Jimenez v. City of New York
Jimenez v. City of New York
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
On September 24, 2015, this Court granted defendants’ motion for summary judgment in this action brought under section 1983 of Title 42 of the United States Code. Defendants now move for attorneys’ fees under section 1988 of Title 42 of the United States Code, and for sanctions against plaintiffs counsel pursuant to Rule 56(h) of the Federal Rules of Civil Procedure, section 1927 of Title 28 of the United States Code, and this Court’s inherent powers to supervise and control its own proceedings. For the reasons described below, defendants’ motion is GRANTED in part.
II. BACKGROUND
Plaintiff and his wife, Mrs. Maribel Mos-so-Gonzalez Jimenez, commenced this action on April 28, 2014, alleging false arrest, denial of substantive due process, malicious abuse of process, and related claims stemming from plaintiffs arrest on January 30, 2013.
A. Mrs. Jimenez’s Hospitalization and Mr. Jimenez’s Arrest
In the early morning hours of December 26, 2012, plaintiffs wife Maribel Jimenez was taken to Harlem Hospital by ambulance.
On January 21, 2013, Detective Quilty met with Mrs. Jimenez at her home, accompanied by Detective Miguel Lopez.
On January 30, 2013, Mrs. Jimenez appeared at the police precinct with her husband. At the precinct, Mrs. Jimenez told Detective Quilty that her husband had not assaulted her,
B. Documentary Evidence
A number of documents in the record, prepared by disinterested medical and healthcare professionals, indicated that Mrs. Jimenez had in fact reported a domestic assault on December 26, 2012.
1. The Ambulance Report
The emergency medical technician who transported Mrs. Jimenez to Harlem Hospital on December 26, 2012, completed a standard FDNY Prehospital Care Report (the “Ambulance Report”) that same day.
2. The Hospital Records
The Harlem Hospital Emergency Department triage records created upon Mrs. Jimenez’s arrival at Harlem Hospital note that “patient was in. altercation with her domestic partner and now complains of right shoulder, forearm, and wrist pain.”
3.Hannah Cohen’s Affidavit
Hannah Cohen, a volunteer advocate with the Mt. Sinai Sexual Assault and Violence Intervention Program, met with Mrs. Jimenez at Harlem Hospital on the night she was hospitalized. Cohen has submitted an affidavit in which she attests to a “specific recollection of speaking with Mrs. Jimenez through a Spanish interpreter.”
4.Cohen’s Advocate Report Form
The defendants have also produced Cohen’s Advocate Report Form, which she testified was written entirely by her.
C. Summary Judgment
After eighteen months of litigation, several rounds of amendment to the Complaint, a motion to dismiss the Complaint resulting in the dismissal of several parties and certain of plaintiffs claims, and the close of fact discovery, the Court held a premotion conference to discuss defendants’ intended motion for summary judgment. It was clear from the record that the only evidence supporting plaintiffs claims was Mrs. Jimenez’s assertion that she had never reported an assault to anyone.
On September 24, 2015, this Court granted defendants summary judgment on all claims (the “September 24 Opinion”). As expected, the only piece of evidence supporting plaintiffs version of events was an affidavit prepared by plaintiffs counsel and signed by Mrs. Jimenez in which she certified her claims that she had never reported the well-documented assault to anyone — not the emergency medical technician, not the Harlem Hospital Emergency Department, not the volunteer advocate, and certainly not the police. This affidavit, and the motiveless conspiracy between police officers, medical professionals, and domestic violence advocates to fabricate an assault charge in order to arrest her husband that it alleged, were both too fantastic to be credible.
III. APPLICABLE LAW
A. Attorneys’ Fees Under 42 U.S.C. § 1988
Section 1988 provides that' “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
B. Sanctions Under Rule 56(h)
Rule 56(h) states, in full:
If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court — after notice and a reasonable time to respond — may order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.
