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WEISS v. WEISS

May 8, 1997

ERIC WEISS, Plaintiff, against STEPHEN WEISS, Defendant.


The opinion of the court was delivered by: DOLINGER

 MICHAEL H. DOLINGER

 UNITED STATES MAGISTRATE JUDGE:

 On July 7, 1994, plaintiff Eric Weiss moved by order to show cause for a temporary restraining order ("TRO") and preliminary injunction prohibiting defendant Stephen Weiss, his father, "from transferring, selling or disposing of" his assets. He sought this relief on the asserted basis that his father was in the process of purchasing a home in Florida and was believed to be preparing to move to that state and to take all of his assets there in order to impede the collection of any future judgment. Plaintiff sought the TRO ex parte on the representation that he feared that his father, if alerted to the application, would quickly dispose of all assets not yet removed to Florida.

 Judge Wood, to whom this case was then assigned, granted the TRO, but required the posting of a $ 100,000.00 bond within one day. She also scheduled a hearing on the injunction application for July 14, 1994. During the interim, plaintiff failed to post the bond but apparently used the TRO to freeze some of defendant's assets for a few days.

 Defendant opposed the motion, and asked in very general terms that sanctions be imposed on plaintiff or his counsel for making the motion. On the return date Judge Wood vacated the TRO and denied the application for a preliminary injunction or, alternatively viewed, for a writ of attachment. In doing so, she found that plaintiff had not demonstrated a likelihood of success on the merits or any impending irreparable harm, a conclusion buttressed by the absence of any evidence that defendant was seeking to secrete his assets. She further stated that she would grant defendant permission to move for sanctions, including reimbursement for the costs of defending against the motion (Tr. at 4, 7), and observed that "I believe that sanctions are quite appropriate here, based on what I know now." (Tr. at 7). Finally, she noted "the complete impropriety of freezing assets without posting a bond." (Id.).

 In response to the court's invitation, defendant filed a certification by his attorney on July 25, 1994 requesting an award of $ 6,120.00 in fees and $ 57.50 in disbursements. Neither the certification nor an accompanying letter brief, however, offered any legal analysis of the basis for such an award. Plaintiff opposed the award, and Judge Wood never acted on the matter.

 In September 1994 the parties consented to proceed before me pursuant to 28 U.S.C. ยง 636(c). In the wake of a jury trial on liability and then a shorter bench trial on damages, defendant has pressed for an award on his pending application for sanctions. I address that matter now.

 The parties first dispute whether Judge Wood definitively ruled that defendant was entitled to a sanction award of some kind. If so, defendant would argue, that ruling is law of the case, and the only remaining step is to determine the amount of any monetary assessment.

 On review of the pertinent transcript, I conclude that Judge Wood did not make such a ruling. In the brief colloquy addressed to the plaintiff's motion, the judge noted that she found the plaintiff's application to be meritless, and stated that she was "going to permit defendant to move for sanctions." In doing so, she indicated that she believed sanctions were appropriate "based on what I now know." (Tr. at 7).

 These remarks plainly evidence the court's inclination to award sanctions of some sort, but equally reflect that the judge was carefully avoiding making a ruling on that matter until the issue had been briefed. Moreover, the absence of any indication by the court of the legal basis for the sanctions underscores the tentative nature of the remarks, since the court is required to specify the basis for any such award. See, e.g., Satcorp. Int'l Group v. China Nat'l Silk Import & Export Corp., 101 F.3d 3, 5 (2d Cir. 1996)(citing United States v. International Bhd. of Teamsters, 948 F.2d 1338, 1346 (2d Cir. 1991)).

 We therefore turn to the merits of defendant's application. The initial difficulty is that defendant does not identify any specific basis on which he may be entitled to an expense award. Accordingly, we briefly survey the possible alternatives.

 The most likely candidate is Fed. R. Civ. P. 11, which, in pertinent part, provides that by filing a motion, the attorney:

 
is certifying that to the best of [his] knowledge, information, and belief, formed after an inquiry ...

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