Opinion
21-CV-10771 (JGK) (BCM)
06-28-2022
WESLEY ALEXANDER HOOKS, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants.
REPORT AND RECOMMENDATION TO THE HONORABLE JOHN G. KOEL TL
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Wesley Alexander Hooks accuses numerous defendants of violating his civil rights in connection with his February 16, 2020 arrest by officers of the New York Police Department (NYPD) and his subsequent criminal prosecution. One of the defendants is Stephen W. Edwards, who served for a period of time as plaintiff's (third) court-appointed attorney in the criminal matter. For the reasons that follow, I recommend, respectfully, that the counterclaim filed by defendant Edwards on March 2, 2022, seeking "Rule 11 Sanctions for Frivolous Litigation," be dismissed pursuant to Fed.R.Civ.P. 12(b)(6).
Background
Plaintiff filed this action on December 16, 2021, and amended his complaint on January 25, 2022. Although his pleading is lengthy, discursive, and often difficult to follow, he appears to accuse his former attorney, Edwards, of being part of a conspiracy with the NYPD and others to retaliate against him for filing a prior lawsuit against the NYPD. See Amend. Compl. (Dkt. No. 3) at ECF pp. 23-26.On March 2, 2022, Edwards filed his answer, which includes a single counterclaim, seeking $100,000 in sanctions on the ground that plaintiff's allegations against him are "frivolous, spurious, and as such sanctionable under Rule 11." See Ans. & Countercl. (Dkt. No. 15) ¶ 19.
Plaintiff makes similar allegations concerning his first two court-appointed attorneys, Jamie Niskanen-Singer and Adam Neal. See Amend. Compl. at ECF pp. 16-17, 21-22, 26.
In an Order dated April 1, 2022 (April 1 Order) (Dkt. No. 27), I explained that “Rule 11 does not create an independent cause of action," Benistar Admin Servs., LLC v. Wallach, 2021 WL 1186352, at *5 (E.D.N.Y. Mar. 30, 2021) (quoting Sean Michael Edwards Design, Inc. v. Pyramid Designs, 1999 WL 1018072, at *1 (S.D.N.Y. Nov. 9, 1999)), and gave Edwards a deadline of April 15, 2022, to either (i) move to dismiss his counterclaim voluntarily pursuant to Fed.R.Civ.P. 41(a)(2) and (c), or (ii) show cause in writing why the counterclaim should not be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). April 1 Order at 1 n.1. April 15 came and went with no motion, and no other response, from Edwards. In an Order dated May 27, 2022 (Dkt. No. 33), I extended Edwards' time to dismiss his counterclaim or show cause why it should not be dismissed to June 17, 2022. However, June 17 came and went with no motion, and no other response, from Edwards.
Analysis
Rule 11 of the Federal Rules of Civil Procedure permits a federal trial court, on motion or notice, to sanction a party or attorney for, inter alia, filing frivolous claims. It is well-settled, however, that "Rule 11 does not create an independent cause of action." Benistar Admin Servs., 2021 WL 1186352, at *5 (quoting Sean Michael Edwards Design, 1999 WL 1018072, at *1); see also, e.g., Raghavendra v. N.L.R.B., 2009 WL 5908013, at *22 (S.D.N.Y. Aug. 27, 2009) (Rule 11, the Code of Professional Responsibility, and the Model Rules of Professional Conduct "do not create private rights of action[.]"); Wentworth v. Hedson, 248 F.R.D. 123, 125 (E.D.N.Y. 2008) ("There is no private right of action under Rule 11."); In re 72nd St. Realty Assocs., 185 B.R. 460, 473 (Bankr. S.D.N.Y. 1995) ("Rule 11 does not create an independent cause of action.").
"Rather, Rule 11 permits a court to 'impose an appropriate sanction on any attorney, law firm, or party' who either violates Rule 11(b) him or herself or is responsible for the violation." Benistar Admin Servs., 2021 WL 1186352, at *5. Under the express provisions of the rule itself, a motion seeking sanctions under Rule 11:
. . . 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.Fed. R. Civ. P. 11(c)(2). Defendant Edwards has done none of these things. Instead, he seeks Rule 11 sanctions by way of counterclaim, which he cannot do. Consequently, his counterclaim should be "dismissed in its entirety." Benistar Admin Servs., 2021 WL 1186352, at *6.
Conclusion
For the reasons stated above, I recommend, respectfully, that defendant Edwards's counterclaim be DISMISSED.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO REPORT AND RECOMMENDATION
The parties shall have fourteen days from this date to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b) to this Report and Recommendation. Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. John G. Koeltl at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Koeltl. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).