United States District Court, E.D. New York
MEMORANDUM AND ORDER
ORENSTEIN U.S. Magistrate Judge
Carl Goodwin ("Goodwin") has accused defendant MTA
Bus Company (the "MTA") of unlawfully
discriminating against him on the basis of his disability.
See Docket Entry ("DE") 1 (Complaint). The
MTA now asks the court to impose sanctions on Goodwin's
former counsel, Frank & Associates, P.C.
("F&A"), for having filed a frivolous
complaint, and to award it reasonable attorneys' fees for
defending against Goodwin's claims. See DE 49;
Fed.R.Civ.P. 11 ("Rule 11"); 28 U.S.C. § 1927
("Section 1927"). Upon a referral from the
Honorable Roslynn R. Mauskopf, United States District Judge,
I now deny the defendant's motion.
then represented by F&A, filed his Complaint on August
12, 2014, accusing the MTA of failing to accommodate his
disability and discriminating against him by maintaining an
inflexible policy that did not provide for reasonable
accommodation for probationary employees, and thereby
violating his rights under federal, state, and municipal law.
Complaint ¶ 1; see Americans with Disabilities
Act, 42 U.S.C. § 12101, et seq. (the
"ADA"); New York State Human Rights Law, N.Y. Exec.
Law §§ 296-97; New York City Human Rights Law,
N.Y.C. Admin. Code § 8-107. Goodwin alleged that the MTA
terminated his employment as a bus driver for being medically
disqualified to operate a transit vehicle on the basis of
taking anticoagulant medication for his deep vein thrombosis
("DVT") condition. Complaint ¶¶ 31-41. He
further alleged that he had objected to his termination and
requested reasonable accommodation for his disability -
specifically a restricted, non-driving work assignment - but
was told he was ineligible for such accommodation because he
was not a full time employee. Id. ¶ 33.
filing suit, Goodwin filed a charge of discrimination with
the U.S. Equal Employment Opportunity Commission
("EEOC"). Id. ¶ 5. On February 10,
2014, the EEOC determined that there was probable cause to
believe that the MTA had discriminated against Goodwin
because of his disability, that it had retaliated against him
because of his participation in a legally protected activity,
and that the challenged MTA policy was discriminatory.
See Id. ¶ 6; DE 64 (EEOC Final Determination
dated Feb. 10, 2014; originally submitted at a conference on
Apr. 7, 2016). The EEOC then issued a right-to-sue letter on
July 1, 2014, see DE 1 at 12-13; and Goodwin then
timely filed this action on August 12, 2014.
parties exchanged discovery from January 6 through November
5, 2015. See DE 10 through DE 29. When, after
several delays, discovery closed on the latter date, I
afforded the MTA an opportunity to seek leave
"promptly" to file a motion for summary judgment.
DE 29. The MTA did so that same day, arguing that Goodwin was
never able to establish a disability discrimination case
under the ADA because he was neither disabled within the
meaning of that law, nor was he "otherwise
qualified" to perform the essential functions of his job
as a bus operator because the state law forbids him from
doing so. DE 30. The court held a pre-motion conference and
set a briefing schedule for the motion on December 3, 2015.
See DE 32.
to the court's schedule, the MTA served its motion papers
on January 28, 2016. Goodwin's response was due on March
24, 2016. The day before that deadline, on March 23, 2016,
F&A moved to withdraw from representing Goodwin. DE 35.
The firm explained that upon receiving the MTA's motion,
it "engaged in diligent research … and …
concluded there [was] no valid defense to [it]." DE 35-1
("Frank Decl.") ¶ 5. On that basis, F&A
determined that filing a response to the summary judgment
motion would violate Rule 11. Id.
immediately responded by requesting sanctions and noting that
F&A had already violated Rule 11's mandate to
"conduct a reasonable inquiry into the causes of
action" and refrain from filing frivolous pleadings. DE
36. F&A opposed the request for sanctions, arguing that
it filed the Complaint based upon the EEOC's findings
that there was reasonable cause to believe that MTA had
discriminated against Goodwin because of his disability. DE
39. I held a conference on the motion to withdraw on April 7,
2016. Goodwin appeared and consented to the withdrawal, but
his counsel from F&A did not appear; I nevertheless
granted the motion to withdraw. DE 41.
