The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
REPORT AND RECOMMENDATION
This action has been referred to me by Hon. Richard J. Arcara for supervision of pretrial proceedings .*fn1 By Order dated July 12, 2012 , I required plaintiff's attorney, Christina Agola, to show cause why she should not be sanctioned pursuant to Fed. R. Civ. P. ("Rule") 11(c)(3) and/or 28 U.S.C. §1927 for conduct discussed in my June 13, 2012 Report and Recommendation , which was subsequently adopted by Judge Arcara . In response, she submitted a Declaration dated August 10, 2012 , requesting oral argument (id., ¶41), which was held on August 31, 2012 . Although I offered to schedule the argument on a date convenient for her, Ms. Agola elected to have her colleague, Steven LaPrade, appear in her place.
For the following reasons I find that Ms. Agola has repeatedly and deliberately violated Rule 11, and conclude that sanctions are warranted. I recognize that "sanctions should not be more severe than reasonably necessary to deter repetition of this conduct by the offending person or comparable conduct by similarly situated persons" (Rule 11 Advisory Committee Notes, 1993 Amendments). However, as Ms. Agola seems not to have learned from numerous past warnings and monetary sanctions, it appears that stronger measures are now called for.
In view of Ms. Agola's ongoing and blatant disregard of her Rule 11 obligations, I conclude that the least severe sanction "reasonably necessary" to address her misconduct is suspension from practice before this court for a period of six months. With some regret, but seeing no meaningful alternative under the circumstances, I recommend that this sanction be imposed.*fn2
Plaintiff commenced this action on November 10, 2009, alleging racial discrimination and retaliation in violation of 42 U.S.C. §1981 and the New York State Human Rights Law (N.Y. Executive Law §290). Complaint . According to Ms. Agola, plaintiff "was advised of the weakness of his claims when he retained this office". Agola Declaration , p. 5.*fn3 "When we prepared Mr. Rankin's complaint to be filed with the Court, we admonished Mr. Rankin that the fact that he rejected nine (9) job offers could play a major role in establishing not only liability but damages as well. We promised Mr. Rankin that we would determine whether any of those . . . job offers were retaliatory, i.e., whether they were demotions, through discovery, but that we were concerned about this going forward." Id., ¶¶22, 23. Notwithstanding these supposed concerns, Ms. Agola's office agreed to take this case on a contingent fee basis, and plaintiff advanced $7,500 for disbursements. See Retainer Agreement [77-1], ¶¶2, 3, 7.
According to Ms. Agola, plaintiff "was aware that defendants would move to dismiss his claims as early as May 7, 2010". Agola Declaration , p. 4. Defendants moved for summary judgment over a year later, on November 4, 2011 . Ms. Agola alleges that by letter dated November 7, 2011 ([75-2], p. 11 of 11), she sent plaintiff a copy of the motion, stating that "as I have indicated to you repeatedly, there are serious issues with regard to liability and mitigation that may preclude you from recovery. Please contact me immediately after you review these documents."
By Text Order dated November 7, 2011 , I required plaintiff's opposition to the summary judgment motion to be filed by December 5, 2011. On December 5, Ms. Agola moved pursuant to Rule 6(b) for a 30-day extension of the deadline for opposing the motion, assuring me that "[t]he Plaintiff's opposition to defendant's Motion for Summary Judgment is substantive". Agola Declaration [42-1], ¶9. Citing several time commitments in other cases (id., ¶¶5-6), she claimed that "[i]n good faith, your Declarant anticipated filing and serving the Plaintiff's Opposition to Defendant's Motion for Summary Judgment on Monday, December 5, 2011 . . . but due to the extraordinary circumstances, your Declarant requests a brief extension of time . . . . [Y]our Declarant fears the Plaintiff's rights would be severely prejudiced, given the circumstances of preparing for trials and perfecting responses to several Motions for Summary Judgment. Based on the good cause contained herein, your Declarant respectfully requests an adjournment of 30 days, to January 4, 2012, to file and serve the Plaintiff's Opposition to Defendant's Motion for Summary Judgment". Id., ¶¶7, 9, 10 (emphasis added). With defendants' consent (id., ¶8), I granted her request, and extended the deadline for submission of opposing papers to January 4, 2012 .
