsel certified that he had undertaken a "reasonable inquiry" and that, "to the best of his knowledge, information, and belief [the documents were] "well grounded in fact" and the relief sought was "warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." Fed.R.Civ.P. Rule 11. However, a review of the record before this court indicates that plaintiffs' § 1983 claim is baseless in both law and fact. The likely applicability of Judge Barrett's absolute immunity for activities undertaken in his official capacity was an obvious obstacle to the resolution of this claim in favor of plaintiffs. Moreover, it appears that only after the complaint was filed did plaintiffs' counsel conduct an inquiry into the facts and conclude that there were no grounds for maintaining the suit against defendant Barrett. Without conspiratorial involvement on the part of Judge Barrett, the § 1983 claim is destroyed, and with its destruction, this court's subject matter jurisdiction is eliminated. As plaintiffs' counsel himself observed in his July 3, 1991 letter to the court: "it seems to me we are spinning a lot of wheels by having this Court review state court claims which will undoubtedly have to be reviewed again by a supreme court justice upon remand to state court." Doc. 18. Counsel's concern for judicial resources after the fact is little solace in view of the time and resources expended in this litigation, and his failure to ensure that the complaint was well-founded in fact and in law prior to the commencement of the action warrants the imposition of Rule 11 sanctions. See Cooter & Gell, 496 U.S. at 393; Chemiakin, 932 F.2d at 126. As for the pendant state claim for malicious prosecution, even a cursory inquiry into the law of New York would have revealed the lack of foundation for plaintiffs' claim on the facts at bar. The facts do not support the essential elements of the absence of probable cause and the presence of actual malice to substantiate a malicious prosecution claim, nor do the facts support a determination that the underlying proceedings were terminated in plaintiffs' favor within the meaning of that prong of the prima facie test, despite the fact that the charges against plaintiffs were indeed dismissed. Thus, to avoid Rule 11 sanctions, plaintiffs would have to have premised their malicious prosecution theory on a "good faith argument for the extension, modification, or reversal of existing law." Plaintiffs made no such argument; in fact, plaintiffs' counsel failed to timely submit a memorandum of law or any other document in opposition to defendants' summary judgment motion, thus foregoing plaintiffs' opportunity to make such an argument if one exists. Counsel's oral argument was also devoid of such an argument: Mr. Benjamin merely asserted that defendants had instituted a "baseless action," despite the reasonable inference to the contrary readily drawn from the facts. This court cannot discern any argument at all, much less a "good faith argument," for the extension, modification, or reversal of existing law regarding the requisite elements of a malicious prosecution claim.
Therefore, it is the opinion of this court that plaintiffs' counsel violated Rule 11 by signing and filing the complaint without having a well-founded basis in law and fact for either of the claims asserted. Pursuant to the mandate in Rule 11 that the court "shall impose . . . an appropriate sanction" when such a violation occurs, the court hereby orders Ronald R. Benjamin, Esq. to pay to the clerk of the court a fine of $ 1,000.
In conclusion, the motion by defendants Zahl, Way, and Serata for summary judgment is granted and the clerk of the court is directed to enter judgment dismissing plaintiffs' complaint in its entirety against defendants Zahl, Way, and Serata. The court sua sponte grants summary judgment in favor of defendant Barrett, and the clerk of the court is directed to enter judgment dismissing plaintiffs' complaint against defendant Barrett as well. Furthermore, the motion by defendants Zahl, Way, and Serata for an award of costs and attorney's fees pursuant to § 1988 is granted. Defendants' counsel is directed to submit a revised fee application within twenty (20) days of the filing of this Memorandum-Decision and Order in accordance with the instructions set forth in footnote 9, upon receipt of which the court shall issue an order fixing the dollar amount of the award of costs and attorney's fees. Finally, based on the court's determination that plaintiffs' counsel has failed to meet his duty to the judicial system as outlined by Fed.R.Civ.P. 11, the court imposes upon Ronald R. Benjamin, Esq. a fine of $ 1,000 as an appropriate sanction. The fine, payable to the clerk of the court, is due immediately.
It is So Ordered.
Dated: April 14, 1993
Syracuse, New York
HOWARD G. MUNSON
SENIOR UNITED STATES DISTRICT JUDGE