United States District Court, Eastern District of New York
August 23, 2002
AUDREY JACQUES, PLAINTIFF,
DIMARZIO, INC., DEFENDANT.
The opinion of the court was delivered by: Block, District Judge.
MEMORANDUM & ORDER
In Jacques v. DiMarzio, 200 F. Supp.2d 151, 162 (E.D.N.Y.
2002), the Court denied defendant's motion for summary judgment
on plaintiffs federal claim under the Americans with
Disabilities Act ("ADA"), holding that there was a genuine issue
of material fact as to whether the plaintiff was perceived as
disabled from interacting with others. See id. at 161. In
doing so, the Court ruled that "the ability to `interact with
others' is a major life activity" under the ADA. Id. at 160.
also denied summary judgment as to the plaintiffs state whistle
blower claim under New York Labor Law § 215, holding that "there
exists an issue of material fact as to whether [the plaintiff's]
labor law complaints were a motivating factor in her discharge."
Id. at 162.*fn1 In addition, the Court sua sponte
questioned the viability of defendant's counterclaim,
characterizing it as an apparent "naked form of retaliation
against Jacques, a vulnerable plaintiff who suffers from a
significant mental impairment, for filing her lawsuit." Id.
The Court afforded defendant's counsel "the opportunity to
submit legal authority and evidence to justify [the]
counterclaim, if it can, and to explain why Rule 11 sanctions
should not be imposed." Id.; see Perpetual Sec., Inc. v. Tang,
290 F.3d 132, 141 n. 2 (2d Cir. 2002) ("A district court can
award sanctions absent a motion from a party. But if a district
court determines that sanctions are appropriate, the court must
allow the party threatened with sanctions to respond.").
Defendant's counsel has availed himself of that opportunity; he
has submitted a memorandum in which he argues that the
counterclaim pled "colorable claims sounding in abuse of
process, malicious prosecution and prima facie tort under New
York Law." Def.'s Mem. at 2. He argues, in any event, that
sanctions are not appropriate because:
1) the counterclaims*fn2 are not frivolous, 2) do
not relate to Jacques' filing this lawsuit, 3) seek
damages for Jacques' repeated actions before numerous
administrative agencies, 4) there is evidence of
improper motive for Jacques' [filing of] those
actions, 5) Jacques' actions disrupted DiMarzio's
business, 6) DiMarzio reduced the damages it sought
on its counterclaim from $500,000 to $50,000,
strongly negating any inference that the counterclaim
was brought to harass Jacques, 7) the court granted
summary judgment on [some of the] claims filed by
plaintiff, and 8) in no way has the assertion of the
counterclaim delayed this action or caused Jacques to
incur any additional costs or expenditures.
Def.'s Mem at 13-14.
Defendant has simultaneously moved, pursuant to
28 U.S.C. § 1292(b), for certification to appeal from that part of the
Court's order denying defendant's motion to dismiss the federal
ADA claim as a consequence of its ruling that "the ability to
`interact with others' is a major life activity." Jacques,
200 F. Supp.2d at 160.
I. The Counterclaim
In its entirety, the counterclaim, in both its original and
amended versions, alleges that the plaintiff had filed two
administrative claims "for the sole purpose of harassing
defendant, interfering with and damaging defendant's business
operations, interfering with employee morale, creating employee
unrest and impugning defendant's reputation." Answer at ¶ 22;
Am. Answer at ¶ 26. One claim was filed with the National Labor
Relations Board "accusing defendant of terminating [her]
employment as a result of `her engagement in protected and
concerted activities[;]'" the other was filed with the Equal
Employment Opportunity Commission and the New York State
Division of Human Rights based on "discrimination due to an
alleged disability in violation of the [ADA]." Answer at ¶¶ 14,
21; Am. Answer at ¶¶ 18, 25. The counterclaim originally sought
$500,000 in damages. See Answer at ¶ 23.
It was reduced in the amended answer, filed approximately one
year later, to $50,000. See Am. Answer at ¶ 27.*fn3
Contrary to defendant's counsel's contention, the counterclaim
is utterly devoid of factual allegations to raise a colorable
claim under New York law for abuse of process, malicious
prosecution or prima facie tort.
