Filed: Jun. 08, 2009
Latest Update: Mar. 02, 2020
Summary: 07-0847-cv Gollomp v. Spitzer UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2008 (Argued: January 13, 2009 Decided: June 8, 2009) Docket No. 07-0847-cv BERNARD P. GOLLOMP, Plaintiff-Counter-Defendant-Appellant, -v.- ELIOT SPITZER, individually and in his official capacity as Attorney General of the State of New York, STATE OF NEW YORK , UNIFIED COURT SYSTEM OF THE STATE OF NEW YORK , TOWN OF ORANGETOWN , THOM KLEINER , in his official capacity as Supervisor for the Town of Or
Summary: 07-0847-cv Gollomp v. Spitzer UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2008 (Argued: January 13, 2009 Decided: June 8, 2009) Docket No. 07-0847-cv BERNARD P. GOLLOMP, Plaintiff-Counter-Defendant-Appellant, -v.- ELIOT SPITZER, individually and in his official capacity as Attorney General of the State of New York, STATE OF NEW YORK , UNIFIED COURT SYSTEM OF THE STATE OF NEW YORK , TOWN OF ORANGETOWN , THOM KLEINER , in his official capacity as Supervisor for the Town of Ora..
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07-0847-cv
Gollomp v. Spitzer
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2008
(Argued: January 13, 2009 Decided: June 8, 2009)
Docket No. 07-0847-cv
BERNARD P. GOLLOMP,
Plaintiff-Counter-Defendant-Appellant,
-v.-
ELIOT SPITZER, individually and in his official
capacity as Attorney General of the
State of New York, STATE OF NEW
YORK , UNIFIED COURT SYSTEM OF THE
STATE OF NEW YORK , TOWN OF
ORANGETOWN , THOM KLEINER , in his
official capacity as Supervisor for the
Town of Orangetown, BRUCE
MULDOON , ESQ., individually and in his
capacity as Law Clerk, ROCKLAND
COUNTY COURT, ERIC DUBBS,
MICHELLE DUBBS, and SEYMOUR DUBBS,
Defendants-Appellees.
Before: LEVAL, CABRANES, and LIVINGSTON , Circuit Judges.
Plaintiff Bernard P. Gollomp appeals from a January 14, 2009 judgment of the United States
District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge), dismissing his
complaint and imposing sanctions on his attorneys. Plaintiff had alleged that defendants—the State of
New York, several state agencies and departments (including the state judiciary), various state and local
officials (including a former Attorney General and a Law Secretary to a deceased Justice of the New
York State Supreme Court), and plaintiff’s neighbors—conspired to deprive plaintiff of his civil rights.
1
We affirm the judgment of the District Court, and write (1) to adopt expressly the District Court’s
ruling that Eleventh Amendment sovereign immunity bars lawsuits against the New York State Unified
Court System, and (2) to explain the particular circumstances that support the District Court’s finding
of “bad faith” and imposition of sanctions pursuant to 28 U.S.C. § 1927.
Affirmed.
MADELINE SHEILA GALVIN , Galvin & Morgan, Delmar, NY, for
Plaintiff-Counter-Defendant-Appellant.
KATHLEEN M. ARNOLD , Assistant Solicitor General (Andrew
M. Cuomo, Attorney General of the State of New York,
Barbara D. Underwood, Solicitor General, Andrew D.
Bing, Deputy Solicitor General, on the brief), Office of the
Attorney General of the State of New York, Albany,
NY, for Defendants-Appellees.
JOSÉ A. CABRANES, Circuit Judge:
We consider in this opinion (1) whether Eleventh Amendment sovereign immunity bars suits
against the Unified Court System of the State of New York, and (2) whether the imposition on
plaintiff’s counsel of attorneys fees as a form of sanctions pursuant to 28 U.S.C. § 1927 was an abuse of
discretion.
BACKGROUND
Plaintiff Bernard P. Gollomp appeals from a January 14, 2009 judgment of the United States
District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge), dismissing his
second amended complaint and imposing sanctions on his attorneys pursuant to 28 U.S.C. § 1927.
Defendants-appellants are the State of New York, the New York State Unified Court System (i.e., New
York’s state judiciary), several state and local officials (including Elliot Spitzer, the former Attorney
General, and Bruce Muldoon, a Law Secretary to a deceased Justice of the New York State Supreme
Court), the Town of Orangetown, and several private citizens who are plaintiff’s neighbors.
2
State Court Proceedings
The controversy underlying this litigation began in 1996, when plaintiff sued his neighbors,
defendants Eric and Michelle Dubbs, over alleged damage to plaintiff’s property caused by water
runoff from the Dubbs’s property. On January 13 2000, Justice Robert R. Meehan of the New York
State Supreme Court, Rockland County, granted summary judgment in favor of defendants. See
Gollomp v. Dubbs, No. 3092/96, slip op. at 1 (N.Y. Sup. Ct. Jan. 13, 2000) (“Gollomp I”), reprinted in Joint
Appendix (“J.A.”) 97. In May 2001, the Appellate Division affirmed, concluding that “plaintiff failed
to raise a triable issue of fact as to whether artificial means were used to divert surface water from the
Dubbs’ property onto his property, or whether the improvements to their property were made in good
faith.” Gollomp v. Dubbs, 283 A.D.2d 550, 550 (2d Dep’t 2001) (“Gollomp II”). The New York Court of
Appeals denied leave to appeal on September 13, 2001. See Gollomp v. Dubbs,
96 N.Y.2d 721, 721
(2001) (“Gollomp III”).
In September 2005, plaintiff filed a claim against various State entities1 in the New York Court
of Claims,2 alleging “[c]ontinuing and ongoing violations of laws, rules and regulations, including but
not limited to . . . Environmental Conservation Law . . . [the Freshwater] Wetlands [Act] . . . , Highway
Law, . . . Public Officers Law, . . . Navigation Law and Transportation Law.” Appellees’ Special
1
The defendants were the New York State Department of Health, the New York Public
Health Council, the New York State Department of Environmental Conservation, the New York
State Department of Transportation, the Interstate Commission on the Delaware River Basin, the
Interstate Sanitation District, and the Hudson River Valley Greenway Communities Council.
2
The New York Court of Claims is the exclusive forum among New York’s state courts for
litigating claims for money damages against New York State. See N.Y. Const. Art. VI, § 9 (“The
court [of claims] shall have jurisdiction to hear and determine claims against the state or by the state
against the claimant or between conflicting claimants as the legislature may provide.”); N.Y. Ct. Cl.
Act § 8 (2009) (“The state hereby waives its immunity from liability and action and hereby assumes
liability and consents to have the same determined in accordance with the same rules of law as
applied to actions in the supreme court against individuals or corporations, provided the claimant
complies with the limitations of this article.”); Morell v. Balasubramanian, 70 N.Y.2d 297, 300 (1987)
(“Since the adoption of the Court of Claims Act [in 1929], the State has been subject to suit for
damages, but only in the Court of Claims.”).