The rule does not define the scope of “bad faith;” however, courts have found bad faith under Rule 56(h) where an attorney’s conduct was “ ‘egregious,’ such as “where affidavits contained perjurious or blatantly false allegations or omitted facts
C. Sanctions Under 28 U.S.C. § 1927 and the Court’s Inherent Authority
Apart from Rule 56(h), two additional bases for sanctions exist. First, under section 1927, a court may require any attorney “who so multiplies the proceedings in any case unreasonably and vexatiously ... to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”
To impose either of these sanctions, “a court must find clear evidence that (1) the offending party’s claims were entirely without color, and (2) the claims were brought in bad faith — that is, ‘motivated by improper purposes such as harassment or delay.’ ”
In practice, sanctions under section 1927 and sanctions pursuant to a court’s inherent authority materially differ only in that “awards under [section] 1927 are made only against attorneys or other persons authorized to practice before the courts while an award made under the court’s inherent power may be made against an attorney, a party, or both.”
IV. DISCUSSION
A. Timeliness of Motion
Plaintiff argues that defendants’ motion, filed fourteen days after the Clerk of the Court entered its judgment in this case, is untimely. Plaintiff is correct. Rule 54 of the Federal Rules of Civil Procedure provides that a “ ‘[j]udgment’ as used in these rules includes a decree and any order from which an appeal lies.” It is only a “final judgment” that triggers the four
It is, however, within my discretion to retroactively extend the filing deadline of this Rule 54 motion upon finding defendants’ failure to timely file was the result of excusable neglect.
Defendants’ filing of this motion was based on the good faith (albeit substantively incorrect) belief that the “judgment” referred to in Rule 54(d)(2)(B)(i) meant the clerk’s judgment closing the case, and not this Court’s September 24 Opinion. The motion was filed one day after the close of the fourteen day window, creating neither prejudicé to the plaintiff nor a significant impact on this Court’s proceedings. This is quintessential excusable neglect. I therefore retroactively extend defendants’ filing deadline by one day as per Rule 6(b) of the Federal Rules of Civil Procedure, and deem this motion timely filed.
B. Attorneys’ Fees Against Plaintiff
Defendants argue that they should be awarded attorneys’ fees under section 1988 because plaintiffs case “at the very least ... was unreasonable and without foundation, if not patently frivolous.”
Plaintiff argues that even if I determine defendants are entitled to fees, I should decline to grant fees due to plaintiffs relative poverty, and concomitant inability to pay any fee award assessed.
This does not mean defendants are. entitled to nothing. While the Court is not unsympathetic to plaintiffs financial situation, “litigation is not a sport; litigation is not a lottery.”
B. Sanctions Against Plaintiffs Counsel
1. Rule 56(h)
Defendants urge this Court to sanction plaintiffs counsel for his role in preparing and submitting Mrs. Jimenez’s affidavit which, as described above, provides a highly suspect set of facts controverted by an array of independent and disinterested sources.
Plaintiffs counsel personally drafted Mrs. Jimenez’s affidavit, and read it to her through a translator before she signed the document.
Central to. this case was Detective Quilty’s interview with Mrs. Jimenez on January 21, 2013 — the interview that created probable cause for plaintiffs arrest on charges of domestic assault. In plaintiffs original complaint, and in each of the two amended complaints filed in this action, plaintiff alleged that Quilty interviewed Mrs. Jimenez (who does not speak English), with Detective Lopez serving as translator.
Because Mrs. Jimenez was the only individual other than Detectives Quilty and Lopez present at this meeting, it follows that Mrs. Jimenez told plaintiffs counsel that Detective Lopez translated the interview between Mrs. Jimenez and Detective Quilty as early as April 2014, at the commencement of this action. However, when it came time to oppose defendants’ motion for summary judgment, Mrs. Jimenez’s story abruptly changed — in her affidavit, Mrs. Jimenez swore that Detective Lopez had never spoken to her at all, and the conversation between her and Officer Quilty had been translated by Mrs. Jimenez’s daughter — who was not mentioned as even being present for the interview in plaintiffs pleadings.
Plaintiffs counsel attempts to explain this shift by saying he had misunderstood Mrs. Jimenez’s account of events from his earlier interviews with her, and that the new story contained in her affidavit is the true version of events.
This Court warned plaintiffs counsel, on the record, that Mrs. Jimenez’s recantation of her assault and subsequent recasting of events — made in the face of overwhelming evidence to the contrary — could not be reduced to a sworn statement without consequence.