"Abuse of process has three essential elements: (1) regularly
issued process, either civil or criminal, (2) an intent to do
harm without excuse or justification, and (3) use of the process
in a perverted manner to obtain a collateral objective."
Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466,
469 N.E.2d 1324 (1984). A party "must allege and prove actual or
special damages in order to recover." Board of Ed. of
Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom
Teachers Assoc., Inc., 38 N.Y.2d 397, 405, 380 N.Y.S.2d 635,
343 N.E.2d 278 (1975). Special damages are "burdens imposed on
[a party] beyond the ordinary burden of defending a law suit."
Engel v. CBS, Inc., 145 F.3d 499, 503 (2d Cir. 1998) (internal
quotation marks omitted).
"The elements of the tort of malicious prosecution include
initiation or continuation of a proceeding despite the lack of
probable cause, termination of that proceeding favorable to the
party there sued and now aggrieved as plaintiff, and a showing
of malice in the pursuit of that underlying proceeding."
Honzawa v. Honzawa, 268 A.D.2d 327, 701 N.Y.S.2d 411, 413 (1st
Dep't 2000). As with the tort of abuse of process, special
damages are required. See id.
A prima facie tort consists of four elements: "(1)
intentional infliction of harm, (2) causing special damages, (3)
without excuse or justification, (4) by an act or series of acts
that would otherwise be lawful." Curiano, 63 N.Y.2d at 117,
480 N.Y.S.2d 466, 469 N.E.2d 1324. New York courts have held
that parties "should not be able to plead prima facie tort in
the alternative. It should not become a catch all alternative
for every cause of action [that] cannot stand on its legs."
Id. at 118, 480 N.Y.S.2d 466, 469 N.E.2d 1324 (finding claim
for prima facie tort meritless because "by using it,
plaintiffs seek to avoid the stringent requirements we have set
for traditional torts, such as malicious prosecution [.]").
Defendant's cryptic, generalized, and ill-defined conclusory
claim of harassment cannot serve as a substitute for pleading
the requisite elements of these causes of actions; accordingly,
the counterclaim is dismissed.
II. Rule 11 Sanctions
Rule 11 provides that an attorney makes the following
representations each time he or she submits a paper
to the court: (1) the paper is not being presented
for an improper purpose; (2) the legal claims are
warranted under existing law or pursuant to a
nonfrivolous argument for the extension, modification
or reversal of existing law or the establishment of
new law; (3) the allegations and factual contentions
have evidentiary support or will likely have
evidentiary support after a reasonable opportunity
for discovery; and (4) denials of factual contentions
Martens v. Thomann, 273 F.3d 159
, 177 (2d Cir. 2001).
"A pleading, motion or other paper violates Rule 11 either
when it `has been interposed for any improper purpose
[Fed.R.Civ.P. 11(b)(1)], or where, after reasonable inquiry, a
competent attorney could not form a reasonable belief that the
pleading is well grounded in fact and is warranted by existing
law or good faith argument for the extension, modification or
reversal of existing law [Fed.R.Civ.P. 11(b)(2)].'" Kropelnicki
v. Siegel, 290 F.3d 118, 131 (2d Cir. 2002). Compliance is
measured by an objective standard: Rule 11 is violated "where it
is patently clear that a claim has absolutely no chance of
success." Eastway Const. Corp. v. City of New York,
762 F.2d 243, 254 (2d Cir. 1985).
Pursuant to Rule 11, a court may "impose an appropriate
sanction upon the attorneys . . . that have violated [Rule 11]
or are responsible for the violation." Fed.R.Civ.P.
11(c).*fn4 "[W]here sanctions are imposed . . . by the
district judge on his own initiative, Rule 11(c)(2) provides
that payment of sanctions may be directed only to the court as a
penalty." Nuwesra v. Merrill Lynch, Fenner & Smith, Inc.,
174 F.3d 87, 94 (2d Cir. 1999) (quoting Johnson v. Waddell & Reed,
Inc., 74 F.3d 147, 152 n. 3 (7th Cir. 1996)) (citation omitted;
internal quotation marks omitted); see also Thornton v. General
Motors Corp., 136 F.3d 450, 455 (5th Cir. 1998) ("[W]here
sanctions are imposed . . . by a district court on its own
initiative, . . . the award of attorney's fees . . . [does not]
constitute a valid sanction.") (citation omitted; internal
quotation marks omitted).
