reports were taken at face value without further investigation. Moreover, it is clear that even if misstated, that fact would not alter the decision of the Court. Although the defendants have dissected the language of the July 6, 1995, Order with a lexicographer's precision, it is clear that there is no sound basis on which to reconsider the Court's previous order.
D. Fifth Cause of action And Qualified Immunity
As to defendants' claim that the Court should reconsider its Order with respect to the Fifth cause of action and the claim for qualified immunity, the Court finds that the defendants simply have presented substantially the same arguments set forth in detail in their briefs submitted in support of the previous motions for summary judgment. The Court particularly is vexed at the defendants' continued attempts to reargue the issue of qualified immunity. As the parties should be well aware, this Court and the Circuit Court of Appeals has already determined that there are factual issues with respect to the issue of qualified immunity. As stated herein, the motion for reconsideration is not a vehicle for attempting to reargue issues before the judge that have already been decided. See Saratoga Harness Racing, Inc. v. Veneglia, 897 F. Supp. 38, 1995 U.S. Dist. LEXIS 11064, 1995 WL 461973 (N.D.N.Y. 1995) (citation omitted). Accordingly, the Court will not revisit those issues.
E. Certification For Appeal
28 U.S.C. § 1292(b), which is the statutory basis for the defendants request for certification of a question for appeal, was designed for exceptional cases where the decision of appeal might avoid protracted and expensive litigation, and should be used sparingly. See Kraus v. Board of County Com'rs., 364 F.2d 919 (6th Cir. 1966); see also, Philan Ins. Ltd. v. Frank B. Hall & Co., 136 F.R.D. 80 (S.D.N.Y. 1991). A district court may certify a question for appeal if (1) the order involves a controlling issue of law; (2) as to which there is a substantial ground for a difference of opinion; and (3) in which an immediate appeal may materially advance the ultimate termination of litigation. 28 U.S.C. § 1292(b).
In this case, although not setting forth the specific question for appeal, it appears as though the defendants seek appellate review of the first amendment issue involving the application of the Waters and Jeffries standards. The defendants argue that this Court applied the incorrect standard, and that as controlling law, they should be entitled to appeal. The defendants also seek appeal of the "summary judgment order," apparently in its entirety. However, "even when the question is the supposed question of law whether there are any genuine issues of material fact that preclude the grant of summary judgment, it seems better to keep courts of appeals aloof from interlocutory embroilment in such factual details." 16 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure s 3930 (1977); see also, Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 631 (2d Cir.1991) (stating that where the controlling question of law is whether outstanding issues of material fact remain, interlocutory appeal is not available so that the district court proceedings may be advanced). Here, the "controlling question of law" is clearly whether this court properly determined that there was a material factual issue relating to the plaintiff's first amendment retaliation claim. "Since this determination, although a legal issue, is essentially fact based in nature, interlocutory appeal is inappropriate." Brown v. City of Oneonta, 858 F. Supp. 340, 349 (N.D.N.Y. 1994). In addition, since this case will soon go to trial, any appeal of the Court's July 6, 1995, Order would delay the case, rather than materially advance the ultimate termination of litigation. Thus, the defendants' motion for an interlocutory appeal pursuant to 28 U.S.C. s 1292(b) is denied.
F. Rule 11
Rule 11 imposes an affirmative duty on the signer to make a reasonable inquiry as to the viability, legally and factually, of claims made in pleadings, written motions, and other papers filed with the court. Gray v. Millea, 892 F. Supp. 432, 437 (N.D.N.Y. 1995); Eastway Construction Corp. v. New York, 762 F.2d 243, 253 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S. Ct. 269, 98 L. Ed. 2d 226 (1987). Rule 11(b) expressly states: "By presenting to the court (whether by signing, filing, submitting or later advocating) a pleading, written motion, or other paper, an attorney ... is certifying that to the best of the person's knowledge, information, and belief formed after inquiry reasonable under the circumstances,-- (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support." Fed. R. Civ. P. 11(b).
The reasonableness of the inquiry is measured objectively at the time the signer signs the papers in question. See Derechin v. State University of New York, 963 F.2d 513, 516 (2d Cir.1992); United States v. International Brotherhood of Teamsters, 948 F.2d 1338, 1344 (2d Cir.1991). In Knipe v. Skinner, 19 F.3d 72 (2d Cir.1994), the Second Circuit clarified that, although the imposition of sanctions for a Rule 11 violation was mandatory under the 1983 version, the 1993 amendments provide that imposition of sanctions is now discretionary. Knipe, 19 F.3d at 75, 78. Furthermore, the current version of Rule 11 specifies that "monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2)," Fed. R. Civ. P. 11(c)(2)(A). The Notes of the Advisory Committee on Rules clarify that such sanctions for violations involving frivolous contentions of law (Rule 11(b) (2) violations) are more properly imposed solely on the party's attorneys. Fed. R. Civ. P. 11 Advisory Committee's Note, 1993 Amendment. As such, plaintiff's attorney is subject to monetary sanctions for Rule 11 violations involving frivolous contentions of law. Fed. R. Civ. P. 11 Advisory Committee's Note, 1993 Amendment ("[Rule 11] emphasizes the duty of candor by subjecting litigants to potential sanctions for insisting on a position after it is no longer tenable.... A Litigant's obligations with respect to the contents of these papers ... include reaffirming to the court and advocating positions contained in these pleadings and motions after learning that they cease to have any merit.").
Notwithstanding the Court's determination of this motion, the Court finds little indication that the arguments of the defendants were unreasonable, frivolous, or made in bad faith. Accordingly, the Court denies the plaintiff's motion for sanctions pursuant to Rule 11.
In sum, for the foregoing reasons, the Court denies the defendants' motion for reconsideration, denies the defendants' motion for certification of an interlocutory appeal, and denies the P's motion for sanctions pursuant to Rule 11.
IT IS SO ORDERED.
Dated at Binghamton, New York
Oct. 1, 1995
Thomas J. McAvoy
Chief U.S. District Judge
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