3
Appendix (“Appellees’ S.A.”) 29 (Claim ¶ 3). Plaintiff was represented in the Court of Claims by James
E. Morgan, who also represented plaintiff in this action before the District Court. In May 2006, the
Court of Claims granted defendants’ motion to dismiss principally because plaintiff had not served a
copy of his claim on the Attorney General within 90 days of the date of accrual, see N.Y. Ct. Cl. Act §
10(3) (requiring that a claim “be filed and served upon the attorney general within ninety days after the
accrual of such claim”), which plaintiff alleged was November 22, 1994. Gollomp v. State of New York,
No. 2006-030-541, Claim No. 111493, slip op. (N.Y. Ct. Cl. May 22, 2006) (“Gollomp IV”), reprinted in
Appellees’ S.A. 33-36. The Court of Claims added the following observation:
Additionally, the Claimant does not state a cause of action against the State of New
York[ ] by merely alleging that there were “acts or omissions of the Defendants” relative to a
laundry list of State and Federal statutes, at some unspecified time and place, nor does the
pleading comply with the statutory and regulatory requirements for a pleading justiciable in the
Court of Claims.
. . . Indeed[,] from a fair reading of the four corners of the Claim and the vague
language contained therein, the Court cannot tell the nature of the Claim, and by what conduct
the State is alleged to have caused this Claimant any injury.
Gollomp IV, Appellees’ S.A. 36.
Letter to Chief Judge Kaye
On March 15, 2006, while plaintiff’s claim was pending before the New York Court of Claims,
plaintiff wrote to Chief Judge Judith S. Kaye of the New York Court of Appeals, alleging that Justice
Meehan was “medically incapacitated” at the time he granted summary judgment against plaintiff, and
that Justice Meehan’s signature on the January 13, 2000 Order was forged. J.A. 102 (Letter of Bernard
P. Gollomp, Mar. 15, 2006, at 1). Plaintiff attached 35 exhibits to his letter and sent a copy to James E.
Morgan of Galvin & Morgan. On March 30, 2006, Chief Judge Kaye responded through her Counsel
that the Chief Judge “may exercise her judicial authority only in cases that . . . are properly before the
Court of Appeals,” and that plaintiff “h[ad] no case pending before that Court.” J.A. 107 (Letter of
Mary C. Mone, Counsel to the Chief Judge, Mar. 30, 2006). Plaintiff replied in a letter dated April 7,
2006 that Chief Judge Kaye’s response was “perplexing,” and urged the Chief Judge to “expeditiously
4
handle this violation of [his] Civil Rights.” J.A. 106 (Letter of Bernard P. Gollomp, Apr. 7, 2006).
Plaintiff’s counsel, James Morgan, was copied on his reply.
Initial Federal Complaint
Plaintiff commenced a lawsuit in the United States District Court for the Northern District of
New York in June 2006—one month after the New York Court of Claims denied his claim. In his
initial complaint—which was 61 pages long and contained 493 numbered paragraphs and 22 causes of
action, plaintiff alleged violations of his rights under the First, Fourth, Fifth, Sixth, and Fourteenth
Amendments—by all of the defendants-appellees, including the New York State Department of
Environmental Conservation, the New York State Department of Health, the County of Rockland,
Rockland County Drainage, the Board of Rockland County Soil and Water Conservation District, the
Rockland County Clerk, and the Town Attorney for the Town of Orangetown. All of plaintiff’s causes
of action were brought under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985(3), and 1986. His
theory of the case was that (1) Justice Meehan, who had since passed away, was not mentally
competent to render a decision; (2) that Justice Meehan’s signature on the January 13, 2000 Order was
forged; and (3) that the defendants—including the New York Unified Court System—conspired to
cover-up the forgery and deprived plaintiff of his civil rights. So far as we can tell, plaintiff’s decision
to name the Unified Court System in his complaint was a consequence of his correspondence with
Chief Judge Kaye.
Appearing below are two examples of the specific claims made in plaintiff’s initial complaint,
taken from his third and thirteenth causes of action:
AS AND FOR A THIRD CAUSE OF ACTION . . .
300. Pursuant to New York State Constitution Article VII, '8, local governments enact,
through their police power establish land use regulations through local zoning codes
which are municipal specific.
301. As set forth herein, Defendants, exercise supra-municipal zoning power through its
land use regulation.
5
302. By allowing the Forged Meehan Decision and Order to stand, Defendants effectively
engaged in the unconstitutional delegation of authority by allowing the judicial arm of
state government to assume what constitutes legislative power in the form of revamping
- duly adopted laws, rules and regulations and in the process contravening applicable
Home Rule requirements.
303. As a result of those Constitutional violations by Defendants, Gollomp suffered and
continues to suffer damage.
304. Plaintiff suffered monetary damage in an amount in excess of Two Million Five
Hundred Thousand and 00/100 ($2,500,000.00) Dollars as a result of Defendants’
actions.
J.A. 58 (Compl. ¶¶ 300-304) (verbatim).
AS AND FOR A THIRTEENTH CAUSE OF ACTION . . .
409. Defendants’ have deprived Gollomp of the property rights guaranteed to him under
and by virtue of the United States Constitution.
410. Defendants, acting under the color of State law, have followed a pattern of conduct
designed to intimidate and retaliate against the Gollomp for his attempt to exercise his
civil rights.
411. Defendants individually and collectively acted in such a manner as to create a hostile
environment, including a hostile home environment in which Gollomp and his family
reside.
412. Defendants engaged in and continue to engage in conduct designed to and intended to
intimidate and harass Gollomp.
413. Defendants acted singly and in concert conspired and continue to and are conspire to
restrict Gollomp’s use of his home and property.
414. Defendants’ actions complained of herein had caused Gollomp and his family to incur
expenses and to suffer physically from anger, frustration, suspicion and concern.
J.A. 70-71 (Compl. ¶¶ 409-14) (verbatim). In addition to these and similar allegations contained in the
22 causes of action, plaintiff also alleged that various government agencies and officials not named as
defendants—including the Federal Bureau of Investigation, Senator Charles E. Schumer, Senator
Hillary Rodham Clinton, and the Rockland County District Attorney—had not properly investigated
his claims of judicial corruption and conspiracy.
6
First Amended Complaint
In August 2006, the “State defendants”—New York State, the Unified Court System, the other
named State agencies, and State officials in their official capacities—sent plaintiff’s counsel a draft
memorandum of law in support of a motion for sanctions under Rule 11 of the Federal Rules of Civil
Procedure.3 The State defendants argued in their memorandum that plaintiff had, among other
transgressions, asserted frivolous claims that were barred by the Eleventh Amendment and had filed
prolix pleadings. Some negotiations between plaintiff and the State defendants ensued and in
September 2006, and plaintiff filed a first amended complaint that contained only 12 causes of action
and dropped several defendants from the caption. As the District Court observed, the allegations in
the first amended complaint were substantially similar to the allegations in the second amended
complaint, which is discussed in detail below.
The November 8, 2006 Teleconference
Unconvinced that plaintiff’s alterations had cured the sanctionable defects in his initial
complaint, the State defendants filed a Rule 11 motion on November 3, 2006. On November 8,
Magistrate Judge Randolph F. Treece held a teleconference to discuss the motion. During the course
of that proceeding, plaintiff’s counsel acknowledged that he understood the Eleventh Amendment
3
Rule 11 of the Federal Rules of Civil Procedure states, in relevant part:
A motion for sanctions must be made separately from any other motion and must describe
the specific conduct that allegedly violates Rule 11(b). The motion must be served under
Rule 5, but it 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 after
service or within another time the court sets. If warranted, the court may award to the
prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.
Fed. R. Civ. P. 11(c)(2); see also id. 11(b) (“By presenting to the court a pleading, . . . an attorney . . .
certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances . . . (2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law . . . .”);
id. 11(c)(1) (“Absent exceptional circumstances, a law
firm must be held jointly responsible for a violation committed by its partner, associate, or
employee.”).