Since defendant's counterclaim is patently devoid of
allegations rising to a colorable claim for any of the tort
theories that defendant's counsel has belatedly conjured in an
attempt to avoid Rule 11 sanctions, such sanctions are clearly
warranted for this frivolous pleading. See W.K. Webster & Co.
v. Am. President Lines, Ltd., 32 F.3d 665, 670 (finding
sanctions warranted where counterclaims were "patently void of
any legal or factual basis" and defendant's counsel did not
"ma[ke] plausible arguments" to support them).
This conclusion is bolstered by defendant's counsel's failure
to offer any evidence to support defendant's claimed damages or
any factual bases for his other conclusory assertions. All
defendant's counsel has submitted is his memorandum; he has not
submitted any affidavit from the defendant or any evidentiary
material in support of special damages,*fn5 or, for that
matter, any other aspect of his three theories. Although the ad
damnum clause was amended from $500,000 to $50,000, the in
terrorem effect of the initial half million dollars lingered
for about a year; indeed, Rule 11 sanctions have been imposed
even when parties voluntarily withdrew frivolous claims. See
Fischer v. Samuel Montagu, Inc., 125 F.R.D. 391, 394-95
(S.D.N.Y. 1989); Shokai Far East Ltd. v. Energy Conservation
Sys., Inc., 628 F. Supp. 1462, 1467 (S.D.N.Y. 1986).
In addition, defendant's counsel's attempt to justify the
counterclaim by arguing that it was warranted by plaintiff's
"repeated actions before numerous administrative agencies"
reinforces the frivolousness of the counterclaim. Def.'s Mem. at
13. The two administrative claims hardly bespeak of "repeated
actions." To the contrary, they simply served as predicates for
the subject litigation. Notably, in respect to the ADA claim,
defendant's counsel should have known the basic principle of law
that as a precondition to initiating a federal discrimination
lawsuit, plaintiff was required to exhaust her administrative
remedies, and that failure to do so would be fatal to her case.
See Francis v. City of New York, 235 F.3d 763, 768 (2d Cir.
2000) ("[E]xhaustion of administrative remedies through the EEOC
stands as an essential element of Title VII's statutory scheme,
and one with which defendants are entitled to insist that
plaintiffs comply."); see also Joseph v. America Works, Inc.,
2002 WL 1033833, at * 5 (S.D.N.Y. May 21, 2002) (claimant must
exhaust administrative remedies before bringing ADA claim in
federal court). As for her state whistle blower claim, which may
not require exhaustion, plaintiff cannot be faulted for seeking
relief before the NLRB as a means to avoid litigation; moreover,
it is not at all uncommon for a claimant to be unsuccessful at
the administrative level and, as in the present case, to be
successful at the judicial level. That plaintiff was not
successful in her administrative pursuits should not chill her
right to come to court for fear of being subjected to a
In sum, given the plaintiffs labile emotional condition and
her initial pro se status, the factually unsupported,
conclusory lay nature of the counterclaim can only realistically
be viewed, as suspected by the Court in its prior decision, as a
bad faith retaliatory in terrorem tactic against the plaintiff
for bringing her claims to court. This conduct constitutes "the
type of abuse of the adversary system that Rule 11 was designed
to guard against." Mareno v. Rowe, 910 F.2d 1043, 1047 (2d
Cir. 1990). The Court reiterates its admonition to the
practicing bar "against asserting baseless, retaliatory
counterclaims." Jacques, 200 F. Supp.2d at 163.
As for the sanction, the Court believes that $1,000 is
sufficient to punish defendant's counsel and to deter this type
of conduct in the future. See Salovaara v. Eckert,
222 F.3d 19, 34 (2d Cir. 2000) ("Rule 11(c)(2) limits the sanctions that
may be imposed for a violation of Rule 11 `to what is sufficient
to deter repetition of [the wrongful] conduct or comparable
conduct by others similarly situated[.]'"); cf. Gambello v.