2. Other Sources of Authority for Sanctions
Defendants’ arguments for sanctioning plaintiffs counsel under this Court’s inherent authority or under section 1927 are unavailing — plaintiffs conduct in the earlier phases of this litigation, while far from ideal, does not rise to the level of provable bad faith.
Defendants argue that sanctions are warranted due to plaintiffs counsel submitting a Complaint with several unsupported claims, including claims for conspiracy and unlawful stop and search.
Defendants further argue that sanctions are warranted due to various tactics undertaken by plaintiffs counsel during fact discovery, including overbroad discovery requests and discovery requests related to claims previously dismissed by this Court.
For the foregoing reasons, defendants’ motion for attorneys’ fees and sanctions is GRANTED in part. Attorneys’ fees are granted against Patricio Jimenez and sanctions under Rule 56(h) are granted against plaintiffs counsel Gregory Mouton, who are jointly and severally liable for the total amount of $19,075.00. The Clerk of the Court is directed to close this motion (Dkt. No. 124).
SO ORDERED:
. See Defendants’ Statement of Undisputed Material Facts Pursuant to Rule 56.1 ("Def. 56.1”) ¶ 1.
. See id. ¶ 2.
. See Plaintiff's Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 ("PL 56.1”) ¶ 25.
. See id. ¶¶ 26-27.
. See Def. 56.1 ¶ 4.
. See id. ¶ 5.
. See PL 56.1 ¶ 10.
. See id. ¶ 80.
. See Defendants' Reply to Plaintiffs Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 ¶ 60.
. See PL 56.1 ¶¶ 66-67.
. See id. ¶¶ 71-72.
. See FDNY Prehospital Care Report, Ex. M to 8/25/15 Declaration of Tobias E. Zimmerman in Support of Defendants’ Motion for Summary Judgment, at 1.
. Id. at 2.
. Id.
. Harlem Hospital Center Triage Note, Ex. D to 6/20/14 Declaration of Thomas Catalano in Support of Motion to Dismiss ("Catalano Aff.”), at 3.
. 6/20/14 Declaration of Hannah Cohen' in Support of Motion to Dismiss ¶ 6.
. Id. ¶ 11.
. See id. ¶ 5.
. Advocate Report Form, Ex. C to Catalano Aff., at 3.
. See Transcript of 6/18/15 Conference at 11:18-12:22.
. See id. at 18:13-21. Defendants noted that they declined to depose Mrs. Jimenez to avoid placing the victim of a domestic assault in a position to commit perjury. See id. at 18:9-12.
. See Jimenez v. City of New York, No. 14 Civ. 2994, 2015 WL 5638041, at *6 (S.D.N.Y. Sept. 24, 2015).
. See id. at *7.
. 42 U.S.C. § 1988(b).
. Fox v. Vice, 563 U.S. 826, 131 S.Ct. 2205, 2213, 180 L.Ed.2d 45 (2011) (quotations omitted).
. See Davidson v. Parshall, 740 F.2d 129, 132-33 (2d Cir. 1984).
. Stern v. Regency Towers, LLC, 886 F.Supp.2d 317, 327 (S.D.N.Y. 2012) (quoting Jaisan, Inc. v. Sullivan, 178 F.R.D. 412, 415-16 (S.D.N.Y. 1998)). Accord Luscier v. Risinger Bros. Transfer, Inc., No. 13 Civ. 8553, 2015 WL 5638063, at *8-*10 (S.D.N.Y. Sept. 17, 2015).
. 28 U.S.C. § 1927.
. Ransmeier v. Mariani, 718 F.3d 64, 68 (2d Cir. 2013) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)).
. Eisemann v. Greene, 204 F.3d 393, 396 (2d Cir. 2000) (quoting Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 336 (2d Cir. 1999)).
. Sierra Club v. United States Army Corps of Eng’rs, 776 F.2d 383, 390 (2d Cir. 1985) (citing Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir. 1980)).
. Nemeroff, 620 F.2d at 348.
. Schlaifer Nance, 194 F.3d at 336 (quoting Shafii v. British Airways, PLC, 83 F.3d 566, 571 (2d Cir. 1996) (quotations omitted)).