7
objections raised by the State defendants.4 In addition, Magistrate Judge Treece inquired why the State
defendants had filed a motion for sanctions instead of a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. The following exchange occurred:
THE COURT: . . . [W]hy aren’t you doing this by a 12(b)(6) Motion as opposed to a Rule 11
Motion?
MS. COSTELLO [counsel for State defendants]: Well, we are doing a Rule 11 Motion because
we believe that the Plaintiff’s attorneys have persistently made these types of allegations against
the State Defendant, has been sanctioned in the past, and persist in making these allegations,
and sanctions are warranted.
MR. MORGAN [counsel for plaintiff]: We were not sanctioned in the past, but that’s beside
the point.
MS. COSTELLO: Well, that’s not the information we have and there are cases that we can cite
and have cited in our motion where you have been sanctioned. . . .
MR. MORGAN: That has no [e]ffect on this case.
J.A. 170-71 (Tr. of Proceedings, Nov. 8, 2006, 10:20-11:11). Later in the conference, plaintiff’s counsel
added, “we’ve faced [Rule 11] motions before; we have always defeated these motions.” J.A. 188 (Tr.
of Proceedings, Nov. 8, 2006, 28:5-6).
4
THE COURT: And had you discussed the Eleventh Amendment with Mr. Morgan?
MR. MORGAN [counsel for plaintiff]: Yes, Your Honor.
THE COURT: And Mr. Morgan, do you understand the Eleventh Amendment and —
MR. MORGAN: Yes, I understand their arguments, but in this case, in the Amended
Complaint we have case law that support the causes of action for each and every cause of
action.
....
THE COURT: Well, I just want to go back. Mr. Morgan, I mean, if there’s been a
discussion about the Eleventh Amendment that you can’t sue the State, and you can’t sue
State officials, you have to sue them individually; how did you plead against, for example,
Defendant Elliot Spitzer in his official capacity?
MR. MORGAN: In his official capacity for failure to act, failure to perform his duties.
J.A. 172, 174 (Tr. of Proceedings, Nov. 8, 2006, 12:17-25, 14:4-11).
8
In fact, just seven months earlier, plaintiff’s counsel had been sanctioned by the New York
State Appellate Division, Third Department, for asserting false material factual statements. See Korbel v.
Zoning Bd. of Appeals of Town of Horicon, 28 A.D.3d 888, 891 (3d Dep’t 2006) (concluding that “plaintiff
and his counsel have engaged in conduct that is completely without merit” and “impos[ing] a sanction
of $1,000 against plaintiff personally and $1,000 against his counsel, James Morgan” (internal quotation
marks omitted)). Seven years earlier, Judge McAvoy of the United States District Court for the
Northern District of New York sanctioned plaintiff’s counsel pursuant to Rule 11 for asserting
frivolous claims against state government entities that were barred by Eleventh Amendment sovereign
immunity. See Gaboury v. Town of Roxbury, No. 98-CV-1753,
1999 U.S. Dist. LEXIS 5810, at *3-4, 8-16
(N.D.N.Y. Apr. 19, 1999) (imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil
Procedure upon finding that (1) the firm of Galvin & Morgan “should have been aware of the
fundamental subject matter jurisdiction issues imposed by the Eleventh Amendment;” (2) the claims
pursuant to § 1983 “lack[ed] . . . factual support for their § 1983 claims against the State defendants;”
and (3) claims raised under § 1985(3), like the claims under § 1983, were “frivolous” and “egregious”).
In addition, at the time of the November 8 teleconference, plaintiff’s counsel was subject to an
order to show cause why he should not be sanctioned pursuant to Rule 11 in another case before the
District Court. See Kosich v. N.Y. State Dep’t of Health, No. 06-CV-246, slip op. at 7 (N.D.N.Y. Aug. 21,
2006). That case also involved claims against State defendants that were barred by Eleventh
Amendment sovereign immunity. Id. at 2-3. Nevertheless, when questioned by Magistrate Judge
Treece, who had been alerted to the pending Rule 11 motion by defense counsel, plaintiff’s counsel
refused to explain the circumstances of the pending motion:
THE COURT: And let me just ask one other question; you have mentioned that Judge Scullin
sua sponte has raised a Rule 11[ violation. H]as there been a ruling on that Rule 11, and is that
Rule 11 applicable to this case?
MR. MORGAN: The answer is two-fold, Your Honor. It’s pending decision. We responded
pursuant to his direction. It’s tangentially related, but not directly on point.
9
THE COURT: Okay, so what does that mean?
MR. MORGAN: Not related to this case.
J.A. 185-86 (Tr. of Proceedings, Nov. 8, 2006, 25:24-26:7). In fact, Kosich was directly on point. As the
District Court explained in that case,
[T]he Court finds it troubling that Mr. Morgan and Ms. Galvin, despite having practiced in this
District for more than twenty-five years, continue to assert claims on behalf of their clients
against the State of New York and/or its departments and agencies despite this Court’s
repeated admonitions and the well-established principles of Eleventh Amendment immunity.
. . . Accordingly, the Court hereby directs Mr. Morgan and Ms. Galvin to show cause why they
have not violated Rule 11(b)(2) and why, if this Court finds that such a violation has occurred,
it should not impose sanctions against them for violating Rule 11(b)(2).
Kosich, No. 06-CV-246, slip op. at 6-7.
At the close of the November 8 conference, Magistrate Judge Treece set a schedule for filing a
second amended complaint, briefing on an amended on Rule 11 motion, and a motion to dismiss.
Second Amended Complaint
Plaintiff filed a second amended complaint on November 15, 2006 alleging ten causes of
action—reduced from 22 causes of action in the original complaint and 12 in the first amended
complaint—including (1) that Spitzer violated his “affirmative obligation to prevent wrongs conspired
to be done” according to several federal statutes; (2) that the Unified Court System—acting through
Chief Judge Kaye—did not properly investigate plaintiff’s allegations of a forged signature;5 (3) that all
the State defendants “individually and in concert engaged in conduct . . . which violated Plaintiff[’]s
constitutionally protected rights;” (4) that all defendants violated plaintiff’s First Amendment right to
petition the courts and defamed him in the process; and (5) that the Dubbs should have known that
signatures on the state court orders had been forged.
5
All of plaintiff’s claims against the Unified Court System, relating to Chief Judge Kaye’s
alleged failure to investigate his claims, are based on the exchange of letters with the Chief Judge’s
chambers in March 2006. See J.A. 218-221 (2d Am. Compl. ¶¶ 96-117).
10
The District Court’s Decisions
On the same day that plaintiff filed his second amended complaint, the State defendants filed a
motion to dismiss seeking, for the first time, sanctions in the form of attorney’s fees under 28 U.S.C. §
1927.6
The District Court held oral argument on all the pending motions on January 26, 2007. In an
oral decision from the bench at the close of oral argument, the District Court granted defendants’
motions to dismiss the second amended complaint in its entirety and granted the State defendants’
request for sanctions pursuant to § 1927. The District Court expanded its reasons for decision in a
written Memorandum Decision and Order dated February 5, 2007, see Gollomp v. Spitzer, No. 06-cv-802,
2007 U.S. Dist. LEXIS 8524 (N.D.N.Y Feb. 5, 2007) (“Gollomp V”).
Regarding the remaining “State defendants”—Spitzer and Muldoon, in their official capacities,
the State of New York, and the Unified Court System—the District Court concluded that plaintiff’s
civil rights claims were barred by Eleventh Amendment sovereign immunity. See id. at *9-11 (citing
McGinty v. New York,
251 F.3d 84, 91 (2d Cir. 2001)).7 The Court dismissed the § 1983 claims against
Spitzer and Muldoon in their individual capacities because plaintiff had not specified how either
defendant was “personally involved in the alleged violation of his constitutional rights.” Gollomp V,
2007 U.S. Dist. LEXIS 8524, at *9-14 (citing Fed. R. Civ. P. 12(b)(6)). In the same vein, the Court
dismissed claims under §§ 1985(3) and 1986 because “[p]laintiff’s complaint is devoid of any specific
factual allegations that would support his conclusory assertions that Defendants Spitzer and Muldoon
6
28 U.S.C. § 1927 states: “Any attorney or other person admitted to conduct cases in any
court of 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.”