On January 4, 2012, the day her opposing papers were again due, Ms. Agola moved for a second extension of the deadline. This time, she cited a different set of time commitments in unrelated cases (Agola declaration [45-1], ¶¶4-7), but again asserted that "Plaintiff's opposition to defendant's Motion for Summary Judgment is substantive and . . . Plaintiff's rights would be severely prejudiced" absent a further extension (id., ¶10). Once again defendants consented (id., ¶9), and once again I granted her request, extending the deadline for submission of opposing papers to February 23, 2012 .
On February 23, 2012 (the last day of the second extended deadline), Ms. Agola moved for a third extension of the deadline, citing yet another set of time commitments in unrelated cases (Agola declaration [48-1], ¶¶10-14), and swearing once again that "Plaintiff's opposition to defendant's Motion for Summary Judgment is substantive" (id., ¶17). With defendants' consent (id., ¶16), I granted her request for the third time, and extended the deadline for submission of opposing papers to March 23, 2012  - over four months after the motion had been filed.
On March 22, 2012, plaintiff "e-mailed the office . . . with his responses to Defendant's' Motion for Summary Judgment". Sneddon Declaration [75-2], ¶6. His e-mail stated that "Defendants Summary Judgment solidifies/confirms/and legally substantiates Plaintiffs complaint in totality" (id., p. 8), and included a lengthy discussion of why he felt this was so.
In her Declaration dated May 15, 2012 , Ms. Agola stated that during a conference call on March 23, 2012, she told plaintiff that "as an Officer of the Court, I could not certify that there was a material issue of fact under Rule 11 to defeat the Defendant's Motion" (id., ¶70), and that plaintiff "told me that I had to 'do what's right', and if discontinuing the case was the 'right thing' then I should do 'what is right'" (id., ¶72).
She testified that she told plaintiff on March 23 that "the record as I inherited it would not lead to anything other than potentially sanctions from this court and most certainly costs . . . and I said Sir, we cannot take that risk . . . I told him I had to do the right thing and the right thing under Rule 11 and the right thing for Mr. Rankin's interest is file a stipulation . . . and he said Ms. Agola, you have to do the right thing" (, p. 16).*fn4 She then told him "I need to go now. You talk this over with the family sir, but this is my decision. I never heard back from him." Id. (emphasis added).
On the morning of Wednesday, March 28, 2012, Ms. Agola e-mailed my law
clerk, Matthew Yusick, stating that "[w]e propose to resolve the
matter by having each party bear their own costs and fees which is a
fairly standard practice. Opposing Counsel stated he will not waive
statutory costs and we cannot agree to that. Any assistance the Court
can render here would be helpful" ([75-3], p.11). After checking with
me, Mr. Yusick responded that we would be willing to conduct a
settlement conference, failing which we would set another deadline for
plaintiff's response to the summary judgment motion (id).*fn5
In reply, Ms. Agola stated: "we feel we may be able to
resolve this. If we cannot resolve this by Friday, we will file a Rule
6 b motion
to extend the time to respond. I am currently preparing for a trial
date certain of April 17 before Judge Siragusa and I will need time to
complete my submission" (id.).
On Friday, March 30, 2012 the parties filed a Stipulation of Dismissal , signed by counsel for all parties, stating that the action "is dismissed in its entirety, with each party to bear its own costs and attorneys' fees". By Text Order dated March 31, 2012 , Judge Arcara approved the Stipulation, and ordered the Clerk of this court to close the case. Thereafter, plaintiff moved to reopen this action , arguing that he did not authorize Ms. Agola to discontinue the case. In recommending that the motion be granted, I concluded that Ms. Agola had not given plaintiff a meaningful choice as to whether to discontinue, but instead had unilaterally told him - on the day opposing papers were due - that she could not oppose the motion. June 13, 2012 Report and Recommendation , pp. 9-11.That recommendation was subsequently adopted by Judge Arcara .
A. Should Ms. Agola Be Sanctioned?
"Although prior to 1983, Rule 11 contemplated the imposition of sanctions only upon a finding of bad faith, the 1983 revision of the Rule substituted an objective standard of reasonableness." Sussman v. Bank of Israel, 56 ...