filed the instant fully briefed motion on June 13, 2016
See DE 49-1 (memorandum in support)
("Memo."); DE 50 (memorandum in opposition)
("Opp."); DE 51 (reply memorandum)
("Reply"). The court referred it to me by Order
dated June 13, 2016.
filing the Complaint, Goodwin's counsel necessarily made
three certifications to the court to the best of his
knowledge, information, and belief: that the pleading was
"not being presented for any improper purpose[;]"
that its claims were "warranted by existing law[;]"
and that counsel had or expected he would likely secure
evidentiary support for all of the Complaint's factual
allegations. Fed.R.Civ.P. 11(b). Rule 11 places an
"'affirmative duty on each attorney to conduct a
reasonable inquiry into the viability of a pleading before it
is signed.'" Gutierrez v. Fox, 141 F.3d
425, 427 (2d Cir. 1998) (quoting Eastway Constr. Corp. v.
City of New York, 762 F.2d 243, 253 (2d Cir. 1985)).
"'The standard for triggering the award of fees
under Rule 11 is objective unreasonableness, ' and is not
based on subjective beliefs of the person making the
statement." Storey v. Cello Holdings,
L.L.C., 347 F.3d 370, 387 (2d Cir. 2003) (quoting
Margo v. Weiss, 213 F.3d 55, 65 (2d Cir. 2000)).
Sanctions are appropriate where "it should have been
patently obvious to any attorney who had familiarized himself
with the law" that his action was frivolous. Four
Keys Leasing & Maint. Corp. v. Simithis, 849 F.2d
770, 773 (2d Cir. 1988); see also Pisciotta v.
Dobrynina, 2009 WL 1913393, at *2 (E.D.N.Y. July 2,
2009) ("'Rule 11 explicitly and unambiguously
imposes an affirmative duty on each attorney to conduct a
reasonable inquiry into the viability of a pleading before it
is signed.'" (quoting Four Keys Leasing,
849 F.2d at 774)).
the imposition of sanctions is within the province of the
district court, 'any such decision [should be] made with
restraint and discretion.'" Pannonia Farms, Inc.
v. USA Cable, 426 F.3d 650, 652 (2d Cir. 2005) (quoting
Schlaifer Nance & Co. v. Estate of Warhol, 194
F.3d 323, 334 (2d Cir. 1999)). Even where a court has
determined that Rule 11(b) has been violated, "the
decision whether to impose sanctions is not mandatory, but
rather is a matter for the court's discretion."
McLeod v. Verizon New York, Inc., 995 F.Supp.2d 134,
145 (E.D.N.Y. 2014). "'[W]hen divining the point at
which an argument turns from merely losing to losing
and sanctionable, … courts [must] resolve all
doubts in favor of the signer' of the pleading."
Dagostino v. Comput. Credit, Inc., 2017 WL 776086,
at *10 (E.D.N.Y. Feb. 28, 2017) (quoting Rodick v. City
of Schenectady, 1 F.3d 1341, 1350 (2d Cir. 1993));
see also MacDraw, Inc. v. CIT Grp. Equip. Fin.,
Inc., 73 F.3d 1253, 1259 (2d Cir. 1996) (noting that
"Rule 11 sanctions must be imposed with caution").
under the "safe harbor" provision of Rule 11(c), a
motion for sanctions must be served, but "must not be
filed or be presented to the court if the challenged paper,
claim, defense, contention or denial is withdrawn or
appropriately corrected within 21 days of service or within
another time the court sets." Fed.R.Civ.P. 11(c)(2). An
informal warning in the form of a letter without service of a
separate Rule 11 motion is not sufficient to trigger the
start of the safe harbor period, but the advisory committee
note to the rule explains that "[i]n most cases …
counsel should be expected to give informal notice to the
other party … of a potential violation before
proceeding to prepare and serve a Rule 11 motion."
Star Mark Mgmt., Inc. v Koon Chun Hing Kee Soy &
Sauce Factory, Ltd., 682 F.3d 170, 175 (2d Cir. 2012)
(quoting Fed.R.Civ.P. 11(b)-(c) advisory committee's note
to 1993 Amendments). Notably, the advisory committee note
goes on to state that "the motion should be served
promptly after the inappropriate paper is filed, and, if
delayed too long, may be viewed as untimely."
Fed.R.Civ.P. 11(b)-(c) advisory committee's note to 1993
Amendments; see also In re Pennie & ...