[is] clear . . . that there is no chance of
success.'"). In determining whether sanctions are warranted, courts
consider "whether the person has engaged in similar conduct in other
litigation." Fed. R. Civ. P. 11 Advisory Committee notes (1993
A represented party, as Plaintiff was at the inception of this action,
may not be sanctioned monetarily for a violation of subdivision (b)(2).
See Salovaara v. Eckert, 222 F.3d 19, 32 n. 11 (2d Cir. 2000) (quoting
Fed.R.Civ.P. 11(c)(2)(A)). The Court, however, may sanction a
represented party under subdivision (b)(1), if the party "`had actual
knowledge that filing the paper constituted wrongful conduct, e.g., the
paper made false statements or was filed for an improper purpose.'" Id. at
32 n. 8 (quoting Calloway v. Marvel Entertainment Group, 854 F.2d 1452,
1474 (2d Cir. 1988), rev'd on other grounds sub nom. Pavelic & Le Flore
v. Marvel Entertainment Group, 493 U.S. 120 (1989)); see Storey v. Cello
Holdings, LLC, 182 F. Supp.2d 355, 369 (S.D.N.Y. 2002). Improper purposes
such as bad faith and an intent to delay and harass can be inferred "when
applicable preclusion doctrines . . . clearly foreclose further
litigation." Scott v. Major, No. 89 Civ. 690, 1990 WL 21319, at *1
(S.D.N.Y. March 6, 1990), aff'd,, 923 F.2d 844 (2d. Cir. 1990), citing
McLaughlin v. Bradless, 803 F.2d 1197, 1205 (D.C. Cir. 1986) (an intent
to harass and delay was apparent where the court had issued a final
judgment finding preclusion appropriate and the plaintiff persisted in
filing four insubstantial post-judgment motions).
Here, Wisehart could easily have determined the likely success of
Plaintiff's claims by examining the case law and considering the fact
that many, if not all, of Plaintiff's claims were precluded. He and
Plaintiff have attempted in this action to prosecute the same restated,
reformulated and transactionally related claims originally decided in
Lipin I, Lipin II, and Lipin III. Based on the prior decisions of the
state and federal courts, Wisehart should have been able to determine
that Plaintiff's claims were barred by collateral estoppel. See
Kahre-Richardes Family Foundation, Inc. v. Village of Baldwinsville, New
York, 953 F. Supp. 39, 41 (N.D.N.Y. 1997), aff'd, 141 F.3d 1151 (2d Cir.
1998). Wisehart should have known that there was absolutely no
possibility of prevailing on the merits given the precedent against the
claims and the fact that Plaintiff's claims were reformulated conspiracy
theories. Cohen v. Bane, 853 F. Supp. 620, 626, 629 (E.D.N.Y. 1994)
(where plaintiff's claims were mere reformulated conspiracy theories,
sanctions are necessary to deter such counsel from wasting the time and
resources of the adversaries as well as of the court). Despite repeated
dismissals, Plaintiff and Wisehart have continued to file actions based
on the same facts and circumstances addressed by this and other courts.
Defendants have been forced to litigate another in a series of complaints
that had "`absolutely no chance of success under existing precedents.'"
Shafii, 83 F.3d at 570 (citation omitted). Plaintiff and Wisehart, in
pursuing claims "seeking to contravene the explicit findings of prior
litigation without any meritorious arguments to extend the law, went far
beyond the standard of objective unreasonableness in filing this action."
Pentagen Technologies International Limited v. United States,
172 F. Supp.2d 464, 473 (S.D.N.Y. 2001). Sanctions against Wisehart under
Rule 11(b)(2) are therefore warranted.
Sanctions on both Wisehart and Plaintiff under Rule 11(b)(1) are also
warranted, as the filing of the Lipin IV complaint and its accompanying
papers were asserted for an improper purpose — to
harass and cause
unnecessary delay or increase the cost of litigation. See Storey, 182 F.