7
In the alternative, the Court also concluded that the claims against Spitzer and Muldoon, in
their official capacities, the State, and the Unified Court System should be dismissed under Rule
12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim because “states, their
agencies and their officers and employees in their official capacities are not ‘persons’ for purposes of
§§ 1983, 1985(3), and 1986.” Gollomp V, 2007 U.S. Dist. LEXIS 8524, at *12.
11
conspired against him because of his age,” Gollomp V, 2007 U.S. Dist. LEXIS 8524, at *16; see also
id. at
*17-18. The Court also concluded that Muldoon was entitled to “absolute judicial immunity” for his
role as a Law Secretary.
Id. at *19 (quoting Oliva v. Heller,
839 F.2d 37, 40 (2d Cir. 1988) (extending
“absolute judicial immunity” to a law clerk to a federal judge)). The District Court also dismissed all
claims against the Town of Orangetown, the Town Supervisor, and the Dubbs for failure to state a
claim under Rule 12(b)(6). Gollomp V,
2007 U.S. Dist. LEXIS 8524, at *23.
Finally, the District Court ordered plaintiff’s counsel to pay the State’s attorneys’ fees pursuant
to § 1927. Id. at *29. After acknowledging that § 1927 requires a finding of “bad faith,”
id. at *25, the
District Court made three findings in support of imposing statutory sanctions. First, the Court deemed
“incredible” the assertion by plaintiff’s counsel that they had “researched all legal arguments and made
no legal argument that lacked merit.”
Id. at *28. The District Court noted that several courts had
already instructed them that similar claims against New York State were barred by the Eleventh
Amendment.
Id. (citing Salvador v. Lake George Park Comm’n, No. 98-CV-1987,
2001 U.S. Dist. LEXIS
23465, at *2 (N.D.N.Y Mar. 28, 2001); Gaboury,
1999 U.S. Dist. LEXIS 5810, at *3).8 Second, the
District Court found it “unfathomable” that plaintiff’s counsel would misrepresent his disciplinary
record to Magistrate Judge Treece. Gollomp V,
2007 U.S. Dist. LEXIS 8524, at *28. Third, the District
Court concluded that plaintiff’s counsel persisted in alleging legally unfounded claims despite “ample
opportunity in this case to withdraw the[m].”
Id. at *29. The Court then ordered supplemental
briefing on the amount of sanctions.
8
On appeal, defendants point out that, in addition to Salvador and Gaboury, this Court
rejected essentially the same arguments by plaintiff’s counsel ten years ago in an unpublished
summary order. See Evans v. N.Y. State Dep’t of Health, Nos. 98-7160, 98-7930, 1999 U.S. App.
LEXIS 18151, at *3 (2d Cir. July 30, 1999) (summary order) (“Eleventh Amendment immunity
therefore protects all the defendants, including the state employees acting in their official capacity.”).
Cf. Franceskin v. Credit Suisse, 214 F.3d 253, 256 n.1 (2d Cir. 2000) (“Here and elsewhere in this
opinion, we cite to cases decided by summary order . . . only as facts rather than as precedents.”); 2d
Cir. R. 32.1(b) (“Rulings by summary order do not have precedential effect.”), available at 28 U.S.C.
Rules Pamphlet, Pt. I, at 350 (2008).
12
The State of New York filed a “Bill of Costs” with a proposed order imposing sanctions on
February 2, 2007. Although plaintiff was required to respond by February 9, 2007, he waited until
February 15 to address the imposition of sanctions in a motion for reconsideration pursuant to Rule
60(b) of the Federal Rules of Civil Procedure.9 In the motion for reconsideration, plaintiff offered
several reasons why his claims were not frivolous, including the following analysis:
The Attorney General argued [that] this case is totally frivolous, having no merit, and that this is
clear from the face of the pleadings before this Court.
Were that the case, then there would have been no need for the extensive legal research and
drafting and work recorded by the Attorney General as done on this case and in preparing
Defendant’s motions made before this Court.
J.A. 448 (Pl.’s Aff. in Supp. of Mot. to Reargue, Feb. 15, 2007, ¶¶ 108-109).
Plaintiff filed his notice of appeal on February 23, 2007—before the District Court (1)
quantified the amount of sanctions on plaintiff’s counsel, (2) ruled on plaintiff’s motion for
reconsideration, or (3) entered judgment. By the time we held oral argument in this appeal on January
13, 2009, the District Court had not determined the amount of sanctions, ruled on plaintiff’s motion
for reconsideration, or entered judgment. On January 14, 2009, the District Court entered a
Memorandum Decision and Order denying plaintiff’s motion for reconsideration and ordering
attorney’s fees in the amount of $26,796.00 and costs in the amount of $130.20 pursuant to 28 U.S.C. §
9
Rule 60(b) of the Federal Rules of Civil Procedure states:
On motion and just terms, the court may relieve a party or its legal representative from a
final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
13
1927. The Clerk of the District Court entered judgment for defendants on the same day. On January
16, 2009, we ordered supplemental briefing from the parties regarding the District Court’s January 14
Memorandum Decision and Order and further directed that the notice of appeal shall be effective as of
January 14. See Fed. R. App. P. 4(a)(4)(B)(i) (“If a party files a notice of appeal after the court
announces or enters a judgment—but before it disposes of any motion [for relief under Rule 60 of the
Federal Rules of Civil Procedure]—the notice becomes effective to appeal a judgment or order, in
whole or in part, when the order disposing of the last such remaining motion is entered.”); cf. United
States v. Owen, 553 F.3d 161, 165 (2d Cir. 2009) (holding in abeyance an appeal in a criminal case
pursuant to Rule 4(b)(3)(B) of the Federal Rules of Appellate Procedure because the notice of appeal
had not become effective while a motion for a new trial was still pending before the district court).
Before us now is the entire judgment of the District Court. We therefore consider not only the
February 5, 2007 Order dismissing plaintiff’s claims and imposing sanctions, but also the January 14,
2009 Order quantifying sanctions and dismissing plaintiff’s motion for reconsideration.
DISCUSSION
We review de novo a district court’s grant or denial of a motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, including decisions based on Eleventh Amendment
sovereign immunity. See, e.g., Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 235 (2d
Cir. 2006).
Upon review of the record before us, we agree with the District Court’s disposition of
plaintiff’s civil rights claims substantially for the reasons stated in its February 5, 2007 Order. The
claims against the State defendants—Spitzer and Muldoon, in their official capacities, the State of New
York, and the Unified Court System—are barred by the Eleventh Amendment. See Gollomp V, 2007
U.S. Dist. LEXIS 8524, at *9-11. Plaintiff has failed to state a claim against Spitzer and Muldoon in
their individual capacities, the Town of Orangetown, the Town Supervisor, and the Dubbs pursuant to
14
§§ 1983, 1985(3), and 1986. See id. at *13-18. In addition, Muldoon is entitled to absolute immunity as
a law clerk to a state court judge because he was acting in a judicial capacity. See
id. at *18-19; see also
Oliva, 839 F.2d at 40 (holding that a law clerk “who was clearly assisting [a] judge in carrying out judicial
functions[ ] was covered by the doctrine of absolute immunity”); cf. Sheppard v. Beerman,
317 F.3d 351,
355 (2d Cir. 2003) (commenting, in the context of state court employment, that “in their role as
employees, law clerks amount to ‘extensions of the judges at whose pleasure they serve’” (quoting
Oliva, 839 F.2d at 40)).