. Milltex Indus. Corp. v. Jacquard Lace Co., 55 F.3d 34 (2d Cir. 1995) (quoting Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir. 1986) (quotations omitted)).
. Oliveri, 803 F.2d at 1273.
. Weyant v. Okst, 198 F.3d 311, 314 (2d Cir. 1999) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)).
. See Ritani, LLC v. Aghjayan, 970 F.Supp.2d 232, 266-67 (S.D.N.Y. 2013) (holding that the fourteen-day window for a Rule 54 motion began upon entry of court's opinion and order). Cf. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958) (”[I]t is necessary to determine whether the language of the opinion embodies the essential elements of a judgment ... and clearly evidences the judge’s intention that it shall be his final act in the case. ... When all of these elements clearly appear final judgment has been both pronounced and entered, and the time to appeal starts to run ....”).
. See Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 226 (2d Cir. 2004).
. Id. at 228 (quotation omitted).
. 10/9/15 Memorandum of Law in Support of Defendants' Motion for Attorneys' Fees and Sanctions ("Def. Mem.”) at 4. Plaintiff does not respond to the substance of defendants' argument in his opposition, which only addresses the timelihess of defendants’ motion, raises plaintiff’s lack of financial resources, and then argues for a substantial reduction in fees based on an analysis of defendants’ fee application. See 11/6/15 Memorandum of Law in Opposition to Defendants’ Motion for Attorneys’ Fees and Sanctions (“PL Mem.”) at 1-6. The remainder of plaintiff's opposition, along with the entirety of a supporting affidavit from plaintiff’s counsel, is solely devoted to rebutting defendants' arguments for sanctions. See id. at 6-7, 11/6/15 Declaration of Gregory Mouton in Opposition to Defendants’ Motion for Attorneys’ Fees and Sanctions ("Mouton Aff.”).
. See PI. Mem. at 3.
. See, e.g., Shangold v. Walt Disney Co., 275 Fed.Appx. 72, 74 (2d Cir. 2008) ("We have noted ... that fee awards are at bottom an equitable matter, [and] courts should not hesitate to take the relative wealth of the parties into account.”) (quotation omitted).
. See PI. Mem. at 3.
. See id.
. Jimenez, 2015 WL 5638041, at *7.
. The methodology for calculating this award is detailed below at footnote 52.
. See Def. Mem. at 9-13.
. See Mouton Aff. ¶¶ 10, 16-22.
. See id. ¶¶ 19-20.
. See Compl. at ¶¶ 39-43 (“Approximately 2 weeks after December 26, 2012, Defendants Quilty and Lopez, who spoke Spanish, went to Mrs. Jimenez’s home. While there, Defendant Lopez spoke with Mrs. Jimenez in Spanish. ... Defendant Lopez conveyed all of this information to Defendant Quilty.”).
. See Mouton Aff. ¶ 18.
. See Transcript of 6/18/15 Conference at 18:13-21.
.The Court arrived at this number through an examination of defendants’ fee application. See Time Billed By Defendants' Counsel, Exhibit C to the 10/9/15 Declaration of Tobias E. Zimmerman in Support of Defendants’ Motion for Attorneys’ Fees and Sanctions. The Court manually computed the amount of time billed by defendants' counsel towards research and brief/motion practice during the summary judgment period, and multiplied this time by defendants’ submitted blended rate of $350 per hour — a blended rate plaintiff does not dispute as unreasonable in his opposition, and that is in line with other fee awards granted to experienced attorneys in section 1983 cases. See, e.g., Greene v. City of New York, No. 12 Civ. 6427, 2013 WL 5797121, at *4 (S.D.N.Y. Oct 25, 2013) (finding the rate of $375 per hour to be on par with rates charged by seasoned civil rights solo practitioners).
. See Def. Mem. at 7-8.
. See id. at 9.
. Oliveri, 803 F.2d at 1273.
Reference
- Full Case Name
- Patricio JIMENEZ v. The CITY OF NEW YORK, Detective James Quilty, Detective Miguel Lopez, and John/Jane Doe 1
- Cited By
- 3 cases
- Status
- Published