Supp. 2d at 366. Here, as noted, claim preclusion clearly foreclosed
further litigation. Plaintiff was unambiguously informed by the prior
decisions that her claims are barred. Despite these warnings, however,
and despite the opportunity provided by the safe harbor provision of Rule
11 to re-evaluate her submissions, Plaintiff persisted with her meritless
claims. Id. Moreover, an apparent a motive for the commencement of the
Lipin IV action was to delay and disrupt the state disciplinary
proceedings against Wisehart. Plaintiff filed her complaint on May 5,
2000, two months after the state court's DDC issued its "Hearing Panel
Sanctions Report" recommending that Wisehart be disciplined for his
involvement in the discovery abuse. See supra note 2. By filing her
complaint, Plaintiff sought damages and an injunction compelling the DDC
to "withdraw the false and defamatory statements" from the March 14, 2000
Panel Report and enjoining the DDC "from issuing any reports or
statements in furtherance of the scheme to defame her." Am. Compl. ¶
170(a)-(j). On November 3, 2000, Plaintiff, still represented by
Wisehart, filed a motion for injunctive relief with regard to the state
court proceeding. Plaintiff, now pro se, has continued to press the
claims asserted in Lipin IV and the motion for injunctive relief, urging
the Court to reinstate Wisehart.
Thus, Plaintiff and Wisehart violated Rule 11 in filing the complaint
and continuing to litigate Lipin IV. "A sanction imposed for violation of
. . . [R]ule  shall be limited to what is sufficient to deter
repetition of such conduct . . . [T]he sanction may consist of, or
include, . . . an order to pay a penalty into court. . . ." Fed. R. Civ.
P. 11(c)(2). The Court finds that a monetary sanction is necessary and
appropriate here, to underscore the seriousness of the violation and to
deter repetition of the offending conduct. The Court has considered Mr.
Wisehart's suspension from practice and Plaintiff's representations
regarding her inability to secure appropriately remunerative employment
in determining the monetary sanction to be imposed. Plaintiff and
Wisehart will each be directed to pay Defendants National Red Cross, Baer
and Jacoby each $1,000 in respect of the attorneys' fees incurred by such
defendant in defending this action.
28 U.S.C. § 1927
Defendants also assort that Wisehart should be sanctioned pursuant to
28 U.S.C. § 1927, which provides that:
Any attorney or other person admitted to conduct cases
in any court in 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 such conduct.
28 U.S.C. § 1927 (West 2002). Section 1927 "looks to unreasonable and
vexatious multiplications of proceedings." United States v. International
Bhd. of Teamsters, 948 F.2d 1338, 1345 (2d Cir. 1991). The Rule obliges
"attorneys throughout the litigation to `avoid dilatory tactics.'"
Pentagen Technologies, 172 F. Supp. 2d at 473 (citation omitted). The
Second Circuit has required a particularized showing of bad faith to
justify sanctions under Section 1927. Oliveri v. Thompson, 803 F.2d 1265,
1272 (2d Cir. 1986). Bad faith may be inferred when the attorney's
actions are so meritless as to require the finding that they must have
been undertaken for some improper purpose such as delay. Shafii, 83 F.3d
at 571; People of Vacco v. Operation Rescue National, 80 F.3d 64, 72 (2d
Cir. 1996); International Bhd. of
Teamsters, 948 F.2d at 1345; Salovaara, 222 F.3d at 35.
To the extent Section 1927 sanctions might be appropriate in this
case, the Court finds that it is not necessary to impose such sanctions
in addition to those the Court has imposed pursuant to Rule 11.
Injunctive Relief Barring Further Litigation
Defendants move to enjoin Plaintiff and her attorney from filing
further lawsuits. A district court has the authority to enjoin a
plaintiff who engages in a pattern of vexatious litigation from continuing
to do so. Fitzgerald v. Field, No. 99 Civ. 3406 (RWS), 1999 WL 1021568,
at *5 (S.D.N.Y. Nov. 9, 1999); see Safir v. United States Lines, Inc.,
792 F.2d 19, 23 (2d. Cir. 1986). In determining whether or not to
restrict a litigant's future access to the courts, courts in this Circuit
consider the following factors:
(1) the litigant's history of litigation and in
particular whether it entailed vexatious, harassing or
duplicative lawsuits; (2) the litigant's motive in
pursuing the litigation, e.g., does the litigant have
an objective good faith expectation of prevailing?;
(3) whether the litigant is represented by counsel;
(4) whether the litigant has caused needless expense
to other parties or has posed an unnecessary burden on
the courts and their personnel; and (5) whether other
sanctions would be adequate to protect the courts and
Safir, 792 F.2d at 24. In limiting a plaintiff's ability to litigate,
courts consider whether any restrictions imposed are, "taken together,
not so burdensome as [to] deny the litigant meaningful access to the
courts." Abdullah v. Gatto, 773 F.2d 487, 488 (2d Cir. 1985) (quoting In
Re Green, 669 F.2d 779, 786 (D.C. Cir. 1981)).