We take this opportunity to address two aspects of the District Court’s decisions in greater
detail: (1) the application of Eleventh Amendment sovereign immunity to plaintiff’s claims against the
Unified Court System of the State of New York, and (2) the District Court’s imposition of sanctions
pursuant to 28 U.S.C. § 1927.
Eleventh Amendment Sovereign Immunity
The Eleventh Amendment states: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI; see also Woods, 466 F.3d at 236 (explaining that “[a]lthough the Amendment, by its terms,
bars only federal suits against state governments by citizens of another state or foreign country, it has
been interpreted also to bar federal suits against state governments by a state’s own citizens as well as
state court actions against state governments” (citation omitted)). Stated as simply as possible, the
Eleventh Amendment means that, “as a general rule, state governments may not be sued in federal
court unless they have waived their Eleventh Amendment immunity,” or unless Congress has
“abrogate[d] the states’ Eleventh Amendment immunity when acting pursuant to its authority under
Section 5 of the Fourteenth Amendment.”
Woods, 466 F.3d at 236. In the instant case, there is no
suggestion of congressional abrogation or state acquiescence, and so our inquiry is limited to the
15
question of whether the New York State Unified Court System is, constructively, “one of the United
States,” U.S. Const. amend. XI.
As we have previously explained, “[t]he immunity recognized by the Eleventh Amendment
extends beyond the states themselves to state agents and state instrumentalities that are, effectively,
arms of a state.” Woods, 466 F.3d at 236 (internal quotation marks omitted). Accordingly, “a
governmental entity is entitled to Eleventh Amendment immunity only if it is more like an arm of the
State, such as a state agency, than like a municipal corporation or other political subdivision.”
Id.
(internal quotation marks omitted). Courts frequently consider many factors to determine whether an
entity is an “arm of the state.” See, e.g., Gorton v. Gettel,
554 F.3d 60, 62 (2d Cir. 2009) (considering “(1)
how the entity is referred to in its documents of origin; (2) how the governing members of the entity
are appointed; (3) how the entity is funded; (4) whether the entity’s function is traditionally one of local
or state government; (5) whether the state has a veto power over the entity’s actions; and (6) whether
the entity’s financial obligations are binding upon the state” (quoting
McGinty, 251 F.3d at 95-96)
(internal quotation marks omitted)). However, the ultimate inquiry involves an overall assessment of
“the relationship between the State and the entity in question.” Regents of the Univ. of Cal. v. Doe,
519
U.S. 425, 429 (1997). A cardinal component of this relationship is “the question whether a money
judgment against a state instrumentality or official would be enforceable against the State.”
Id. at 430;
see also
Gorton, 554 F.3d at 62 (inquiring, after an assessment of other factors, “whether a suit against the
entity in federal court would threaten the integrity of the state and expose its treasury to risk,” and
stating that “[i]f the answer is . . . in doubt, a concern for the state fisc will control” (internal quotation
marks omitted));
Woods, 466 F.3d at 238 (observing that “a claim of Eleventh Amendment immunity
will occasion serious dispute only where a relatively complex institutional arrangement makes it unclear
whether a given entity ought to be treated as an arm of the state” (internal quotation marks omitted)).
So far as we can observe, every court to consider the question of whether the New York State
16
Unified Court System is an arm of the State has concluded that it is, and is therefore protected by
Eleventh Amendment sovereign immunity. Our Court has previously reached this conclusion in two
unpublished decisions. See Davis v. New York, 106 Fed. App’x 82, 83 (2d Cir. 2004) (summary order)
(“Specifically, we affirm the district court’s holding that the Eleventh Amendment bars [plaintiff’s]
claims against the State of New York, the New York State Unified Court System, and [individual
defendants] in their official capacities.”); Kampfer v. County of Fulton, Nos. 94-9110, 94-9201, 1997 U.S.
App. LEXIS 653, at *3 (2d Cir. Jan. 15, 1997) (summary order) (“The County Court of the State of
New York is an integral part of the State’s Unified Court System, see N.Y. Const. Art. VI, §§ 1 & 10-11,
and as such is an arm of the State of New York.”). Other courts in this Circuit have routinely
concluded that the Eleventh Amendment shields the Unified Court System from civil liability. See, e.g.,
Pennefather v. N.Y. State Unified Court Sys., No. 08 Civ. 0098, 2008 U.S. Dist. LEXIS 43460, at *6
(S.D.N.Y. June 3, 2008) (“It is apparent that Defendant, [the New York State Unified Court System], is
entitled to immunity from suit under the Eleventh Amendment . . . .”); Gollomp V, 2007 U.S. Dist.
LEXIS 8524, at *9 (“Defendant Unified Court System is an arm of the state for purposes of the
Eleventh Amendment.”); Darcy v. Lippman, No. 03 CV 6989,
2006 U.S. Dist. LEXIS 91893, at *10
(S.D.N.Y. Dec. 19, 2006) (“[T]he Court lacks subject-matter jurisdiction over Plaintiff’s ADA and
ADEA claims against New York and [the Unified Court System] (which is an arm of the State of New
York).”); Bland v. New York,
263 F. Supp. 2d 526, 534 (E.D.N.Y. 2003) (“The Eleventh Amendment
renders [the Unified Court System Office of Court Administration] and the State immune from suit
here under § 1983 or under state law because the State of New York has not consented to suit in
federal court, and because no express override of State statutory authority has been enacted by
Congress in association with § 1983.”).
Nevertheless, plaintiff contends that the “District Court improperly concluded [that] the
Eleventh Amendment barred all Plaintiff’s claims against the [New York] State Unified Court System.”
17
Appellant’s Br. 1. Other than another blanket assertion that the scope of Eleventh Amendment
sovereign immunity “is not cast in stone” and “is subject to revisiting and reconsider[ation] at all levels
of review,” Appellant’s Br. 33, plaintiff has not provided any basis for maintaining his position.10
Indeed, the prior decisions of courts in this Circuit indicate that, as often as the question has been
revisited, the answer has been the same: the New York State Unified Court System is immune from
suit.
The Unified Court System is specifically authorized by the Constitution of the State of New
York. See N.Y. Const. Art. VI, § 1(a) (“There shall be a unified court system for the state.”); see also
Gorton, 554 F.3d at 62 (considering, among other factors, “how the entity is referred to in its documents
of origin” (internal quotation marks omitted)). Its “function is traditionally one of . . . state
government,”
Gorton, 554 F.3d at 62 (internal quotation marks omitted), and it is funded principally
through State funds, see N.Y. Const. Art. VI, § 29(a) (“The legislature shall provide for the allocation of
the cost of operating and maintaining the court of appeals, the appellate division of the supreme court
10
Plaintiff made the same “set in stone” argument before the District Court and to other
courts in prior lawsuits against the State of New York. As the District Court observed:
The Court notes that Plaintiff’s argument that Eleventh Amendment jurisprudence is in a
state of “flux” is without merit. As Judge McAvoy noted in Gaboury v. Town of Roxbury, No.
