11-2144
Viola v. United States of America


                                    UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 28th day of September, two thousand twelve.

Present:
            CHESTER J. STRAUB,
            ROBERT D. SACK,
            ROBERT A. KATZMANN,
                  Circuit Judges.
________________________________________________

ANTHONY VIOLA,

                   Plaintiff-Appellant,

                   v.                                                   11-2144

UNITED STATES OF AMERICA,

            Defendant-Appellee.
________________________________________________

FOR APPELLANT:                        ANTHONY VIOLA, Pro Se, White Deer, PA.

FOR APPELLEES:                        LORETTA E. LYNCH, United States Attorney for the Eastern
                                      District of New York, Brooklyn, NY (Richard K. Hayes, Varuni
                                      Nelson, Assistant United States Attorneys, of counsel).



         Appeal from the United States District Court for the Eastern District of New York

(Johnson, J.).
       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the March 10, 2011 order of the District Court be and hereby is AFFIRMED,

in part, and VACATED, in part, and the case is REMANDED to the district court for further

proceedings in accordance with this order.

       Appellant, Anthony Viola, proceeding pro se, appeals from an order of the district court

imposing leave-to-file and monetary sanctions against him. We assume the parties’ familiarity

with the underlying facts and procedural history of the case.

       This Court “reviews all aspects of a District Court’s decision to impose sanctions for

abuse of discretion.” United States v. Seltzer, 

, 39 (2d Cir. 2000) (internal quotation

marks omitted); see also Robert v. Dep’t of Justice, 439 F. App’x 32, 34 (2d Cir. 2011)

(Summary Order) (“We review for abuse of discretion a district court’s decision to impose a

filing injunction, or ‘leave-to-file’ sanctions . . . .”). “[D]ue process requires that courts provide

notice and [an] opportunity to be heard before imposing any kind of sanctions.” Schlaifer Nance

& Co. v. Estate of Warhol, 

, 334 (2d Cir. 1999) (citation omitted). Specifically,

“[a]t a minimum, the notice requirement mandates that the subject of a sanctions motion be

informed of,” inter alia, “the source of authority for the sanctions being considered.” Id. This

requirement is fulfilled by the identification of the relevant Federal Rule of Civil Procedure or

statute that warrants imposition of a sanction. Id. (finding that a motion for sanctions that

focused “chiefly on Rule 11,” but that also “invoked and set forth the standards for sanctions

under the District Court’s inherent power and 28 U.S.C. § 1927 as well,” provided notice even

though “the ultimate bases for the sanctions were the District Court's inherent power and 28

U.S.C. § 1927”).

       Following an independent review of the record, we find that the district court did not

abuse its discretion in imposing a leave-to-file sanction. As this Court has noted previously in

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this case, the “procedure for imposing leave-to-file sanctions involves three stages: (1) the court

notifies the litigant that future frivolous filings might result in sanctions; (2) if the litigant

continues this behavior, the court orders the litigant to show cause as to why a leave-to-file

sanction order should not issue; and (3) if the litigant’s response does not show why sanctions

are not appropriate, the court issues a sanctions order.” See Viola v. United States, 307 F. App’x

539, 539 (2d Cir. 2009) (Summary Order). The record reveals that, after this Court’s January

2009 order remanding to the district court, the district court: (1) held a hearing in May 2009, at

which Viola was notified that future frivolous filings could result in sanctions; (2) entered an

order in August 2009, instructing Viola to show cause why leave-to-file sanctions should not be

imposed; (3) received Viola’s response to the order to show cause; (4) held a conference in April

2010 to discuss Viola’s response to the order to show cause; and (5) entered an order, in March

2011, imposing leave-to-file and monetary sanctions. Consequently, the record establishes that

the district court properly followed the procedure for imposing leave-to-file sanctions. Further,

in light of Viola’s frequent filings in the district court, many of which sought to upset the district

court’s 2004 judgment, it cannot be said that the district court abused its discretion in imposing a

leave-to-file sanction. See In re Martin-Trigona, 

, 1261 (2d Cir. 1984) (“Federal

courts have both the inherent power and the constitutional obligation to protect their jurisdiction

from conduct which impairs their ability to carry out Article III functions.”); see also Shafii v.

British Airways, PLC, 

, 571 (2d Cir. 1996) (stating that a district court may “impose

sanctions against litigants who abuse the judicial process”).

        With respect to the imposition of a monetary sanction, however, a review of the record

reveals that Viola was not provided with notice or an opportunity to be heard until after this

sanction was imposed. Specifically, a review of the record reveals that, in its August 2009 order,

the district court directed Viola to “show cause . . . why leave-to-file sanctions should not be

                                                   -3-
imposed,” and did not mention the possibility of a monetary sanction. Such an order provided no

notice that the district court contemplated imposing monetary sanctions against Viola. Moreover,

because Viola had no reason to address the possibility of monetary sanctions, his response to the

August 2009 order cannot qualify as an opportunity to be heard on that possibility. Finally,

because the district court’s March 2011 order did not cite to any statute or rule providing for the

imposition of monetary sanctions, this Court cannot determine whether the district court

“invoked and set forth” the source of its authority in its earlier communications with Viola. See

Schlaifer Nance & Co., 194 F.3d at 334. Consequently, to the extent the district court’s March

2011 order imposed a monetary sanction, that portion of its order is vacated. Id.

       We have considered Viola’s remaining arguments and find them to be without merit.

The judgment of the district court is therefore AFFIRMED in part and VACATED in part and

the case is REMANDED for further proceedings in accordance with this order.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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