Time Warner Communications, Inc., 186 F. Supp.2d 209, 230
(E.D.N.Y. 2002) (imposing $1,000 sanction on attorney for
presenting frivolous claim); Four Star Fin. Serv., LLC v.
Commonwealth Mgmt. Assoc., 166 F. Supp.2d 805, 810 (S.D.N.Y.
2001) ($2,500 sanction imposed on attorneys for filing claims
lacking "evidentiary support"); Perry v. S.Z. Restaurant
Corp., 45 F. Supp.2d 272, 276 (S.D.N.Y. 1999) ($2,500 sanction
imposed on attorney for filing frivolous claim); De Ponce v.
Buxbaum, No. 90 Civ. 6344, 1995 WL 92324, at * 2 (S.D.N.Y.
March 7, 1995) ($2,000 sanction imposed on attorney for answer
to interrogatory "interposed for
[the] improper purpose" of "caus[ing] unnecessary delay or
needless increase in the cost of litigation.") (internal
quotation marks omitted).
III. The Certification Motion
It is a "basic tenet of federal law to delay appellate review
until a final judgment has been entered." Koehler v. Bank of
Bermuda, Ltd., 101 F.3d 863, 865 (2d Cir. 1996). As an
exception to this rule, a district court may certify an
interlocutory order for appeal if the order " involves a
controlling question of law,  as to which there is a
substantial ground for difference of opinion, and  that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation." 28 U.S.C. § 1292(b).
Such certification "vests review of an interlocutory order
within [the circuit court's] discretion and [the circuit] may
decline at any time to decide the issue presented." Koehler,
101 F.3d at 866.
Only "exceptional circumstances [will] justify a departure
from the basic policy of postponing appellate review until after
the entry of a final judgment." Coopers & Lybrand v. Livesay,
437 U.S. 463, 475, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); see
Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir.
1990). A district court is to "exercise great care in making §
1292(b) certification." Westwood Pharm., Inc. v. Nat'l Fuel Gas
Distrib. Corp., 964 F.2d 85, 89 (2d Cir. 1992). Section 1292(b)
was not intended to be a "vehicle to provide early review of
difficult rulings in hard cases." German v. Fed. Home Loan
Mortgage Corp., 896 F. Supp. 1385, 1398 (S.D.N.Y. 1995). Nor was
it intended "to substitute an appellate court's judgment for
that of the trial court." Koehler v. Bank of Bermuda Ltd.,
101 F.3d 863, 866 (2d Cir. 1996). District courts retain "unfettered
discretion to deny certification" even when the criteria of §
1292(b) appear to be satisfied. Nat'l Asbestos Workers Med.
Fund v. Philip Morris, Inc., 71 F. Supp.2d 139, 162-63 (E.D.N.Y.
Reversal of the Court's holding on the challenged ADA issue
would not necessarily lead to dismissal of the action since, in
the circumstances of this case, the Court would, in the exercise
of its discretion, retain jurisdiction over plaintiffs state
claim. See Nowak v. Ironworkers Local 6 Pension Fund,
81 F.3d 1182, 1187 (2d Cir. 1996) (noting that district court has
discretion to exercise supplemental jurisdiction over state law
claims even where it has dismissed all federal claims). Thus, an
"immediate appeal . . . [would not] materially advance the
ultimate termination of the litigation." 28 U.S.C. § 1292(b).
Furthermore, a final judgment is likely to materialize in the
near future since discovery is complete and the case is ripe for
Even though there may be substantial grounds for differences
of opinion as to whether the ability to interact with others is
a major life activity, and the Second Circuit has yet to address
the issue, the Court, nonetheless, in consideration of the
relevant factors and in the exercise of its discretion, denies
defendant's motion for certification.
The Counterclaim is dismissed. Defendant's counsel shall pay
$1,000 to the Clerk of the Court within ten (10) days for the
Rule 11 violation and shall forthwith notify the Court when such
payment has been made. Defendant's motion for certification is