98-CV-1753, 1999 U.S. Dist. LEXIS 5810,
1999 WL 244829 (N.D.N.Y. Apr. 19, 1999), a
case in which Plaintiff’s counsel represented the plaintiff, Eleventh Amendment immunity
“is not a mercurial area of law, but has been definitively settled by the Supreme Court since
1890 with respect to actions against the state itself, . . .[] and 1945 with respect to actions
against state agencies or state officials named in their official capacity. . . .” 1999 U.S. Dist.
LEXIS 5810, at *3 (internal citations omitted).
Gollomp V, 2007 U.S. Dist. LEXIS 8524, at *11 n.4 (brackets omitted, others added). As we noted
above, plaintiff’s counsel was sanctioned by the District Court in Gaboury for ignoring “the
fundamental subject matter jurisdiction issues imposed by the Eleventh Amendment.” 1999 U.S.
Dist. LEXIS 5810, at *3. Fully ten years later, plaintiff’s attorneys remain unpersuaded that New
York State enjoys sovereign immunity from civil claims brought in federal court. The relentlessness
of plaintiff’s counsel brings to mind the words of Winston Churchill, “never give in, never give
in—never, never, never, never—in nothing, great or small, large or petty—never give in,” only
without Churchill’s final caveat, “except to convictions of honour and good sense.” Never give in! The
Best of Winston Churchill’s Speeches 307 (Winston S. Churchill, ed., 2003) (Address at Harrow School,
October 29, 1941).
18
in each judicial department, the supreme court, the court of claims, the county court, the surrogate’s
court, the family court, the courts for the city of New York established pursuant to section fifteen of
this article and the district court, among the state, the counties, the city of New York and other political
subdivisions.”). Accordingly, a lawsuit against the Unified Court System is “in essence one for the
recovery of money from the state, [so that] the state is the real, substantial party in interest and is
entitled to invoke its sovereign immunity from suit.” Regents of the Univ. of Cal., 519 U.S. at 429 (internal
quotation marks omitted); see also
Gorton, 554 F.3d at 62 (considering, among other factors, “how the
entity is funded” and stating that a “concern for the state fisc will control” (internal quotation marks
omitted)). For these reasons, we hold that the New York State Unified Court System is unquestionably
an “arm of the State,”
Woods, 466 F.3d at 236, and is entitled to Eleventh Amendment sovereign
immunity.
Sanctions
“We review all aspects of a district court’s decision to impose sanctions—whether under 28
U.S.C. § 1927 or the court’s inherent power—for abuse of discretion.” Revson v. Cinque & Cinque, P.C.,
221 F.3d 71, 78 (2d Cir. 2000); cf. Sims v. Blot,
534 F.3d 117, 132 (2d Cir. 2008) (“A district court has
abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence, or rendered a decision that cannot be located within the range of
permissible decisions.” (internal citations, alterations, and quotation marks omitted)).
As the District Court observed, 28 U.S.C. § 1927 authorizes sanctions “when the attorney’s
actions are so completely without merit as to require the conclusion that they must have been
undertaken for some improper purpose,” and upon “a finding of conduct constituting or akin to bad
faith.” 60 E. 80th St. Equities, Inc. v. Sapir (In re 60 E. 80th St. Equities, Inc.), 218 F.3d 109, 115 (2d Cir.
2000) (internal quotation marks omitted). In addition to the substantive requirement of “bad faith,” we
have imposed a procedural requirement of notice and an opportunity to be heard. See
id. at 117
19
(requiring notification of “(1) the source of authority for the sanctions being considered; and (2) the
specific conduct or omission for which the sanctions are being considered,” but stating that, depending
on the circumstances, “a full evidentiary hearing is not required[, and] the opportunity to respond by
brief or oral argument may suffice” (internal quotation marks omitted)).
Plaintiff’s counsel do not argue that the sanctions imposed on them were procedurally flawed.
Instead, they assert that (1) they lacked bad faith, (2) their claims were not frivolous, (3) defendants
improperly threatened “sanctions as a litigation tactic,” Letter of James E. Morgan, Galvin & Morgan,
Counsel for Plaintiff, Jan. 22, 2009, at 5, and (4) sanctions will have a chilling effect on unpopular
claims that have a legitimate legal basis. We address each of these arguments below.
1. Bad Faith
As discussed above, the District Court made three findings of “conduct constituting or akin to
bad faith,” In re 60 E. 80th St. Equities, 218 F.3d at 115: (1) the “incredible” assertion by plaintiff’s
counsel that they had “researched all legal arguments and made no legal argument that lacked merit,”
despite prior warnings not to bring claims against New York State that were barred by the Eleventh
Amendment, Gollomp V,
2007 U.S. Dist. LEXIS 8524, at *28; (2) the “unfathomable”
misrepresentation by plaintiff’s counsel to Magistrate Judge Treece regarding counsel’s disciplinary
record, id.; and (3) plaintiff’s counsel’s persistence in asserting specious claims despite “ample
opportunity . . . to withdraw the[m],”
id. at *29. The record before us ably supports all three of the
District Court’s findings of conduct that amounted to bad faith.
First, the record demonstrates that several courts had already instructed plaintiff’s counsel that
similar claims against New York State were barred by the Eleventh Amendment. See Gollomp V, 2007
U.S. Dist. LEXIS 8524, at *28. The District Court cited two cases—Salvador,
2001 U.S. Dist. LEXIS
23465, at *2, and Gaboury,
1999 U.S. Dist. LEXIS 5810, at *3—in which plaintiff’s counsel were
specifically instructed that New York State enjoyed sovereign immunity from suit. In Gaboury, in which
20
plaintiff’s counsel was fined $250 for bringing frivolous claims, Judge McAvoy explained at length that
Eleventh Amendment sovereign immunity “is not a mercurial area of law, but has been definitively
settled by the Supreme Court since 1890 with respect to actions against the state itself, and 1945 with
respect to actions against state agencies or state officials named in their official capacity.” 1999 U.S.
Dist. LEXIS 5810, at *8 (internal citation omitted). Nonetheless, plaintiffs persisted in bringing claims
against the State of New York that were unquestionably barred by Eleventh Amendment sovereign
immunity.
We take judicial notice that plaintiff’s counsel has filed other lawsuits in the Northern District
of New York containing claims that were clearly barred by the Eleventh Amendment. See, e.g., Motorola
Credit Corp. v. Uzan, __ F.3d. __, No. 07-2076-cv, 2009 U.S. App. LEXIS 6970, at *8 (2d Cir. Mar. 31,
2009) (taking judicial notice of related proceedings). In Kosich, which was decided in August 2006,
Judge Scullin dismissed a complaint filed by plaintiff’s counsel because all of the claims against New
York State, the New York State Department of Health, and the Bureau of Professional Medical
Conduct were barred by Eleventh Amendment sovereign immunity. See Kosich, No. 06-CV-246, slip
op. at 3-4. The Court further ordered plaintiff’s counsel to show cause why they should not be
sanctioned pursuant to Rule 11 after finding that (1) plaintiff’s counsel failed to make a reasonable
inquiry into whether the claims alleged in the complaint were legally cognizable, and (2) were
sanctioned for bringing frivolous claims against New York State in the past.
Id. at 5-7. In addition, this
Court stated ten years ago—in another case from the Northern District of New York brought by
plaintiff’s counsel—that “Eleventh Amendment immunity . . . protects [State] defendants, including the
state employees acting in their official capacity.” Evans,
1999 U.S. App. LEXIS 18151, at *3 (summary
order).