Here, a review of the past claims before this Court and the New York
State courts reveals clearly that Plaintiff and her attorney "cannot be
depended upon to accept the results of motion practice or the dismissal
of [their] claims." Fitzgerald, 1999 WL 1021568, at *5. This is the
fourth complaint filed by Plaintiff asserting essentially the same claims
in slightly altered guise. Plaintiff's prior attempts to pursue these
claims have been rejected by state and federal courts. She has been
represented by Wisehart in each instance; indeed, the amended complaint
suggests that Plaintiff and her attorney were acting as co-litigants in
Lipin IV. (See e.g. Am. Compl. ¶¶ 47, 82, 85, 98). Because it is
clear that neither can be depended upon to desist from repeated attempts
to relitigate previously-rejected claims and each rejection has led to
elaboration, of an ever-broadening conspiracy theory, the extraordinary
remedy of injunctive relief barring the commencement of further related
litigation is appropriate. See Safir, 616 F. Supp. at 619; Fitzgerald,
1999 WL 1021568, at *5.
Plaintiff and Wisehart will therefore be permanently enjoined from
litigating further any claims relating to alleged harassment during, or
the termination of, Plaintiff's employment with the National Red Cross,
as well as any claims concerning any alleged attempts unlawfully to
prevent Plaintiff from litigating such employment-related claims and any
claims arising from judicial or disciplinary proceedings relating to
Plaintiff's and Wisehart's misappropriation go privileged documents
during Lipin I, except to seek appellate review of this decision or
submit papers responding to applications, if any, by Defendants.
For the reasons stated above, Defendants' motions are granted and
action will be dismissed with prejudice. Plaintiff and
Wisehart are found to have violated Rule 11, and each is directed to pay
each of Defendants National Red Cross, Baer and Jacoby $1,000 in respect
of the attorneys' fees incurred by such defendant in defending this
action. Plaintiff and Wisehart are permanently enjoined from litigating
further any claims relating to alleged harassment during, or the
termination of, Plaintiff's employment with the National Red Cross, as
well as any claims concerning any alleged attempts unlawfully to prevent
Plaintiff from litigating such employment-related claims and any claims
arising from judicial or disciplinary proceedings relating to Plaintiff's
and Wisehart's misappropriation of privileged documents during Lipin I
except to seek appellate review of this decision or submit papers
responding to applications, if any, by Defendants.
*fn2 According to the amended complaint, in or about April 1996, the
Departmental Disciplinary Committee of the New York State Supreme Court,
Appellate Division, First Department ("DDC") initiated grievance
proceedings pursuant to New York Judiciary Law section 90(6) against
Plaintiff's attorney and then-employer, Arthur M. Wisehart, arising from
Wisehart's alleged involvement in discovery abuse in Plaintiff's initial
state court action. See e.g., Am. Compl. ¶ 36(h). Disciplinary
charges were filed and referred to a Hearing Panel. Defendant Greig was
appointed to chair the Panel that presided over Wisehart's hearing. On
March 14, 2000, the DDC issued its "Hearing Panel Sanctions Report,"
recommending that Wisehart be disciplined for his involvement in the
discovery abuse. Am. Compl. ¶ 36(h).
Wisehart was subsequently suspended, on March 8, 2001, from the practice
of law in the State of New York for a period of two years and has also
been removed from the roll of attorneys entitled to practice before this
Court. See In the Matter of Arthur M. Wisehart, 721 N.Y.S.2d 356, 363
(1st Dep't 2001), appeal dismissed, leave to appeal denied, 96 N.Y.2d 935
(N.Y. 2001); In the Matter of Arthur M. Wisehart, (JSR), M-2-238
(S.D.N.Y. May 18, 2001). Lipin, who was represented by Wisehart at the
commencement of this action and throughout the briefing of the instant
motions, entered her pro se appearance in this action on or about
September 28, 2001.
*fn3 See supra note 2.
*fn4 Federal Rule of Civil Procedure 12(b)(1).
*fn5 See also 28 U.S.C. § 1738, which provides, in relevant part,
that the records of state judicial proceedings "shall have the same full
faith and credit in every court within the United States . . . as they
have by law or usage in the courts of such State . . . from which they
are taken." 28 U.S.C.A. § 1738 (West 2002).
*fn6 The Court takes judicial notice of the Opinion and Order of Judge
Owen in Polin v. Kellwood Co., 103 F. Supp.2d 238 (S.D.N.Y. 2000), as it
is a related action and specifically referenced in Plaintiff's
complaint. See Am. Compl. ¶¶ 32-34, 38, 43-48 and 51-52.
*fn7 At the time the motion was filed, Plaintiff was not proceeding pro
se, and was still represented by Wisehart.
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