Opinion
No. 02 Civ. 3346 (MBM).
December 30, 2004
APPEARANCES:
NEAL BRICKMAN, ESQ., (Attorney for Plaintiff), The Law Offices of Neal Brickman, New York, NY.
ALLAN BLOOM, ESQ., STEVEN M. WARSHAWSKY, ESQ., ZACHARY D. FASMAN, ESQ., (Attorneys for Defendant), Paul Hastings Janofsky Walker LLP New York, NY.
OPINION AND ORDER
In an opinion and order dated June 14, 2004 ("Opinion"), familiarity with which is assumed for current purposes, I granted defendant IBM's motion for summary judgment dismissing plaintiff Hossein Milani's claims of discrimination based on age and national origin in violation of New York State and New York City laws. 322 F. Supp.2d 434 (S.D.N.Y. 2004). The facts developed during discovery showed that Milani had been fired because IBM believed, reasonably, that he had violated its policy that barred managers from dating subordinates, and not for any discriminatory reason, and that Milani's claims based on allegations of conduct that occurred earlier than May 1, 1999, were time-barred. IBM had moved earlier for costs and fees, but I invited further briefing after summary judgment was granted.
For the reasons set forth below, the motion is granted to the extent that both counsel and client are found to have engaged in sanctionable conduct and are assessed token penalties of $250 each.
Federal Rule of Civil Procedure 11(b) provides that when an attorney submits to the court a paper, as therein defined, that attorney is representing that "the claims . . . therein are warranted by existing law or by a nonfrivolous argument for the extension . . . of existing law" and that "the allegations and other factual contentions have evidentiary support. . . ." Rule 11(c) provides that when a court finds those strictures have been violated, it "may . . . impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation."
IBM taxes plaintiff's counsel, and presumably Milani as well, for failing to withdraw the lawsuit when they were shown evidence in Milani's own hand in which he acknowledged a relationship with the woman in question that violated IBM policy, and when it was pointed out to them that National Railroad Passenger Corp. v.Morgan, 536 U.S. 101 (2002) and related cases appeared to foreclose any claim based on acts that went back further than three years from the date Milani filed his claim. However, the Second Circuit has "stressed that [on a Rule 11 motion] `any and all doubts must be resolved in favor of the signer [of a paper said to have been submitted in violation of the Rule].'" Stern v. Leucadia Nat'l Corp., 844 F.2d 997, 1005 (2d Cir. 1988) (quoting Eastway Constr. Corp. v. City of New York, 762 f.2d 243, 254 (2d Cir. 1985)); see also Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994) ("[A]ll doubts are to be resolved in favor of the signer of the document that is the basis for Rule 11 sanctions[.]"). For that reason, it is possible that both Milani and his attorney questioned IBM's motive for firing plaintiff, and believed that there might be found a theory whereby alleged incidents that occurred earlier than three years before filing might provide the basis for relief, notwithstanding the handwriting on the wall in Morgan and its sequelae.
However, as noted in the Opinion, in numerous instances Milani swore in an affidavit to facts that squarely contradicted earlier deposition testimony that he had given, and other facts of record. See, e.g., 322 F. Supp.2d at n. 3, 4, 8, 12, 20. Although Milani objects strenuously to one apparent contradiction between his affidavit and his deposition transcript, see 322 F. Supp.2d at n. 10, and claims that in that instance a videotape of the deposition shows the transcript was inaccurate, he in fact submitted numerous sworn contradictions of the record in an effort to create an issue of fact, as reflected in the Opinion. This was an enterprise in which both client and lawyer necessarily participated, although it is not clear how much of a burden this particular conduct placed on opposing counsel.
The submission of an affidavit that contradicts objective facts and prior testimony in an effort to create an issue is plainly improper, see Salovaara v. Eckert, 222 F.3d 19, 33 (2d Cir. 2000), but Rule 11 leaves to the court's discretion the question of whether sanctions are to be imposed even after violations are found. See Perez v. Posse Comitatus, 373 F.3d 321, 325 (2d Cir. 2004) ("Even if the district court concludes that the [submission of a paper] violates Rule 11, however, the decision whether or not to impose sanctions is a matter for the court's discretion."), and cases cited therein. To say that the court has discretion, however, is merely to say that the court has a choice, not that it may exercise the choice without resort to reason; discretion, in other words, is not whim. Here, two factors appear to me to call for the imposition of sanctions. One is that submitting affidavits of this sort "degrades the legal profession and disserves justice." MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 73 F.3d 1253, 1262 (2d Cir. 1996). Another is the utter lack of contrition, or even regret, in both client and lawyer. The client has submitted an affidavit disputing that he did anything wrong and seeking to create yet further issues of fact based on additional tortured denials of the record. Counsel has accused IBM of impugning his good name and has demanded costs and fees in connection with the Rule 11 motion. There is a school of thought that teaches that the best defense is a good offense. That school of thought may prevail on the battlefield or the athletic field; it should not prevail in the courthouse.
Paragraph (c) of the Rule, quoted above, permits the court to impose "an appropriate sanction," and so the question that naturally arises is what is "appropriate" here. A finding that someone has engaged in sanctionable conduct is a finding that itself carries a sting. See Love v. Kwitny, 772 F. Supp. 1367, 1369 (S.D.N.Y. 1991) (citing the "sting" inherent in a finding that Rule 11 had been violated, even without a financial penalty). Here, although it would be difficult to measure the financial consequences of the many contradictory statements submitted by Milani, there is no doubt that some resources had to be expended to run them down. Of course, this effort redounded to the ultimate benefit of IBM, but nonetheless it had to be made. To reflect that Milani's contradictory statements did have consequences in time and effort for IBM counsel, and were the responsibility of both lawyer and client, a token financial penalty of $250 each will be assessed against both counsel and client.
To the above extent only, the motion is granted. Settle order on ten days' notice.
SO ORDERED.