Second, the record supports the District Court’s finding that it was “unfathomable” for
plaintiff’s counsel to misrepresent his disciplinary record to Magistrate Judge Treece during the
21
November 8, 2006 teleconference. Gollomp V, 2007 U.S. Dist. LEXIS 8524, at *28. Plaintiff’s counsel
misrepresented his record three times. After initially stating that “[w]e were not sanctioned in the
past,” J.A. 170-71 (Tr. of Proceedings, Nov. 8, 2006, 10:21-11:11), plaintiff’s counsel later represented
that his firm had “faced [Rule 11] motions before; [and] . . . ha[d] always defeated these motions,” J.A.
188 (Tr. of Proceedings, Nov. 8, 2006, 28:5-6). In addition, upon questioning by the Court, plaintiff’s
counsel stated that the Rule 11 motion then pending before the District Court in Kosich was “not
directly on point” and “[n]ot related to this case.” J.A. 185-86 (Tr. of Proceedings, Nov. 8, 2006,
25:44-26:7). As the District Court found, these assertions are flatly contradicted by the record.
In August 2006—three months before the teleconference with Magistrate Judge Treece—the
District Court ordered plaintiff’s counsel to show cause why they should not be sanctioned pursuant to
Rule 11 for filing frivolous claims that were barred by the Eleventh Amendment. See Kosich, No. 06-
CV-246, slip op. at 3-4. The District Court stated unambiguously that it was entertaining sanctions
against plaintiff’s counsel for “continu[ing] to assert claims on behalf of their clients against the State of
New York and/or its departments and agencies despite this Court’s repeated admonitions and the
well-established principles of Eleventh Amendment immunity.” Id. at 6-7. Contrary to plaintiff’s
representation, this was the very same issue raised in the State defendants’ Rule 11 motion in this case.
In April 2006—seven months before the teleconference with Magistrate Judge Treece—the
Appellate Division, Third Department levied a $1,000 sanction against plaintiff’s counsel for making
misrepresentations to the court in a zoning dispute. See Korbel, 28 A.D.3d at 891 (“Ordered that the
appeal is dismissed, as moot, with costs, defendants’ request for sanctions is granted and sanctions in
the amount of $1,000 each are imposed against plaintiff and plaintiff’s counsel pursuant to 22 NYCRR
130-1.1 . . . .” (emphases added)).
In April 1999—seven years before the teleconference with Magistrate Judge Treece—Judge
McAvoy expressly sanctioned plaintiff’s counsel pursuant to Rule 11. See Gaboury, 1999 U.S. Dist.
22
LEXIS 5810, at *4 (noting that the Court “ordered the Galvin & Morgan Firm to show cause why
sanctions should not be imposed pursuant to Rule 11”);
id. at *11 (finding that “[t]he Galvin Firm also
has neglected to learn from its past failures”);
id. at *14 (“find[ing] that sanctions are appropriate”
because “the Galvin Firm did not conduct an objectively reasonable analysis of whether the State
Defendants were amenable to suit in this Court in light of the Eleventh Amendment”); and
id. at *15-
16 (ordering “James E. Morgan and Madeline Sheila Galvin, the members of the Galvin and Morgan
Firm who signed the papers submitted to this Court, to each complete eight hours of a state-approved
continuing legal education course on Federal Practice or Federal Civil Rights Litigation and . . . to remit
a total of two hundred fifty dollars ($250.00) to the pro bono fund of the Northern District of New
York”).
Third, the record demonstrates that plaintiff’s counsel persisted in alleging legally unfounded
claims despite “ample opportunity in this case to withdraw the[m].” Gollomp V, 2007 U.S. Dist. LEXIS
8524, at *29. Upon reviewing the initial complaint, State defendants promptly warned plaintiff’s
counsel that they intended to file a Rule 11 motion if the causes of action barred by the Eleventh
Amendment were not withdrawn. At the November 8, 2006 teleconference, Magistrate Judge Treece
attempted to explain that the Eleventh Amendment precluded many of the claims alleged in the first
amended complaint. Nonetheless, plaintiff’s counsel signed the second amended complaint, which
contained multiple claims that were barred by the Eleventh Amendment. Plaintiff’s failure to correct
these deficiencies, combined with their other conduct, satisfies the “bad faith” requirement in § 1927
and supports the District Court’s decision to impose sanctions under that statute.
In addition to the three findings made by the District Court, our own review of the record
reveals additional support for a determination of “bad faith.” Since plaintiff’s counsel became involved
in this litigation, courts have commented that they have brought claims that are
incomprehensible—legally or otherwise. As the New York Court of Claims observed in May
23
2005—before this litigation moved into federal court—the claims pursued by plaintiff’s counsel were
nothing more than a recounting of “acts or omissions of the [State] Defendants relative to a laundry list
of State and Federal statutes, at some unspecified time and place,” such that the Court could not “tell
the nature of the Claim, and by what conduct the State is alleged to have caused this Claimant any
injury.” Gollomp IV, Appellees’ S.A. 36. The initial complaint filed in the instant action was equally
incomprehensible. For example, we are at a loss to discern—as any defending party would be—what
plaintiff meant by allegations that the various defendants collectively “engaged in the unconstitutional
delegation of authority by allowing the judicial arm of state government to assume what constitutes
legislative power in the form of revamping duly adopted laws, rules and regulations and in the process
contravening applicable Home Rule requirements,” causing plaintiff “$2,500,000” in damages. J.A. 58
(Compl. ¶¶ 302, 304). Even less clear is how “Defendants,” who included the New York state
judiciary, the former Attorney General, and various departments and agencies, “individually and
collectively acted in such a manner as to create a hostile environment, including a hostile home
environment in which Gollomp and his family reside . . . caus[ing] Gollomp and his family to incur
expenses and to suffer physically from anger, frustration, suspicion and concern.” J.A. 71 (Compl. ¶¶
410, 414). The State defendants have had to rebut these and similarly vague claims for years.
We also note that plaintiff’s counsel have been repeatedly admonished for the extreme length
of their pleadings. See, e.g., Kosich, No. 06-CV-246, slip op. at 1 n.1 (noting that plaintiff’s complaint was
“eighty-two pages in length and include[d] 440 separately-numbered paragraphs and twenty-one causes
of action”); Glasheen v. City of Albany, No. 98-cv-1503, 1999 U.S. Dist. LEXIS 19689, at *2-3 (N.D.N.Y
Dec. 16, 1999) (finding that the complaint, which was 74 pages and contained 445 paragraphs and 18
causes of action, “is rife with irrelevant information and prolix in the extreme,” and “admonish[ing]
Plaintiff’s counsel, James E. Morgan of Galvin & Morgan, against refiling a complaint in this action
that still contains irrelevant background information and fails to make a connection between the causes
24
of action and facts asserted in the complaint”); Gaboury, 1999 U.S. Dist. LEXIS 5810, at *13 n.5 (“In
fact, [Rule 8 of the Federal Rules of Civil Procedure] places an obligation upon the Galvin Firm to
submit ‘a short and plain statement of the claim,’ not a 103 page, 669 paragraph long conspiracy theory
novel.”). Although the District Court did not cite the pleadings in this case as a reason for awarding
sanctions, we observe that the initial complaint in this case—weighing in at 61 pages and containing
493 numbered paragraphs and 22 causes of action—was similarly prolix. Although the second and
third iterations of the complaint were shorter, there is simply no justification for ignoring prior
instructions to submit pleadings containing “short and plain statement[s] of the claim[s] showing that
the pleader is entitled to relief,” Fed R. Civ. P. 8(a)(2).
2. Frivolous Claims
Plaintiff offers several explanations of why his claims are not frivolous, none of which are
persuasive. First, plaintiff argues before our Court, as he did before the District Court, that his claims
could not have been frivolous because the State defendants undertook substantial efforts to defend
themselves. See, e.g., J.A. 448 (Pl.’s Aff. in Supp. of Mot. to Reargue, Feb. 15, 2007, ¶¶ 108-109)
(arguing that, had plaintiff’s claims actually been frivolous, “there would be no need for the extensive
legal research and drafting and work . . . [in] preparing Defendants’ motion[s] made before this Court”);
Appellant’s Br. 41 (“Either the legal research hours were unnecessary if the case were totally frivolous,
or there was a valid basis and legal arguments the AG had to address.”). We disagree. Frivolous claims
require a defending party to expend time and resources on needless litigation. Plaintiff’s argument
illustrates the need for attorney’s fees as a form of sanctions; it does not explain why the claims in the
instant case were non-frivolous.
Plaintiff has also asserted that his claims are not frivolous because the Eleventh Amendment is
not static. Rather, according to plaintiff, sovereign immunity is an evolving field of jurisprudence.
Plaintiff cites many cases to support this theory, but none of them are on point. For example, he
25
supplies multiple citations to cases concerning qualified immunity that have no bearing on the issue of
Eleventh Amendment sovereign immunity. See Appellant’s Br. at 34-35. Later in his brief, plaintiff
refers to “principles of law clearly enunciated by Judge Munson” in Thompson v. New York, 487 F. Supp.
212 (N.D.N.Y. 1979), which concerns the ongoing dispute between certain counties in upstate New
York and the Oneida Indian Nation. In that case, Judge Munson recognized that Ҥ 1983 was not
intended to create a waiver of a State’s Eleventh Amendment immunity merely because an action could
be brought under that section against state officers, rather than against the State itself,”
id. at 221
(internal quotation marks and alteration omitted), and that “a State is not a ‘person’ within the meaning
of the statute,”
id. at 226. Accordingly, Judge Munson dismissed claims against the “State of New
York, State Police Department, and the Superintendent of State Police . . . in his official capacity.”
Id.
at 226. Although Judge Munson suggested thirty years ago that, were he writing on a clean slate, he
would conclude that Congress overrode the states’ sovereign immunity in the Civil Rights Act of 1871,
see
id., he acknowledged that the Supreme Court had roundly rejected his view. See id.; see also Quern v.
Jordan,
440 U.S. 332, 342 (1979) (“[N]either logic, the circumstances surrounding the adoption of the
Fourteenth Amendment, nor the legislative history of the 1871 Act compels, or even warrants, a leap . .
. to the conclusion that Congress intended by the general language of the Act to overturn the
constitutionally guaranteed immunity of the several States.”). We fail to see how Thompson or any of the
qualified immunity cases cited by plaintiff’s counsel demonstrate that the State of New York does not
possess sovereign immunity.
We are left, then, with plaintiff’s bare assertion that sovereign immunity does not bar his claims
against New York State. On this basis, we must agree with the District Court that the claims brought
by plaintiff in this lawsuit were not well researched and were frivolous “in light of the well-established
case law addressing the federal civil rights statutes and Eleventh Amendment jurisprudence, to say
nothing of the numerous times that the judges in th[e Northern] District have instructed [plaintiff’s
26
counsel] about the relevant principles in these areas of the law.” Gollomp V, 2007 U.S. Dist. LEXIS
8524, at *28.
3. Threat of Sanctions as a Litigation Tool
Plaintiff argues that the “[u]se of sanctions as a litigation tactic, as consistently employed by the
State, is improper,” Letter of James E. Morgan, Galvin & Morgan, Counsel for Plaintiff, Jan. 22, 2009,
at 5, and that the State defendants made “irrelvant arguments thereby evading the real matters at issue
[i.e., the alleged forgery],” Appellant’s Br. 42. In light of the pattern of litigation described above,
including previous sanctions in state and federal courts for bringing baseless claims, we find nothing
improper in the State’s request to recover reasonable attorney’s fees from plaintiff’s counsel as a form
of sanctions.
4. “Chilling Effect”
We take seriously plaintiff’s argument that the imposition of sanctions has the potential to
create a “chilling effect” on legitimate claims. As we have previously observed,
Any regime of sanctions for a lawyer’s role in the course of representing a client inevitably has
implications for the functioning of the adversary process. If the sanction regime is too severe,
lawyers will sometimes be deterred from making legitimate submissions on behalf of clients out
of apprehension that their conduct will erroneously be deemed improper. On the other hand,
if the sanction regime is too lenient, lawyers will sometimes be emboldened to make improper
submissions on behalf of clients, confident that their misconduct will either be undetected or
dealt with too leniently to matter.
In re Pennie & Edmonds LLP, 323 F.3d 86, 90-91 (2d Cir. 2003). To be clear, we take no position on
whether plaintiff’s concerns are frivolous. There is every indication that he believes them sincerely, see,
e.g., Appellant’s Br. 45 (“[Plaintiff] is personally upset and more than a little concerned. . . . In the post-
Watergate-Iran Contra-Iraq Invasion days, no one can state [that] something of the type [plaintiff]
documented cannot happen.”), and neither this Court nor the District Court has based its decisions on
the merits of plaintiff’s case. We limit our consideration to plaintiff’s claims, i.e., his legal arguments,
and the conduct of his counsel during the course of this litigation. We are confident that nothing in
27
this opinion or in the District Court’s February 5, 2007 Order can or should be read to discourage the
prosecution of legitimate claims in federal court. Had plaintiff’s counsel presented a reasoned basis for
challenging long-standing Eleventh Amendment jurisprudence; had they at least argued that they were
challenging a well-established rule in order to preserve the issue for appeal to the Supreme Court; had
they taken advantage of opportunities to remove baseless claims from their complaints; and had they
not grossly misrepresented their disciplinary record to the District Court, we would not have occasion
to consider sanctions against them.
Plaintiff’s counsel has been repeatedly warned about the perils of frivolous and vexatious
litigation. In light of the foregoing, we have no basis to conclude that the District Court’s imposition
of sanctions pursuant to § 1927 was an abuse of discretion.
* * *
A final word is in order. It is an unpleasant task to sanction attorneys. The members of this
panel were all practicing lawyers before we joined the bench, and we are keenly aware of the
sting—both financial and reputational—that accompanies a court-ordered reprimand. Nevertheless,
the rules and statutes that authorize sanctions exist by necessity and for good reason, as the instant case
ably illustrates. For over a decade, the judges of the United States District Court for the Northern
District of New York—not to mention our judicial colleagues in the New York Court of Claims, the
New York Supreme Court, and the Appellate Division of the Supreme Court—have patiently heard
successive lawsuits in which plaintiff’s counsel have asserted the same stale claims against the State of
New York. A private litigant forced to defend against similar claims year after year would certainly
deserve some protection from the courts against future harassment. The State of New York deserves
no less consideration.
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CONCLUSION
For the foregoing reasons, the January 14, 2009 judgment of the District Court is
AFFIRMED.
Pursuant to Rule 39 of the Federal Rules of Appellate Procedure,11 the costs of this appeal are
taxed against plaintiff-appellant.
11
Rule 39 of the Federal Rules of Appellate Procedure states, in relevant part, “if a judgment
is affirmed, costs are taxed against the appellant.” Fed. R. App. P. 39(a)(2).
29
